text:
    James W. Lambert et al. v. Catharine S. Harvey et al.

      Filed at Springfield September 30, 1881.

    1. Will—devise—when to take effect. Where a testator directed that as soon as could advantageously be done after the death of his widow, all his notes, etc., be collected, and all his property, real and personal, be sold, and after paying the expenses of executing the will, his daughter A should be paid $1000, and the remainder of his estate be given to his daughter B, if living when the will should be executed, but if not living, her part to be given her daughter C, and appointed B hie executrix: Held, that the disposition made by the will was not to take effect until after the death of the widow of the testator, and then the "division was to be with reference to the condition of things as at that time existing.
    2. Where a will provided for the conversion of all the testator’s property into money on the death of his widow, and its division among his two daughters, but directed that if his daughter B should not be living “at the time this will shall be executed,” her share should be given to her daughter: Reid, that the words, “at the time this will shall be executed,” referred to the time of converting the estate into money and distributing it under the will.
    3. Same—when property descends to heir. Where real estate is directed by a testator to be sold and converted into money after the happening of a certain contingency, and no disposition is made of such estate in the meantime, the legal title will devolve upon the heirs at law of the testator, subject to sale under the power, at the proper time.
    4. Same—whether executor takes legal title. Where the executor of a will is directed to sell the testator’s real estate and divide the proceeds of the sale between certain devisees, the executor takes only a power of sale, that being all that is necessary to execute the will, and no legal estate in the land.
    Writ of Error to the Circuit Court of Pike county; the Hon. S. P. Shops, Judge, presiding.
    Mr. William A. Grimshaw, for the plaintiffs in error:
    On the construction of the will, see Kirkland v. Cox et al. 94 Ill. 400. As to the power of an executor, 2 Redfield on Wills, 124.
    It seems obvious that the fee was not passed by the will to either or both of the plaintiffs, in their own right. By intendment of law, Catharine S. Harvey was charged with the powers and duties of a trustee, for the uses and purposes of the will. Is it not necessary she should take the fee to execute the trust ? If so, no recovery could be had by her co-plaintiff.
    Mr. William B. Archer, and Mr. Thomas Worthington, Jr., for the defendants in error:
    The plaintiffs in the court below claim the title to the land as heirs at law of Silas E. Shepherd, and not by virtue of his will.
    It is in evidence that the testator’s widow is still living, and that the will has not been executed, nor the $1000 paid to Alma W. Kingsley. Hence, the devise to Mrs. Harvey is an executory devise, which is to take effect after the happening of all the contingencies mentioned in item 7; and as no disposition is made of the fee in the meantime, it is left to descend to the testator’s heirs at law. 1 Jarman on Wills, 660, 661, 643; 2 Washburne on Real Prop. 684; 2 Blackstone’s Com. 173; 4 Kent’s Com. 268; Redfield on Wills, 656, 658; Miller v. Chittenden, 4 Iowa, 252; Chambers v. Wilson, 2 Watts, 495; Morton v. French, 6 Pa. St. 484.
    The authorities fully recognize this distinction,—that a devise of the land to executors to sell, passes the fee in it, but a devise that executors shall sell the land, or that lands be sold by executors; gives them but a power which will not affect the descent of the fee. 1 Williams on Exrs. 450; Sugden on Powers, 147, 150; 2 Redfield on Wills, 123; Powell on Devises, 143; Jackson v. Schauber, 7 Cow. 187; Bergen v. Bennett, 1 Caines’ Cases, 15; Clinefelter v. Ayres, 16 Ill. 330; Rev. Stat. 1874, p. 419, sec. 12.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Catharine S. Harvey and Alma W. Kingsley, defendants in error, obtained a judgment in an action of ejectment in the Pike county circuit court, at its April term, 1880, against James W. Lambert and James Sharp, the plaintiffs in error, for the recovery of certain real estate in said county, to reverse which the present writ of error is prosecuted.

Defendants in error deraign title to the land in controversy through their father, Silas E. Shepherd, who died seized of the premises on the 12th day of October, 1877, leaving a widow, and defendants in error, his only children and heirs at law. It is claimed by plaintiffs in error, that under the will of the said Silas E. Shepherd, Catharine S. Harvey alone acquired the legal title to the premises in controversy, and hence there was no right of recovery in the names of both defendants in error, and this really is the only question presented by the record which we regard of sufficient importance to consider,—indeed, it may be said that it is the only question about which there is any just ground for controversy.

The provisions of the will relied on for showing title in. Mrs. Harvey alone, are as follows, to-wit:

“Item 7. As soon after the death of my said wife as it may conveniently and advantageously be done,. I direct that all accounts, notes, bonds and judgments be collected, and all property, both real and personal and mixed, be sold, and after defraying the expenses of executing this will, I direct that my daughter Alma W. Kingsley, be paid $1000, and that the remainder of my entire estate shall be given to my daughter Catharine S. Harvey, aforesaid.

“Item 8. If my daughter Catharine shall not be living at the time this will shall be executed, I direct that which is herein bequeathed to her shall be given to her daughter, Alma Harvey. ”

Her appointment as executrix," and these two items of the will, furnish the only grounds for the position that she took the exclusive legal title to the land in controversy.

The testator obviously intended that the disposition of his estate made by the will should not take effect until after the death of his wife,—or, in other words, it was his intention that no division of the estate should take place until after her death, and that when that event occurred such division was to be made with reference to the condition of things then existing, and not with reference to the condition of things at the time of the testator’s death. Whether Mrs. Harvey was to ultimately take any beneficial interest under the will, depended upon the contingency of her outliving the widow; for if the widow survived her, the daughter of Mrs. Harvey was to take under the will what her mother would otherwise have taken had she survived the widow. That the rights of the parties, so far as Mrs. Harvey and her daughter áre concerned, were to be determined by the condition of things at the time of the widow’s death, clearly appears from the 8th item of the will above cited. The testator declares, that “if my daughter Catharine shall not be living 'at the time this will shall be executed, I direct that which is herein bequeathed to her shall be given to her daughter, Alma Harvey.” By the expression “at the time this will shall be executed, ” the testator evidently refers to the time of converting the estate into money and distributing it under the will, which could not be done until after the widow’s death, and whether Mrs. Harvey or her daughter would take at this time, depended entirely upon the contingency already stated.

The will does not, specifically or by necessary implication, give the land of the testator, or any portion of it, to either of the daughters, and hence the legal title devolved by descent on both of them as tenants in common, .and the suit was therefore properly brought in both their names.

It is suggested, however, that inasmuch as the will directs the executrix to sell and convert the real estate into money, Mrs. Harvey, by implication, took the fee. We dó not think so. It is true there is a class of cases where executors are held to take the legal estate, by implication. This occurs where.they are required to perform certain-duties with respect to realty which can only be. performed by one clothed with the legal title. But there is no just ground for such a construction in the present case. A mere power to sell is all that was necessary in this case to carry into effect the objects of the will, and such a power only was conferred.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Walker

license: Public Domain

text:
    Henry C. Dickerson v. Amasa J. Merriman.

      Filed at Springfield September 30, 1881.

    1. Action—for money loaned where borrower fails to give security. Where money is loaned under an agreement that the borrower shall give a mortgage to secure its repayment, and he fraudulently or otherwise refuses to give the security agreed upon, or attempts fraudulently to impose a different security on the lender, an action at law lies for the recovery of the money.
    2. Limitation—when it begins to run. The Statute of Limitations does not begin to run against a debt until it is due or a right of action has accrued; and where the'indehtedness is not evidenced in writing; an action on it will not he harred in less than five years.
    3. Deed—inoperative without delivery and acceptance. A conveyance of land is inoperative without delivery and acceptance.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the" Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.
    This was an action of assumpsit, brought in the McLean circuit court, by Amasa J. Merriman, administrator of the estate of Jane'Hendryx, deceased.
    The declaration contained the common counts only, alleging the indebtedness to have accrued on the first day of January, 1874.
    The defendant pleaded the general issue, payment, the Statute of Limitations, and that he conveyed to Jane Hendryx eighty acres of land, in Coffee. county, Kansas, arid a part of a lot in Leroy, in McLean county, Blinois, in satisfaction of this debt.
    Afterwards, an agreement was made of record that all-special pleas be withdrawn, and that all evidence admissible under any proper plea be introduced under, the general issue.
    Upon a trial the jury found for the plaintiff, and assessed the damages at $2392.45, on which judgment was rendered. On appeal to the Appellate .Court for the Third District this judgment was affirmed.
    Messrs. Bloomfield & Hughes, and Messrs. Tipton & Byan, for the appellant:
    , The rule is, that a deed with a- consideration named, and a condition that the grantor may redeem on paying back such consideration with interest, is not evidence of a debt, like a note and mortgage, but in the nature of a right to repurchase. Henry v. Bell, 5 Ver. 393; Reading v. Weston, 7 Conn. 143; Conway v. Alexander, 7 Cranch, 218.

      Something more than a reservation of a right to repurchase, or a covenant to reconvey, must be shown in order to convert a deed absolute on its face into a mortgage. It must be shown by affirmative evidence that it is a security. 41 Cal. 22.
    That the deed, in question is not a mortgage, but a sale, with the right to repurchase on condition, see Reason v. Sea, 35 Ala. 612; Flagg v. Mann et al. 467.
    It is held, and we believe the rule to be one of universal application, that when a deed is made for a consideration paid at the time, whether the payment is made in cash or by the surrender and satisfaction of a precedent debt or agreement on the part of the vendee to allow the vendor to repurchase at a future day for the same or an advanced price, it does not convert the transaction into a mortgage. West v. Hendryx, 28 Ala. 226; Hillhouse v. Dunney, 7 Conn. 143; Pitts v. Cable, 44 Ill. 103; French v. Sturtevant, 8 Greenlf. 246; Glover v. Payson, 19 Wend. 518.
    The true test whether a transaction is a mortgage or a conditional sale is this: if the relation of debtor and creditor remains, and a debt still subsists, it is a mortgage, but if no debt remains, and the grantor has the privilege of refunding within a given time, and thereby entitle himself to a reconveyance, it is a conditional sale. Story v. McMurray, 27 Mo. 113; Hoop v. Bailey, 28 Miss. 328; Saxton v. Hitchcock, 27 Barb. 220; Page v. Foster, 7 N. H. 392.
    The debt due from R. F. Dickerson to his mother, Jane Hendryx, was extinguished by the deed, which can not be tortured into a mortgage. Glover v. Page, 11 Wend. 518; Baxter v. Willey, 9 Vt. 276; Holmes v. Grant, 8 Paige, 243.
    Parol evidence at law is not admissible to show that a deed absolute on its face was intended as a mortgage. Staten v. Commonwealth, 2 Dana, 397; Benton v. Jones, 8 Conn. 186; Reading v. Westin, 8 id. 117; Mercantile Ins. Co. v. Jaynes,
      87 Ill. 202; Low v. Henry, 9 Cal. 538; Lee v. Evans, 8 id. 424; Cook v. Eton, 16 Barb. 439.
    Counsel also contended that the Statute of Limitations presented a defence to a recovery.
    Messrs. Rowell & Hamilton, for the appellee:
    1. The evidence overwhelmingly shows a loan which was to run for one year in any event, and might run for five.
    2. This suit was commenced April 17, 1879, or less than four and a half years from the time the money was due (one year), so that the Statute of Limitations has no application. The delay in bringing suit is accounted for by the theory that Dickerson had a right to keep the money five years, from October, 1873.
    3. The deed in evidence is null and void, because it was changed by the justice after it was signed and acknowledged, by the consent of one of the makers, but without the knowledge or consent of the other maker. Gardiner v. Horbeck, 21 Ill. 129; Montag v. Linn, 23 id. 551; White v. Jones, 38 id. 159.
    4. The deed was never delivered and knowingly accepted as a deed, and is therefore no part of the contract between the parties. Bryan v. Wash, 2 Gilm. 557; Kingsbury v. Brownell, 58 Ill. 310; Dare v. Lincoln, 62 id. 26; Huleck v. Scoville, 4 Gilm. 159; Richards v. Jackson, 6 Cow. 617; Church v. Gilman, 15 Wend. 658.
    5. Mrs. Hendryx never knowingly accepted a deed for her money. The minds of the parties never met upon the question of accepting the deed, and it was not the contract of the parties. Davidson v. Porter, 57 Ill. 300.
   Mr. Justice Walker

delivered the opinion of the Court:

The Appellate Court having settled the facts in this case, we are prohibited from reviewing them. That court concurred with the jury and the circuit judge who tried the case, and that is, under the statute, conclusive of the facts. We can therefore only consider questions of law arising on the facts as found.

It is insisted that a court of law, in an action of assumpsit, has no jurisdiction to hear evidence and declare a deed that is absolute in terms, a mortgage or mere security for the loan of money. That is not the question presented by this record. It is claimed, and the jury have so found, that Mrs. Hendryx, in her lifetime, loaned to appellant the sum of $1718.11, or, what. amounted to the same thing, she paid that sum on a judgment against appellant, with the agreement that he would mortgage to her eighty acres of land in Kansas, and a lot in the town of Leroy, in McLean county, in this State, as security for its payment; but instead thereof he executed a deed, with the reservation of the right to repurchase the town lo|. This defence was set up to a recovery; but it was urged, and the jury found, that the deed was never delivered by appellant. This, then, only presented the question whether the money was advanced, and if so, whether the deed was delivered or received as a purchase, and these facts have been found by the jury and the Appellate Court, and that" finding is conclusive.

There can not be the slightest question that where money is loaned,, with an agreement that the borrower shall give a mortgage, and he fraudulently or otherwise fails or refuses to give the security agreed upon, or attempts to fraudulently impose a different security on the lender, an action at law may be maintained for the recovery of the money. If there was no delivery or acceptance of the deed, no title or right of any description vested in the grantee. If there was no delivery and acceptance of the deed, it has no relation to the case, and simply leaves the question whether the indebtedness was incurred, and if so, the right of recovery was complete.

For some reason, which to us is not apparent, the Statute of Limitations is insisted upon for a reversal. The evidence tends to prove that the transaction occurred in October, 1873, and the money was to become due in one year, with the privilege for appellant to keep it five years, and the suit was brought in April, 1879, about four years and six months after the money was due. The evidence tended to prove these facts, and we must presume the jury so found.

We presume no one would contend that a suit in assumpsit can be barred in less than five years, or that the statute can begin to run before the debt is due or an action accrues. There would, therefore, appear not to be the slightest ground for insisting on the .bar of the statute, nor can we believe that it could have been expected the court would allow the defence. Nor do we perceive any error in the rulings of the trial court as to the evidence, or in giving or refusing instructions.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Chief Justice Craig

text:
    Lewis Monroe v. Thornton L. Van Meter et al.

      Filed at Springfield September 30, 1881.

    1. Freehold—as affecting riglit of appeal. Where an interpleader is filed in an attachment suit, by a third person claiming title to the land levied upon, and the plaintiff in attachment claims that the defendant in the writ has a life estate, upon which an issue is formed as to the ownership of the land at the time of the levy, and a trial is had, a freehold is involved, and an appeal lies directly from the trial court to this court.
    2. Curtesy—requisites to estate. There are four things necessary to make a tenancy by the curtesy: marriage, seizin of the wife, issue born, and death of the wife. If no issue is born prior to the time the estate was abolished, July 1, 1874, the marriage, seizin and death of the wife will not invest the husband with the estate.

      3. Will—devise to a married woman, when excludes estate of curtesy in husband. Where a testator provided in his will that no part of the property given to his married daughter should ever, in any event, be liable, in whole or in part, towards the payment of any debt of her husband, but that all of it should be held and kept free from such liability, it was held, that by necessary implication the husband of the devisee was excluded from any estate by the curtesy, even if that had not been abolished by statute.
    Appeal from the County Court of Coles county; the Hon. J. E. Cunningham, Judge, presiding.
    Mr. A. J. Pryor, for the appellant:
    “When a man marries a woman seized at any time during the coverture of an estate of inheritance in severalty, in coparcenary, or in common, and hath issue by her born alive, and which might by possibility inherit the same estate, as heir to the wife, and the wife dies in the lifetime of the husband, he holds the land during his life by the curtesy. ” Blackstone’s Com. book 2d, p. 126 (Sharswood edition); 4 Kent’s Com. p. 27.
    Curtesy was not abolished by Married Woman’s act of 1861. Armstrong et al. v. Wilson, 60 Ill. 227; Cole v. Van Riper, 44 id. 58; Clark v. Thompson, 47 id. 26; Beach v. Miller, 51 id. 206; Rose v. Sanderson, 38 id. 247.
    If there be a limitation of a legal, estate to a woman and her heirs, with a condition annexed that her husband, after issue, shall not be tenant by the curtesy, he shall, notwithstanding, be entitled to it, for such a condition is, void, being repugnant to the nature of the gift, of which curtesy is one of the incidents. Clancy’s Husband and Wife, p. 191; Mildmay’s case, 6 Rep. 41; 1 Washburne on Real Prop. 133, par. 15.
    “But if there be a gift of an equitable estate of inheritance, accompanied by an express provision that the husband shall not be tenant by the curtesy, a court of equity will enforce a compliance with the intention of the donor. ” Clancy’s Husband and Wife, page 191.

      Under the statute relating to attachments, the right of a third party to interplead extends to real estate which may be attached. City Ins. Co. v. Commercial Bank, 48 Ill. 349; Williams v. Van Meter, 19 id. 293.
    This being a suit in attachment, the levy involves the freehold, and the appellees having the right to interplead, and having done so, directly involves the freehold interest of James Van Meter.
    Messrs. Dünn & Connolly, for the appellees:
    The estate by the curtesy having been abolished July 1, 1874, it became necessary for the appellant to show that the estate was vested in James Van Meter before that date. This he has failed to do. He has shown the marriage, seizin and death of the wife, but he has failed to show the birth of issue before the statute took effect. “There are four requisites necessary to make a tenancy by the curtesy: marriage, seizin of the wife, issue, and death of the wife.” 1 Blackstone’s Com. 127.
    Until the birth of issue the husband has no interest in his wife’s lands. Until that time no right whatever vests in himj for he is not even tenant by the curtesy initiate before that event. I. B. and W. Ry. Co. v. McLaughlin, 77 Ill. 275.
    “As soon as a child is born, the husband’s right to curtesy is said to be initiate, and is consummate only upon the wife’s death. ” 1 Washburne on Real Prop. 140.
    When the settler or testator so wills, the husband may be excluded from the curtesy, though the wife is seized of an estate of inheritance. Stokes v. McKibben, 13 Pa. St. 267; Morgan v. Morgan, 2 Mad. 408; Bennett v. Davis, 2 P. Wms. 316; Hearle v. Greenbank, 3 Atk. 660; Cochran v. O’Hern, 5 W. & S. 95; Rigler v. Cloud, 14 Pa. St. 361; Pool v. Blakie, 53 Ill. 495.
    Since the act of 1861, the husband has no control over his wife’s lands, and no interest in them subject to execution. His interest, “at best,'is now a bare possibility. ” Martin v. Robson, 65 Ill. 129; Cole v. Van Riper, 44 id. 58; Beach v. Miller, 50 id. 206. This bare possibility is not liable for his debts, and all that can be affected by the fifth clause of the will is the estate by the curtesy after the wife’s death. If that is not affected, the whole clause is without meaning.
    Since the power exists, where the intention is expressed, to limit the estate so as to exclude the husband’s curtesy, there is no reason why the right should not be enforced in a court of law. But whether legal or equitable, appellees’ rights maybe preserved in this proceeding. These appellees interplead under the statute, sec. 29, chap. 11, Rev. Stat. 1874, p. 157. Under this section, the right exists where real estate only is attached. Williams v. Van Meter, 19 Ill. 293; City Ins. Co. v. Commercial Bank, 68 id. 348; Gardner et al. v. Com. Nat. Bank, 95 id. 298.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

This wa.s an action of attachment, brought by Lewis Monroe against James Van Meter, a levy having been made on certain real estate in Coles county. Appellees appeared and interpléaded, claiming to own the property levied upon under the writ of attachment. Upon a trial of the issue presented by the pleadings the court found in favor of appellees, and rendered judgment against the plaintiff in the attachment for costs. To reverse this judgment an appeal was taken to this court.

The first question presented by the record is, whether an appeal will lie directly to this court. If a freehold is' involved, then the appeal was properly taken; otherwise it will have to be dismissed, in an ordinary attachment, where a levy is made upon real estate, it is plain that a freehold would not be involved. But in this ease, after the writ had been levied on the real estate involved, appellees, who were not parties to the proceeding, appeared, as they had the right to do under sec. 29, Rev. Stat. 1874, p. 157, and interpleaded, claiming to own the property. In the plea it was, among other things, averred “that they are the owners in fee simple of the said property so levied on and attached, and this they are ready to verify, ” etc. To the interpleader the plaintiff filed a replication, in which he averred “that the said James L. VanMeter had, at the time of the levy of the attachment writ in this case upon the lands in said interpleader mentioned, a life estate in the said premises and lands, and now has such life estate, ” etc. To this replication a rejoinder was filed by appellees, in which they averred that they were the owners in fee of the premises, as set up in their plea of interpleader, and that the said James L. VanMeter did not, at the time of the levy of the writ of attachment, or at any other time, have a life estate in the premises.

It will be observed, that under the pleadings the issue made and to be determined by the evidence was one of title to the -land levied on by the writ of attachment. On the one hand it was claimed that the defendant in the attachment owned, a life estate in the premises, while on the other hand appellees, who were his children, claimed that he had no title whatever to the property, and that they were the owners in fee. A freehold is always involved in an action where the title to the land is presented and in issue between the parties. Here a freehold was as clearly involved as it would have been had appellees brought an action of ejectment against James Van Meter to recover the possession of the land. Under the pleadings and evidence there was but one question before the court, and that was whether James VanMeter had title to the land at the time the attachment was levied; and in the determination of that question there can be no doubt in regard to a freehold being involved.

We now come to the merits of the case. The court, on the hearing of the evidence, found that appellees owned the premises, and that James Van Meter, the defendant in the attachment, had no interest therein, and it is urged that this finding is erroneous. The premises originally belonged to Thornton Lewis, who' died in 1872, testate, devising the premises to his daughter, Fannie L. Van Meter, who was the wife of James VanMeter and the mother of appellees. Fannie L. Van Meter died in 1880, testate, directing in her will that the property should be sold and the proceeds invested in real estate in Kentucky, and that such property should be disposed of in a certain specified manner. Under this evidence it is contended that James VanMeter is tenant by the curtesy of the lands in question. The estate of curtesy having been abrogated by section 1, Rev. Stat. 1874, page 423, it was incumbent upon appellant to prove that James Van Meter became invested with the estate as'tenant by the curtesy before this statute became the law of the land. This the evidence does not establish. “There are four requisites necessary to make a tenancy by the curtesy: marriage, seizin of the wife, issue, and death of the wife. ” 1 Blackstone, 127. Now, while the evidence shows marriage, seizin of the wife, and her death, the record fails to show children born prior to July 1, 1874, the time when the estate was abolished by the legislature.

But, aside from this question, we are not satisfied, after a careful consideration of the will of Thornton Lewis, deceased, that James Van Meter would be entitled to an estate of curtesy in the lands had the estate never been abolished by statute. The will of the testator, after devising the property in question to Fannie L. Van Meter, contains this provision:

“Item 5. No part of any property or money herein given to my said daughters, Amelia C. Van Meter, Fannie L. Van Meter, or Mary S. Phillips, that has not already passed beyond my control by deed of gift, conveyance, or otherwise, is ever, in any event, to be responsible or liable, in whole or part, toward the payment of any debt or debts, owing or hereafter created by their respective husbands, but all of it, of every kind and description, and the proceeds thereof, is to be held and kept free from such liabilities. If, however, any of my said daughters should 'desire to sell the real estate thus given to them they may do so, provided the proceeds thereof are reinvested in other real estate, with the title to still remain in them. ”

While it is true this clause in the will does not in express words declare that the husband of the daughter shall be excluded from the estate of curtesy in the lands claimed, yet such is the _ obvious meaning of the language employed by the testator. The evident intent of the testator was to so devise the property to his daughter that it could never be taken and sold for any debt or liability of the husband. This object could not be carried out if the husband could, in any event, acquire an estate of curtesy, and hence there can be no doubt the testator intended that the husband should be excluded from such an estate. Shall the intention of the testator prevail? In Pool v. Blakie, 53 Ill. 495, which was a case similar to the one under consideration, it was held to be a rule in construing deeds or wills, that the intention of the grantor or testator, as manifested by the words employed, must be carried into effect,—that a husband can not be tenant by the curtesy of real estate conveyed to the wife for her sole and separate use, and with power of disposal, and who has disposed of it by will duly executed and attested. There is no difference in principle, between the case cited and the one before us, and unless the decision in the Pool case is to be overruled, it must control here.

The judgment will be affirmed;

Judgment affirmed.


author: Mr. Justice Scott

text:
    The City of Waverly v. The Auditor of Public Accounts et al.

      Filed at Springfield September 30, 1881.

    1, Decebe—can not affect parties and interests not before the court. On bill by a municipal corporation to have its bonds and the coupons thereto attached declared illegal and void, when neither the bonds nor the owners are within the jurisdiction of the court, no decree can be rendered that will affect such bonds or their owners.
    2. TAXES'—who may enjoin their collection. A municipal corporation can not maintain a bill to restrain the collection of a tax levied on property within its limits to pay bonds of the corporation, though they are illegal. Only tax-payers can complain of such tax.
    Appeal from the Circuit Court -of Sangamon county; the Hon. Charles S. Zane, Judge, presiding.
    Messrs. Henry, Cook & Lord, for the appellant.
    Messrs. Morrison, Whitlock & Lippincott, for the appellees.
   Mr. Justice Scott

delivered the opinion of the Court:

The hill in this case was brought by the city of Waverly and Henry M. Miller, and other resident tax-payers of the city, who sue on their own behalf and on behalf of all taxpayers of the city who may be willing to join in maintaining the bill, and against State and county officers named, the Jacksonville, Northwestern -and Southeastern Railroad Company, and the unknown owners of bonds and coupons issued by the city of Waverly to the defendant railroad company in payment of stock in such company. It is represented in the bill, the bonds issued by the town of Waverly to the railroad company were issued without any authority of law, and for that reason are null and void; that such bonds were duly registered in the office of the Auditor of Public Accounts, under the provisions of the act of 1869; that such Auditor has annually certified a tax under that law to the county clerk of Morgan county; that such clerk has extended such tax on the tax books, and that the sheriff of the county has been collecting such tax for the payment of such illegal bonds and coupons off the tax-payers of the town, and the charge is, such officers threaten and intend to continue to levy and collect such illegal tax off the tax-payers of the town, from year to year, until such illegal bonds and coupons are fully paid. The prayer of the bill is, that the bonds and coupons be declared void, and the collection of the taxes levied for their payment be perpetually enjoined. A demurrer was interposed to the bill, which was by the court sustained and the bill dismissed. From that decree the city of Waverly, one of complainants, prayed an appeal to this court, which was granted, and as the appeal was asked for by a municipal corporation, it was allowed by the court, under the statute, without bond. None of the other complainants joined in the appeal, nor does it appear they have sued out any writ of error. It is only the appeal of the city of Waverly that is now to be heard in this court.

It seems clear, that in no event could any relief be decreed in favor of the city of Waverly. Neither the bonds of the municipality nor the owners are within the jurisdiction of the court, and no decree that would affect either the bonds or the owners could be rendered on the present bill. Town of Virden v. Needles, 98 Ill. 366 ; Welch v. Post, 99 id. 471.

As respects the propriety of enjoining the collection of the taxes levied on the property situated within the corporate limits of the municipality for the payment of the bonds alleged to be illegal, and the interest thereon, that is a question in which the corporation has no possible interest. The city has no property subject to taxation, and whether the taxes levied upon citizens shall be collected or not is a matter of their own concern. It is not understood a municipal corporation may interfere to restrain, by bill filed for that purpose, the collection of a tax levied on property within • its corporate limits. Only tax-payers, of which the corporation is not one, are interested, and only such parties may complain.

No matter what view might be taken of the case as made by the bill, it is plain the decree as to the city of Waverly, which is the only party prosecuting or that can be heard on this appeal, must be affirmed, which is done.

Decree affirmed.


author: Mr. Justice Mulkey

text:
    Charles E. Reynolds v. Mary Ann McCurry et al.

      Filed at Springfield September 30, 1881.

    1. Partition—jurisdiction of subject matter. Lands not held in joint tenancy, tenancy in common or coparcenary, are not subject to partition, either at common law or under the statute, and the court will have no jurisdiction of the subject matter of a suit for partition, and therefore a proceeding for the partition of such lands will be absolutely null and void.
    2. Guardian and ward—setting aside guardian’s sale of ward’s land. A bill by an infant to set aside a sale of his lands under a proceeding by his guardian to assign dower, and for partition between the infant and his mother, which shows that an abundance of means for the support of the ward came to the guardian, and that such infant was the sole owner of the land, subject only to the dower of his mother, and that the guardian and mother entered into an unlawful combination for the purpose of converting his estate to their own use, under which a decree of sale was procured and the sale made, presents sufficient ground for the relief sought.
    3. Same—ward not bound to tender the purchase money paid to Ms guardian, before avoiding guardian’s sale. Where a guardian, under a void decree, sells the land of his ward, and appropriates the purchase' money to his own use, the ward will not be required to restore to the purchaser the price paid by him as a condition precedent to having the sale set aside.

      4. Same—toZtero must restore consideration to repudiate contract. It is the general rule that where the consideration of a conveyance by an infant has been expended so that he is not in a condition to restore it, he may nevertheless avoid the conveyance. It is only when he still has the consideration that he will be compelled to return it.
    5. Widow—has no estate in her husband’s lands before dower is assigned. Upon the death of the ancestor the law immediately casts the freehold of land upon the heir, subject to the widow’s right of dower. Before assignment of dower the widow has no estate in the land with the heir, but only a right'of action.
    Appeal from the Circuit Court of Morgan county; the Hon. Cyrus Eplbr, Judge, presiding.
    Messrs. Brown, Kirby & Russell, for the appellant:
    The whole proceeding in which the sale was made is void, for want of jurisdiction of the subject matter. It is a proceeding for partition where there was but one heir. The widow had no estate with the heir. She was not a co-tenant, but held a dower interest only. A tenant in dower has no right to demand a partition. Freeman on Partition, 523, 544; Wood v. Chute, 1 Sandf. Ch. 200; Coles v. Coles, 15 Johns. 320; Loyd v. Malone, 23 Ill. 43.
    No act done or sanctioned by the guardian can bind a ward as a ratification; nor will he be held to affirm the sale merely on the ground that during his minority the proceeds were applied to his use or for his benefit. Requa v. Holmes, 26 N. Y. 338; Wilkinson v. Filby, 24 Wis. 441; Freeman on Judicial Sales, 70.
    In the absence of all fraud, a court of equity can not release a purchaser at a judicial sale on the ground that the title fails. The maxim caveat emptor applies the same in equity as at law in respect to such sales. Holmes v. Shaw, 78 Ill. 578; Bassett v. Lockard, 60 id. 164; Bishops. O’Connor, 69 id. 431; Roberts v. Hughes, 81 id. 130.
    An infant who is aggrieved by a decree in chancery may file an original bill for redress. Loyd v. Malone, 23 Ill. 43. See, also, Hodgen v. Guttery, 58 Ill. 431; Gage v. Billings, 56 id. 268; Gage v. Rohrbach, 56 id. 262.
    Messrs. Ketcham & Hatfield, for the appellees:
    It is but equitable that if the sale be set aside, it should be upon the repayment of the purchase money paid by the purchasers. Wickiser v. Cook, 85 Ill. 68.
    The purchaser is not bound to see to the application of the purchase money, nor that the guardian rendered a true account. Mulford et al. v. Beveridge et al. 78 Ill. 460.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Charles E. Reynolds, by his guardian, Ralph C. Curtis, on the 5th of March, 1879, filed in the Morgan county circuit court a bill in chancery against appellees, setting forth, in substance, that his father, Abraham Beynolds, died intestate on the 12th of October, 1888, leaving him surviving, his widow, Mary Ann Beynolds, now Mary Ann McCurry, and complainant, an only child, then about two years old; that the said Abraham, at the time of his death, was the'owner of personal property which the administratrix sold for $6758.13, and real estate worth from $11,000 to $12,000, being 250 acres of farming land in Morgan county; that on the 22d day of April, 1871, one Harry Rembach was appointed guardian of complainant, and received as his share of the proceeds of the personal property, after payment of debts, costs, etc., $2269.18, which Bembach converted to his own use; that Bembach, with the design of injuring complainant and depriving him of his inheritance, conspiring with the widow of the said Abraham Beynolds, on the 4th day of August, 1871, filed in the circuit court of Morgan county an ex parte petition for the assignment of the widow’s dower, and for the partition of saicl lands; that notwithstanding the petition showed upon its face the complainant was the sole owner in fee of said lands, subject to the widow’s dower, the court, nevertheless, by its order, directed a partition thereof, and for that purpose appointed commissioners, who reported the lands not susceptible of partition, and thereupon the court ordered the lands sold and the proceeds divided between the guardian of complainant and the widow of the said Abraham Reynolds, which was accordingly done; that so much of the proceeds of the sale of said lands as came into the hands of the said Rembach, as guardian of complainant, was appropriated and converted by the said Rembach to his own use; that complainant never received any part of said fund, nor derived any benefit or advantage therefrom. The bill is brought against the late widow of the said Abraham Reynolds, and the purchasers at the so-called partition sale, and their assignees, and prays that the said partition proceedings and sale of the lands be set aside and declared null and void, that complainant be restored to the possession of the same, and that the purchasers and their assignees be required to account for the rents, issues and profits.

To this bill the court below sustained a general demurrer, and entered a decree dismissing the same, and the appellant brings the record to this court for review.

It is clear, from the facts admitted upon the record, that at the time of these so-called partition proceedings appellant was the sole and exclusive owner of the lands in question, subject to the widow’s dower, which was then unassigned. There was no foundation for any other claim upon them. After the payment of all debts and expenses of administration there was a surplus of the personal estate belonging to complainant, which passed into the hands of his guardian, amounting to $2269.18, so that there was not the slightest occasion for selling these lands for his support or maintenance. Indeed, it is not pretended they were sold for any such purpose, and nothing of that kind is intimated in the proceedings under which the sale was made. While the widow had the right to have her dower assigned in the lands, she had no estate in them, nor was she in any sense a co-tenant with the complainant.

In discussing this subject, Lomax, in his Digest of the Law of Real Property, vol. 1, p. 92, says: “The widow has no estate in the land until assignment, for the law casts the freehold upon the heir immediately upon the death of the ancestor. She is not, until assignment, seized of an undivided third part of the land. Her right rests only in action. ”

This being so, it clearly follows that the lands in question were not held in joint tenancy, tenancy in common, or coparcenary, and hence they were not, either by the common law or the statute, subject to partition. Rev. Stat. 1874, p. 749; Freeman on Partition and Co-tenancy, pp. 523, 544; Loyd v. Malone, 23 Ill. 43.

The lands not being subject to partition, it follows the court had no jurisdiction of the subject matter of the suit, and hence the whole proceeding through which appellees claim title is absolutely null and void. Indeed, this conclusion is not seriously controverted by counsel for appellees. But they insist the demurrer was nevertheless properly sustained to the bill, for the reason that complainant has not refunded, or offered to refund, so much of the proceeds of the sale of the lands as went into the hands of his guardian, and in support of this position Wickiser v. Cook, 85 Ill. 68, is relied on. In that case it appeared that the ward, shortly after she became of age, made a conveyance of a tract of land to her late guardian, and upon a bill filed by her to set the conveyance aside, on the ground of inadequacy of price and undue influence, it was held she was bound to return the money paid to her on the land, as a condition precedent to the relief sought.

The principle upon which that case turned is a very familiar one, and of constant application. It is simply this: “Whoever asks equity must do equity.” But the equity which is to be done as the price of the relief sought, depends much upon the circumstances of each particular case. In that case the contract was made between two persons capable of contracting, and while the law, by reason of the confidential relations that had lately existed between them, required the guardian to show, when the conveyance was attacked by her, that the transaction was fair and just on his part, it did not authorize her, any more than it would any other adult, to retain the price of the land, or any part of it, and at the same time permit her to repudiate the contract by setting aside the conveyance. In the present case, while complainant is a mere child, wholly incapable of having the slightest conception of his rights, his guardian and mother enter into an unlawful combination for the express purpose of converting his estate to their own use, and in the execution of this scheme they institute a proceeding in court wholly unauthorized by law, and by some means unaccountable to us succeed in obtaining an order of sale of the land. The land is sold, and the proceeds divided between the mother and guardian, and the guardian has long since squandered his share of the spoils.

Not a cent of the money now remains to be returned to appellees, and no part of it was ever expended for appellant’s benefit, and yet it is insisted that unless this money is returned by appellant equity will afford him no relief. To say so, if the full value of the land was paid at the sale, is equivalent to saying that he must lose his land altogether, or the value of it, which practically amounts to the same thing. In short, the whole thing was a flagrant outrage on his rights, in palpable violation of law, and from which he has never received one cent’s advantage, and to say now he must pay the price of his land, in order to recover it, would be a simple denial of justice.

But even where one has personally enjoyed the benefit of the consideration for a conveyance of land while a minor, he is not bound in every case to restore the consideration before he is permitted to avoid his deed. The general rule is, that where the consideration of a conveyance by an infant has been expended, so that he is not in a condition to restore it, he may nevertheless avoid the conveyance. It is only when he still has the consideration that he will be compelled to return it. “l Wait’s Actions and Defences, 142. Any other rule would leave thoughtless, extravagant young persons at the mercy of sharpers and land sharks.

Inasmuch as the guardian of appellant would have had the right to collect the rents and profits of these lands, it may be that the moneys received by him from the purchasers at the so-called partition sale would, in equity, be treated as rents or compensation for the use of the lands during the time they were in their possession or the possession of their assignees, and if so, the purchase money would be a legitimate set-off against the claim of complainant for the rents and profits during the time he has been kept out of possession. But upon this question we at present decline to express any opinion. What is here suggested is done for the purpose solely of directing the attention of counsel to that phase of the case.

The decree of the circuit court is reversed, and the cause remanded, with. directions to overrule the demurrer to the bill, and permit the appellees to answer the same, if they shall be so advised.

Decree reversed.'


author: Mr. Justice Dickey

text:
    Eli P. Williams v. Isaac M. Jones et ux.

      Filed at Springfield September 30, 1881.

    1. Homestead—when debt is for purchase money. Where the assignee of notes given for a part of the purchase price of land, by an arrangement' with the principal maker, who was the purchaser of the land, surrenders the notes and takes from him in lieu thereof the note of the purchaser alone, with a trust deed on the land to secure the note, the debt will be unchanged, and will remain a debt incurred for the purchase money.
    2. Same—exception in statute is not confined to vendor’s lien. The object of the limitation of the homestead exemption to debts not incurred for the purchase money is not merely to protect the vendor’s lien,—so although there be a waiver of the lien by taking other security for the purchase money, the holder of the indebtedness will not thereby lose the protection of the statute.
    Writ of Error to the Circuit Court of DeWitt county; the Hon. Lyman Lacey, Judge, presiding.
    This was a hill in chancery, filed by Eh P. Williams, against Isaac M. Jones and wife, to foreclose a deed of trust. The bill alleged, among other things, that the debt was for purchase money, which was. denied by the answer, and a homestead set up in defence, it not having been properly released in the trust deed. On the hearing the circuit court dismissed the bill at the costs of the complainant.
    The following is the agreed statement of the facts: “About five years ago, (1875), William 0. Gray, Samuel Steele and W. H. Cottingham owned the'property in controversy, and sold the same to defendant Isaac M. Jones, taking his notes for part of the purchase money, with Wm. C. Beale as personal security. Before these notes matured, Gray and others sold and assigned them to complainant, Williams, who surrendered the notes to Jones, upon his giving the note and trust deed in controversy upon the same land for the same debt. ” Then follows a copy of the note and trust deed, usual form. The certificate of acknowledgment to the trust deed does not state that the parties released the right of homestead.
    It was further agreed that unless the debt is for purchase money, the defendants are entitled to and have an estate of homestead in the premises, and that the land is not worth over $1000.

      Mr. M. Donahue, and Mr. R. A. Lemon, for the plaintiff in error:
    A homestead is not exempt from sale for a debt or liability incurred for the purchase or improvement thereof. Rev. Stat. 1874, p. 497, sec. 4.
    The debt in this case was for purchase money, which has never been paid. The renewal of the note,—the evidence of the debt to the assignee,—does not change the character of the debt. Fowler v. Ellwood, 66 Ill. 438; Smyth on Homestead Exemptions, 221.
    This court has often decided that where a person loans money to another to enable the latter to purchase a homestead, the money so loaned is purchase money. Austin v. Underwood, 37 Ill. 438; Magee v. Magee, 51 id. 500.
    Now, if the only object of the exception in the statute was to protect the vendor in his lien, we fail to understand the principle upon which the above cases were decided. If, however, the intention of the statute was' to protect and secure the debt regardless of the capacity (whether as vendor or otherwise) in which the creditor held the evidence of the debt, we can then readily see the reason and force of such an interpretation.
    If a court of equity will look at the substance of this trans- • action, we think there is no room to doubt that this is purchase money. See Kimble v. Esworthy et al. 6 Bradw. 517.
    Messrs. Booth & Van Meter, for the defendants in error:
    The object of the third section of the Homestead Exemption act of 1874 is to protect the vendor’s lien. Rev. Stat. 1874, p. 497; Phelps v. Conover, 25 Ill. 309; Eyster v. Hatheway, 50 id. 522.
    Taking personal security on the note given for purchase-money waives vendor’s lien. Moshier v. Meek, 80 Ill. 79.
    The person to whom a note given for purchase money is assigned can not enforce the vendor’s lien. Moshier v. Meek, 80 Ill. 79.
   Mr. Justice Dickey

delivered the opinion of the Court:

The sole question presented in this ease is, whether the debt in question is a debt “incurred for the purchase” of the premises in which defendants in error claim an estate of homestead. We can not doubt that it is. The land was sold by Gray, Steele and Cottingham to Jones. For a part of the purchase price Jones gave his notes, payable to the vendors, with Beale as security. These notes were sold and assigned by the payees to Williams. Williams afterwards, by an arrangement with Jones, (the principal in the notes, and the purchaser of the property for which the notes were given,) surrendered these notes to Jones, and took from him in lieu thereof, and as security for the same debt, the note of Jones alone, and a trust deed upon the land so bought, to secure the payment thereof.

The statute as to homestead exemption provides, that “no property shall, by virtue of this act, be exempt from sale * * for a debt or liability incurred for the purchase or improvement thereof. ” This debt is admitted to be the same debt as that for which the original notes were given, and it is agreed that the first notes were given for purchase money. It falls clearly within the express words of the statute.

Counsel for Jones contend that the object of this limitation of the homestead exemption was merely “to protect the vendor’s lien, ” and hence insist that the vendor’s lien being waived by taking personal security on the original notes, the protection of the statute is lost. There is no ground for saying the limitation in the statute was intended merely to protect the vendor’s lien. It is not so limited by its words. Counsel refer to Eyster v. Hatheway, 50 Ill. 522, where this court said of this provision, that it “applies only to vendors and vendees, or those representing them. ” In this case the plaintiff in error represents or stands in the place of the vendor, as the owner of the debt for the purchase of the property. Without reviewing in detail the cases referred to by counsel, we merely say we find nothing in former decisions of this court at all incompatible with the views herein expressed. The decree will be reversed and the cause remanded.

Decree reversed.


text:
    William Fogarty et al. v. Joseph Ream et al.

      Filed at Springfield September 30, 1881.

    1. Surety oe guardian—extent of his liability—impeaehmg guarddcm’s report. If a guardian makes fictitious reports to the county court, falsely charging himself with money not in fact due from him to his ward, for the fraudulent purpose of making his surety liable, a court of equity will doubtless interfere at the suit of the surety to correct such reports, and make them conform to the truth as to the amount of money in fact owing by the principal.
    2. Where, at the death of a guardian, the funds of his ward were in the hands of the attorney of the guardian, who, as the attorney also of the executor of the guardian’s estate, had the same inventoried by the executor as coming to his hands, and such attorney, on being appointed as guardian of the ward, procured the allowance of a glaim against the estate of the former guardian in favor of the ward for such sum, and afterwards reported to the county court the receipt of the amount of such claim as paid by the executor, when, in fact, no money passed between them, it was held, that the surety of the guardian could not have such report set aside as fraudulent, simply because no money, in fact, passed from the executor to the guardian. The charge made against the guardian in such case would not be regarded as fictitious, he being in fact liable in such amount to the ward.
    3. Where one being liable for trust funds to an infant is appointed guardian of the infant, and in his report to the county court charges himself with such money as then in his hands, the surety of the guardian will not be permitted to exonerate himself from liability as to such money by showing that the person who had thus become guardian had squandered the same before his appointment.
    4. Subrogation—in favor of swrety of guardian. The surety of a guardian who is compelled to pay money to a succeeding guardian of a ward, will in equity be subrogated to all the rights of such succeeding guardian against other persons for the same money.

      Appeal from the Appellate Court for the Third District;— heard in that court on writ of error to the Circuit Court of Logan county; the Hon. Gyrus Epler, Judge, presiding.
    Messrs. Beach & Hodnett, for the appellants:
    1. The liability of a surety is strictly construed, and can' not be'extended by implication. Stull et al. v. Hance, 62 Ill. 52; McLain et al. v. People, use, etc. 85 id. 205; People v. Tompkins et al. 74 id. 482; Miller v. Stewart, 9 Wheat. 680; Leggett et al. v. Humphrey, 21 How. 75; Smith v. United States, 2 Wall. 235; McIntyre et al. v. Trustees of Schools, 3 Bradw. 77; Governor v. Lagow, 43 Ill. 134.
    2. A surety is a favorite of the law, and every intendment is in his favor. Pope v. Chalmers, 60 N. Y. 164; Chase v. McDonald, 7 Harris & Johns. 160; Law v. East India Co. 4 Ves. 824; Long v. Pike, 27 Ohio St. 498; Trustees of Schools v. Otis et al. 85 Ill. 179; Brandt on Suretyship and Guaranty, 107, sec. 79.
    3. Sureties on official bonds are only liable for defaults of their principal occurring after the execution of the bond. McIntyre et al. v. Trustees of Schools, 3 Bradw. 77; McLain et al. v. People, etc. 85 Ill. 205; Vivian v. Otis, 24 Wis. 518; Myles v. United States, 1 McLean, 493; Farrar et al. v. United States, 5 Pet. 383; United States v. Boyd, 15 id. 206; Inhabitants of Rochester v. Randall et al. 105 Mass. 295; Patterson v. Inhabitants of Freehold, 38 N. J. 255; Jeffers v. Johnson, 18 N. J. L. 382; The Mayor v. Van Horn. 2 Harr. 190; Townsend v. Everett, 4 Ala. 607; Hitlen v. Lane, 43 Texas, 279; Mahaska County v. Ingalls, 16 Iowa, 81; Bessinger v. Dickerson, 20 id. 261; Warren County v. Ward, 21 id. 84; School District v. McDonald, 39 id. 564.
    4. A surety on an official bond can always impeach a judgment or settlement of his principal for fraud or collusion. A fraudulent judgment creates no estoppel. Freeman on Judgments, sec. 250; Manf’g Co. v. Worster, 45 N. H. 110.

      5. A surety on a guardian’s bond is not liable for defalcation occurring before the execution of the bond. Sebastian v. Bryan, 21 Ark. 447.
    6. Where one of two innocent parties must suffer from the fraud of a third party, the loss should fall on him who enabled such third party to commit the fraud. Butlers v. Haughwout et al. 42 Ill. 32; Michigan Central R. R. Co. v. Phillips et al. 60 id. 190; Brundage v. Camp, 21 id. 330.
    7. The surety could not appeal from the order of the county court, being no party to it, and unless he may file his bill he is without a remedy to correct a false and fraudulent report by which he is robbed of his property.
    8. The doctrine announced by the Appellate Court had its origin in Baker v. Preston, 1 Va. (Gilmer) 235, decided in 1821 by a special court organized to try a single case. That case has been overruled. See Munford v. Overseers, 2 Randolph, 314; Chaddock v. Turner, 6 Leigh, 124; Crawford v. Turk, 24 Gratt. 176.
    9. The authorities holding that where a guardian has converted the assets of his ward, or an officer has misappropriated moneys, redress must be had upon his bond in force at the time of the conversion, are numerous. See State v. Rhoades, 6 Nev. 363; Notley v. Calloway County, 11 Mo. 457; State v. Norton, 33 Ark.-; Hatch v. Attleborough, 97 Mass. 537; State v. Smith, 26 Mo. 231; Freeholders v. Wilson, 1 How. (N. J.) 117; State v. Fullenwider, 4 Ired. L. 364; Governor v. Sutton, 4 Dev. & Batt. Law, 484; Treasurer v. Bates, 2 Bailey, 381.
    Messrs. Season & Blinn, for the appellees:
    1. It is not clearly proven that Lynch did not have this fund in his hands after he became guardian.
    2. If it be true that Lynch did not have the ward’s estate after qualifying as guardian, having filed three reports in the county court that he did have such estate, he is estopped to deny the truth of those reports. Townsin v. Olin, 5 Wend. 207; Eastman v. Bennett, 6 Wis. 232; Barrett v. Copeland, 18 Vt. 67; Hoyne v. Small, 22 Me. 14; Sheldon v. Payne, 3 Seld. 453; Cave v. Harts & Narm, 913.
    3. The sureties on a guardian’s bond are estopped by the report of the guardian, the same as the principal. Pinkstaff v. The People, 59 Ill. 148; Marly v. Town of Metamora, 78 id. 394; City of Chicago y. Gage, 95 id. 627; Commissioners v. Mayrant, 2 Brevard, 228; Stovall v. Banks, 10 Wall. 583; The United States v. Girault et al. 11 How. 27.
    4. Lynch, after qualifying as guardian, having obtained judgment against French, as executor of Hammon, for $3554.66, in receipting for the money without receiving anything, and satisfying the judgment, broke the condition of his bond.
   Mr. Justice Scott

delivered the opinion of the Court:

The original bill in this case was filed by William Fogarty against Edmond Lynch and others, and the object was to have certain reports, made by defendant Lynch, as guardian of Edward Applegate, to the county court, of funds in his hands belonging to his ward, set aside as fraudulent as to complainant, who was one of the sureties’on such guardian’s bond, or to have such reports so corrected as to speak the truth as to the amount of funds actually in his hands belonging to his ward. The questions involved have an interest beyond that of the parties concerned, and have been considered with that care their importance demands.

As respects some of the facts there is no disagreement, and these may be shortly stated, with a view to assist to a clearer understanding of the legal questions presented. Prior to April, 1864, Robert Applegate died intestate, leaving him surviving Edward Applegate, his only child and heir at law, then about four years of age. On the 18th day of April, 1864, Jacob Hammon was appointed guardian of the minor child, and gave bond, in the usual form, in the sum of $2000, with Wesley Montgomery as surety. Hammon continued to act as such guardian until his death, which occurred in November, 1875. It seems the only property that came to the hands of the guardian was real estate that descended to the ward from his ancestor, and the rents and profits accruing therefrom. Under an order of court, the guardian, on the 12th day of February, 1875, sold the real estate of his ward for the sum of $2366.55, the largest portion to John’ Lockenmyer, and the residue to John Cutlip. The purchasers complied with the terms of sale by paying one-third of the purchase money in cash, and securing the balance with their notes, payable in one and two years, with interest, by mortgage on the premises. At the time Hammon made the sale of his ward’s land, defendant Lynch was his attorney, and the cash payments made by the purchasers at the guardian’s sale were paid to him by the consent of the guardian, and the money, together with the notes and mortgages taken, remained all the time in the hands of Lynch until the death of the guardian. A small amount of money, derived from a source other than the sale of the ward’s land by the guardian, was paid over by him to Lynch, as his attorney.

After the death of Hammon, Ezekiel French was appointed executor of his estate, and after giving the bond required by the court, with Alexander Mills and Daniel French as his sureties, he entered upon the discharge of the duties imposed by his appointment. On the 22d day of December, 1875, defendant Lynch was, by the county court, and perhaps by the selection of the minor himself, appointed guardian of such minor, and required to give bond in the sum of $4000, but he did not give bond until June 11, 1877, when he gave the usual bond, with John Thompson and complainant as his sureties. Failing to give additional security on his bond, as he was required to do by the county court, Lynch was removed, and Joseph Beam was by that court appointed guardian of the minor. Other facts are set forth in the hill, some of which are sufficiently established by the evidence, but others are matters of contention between the parties, and only such of them will be referred to as we go on as may be necessary to an understanding of the case.

It is alleged in the bill that Lynch, long before he gave bond with complainant as one of his sureties, had squandered the funds placed in his hands by Hammon, and never afterwards accounted for the same, either to Hammon in his lifetime, or to his executor after his death. It is conceded Lynch acted as the attorney of the executor of the estate of Hammon, and under his advice the executor inventoried the cash in his hands and the notes given to the guardian as assets of the estate. After Lynch had given bond and become guardian of his ward, it seems he brought suit as such guardian against French, executor of the estate of Hammon, and recovered a judgment on an allowance of the claim against the estate for $3554.66, which was made up of the amount of cash and notes placed in Lynch’s hands by Hammon as funds belonging to his ward, and of the balance due from the estate of the former guardian. The executor reported to the county court that he had paid the amount of this claim to Lynch, as guardian, and his report in that respect was approved. Lynch also reported to the county court that he had collected the full amount of the claim against the estate of Hammon, and charged himself with $3138.14 of the same, as having been received in money, and with a note taken from Wesley Montgomery to make up the equivalent of the claim. His report was, approved by the county court. On the removal of Lynch as guardian'he made another report, showing that he had received, in funds belonging to his ward, the sum of $3644.43, which sum he was ordered by the court to pay over to Joseph Beam, his successor in office.

It is charged in the bill, the report of the executor that he had paid to Lynch, as such guardian, the amount of the claim against the estate of Hammon, was untrue; that Lynch’s report that he had received payment was also untrue, and that the claim was only satisfied by Lynch’s indebtedness to the estate of Hammon, which arose out of his misappropriation of trust funds placed in his hands by Hammon, and which belonged to his ward. It is that report of Lynch, as such guardian, that complainant seeks to impeach as fraudulent as to him, on the ground the funds reported by him as belonging to his ward had, long before Lynch had qualified as guardian, been misappropriated by him, and that nothing had, in fact, been received by him in satisfaction of the claim against the estate of Hammon, the former guardian. To this bill answers were filed by all defendants having any real interest in the litigation, and had the pleadings ended here, only the case now before this court would have been presented for hearing in the circuit court. The case was greatly complicated in that court and in the Appellate Court by cross-bills and answers thereto, and issues formed on the same.

Joseph Ream, the successor to Lynch as guardian of the minor, after filing his answer to the original bill, exhibited his cross-bill, in which he set forth the facts to which we have referred as undisputed facts, and also set forth some new facts, on which he asked relief. It is alleged that before Lynch gave bond so that he could qualify as guardian, he. gave up the notes Lockenmyer and Cutlip had given to Hammon'for the lands bought at the guardian’s sale, and in their stead took from them notes payable to himself for the amount due from them, and that French, as executor of the estate of Hammon, to whom the notes were given, released and caused the mortgage by which they were secured to be entered satisfied, and that afterwards Lynch sold one of the new notes to John A. Lutz, one to Abram Mayfield, one to William Hargadine, and one to John Houser, and the note taken from Montgomery was sold to A. B. Roberts, and it is charged that each of these purchasers had notice these notes represented trust funds in the hands of Lynch, and for that reason he had no rightful authority to sell them to pay his private debts owing to the respective purchasers. This cross-bill asks a personal decree against Lynch, and his sureties, John Thompson and complainant, for the whole amount due the ward, and also a decree against the executor of the estate of Hammon, for the amount of the claim allowed in favor of Lynch, as guardian, in which was included the amount of .the notes in Lynch’s hands secured by mortgage, and which the executor released to the makers; and also for a decree against Lockenmyer and Cutlip for the amount due on the notes made by them to Hammon for the lands bought at the guardian’s sale; and also for a decree against the several purchasers of the new notes made by Lockenmyer and Cutlip for the amount of the notes by them severally bought of Lynch.

Afterwards, Lockenmyer and Cutlip filed a cross-bill as to matters set forth in the cross-bill of Beam, so far as the same affected them, alleging therein that the renewal of their notes which had been given to Hammon was done at the solicitation of French, the executor, and Lynch, and asks that the making of the new notes may be regarded as full payment of their original notes to Hammon, and if that is not equitable, that a decree may be rendered against French, the executor, and his sureties, Mills and French, or that a decree may be rendered severally against Lutz, Mayfield, Hargadine and Houser for the amount of the notes by them severally purchased of Lynch, or that a decree be rendered against Lynch and his sureties for the amount due to the guardian, to the end that complainants in this cross-bill may be discharged from further payment on account of the lands bought at the guardian’s sale.

Answers were filed to this cross-bill, as well as to the original bill, and the cross-bill of Ream, to which replications were filed. A good deal of testimony was taken. Much of it was as to the solvency of some of the parties alleged to be liable for the trust funds alleged to have been wasted by Lynch, and especially as to the solvency or insolvency of Lynch and the surety ,on the bond of Hammon, as guardian. On the hearing, the court decreed substantially the relief asked in the original bill and part of the relief asked by Ream in his cross-bill, but no relief was granted to Lockenmyer and Cutlip on their cross-bill. By the decree of the circuit court Lynch was held personally liable for the whole fund that had come to his hands and was then due to his successor, and he was ordered to pay over the same within a time fixed by the court, and in default of payment by Lynch it was further decreed that Montgomery, who was the surety on the bond of Hammon, should pay Ream, the present guardian, $1312.36, and a portion of the costs of suit; that complainant in the original bill, and John Thompson, sureties on the bond of Lynch, as guardian, should pay to.Ream $417.76, with interest, and a certain portion of the costs of suit; that Lockenmyer, and George Stoll, who was surety on the note of Lockenmyer, should pay to Ream $2,055.41, with interest, and a certain portion of the costs of suit; that Cut-lip should pay to Ream the sum of $139.57, with interest, and a portion of the costs; and that, upon making such payments, the parties paying the same shall be surrogated to the rights of Ream to enforce payment as against Lynch. It was further decreed that the mortgages made by Lockenmyer and Cutlip, that had previously been entered satisfied by French as executor, be revived, and held to be security for the amounts respectively found to be due from them.

The case was taken to the Appellate Court on error, and the cause was heard in that court on errors assigned by Ream on his own behalf, and on errors assigned by. Lockenmyer, Cutlip and Stoll, as to matters affecting them personally. The decree of the circuit court was there reversed, and the cause remanded, with directions to that court to dismiss the original and all the cross-bills. The case now comes to this court on the appeal of William Fogarty, the complainant in the original bill. As complainants in the cross-bills have assigned no errors in this court, it must be understood they acquiesce in the decision of the Appellate Court, directing that their respective cross-bills shall be dismissed. Only a single question can arise on the record, as the case now comes before this court, and that is whether complainant is entitled to the relief sought by his original bill.

The bill in this case is framed on the theory a surety on a guardian’s or other official bond may impeach settlements or reports made by his principal, although such settlements and reports may have the approval of a court having jurisdiction to hear such matters, giving to them a sanction akin to judicial determination, on account of fraud and collusion practiced by the principal with others, and that upon the admitted principle that fraud vitiates everything it touches, whether it be judicial proceedings or official transactions. Without discussing cases in which the principle insisted upon might have its appropriate application, it may well be questioned whether any such case is presented by this record. The several reports made by Lynch, as guardian, in which he charges himself with a certain amount of money as due from him to his ward, are absolutely true in that respect. The argument on this branch of the case would have great force if leveled against purely fictitious reports, in which the principal falsely charges himself with sums of money not in fact due from him, for the fraudulent purpose of making the surety liable. Had this bill presented such a case, doubtless it would be conceded equity would interpose to make such reports conform to the truth as to the amount of money in fact owing by the principal. But no such question is involved. In this case it is not claimed, nor could it be done with any show of sustaining such charge, that the guardian, in any report made by him to the county court, charged himself with more money than was actually due to his ward: In that respect he neither concealed nor enlarged anything. The only particular in which it is assumed the -guardian’s reports are untrue is, that he claimed to have certain sums of money on hand belonging to his ward, when in truth and in fact he did not have the money or securities for the same on hand at the date of his several reports. Considering the reports of the guardian in the inverse order in which they were made, it will be noted his last report, made at the April term of court, 1878, is not open to this objection. The guardian simply charges himself with certain amounts, without saying whether he has on hand the money or securities equivalent to the same. Of the second report the same thing may be said. In that report he charges himself with the balance on hand at date of last report, and the accruing interest, and as to whether he then had on hand the -money or the securities for the sum due his ward, the report is silent. It can not be maintained that either of these reports is untrue or fictitious in any particular. As respects one item, and it is the principal one in the. first report the guardian made to the county court, it may be conceded it is not correct or true as therein stated, if it is to be read literally. He there charges himself with “cash on hand received this day from Ezekiel French, executor of the last will and testament of Jacob Hammon, deceased, $3138.14.” No money was in fact received that day from the executor by the guardian. That item was in part payment of the claim allowed against the estate of Hammon, and in favor of Lynch. The balance of that claim, as the reports show, was paid by the note of Montgomery, the security on Hammon’s bond, and which was made payable directly to Lynch, and as to which com■plaina-nt makes no question but what he is liable as the surety of Lynch. The explanation of this item contained in the first report of the guardian is this: It represents the trust funds placed in the hands of Lynch by Hammon, and which belonged to his ward. Hammon treated the money and notes in the hands of Lynch, who was his attorney and adviser, as being in his own possession. After the death of Hammon his executor seems to have done the same thing. He charged himself, both in the inventory filed and in his report made to the court for the settlement of his accounts as executor, with the funds in the hands of Lynch, who was also his attorney, precisely the same as he would have done had such funds been in his own actual possession at the time. When the guardian and the executor came to settle the claim of the guardian against the estate of Hammon, they treated the money as still being in the hands of Lynch, and th* guardian receipted the claim as having been paid by the executor,—no money in fact passing between them. As between the guardian and the executor the transaction was no doubt valid, but whether it would operate to exonerate the executor and his sureties from actual payment in money is a question not now before us, and for that reason no opinion will be expressed touching it.

Had it appeared Lynch still had the trust funds on hand, or other funds with which to replace the same, when‘complainant became his surety on his official bond, his liability for any waste of such funds thereafter would not be contested. It is sought, however, to prove the guardian did not have in his possession or control the trust funds at the time complainant became his surety, but had previously wasted the same, and was then, and has ever since continued to be, insolvent. This the policy of the law will not permit him to do. It would open a wide door for frauds in such matters. Here the guardian elects to charge' himself with the full amount of a claim in his favor for funds belonging to his ward. It is neither a false nor a fictitious claim. The money is absolutely due from the guardian to his ward,, and neither the guardian nor his surety will be permitted to deny he has the money admitted to be in his hands. Any other rule would be a most unsafe one, and would lead to results the law will not tolerate. No case exactly analogous with the one at bar has before arisen in this State, but the same principle has been applied to sureties of defaulting municipal officers. Morley v. Town of Metamora, 78 Ill. 394; City of Chicago v. Gage, 95 id. 625; Cawley v. The People, 95 id. 249. A case more like the one at bar is Roper v. Sangamon Lodge, 91 Ill. 518. No reason is perceived why the rule applied in the cases cited may not, with equal propriety, be applied to sureties of guardians, and other such officers.

Without admitting the rule stated would be a harsh one, and perhaps in some cases would work great hardship, it may be noted it would, in this case, work no surprise to complainant, as he was told by Lynch himself, before he became surety on his bond, the amount the ward would be entitled to would exceed $3000. No fraud was practiced on him in that respect. The amount of the risk he was about to a'ssume was fully made known to him, and with a knowledge of these facts he voluntarily became obligated by a condition in his bond, as surety, that Lynch would pay to the party entitled thereto “all estate, title papers and effects remaining in his hands, or due from him. ” Whether Lynch was solvent or insolvent, was a question as open to him then for investigation as now, and equity will not interpose to relieve bim from obligations voluntarily assumed, without the imposition of any fraudulent practices on the part of any one.

There is another consideration that leads to the same conclusion. If complainant can be permitted to show the trust funds were misapplied by Lynch prior to his becoming his surety on his official bond, so as to exonerate him from liability on such bond, that defence could better be made in the action at law on the official bond of the guardian, which is now pending and undetermined in a common law court, and there is therefore no reason why a court of equity would assume jurisdiction in the premises.

It may not he improper to add, that in the event complainant shall be compelled to pay the amount due from Lynch to his ward, to his successor, Beam, he will be entitled to be subrogated to whatever rights Beam has or might have to enforce payment from Lynch, or from the executor of the estate of Hammon and his sureties on the claim allowed against the estate, or as against Lockenmyer or Cutlip, or as against any of the purchasers of the notes given by Lockenmyer or Cutlip to Lynch, or either or all of them. The present bill was not framed with reference to obtaining such relief, and if it had been it would have been premature, as complainant had paid nothing as the surety of Lynch when the original bill was filed. As to what rights or remedies Beam has or might have against any or either of the parties named, we do not wish to be understood as now expressing any opinion.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Sheldon

text:
    The County of Jackson v. Maston Rendleman.

      Filed at Springfield September 30, 1881.

    Intebest-beaeing county oedebs—of the power to issue them. A county board having authority to contract for the repair of its court house and the building of fire proof safes, without restriction as to the amount it shall x>ay or the mode of payment, may contract to pay for the same in interest-bearing orders upon the county treasurer, and such orders will be valid and the interest collectible.

      Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Jackson county; the Hon. O. A. Harker, Judge, presiding.
    This was an action of assumpsit, brought to the December term of the Jackson circuit court, upon a county order issued by the county board of Jackson county to Isaac Rapp, dated December 24, 1877, and assigned to the plaintiff.
    A jury was waived and the cause tried by the court, who rendered judgment for $500, refusing to allow interest upon the order. The Appellate Court, on appeal by the plaintiff, reversed that judgment and remanded the cause, with directions to enter judgment for the plaintiff and against the county, with interest at ten per cent from the date of the order. The county' brings the case here, presenting the question whether upon the facts presented by the record it is liable for the interest on the order.
    Mr. W. A. Schwartz, for the appellant:
    1. The statute confers upon counties all the powers they possess, prescribes all the duties which they owe, and imposes all the liabilities to which they are subject. Loper v. Henry County, 26 Iowa, 264; 1 Dillon on Mun. Corp. sec. 10.
    2. There was no statute in force when this order was issued giving the county court any power to issue an interest-bearing order. Hardin County v. McFarlan, 82 Ill. 138; Hall v. Jackson County, 95 id. 352; Britton v. Police Jury, 15 Wall. 566; Whitewell v. Pulaski County, 2 Dillon’s C. C. 251.
    3. The county is not estopped from setting up the defence of ultra vires. 1 Dillon on Mun. Corp. secs. 412, 406; Herman’s Law of Estoppel, sec. 224; Taylor v. District Township of Wayne, 25 Iowa, 447.
    4. The statute giving interest does not apply to counties. Madison County v. Bartlett, 1 Scam. 67; Pike County v. Hosford, 11 Ill. 170.

      Mr. Andbew D. Duff, for the appellee:
    The cases of Madison County v. Bartlett, 1 Scam. 67, and Pike County v. Hosford, 11 Ill. 170, only decide that counties are not chargeable with interest on their contracts in the absence of any express agreement to pay interest. To the same effect is City of Pekin v. Reynolds, 31 Ill. 530; City of Chicago v. People, etc. 56 id. 328.
    A county may, by its unfair conduct, become liable for interest, even in the absence of a promise to pay it. LaSalle County v. Simmons, 5 Gilm. 573; Dillon on Mun. Corp. sec. 414, and notes.
    This case is unlike that of. a county issuing interest-bearing orders in discharge, of its legal liabilities or current expenses, where no element of contract enters into the obligation or liability to pay.
    The powers of counties to contract are more express and much broader under the present law than under the old statute; Section 4, chap. 74, entitled “Interest, ” expressly names corporations as being authorized to contract for the payment of interest, while no such provision is to be found in the Revised Statutes of 1845.
    Again, under the present law, counties have express power “to make all contracts, and do all other acts in relation to the property and concerns of the county, necessary to the exercise of their corporate powers,”—(third clause, sec. 24, chap. 34, Rev. Stat. 1874,)—while the only express power given counties to make contracts prior to 1874, was confined to the simple object of purchasing lots for and building court houses and jails thereon. Secs. 35, 36, chap 27, Rev. Stat. 1845.
    Independently of the capacity of the county to make such promise in ordinary transactions, we insist it is estopped from relying on this defence upon the facts shown in this record. A party is always concluded from denying the validity of his acts, which were expressly designed to influence the conduct of another, and which did so influence it, and when such denial will operate to the injury of the latter. Welland Canal Co. v. Hathaway, 8 Wend. 483; Kinnear v. Mackey, 85 Ill. 98.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a suit upon a county order issued by the board of county commissioners of Jackson county to Isaac Rapp, December 24, 1877. The order was drawn for the sum of $500, “for work done on court house, as per contract, ” payable “with interest at ten per cent per annum, payable annually.” The circuit court rendered judgment for the plaintiff in the sum of $500, refusing to allow interest upon the order. On appeal to the Appellate Court for the Fourth District the judgment was reversed and the cause remanded, and on petition of the defendant the court granted an appeal to this court, making the requisite certificate.

The facts, as shown by the record, are, that about the first of June, 1877, the county board, having determined on certain repairs on the court house of the county, including the building of two fire-proof vaults, caused notices to be published in a number of newspapers that sealed proposals for doing the work would be received by them until the 22d of that month; that the plans and specifications of the work were on file in the county clerk’s office, and that the work would be paid for in county orders of the county, bearing interest at the rate of ten per cent per annum. On June 22, on opening the numerous bids sent in under the notices, Isaac Rapp was found to be the lowest bidder, his bid being $10,850. The board then awarded him the contract, on condition of his filing a bond, etc. On July 2 the board again met, and approved Rapp’s bond, and unconditionally awarded him the contract for that sum, to be paid in the orders of the county, bearing interest at the rate of ten per cent per annum, and entered the same of record. The work was done, and the orders issued accordingly, of which the order in suit was one, which was duly assigned to the plaintiff. Rapp testified, that if the county had proposed to pay for the work in common county orders, he would not have-undertaken the work at any price, and that no one would have done the work for less than $6000 or $7000 more than the contract price; that common county orders were then worth about sixty cents to the dollar, while these interest-bearing orders could be “handled” at ninety cents.

The liability of the county to pay interest on the order is the only question made upon the record.

By section 26, page 307, Rev. Stat. 1874, it is made the duty of the county board of each county, “to erect or otherwise provide, when necessary and the finances of the county will justify it, and keep in repair, a suitable court house, ” etc., and “to provide and keep in repair, when the finances of the county permit, suitable fire-proof safes ” for the county offices. By section 24, page 306, counties are given the power “to make all. contracts and do all other acts in relation to the property and concerns of the county necessary to the exercise of their corporate powers.”

In County of Hardin v. McFarlan, 82 Ill. 141, which was an action to recover the interest at ten per cent per a.nm-im on certain bonds which had been issued by the county of Hardin, this court said: “We fail to discover in any statute in force when these bonds were issued, any power in the several county courts to issue interest-bearing orders, and we are satisfied no such power existed. The county court could exercise no discretion in this matter,—it was controlled by positive law. ”

But this language is to be taken with reference to the particular case in which it was used. The county of Hardin, there, had taken up an amount of preexisting indebtedness, common non-interest-bearing county orders, and issued to the holders in lieu thereof the bonds there involved, payable with ten per cent interest per annum. There was at the time a law in force entitled, “An act to enable counties owing debts to liquidate the same, ”—the mode being by the levy of a special tax. And in Hall v. Jackson County, 95 Ill. 352, it was held that it was not within the powers of a'county board to allow or pay interest on common county orders issued for current county expenses, referring to the County of Hardin case as so deciding.

The present is unlike the cases cited. The orders here were not issued for some prior indebtedness which had been incurred with no reference to being paid by interest-bearing orders, but they, with their interest clause, were the contract price which had been agreed to be paid for work afterwards to be performed.

The county board certainly had authority to contract for the repair of the court house and building the fire-proof vaults, and there being no restriction of law as to the amount of the price they should pay or its mode of payment, we do not see why it was not open to them to contract to pay in interest-bearing orders, as well as in non-interest-bearing orders. There is no prohibition against counties issuing, interest-bearing orders, and this court has never decided that counties had no power, under any circumstances, to make a valid contract for the payment of interest. The cases cited above are the extent to which it has gone in that direction. The interest clause in the orders here was a part of the contract price of the work. It was under the agreement that the orders should bear ten per cent interest that the work was contracted to be done, and was performed. The interest provision regulated the amount of the price bid, and contracted to be taken, for the work. With such provision the county has got the work done at a less price than it would have done without it. The work has been done as it was contracted to be performed, and the contract price should be paid as it was contracted to be paid. We see no legal obstacle in the way of its being done.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.

Mr. Justice Walker: I am unable to concur in the judgment in this case.