text:
    Ray & Whitney v. Thomas Mackin.

      Filed at Ottawa September 26, 1881.

      Contract—against public policy—fraud. The property owners along a certain street in the city of Chicago having in contemplation the paving of the street, were negotiating with a paving contractor on that subject, and some of the owners had signed a contract with such contractor for the doing of the work. Pending these negotiations a second and rival paving contractor sought to obtain the contract for himself, soliciting the owners for that purpose. Finally the rival contractors compromised their respective interests in the matter, by the withdrawal of the one first mentioned, and the agreement on his part to aid in securing the contract for his rival, the latter agreeing to pay to the former a certain sum out of the profits expected to be realized for the work. This arrangement was consummated to the extent that the one who was to have the contract under the arrangement between the two rival contractors, did secure it from the property owners. That was brought about in this way: the contractor who withdrew from the contest to obtain the contract for the doing of the work, urged those of the owners who had signed the agreement with him to transfer their names to .the other contract, and at a meeting of a committee of the property owners to consider and determine upon the matter, he wrote out a bid for the work for himself, and a lower bid for the other contractor, according to the arrangement beforehand. in an action to recover upon the agreement made by the contractor who secured the contract to do the work, to pay to the other a certain sum out of the profits of the job, it was held, that the agreement sued upon, taken in connection with its consideration, was against public policy, and a fraud upon the persons who were to pay for the improvement of the street, and therefore formed no valid foundation for the action.

      Writ of Error to the Appellate Court for the First District; —heard in that court on error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    This was an action of assumpsit, brought in the Superior Court of Cook county, by Charles E. Bay and William C. Whitney, against Thomas Mackin.
    The contract specially sued upon was as follows:
    “ Chicago, Feb. IS, 1876.

    “I hereby agree to pay Ray & Whitney fifteen hundred (1,500) dollars out of the profits of walling, filling and paving Archer avenue, from Halsted street to the bridge over the south branch of the South Branch of the Chicago river, under a private contract made with the property owners on the said avenue, they* agreeing to assist me in obtaining the work, to the best of their ability. The money to be paid to Bay & Whitney from time to time, as the profits on the work is collected.
    Thos. Mackin. ”
    Under the plea of the general issue, the cause was tried before the court without a jury.
    Upon the trial, the plaintiffs gave in evidence the written contract above mentioned, and then introduced as a witness Charles E. Ray, who testified as follows: “I am one of the plaintiffs in this suit, and know the defendant. My business is that of a paving contractor, and I have been in that business for thirteen years. The defendant is also a contractor, and he and I were both in that business at the time, and prior to the time, the south part of Archer avenue was paved; and in February, 1876, defendant did the work of walling, paving and filling Archer avenue, referred to in contract in evidence. I assisted him in obtaining it, by going to parties who had signed a contract with plaintiffs to have this work done, and getting, them to transfer their names from our contract to his. Such contracts are generally obtained by a contractor going on the street, seeing the property owners,' and trying to get them to sign a contract for paving the street or improving the street in front of their property, at a stipulated price. I went with Mr.'Mackin one day to see parties on that street. I saw a great many of them who had signed our contract, and got them to transfer their names from our contract to this,—told them that Mr. Mackin would probably get the street, and that they had better sign his contract. In that way I assisted him to obtain the contract. I had already agreed to give him up our contract and withdraw from the street. He never called on us for any further assistance in the matter. He got the contract to do this work afterwards. I have had conversations with Mr. Mackin since the completion of the work, and he has told me repeatedly that he had not collected all his money on that street. He has promised a great many times to pay the sum of money specified in the contract sued on. The contract given to Mr. Mackin for this work specified a fair and reasonable price for doing that work. The contract price for this work was somewhere about $130,000, I should judge, and the cost would be probably somewhere in the neighborhood of $100,000. I am, to some extent, acquainted with the pecuniary responsibility of these parties signing this contract. My impression is that they are all able to pay, with the exception of a very few; may be that half a dozen failed to pay, or could not pay, and probably half a dozen did not' pay. Mr. Mackin had promised to pay this money. I had my first talk with him on the subject, say a year after the work was done, and my last talk with him about two weeks or so before the suit was commenced. He then would not say when he would pay, and I never got any satisfaction whatever, and I told him there was only one course left, and that was to sue him. He had told me a great many times that he would pay at some time, but he never set any time. I assisted Mr. Mackin to the best of my ability and to the extent of his asking, to get this work. The principal assistance that he required was my giving up the contract and stopifing work on the street. I went with him and got parties who had signed my contract, so far as we could find them, and got them to transfer their names.”

      Cross-examination: “My full name is Charles E. Ray, and my firm name is Ray & Whitney. That firm.has been in existence since some time- in June, 1870, I think. The business of our firm has always been contracting. The contract in suit was drawn at the time it is' dated, at our office at Twelfth street bridge, and was then and there executed. It is in my handwriting, as is also the contract I have in my hand. I had a contract with the property owners. I had been working at it nearly a year. It was a contract for the improvement of that same street. This is the contract (referring to paper) that I had with property owners, and which I gave to Mr. Mackin at the time that I withdrew from this street—at the time that I made the arrangement with him that I would get off the street and give him a chance to go on and get it. I acted in behalf of the firm in its negotiations with Mr. Mackin. • I represented our firm throughout in the negotiations with him, and myself went upon the road with him. By way of inducing the property owners to assist Mackin, I told them that I had withdrawn from the street, and that he was going on to get the contract to pave it, and I asked those parties who had signed this contract to transfer their names from it to Mr. Mackin’s contract. That was my agreement with Mr. Mackin, that I should go with him and see those parties, as far as we could find them. Mr. Mackin, on consideration of my giving him this contract, and going with him and finding the parties who had signed this contract, and getting them to transfer their names from this contract to his, as far as we could find them, was what he expected of me when he gave me that contract. That was the understanding, and so far as I was required I carried it out.”

      Question—“As you did, and what you have done, you say ■was what you agreed to do ?”
    Answer—“Tes, sir; as far as I know. He never has found any fault with it that I know of. I did not inform the property owners whom I approached in Mr. Mackin’s- behalf, that I was to be paid by him for the services I rendered. I do not know whether they so understood or not. This contract of Mr. Mackin’s was executed on the 12th of February, in pursuance of an agreement previously entered into between us. Our negotiations on the subject probably extended over a period of two or three days. I had the influence with the property owners on this street of having gone over it and worked it up pretty thoroughly, and got a large number of signatures to our contract. I rendered this assistance to Mr. Mackin with a view of enabling him to get the requisite number of signatures for obtaining a private contract, and I wanted to obtain seven-eighths of the signatures of the "property "owners. I think that was the ordinance at that time. There was nothing said about me obtaining the award of the contract for paving the intersections of the streets. I had no authority over the intersections at all; I had nothing to do with them; I had no interest in that.' At that time, whoever obtained a street under a private contract, always obtained the intersections, though from the city. It was not necessarily with a view of enabling Mr. Mackin to obtain a contract for the intersections, although receiving such a contract from the city would necessarily follow his getting the private contract. . I don’t think that entered into the conversation at all, nor was there anything understood about it. It followed along as a matter of course. I was present at a meeting of property owners uq>on Archer avenue for the discussion of the plans and terms of doing the work of improvement, and Mr. Mackin was also there. The subject of paving the street was gone over with. There were a good many on the" street did not want it paved, and a good many more .that did. The plans and character of the work were discussed to some extent, and after a while the meeting decided to give the work to Mr. Mackin. I do not recollect that at that meeting the respective plans were discussed, and that the meeting adopted the plans which Mr. Mackin advocated, and rejected the one which I advocated; I don’t think they did. A committee was appointed by the meeting, by whose action they were to be guided. This committee received bids for doing the work on Archer road, and Mr. Mackin’s bid was accepted. I also put in a bid for our firm. I think this meeting was on the evening of the 12th of February, but do not remember exactly.- I think it was the evening of the day Mr. Mackin made that contract with us. It was after this agreement I put in a bid for doing the work according to the plans which the property owners had adopted. It was higher than Mr. Mackin’s bid; we both bid on the same kind of pavement, I wrote Mr. Mackin’s bid for him, and I put in a bid to the committee at a higher figure in our name. I had a good number of signatures of property owners, and turned over our contract with them to Mackin. * * * I did not discourage property owners from letting Mackin the contract, and never advised any one that the work could be done cheaper. It was understood beforehand between Mackin and me, that the two bids were to be put in, and that ours was to be higher than Mackin’s. We had then made the agreement that I should transfer all "the interest I had to him. ”

      Re-direct: “Turner and Finucan were on the committee of property owners. I don’t hardly think this committee knew anything about the arrangement between Mr. Mackin and myself. I could not say how many were present at the meeting of property owners; there were a good many there. One wanted the work done, and another didn’t want it done. There was a great deal said pro and con, but the committee passed a resolution to accept Mr. Mackin’s bid. There was another bid made there besides Mackin’s and ours; it was somewhat lower than Mackin’s. The Bridgeport people did not know that party, and did not consider the bid at all. Mr. Turner was exceedingly anxious to have the street paved. He knew that unless I got off the street, the way things were fixed on the street it would not be paved then, and he counseled with Mr. Mackin and myself to get together and see if we could not make some arrangement, and Mr. Mackin to pay me for the time I was upon the street, and by that means get the street paved. I think I had a similar conversation with Mr. Finucan, but would not be certain. I know he was very anxious to have the street paved. When I delivered our contract with the property owners to Mr. Mackin, it was accompanied by the specifications which should be with all contracts. ”
    This was all the evidence given on the trial bearing upon the question of the character of the contract sued upon, and its consideration.'
    The trial court found for the defendant, and entered judgment accordingly. The plaintiffs thereupon appealed to the Appellate Court for the First District, where the judgment was affirmed. This writ of error is sued out to the Appellate Court to bring in review that decision.
    The question arising in the case is in respect' to the character of the contract, taken in connection with the consideration upon which it was based, as being against public policy, and in fraud of the persons who were to pay for the improvement of the street.
    Messrs. Tenney, Floweb & Chatty, for the plaintiffs in error,
    argued in favor of the validity of the contract, insisting this was not a case of preventing competition at a public bidding, for a dishonest purpose, citing Phippen v. Stickney, 3 Metc. 384.
    And that “by-bidding” does not avoid a sale at auction. Latham’s Exrs. v. Morrow, 6 B. Mon. 630; Reynolds v.
      Dechaums, 24 Texas, 174; Steele v. Ellmaker, 11 Serg. & R. 86; Smith v. Clarke, 12 Ves. 481.
    Counsel urged that there was an important consideration not to he lost sight of t That when a sale is made at auction, a valid, binding contract is entered into; but when plaintiffs put in-their “by-bid, ” if it should be so considered, it was not intended or expected that any such contract would then be made. And the. fact that a bid lower than either plaintiffs’ or defendant’s was ignored, shows conclusively that the property owners did not intend or expect to bind themselves to let the work to the lowest bidder; citing Marsh v. Russell, 66 N. Y. 288, and People, etc. v. Stephens, 71 N. Y. 612.
    Mr. Robert Hervey, for the defendant in error,
    contended the contract was against public policy, and void, as being in fraud of the rights of those to be affected by the fraudulent d combination of the plaintiffs and the defendant.
   Mr. Justice Dickey

delivered the opinion of the Court:

■ The contract relied upon by plaintiffs, taken in connection with its consideration, was clearly against public policy, and a fraud upon the persons who were to pay for the improvement of the street. The circuit court was right in holding that the same formed no valid foundation for the action, and the judgment of the Appellate Court in the case is therefore affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    The New Market Savings Bank v. Paul W. Gillet.

      Filed at Ottawa September 26, 1881.

    1. Incorporated religious societies—of the proper mode of executing written instruments by them. The proper mode of executing a promissory note by a religious society or congregation incorporated under our statute, is by the use of the individual names of the trustees, with tÉeir corporate name appended.
    2. Some of the requirements in respect to the mode of executing deeds of conveyance of real estate by such corporations, as held in Lombard v. Chicago Sinai Congregation, 64 Ill. 487, do not apply to a promissory note. There is no granting or concluding clause in the latter; the name of the promisor need not appear therein at all; the signature thereof to the note is enough.
    3. Same—in the pa/rticular case—whether the indimdnial note of the persons signing, or that of the corporation. In this case the note read,“eighteen months after date, we, the trustees of the First Free Will Baptist Society of Chicago, promise to pay,” etc., and was signed by several persons, with the words, “Trustees of the First Free Will Baptist Society of Chicago, Ill.,” appended. The words so used as characterizing the persons whose names were signed to the note, and also as used in the body of the note, constituted the proper corporate name of the corporation in behalf of which the signers purport to have acted. It was held, the note was not the individual note of the persons signing it, but that of the corporation named- therein.
    4. There is a distinction to be taken between such a. case, where the name used, both in the body of the note and as appended to the signatures of the persons signing the same, was the proper corporate name of the society, and those eases in which the names or designations used were not the corporate name, and where it was therefore held that the instruments sued upon were not the obligations of the-corporations, but the individual obligations of the persons signing them.
    5. The use of the word “we, ” the trustees, etc., in the note in the present ease, should not be given the effect to leave it doubtful on the face of the instrument as to who is bound. The designation following the pronoun “we” being the corporate name,, it should be understood as meaning that “we,” the corporation, promise to pay. The word “we” may not improperly be used to denote a corporation aggregate.
    6. Nor was it essential to the binding effect of the note as a corporate act, that the word “as” should have been employed after the word “we;” so as to read, “we, as the trustees, etc., promise to pay.” Where there is no other name or description appearing, either in the body of the note or in the signature to it, than that of the corporate name of the society, as appears in this case, the use of the word “as,” in the connection named, should not he regarded as important to give the transaction the character of a corporate act.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.
    This was an action of assumpsit, brought by the New Market Savings Bank, upon a promissory note. The declaration contained the common counts, and two special counts, the note sued upon being alleged to have been made by Gil-let and others to Longley, and by him assigned to Chase and others, and by them to the plaintiff. Gillet alone was served. The purpose of the suit was -to recover against the defendants as .the individual makers of the note, and the defence was that the note sued upon was not the individual note of the persons signing it, but was the note of the corporation named therein. Upon this issue the plaintiff recovered in the circuit court, but on appeal ■ by the defendant to the Appellate Court the judgment of the circuit court was reversed. The plaintiff thereupon appealed to this court.
    Mr. W.' T. Burgess, for the appellant,
    in favor of the view that the note sued upon was the individual note of the persons signing the same, and not that of the corporation named therein, cited Powers v. Briggs, 79 Ill. 493; Bradlee v. Boston Glass Co. 16 Pick. 350; Lombard v. Chicago Sinai Congregation, 64 Ill. 487.
    Messrs. Holden & Farson, for the appellee,
    contended that the note sued on was that of the corporation, and not the individual note of the persons signing it. Counsel reviewed the cases cited in support of the ruling in Powers v. Briggs, 79 Ill. 493, and deduced therefrom this rule:

      Where the body of the instrument discloses the relation of agent or officer, and there is also anything pertaining to the signature indicating other than a personal act, the principal is bound and the agent or officer is exempt. But where the fact of agency or office is disclosed, either in the body or signature, that disclosure alone will not exempt the agent or officer unless the promise is clearly stated to be his promise as agent or officer, or is stated to be the promise of the principal.
    Counsel said: The rule which we contend for is plainly seen to underlie the decision in Barlow v. Cong. S. 8 Allen, 460, in which the note reads: “I, as treasurer, etc., promise, ” and signed “S. S. R., treasurer,” in which he was held not liable, and the court says, on p. 464: “But whenever it appears upon the face of a simple contract, made by the agent of one named therein, * * * that he acts as agent or intends to bind his principal, the law will give effect to the intention in whatever form expressed. ” (See 21 Conn. 627, and 2 Fair. 267, as to form.)
    The following cases were cited as furnishing instances where the agent was exempted and the principal held bound: Johnson v. Smith, 21 Conn. 627; Draper v. Mass. S. H. Co. 5 Allen, 339; Fuller v. Hooper, 3 Gray, 334.
    Counsel also cited the following, as in support of the rule contended for: Waugh v. Suter, 3 Bradw. 274; Abbey v. Chase, 6 Cush. 56; Page v. Wright, 14 Allen, 182; Tripp v. Swanzey P. Co. 13 Pick. 291; Sefts v. York, 4 Cush. 371; Shelton v. Darling, 2 Conn. 435; Hovey v. Magill, 2 id. 680; Magill v. Hinsdale, 6 id. 465; Rathbon v. Bridlong, 15 Johns. 1; Bank of A. v. Breillat, 6 Moore, P. C. 152; Lewis v. Nicholson, 18 Q. B. 503; Green v. Kopke 18 Com. B. 549 ; Des. L. of P. v. Bellamy M. Co. 12 N. H. 205; Brockway v. Allen, 17 Wend. 40; Mechanics’ Bank v. Bank of C. 5 Wheat. 326; Drake v. Llewellen, 33 Ala. (N. S.) 106; Lazarus v. Shearer, 2 id. 718; Lee v. M. E. Church, 52 Barb. 116; Stan

      ton v. Camp, 4 id. 274; Blanchard v. Kaull, 44 Cal. 440; Pitman v. Kintnee, 5 Blackf. 250; Carpenter v. Farnsworth, 106 Mass. 561; Dow v. Moore, 47 N. H. 419; Haskell v. Cornish, 13 Cal. 45; Randall v. Van Vechten, 19 Johns. 60; Draper v. M. S. H. Co. 5 Allen, 338; Long v. Coburn, 11 Mass. 97; Keyes' Exr. v. Paraham, 6 Har. & Johns. 418; Hall v. Pierce, 35 Md. 327; Parsons on Notes and Bills, 91, 92, 168, 169, 170; Melledge v. Boston Iron Co. 5 Cush. 158; Minard v. Mead, 7 Wend. 68; Story on Prom. Notes, sec. 67.
    But counsel insisted that the note in suit is essentially different from that in the Powers case.

    The first distinction is in the names used in the notes. The name used in the Powers note was not the corporate name of the trustees. Their corporate name was, “The Trustees of the Society of the Seventh Presbyterian Church of Chicago.” In the note in suit the proper corporate name of the individuals signing is used.
    The second distinction is, that the proper corporate name of the trustees is the signature of the note in suit, while it was not in the Powers note.
    The court says, on page 494, in the Powers case, that “the general rule appears to be, when the names of the principal and agent both appear upon the instrument, it will be held to be the note of him who signs it, unless it satisfactorily appears that he signed it in a mere ministerial character, intending to bind another. ”
    We claim that the component 'parts of this signature, and their relative position, indicate that .the signature is that of the trustees officially.
    The statute in force when this note was made provides that the persons who are trustees shall be “styled trustees of such society or congregation by the name assumed. ” Chap. 25, div. 3, sec. 1, Gross’ Stat. 1871, p. 110, being the same as sec. 44, Rev. Stat. 1845, p. 120.

      The use of the individual names of the trustees, with their corporate name appended, has been declared by our Supreme Court to be the proper use of the corporate name in a corporate act. Lombard v. Chicago Sinai Cong. 64 Ills. 487; Ada Street Church v. Garnsey, 66 id. 132; Little v. Bailey, 87 id. 240. So that this note was properly signed with the corporate name of the society, and if so, there was no individual signatures to the note. Each trustee’s name -was necessary to fully authenticate the use of the name of the society, and to form a component part of it.
   Mr. Justice Sheldon

delivered the opinion of the Court:

The note sued ón is as follows:

“$8300. Chicago, 20-January, 1870.

“Eighteen months after date, we, the trustees of the First Free Will Baptist Society of Chicago, promise to pay James Longley, or order, $8300, with interest thereon, semi-annually at the rate of ten per cent per annum, payable at the Commercial National Bank of Chicago, Illinois.

Trustees of the First Free Will Baptist Society of Chicago, Illinois.

Aaron P. Downs, Paul W. Gillet, John G. Elkins, Benjamin Chase, Hiram Watts, Pleasant Amick, Wilson F. Behel, Henry G. Richwald, John A. Bartlett. ”

The question made upon this record is, whether this note, as it purports upon its face, is the individual note of the persons signing it, or that of the corporation named therein.

Powers v. Briggs, 79 Ill. 493, is cited by appellant’s counsel as sanctioning the construction that the signers are individually liable. The form of the note there was this:

“$600. Chicago, May 17, 1870.

“One year after date, we, the trustees of the Seventh Presbyterian Church, promise to pay to the order of H. G. Powers, $600, value received, with interest at six per cent per annum.

A. H. Briggs, Louis B. Kelley, John Corbett, F. D. Marshall, Trustees.

There is a material distinction between the instruments in the two cases, and one well admitting a difference of construction. In the Powers case, the name used in the body of the note was not that of the religious society there, their corporate name being “Trustees of the Society of the Seventh Presbyterian Church of Chicago, ” and the signature to the note was not the corporate name of the society, whereas, here the proper corporate name of the corporation on behalf of which defendant claims to have acted, appears in the body of the note and in the signature to it. Its name was “The Trustees of the First'Free Will Baptist Society of Chicago.” Ada Street M. E. Church v. Garnsey, 66 Ill. 133.

In no case which has been cited, nor in any other case of any such instrument which has ever previously been before this court, where there has been held to be individual liability, did the proper corporate name of the corporate body, as here, appear in the body of the note, and also appear signed to the note. In Village of Cahokia v. Rautenberg, 88 Ill. 219, the form was in the body of the note, “I promise to pay to, ” etc., signed by two individual names, with “School Trustees” added. In Hypes v. Griffin, 89 Ill. 134, the note was signed and sealed with the hands and seals of certain persons, without any official or other designation whatever to their names.

The statute relating to the incorporation' of religious societies, in force at the time this note was made, provided that “such society or congregation may assume a name, and elect or appoint any number of trustees, not exceeding ten, who shall be styled trustees of such society or congregation by the name assumed, and the title to the land purchased and improvements made shall be vested in the trustees, by the name and style assumed as aforesaid.” The trustees and their successors are given perpetual succession, and are to sue and be sued, etc., “in and by the name and style assumed as aforesaid.” :

As to the proper mode of the execution of instruments in writing by such a corporation, this court has declared it to be by the use of the individual names of the trustees, with them corporate name appended, saying, in the case of Lombard v. Chicago Sinai Congregation, 64 Ill. 487, with reference to the execution of a deed of land belonging to such a corporation, that “the sufficiency of the deed required that the individual names of the trustees should be inserted as grantors, with the addition of the words, ‘Trustees of the Chicago Sinai Congregation.’ * * * The concluding clause should be, that the said parties of the first part, as such trustees as aforesaid, have hereunto set their hands and seals, or their official style should be added to their signature. ” And see Ada Street M. E. Church v. Garnsey, supra, that such a corporation must sue and be sued through its trustees.

So far as would respect the execution of a note .on the part of the corporation, it is not perceived why the one in suit is not executed in conformity with the mode above directed; but as showing a failure so to do, stress is laid by appellant’s counsel upon the following additional language which was there used, viz: “The granting clause should witness that the said parties of the first part, as trustees of, for, and by the direction of the congregation aforesaid, for the consideration, etc., have bargained. In this respect the deed was not sufficiently certain.” As to conveyances of real estate, the power to make them is, in terms, given only under the direction of the society or. congregation, and thus the propriety that a conveyance of real estate should show on its face such direction. The remarks above in that case were with reference to a deed under the direction of a court of chancery, and as the kind, in form, of such a deed which a purchaser was entitled to require, it being said that it should be correct in form, and so executed as to show it upon its face to be free from all probable doubt or suspicion. The significance of the decision, as applied to the case in hand, is, that the mode of execution should be by the" signature of the individual names of the trustees, with the addition thereto of their official style. All the observations with regard to a deed would not, of course, apply to a note. There is no granting or concluding clause in the latter; the name of the promisor need not appear therein at all; the signature thereof to the' note is enough. The signature here is that of the corporate name of the corporation, and of that alone. The individual names of the trustees are no individual signatures, or individual acts, but a component part of the signature of the corporate name, in the form that it is required to be made, under our own decision above in that regard".

It is said that the use of the word “we” in the note, in its connection, to-wit: “we, the trustees, ” etc., leaves it doubtful on the face of the instrument who is bound. But how can this be? “We” is immediately followed by “the trustees of the First Free Will Baptist Society of Chicago, ” and that is the corporate name of a corporation. How can this pronoun denote any one else than the corporation whose corporate name immediately follows it? No one else is named in the body of the note nor in the signature to it, as the only name subscribed is the corporate name of the corporation, the individual names of the trustees being used only in connection with their official style, and their use in such connection being in the required mode of making a corporation signature, as laid down in Lombard v. Chicago Sinai Congregation.

It is, then, “we” the trustees of the First Free Will Baptist Society of Chicago,—we, the corporation, by this our corporate name,—who make the promise, and not “we, ” Aaron P. Downs and the eight other trustees whose names appear to the note. It might have been better to have omitted this word “we, ” and had it been omitted, the mode of the execution of the note, as a note of the corporate body, would appear to be unexceptionable in form. But it is usual in making promissory notes to use the personal pronoun of the first person singular or plural; and if it were to be used in this case, manifestly the plural would be more proper than the singular form,—“we, the trustees,” etc., than “I, the trustees, ” etc. The word “we” may not improperly be used to denote a corporation aggregate.

Another criticism which is made is, that to make this a corporate act the word “as” should have been employed after the word “we,” so as to read, we as the trustees, etc., promise, etc.,—that that would have changed the word trustees from being a description of the person to a qualification of the act, making it the act of some one else. Where there is no other name or description appearing, either in the body of the note or in the signature to it, than that of the proper corporate name of the society,'as appears here, the use of this word “as,” in the connection named, should not be regarded as important to give to the transaction the character of a corporate act.

There is no occasion to advert to the various decisions involving the execution of written instruments by agents for principals, and where the agent, or principal, has been held bound according to the particular form in which the instrument may have been drawn and signed. They are not parallel cases with the one at bar. For its decision one need look no further than to our statute prescribing the corporate name of these incorporated religious societies, and what this court has laid down heretofore, that the use of the individual names of the trustees with the statutory corporate name appended, is the proper mode of the using of the corporate name in the execution of a written instrument, so as to hind the corporation.

It would seem therefrom that this note was executed officially, not individually,—that the signature thereto is that of the corporate name of the corporation, and none other,— that the individual names of the trustees there, in the connection they appear, were not signed as individual acts, but in the performance of a corporate act, in order to the execution of the note in proper form as a note of the corporation, and that hence the note is that of the corporation, made by it under its corporate name, and not the note of the individual trustees.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Chief Justice Craig

text:
    Charles R. Langdale v. The People of the State of Illinois.

      Filed at Springfield September 30, 1881.

    1. School obdeb—how it may be executed. A school order for the payment of money may be executed by the president and secretary of the board, or by a majority of the directors who constitute the board, and when executed in either way is legal.
    2. Indictment—setting out instrument in lime verba—va/riemee. While it is not necessary in an indictment for passing a fictitious school order, after setting out the order in substance, to give it in lime verba, yet if the pleader attempts to dó so, he will be bound to set out each and every part of the instrument which constitutes any part of the written contract.
    3. Anything appearing on the paper constituting the order which is no part of the contract may be omitted in setting out the instrument in lime verba. So, the number of a bill alleged to have been forged, and the figures on its margin, and the dollar mark and figures indicating the amount of dollars on the margin of an order, need not be given.

      4. Same—in description of school order. The words “school order,” on the face of an instrument, constituting no part of the contract, but being the trade mark of the party printing the orders, may be omitted in the copy given in an indictment; and where a copy of a fictitious school order read, after the word dollars, “for Mott’s mordern mode charts,” instead of “for Mott’s modem mode charts, ” the variance was held too slight and unimportant to reverse a judgment of conviction.
    5. Check mask—no part of contract. Where the words used in the body of a note or order for the payment of money are ambiguous, leaving the amount intended uncertain, resort may be had to the figures in the margin to determine the true sum; yet such figures are, strictly speaking, no part of the contract.
    6. Evidence—certified copy of plat of township. On the trial of one for passing a fictitious school order, purporting to have been given by the directors of a school district, the court admitted in evidence a certified copy of the plat of school districts of the county by the county clerk, the certificate failing to show that the clerk was the keeper of the original records: Held, that the defect, if any, was obviated by the testimony of" the clerk, as a witness, that the original was in his office, and that the paper was a true copy of the latest plat.
    Writ of Error to the Circuit Court of Logan county; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. James & Wallace, for the plaintiff in error:
    An order purporting to be the order of a board of school directors must be legal on its face. Dana v. State, 2 Ohio, 91; McMillam v. State, 5 id. 269.
    A school order, to be legal, must be issued by the order of the board of school directors, and must be signed by the president and clerk of said board. Hurd’s Stat. 1880, p. 980, sec. 67, chap. 122.
    A board of school directors must be organized by electing a president and clerk, and no act of said board is legal unless so organized, and such act must show that it has been done by the president and clerk attaching their signatures thereto. Hurd’s Stat. 1880, p. 968, sec. 42, chap. 122. See, also, sec. 48, same chapter and title.
    If the prosecutor attempts to set out an instrument in writing, in an indictment, in words and figures, he is bound to the strictest accuracy. Brown v. People, 66 Ill. 344; Griffin v. State, 14 Ohio, 55; Russell on Crim. Law, vol. 2, p. 375, (5th Am. ed.); Roscoe on Crim. Ev. p. 510, (5th Am. ed.)
    If an instrument in writing is offered in evidence under an indictment attempting to set it out in words and figures, and the instrument in writing offered varies in any material or descriptive part from the one set out in the indictment, it can not be permitted to go to the jury as evidence. Wharton’s Am. Crim. Law, vol. 1, secs. 306, 307, 606; 3 Starkie on Evidence, (3d Am. ed.) secc. 1530, p. 1529; Spangler v. Pugh, 21 Ill. 84; Jacksonville, N. W. and S. E. Railway Co. v. Brown, 67 id. 201.
    Messrs. Eorbest & Humphrey, for the People:
    It was not necessary for the prosecution to show that the order was legal. One of the chief elements of crime in this case is the illegality and fictitiousness of this instrument, and the knowledge of the defendant of those facts when he put it in circulation. Under such circumstances, it matters not whether the instrument is drawn in legal form or not.
    It is not necessary- that an indictment purporting to set out a bill, etc., shall give the number, its vignettes, mottoes and devices, or the words and figures in the margin, which constitute no part of the contract of the forged or fictitious instrument. Griffin v. State, 14 Ohio, 55; Commonwealth v. Bailey, 1 Mass. 62; Commonwealth v. Stevens, id. 204; People v. Franklin, 3 Johns. Cases, 298; Commonwealth v. Searle, 2 Binney, 332; State v. Carr, 3 N. H. 367; Commonwealth v. Taylor, 5 Cush. 605; Commonwealth v. Wilson, 2 Gray, 270.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

This was an indictment by the grand jury of Logan county against Charles R. Langdale, for passing a fictitious school order.

The indictment was framed under sec. 107, chap. 34, Rev. Stat. 1874, which declares: “Whoever shall make, pass, utter or publish, with an intention to defraud any other person, or with like intention shall attempt to pass * * * any fictitious bill, note or check purporting to be the hill, note or check, or other instrument of writing for the payment of money or property, of some hank, corporation, copartnership or individual, when in fact there shall be no such bank, corporation, copartnership or individual in existence, the said person knowing the said * * * * instrument of writing for the payment of money to be fictitious, shall be imprisoned in the penitentiary not less than one nor more than twenty years. ”

It was charged in the indictment that the defendant, on the 15th day of June, 1880, with intent to defraud certain persons therein named, feloniously did pass upon and unto them a certain false and fictitious order, purporting to he issued by a corporation, to-wit: by the school directors of district number 8, in township 24, in range 4 west, in Tazewell county, in the State of Illinois, drawn upon the treasurer of said township 24, range 4 west, in said county of Tazewell, for the payment of money to the said Charles B. Langdale, or bearer, to-wit: the sum of $36, with interest thereon at eight per cent per annum, when in fact and in truth, at the time when said fictitious order was so passed as aforesaid, or at any time prior thereto, there was no such corporation or school district-in existence, he, the said Langdale, well knowing the said order to he fictitious. What purports to be a copy of the order is then set out in the indictment, and the indictment then concludes in the usual manner. On a trial before a jury the defendant was found guilty, and his term of imprisonment fixed at one year in the penitentiary. To reverse the judgment this writ of error has been sued out.

It is urged that the school order read in evidence is not a legal order on its face, and as it does not purport to be a school order, defendant is gnilty of no crime in passing the order. This position is predicated on the theory that every school order, to be legal and binding, must be signed by the president and clerk of the school board. Where a board of directors have a president and clerk, and direct the payment of money from the treasurer for any legitimate purpose, it is a very proper mode of executing the school order to have it signed by the president and secretary of the board. But this is not the only method of executing such an order. Section 67, chap. 122, of the School law, in express terms authorizes a school order to be signed by a majority of the board. Under a fair and reasonable construction of the School law either method may be adopted, and whether a school order may be executed by the president and secretary of the board, or by a majority of the directors who constitute the board, can make no difference, so far as the legality of the transaction is concerned.

On the trial of the cause the attorney for the People offered in evidence the fictitious school order described in the indictment, and the defendant objected to the reading of the instrument on the ground of a variance between the instrument offered and the one described or set out in the indictment. The court overruled the objection and allowed the instrument to be read to the jury, and this decision is relied upon as error. The variance consisted of this: The order read in evidence, after the word “dollars” contained these words, “for Mott’s modern mode charts.” In the margin of the order was the following, “$36.00.” Across the face of the order, in white letters, appeared the words “school order.” The copy of the order set out in the indictment omits the words “school order,” and the dollar mark and figures (“$36.00,”) on the margin, and the word “mordern” is used instead of “modern.” In the indictment the pleader set out the substance of the fictitious order, and' then said, “being in words and figures as follows,” and purported to set out an exact copy. While it was not at all necessary to set out the order in hcec verba in the indictment, yet when the pleader undertook to do so, and averred that it was in the words and figures as follows, he was bound to set out each and every part of the written instrument which constituted any part of the written contract; but if anything appeared on the paper constituting the order which was no part of the contract, that might be omitted.

Commonwealth v. Bailey, 1 Mass. 62, is an authority in point. There, in an indictment for forgery, alleging an instrument to be in the words and figures following, it was held that a strict recital was necessary; but the number of a bill, and the figures in its margin making its amount, are not parts of the bill, and need not be set out in the indictment. The same rule is announced in Commonwealth v. Stevens, 1 Mass. 203, and in Griffin v. The State, 14 Ohio, 54. See, also, Commonwealth v. Taylor, 5 Cush. 605; Commonwealth v. Wilson, 2 Gray, 270; State v. Carr, 3 N. H. 376.

Where the words used in the body of a note or order for the payment of money are ambiguous, so that there is uncertainty in regard to the true amount that was intended, resort may be had to the figures in the margin of the instrument for the purpose of determining the true amount agreed to be paid, as held in Riley s. Dickens, 19 Ill. 29, and Corgan v. Frew, 39 id. 31; but the figures in the margin of an instrument are not strictly a part of the contract. They can not be reverted to to impeach the amount named in the body of the paper, and are never resorted to for any purpose unless there is uncertainty in regard to the amount written in the body of the instrument. Here there was no uncertainty whatever. The amount, plainly written in the body of the order, was $36, and the figures in the margin could be used for no purpose, and as they did not strictly form a part of the contract, in giving the copy of the order we see no reason why they might not be omitted. In regard to the words “school order, ” on the face of the instrument, upon an inspection of the order these words will be found to constitute no part of the order itself, but are a part of the trade mark of Oliver, Adams & Co., printed upon their blank orders. As respects the variance between the order read in evidence and the copy in the indictment, in the use of the word “mordern” for “modern, ” the variance is so slight and unimportant that we can not hold it sufficient to reverse. We are, therefore, of opinion that the court did not err in the decision admitting the order in evidence.

It is also urged that the court erred in admitting in evidence a certified copy of the plat of the school districts of the county of Tazewell. It is true the county clerk did not certify that he was the keeper of the original record, but that was unimportant. The clerk was introduced as a witness, and testified that the original was in his office, and the copy offered in evidence was a true copy of the latest plat filed in his office. This we regard as sufficient.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.

Mr. Justice Scott dissenting.


author: Mr. Justice Walker

text:
    David B. Hutchinson et al. v. John A. Crane et al.

      Filed at Springfield September 30, 1881.

    1. Pabty—holder of notes indorsed m blank. Where the payee of a note delivers the same, indorsed in blank, to indemnify a member of a firm as his security, and suit in equity is afterwards brought in the name of the firm to enforce payment of such note, the maker of the note can not be heard to object that the suit is brought in the name of the firm-instead of that of the individual partner. They will be presumed to be the legal holders as against the maker, who has no interest as to the party entitled to payment.
    2. Assignment—of note by vendor of land, carries his security. Where a bond is given for a deed to land to be made upon payment of the notes given for the unpaid price, the bond and notes will constitute one contract, and they will be treated in equity as a security in the nature of a mortgage, and a sale and assignment of the notes will pass the security, which may be enforced in the name of the assignee.
    3. Vendor and purchaser—latter obtaining deed by fraud. Where the purchaser of land under a bond for a deed induces his vendor to make a deed, to be left with the assignee of the notes given for the purchase money, for delivery only upon payment of such notes, and fraudulently obtains possession of such deed without payment, and puts the same upon record, such deed will be set aside as to him and a purchaser from him with notice of the fraud, and the land be ordered sold for the payment of the notes.
    Writ of Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Sangamon county; .the Hon. Charles S. Zane, Judge, presiding;
    Mr. Oscar A. DeLeuw, for the plaintiffs in error:
    Before Crane & Manson can subject this land to sale upon the theory that they have a vendor’s lien, they must, as the assignees of the lien, be in a condition to convey. Thompson v. Shoemaker, 68 Ill. 256.
    The complainants had no title to the notes. The bill charges an assignment to Crane & Manson, while the whole proof shows that John A. Crane, and he alone, holds these notes, and only as collaterals.
    Notice or knowledge must be brought home to Pond of this fraudulent transaction, or the case fails.
    The placing the notes in Crane’s hands as collaterals, he having no control or even possession of any deed or title to convey, does not create the express lien of a quasi mortgage, which is enforceable by the assignee of the vendor. Richards v. Learning, 27 Ill. 431; Bonnell v. Holt, 89 id. 71; Wing v. Goodnow, 75 id. 159; Elder v. Jones, 85 id. 384; Baston v. Clifford, 68 id. 67.

      Complainants having framed them bill on the theory of the existence of a vendor’s lien, can not shift their ground, and claim relief on other grounds. Vennum v. Vennmn, 61 Ill. 331.
    The record discloses a mere delivery of the notes to John A. Crane as collateral security. Manson has no interest in this proceeding. Crane indorsed for Barrett, and Barrett turned these notes over to Crane, to be held as collateral to indemnify him in becoming such indorser. As Manson had no interest, he can not litigate. Mansfield v. Hoagland, 46 Ill. 359.
    Messrs. Morrison, Whitlock & Lippincott, for the, defendants in error:
    1. The deed was never delivered either by the consent of Barrett or of Crane & Manson, and was therefore void, and passed no title. Pond could obtain no interest in the land from Hutchinson, who held no title. Whittaker v. Miller, 83 Ill. 581; Skinner et al. v. Baker et al. 79 id. 496; Dale v. Lincoln, 62 id. 22; Stanley v. Valentine, 79 id. 544. Therefore Pond’s interest, if any, was and is subordinate to the rights of complainants in the bill.
    2. The notes were payable to Barrett, and were indorsed by him in blank, by writing his name on the back thereof, and delivered to Crane, who signed the note with Barrett for $1500. The notes then passed by delivery, and were in possession of Crane & Manson, who are and were partners in business. The notes'were produced by complainants in the bill; this was all that was necessary in order to show title in Crane & Manson, and to show their right to a decree upon the other points appearing in the testimony in the case. It is wholly immaterial to Hutchinson how Manson acquired interest in the debt evidenced by the notes. We insist, therefore, there is no force in the point that-Crane, alone, was the party in interest.
    3. The testimony clearly shows the deed came into the possession of David B. Hutchinson by his fraudulent act, and without the consent of either Crane & Manson, or Barrett.
    This" deed was fraudulent as to the debt evidenced by the notes in evidence, but it was good as to the interest of Barrett or of Hutchinson, as his. grantors, over, and above the lien. No tender of a deed was necessary in the case. The decree is right.
   Mr. Justice Walker

delivered the opinion of the Court:

In the month of March, 1876, one Barrett, being the owner of the undivided third of three lots in the town of Waverly, Morgan county, Ill., on that day sold his interest therein to plaintiff in error Hutchinson, who paid a part of the purchase money in cash, and gave several promissory notes, due in one, two and three years, for the balance. The deferred payments aggregated the sum of $1050. Barrett, at the time, executed a bond for a conveyance of that interest in the lots to Hutchinson, on payment of the notes, and the bond was recorded. Hutchinson took possession of the property at the time of sale. There was, at that time, a steam mill on the property. It is alleged that prior to the maturity of either of the notes, Barrett indorsed the notes in blank and delivered them to Crane, of the firm of Crane & Manson, to indemnify Crane for his liability for Barrett; that they still hold the notes; that Hutchinson, at the time, had notice of the transfer and delivery of the notes to Crane & Manson, and paid to them interest for one year, but the balance remained unpaid; that Hutchinson, in February, 1878, applied to Barrett to make him a deed for the lots, and proposed to give a mortgage on them to secure the unpaid purchase money, but Barrett declined, but upon consultation with Crane it was agreed that Barrett and wife should make the deed for the undivided third of the lots, and deposit the same with Crane, to be delivered by him to Hutchinson, only on the payment of the notes and interest; that in pursuance of this agreement a deed was duly executed, but it was never delivered to Crane; that Hutchinson fraudulently obtained possession of the deed without its being delivered to him, and had it recorded, without the consent or knowledge of Barrett, Crane or Manson. Hutchinson and wife conveyed the premises to Lambert Pond, and that deed was recorded. It is claimed this latter conveyance was fraudulent, as Pond had notice of the fraud, and that the notes were unpaid.

The bill charges these facts as a fraud on Crane & Manson by Hutchinson and Pond, and prays that the deed to the latter be set aside and the record thereof be cancelled, and the property be sold for the payment of the- purchase money evidenced by the notes held by Crane & Manson. Barrett and Pond, who were made defendants with Hutchinson, were defaulted. On a hearing, the circuit court granted the relief sought, and Hutchinson and Pond removed the ease to the Appellate Court, where the decree of the circuit court was affirmed, and they bring the case to this court, and urge a reversal.

It is urged, that as the notes were pledged to Crane to indemnify him for a liability for Barrett, Manson has no interest in the matter, and that he is an improper party. We are unable to perceive any force in this objection. The notes were indorsed in blank, and are due and unpaid, and Hutchinson seems to have paid interest on them to Crane & Manson. If they do not hold the lien jointly, that only concerns Barrett, and he admits by his default that the notes are held by them, and that they have the right to collect and receive the money; and Crane, with Manson, claims the benefit of the notes is to both of them, by this bill. Being assigned in blank, they are presumed to be the legal holders, and it only concerns Hutchinson to pay the notes, which are due and unpaid. It does not matter to him to whom he pays them. If there is any question as to who is entitled to the money when paid, Barrett and Crane & Manson can settle that question between themselves. They do not ask us to settle it, and it will be proper for us to do so only when called on by them.

Then, can Crane & Hanson enforce the payment of these notes ? We, on the authority of Wright v. Troutman, 81 Ill. 374, think they may. It was held, in that case, that the holders, by assignment, of notes given for the purchase money of land, where a bond for title had been given by the vendor for the conveyance of the land, might in equity enforce their claim by subjecting the land to its payment. It was there held that notes thus given, and a bond executed for a conveyance, constituted one instrument, and will be regarded as a security in the nature of a mortgage, by a court of equity, which may be sold by assignment, and the assignee may enforce the lien or mortgage by a bill in equity. The rule applied on the facts in that case is applicable to the facts in this. This ease requires the application of the same rule. When Barrett assigned and delivered the notes in blank, he assigned this equitable lien, in the nature of a mortgage, to whomever might become the holder, and such holder is empowered to enforce the lien and compel payment of the money from the land thus sold.

It is, however, urged, that as Pond purchased without notice, and in good faith, he must be protected. Hutchinson, in procuring the deed and placing it on record, committed a gross fraud on defendants in error. It was agreed, and of this there seems to be no doubt, that when Barrett executed the deed it should be left in Crane’s custody, to be held in escrow, until the notes held by defendants in error were fully paid, and then to be delivered to Hutchinson. He was a party, and an active party, to this arrangement, but instead of carrying it out, he, under false and fraudulent pretences, obtained possession of it, and conveyed the land, on a real, or pretended consideration, to his father-in-law, Pond. His acts in the matter seem to have been a fraudulent scheme to procure the deed, and to perpetrate the fraud on defendants in error. His acts can not be called fair or honest, but were in gross violation of fan dealing.

When examined, Pond seems to have acted singularly in receiving the deed. He was at the time residing in another county, nearly a hundred miles distant, and yet he did not examine the title or the property. He purchased a third of the mill for $2000, when he was not in, nor does he claim that he ever intended to embark in, the milling business. He assigns no plausible reason for the purchase. He only claims that he had loaned Hutchinson $1000 without security. But he claims that Hutchinson promised to give him a mortgage on that third when he obtained a deed, or to secure the loan in some other manner; but when the deed was presented he did not insist on a mortgage, but on the request of his son-in-law purchased the property at $2000, cancelling the $1000 note and interest, and giving his two notes for $400 each, due in two and four years. Again, after this suit was brought, he paid the first before it fell due, not being sufficiently concerned to await and learn whether he would hold the title. If this is a fair and honest transaction, it is most singular, and out of the usual course of business. Men do not usually so act when such a sum of money is really involved. He says he regarded Hutchinson as solvent, and it was therefore unnecessary to purchase to save his debt. If the property was worth $2000, it was ample security for his debt; but he did not choose to take a mortgage, as he claims it was promised when the title should be procured. Bis effort to induce the belief that he expected a mortgage on the property when he loaned the money, falls far short of proving the money was loaned with a definite understanding and positive agreement that such a mortgage would ever be given. It only appears there was some loose talk about a mortgage when a deed should be obtained. We are fully satisfied that the money was not loaned on the land as security, or on any definite understanding that it should become security. We are strongly impressed that Pond was a party to the fraud.

All of the facts in the case considered, we are impelled to the conclusion that Hutchinson committed a gross fraud in placing the deed from Barrett to him, and recording it, instead of delivering it to Crane, in pursuance of the agreement, and that he fraudulently sold the property to Pond, and that the latter had actual notice of the fact, or was put on inquiry by the circumstances under which he purchased.

We perceive no error in the record, and the decree of the Appellate Court is affirmed.

Decree affirmed.


author: Mr. Justice Scott

text:
    A. C. Palmer et al. v. E. G. Harris.

      Filed at Springfield September 30, 1881.

    1. Remedy—when two concurrent ones may be pursued at same time. The vendor of land may sue at law upon the note given for the purchase money, and at the same time proceed in equity to enforce a lien reserved in his deed-for the payment of the same.
    2. Since the passage of the act of 1865, authorizing a personal decree on the foreclosure of a mortgage for any balance remaining due after sale of the premises, and the award of an execution therefor, the mortgagee may bring his action at law, the same as before, for any balance due him after the sale under the foreclosure, or he may in the first instance sue at law on his note, and proceed to foreclose the mortgage in equity at the same time.
    3. Amendment—as to amornit of decree, at same term. It is competent for a judge other than the one who presided at the hearing of a cause, presiding at the same term of court, to amend the decree rendered upon the hearing, so as to show the true amount due, and when the amendment lessens the amount the defendant can not complain that the amendment was allowed without notice to him, although correct practice may require it.

      4. Interest—-judgment rate governs after judgment. On bill to enforce a vendor’s lien when the note has been reduced to a judgment, the true rule for ascertaining the sum due is to calculate the interest on the judgment, and not upon the note.
    5. Evidence—proof of fact admitted by pleadings not necessary. Where, on a bill to enforce a vendor’s lien, the answer admits the making of the note for the purchase money and the reservation of the lien in the deed to the defendant, the necessity of introducing in evidence the deed which reserves the lien will be obviated. It is wholly unnecessary to prove on the hearing that which is solemnly admitted by the answer.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. W. R. Welch, Judge, last presiding, the Hon. Charles S. Zane presiding before the amendment of the decree was allowed.
    Mr. W. P. Gallon, for the appellants.
    Messrs. Morrison, Whitlock & Lippincott, for the appellee.
   Mr. Justice Scott

delivered the opinion of the Court:

The bill in this case was to enforce a vendor’s lien reserved in the deed made by complainant to defendants for the land described in the bill, to secure the purchase money. The balance remaining due was evidenced by a promissory note, executed by defendants. At the same time the bill was filed, a common law action was commenced on the note to recover a judgment at law. Whether any defence was made to the suit on the note does not appear, but at all events judgment was rendered against defendants on the 19th day of November, 1879, for the amount of the note, and interest to that date. The defence attempted to be set up to the merits of the case in the original answer of defendants was afterwards withdrawn, and, on leave given for that purpose, defendants amended their answer by striking out that portion that alleged matters in part defence to the note, and then set forth as a reason why complainant should not. obtain relief on his bill, that at the time of filing his bill in this cause he also instituted a suit on the law side of the court upon the same note described in the bill; that the parties to both suits are identically the same, and that the subject matter is the same, being the same note, and none other; that on the 19th day of November, 1879, complainant obtained judgment on the note in an action at law, and which judgment is a first lien on the premises described in the bill, excepting only the vendor’s lien, which complainant by this bill seeks to foreclose; and that the premises have in no way been incumbered since they were conveyed to defendants, but that they are as fully subject to such judgment as to any decree he might obtain in this suit, and that defendants have an abundance of property, aside from the real estate described in the bill, to satisfy such judgment. A motion had previously been made (based on an affidavit stating the pendency of the common law suit on the note, admitting the making of the note as charged in the bill, and that a vendor’s lien was reserved in the deed to secure the same,) for a rule on complainant to compel him to elect whether he would proceed with this suit or with his suit at law; but that motion was overruled. The cause was submitted for hearing on the master’s report, and the testimony taken in the cause, and on the 6th day of May, 1880, the court found the general allegations of the bill to be true,—that the note was secured by a vendor’s lien .on the premises,—and rendered a decree in favor of complainant for the sum of $8839.42, and ordered the same to be paid by defendants within ten days, and on default thereof that the premises be sold to satisfy the same. Afterwards, at the same term of court, and on the 11th day of May, 1880, another judge of the same circuit presiding, on motion of complainant the decree rendered on the 6th day of May was amended by striking out the words and figures $8839.42, and insertmg in lieu thereof !$8752.16, it appearing to the court there was error in ascertaining the sum due on the note in entering the original decree, and it was ordered the original decree stand as therein ordered in all things, except as to the sum due on the note before mentioned. On defendants’ appeal, the decree of the circuit court was affirmed in the Appellate Court, and now defendants bring the case to this court on their further appeal.

No question is made against the justness of the debt for which a lien is sought to be established against the. premises described in the bill. The amount of the debt was ascertained in the suit at law. The point is made that defendants should not be subjected to the double vexation of a suit at law and in equity for the recovery of the same debt. The position is taken, that upon the filing of the answer of defendants alleging the facts'of the commencement of both suits, on motion of defendants entered for that purpose, complainant should have been compelled, by rule laid upon him, to elect whether he would proceed in his suit at law or in equity, and if the latter court was selected, an injunction should have been issued to restrain further proceedings at law, and if the former, the bill should have been dismissed.

It was definitely settled in Vansant v. Allmon, 23 Ill. 30, that a creditor by note and mortgage has several remedies, either and all of which he might pursue until his debt was satisfied. It was said, a judgment on the note without satisfaction was no bar to a proceeding in equity to foreclose the mortgage, and the two suits might be pending at the same time. No case has been cited in this court that shows any departure from the practice as established by that decision.

The argument insisted upon as the reason for the rule in Vansant v. Allmon, as declared in Dunkley v. Van Buren, 3 Johns. Ch. 330, is, that a party on a bill to foreclose a mortgage is confined in his remedy to the pledge, and that such a suit was not intended to act in personam on the mortgage debtor, and .that since the act of 1865 the practice in that regard has been changed, and as the reason for the rule is changed, the rule itself must he understood to be changed also. It is not perceived there is any force in the reasoning on this branch of the case. The act of 1865, which authorizes the court, in suits in equity directing a decree of foreclosure, to render a decree for any balance that may be found due complainant after the sale of the mortgaged premises, and award execution therefor, only authorizes that to be done in the chancery suit which before could only have been done in an action at law. But there is nothing in this statute that makes it imperative there shall be but one action. The mortgagee may now, as before the passage of that act, bring his action at law for any balance that may be due him after the sale of the mortgaged premises, or he may in the first instance sue at law on his note, and proceed to foreclose the mortgage in equity at the same time. Sustaining this view of the law is Erickson v. Rafferty, 79 Ill. 209.

It was entirely competent for another judge of the same circuit, presiding at the same term of court, to permit the amendment of the decree so as to show the exact sum due complainant. It would have conformed more nearly to correct practice, perhaps, had notice been given to defendants, but as the amendment allowed was in their favor by lessening the amount of the decree, they were * in no manner prejudiced by the action of the court, and there is no just ground for complaint on that score.

It is not perceived the amount of the decree exceeds the sum due complainant. It is admitted the judgment at law was for $8512.78. Interest on that sum from November 19, 1879, the date of the judgment,, to May 6, 1880, the date of the decree, at the rate of six per cent per annum, added to the principal makes the sum found due by the" decree. The finding of the amount due by the master in his report may have been correct in February, when the computation was made by him, but that sum did not represent the true amount due May 6, 1880, when the decree was pronounced. The true rule for ascertaining the sum due was by calculating the interest on the judgment at law, as was done.

As we have seen, the making of the note, as charged in the bill, was admitted in the answer of defendants, and that a vendor’s lien was reserved in the deed to defendants to secure the same. That admission obviated all necessity for introducing as evidence at the hearing of the cause the deed containing the reservation of the vendor’s lien for the purchase money of the premises conveyed. It was wholly unnecessary to prove that which was solemnly admitted in the answer of defendants under the sanction of their oaths.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


text:
    William Campbell et al. v. Milton Trotter.

      Filed at Springfield September 30, 1881.

      Mortgage—satisfaction, when set aside and original rights restored. Where a mortgagee, for the purpose of extending the time of payment, took new notes secured by a new mortgage on the same land, giving up the old notes, and entering satisfaction of the old mortgage, in ignorance of the fact that the mortgagor had, only a day or two before, given another mortgage to a third person, which was on record at the time, it was held, that in equity his lien on the land wa-s not made subordinate to that of the intervening- mortgage, but the court, on bill, would reinstate his prior hen; and the fact that the new notes were, by mistake in calculation, taken for more than was due on the old ones, would not prevent such relief, nor would the fact that by the new notes interest was obtained on interest already due.
    Appeal from the Appellate Court for the Third District;—' heard in that court on appeal from the Circuit Court of Cass county; the Hon. Albert G. Burr, Judge, presiding.

      Messrs. Pollaed & Phillips, for the appellants:
    In determining whether the lien of the old mortgage was extinguished, two questions are to be considered: «first, was it the intention of Trotter, at the time, to release the old mortgage and rely upon the security of the new one; and, second, did he gain a substantial advantage by the new mortgage that he would not have enjoyed under the old.
    The intention is the controlling consideration, and the court will look into all the circumstances of the case to ascertain his real intentions. If the party intends to discharge the incumbrance, and does so, he will be bound by the act. Campbell v. Garter, 14 Ill. 286; Holman v. Bailey, 3 Metc. 55.

    The subsequent cases of Richardson v. Hockenhull, 85 Ill. 124, Young v. Morgan, 89 id. 199, Ætna Life Ins. Co. v. Corn et al. 89 id. 170, Rogers v. Herron, 92 id. 583, Meacham v. Steele, 93 id. 135, and one or two others, were all cáses in which the mortgagee took a mere release of the equity of redemption in satisfaction of the mortgage debt, to prevent the trouble and expense of a foreclosure, and on the authority of Campbell v. Carter it was held that the mortgages were not discharged. See, also, Shaver v. Williams, 87 Ill. 469.
    Messrs. Cbea & Ewing, for the appellee, made the following among other points:
    1. Appellee, in taking a new mortgage, did not intend to release his first lien on the land for the balance of the purchase money. It was his intention to preserve the evidence of the lien, which had been indicated by the old mortgage from the time of the sale of the land by appellee.
    The intention of appellee, it is plain, was simply that the new mortgage should take the place of the old one as evidence of a first lien on the farm for balance of purchase money. The debt was never cancelled. There was no intention to release or cancel the debt. That remained in full force.

      ' If appellee did not intend to abandon his first lien on the land, then he is entitled to the relief awarded in the decree. As to this question of intention, see Campbell v. Carter, 14 Ill. 286; Richardson v. Hockenhull, 85 id. 124; Shaver v. Williams, 87 id. 469; Young v. Morgan, 89 id. 199; Ætna Life Ins. Co. v. Corn, 89 id. 170; Meacham v. Steele, 93 id. 195.
    2. Appellee gained no advantage by the new mortgage that he did not have under the old one.
    If the new notes contained more than lawful interest by design, the appellee- gained no advantage, as he was placed in a- position to lose all interest. If the excess above the sum due was from a miscalculation, its payment could not have been enforced."
    3. Appellee had what was the equivalent of a vendor’s lien for purchase money, and Campbell had notice of it. There is, therefore, no equitable ground upon which he can ask the aid of the court to advance his claim so as to take precedence "of the claim for purchase money.
    4. . Relief will be given when a mortgage is released through fraud or mistake. 2 Jones on Mortgages, pp. 61-66.
   Mr. Justice Sheldon

delivered the opinion of the Court:

On March 19, 1869, Trotter sold and conveyed to Wright a farm of about 350 acres of land, in Cass county, for the price of $21,000, of which $6000 was paid in cash, and for the residue Wright gave his six promissory notes to Trotter, and secured their payment by a mortgage back on the land, which mortgage was recorded on the same day. The notes were payable at intervals of one year,—the last on the second day of April, 1875,—with interest at eight per cent per annum until due, and ten per cent per annum after maturity, the interest payable annually. In August, 1877, there having been only two of the six notes paid, and a considerable amount of accrued interest being due and unpaid, it was agreed between Trotter and Wright that the latter should have four years extension of time of payment, on executing new notes and a new mortgage. One Black, acting for both parties, made a computation of the amount of principal and interest then due on the unpaid notes. For the amount found due on such-computation, being $11,895; "Wright, on August 30, 1877, made to Trotter four notes, one for $2895, the others for $3000 each, payable, respectively, one, two, three and four years after date, with ten per cent per annum interest, payable annually. To secure the payment of the notes, Wright executed a new mortgage on the land sold to him by Trotter, which was recorded August 31, 1877. On receiving the new notes and mortgage, Trotter surrendered the old notes to Wright, and released the old mortgage of record. Intermediate the making of these two mortgages, and on August 28, 1877, Wright executed to one Campbell a mortgage on this same land, to secure the payment of three promissory notes from Wright to Campbell, for $8400, which mortgage was recorded on the same day it was made. After-wards, Trotter, upon discovery of the fact of this mortgage from Wright to Campbell, filed his bill, on May 10, 1878, against Wright and Campbell, for the reinstatement, as against Campbell, óf Trotter’s first mortgage of March 19, 1869. The circuit court granted the relief asked, decreeing that Trotter had a first charge and lien on the land for the unpaid part of the purchase money therefor, as evidenced by the four old unpaid notes of March 19, 1869, which were surrendered up on August 30, 1877, with continuing interest thereon, according to the terms of said notes. The decree was affirmed by the Appellate Court for the Third District, and Campbell and Wright appeal to this court.

Campbell took his mortgage with knowledge of Trotter’s first mortgage of March 19, 1869, and as a second mortgage subordinate to Trotter’s, and it should be held subordinate to that mortgage. There has nothing occurred since which, in equity, should displace its priority. The taking the new mortgage of August 30, 1877, and entering satisfaction of the first mortgage, was, as designed by the parties, but in continuation of the lien of the first mortgage. The whole purpose was only an extension of the time of payment. The transaction was entirely irrespective of Campbell. No consideration moved from him. It was vfith no reference to his benefit, and should not be made to redound thereto by the advancement of his mortgage to a priority over the lien of Trotter for the unpaid portion of the purchase money for this land he sold to Wright. The entry of satisfaction of the first mortgage and surrender of the first notes was but a formality, as regarding any essential right of the parties; but it gives to Campbell’s mortgage an inequitable advantage which it ought not to enjoy. It was through ignorance, in fact, of the existence of Campbell’s mortgage, that Trotter entered satisfaction of the first mortgage and surrendered the notes, and which he would not have done had he known of Campbell’s mortgage. This, Trotter testifies to, and the nature of the transaction itself would satisfy one that such must have been the case.

But as the new notes and mortgage appear to be, in amount, some $1400 in excess of the amount due on the .old notes and mortgage, it is insisted that the giving of another mortgage, with an extension of time, was not the only consideration of the entry of satisfaction of the first mortgage, but that such excess of amount in the new notes and mortgage was an additional substantial advantage which Trotter acquired, so as to bring the case within that of Campbell v. Carter, 14 Ill. 286, and on such ground hold Trotter to the entry of satisfaction which he made. If there be such excess in the new notes and mortgage as claimed, the evidence shows it to have come through mistake in computation, and not from agreement or intention of the parties, and Trotter will not be entitled to the "benefit thereof.

It is claimed, as a further additional advantage gained, that by the new notes and mortgage Trotter got interest on the accrued interest on the old ones. This was no more than he was entitled to, as he was entitled to have payment made of the accrued interest, and a suit and judgment therefor would have given the same result as respects interest.

We do not regard the present case as at all brought within that of Campbell v. Carter, and governed by the decision therein. The decree we deem right, and it is affirmed.

Decree affirmed.


author: Mr. Justice Scholfield

text:
    The People ex rel. Joseph Ream, Collector, v. R. Dragstran et al.

      Filed at Springfield September 30, 1881.

    1. Taxes—jurisdiction of application for judgment. The making and filing the delinquent list containing a description of the property against which judgment is sought for taxes, and the publication of notice of the application, are essential to give the court jurisdiction to render judgment.
    2. Same—jurisdiction depending on description of land. Where land is described in the collector’s delinquent list, and in the notice of the application for judgment for taxes due thereon, as the north half of the north-east quarter of section 1, giving no township and range, the court will have no jurisdiction, on account of the defective description, and any judgment for the taxes, even on a personal appearance of the owner, will be a nullity.
    3. Same—waiver of defects in notice by appearance. The land owner, by entering his appearance and urging general objections against the rendition of judgment for taxes, waives the right to object to the sufficiency of the notice of the application.
    4. Same—appearance does not make proceeding in personam. The appearance of the tax-payer on an application for judgment against his land for taxes, and defending on the merits, does not change the proceeding to one in personam. It is still a proceeding m rem against specific property, and no personal judgment can be rendered. If tire property is not described so that it can be found, there will be no error in refusing judgment against the same.

      5. Practice—judgment—when erroneous, without objection or exception. Where the error in a proceeding against land for taxes due thereon is in the record itself, being a void description therein, so that a judgment against the land is a nullity, error may be assigned on the judgment, although no objection was made or exception taken in the county court.
    Appeal from the County Court of Logan county; the Hon. Stephen H. Foley, Judge, presiding.
    Messrs. Scholes & Mather, for the appellant:
    It is contended that the application should have been made at the May term of the county court, and that application at any subsequent term was unauthorized. That such is not the law, see sec. 185 of the Revenue act, and Beers et al. v. People ex rel. 83 Ill. 490.
    It is also insisted that because of the continuance of the application beyond the day of sale named in the collector’s notice, the application was discontinued. This objection is answered by sec. 193, Revenue act, Sess. Laws, 1879, p. 249.
    The appearance of the party cured all defects, if any, in the notice. People ex rel. v. Sherman, 83 Ill. 165.
    The objection that the collector’s delinquent list did not set forth the valuation upon which the special tax was extended, as required by sec. 188 of the Revenue act, should have been made in the court below, so as to have afforded an opportunity to obviate the same by amendment. Walsh v. People, 79 Ill. 521; Law et al. v. People ex rel. 87 id. 385.
    We think, also, that this omission is cured by sec. 191 of the Revenue law. This court has frequently construed this provision as curing all irregularities, defects and omissions. Thatcher v. People, 79 Ill. 597; Hale v. People ex rel. 87 id. 72.
    Mr. J. T. Hoblitt, and Messrs. Season & Blinn, for the appellees,
    contended that the judgment below, refusing to render judgment, should be affirmed for the following reasons:
    1. Because said application was made at the September term of the county court, and not at the May term, as required by sec. 185, chap. 120, Underwood’s Stat. of 1878; Leindecker v. The People ex rel. 98 Ill. 21.
    2. Because the collector, in giving notice that he would sell on Monday, September 27, 1880, any property against which judgment and order of sale should be made, rendered it impossible for the court, under the statute, to render a valid judgment and order of sale. Sections 182, 185, 191, chap. 120, Underwood’s Stat. of 1878.
    3. Because the collector, in his delinquent list and application for judgment, did not set forth the proper description of the land or lot, the year or years for which the alleged tax was due, and the valuation on which the tax was extended, as required by law. See sec. 188, p. 188, laws of 1879; Pickett v. Hartsock, 15 Ill. 279; Morgan v. Camp, 16 id. 176; Morrill v. Swartz, 39 id. 108; Fox v. Turtle, 55 id. 377.
    4. Because no judgment for taxes could be rendered in the absence of definite and certain descriptions of lands against which judgment was ' sought, in the delinquent list and application for judgment. Olcott et al. v. The State, 5 Gilm. 481; Hughes v. Streeter, 24 Ill. 650; Meyer v. Pfeifer, 50 id. 485; People ex rel. v. Chicago and Alton Railroad Co. 96 id. 369; Burroughs on Taxation, pp. 205, 208; Cooley on Taxation, pp. 282, 286.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This is an appeal from a judgment of the county court of Logan county against the People, on an application by the county treasurer of that county, for judgment against the lands of the appellees for the payment of a delinquent special tax.

We shall notice but one of the several objections urged against the application.

In the delinquent list filed in the county court by the collector, and in the notice published by him of his intention to apply for judgment, the delinquent lands are thus described :

Section 188 of the Revenue act of 1872, as amended by the act in force July 1, 1879, requires that the delinquent list shall, among other things, set forth the description of the land or lot against which the delinquent tax is charged ; and section 182 of the Revenue act of 1872 requires that such delinquent list shall be published, etc.- The judgment to be rendered “shall be considered as a several judgment -against each tract or; lot, or part of tract or lot, for each kind of tax or special assessment included therein; ” and the court is required to “direct the clerk to make out and enter an order for the sale of such real property against which judgment is given, ” etc. Rev. Stat. 1874, p. 889, sec. 191.

The making and filing the delinquent list, and the publication of notice, are essential to give the court jurisdiction. Spellman v. Curtenius, 12 Ill. 409; Pickett v. Hartsock, 15 id. 279; Morgan v. Camp, 16 id. 175; Morrill v. Swartz, 39 id. 108.

It may, however, be said, and so we have heretofore decided, that the appellees, by entering their appearance and urging general objections, waived the right to object to the sufficiency of the notice. (The People ex rel. v. Sherman, 83 Ill. 165.) Yet this does not change the proceeding to one in personam. It is still a proceeding in rem against specific property, and no personal judgment can be rendered. But how can a judgment be rendered against specific property unless the property itself is pointed out? We are aware of no way.

It may be that, under the statute, the error of failing to describe the property against which judgment was sought was amendable, but upon this we express no opinion at present, for it is sufficient it was not amended, and no leave was asked and denied to make such amendment. Suppose the court had proceeded to render judgment, who could have found the land affected by it ? It would have been in some section one, in Logan county; but we must take notice there are several sections one in that county, and there is not a thing in the record to show which was intended. We can not, therefore, on this ground alone, say the court erred in refusing a judgment. If it should be conceded that if the court had entered judgment, as asked, appellees would have had no ground to complain of it, because it would not have injured or affected them, nevertheless the collector can base no claim on that ground to have the judgment entered. He is in nowise prejudiced by the refusal to give a judgment which could never have been enforced. The defect here is in the record itself, and shows that if the judgment had been rendered it must have been a nullity, and, therefore, error might have been assigned on it, although no objection against it had been urged, or exceptions taken in the county court.

The judgment must be affirmed.

Judgment affirmed.