author: Mr. Justice Scholfield

text:
    James M. Fitzgerald v. Ellen Fitzgerald et al.

      Filed at Springfield September 30, 1881.

    1. Deed-—impeaching and overcoming certificate of acknowledgment. To impeach the certificate of the acknowledgment of a deed, the proof must show a conspiracy between the officer taking the acknowledgment and the grantee, or that the officer practiced imposition or fraud upon the grantor, and the testimony of the grantor alone is not sufficient to overcome the certificate and the officer’s testimony in support of the same.
    2. As between the immediate parties to the deed, the acknowledgment may be impeached for fraud, collusion or imposition, but not otherwise;-— and the evidence to warrant the setting aside of a deed upon the ground that the acknowledgment was obtained through fraud, collusion or imposition, must, by its completeness and reliable character, fully and clearly satisfy the court that the certificate is untrue and fraudulent.
    Writ oe Error to the Circuit Court of Sangamon county; the Hon. Charles S. Zane, Judge, presiding.
    Messrs. Stuart, Edwards & Brown, and Mr. John C. Snigg, for the plaintiff in error:
    The unsupported testimony of a party to a deed that he did not execute it, can not prevail over the official certificate of the officer taking the acknowledgment. Kerr v. Russell, 69 Ill. 669; Lickmon v. Harding, 65 id. 505; Monroe v. Poorman et al. 62 id. 527; Marston et al. v. Brittenham, 66 id. 614.

      .Messrs. Bobinson, Knapp & Shutt, for the defendants in error.
   Mr. Justice Scholfield

delivered the opinion of the Court:

Bill was filed in the circuit court of Sangamon county, by Ellen Fitzgerald and Mary Fitzgerald, against James M. Fitzgerald, in which it is alleged that complainants are sisters of the defendant; that on the 4th of December, 1869, he conveyed to them a life interest in lots 1 and 2, in block 9, in E. lies’ addition to the city of Springfield, for the consideration of one dollar and natural love and affection; that on the 14th of May, 1875, the defendant, through misrepresentation, circumvention and fraud, obtained their signatures to a quitclaim deed, purporting to have been executed by them to him for said lots; and praying that such deed be can-celled, etc.

James M. Fitzgerald answered the bill, admitting the conveyance by him to the complainants of the life interest in the lots, as alleged in the bill, but alleging that he paid the sum of $2500 of his own money for the lots; that the deed by him to the complainants was in trust, and the property, by the agreement of the complainants, was to be re-conveyed by them to him whenever he should request them so to do; and that he did, on said 14th of May, 1875, request them to reconvey said property to him, and they did thereupon do so. He denies that the reconveyance was procured by misrepresentation, circumvention or fraud, as alleged, but alleges that the same was voluntarily executed, and with full knowledge of the contents of the instrument of conveyance.

The cause was referred to a master in chancery to take and report the proofs, all of which are preserved in the record. The circuit court decreed in conformity with the prayer of the bill, and the record is brought here by writ of error sued out by the defendant below.

The evidence shows that plaintiff and defendants in error, and also their mother, lived together as a family for some time anterior to the making of the deed by plaintiff in error to defendants in error, and thence until after the making of the deed reconveying' the property by defendants in error to plaintiff in error, and the evidence, both on behalf of plaintiff in error and defendants in error, shows that defendants in error affixed their signatures to the last named deed, but they claim they did so not knowing what they were signing, being misled in that regard by plaintiff in error. The acknowledgment is in the form prescribed by the statute, and is duly certified to by S. B. Brock, a justice of the peace, and the question is, whether the evidence on behalf of defendants in error is sufficient to overcome this certificate.

Because the contest here is between the grantors and grantee in the deed,, it seems to be thought by counsel for defendants in error that the previous decisions of this court upon the question of contradicting the certificate of acknowledgment are without relevancy. This is a misapprehension. In Kerr v. Russell, 69 Ill. 666, where there was a contest between the widow and subsequent grantees of the fee in regard to the certificate of acknowledgment in respect of her relinquishment of dower, we said: “On general principles, a purchaser for value, without notice of any adverse claim or secret equities, can not be disturbed, and we see no reason why the rule should not apply in kindred cases.” And it seems elsewhere it has been held, in favor of purchasers for a valuable consideration without notice, the certificate of acknowledgment is conclusive as to all matters which it is the duty of the acknowledging officer to certify, if he has jurisdiction. Note to Smith v. Ward, 1 Am. Decisions, 81; Wharton on Evidence, sec. 1052; Williams v. Baker, 71 Pa. St. 476; Hall v. Patterson, 51 id. 289; Miller v. Wentworth, 82 id. 280; Ridgeley v. Howard, 3 Harr. & McHenry, 321.

But as between the immediate parties to the deed, the acknowledgment may be impeached for fraud, collusion or imposition, but not otherwise; and the evidence, to warrant the cancellation or setting aside of a deed upon the ground that the acknowledgment was obtained through fraud, collusion or imposition, must, as we have held, “by its completeness and reliable character, fully and clearly satisfy the court that the certificate is untrue and fraudulent. ” Marston v. Brittenham, 76 Ill. 614. And in Lickmon, etc. v. Harding, 65 Ill. 505, we held, in the absence of proof of fraud and collusion on the part of the officers taking and certifying the acknowledgment of a deed, the officer’s certificate, in proper form, must prevail over the unsupported testimony of the party grantor that the same was false and forged. To a like effect are, also, Graham v. Anderson, 42 Ill. 514; Monroe v. Poorman et al. 62 id. 523. And see, also, Borland v. Walrath, 33 Iowa, 130; Vanorman v. McGregor, 23 id. 300; Hortienne v. Schnoor, 33 Mich. 274; Howland v. Blake, (7 Otto) 97 U. S. 624.

There is not the slightest evidence in this record tending to impeach the certificate of acknowledgment, except the testimony of the defendants in error,—the grantors in the deed. They and plaintiff in error, as has been shown, were at the time residing together as a family, and they say that he represented that the deed was a “tax paper, ” and they signed it under that belief. They both can read and write, and, we must presume, are ordinarily intelligent. They say that when they signed the deed plaintiff in error kept a newspaper over the writing so they could not read it, and hurried them up by urging that he was anxious to be off so that he would be in time for the street car. This can hardly be regarded as a satisfactory excuse. It would seem that interest in the property, if not curiosity alone, would have prompted inquiry as to the character of the tax paper they were required to sign, and that the act of concealing the writing, being observed, as they say it was, should have excited suspicion and put them upon their guard. Any reflection must have satisfied them they were in some way to be affected by the paper, and if means were used to prevent their ascertaining its contents, they ought to have known it was because - it was supposed if they knew its contents they would not sign the paper. They do not pretend they asked a word of explanation.

It is, moreover, a circumstance tending to discredit the good faith of defendants in error that they did not file their bill or make an effort to get the property back until after more than two years had elapsed from the time they admit they knew they had signed a deed. They a'dmit they knew about a month after they signed the deed, that it was a deed; but the bill was not filed until the 21st of September, 1877, and during- all this intervening time they continued to reside with plaintiff in error, making no effort to have the property reconveyed to them, and, so far as appears, not complaining of his conduct.

Plaintiff in error, cin his testimony, directly and positively contradicts that of defendants in error. He says he told them it was a deed, and why he wished them to sign it, and he explains their readiness to sign it by the fact that they held the property only in trust for him, having contributed nothing, at any time, for its purchase or improvement, and he says they signed the • deed knowingly, freely and voluntarily.

There is no proof tending to show a conspiracy between the officer taking the acknowledgment and plaintiff in error, or that the officer practiced imposition or fraud upon defendants in error. His certificate shows that defendants in error knew what they were signing, and that they freely and voluntarily signed and acknowledged the deed. His evidence, taken orally, corroborates this.

The certificate, under the rule referred to, has not been successfully impeached.

It would be á most dangerous rule indeed, and one which we can never consent to tolerate, to hold that every grantee in a deed, even as between himself and his grantor, is bound, at all times, to be able to prove, by evidence other than his own oath, the truth of the certificate of acknowledgment, if only his grantor shall give testimony contradicting it. Such a rule, by the temptation it would offer to reckless and unscrupulous cupidity, would necessarily greatly weaken faith in all titles by deed. It would, in effect, be a continued invitation to perjury, and could not be otherwise than productive of very great and general harm, while only in rare and exceptional cases would it be promotive of the ends of justice. '

The decree is reversed, and the cause remanded, with directions to the circuit court to enter a decree dismissing the bill of defendants in error.

7 Decree reversed.


source: Caselaw Access Project

author: Mr. Justice Mulkey

license: Public Domain

text:
    Andrew J. Richards v. The People of the State of Illinois.

      Filed at Springfield September 30, 1881.

    1. Practice—appeal—reviewing controverted questions of fact. In a suit to recover a penalty for obstructing an alleged highway, depending upon the question of fact whether land at the place obstructed had been dedicated for a public road, this court, on appeal or error, is concluded by the finding of facts by the Appellate Court, and can only review questions of law properly preserved in the record.
    2. Same—allowing security for costs after motion to dismiss. There is no error in allowing a plaintiff in an action upon a penal statute to file security for costs after a motion to dismiss the suit for want of such security.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Cass county; the Hon. Cyrus Epler, Judge, presiding.

      Mr. James M. Epler, for the appellant.
    Mr. Richard W. Mills, for the People.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This was an action originally brought before a justice of the peace, against appellant, to recover a penalty imposed by the statute for the obstruction of an alleged highway. There was a recovery before the justice, the fine being fixed at five dollars. The defendant thereupon appealed to the circuit court, where the case was tried again, resulting in the same way. Appellant being still dissatisfied with the conclusions reached on the other trials, appealed to the Appellate Court for the Third District, where the judgment of the circuit court was affirmed, and he now brings the case here for review.

On the trial in the circuit court the whole controversy was confined to the single inquiry whether Harvey Richards, the ancestor of appellant, and through whom the latter claims, in in his lifetime, as a matter of fact dedicated the land over which the road in question runs, to the public, for the purposes of a highway. Appellees alleged that he did, and this was distinctly denied by the appellant, and to the issue thus formed the whole of the testimony offered on either side was directed. Both the lower courts have found this issue adversely to appellant, and the judgment of the Appellate Court upon it must be accepted as final and conclusive of the question. This court is expressly inhibited by the statute from considering it. It has been repeatedly adjudged, in cases like the one before us, this court can only review questions of law which have been preserved in some appropriate manner upon the record.

Previous to the trial in the circuit court, and while the cause was there pending, appellant entered a motion to dismiss the suit, for the reason no cost bond had been filed by appellees previous to its commencement. Appellees thereupon filed a cross-motion for leave to then file such bond. The court allowed the cross-motion, and overruled the motion to dismiss, and this is assigned for error. We are of opinion the court was clearly right in its ruling upon these motions, and hence the alleged error is not well assigned. See sections 1 and 3 of chapter 33, and section 16 of chapter 79, of Hurd’s Statutes of 1877, pages 295, 610.

It is also urged that the circuit court erred in the admission and exclusion of testimony. This assignment of error is wholly abandoned on the argument, and we see nothing in the record to warrant us in the conclusion that it has any foundation in fact.

These are the only errors of law complained of which are of sufficient importance to demand serious consideration at our hands. The rulings of the court seem to have been strictly correct upon all the questions presented by the assignment of errors, which we are permitted to review.

Judgment affirmed.


author: Mr. Justice Scott

text:
    Edward Rutz et al. v. W. F. Calhoun et al.

      Filed at Springfield September 30, 1881.

      1. Taxes—to pay illegal municipal bonds, may be enjoined. Where bonds have been issued by a township to a railroad company, under a vote at an election held without authority of law, neither the State nor the local officers have authority to cause a tax to be levied for the payment of the principal or interest of such bonds, and they may be enjoined from attempting to do so.
    2. Assignment of eeboe—by whom—as to refunding taxes. Where a tax is levied without legal authority, the State and county officers concerned in its collection, against whom no costs are awarded, can not assign for error that part of the decree requiring the repayment of the taxes to those who paid them, as such officers have no interest in that question.
    Wbit of Ebbob to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of DeWitt county; the Hon. Lyman Lacey, Judge, presiding.
    Mr. Geobge W. Gebe, for the plaintiffs in error:
    The fund collected was, by operation of law, pledged and appropriated to the payment of the interest, and by the act of payment of taxes became and was so pledged and appropriated.
    “Every man is supposed to know the law, and if he voluntarily makes a payment which the law would not compel him to make, he can not afterwards assign his ignorance of the law as the reason why the State should furnish him with legal remedies to recover it back. ” Cooley on Taxation, 567.
    That a tax voluntarily paid can not be recovered back has been held by the authorities, with very few exceptions. Cooley on Taxation, 566; Smith v. Readfield, 27 Me. 145; New York, etc. R. R. Co. v. Marsh, 12 N. Y. 308; Walker v. St. Louis, 15 Mo. 563; Christy's Admrs. v. St. Louis, 20 id. 143; Hospital v. Philadelphia Co. 24 Pa. St. 229; Phillips v. Jefferson Co. 5 Kan. 412; Wabaunsee Co. v. Walker, 8 id. 431; Corkle v. Maxwell, 3 Blatchf. 413; Elliott v. Swartwout, 10 Pet. 137; Elston v. City of Chicago, 40 Ill. 514.
    “It is immaterial in such a case that the tax was illegally laid, or even that the law under which it was laid was unconstitutional. ” Cooley on Taxation, 566, and note 3; Town of Lingonier v. Ackerman, 46 Ind. 552.
    A voluntary payment of money under a mistake of law lays no foundation for an action to recover it back. Burroughs on Taxation, 266.

      Messrs. Tipton & Ryan, for the defendants in error:
    The bonds and coupons were issued by the officers of the town pursuant to an election held July 1, 1866, while the charter of the company (Indianapolis, Bloomington and Western) did not become a law until February 28, 1867. There being no law authorizing the holding of the election at the time it was held, and the issue of bonds at the time, the election was without authority of law, and consequently the bonds were issued without authority of law, and are void. Elmwood v. Marcey, 2 Otto, 289; Marshall v. Silliman, 61 Ill. 218; Wiley et al. v. Silliman et al. 62 id. 170; Hewitt v. Normal School District, 94 id. 531; Williams v. Town of Roberts, 88 id. 11; Barnes v. Town of Lacon, 84 id. 461.
    The rule is, that a municipality must have legislative authority to subscribe to a public enterprise before its officers can bind the body politic to the payment of bonds purporting to be issued on the part of the municipality. McClure v. Town of Oxford, 4 Otto, 429.
    There was an utter want of power in the officers of the town to issue these bonds. Williams v. Town of Roberts, 88 Ill. 11, and the Silliman cases, supra.

    The bonds and coupons were not validated by the attempted curative act in the charter of the railroad company. Private Laws, 1867, vol. 2, p. 758; Marshall v. Silliman, 61 Ill. 218; Wiley v. Silliman, 62 id. 174.
    The legislature can not create a debt against a municipal corporation without its consent as to the town and tax-payers. The curative act was void. Wiley v. Silliman, 62 Ill. 170; Barnes v. The Town of Lacon, 84 id. 461.
    Bonds issued without power or authority in law authorizing them to be issued are absolutely void. Ryan v. Lynch, 68 Ill. 160; Barnes v. Town of Lacon, 84 id. 461.
    The bonds being absolutely void, can not be enforced in the hands of the original owners or purchasers for value. McClure v. Town of Oxford, 4 Otto, 429; Barnes v. Lacon, 84 Ill. 461.
   Mr. Justice Scott

delivered the opinion of the Court:

The bill in this case was brought by certain tax-payers and residents of the town of Santa Anna, and sets forth that the Auditor of Public Accounts, and the county authorities of DeWitt county, in which the town of Santa Anna is situated, have annually caused taxes to be levied and collected on the taxable property of the town, to pay interest falling due on bonds issued by the town in payment of a subscription made to the capital stock of the Danville, Urbana, Bloomington and Pekin Railroad Company. The subscription to the capital stock of the railroad company was voted at a town meeting held by the voters of the town, at a time when, it is alleged, there was no law that authorized the voters to hold an election to make such a subscription, and that for want of such authority the bonds afterwards issued in payment of such subscription are absolutely null and void. It seems that for the year 1876 a tax, in the aggregate of $5500, was levied on the taxable property of the town for the payment of the interest on the bonds of the town. It is alleged a part of this tax had been collected and was in the hands of the State Treasurer; that another part was collected, but was in the hands of the treasurer of DeWitt county, and that the residue was uncollected. The prayer of the bill was for an injunction restraining the State Treasurer from paying the bonds or interest, and the county treasurer and town treasurer from paying over money in their hands to the State Treasurer, and from making any further collection of such taxes; that the State Treasurer and other officers be required to pay over the money in their hands to the corporate authorities of the town of Santa Anna, or to persons having paid the same, and that the bonds and coupons be brought into court and cancelled. The bill was dismissed as to the Indianapolis, Bloomington and Western Railroad Company, and as to unknown owners of the bonds, and afterwards a decree pro confesso was rendered by the court, conforming substantially with the prayer of the bill, and it appears from a supplemental order the. original decree was performed by the State and local officers against whom it was rendered, except that part of the decree that directs the repayment of the taxes to the persons from whom they were collected. The case was heard in the Appellate Court on a writ of error sued out by Edward Butz, State Treasurer, and J. C. Smith, his successor in office, Thomas B. Needles, Auditor of Public Accounts, and William Gambrill, county treasurer of DeWitt county, where the decree of, the circuit court was affirmed. The same parties bring the case to this court, on error.

It is conceded by counsel for plaintiffs in error, that, for the purposes of the argument made in this court, the taxation out of which the fund in contention arose was illegal, and that previous to its payment it might have been successfully enjoined on the ground the tax was illegal. The point made, and the only one pressed on the attention of the court, is whether a person who has voluntarily paid an illegal tax can afterwards recover it back. That, it seems to us, is a question in which these plaintiffs in error have no interest, and whether the decree of the court that directed the repayment of the taxes collected was proper or not, does not concern them. No decree was rendered that in any manner affected them in that respect, nor was there any decree against them for costs, of which they could complain. As officers of the law they are enjoined from levying and collecting a tax conceded to be illegal, and of that these officers have no right to complain, nor, indeed, has any one else. On the hypothesis the bonds issued by the town to the railroad company were issued without authority of law, neither the State nor the local officers have authority to cause a tax to be levied for the payment of the principal or interest of such bonds, and they may be enjoined from attempting to do so. Welch v. Post, 99 Ill. 471.

Without determining whether this decree is warranted by law in every respect, it clearly contains nothing of which the present plaintiffs in error can complain, and the decree as to them will be affirmed.

Decree affirmed.


author: Mr. Justice Sheldon

text:
    William B. Hodge, Jr. v. John Linn.

      Filed at Springfield September 30, 1881.

      1. Election—irregularities in conducting are not fatal. Mere irregularities in conducting an election and counting the votes, not proceeding from any wrongful intent, which deprive no legal voter of his vote and do not change the result, will not vitiate the election, so as to justify the rejection of the entire poll of the town or precinct in which the irregularities occurred.
    2. The failure to number the ballots cast at an election, and to count the votes in the manner required by the statute, and to string the ballots on a thread or twine in the order of their reading, and the allowance of persons not judges or clerks of the election to assist in counting the votes, and the presence of persons in the room during the count not challengers or officers, where nothing appears to show any injurious effect, or that the votes were not truly counted, will not justify the court, on a contest of the election, to exclude.the entire poll and vote of a town as fraudulent and void. The rules prescribed by the statute in respect to these particulars are directory merely,— not jurisdictional or imperative.
    Appeal from the County Court of Colea county; the Hon. J. B. Cunningham, Judge, presiding.
    Messrs. Golden & Wilkin, and Mr. James A. Connolly, for the appellant:
    There is a difference in setting aside an election itself and thep returns of an election. Where the latter is done the election will stand, and the duty remains to ascertain from other evidence the true state of the vote. McCrary on Elections, sec. 368.
    Misconduct which does not amount to fraud, and by which no one is injured, does not vitiate the poll. Dobyns v. Wendon, 50 Ind. 298.
    There must be a fraudulent transaction, and a party injured thereby. People v. Cook, 8 N. Y. 67; Boileau's Case, 2 Pars. 503; Brightly’s Election Cases, 268.
    The rules prescribed by law for conducting an election are designed chiefly to afford an opportunity for the free and fair exercise of the elective franchise, to prevent illegal votes, and to ascertain with certainty the result. Such rules are directory, merely, not jurisdictional or imperative. Piatt v. The People, 29 Ill. 72; Knox County v. Davis, 63 id. 405; DuPage County v. Scott, 65 id. 360; People v. Cook, 8 N. Y. 67; Hardenburgh v. Farmers, etc. 2 Green, (N. Y.) 68; Day v. Kent, 1 Oregon, 123; Taylor v. Taylor, 20 Minn. 107; People v. Bates, 11 Mich. 362; McKinney v. O'Connor, 26 Texas, 5; Jones v. State, 1 Kan. 279; Gorham v. Campbell, 2 Cal. 135; Sprague v. Norway, 31 id. 173; Keller v. Chapman, 34 id. 635; People v. Shemerhorn, 19 Barb. 540; Juker v. Commonwealth, 20 Pa. St. 493; Carpenter case, 2 Pars. 540; Brightly’s Election Cases, 448, 449, 450.
    . The proceeding to contest an election is to all intents and purposes a' chancery proceeding, and subject to all the rules governing the same. Dale v. Irwin, 78 Ill. 170; Talkington v. Turner, 71 id. 234.
    This is a chancery proceeding, and to uphold the decree it must appear from the record that it is supported by the proofs. Kingery v. Berry, 94 Ill. 515.
    Messrs. Whitehead & Jones, and Mr. O. B. Ficklin, for the appellee:
    The rule in elections not governed by our statute is, that when the election is held by the proper authorities, under the forms of law, the return should not be thrown out when the contestant will go behind the returns and show how the vote was. In doing this the ballots govern. Kingery v. Berry, 94 Ill. 515; Beardstown et al. v. Virginia et al. 76 Ill. 34.
    The law holds the acts of the intruder void, both as regards the public and third persons. The People v. Cook, 14 Barb. 289, affirmed in the same case by the New York Court of Appeals, 8 N. Y. 67.
    Appellee insists that a count of the votes by Greenough, Devol and Black, with an entire abdication of authority by two of the judges and the regular clerks, for the time being, and questionable conduct of the other judge, amounts to no count at all, and binds nobody. It bound nobody any more than a town meeting would answer the purposes of a general election, and their action was absolutely void. Lippincott et al. v. Town of Pana, 92 Ill. 24.
    No certificate can cure this absolutely void act. The People ex rel. v. The Town of Santa Anna, 67 Ill. 57.
    This court had, on three occasions, recognized the numbering of the ballots at elections, and held that where ah unnumbered ballot was found enclosed in a numbered ballot, the numbered ballot should be counted and the unnumbered ballot should not, and enforced the statute requiring, where there was an excess of ballots in the box, that the unnumbered ballots should be first thrown aside to reduce the excess. Dale v. Irwin, 78 Ill. 170; Clark v. Robinson, 88 id. 498; Webster v. Gilmore, 91 id. 324.
    The ballots themselves, when no fraud is shown and the ballots appear to have been preserved, are the best evidence of how the voter voted, even superior to the recollection of the voter; but this can only he held where the ballot has been honestly numbered and preserved. Kingery v. Berry, 94 Ill. 515; Beardstown et al. v. Virginia et al. 76 id. 36; People v. Seaman, 5 Denio, 409; People v. Saxton, 22 N. Y. 509.
    Such irregularities as change the result or render it uncertain will render the election void. McCrary on Elections, sec. 200.

      In the case of The State v. Albin, 44 Mo. 346, where the question turned upon the omission of registration, purposely, it appeared by the registrar, and it was decided, that all votes not registered were illegal under the laws of Missouri.
    Whether a statute is mandatory depends on its language, and also upon its purpose as gathered from the act itself. It may be mandatory on account of the language of its enactment, and it is always mandatory when it' is remedial. We contend that the statute is mandatory from its language as well as its purpose, and we regard it .as having been frequently incidentally so treated by this court. Byler et al. v. Asher, 48 Ill. 101; The People ex rel. American Central Railway v. Ohio Grove Town, 21 id. 192.
    The Supreme Court of Missouri has on two occasions decided that the statute of that State requiring ballots to be numbered is mandatory, so that no vote not numbered shall he counted, though the language of that statute is, if possible, more peremptory than that of this State. West v. Ross, 53 Mo. 350; Ledbetter v. Hall, 62 id. 422.
    As is also the statute requiring registration, the court deciding that the vote of no unregistered person shall be counted. State v. Albin, 44 Mo. 346; Ziegler v. Chapman, 54 id. 502.
   Mr. Justice Sheldon

delivered the opinion of the Court:

At the general election, November 2, 1880, the appellant, William B. Hodge, Jr., was, by the board of canvassers, declared duly elected to the office of clerk of the circuit court of Clark county, a certificate of election issued to him accordingly, and he qualified and entered upon the discharge of the duties of the .office. Afterward, John Linn, the appellee, instituted a proceeding to contest the election, which resulted in a finding and judgment in favor of Linn, -from which this appeal is prosecuted'.

The petition of Linn alleges that he received 1904 votes, and Hodge 1864 votes, exclusive of the town of Marshall, which the answer of Hodge admits.

The court below “finds that the election returns of the town of Marshall, made for clerk of the circuit court of Clark county, at the election held on the 2d day of November, 1880, are fraudulent and void, ” and excludes the entire vote of that town in determining that Linn was elected, and then finds “that the number of votes received by said contestant, John Linn, at said election for said office, to be 1904, and. that the number of votes received by said William B. Hodge, Jr., at said election for said office, to be 1864,” showing a majority of forty for Linn, rejecting the vote of the town of Marshall. The poll book and certificate of the election officers in evidence, show that in the town of Marshall Hodge received 377 votes and Linn 268 votes, making of that vote a majority of 109 in favor of Hodge, and which would make in the whole vote, counting that of the town of Marshall, a majority of 69 in favor of Hodge. Hence the question in the case is, whether the court erred in finding that the returns from the town of Marshall were “fraudulent and void,” and rejecting the vote of that town.

The main ground of complaint, with regard to the returns from the town of Marshall, will appear from the following quotation from the brief of appellee’s counsel: “It is therefore insisted, that in failing to number the ballots, and in failing to draw them from the box and read them one'by one, and in failing to have them tallied from the call by the clerks as read, and to have them strung in the order in which they were read, the statute has been willfully and grossly violated in its essential and mandatory provisions. ”

The provision of the statute is, “the clerks of election shall enter the name of the voter and his number under the proper heading in the poll books, and the judges shall indorse on the back of the ticket offered the number corresponding with the number of the voter on the poll books, and shall immediately put the ticket into the ballot-box.” Rev. Stat. 1874, p. 439, sec. 55. This requirement of numbering the ballots was not obeyed, and none of the ballots were numbered. It does not appear that this was from any fraudulent purpose, or that any injurious effect has resulted. It happened in this wise: One of the judges of election stated that he had been informed by some judicial officer that the law as to numbering the ballot was unconstitutional, as violative of the secrecy of the ballot, and thereupon the judges of election assumed the prerogative to decide the law to be unconstitutional, and did not number the ballots. In this the judges of election disobeyed the statute.

But what is to be the effect? Appellee says it must be the rejection of the whole vote, because the requirement is mandatory. This would not be in accord with decisions of this court. The statute in regard to the registration of voters has much more . of .a mandatory character than this provision for numbering the ballots,—it requiring that there shall be a previous list, called “register,” of electors made, and that “no vote shall be received at any State election in this State if the name of the person offering to vote be not on the s.aid register, made on the Tuesday preceding the election,” unless certain prescribed proof of the right to vote shall be made. Rev. Stat. 1874, p. 470, sec. 141. And yet it was held, in Dale v. Irwin, 78 Ill. 185, and in Kuykendall v. Harker, 89 id. 126, that on the contest of an election the votes of unregistered persons, who had voted at the election without having been registered and without having furnished proof that they were entitled to vote, as required by the registry law, should not be rejected.

As to the manner of counting, the statute .provides, “and when the judges of election shall open and read the tickets, each clerk shall carefully mark down upon the tally-list the vote each candidate receives.” Rev. Stat. 1874, p. 459, sec. 57. This mode was not pursued strictly. In the first place, the ballots were emptied from the ballot-box by one of the judges, and then counted back to ascertain, as the statute requires, whether their number corresponded with the number of the names of voters on the poll lists. The number was found to be one, or, as some say, three short. The two kinds of tickets of the two national parties were counted out by the judges by tens, and placed in two separate piles, in layers of ten each, the tickets having been passed through the hands of three several persons to see that all was correct. The number of votes for the respective presidential electors was by the judges given to the clerks in round numbers, and by them entered on the tally sheet. This course was pursued down to the county ticket. When the vote for clerk of the circuit court was reached, the tickets were read one by one, the vote for each candidate being read, the tally being kept by H. Black, a challenger, and for part of the time by Mr. Christe, one of the judges, and the result given to the clerks in round numbers by the judges, which was entered by them on the tally sheets. The statute provision, that the ballots, after being read, shall be strung upon a strong thread or twine, in the order in which they have been read, (Rev. Stat. 1874, p. 459, sec. 59,) was not followed.

It is complained that unauthorized persons assisted in the count. Such persons as assisted were challengers, or those admitted as such. The statute provides that the judges of election shall allow at least one, and not more than two, legal voters of each party to the contest into the room where the election is held, to act as challengers, and that “such challengers may remain with the board of election until the votes are all canvassed and the result declared.” Rev. Stat. 1874, p. 460, sec. 64. Black and Greenough were not challengers in the room while the votes were being received, but after the polls were closed they were chosen by different parties to attend and witness the counting. They appear to have been recognized and received by the judges of election as challengers. We do not admit the propriety of receiving any aid from challengers, or of'the latter taking any part in the matter of counting the votes and declaring the result. This is a duty to be performed solely by the election board. Still, to receive the assistance of challengers would seem less objectionable than to admit that of others. It appears that there were in the room for a short time three or four other persons. They had no business there, and should not have been admitted, of course; but they interfered in no way, caused no disturbance or inconvenience whatever, and their presence was not objected to by any one,—no injurious effect is pretended.

Mr. Black, who appears to have been the most active in the tallying as the vote was read, was a friend and active supporter of Hodge, and in this lies the only reason for any apprehension that any peculiar injury might have been suffered by Linn from any irregularity in the ease. It appears that one of the judges, Christe, commenced tallying with Black, but afterward gave it up, because he could not keep along with the call of the vote, but that he then afterward kept watch over the tallying of Black, to see that it was correct. This was such a safeguard as to render it quite improbable that there could have been any fraudulent practice by Black, even if it had been purposed. But there was no reasonable ground of suspicion of such purpose, or of any fraudulent act. Fraud is not to be imputed from mere motive for its commission. There were two persons who did not understand the manner of Black’s tallying. One of the judges objected to the mode adopted of counting the vote, he preferring that it should be done by reading the tickets one by one from top to bottom, the reason which he appears' to have assigned being that such would be the quicker mode. This appears to be the extent of all objection that was made' at the time to the manner of the proceeding. No wrongful purpose or conduct appears, further than in the deviation from the directions of the statute. The evidence, from all who were present at the time, shows that there was no suspicion of anything of unfairness in the count, and that they believed it to have been fairly and correctly made. and declared. There is, from the evidence, no reasonable ground for belief that the votes were not truly counted as they were cast. The violations of law complained of are irregularities, not appearing to have been from any wrongful intent, or with any injurious éffect to appellee. There-was, "in our opinion, no state of case presented to the court below which authorized the finding that the returns from the town of Marshall were “fraudulent and void, ” and justified the exclusion of the vote of said town.

The decision, as it seems to us, must have proceeded upon the understanding that the provisions of the statute as to the mode and manner of conducting the details of an election are mandatory, so that their mere non-observance will vitiate the election. That is certainly not the doctrine of this court. In Piatt v. People, 29 Ill. 54, it was said: “A mere .irregularity in conducting an election which deprives no legal voter of his vote, and does not change the result, never has been held” to invalidate an election. The rules prescribed by the law for conducting an election are designed chiefly to afford an opportunity for the free and fair exercise of the elective franchise, to prevent illegal votes, and to ascertain with certainty the-result. Such rules are directory merely,—not jurisdictional or imperative.”

The violation of law in that case was in not • closing the polls at the hour of 5 o’clock P. M., as the statute required, but keeping and continuing them open after that hour. It was held not to invalidate the election. This case was followed in DuPage County v. The People, 65 Ill. 360, where the judges of election of a township took a recess of an hour at 12 o’clock and went home to dinner, the statute positively forbidding an adjournment. This was held to be no ground for rejecting the entire poll of the township. In addition to the previous case, Fry v. Booth, 19 Ohio St. 25, People v. Cook, 4 Selden, 67, were referred to as sustaining the decision.

The judgment will be reversed and the cause remanded.

Judgment reversed.

Mr. Justice Scholfield having been a voter at the poll' contested, took no part in the consideration or decision of this case.


author: Mr. Justice Walker

text:
    George W. Updike v. Mary W. Tompkins et al.

      Filed at Springfield September 30, 1881.

    1. Weed—construction—as speaking from what time. -As a general role a will is held to speak from the death of the testator, but this is otherwise where the language used repels the presumption, taking into consideration the entire instrument.
    2. Same—particular expressions must yield to general purpose. Particular expressions will-not control where the whole tenor or purpose of the will forbids a literal interpretation of the specific words. Wills, like contracts and other writings, must be construed according to the intent of the maker, and that must be ascertained from an examination of the instrument and all its provisions, without the aid of extraneous testimony.
    3. Same—construed as to cancellation of notes—whether embracing notes acquired after the making of the will. A will provides that in case the testatrix should survive her mother, the estate should descend and be distributed as in case of intestacy, and then contained this clause: “I hold a number of notes against my brother, George W. Updike,-—one of these notes is for $900, and I intend that one to be cancelled absolutely at my death, and given up to him. As to the others, if I survive mother, then at my death I want all the other notes cancelled and surrendered to George W. Updike, but if mother survives me, then George must pay the interest on the other notes until her death, and then the other notes are to be cancelled and surrendered to him, the said George; and.I will that said $900 note shall be given up as aforesaid, and I declare that said George W. Updike, in case I.survive my mother, shall inherit equally in all my estate with my other heirs, notwithstanding the cancelling and surrendering of the said notes, his full share therein. ” The testatrix did survive her mother. At the time of the death of the testatrix she held six notes upon her brother. The note for $900, spoken of in the will, had already been surrendered to the maker by the testatrix. There was but one of the remaining notes which she held at the date of the will, the others having been obtained afterwards. It was held, the testatrix intended to have only the notes held by her at the date of the will cancelled and surrendered, not those which she might acquire after that time.
    4. It was not the scheme of the will to provide a fund for the support of the mother of the testatrix, in case she should survive her daughter, from the interest to accrue upon notes, for in another clause of the will the mother was made the sole devisee of all the property in case of her survivorship. So it should not be understood from the clause which required the maker of the notes to pay the interest on “the other notes’’ to the mother in case she survived the testatrix, and upon her death “the other notes to be cancelled and surrendered” to the maker, that any other notes than those held by the testatrix at the date of the will were includSd.
    Appeal from the Appellate Court for • the Third District;— heard in that court on appeal from the Circuit Court of Tazewell county; the Hon. John Burns, Judge, presiding.
    Mr. N. W. Green, and Mr. Wm. Don Mads, for the appellant
    The principal question presented is, whether the will is to be construed as speaking from the date of its execution, or from the death of the testatrix.
    A will speaks from the death of the testator, and not from its date, unless its language, by “fair construction, indicates the contrary intention. 1 Redfield on Wills, 379, 380; 21 Conn. 550*, 616.
    Because of the words> “I hold a number of notes,” etc., appellees conclude that it refers to a period of time, viz: the date of the will, and not the fact of possession or ownership of notes, hence insist that only such notes 'as were in existence and held by testatrix at the date of the will were to be so cancelled and surrendered. Certainly such construction would be a strained and narrow one, and not admissible under the rule requiring the adoption of some unequivocal form of expression, having reference in terms to the date of the will. If the testatrix intended to restrict the operation of that clause in respect to the cancellation and surrender of notes to those only held at the date of the will, the clear and unequivocal form of expression would have been, “notes now held by me, and not those hereafter given me by my said brother; ” and had such been her intention, then, as to after acquired notes, a codicil to the will would have disclosed it; but the language, “I hold, ” is the mere general form of expression naturally keeping pace with the ambulatory character of the instrument, and just as applicable at the time of the decease of testatrix as at any antecedent period.The court, we'apprehend, will not so - construe the intention of testatrix, and if it is conceded that the mother (in case she survived the testatrix), was to have, as income, the interest of the notes of George W. Updike, taken by testatrix after the date of said will as well as those taken before, and if notes were so taken after the date of said will and before the death of said mother, and that no other notes are in controversy, then all those notes are, by the terms of said will, to be cancelled, and surrendered to appellant, and the decree below is erroneous, and should be reversed.
    Mr. William E. Hughes, and Mr. L. Dearbobn, for the appellees:
    Judge Redfield clearly recognizes the law, as laid down by an unbroken line of authorities, that while a general devise of property is presumed to take effect from death, that is not the rule in cases of specific devises of personal property. He says: “Specific gifts, whether of stock or other personal estate, have been'construed to have reference to the property of the testator then in existence, and if the testator dispose of the article described, either in whole or in part, and subsequently acquires more of the same description, the legacy will, nevertheless, fail as to all, except the portion not disposed of.” Redfield on Wills, p. 381, sec. 7; 1 Jarman on Wills, 593; Cochran v. Cochran, 14 Sim. 248; Slater v. Norton, 16 Ves. 197.
    When a testator expresses himself in the present tense, it must relate to what is in being at the time of making the will. Abney v. Miller, 2 Atkins, 593. See, also, Goodland v. Bwrnett, 5 Kay & J. 347; Rudstone v. Rudstone, 2 Ves. 418; Coppin v. Femyhough, 2 B. C. C. 291.
    When a testator refers to an actually existing state of things, the language will be referred to the date of the will, and not to his death, as this is then a prospective event. Gold v. Judson, 21 Conn. 616.
   Mr. Justice Walker

delivered the opinion of the Court:

Two clauses of the will of .Martha M. Updike are presented for construction by this record. The- third clause is this: “If I survive my mother, Mary A. Updike, it is my will that my estate, real and personal, shall descend and be distributed in the same manner as intestate estates descend and are distributed under the laws of -11110018.” And this is the fourth: “I hold a number of notes against my brother, George W. Updike,—one of these notes is for $900, and I intend that one to be cancelled absolutely at my death, and given up to him. As to the others, if I survive mother (Mary A. Updike), then at my death I want all the other notes cancelled and surrendered to George W. Updike, but if mother survives me, then George must pay the interest on the other notes until her death, and then the other notes are to be cancelled and surrendered to him, the said George; and I will that said $900 note shall be given up as aforesaid, and I declare that said George W. Updike, in case I survive my said mother, shall inherit equally in all my estate with my other heirs, notwithstanding the cancelling and surrendering of the said notes, his full share therein. ”

At the time of her death testatrix held six notes against George W., aggregating $2278.53. But the $900 note spoken of in the will had been surrendered to him before the death of testatrix, and she only held one note of $1000, dated July 1, 1876, given before the will was executed. The will bore date the 23d of September, of that year, and testatrix survived her mother, and died May 24, 1880,- and George W. qualified as executor of the will, and reported these notes, but claimed they were cancelled by the terms of the fourth clause of the will.

■ It is conceded that the $1000 note dated July 1,1876, was cancelled, but it is claimed that as the other five notes were not in existence when the will was written and executed, but were afterwards given, they are not embraced in the clause requiring a cancellation,—that such notes only as were then in existence were in the mind of testatrix, and that George W. is required by the law to pay and account for all of the notes except that for $1000. The circuit and Appellate courts took this view of the case, and it is brought by appeal from the latter court to this, and a reversal is urged on the ground that the Appellate Court adopted a wrong construction of the clause.

The general rule is, that a will is held to speak from the death of the testator. To this there is, however, the limitation, that when language is used which repels the presumption, it is otherwise, and in determining that question the entire will must be considered, with the specific language employed in the clause being construed, to find the true intent of the testator. Particular expressions will not control where the whole tenor or purpose of the instrument forbids a literal interpretation of the specific words. Wills, like deeds, contracts and enactments, must be construed according to the intent of the maker, and that must be ascertained from an examination of the instrument and all of its provisions, without the aid of extraneous testimony.

In this case the purpose of the testatrix is by no means clear and certain. The third clause seems to be free from ambiguity, but the difficulty arises in determining the true meaning of the fourth. Did testatrix intend to have both the notes she held at the time of making the will, and such as she might subsequently take from George W., cancelled and surrendered, or only the notes she then held ? The question now before us is one of first impression in this court. It has, however, been frequently before,, the courts of Great Britain, and has been determined by several courts in the States of the Union. From them is deduced the rule above stated. Of the correctness of the rule there seems to be no question, but the difficulty arises in its application to cases as they arise.

Testatrix speaks of notes she had when she executed the will, and there is no allusion to other notes she might after-wards hold against” George W. Updike. There is nothing in the will from which it may be inferred that she then supposed she would ever hold other notes on him. Had she supposed she would, it is but reasonable to believe she would have specifically disposed of them. We have no right to enter the domain of conjecture, but must be confined to the language employed. It can, according to the generally received meaning of words, only be applied to the notes she then held. The import of the language employed can only embrace notes then in existence. The fourth clause only embraces and provides specifically for the notes she then held.

The doctrine is firmly settled and uniform in its application, that where a specific article is bequeathed; its sale, loss or destruction can not be replaced by substituting another article, in its stead. It has been repeatedly held that where specific stocks are bequeathed, and are afterwards sold and another kind purchased with the proceeds, the latter do not pass by the bequest. And so with the' bequest of a lease for a term of years, if it is afterwards surrendered and a new lease taken, the latter does not pass by the will. Where a specific article is bequeathed, another can not be substituted, unless specifically required by the terms of the will. Here specific notes were required to be cancelled, and there is no power to extend the provision to other notes not named or even in existence when the will was executed.

It is, however, said, that after describing the $900 note she requires all of the other notes to be cancelled on the contingencies named,—that she would not have used the plural instead of the singular number if she did not intend to embrace subsequently acquired notes. This is plausible, but we think is not sound construction. The plural number must have been inadvertently used, as she was manifestly referring to the notes she then held on appellant. She begins the clause by saying: “I hold a number of notes against my brother, George W. Updike. One of these notes is for $900, and I intend that one to be cancelled absolutely at my death and given up to him. As to the others, if I survive my mother, Mary A. Updike, then at my death I want all the other notes cancelled and surrendered, ” etc. What other notes ? Clearly the other notes she then held. The words, “the other notes, ” can only refer to such as she had said she held,—the remainder of the notes above the $900 note she then held. It is true that it is said she held but two notes, the $900 and the $1000 notes.* If this be true, it only shows the expression, “all the other notes,” was inaccurately used, as she nowhere gives the slightest intimation that she expected to have in the future any other notes of appellant,' which no doubt would have been done had she intended to embrace future acquired notes.

It is also urged, that one purpose of this clause was, if her mother survived her, to make provision for the support of her mother, and the interest on the $1000 note would have been so scanty that we must presume she intended the interest on a larger sum to afford such a fund. This position is answered by reference to the second clause of the will. By that clause she devised to her mother, in case she survived said testatrix, all of her estate, real and personal. From the amount of the notes she held on appellant, it appears that sum would have been an ample provision for the support of her mother. We can not, therefore, infer from the bequest of the interest on this $1000, that the scheme of the will was to provide a fund arising from the interest on notes for the support of her mother, as she had made provision in the second clause of the will.

After a careful study of the will, we are satisfied that testatrix only intended to have the notes then held by her can-celled and surrendered, and not subsequently acquired notes. And this construction is not only authorized, but is required by the books.

The decree of the Appellate Court is therefore affirmed.

Decree affirmed.


author: Mr. Justice Soholpield

text:
    William M. Holmes et al. v. Aramentia M. Smythe et al.

      Filed at Springfield September 30, 1881.

    1. Constitutional law—special legislation—of the act concerning loan associations. The act of April 4, 1872, entitled “An act to enable associations of persons to become a body corporate to raise funds to be loaned only among its members,” is a general law, applicable to all the citizens of the State who choose to bring themselves within the relations and circumstances provided for by it, and is not within the prohibition of the constitution (section 22 of article 4), which declares that the General Assembly shall not pass local or special laws “regulating the rate of interest on money,” or “granting to any corporation, association or individual any special or exclusive privilege, immunity or franchise whatever. ”

      2. Usuby—of contracts with an association organized under the act of April 4, 1872, “to enable associations of persons to become a body corporate to raise funds to be loaned only among its members.” Where a person who is a member of such association obtains a loan of money therefrom, under the system of bidding the highest premium for the loan, as provided for in the act, coupled with other conditions authorized and prescribed therein, the transaction will not be regarded as usurious, although it may result that the borrower will be required, under the provisions of the contract, to pay a greater price for the use of the money advanced to him than would be allowable under the general law regulating the rate of interest. The contract being of such character that it is only upon the failure on the part of the borrower to perform its conditions that such result would follow, the obligation to pay an amount in excess of the legal rate of interest might be regarded as in the nature of liquidated damages, and not in any sense a regulation of interest upon money. This would be the proper view even treating the transaction as a loan.
    3. But a transaction of such character, being in its features and conditions in conformity with the provisions of the act, might rather be regarded as in the nature of a sale by the person to whom the money was advanced, of his shares of stock to the association, than as a loan.
    Appeal from the Circuit Court of Piatt county; the Hon. C. B. Smith, Judge, presiding.
    Appellees filed their bill in equity in the circuit court of Piatt county against appellants, alleging that appellee Calvin B. Smythe was the owner of certain lots therein described, which he, with his wife, the appellee Aramentia M. Smythe, occupied as a homestead; that on October 4, 1875, appellees executed a mortgage on said premises to the appellant the Monticello Mutual Building, Loan and Homestead Association, to secure the payment of a note for-$600, with interest at the rate of ten .per cent per annum; that the only consideration for such a note was a loan by said association to said appellee Calvin B. Smythe, of $420; that said association charged $180 for the loan of said $420; that said appellee Calvin B. Smythe has since paid said association the sum of $173.'41; that said association advertised said premises for sale on December 2, 1878, without having obtained a judgment or decree therefor; that said advertisement claimed $873.40 to be due; that on December 2, 1878, the solicitor oji said association sold said premises to said association for $633.33; that at such sale the bidders were notified that the amount exceeding $350 was for usurious interest; that at the time of such sale there was only due $350, which appellees were ready and willing to pay, and have since offered tn pay, but that said association has refused to receive the same in satisfaction of said note; that said sum of $180 was usurious; that appellees have continued to occupy said premises as a homestead; that at the February term, 1879, of the Piatt circuit court, said association obtained a judgment against the appellee Calvin E. Smythe, for the possession of said premises; that the appellee Aramentia M. Smythe was not a party to such judgment, although she was in possession of said premises when said suit was commenced, and occupied the same with her husband, the appellee Calvin E. Smythe, as a homestead; that a writ for the possession of said premises was issued on such judgment against the appellee Calvin E. Smythe, and directed to the appellant Holmes, sheriff of Piatt county, etc.,—and the prayer is, that the sale may be set aside and the deed declared void, that an account may be taken, etc., and that appellants be enjoined from dispossessing appellees, etc.
    The answer of appellants admits the execution of the note and mortgage, and that appellees owned and occupied the premises.as a homestead, substantially as set forth in the bill, and that the facts are as embodied in the following stipulation of the counsel of the respective parties:
    It is stipulated and agreed between the complainants in the above entitled cause and the defendants, that the complainant Calvin E. Smythe was a member of said association October 4, 1875, and at a meeting of the board of directors of said association held on „that day, said Smythe obtained a loan from said association, under the rules and regulations of the charter of said association and of the statute of Illinois, under which said association is organized, amounting to the sum of $600; that said Smythe hid as a premium for said loan the sum of $180, which was deducted . from said sum of $600, leaving the sum of $420, which said Smythe received the benefit of from said association; that the mortgage to secure said loan of $600 was for the whole amount of said $600; that it was executed to said association by said Smythe and wife, and duly recorded; that said Smythe became a member of said association in September, 1875, purchasing at that time eight shares of the stock of said association for $129.52, for which he executed his note to said association in addition to the note for $600, which he afterwards executed for said loan of $600, making in all the sum of $729.52, for which the said association holds the notes of said Smythe; that said Smythe, from the time he became a member of said association till the month of February, 1877, paid said association, under the provision of the charter, $68 on dues, $88.42 on interest, and $16.62 on fines, making a total of $173.04; that said Smythe never paid anything to said association after February 3, 1877, and that at a meeting of the board of directors of said association, held December 3, 1877, said board directed the solicitor of said association to proceed to advertise and sell the mortgaged premises under the power contained in said mortgage; that at that time said Smythe was more than six months in default in his payments to said association; that said association, by its solicitor, did, on the 2d day of December, 1878, sell said pretiiises under the power contained in said mortgage, and the same was struck off and sold to the association for the sum of $633.33, and said association received a deed for said premises in accordance with the provisions of such mortgage; that said premium was deducted, and said fines assessed and collected, in accordance with the provisions of the charter of said association; that the legal title to said premises at the time said Smythe and wife executed said mortgage to said association, and up to the time said premises were sold by said association as aforesaid, was in the said Calvin R. Smythe; that at the February term, 1879, of the circuit court of Piatt county, said association obtained a judgment against said Calvin E. Smythe for the possession of said premises; that said Aramentia M. Smythe was not in any way made a party to such suit; that she was, at the time such suit was commenced, residing with her husband, Calvin E. Smythe, on said premises, and that a writ of restitution issued on such judgment, and is now in the hands of said defendant William M. Holmes, sheriff of Piatt county aforesaid, for execution; that said association was organized under the act of the General Assembly of the State of Illinois, entitled “An act to enable associations of persons to become a body corporate to raise funds to be loaned only among its members, ” approved April 4, 1872, in force July 1, 1872; that the aforesaid facts are to be submitted to the court either on motion to dissolve the injunction, or on the hearing, and that the only points to be decided by the court are whether said association had the legal right to deduct the aforesaid premium and assess and collect the aforesaid fines; and whether such acts constitute usury on the part of said association; and whether the complainants are not entitled to have the mortgaged premises sold on the mortgage of said association. and that of the complainants subject to redemption; and whether the fact of said Aramentia M. Smythe not being made a party to said detainer proceedings is any defence as against the writ issued on said judgment; and whether the law under which the association is organized is constitutional.
    The mortgage is conditioned, that “Calvin E. Smythe, being the owner of six shares of the capital stock of the mortgagees, and having- obtained an advanced loan thereon of $600, for use, according to the previous act of the General Assembly of Illinois, approved April 4, 1872, in force July 1, 1872, under which said association is incorporated, and of the charter and by-laws adopted by said association, and for which sum he has given his promissory note of even date herewith, payable to the mortgagee, whenever it may be necessary for the proper liquidation of said association, for said sum of $600, with ten per cent interest per annum from date, payable monthly, to the secretary of said association, on the first Saturday of each and every month, with the agreement on the liquidation of said association to accept the surrender of said note in full of his six shares of the capital stock of said association upon which the money has been advanced; and whereas, the said Calvin R. Smythe is bound by the charter and by-laws, and by reason of his membership in said association, to pay to said association the monthly dues of fifty cents on each of said shares, the interest on the said sum so advanced, as aforesaid, and any and all fines, penalties or other charges which, under the charter and by-laws of said association, may be assessed against him, or. said stock, or any part thereof, in the manner, and amount, and at the times, as now or hereafter may be prescribed by the charter and by-laws of said association; provides for insurance and payment of taxes by mortgagor; now, if said Calvin E. Smythe shall pay said sum of money to the said association, according to the terms of said note therefor, and shall well and faithfully perform each and every of his obligations, and pay said association his monthly dues and interest, his fines, penalties, or other charges which, under the charter and by-laws of said association may be assessed against him, or said shares of stock, or any part thereof, and shall pay taxes assessed, or to be hereafter assessed, upon said premises, and keep the same insured, and in repair, as provided in the charter and by-laws of said •association, then this obligation to be void, otherwise to remain in full force and effect. ”
    Further provisions as to loss by fire: “providing that amount received from insurance may be applied in reducing the mortgage security, or in rebuilding; and on the liquidation of the association, if not used in rebuilding, it shall be placed to the credit of the said Smythe.”
    Appoints solicitor of the mortgagee upon default, or breach of any of the conditions, agreements or covenants of the said note, or this mortgage, to sell and dispose of the premises at public auction, etc., with power of conveyance, the expenses to be paid out of the proceeds, as provided therein, among others':

      “Second. The said principal sum of $600 and accrued interest thereon, and proportion of losses and expenses, as specified in section 14 of article 2 of the charter of said association, and all unpaid fines and penalties on the amount of monthly dues paid in on said shares of stock, the amount due on said note to be ascertained from the books of the association. ”
    Provisions as to application of surplus, if any: * * * “It is understood and agreed, that when said association shall go into liquidation, it shall execute to the said Calvin E. Smythe, at his expense, a release of this mortgage, ” etc. In case of foreclosure, “the amount of dues the said Calvin R. Smythe may have paid said association shall be deducted from the amount found due in any such decree, and the stock owned by Calvin E. Smythe in the association shall be decreed to be forfeited to said association.”
    The decree sets aside and declares the deed vacated and Void; that Smythe pay the association $411 within four-months from filing of decree, with six per cent interest, and upon payment of said association, to deliver to said Smythe the note and mortgage mentioned in the bill, cancelled and released of record, and upon default in such payment the association to be permitted to sell said premises under the power contained in said trust deed for said $411, and interest and costs of sale; that the defendant Holmes be enjoined from executing the writ of possession, and that the association pay the costs of suit, and execution issue therefor, etc.
    The case comes here by the appeal of the defendants in the court below.
    Messrs. Lodge ■ & Huston, Mr. Henry V. Freeman, and Mr. J. D. Adair, for the appellants.
    Mr. Albert Emerson, for the appellees.
   Mr. Justice Soholpield

delivered the opinion of the Court:

When we first considered this case we were under a. misapprehension, resulting from the meagreness of the statement in regard to the facts. We then assumed that the promissory note was payable, at all events, for the amount expressed upon its face, together with ten per centum per annum interest thereon, and that the premium bid had, also, in good faith been paid, and we thereupon concluded that the transaction was usurious, and in so far as any law, applicable alone to such corporations, purported to give sanction to and legalize it, it should be held void because in conflict with certain clauses of sec. 22, art. 4, of our constitution. That conclusion can not be sustained upon what we now understand to be the facts.

The appellant association was organized under the general law authorizing the formation of such associations, approved April 4, 1872, and in force July 1, 1872. (2 Gross’ Stat. p. 67.) The sixth section of that act provides, that the shares of the stock shall be $100 each; that subscriptions therefor shall be made payable to the corporation in such periodical installments, and at such time or times, as shall be determined by the charter and by-laws, but no periodical payment to be made exceeding two dollars on each share; and that every share of stock shall be subject to a lien for the unpaid installments and other charges incurred thereon under the provisions of the charter and by-laws. And the eighth section provides, that the board of directors shall hold such stated meetings as may be provided by the by-laws, at which the money in the treasury, if over §100, shall be offered for; loan in open meeting, and the stockholder who shall bid the highest premium for the preference or priority of loan shall be entitled to receive a loan of $100 for each share of stock held by said stockholder; and that in case of non-payment of installments or interest by borrowing stockholders for the space of six months, payment of principal and interest, without deducting the premiums paid or interest thereon, may be enforced by proceeding against their securities, according to law. The ninth section provides, that the borrower may repay a loan at any time, and in case of the repayment thereof before the expiration of the eighth year after the organization of the corporation, there shall be refunded to such borrower one-eighth of the premium paid for every year of the said eight years then unexpired.

Smythe became a member of the association in February, 1875, subscribing for eight shares of stock, and on the 4th of October, 1875, desiring to obtain money on six of his shares' of stock, he bid as premium therefor $30 on each share. This bid was accepted by the association, and the par value of his six shares of stock, less the premium bid, ($70 on each share, and §420 in all,) was advanced to him, and he thereupon executed the note and mortgage in controversy. This note, it is expressly shown, although for §600, is only to secure the payment of the interest to accrue upon the par value of the shares, and dues of fifty cents on each share monthly, as also fines, penalties and forfeitures, etc., and upon liquidation of the association the note was to be surrendered to Smythe, and accepted by him in full for his six shares of stock. This would happen when the shares of stock would reach their par value, so the transaction was, in fact, an advancement by the association in anticipation of that time. The transaction is in the nature of a sale by Smythe of his shares of stock to the association, and it has been so held by other courts. Hoboken Building Association v. Martin, 2 Beasley, 427; Clarksville Building Association v. Stephens, 26 N. J. 351; Delano v. Wild, 6 Allen, 1; Merrill v. McIntyre, 13 Gray, 157.

But if the transaction be treated as a loan, it is not, from what here appears, necessarily usurious. When the money was obtained the association had but five years and seven months to continue under the statute, it having been organized two years and five months previous to that time, and its duration being limited to eight years. The dues and interest, which the note secured, amount to $8 per month ($3 dues and $5 interest). At the end of five years and seven months (sixty-seven months) this would amount to only $536. The rate of interest then authorized for money loaned was ten per cent per annum. The amount received ($420), at ten per cent, in five years and seven months, would bring $234.50, which, added to the principal, would make $654.50, that would have had to have been paid, treating the money received as a loan, at ten per cent. This, of course, requires that Smythe should have kept his contract, but that- is what we must assume was the intention of the parties when the contract was made. It was his duty to keep his contract, and it was legally within his power to have done so. Being compelled to pay the face of the note, as well as accumulating interest, etc., is simply the result of the failure of Smythe to comply with his contract, and for which, it would seem, he had reasonable time; and this obligation may be regarded as one in the nature of liquidated damages, such as all parties were, at that time, at liberty to annex as a condition of the non-performance of their contracts,, and it is, in no sense, under the law then in force, as held by previous decisions of this court, a regulation of interest upon money, or obnoxious to the charge of usury. Lawrence v. Cowles, 13 Ill. 577; Gould v. Bishop Hill Colony, 35 id. 324; Davis v. Rider, 53 id. 416; Witherow v. Briggs, 67 id. 96. This is still further manifest by reference to the ninth section of the charter, which, it has been seen, authorizes the borrower to repay the loan at any time, which would restore his shares of stock to him, and have refunded one-eighth of the premium bid for each year of the eight years unexpired of the life of the association. And for like reason, as has been held by this court in Bane v. Gridley, 67 Ill. 388, the case is not one in which relief will be granted by a court of equity, as against a penalty.

In other respects we perceive no valid objection to the transaction. The statute under which the association was organized is a general law, applicable to all the citizens of the State who choose to bring themselves within the relations and circumstances provided for by it. We are of opinion that it is free of constitutional objection, in so far, at least, as it has any bearing upon the facts now before us.

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

Tr. 7 Decree reversed.

Walker and Dickey, JJ., dissent.


text:
    Andrew Richards v. The People ex rel. Alfred Thompson.

      Filed at Springfield September 30, 1881.

      1. Freehold-—franchise—as affecting right of appeal. A bill to enjoin a party from obstructing a highway, the existence of which is denied, does not involve a freehold or a franchise, within the meaning of the statute relating to appeals to this court and writs of error.
    2. Appeal—when it lies to this court from Appellate Court. The statute making the right of appeal from the Appellate Court to this court depend in certain cases upon the amount.in controversy, or of recovery in the court below, has no application when the object of the suit is not to recover a debt or damages, or some specific article of property, either personal or real. In all other cases an appeal lies to this court.
    3. Erbob—reversing on facts, in chancery suit. Where a number of witnesses have been examined orally on the hearing of a bill in chancery, and a finding had by the circuit court, which is affirmed in the Appellate Court, the decree will not be reversed on the evidence unless this court can see that the conclusion reached was clearly against the weight of the evidence.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Gass county; the Hon. Cyrus Epleb,. Judge, presiding.
    Mr. James M. Epleb for the appellant,
    in answer to the motion to dismiss the appeal:
    This is not a case of foreclosing a mortgage, hut is an injunction to prevent appellant from obstructing an alleged highway. The citation made of Corbin v. Fox, 98 Ill. 146, has no application to such a case as this. This case involves both a franchise and a freehold. Fanning et al. v. Russell et al. 94 Ill. 386; Lamar Insurance Co. v. Gulick, 96 id. 619.
    Mr. Richard W. Mills, for the appellees,
    in support of his motion to dismiss, cited Corbin v. Fox, 98 Ill. 146.
    The propriety of the decree in this case depends wholly upon the facts. In such cases an appellate court will not reverse when there is evidence that supports, or tends to support, the finding. Bush v. Hendred, 20 Ill. 93; Toledo, Peoria and Warsaw Railway Co. v. Hagle, 55 id. 212; Gulluf v. Smith, 24 id. 586; Toledo, Wabash and Western Railway Co. v. Moore, 77 id. 217.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is an appeal from a judgment of the Appellate Court for the Third District, affirming a decree of the Cass county circuit court awarding an injunction restraining appellant from obstructing an alleged highway. This being a controversy which to some extent affects property rights, and it not affirmatively appearing from the record that the amount involved is as much as §1000, a motion was interposed by appellees in this court to dismiss the appeal. In view of the importance of this motion it was reserved for consideration on the final disposition of the cause. Appellant insists that the suit involves both a freehold and franchise, and upon both these grounds he maintains the case is properly brought to this court. Appellees, on the other hand, maintain the case involves neither a freehold nor franchise, and that therefore this court has no jurisdiction to consider it.

The object of this suit is not to recover a freehold or a franchise, nor are we of opinion that either is involved in it, within the meaning of our statute regulating the jurisdiction of this court. The object of the suit is to restrain appellant from obstructing a certain road which appellees claim to be a public highway, but which appellant denies. The controversy is as to whether the locus in quo is subject to the public easement. Appellees practically admit that the soil and freehold are hi appellant, hence it can not be said, with any degree of propriety, that a freehold is involved, and as no special privilege or grant is claimed by either of the parties, or is in any sense involved in the controversy, we are unable to perceive upon what theory it is claimed that a franchise is involved. Nevertheless, we are of opinion, the appeal was properly brought to this court. The statute making the right of appeal from the Appellate to this court depend, in certain classes of cases, upon the amount in controversy, or of recovery in the court below, has no application where the object of the suit is not to recover a debt or damages, or some specific article of property, either personal or real. In all other cases, by the express provisions of the eighth section of the Appellate Court act, an appeal lies to this court. As already seen, appellees do not seek in this suit to recover any debt, damages or property, of any description. They simply seek to regulate appellant in the enjoyment of his own property, by prohibiting the doing of certain acts thereon which would interfere with the enjoyment of an alleged public easement on the premises. The right to do the acts complained of depends, of course, upon the existence or non-existence of the easement, and the suit may therefore properly be said to involve the existence of an easement; but as we have already seen, the fee and freehold are conceded to be in appellant. Angell on Highways, sec. 301.

The land upon which the road is located originally belonged to James H. Richards, the ancestor of appellant, and through whom the latter claims. In the circúit court the whole controversy was confined to the single inquiry whether the road in question is a public highway or not. Appellees contended that the said James H. Richards, in his lifetime, while owner in fee of the locus in quo, dedicated the same to the public for the purposes of this road, and that the same was accepted by the public, as evidenced by its use and various acts of. recognition by the public authorities. This was distinctly denied' by appellant, and the whole of the testimony on either side was directed to the issue thus formed. On the evidence adduced, the circuit and Appellate courts have both found this issue in favor of appellees, and we are now asked to reverse their decision. The record shows that upon the hearing in the circuit court quite a number of witnesses were examined on either side, in open court, upon this controverted question of fact, and hence the opportunities of that court for arriving at a just and correct conclusion were far better than ours, and under such circumstances, unless we were able to say that the conclusion thus reached was clearly against the weight of the evidence, we would not be authorized, according to the repeated decisions of this court, to reverse on the ground the finding was not supported by the evidence, although we might be better satisfied had the finding been the other way. This we are not able to do.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.