text:
    Ellis W. Hayes et al. v. The Massachusetts Mutual Life Insurance Company.

      Filed at Springfield September 27, 1888.

    1. Appeals—reviewing the facts—finding of facts by Appellate Court. In so far, only, as the Appellate Court, on a reversal of the judgment of the trial court, in its final order, finds the facts necessary to a recovery different from the finding of the trial court, will such finding be conclusive upon this court.
    2. Where a plaintiff counts on two causes of action, and obtains a general verdict and judgment, and the Appellate Court finds the facts as to one count differently from the trial court, without finding as to the other ground of action, a judgment of reversal by the Appellate Court will be erroneous.
    3. The finding of the Appellate Court, under section 87 of the Practice act, of the facts differently from the trial court, is the finding of the ultimate facts, upon the existence or non-existence of which, as set up in the pleadings, the rights of the parties depend. That section does not require the Appellate Court to find what was the evidence of these facts, or that it shall find the merely subordinate or evidentiary facts which, when established, contribute to the establishment of the ultimate fact which must exist in order to sustain the alleged cause of action.
    4. Joinder of counts—in trover and case. Counts in case and counts in trover may be joined in the same declaration.
    5. Trover—when the action will lie. Trover will lie for the wrongful conversion of valuable papers, or evidence of title to real or personal property, for checks, promissory notes, bank bills, bonds, bills of exchange, drafts, certificates of stock in incorporated companies, securities of any kind, books of account, vouchers, etc., and of a policy of insurance.
    6. To maintain trover, a plaintiff must show a tortious conversion by the defendant, and that at the time of the conversion the plaintiff had a right of property in the chattel converted, and the possession, or the immediate right of possession, thereof.
    7. So if an insurance company wrongfully obtains the possession of a policy of insurance, and claims satisfaction thereof by a payment to the guardian of the beneficiary of a sum less than that agreed to be paid, the latter may maintain trover against the company for the wrongful conversion of the policy of insurance, and recover the sum unpaid thereon. If the company obtains such policy illegally, its act of retaining possession thereof is a tortious conversion.

      8. Same—whether demand necessary. Proof of a demand and refusal is necessary, in trover, when the defendant comes lawfully into possession, and the plaintiff is not prepared to prove a distinct and actual conversion. But demand and refusal are unnecessary if the taking was tortious, or if an actual conversion is shown.
    9. Measure of damages—in trover. The measure of damages, in trover for the conversion of a bond, check, note, and the like, prima facie, is the face value, though if it is shown that its collectible value is less, the latter will be the true measure.
    10. Guardian and ward-power of the former to compromise in respect of his ward’s rights. A guardian, under our statute, has no power to compound or compromise in respect of his ward’s rights, whereby a less sum than is due is accepted, except under the approbation or direction of the county court, and if he does, his act will not bind his ward, and the ward may disaffirm it.
    11. Payment—by less than the sum actually due. An acceptance by a creditor of a sum less than the amount due, in satisfaction, or an agreement to take a less sum in satisfaction, is, in the first case, a discharge of only so much of the debt, and in the other case, the promise is void, as being without consideration.
    Writ of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Coles county; the Hon. C. B. Smith, Judge, presiding.
    Plaintiffs in error, by their next friend, brought their action in the Coles circuit court, against the defendant in error. Plaintiffs counted—
    First—On a written policy of insurance dated February 16, 1874, upon the life of Job M. Hayes, for $12,000, for the benefit of plaintiffs in error, issued by the defendant company; averred the death of the assured in August, 1876, and the liability of the defendant company to plaintiffs in error upon the policy; averred that James F. Hughes was guardian of plaintiffs, and had control of the policy; that defendant, by its agent, in order to cheat and defraud plaintiffs, and obtain a fraudulent settlement and the possession of the policy, in April, 1877, falsely, covinously, etc., with intent to cheat and defraud plaintiffs, represented to plaintiffs’ guardian that the assured, before the policy issued, used intoxicating liquors to excess, and also used intoxicating liquors daily and habitually, which representations were false, and known to be false when made; averred that the assured, before the issuance of the policy, had not used intoxicating liquors to excess, and had not used intoxicating liquors daily or habitually; averred if such representations had been true, the policy thereby would have been vitiated and annulled, and that the guardian relied thereon, of which the defendant had notice, whereby the defendant obtained of the guardian an agreement to accept $6045 in settlement for and surrender of the policy, with intent to cheat and defraud plaintiffs; averred that after making said agreement, defendant paid the guardian the $6045, and procured the surrender of the policy; further averred that the agreement and surrender were procured and obtained by fraud, whereby the remaining portion due on the policy was lost to plaintiffs in error.
    Second—Identical with the first count, except that the policy was set out in hæc verba.

    Third—In trover, in the usual form, for the wrongful conversion of the policy,—setting the same out in hæc verba,— laying the damages at $12,000.
    Issue was taken on the pleas: First, general issue; and second, five years’ statute of limitations. Trial by jury; verdict and judgment for plaintiffs for $9060. On appeal to the Appellate Court for the Third District, the judgment of the circuit court was reversed, that court finding in its final order “that the policy of insurance for $12,000, issued on the 16th day of February, 1874, upon the life of Job M. Hayes, for the benefit of Ellis W. Hayes and Daniel D. Hayes, was, on the 20th of April, 1877, by James F. Hughes, guardian of said Ellis W. and Daniel D. Hayes, surrendered to the agent of said insurance company for the consideration of $6045, then paid to the said guardian by the agent of said insurance company,” and “that the charge in the declaration, that the surrender of said policy was procured by fraud upon the part of said insurance company, or its agent or agents, is not supported by the evidence, and is not true in fact.” No order of remandment was made. The record is brought into this court by writ of error.
    Mr. James W. Craig, for the plaintiffs in error:
    As to what constitutes a conversion of property, see Maxwell v. Harrison, 8 Ga. 61; Cooley on Torts, 448, 449, 451; Clawes v. Hawley, 12 Johns. 486; Addison on Torts, 312; Boyce v. Brockway, 31 N. Y. 493; Hyde v. Noble, 13 N. H. 494.
    Possession with claim of title is a conversion. Adams v. Meisel, 11 Ga. 106; 2 Hilliard on Torts, 111; Fortier v. Ballance, 5 Gilm. 41.
    The payment of $6045 can not be pleaded in satisfaction of $12,000. Cumber v. Wane, 1 Strange, 425; Edgell v. Stanford, 6 Vt. 551; Harrison v. Close, 2 Johns. 448; Knotts v. Preble, 50 Ill. 227.
    The guardian could not lawfully give away his ward’s right. Whittington v. Ross, 8 Bradw. 239; Edsall v. Vandemark, 39 Barb. 599; Bank v. Norton, 1 Hill. 576; Cunningham, v. Railroad Co. 77 Ill. 178; 42 Cal. 291; Bond v. Lockwood, 33 Ill. 223; Davenport v. Young, 16 id. 551; Rozier v. Fagan, 46 id. 404; Smith v. Sackett, 5 Gilm. 544.
    The statute requires the guardian to have the order of the county court before he can compound. McIntyre v. People, 103 Ill. 147; Breit v. Yeaton, 101 id. 259; Young v. Dowling, 15 id. 486.
    The statute allows demands to be compounded, by approval of the court. If done any other way it is void. The law seems to be, that courts can not dispense with a defective execution of power created by law, or dispense with any of the formalities required thereby for its due execution, for otherwise the whole policy of legislative enactments might be overturned. Hunt v. School District, 14 Vt. 300; Young v. Dowling, 15 Ill. 487; 39 Am. Dec. 225; County of Hardin v. McFarlan, 82 Ill. 138;
      Law v. People, 87 id. 385; Stevenson v. School Directors, id. 255; Wells v. People, 71 id. 534; Tamm v. Lavalle, 92 id. 270; Moulton v. Hurd, 20 id. 137.
    The possession by the guardian is the ward’s possession. Magee v. Toland, 8 Porter, 36; Sallee v. Arnold, 32 Mo. 532; McDonald v. Whitman, 16 Ala. 343; Miller v. Blackburn, 14 Ind. 82.
    The measure of damages is principal and interest due on the policy. Rose v. Lewis, 10 Mich. 583; Moray v. Wood, 12 Wis. 469; Clowes v. Hawley, 12 Johns. 485; Keaggy v. Hite, 12 Ill. 101; Sedgwick on Damages, 611; Ingalls v. Lord, 1 Cow. 240.
    The Appellate Court, instead of finding the facts on the question different from the circuit court, simply found conclusions, “that the charge of fraud is not supported by the evidence, and is not true in fact.”
    Mr. James A. Connolly, and Mr. Flank K. Dunn, for the defendant in error:
    The Appellate Court having found the defendant was not guilty of obtaining the policy by fraud, is conclusive on this court. Whether that finding is right or wrong, that is the end of it. Harzfeld v. Converse, 105 Ill. 534; Williams v. Forbes, 114 id. 167.
    The Appellate Court is not required to set out the evidentiary facts in their findings.
    Assuming, then, as must be done, “that the charge of fraud is not supported by the evidence, and is not true in fact,” no judgment could have been rendered against the defendant on the first two counts, for the charge of fraud is the very gist of those counts. The third and only remaining count is an ordinary count in trover, for the conversion of the policy, which is set out in hæc verba. To maintain this count, the plaintiff must show a tortious conversion of property by defendant, and that at the time of the conversion the plaintiffs had a right of property in the chattel converted, and also had the possession thereof, or a right to the immediate possession thereof. Owens v. Weedman, 82 Ill. 417.
   Mr. Justice Shope

delivered the opinion of the Court:

It is contended by plaintiffs in error that the finding of facts recited in the final order of the Appellate Court was not sufficient, and not such as is required by the 87th section of the Practice act. In the section referred to it is provided, that “if any final determination of any cause, as specified in the preceding sections, shall be made by the Appellate Court, as the result, wholly or in part, of the finding of the facts concerning the matter in controversy, different from the finding of the court from which such cause was brought by appeal or writ of error, it shall be the duty of such Appellate Court to recite in its final order, judgment or decree, the facts as found, and the judgment of the Appellate Court shall be final and conclusive as to all matters of fact in controversy in such cause.”

In so far, then, as the Appellate Court, in its final order, has found the facts necessary to a recovery different from the finding of the trial court, such finding is conclusive upon this court, and the finding of facts contemplated by the section of the statute quoted is, as announced in Brown v. City of Aurora, 109 Ill. 165, and Rogers v. Chicago, Burlington and Quincy Railroad Co. 117 id. 115, “the finding of the ultimate fact or facts upon the existence or non-existence of which, as set up in the pleadings in the cause, the rights of the parties depend; that it does not mean that the Appellate Court shall find what was the evidence of those facts, or that it shall find those merely subordinate or evidentiary facts which, when established, contribute to the establishment of the ultimate fact which must exist in order to sustain the alleged cause of action.”

Two ultimate facts were found and certified by the Appellate Court: First, “that the policy of insurance for $12,000, issued on the 16th day of February, 1874, upon the life of Job M. Hayes, for the benefit of Ellis W. Hayes and Daniel D. Hayes, was, on the 20th of April, 1877, by James F. Hughes, guardian of said Ellis W. and Daniel D. Hayes, surrendered to the agent of said insurance company for the consideration of $6045 then paid to said guardian by the agent of said insurance company;” and second, that the charge “that the surrender of said policy was procured by fraud upon the part of said insurance company, or its agent or agents, is not supported by the evidence, and is not true in fact.”

In respect to the first, it is apparent that the finding of the Appellate Court does not differ from the finding of the circuit court. The ultimate fact, here, is the surrender of the $12,000, policy by the guardian, for the consideration of $6045. Such surrender was averred in the declaration and admitted by the defendant company, and must have been found as a fact by the trial court. As to the second, however, if the circuit court rendered its finding and judgment upon the case made by and under the first and second counts of the declaration, it is equally obvious that the finding by the Appellate Court differed from the finding by the circuit court, and, under the authorities before referred to, this court is precluded from, reviewing the question as to whether or not the surrender of the policy was procured by fraud, as alleged in the declaration. In the first and second counts of the declaration it was averred that the surrender of- the policy was procured by fraud, setting out in what the fraud consisted; and in certifying that the charge of fraud was not true in fact, the Appellate Court did all that the statute required it to do. It certified, not the evidentiary facts, hut the ultimate fact, and its certificate is sufficient, under the law.

In so far, then, as the right of plaintiffs in error to a recovery depended upon the existence of the facts averred in the first and second counts of the declaration, the adverse determination and finding of the Appellate Court is conclusive. But the declaration upon which the parties went to trial contained three counts,—the first and second, in form, counts in case, and the third a count in trover, for the wrongful conversion of the policy of insurance. There was not a misjoinder of actions, for counts in case and trover may be joined. (1 Chitty’s Pl. 199.) And trover will lie for the wrongful conversion of valuable papers, or evidences of title to real or personal property, for checks, promissory notes, bank bills, bonds, bills of exchange, drafts, certificates of stock in incorporated companies, securities of any kind, books of account, vouchers, etc., (Garvin v. Wiswell, 83 Ill. 215, Alexander v. Rundle, 75 id. 85, 6 Wait’s Actions and Defenses, title “Trover,” and cases there cited,) and for a policy of insurance. Harding v. Carter, opinion by Lord Mansfield, referred to and cited in 1 Park on Marine Insurance, 4.

The verdict was general. If it be assumed, as we do, that the gravamen of the cause of action set out in the two counts in case was the alleged fraudulent representations of defendant in error, and that the special finding by the Appellate Court that the evidence did not support the charge of fraud, rendered a recovery upon those counts impossible, why, it is asked, should not the verdict and judgment of the circuit court have been sustained under the third count ?

Counsel for defendant in error contend, by way of answer, that to maintain trover, the plaintiff must show a tortious conversion by the defendant, and that at the time of the conversion the plaintiff had a right of property in the chattel converted, and the possession or the immediate right of possion thereof,—citing Owens v. Weedman, 82 Ill. 409,—and such we understand to be the law. But counsel further contend, that plaintiffs in error, to prove the tortious conversion, relied on the fraudulent acts charged in the two counts in case, and that the finding of the Appellate Court that such charge was “not supported by the evidence, and not true in fact,” is conclusive of the whole question. But it by no means follows, that because the defendant in error was not guilty of the fraud charged in those counts, plaintiffs in error could not recover upon the count in trover, if a case was made thereunder. Whether a recovery could be had under this count, depended upon the evidence. This policy of insurance was the property of plaintiffs in error. (Harding v. Carter, supra.) They were the sole beneficiaries named therein, and alone entitled to have and receive the sum of money therein expressed. It was in their legal possession. The guardian was their legal representative, and his possession was their possession. That the defendant in error obtained the possession of this valuable paper from the representative of plaintiffs in error, is admitted, and that ever since it has had possession and control of the same, appears by the stipulation of the parties. This stipulation, in connection with the release obtained from the guardian, abundantly shows the conversion; but that such conversion was tortious, is strenuously denied.

Generally speaking, a tort is a wrong, and, obviously, a tortious act is no more than a wrongful act. But in the language of the books, a tortious act consists of the commission or omission of an act by one, without right, whereby another receives some injury, directly or indirectly, in person, property or reputation. (Bouvier’s Law Dic. title “Tort.”) An illegal act, whereby another is injured in respect of a right of property, is unquestionably a tortious act. If, therefore, defendant in error obtained this policy illegally, its act of retaining possession thereof was a tortious conversion. It clearly appears that possession of this instrument was obtained under and by virtue of an agreement entered into between defendant in error and the guardian of plaintiffs in error, by the terms of which the demand of plaintiffs in error, as evidenced by this instrument, was compounded for less than the full amount thereof, and the same attempted to be released by the guardian. Plaintiffs in error were infants under guardianship, and their guardian was without power and authority thus to compromise and release their legal demands, without the approval of the county court.

In defining the powers of guardians over the personal estate of their wards, the statute provides that “the guardian shall settle all accounts of his ward, and demand and sue for, and receive in his own name, as guardian, all personal property of and demands due the ward, or, with the approbation of the court, compound for the same, and give a discharge to the debtor upon receiving a fair and just dividend of his estate and effects.” (1 Starr & Curtis, p. 1241, sec. 17.) In an early case it was held by this court, that the statute respecting guardians and wards was not designed and did not constitute a complete code, and that the purpose of the legislature was to confer upon the probate court the power to appoint guardians, and to regulate their conduct according to the common law. (Bond v. Lockwood, 33 Ill. 212.) And while, at common law, a guardian may only have been required to manage and care for the estate of his ward honestly, and with reasonable prudence and diligence, and might have compromised or submitted to arbitration claims and demands due the ward’s estate, it is manifest that when the legislature, in the section referred to, undertook to define the powers and duties of guardians, and expressly provided that as to demands due the ward the guardian might, “with the approbation of the court, compound for the same, and give a discharge to the debtor,” a change and modification of the common law was intended. If before this statute the guardian might, in the exercise of his own honest discretion, compound and release a demand due his ward, after the passage of this statute he was clearly required to procure the approbation of the proper court before exercising such power. For the personal discretion of the guardian there was substituted the judicial determination of an established court. And this statutory requirement is something more than a mere regulation and direction, and was intended by the legislature as an additional safeguard and protection to the ward, by requiring the terms and conditions of any proposed compromise to be submitted to, inquired into and passed upon by that court having special jurisdiction of the estates of minors. In McIntyre v. The People, use, etc. 103 Ill. 142, in construing the 22d section of thiq same chapter of the statute, this court held that the statutory requirement respecting the investment of the ward’s money “upon security to be approved by the court,” was mandatory upon the guardian. Under the provisions of that section, as under this, in order to legalize the act of the guardian and render it binding upon the ward, the approval of the court was required, and the provision here involved must be held to be mandatory.

In respect to the compromise attempted to be effected, and the release executed by the guardian, the record fails to show that the same was submitted to and approved by the county court. Defendant in error was charged with notice of the guardian’s want of power to bind his wards by any agreement of compromise involving' the acceptance of a less sum than the full amount due, or by a surrender of the possession of the instrument evidencing such indebtedness, upon a consideration less than the full amount due thereon; and the act of defendant in error in inducing and bringing about such surrender, and in accepting the possession of the instrument under the circumstances shown, was, as against these wards, clearly tortious. Furthermore, the fact of conversion being admitted, as it is by the stipulation of defendant in error, under the authority of Sturges v. Keith, 57 Ill. 451, such conversion was itself a tortious act.

It is also insisted by defendant in error, that these wards can not disaffirm the act of their guardian,—that while it might be disaffirmed by the proper court, the wards themselves can not treat it as void. We know of no principle which denies to a ward the right, in apt time, to disaffirm any unauthorized act of his guardian.

It is further insisted by defendant in error, that no demand was made for the return of this policy. To this it must be answered, that proof of demand and refusal are necessary where the defendant became, in the first instance, lawfully possessed of the chattel, and the plaintiff is not prepared to prove some distinct, actual conversion. (1 Chitty’s Pl. 157.) But demand and refusal are unnecessary if the taking is tortious, or if an actual conversion is shown. (Ibid. note 2.) See Ryan v. Brant, 42 Ill. 78; Bruner v. Dyball, id. 34; Gibbs v. Jones, 46 id. 319; Bane v. Detrick, 52 id. 19; Hardy v. Keeler, 56 id. 152. Here, an actual conversion having been shown, no demand was necessary.

The measure of damages in trover for the conversion of a bond, check, note, and the like, prima facie, is the face value, though if it is shown that its collectible value is less, the latter will be the true measure. (Cothran v. Hanover Nat. Bank, 8 Jones & Spencer, (N. Y.) 401; Murray v. Pate, 6 Dana, 335; Garvin v. Wiswell, 83 Ill. 215.) The record being silent as to the collectible value of this policy, its value, prima facie, was the sum expressed on its face, ($12,000,) with interest; and as payment of $6045 was shown, the damages that the jury might award plaintiffs in error was the balance of the principa,! sum, with interest. The damages found by the jury did not, as we understand the facts, exceed the unpaid portion of the principal, with interest, and was therefore not excessive.

Defendant in error places its defense to this action upon the settlement it effected with, and the release it procured from, the guardian; and while it has shown that it was not guilty of the acts of fraud charged in the first and second counts of the declaration, it has wholly failed to show that such settlement and discharge were made and procured in the manner prescribed by the law, and under such circumstances as to bind these plaintiffs in error.

The case, then, is this: Defendant in error was liable to plaintiffs in error on a policy of insurance for $12,000. It effected a settlement with the legal representative of plaintiffs in error, paying him $6045, or fifty per cent of the then amount of its liability under the policy, receiving at the same time, from the guardian, a release of the balance due plaintiffs in error, and also the surrender of the instrument evidencing the indebtedness. Plaintiffs in error repudiate the unauthorized act of their guardian, as of right they may, and bring trover for the wrongful conversion of the policy of insurance, laying damages sufficient to cover the unpaid portion of the principal sum expressed in the policy, with interest. The action is well laid, issue is taken, and a trial had. The execution of the policy by defendant in error is not denied, and it is read in evidence. Plaintiffs in error admit receiving as in partial payment $6045, and claim the balance, principal and interest. Defendant in error makes proof of the settlement with the guardian, and introduces his release, and admits receiving and retaining the possession and control of the policy, but fails to prove that the settlement was approved and the release authorized by the proper court.

The settlement and release being illegal and unauthorized, and possession of the policy having been obtained illegally, can not avail as a defense to the action. Nor, under the facts of this case, would this result have been at all changed if plaintiffs in error, instead of being minors, and incapable of contracting, had been of full age, and legally competent to contract, and had themselves agreed with defendant in error to accept one-half the sum of money due on the policy, in full satisfaction; for the rule is well settled, that an acceptance by the creditor of a sum less than the amount due, in satisfaction, or an agreement to take a less sum in satisfaction, is, in the first case, a discharge of only so much of the debt, and in the other case, the promise is void, as without consideration. As said by Dewey, J., in Brooks v. White, 2 Metc. 285: “The general principle, that the acceptance of a less sum in money than is actually due can not be a satisfaction, and will not operate to extinguish the whole debt, although agreed by the creditor, seems to be recognized in books of unquestionable authority. The reason of the rule is, as stated by Lord Ellenborough, in Fitch v. Sutton, 5 East, 232, that there must he some consideration for the relinquishment of the excess due beyond the sum paid,—something to show the possibility of benefit to the party thus relinquishing a legal right, otherwise the agreement is nudum pactum.” And in Bailey v. Day, 26 Maine, 88, where a judgment creditor accepted a small part of the debt in discharge of the whole, and afterwards sought to compel payment of the residue, the court said: “The authorities are numerous, and, it is believed, uniform, that the payment, in money, of a debt due and payable in money, by the debtor, at the place where he was bound to make it, of a sum less than the full amount, and at the same time an agreement of the creditor to discharge the residue, will not operate as a defense to a suit for the balance. The reason is obvious: the agreement of discharge is without consideration. * * * By the payment of a part, the defendants laid no foundation for an obligation in the plaintiff, but merely made discharge, pro tanto, for their own, which they had long omitted.” See, also, Pinnel’s case, 5 Coke, 117; Heathcote v. Crookshanks, 2 T. R. 24; Cumber v. Ware, 1 Strange, 426; Bishop on Contracts, chap. 3, sec. 50; Parsons on Contracts, 618. This rule has no application, however, where property other than money is taken in satisfaction, or where there is an honest compromise of unliquidated or disputed demands.

But defendant in error, in its evidence on the trial, also attempted to show that the assured, Job M. Hayes, made such false representations, in his application for insurance, respecting his prior use of intoxicants, as that the policy was thereby avoided. Upon this issue the jury found against defendant in error, and after a careful examination of the evidence we are satisfied the finding of the jury was correct. The Appellate Court reversed the judgment of the circuit court, and found as a fact that the defendant in error did not procure the settlement and surrender of the policy by practicing the fraudulent acts charged. The fraudulent acts charged were, that defendant in error procured the settlement with the guardian, and his release, by fraudulently representing that the assured had made false statements, in his application for insurance, as to his prior use of intoxicants, knowing them to be false. The Appellate Court exonerated defendant in error from the charge,—not that it did not make the representations, but that they were not made falsely and fraudulently. By no fair construction can this finding by the Appellate Court be held to have been different from the circuit court upon the issue as to whether or not the representations of the assured, in his application for insurance, were falsely and fraudulently made.

Under the statute, the Appellate Court, where it finds the facts differently from the trial court, must recite in its final order “the facts as found,” and such finding is conclusive upon this court. But where, as in this ease, several causes of action are properly joined in the declaration, and the finding of facts by the Appellate Court is not inconsistent with a right of recovery upon one of the causes of action shown in the declaration, and there is evidence upon which the general verdict and judgment for the plaintiff may rest, and the trial court committed no error in law, it will be error in the Appellate Court not to affirm the judgment of the trial court, notwithstanding the adverse finding of the Appellate Court as to facts necessary to support the action, set out in the other counts of the declaration; and upon the failure of the Appellate Court to find the facts differently from the trial court upon both causes of. action set forth in the declaration, it will be considered that as to the cause of action whereof there is no finding of fact, the Appellate Court found the facts as did the court below.

Finding, as we do, that here the plaintiffs in error had a good cause of action maintainable under the count in trover, and the Appellate Court having found no'fact inconsistent with the right of recovery in trover, it is held, that in respect thereof the finding of the Appellate Court was the same as that of the trial court upon every matter necessary or material to maintain the action under that count in the declaration, and it was error in the Appellate Court not to have affirmed the judgment of the circuit court upon such count.

The judgment of the Appellate Court is reversed, and that of the circuit court affirmed.

Judgment reversed.

Mr. Justice Craig, dissenting.

Mr. Justice Wilkin took no part in the consideration of this case.


source: Caselaw Access Project

author: Mr. Chief Justice Craig

license: Public Domain

text:
    William Butler et al. v. The People of the State of Illinois.

      Filed at Springfield September 27, 1888.

      1. Criminal law—homicide—killing one person when intending to kill another. A man may be held guilty of murder or manslaughter, who, in an attempt to kill one person, by mistake kills another, although he had no intent or design to kill such other person.
    2. Same—homicide—as the result of a conspiracy to do an unlawful act. Where a number of persons conspire to do an unlawful act, and in the prosecution of the common design a person is killed, all will be guilty of murder.
    3. If the unlawful act is a mere trespass, however, the killing, in order to affect all, must be done in the prosecution of the common design; but if the unlawful act be a felony, it will be murder in all, although the death happened collaterally, or besides the principal design.
    4. If divers persons resolve, generally, to resist all opposers in the commission of any breach of the peace, and to execute it in such a manner as naturally tends to raise tumults and affrays, as, by committing a violent disseizin with great numbers of people, or going to beat a man, or rob a park, or standing in opposition to the sheriff’s posse, and in the doing of any of these acts they happen to kill a man, they will all be guilty of murder.

      5. No person can be held liable for a homicide unless the act was either actually or constructively committed by him; and in order to be his act, it must be committed by his own hand, or by some one acting in concert with him, or in furtherance of a common design or purpose. Where the criminal liability arises from the act of another, it must appear that the act was-done in furtherance of the common design or in prosecution of the common purpose for which the parties were assembled or conspired together.
    6. Several persons assaulted a village marshal upon his attempt to arrest one of them for disorderly conduct. In defending against the assault, the-officer drew his revolver, and aimed to shoot one of his assailants, but by accident, and unintentionally, shot and killed a bystander who was without, fault: Held, that the persons so assaulting the officer were not guilty of the homicide, and a conviction of them of manslaughter could not be sustained.
    7. In the particular case, the character of the assault upon the officer who did the shooting, was not such as would justify a prudent man in resorting to the use of a pistol in his defense; but if the fact had been otherwise, the doctrine would still obtain, that the persons making the assault could not he held responsible for the consequences of the act of the officer in resisting the assault. A rioter can not be held guilty of murder or manslaughter by reason of the accidental killing of an innocent person by those engaged in suppressing the riot.
    Writ of Error to the Circuit Court of McDonough county; the Hon. Charles J. Scofield, Judge, presiding.
    This was an indictment against William Butler, Franklin Butler, William Simkins and George Stuckey, in which they were charged with the murder of John Butler, on the 4th day of June, 1887, in McDonough county. On a trial of the defendants, on the indictment, the jury found Simkins and Stuckey guilty of a riot, and the other defendants guilty of manslaughter, and fixed their term of imprisonment at six years in the penitentiary.
    There is no substantial disagreement in regard to the facts, which led to the death of John Butler. They are, so far as is necessary to state them, substantially as follows: On the-night of June 4, 1887, there was a horse show in Prairie City, a village in McDonough county. Quite a crowd gathered around the tent where the show was held. Among the number were the four defendants, the deceased, and Luther A. Conrey, marshal of the village. The defendants became somewhat noisy and boisterous. They shoved each other' near the tent door, and attempted to blow out the' light which was on the tent pole. The marshal requested them to keep quiet, but not being heeded, he stepped up to William Butler and attempted to arrest him, when William either struck or pushed the marshal, and Franklin Butler came up behind the marshal and struck him two blows on the head with his fist, which knocked him down,—or at least knocked him on his hands and knees. William Butler then laid hold of the marshal, and the bystanders came up to stop the fight, and while they were parting the men the marshal discharged his revolver, and John Butler, a brother of the defendants William and Franklin Butler, who was standing near by, was killed. The deceased was in no manner connected with the difficulty. He was a mere bystander, and, so far as appears, his conduct had been good during the evening.
    Upon the evidence, the court, among others, gave the following instruction for the People:
    “18. If the jury believe, from the evidence, beyond a reasonable doubt, that the defendants, or any one of them, willfully disturbed the peace and quiet of any neighborhood in the village of Prairie City, by loud or unusual noises, or by tumultuous or offensive carriage, and that they did so for the purpose or with the expectation that the witness Conrey would attempt to arrest them therefor, and that said Conrey was then and there an acting village constable or marshal in said Prairie City, and that such defendants or defendant then knew that fact, and that said Conrey thereupon undertook to arrest them, or any one of them who may have created such disturbance, if any of them did, and they resisted such arrest, and assaulted and beat said Conrey, and were actually, or as it would appear to a reasonable and prudent man under the same circumstances, about to inflict on him great bodily harm, and said Conrey, in order to protect himself from receiving such harm, and in his necessary or apparently necessary self-defense, fired his pistol, and that the ball from said pistol, by accident, hit and killed the deceased, John Butler, then the defendants, or such of them, if any, as aided or assisted or encouraged such assault and beating, if any there was, would be guilty of the killing of said John Butler.”
    The court refused the following instruction asked by the defendants :
    “20. The court instructs the jury, that if you believe, from the evidence in the ease, that John Butler was killed by a shot fired from a revolver by one Luther Conrey, then you must find the defendants not guilty, unless you further believe, from the evidence, beyond a reasonable doubt, that the said defendants, or some one of them, acted with said Conrey, or in concert with him, to do an unlawful act, and that the death of said John Butler happened and was occasioned by the doing or attempting to do such unlawful act.”
    Messrs. Neece & Son, and Mr. James M. Blazer, for the plaintiffs in error.
    Mr. H. C. Agnew, State’s Attorney, and Messrs. Tunnicliff & Tunnicliff, for the People.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

It may be regarded as a well settled principle of law, that a man will be held guilty of murder or manslaughter, who, in the attempt to kill one person, by mistake kills a third person, although there is no intent or design to kill such third person. So, also, where a number of persons conspire together to do an unlawful act, and in the prosecution of the common design a person is killed, all will be guilty of murder. Wharton (vol. 2, sec. 998,) says: “If the unlawful act was a trespass, the murder, to affect all, must be done in the prosecution of the design. If the unlawful act be a felony, it will be murder in all, although the death happened collaterally, or besides the principal design.” Russell on Crimes (vol. 1, page 540,) says: “Where divers persons resolve, generally, to resist all opposers in the commission of any breach of the peace, and to execute it in such a manner as naturally tends to raise tumults and affrays, as, by committing a violent disseizin with great numbers of people, or going to beat a man, or rob a park, or standing in opposition to the sheriff’s posse, they must, when they engage in such bold disturbances of the public peace, at their peril, abide the event of their actions, and, therefore, if in doing any of these acts they happen to kill a man, they are all guilty of murder.” In 1 Hale’s Pleas of the Crown, 441, the doctrine is stated thus: “If divers persons come in one company to do an unlawful thing, as, to kill, rob or beat a man, or commit a riot, or to do any other trespass, and one of them, in doing thereof, kill a man, this may be adjudged murder in them all that are present of that party abetting him and consenting to the act, or ready to aid him, although they did but look on.”

No person can be held responsible for a homicide unless the act was either actually or constructively committed by him; and, in order to be his act, it must be committed by his hand, or by some one acting in concert with him, or in furtherance of a common design or purpose. Where the criminal liability arises from the act of another, it must appear that the act was done in furtherance of the common design, or in prosecution of the common purpose for which the parties were assembled or combined together, otherwise a person might be convicted of a crime to the commission of which he never assented, which could not he done upon any principle of justice. The two defendants William and Franklin Butler, in making an assault upon Conrey, were guilty of a breach of the peace, and if, while engaged in the encounter, either one had fired the shot which killed the deceased, both would have been guilty of the crime, although they had no design or intention to injure or kill the deceased. That, however, is not the question presented by this record. Here, under the instructions of the court, the two defendants are held responsible for the shooting done by Conrey, although there was no concert of action whatever between him and them. There was no common design or purpose existing between the two defendants and Conrey. They had not assembled or come together for the commission of any unlawful act. They were enemies—belonged to opposite factions ; and we know of no principle upon which it can be held that the defendants are liable for an act of Conrey. It is true, the, defendants assaulted Conrey, and struck him with their fists; but his life was not in peril, nor was he in danger of suffering great bodily harm. There was, therefore, nothing in the character of the assault;which could justify a prudent man in resorting to a revolver. But suppose there was, we know of no well settled rule of law which would hold the defendants liable for the acts of Conrey. They would be responsible for what they did themselves, and such consequences as might naturally flow from their acts and conduct; but they never advised, encouraged or assented to the acts of Conrey, nor did they combine with him to do any unlawful act, nor did they, in any manner, assent to anything he did, and hence they could not be responsible for his conduct towards the deceased.

It would be a strange rule of law, indeed, to hold a man liable for a crime which he did not commit, which he did not advise, and which was committed without his knowledge or assent, express or implied; and yet, if the conviction in this ease is to be sustained, it can only be done by the sanction of such a doctrine. Commonwealth v. Campbell, 7 Allen, 541, is a case in point. It was there held, that a rioter can not be held guilty of murder or manslaughter by reason of the accidental killing of an innocent person by those who are engaged in suppressing the riot. The rule announced in the case is approved by Bishop on Criminal Law, vol. 1, sec. 637.

The judgment will be reversed and the cause remanded.

Judgment reversed.


author: Mr. Justice Magruder

text:
    William W. Brian v. Parmelia Melton.

      Filed at Springfield September 27, 1888.

    1. Limitations—act of 1839—as against claim for dower. The remedy to enforce the right of dower is embraced within the provisions of section 6 -of the Limitation law; and a widow must pursue her remedy within the seven years therein prescribed, or her claim will be effectually barred, as against a party who has been in adverse possession for seven successive years, under claim and color of title acquired in good faith, and has also, during that time, paid all taxes assessed on the land.
    2. Same—color of title-what constitutes—administrator’s deed. A deed having a grantor and grantee, and containing a description of the land intended to be conveyed, and also apt words of conveyance, is good as color of title under the Limitation act of 1839. It makes no difference that the deed fails to pass an absolute title, because the grantor had none to convey, or had no authority to convey one, or whether such want of authority appears on the face of the instrument or aliunde.

    3. An administrator’s d§ed of the land of his intestate, making no reservation of the widow’s dower, is good color of title to the entire estate in the land, according to the purport of the deed upon its face, under section 6 of the Limitation law.
    4. One holding under a deed as color of title, is not obliged to go back to the proceedings which precede the deed, to see if there was proper authority for its execution. So although the petition of an administrator for an order of sale of lands to pay debts, states that the widow has dower in the premises, and the decretal order finds the allegations in the petition to be true, that will not impair the administrator’s deed, which contains no reservation of the dower right, as color of title to the land free of any burden of a claim of dower.
    5. Same—good faith—the elements of it. The knowledge by the holder •of a deed which is color of title, of an adverse claim to or lien upon the property, does not, of itself, indicate bad faith in the holder, and is not even evidence of it, unless accompanied by proof of some improper means to defeat such claim or lien.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.

      Messrs. Patton & Hamilton, for the appellant:
    The remedy of a widow for dower may be barred .by color of title and seven years’ possession and payment of taxes. Owen v. Peacock, 38 Ill. 33.
    An administrator’s deed for land sold to pay debts, is good color of title. Conner v. Goodman, 104 Ill. 365; Stumpf v. Osterhage, 111 id. 82.
    Any instrument having a grantor and a grantee, and con- ] taming a description of the lands intended, and, afterward,' words of conveyance, gives color of title to the lands described. Brooks v. Bruyn, 35 Ill. 392; McCagg v. Heacock, 34 id. 476; Payne v. Markle, 89 id. 66.
    Although ineffectual as a conveyance, a deed may be color of title. Chickering v. Failes, 26 Ill. 507; Hardin v. Crate, 26 id. 215.
    It makes no difference whether the instrument fails to pass an absolute title, because the grantor had none to convey, or had no authority, in law or in fact, to convey one, or whether such want of authority appears on the face of the instrument or aliunde. Brooks v. Bruyn, 35 Ill. 392.
    A quitclaim deed from a tenant for life, of all the grantor’s, interest, to one having no notice that his grantor was only a, tenant for life, is good color. Safford v. Stubbs, 117 Ill. 389.
    In the absence of evidence to overcome it, color of title is presumed to have been acquired in good faith. Brooks v. Bruyn, 35 Ill. 392.
    Claim of title in good faith, is claiming under the sincere-belief of ownership in the premises. The good faith required in the acquisition of color of title, is freedom from a design to-defraud the person having a better title. McCagg v. Heacock, 34 Ill. 479; Davis v. Hall, 92 id. 85.
    Actual or constructive notice of irregularities or counterclaims, does not impute bad faith or fraud to the party who is chargeable with notice. Davis v. Hall, 92 Ill. 85.

      Messrs. Orendorff & Patton, for the appellee:
    The deed in question does not purport to convey the widow’s dower. Washburn on Real Prop. 368; 2 Sugden on Vendors, 561; Rev. Stat. chap. 30, sec. 13.
    The administrator was not authorized to sell and convey the widow’s dower, and an administrator’s deed is not color of title as against the widow’s dower. Busch v. Huston, 75 Ill. 346; Tilley v. Bridges, 105 id. 336; Selb v. Montague, 102 id. 451.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is a petition filed June 7, 1886, in the Circuit Court of Sangamon County, by appellee, as the widow of Martin Melton, who died September 28, 1876, for assignment of dower in two-tracts of land consisting of forty acres each. The premises were sold, on January 26, 1878, by Thomas Hubbard, as administrator of Martin Melton’s estate; to pay debts, by order of the County Court of said County. At the administrator’s sale one tract was purchased by appellant, and the other by Daniel A. Sevier. The two purchasers took possession immediately of the tracts so bought by them. Afterwards on August 14, 1879, Sevier, by warranty deed, conveyed his forty acres ta appellant.

In his answer to the petition, appellant sets up, as a defense to the claim for dower, possession and payment of taxes for seven years under claim and color of title. The proof shows that, under the administrator’s deed to him, appellant was in possession of the 40 acres purchased by him for more than seven successive years and paid all the taxes legally assessed thereon for that period, and that Sevier, under the administrator’s deed to him, was in possession of his 40 acres and paid the taxes thereon up to August 14, 1879, and that thereafter appellant was in possession thereof, and paid the taxes thereon, up to the time of filing the petition herein.

It is not denied by appellee, that all the conditions required by section 6 of the Limitation Law to make the bar of that section complete, have been complied with, if the administrator’s deeds can be regarded as good claim and color of title as against appellee. The only question is whether the two deeds made by the administrator constitute color of title under said sixth section.

The administrator’s deeds are in the usual form. After reciting, that the County Court, in a certain cause, by order duly entered, directed the administrator to sell the land of the estate for the purpose of paying the just claims, and that due notice of sale was given as required by the order or decree, and that the premises were sold in accordance with the notice, etc., each deed witnesses that the administrator “has granted, bargained and sold and, by these presents, does grant, bargain and sell unto the said party of the second part, his heirs and assigns forever all the following described lot, piece or parcel of land, situated, etc., and known and described as follows, to wit: * * * “together with all and singular the hereditaments and appurtenances thereunto belonging or in any wise appertaining and all the estate, right, title, interest, claim and demand whatsoever, at law or in equity, which the said Martin Melton, deceased, had at the time of his death in and to the said premises, to have and to hold the same unto the said party of the second part, his heirs and assigns forever, as fully and effectually, to all intents and purposes in law, .as he, the said party of the first part, might, could, or ought to sell and convey the same by virtue of the said decretal order of the said county court, above referred to.”

We have held that the remedy to enforce the right of dower is embraced within the provisions of section 6 of the Limitation Law, and that a widow must pursue her remedy within the seven years therein prescribed, or her claim will be effectually barred as against a party, who has been in adverse possession for seven successive years, under claim and color of title made in good faith, and has also, during said time, paid all taxes legally assessed on the land. (Owen v. Peacock, 38 Ill. 33; Stowe v. Steele, 114 Ill. 382).

We have also held, that, where real estate is sold hy an administrator, pursuant to a decree of a competent court, to raise assets to pay debts due from the estate, the administrator’s deed is “unquestionably color of title.” (Conner v. Goodman, 104 Ill. 365; Stumpf v. Osterhage, 111 Ill. 82.).

Under these decisions, it would seem to be clear that appellee’s claim for dower is barred, and that the prayer of her petition should be denied.

It is urged, however, on her behalf, that each deed only purports to convey the right, title, etc., which Martin Melton had at the time of his death, and that his interest, when he died, was subject to his wife’s dower. It is furthermore contended, that, by the habendum clause of the deed, the grantee only takes such title as the administrator had the authority to convey by virtue of the decretal order of the county court, and that, as the administrator could only convey the interest of the heirs subject to dower, the deed can not be regarded as purporting on its face to transfer to the purchaser at the sale any other title than one which is subject to the dower right.

It is true that the administrator’s deed conveys the interest of Melton at the time of his death, but it also purports to convey the premises sold without any reference to the interest of any particular person therein. The deed, as above quoted, has a grantor and grantee, and contains a description of the lands intended to be conveyed, and also apt words for their conveyance. Therefore, it gives color of title to the lands described. (Brooks v. Bruyn, 35 Ill. 392). Even if an administrator’s deed, which conveys nothing more than “the estate, right, title, interest,” etc., which the deceased intestate had at the time of his death, can not be regarded as purporting to convey the whole title, yet the descriptions contained in the deeds, which are claimed to give color in the present case, are not limited to such “estate, right, title, interest,” etc. The granting clause contains words of broader scope, as will be seen by reference to the above extract.

As to the limitation contained in the habendum clause, we see in it nothing different from the phraseology, which is generally used in deeds made under orders of court by administrators or other trustees. They do not profess to sell their own property, but only to act by virtue of the authority conferred by a decree of Court. If these words are to have the effect claimed for them by counsel for appellee, then no administrator’s deed can ever be used as color of title. Counsel say, that the purchaser at the sale must look into the decretal order to see what the administrator has a right to convey, and, as the decretal order in this case, although containing no mention of the widow’s dower, finds the allegations of the petition for sale to be true, that such purchaser is bound to examine the petition, which states that the widow has dower.

A party, holding under a deed as color of title, is not obliged to go back to the proceedings, which precede the deed, to see if there was proper authority for its execution. It is sufficient if the instrument “passes only color or the semblance of a title.” “It makes no difference whether the instrument fails to pass an absolute title, because the grantor had none to convey, or had no authority, in law or fact, to convey one, or whether such want of authority appears on the face of the instrument, or aliunde.” (Brooks v. Bruyn, supra.). In the case at bar, it is enough that the deeds made by the administrator do not recite that the property is conveyed subject to the dower right, nor do they mention dower in any way. The words in the habendum clause, that the grantee is to have and hold “as fully and'effectually * * * as he” (the administrator) “might, could or ought to sell and convey the same by virtue of the said decretal order, etc.,” do not require the party, holding under the deed as color, to look any further into the terms of the decretal order than they are set forth in the reciting part of the deed itself.

Nor is it any evidence of a want of the good faith required by "section 6 of the Limitation Law, that the purchasers at the administrator’s sale knew of the existence of the widow at that time. The evidence tends to show that they believed they were getting a good title free of incumbrance. There is nothing in the evidence to indicate that they are chargeable with fraud. Notice of the claims of other persons does not apply under the statute of limitations, as in ease of subsequent purchasers or incumbrancers under the registry act. (Woodward v. Blanchard, 16 Ill. 424; Chickering v. Failes, 26 Ill. 507; Dickenson v. Breeden, 30 Ill. 279). “The knowledge of an adverse claim to, or hen upon property, does not of itself indicate bad faith in a purchaser, and is not even evidence of it, unless accompanied by some improper means to defeat such claim or hen.” (McCagg v. Heacock, 34 Ill. 476).

We think that appellee’s claim for dower is barred, and that the Circuit Court erred in granting the prayer of her petition.

The decree of the Circuit Court is reversed and the cause is remanded for further proceedings in accordance with the views here expressed.

Decree reversed.


author: Mr. Justice Shope

text:
    Lewis Schwass v. Hattie E. Hershey et al.

      Filed at Ottawa October 2, 1888.
    1. Fraud or mistake—in written contract—relief in chancery—parol evidence. While the rule in courts of law is, that the written instrument is better evidence of the intention of the parties than can be furnished by parol proof, and that the writing, therefore, in contemplation of law, contains the true agreement of the parties, courts of equity will, if justice requires it, look beyond the writing, and grant relief from the effect of a contract entered into or founded in mistake or induced by fraud.

      2. In such case, resort may be had to parol evidence to establish the true contract, which, when found by the court, may he enforced by appropriate decree.
    3. Where a purchase and sale are of property other than that described in the agreement and actually conveyed, and the purchaser is induced, by fraud, to part with his money for property different from his purchase, a. court of equity has the power, on bill filed, to declare the true agreement, and grant relief, either by reforming the deed or by compelling specific performance of the real contract.
    4. Where it is sought to establish a contract, by parol, different from that evidenced by an agreement in writing, entered into between the parties, the proof should be clear and satisfactory. In such case, the presumption is in favor of the written contract, and its terms must control, unless it is. clearly and satisfactorily established, not only that the written instrument incorrectly states the agreement, but the contract sought to be substituted must be definitely and clearly shown.
    Appeal from the Circuit Court of Carroll county; the Hon. John V. Eustace, Judge, presiding.
    This was a bill in chancery, in the Carroll circuit court, filed by appellant, Schwass, against Hattie E. Hershey, Andrew H. Hershey, L. Sherman Bowen and Thomas Skipper, alleging that he purchased of Hattie E. Hershey and said Bowen a lot of ground, now included in L. S. Bowen’s addition to the city of Savanna, in said county, and being all of lot 7 and part of lot 5 in the plat of said addition, for $125, and that only lot 7 was conveyed to him by said vendors, and that lot 5 was after-wards conveyed to the .defendant Skipper, who forcibly took possession of the whole of said lot, including the portion thereof purchased by complainant; that he was induced, etc., by the fraud of the defendant Bowen, to accept said deed, and to enter into the contract therefor, etc. The hill prayed that the plat recorded by said defendants Hattie E. Hershey and Bowen, and the deed made by them to Skipper, so far as the same affects the rights or clouds the title of complainant, be removed, abrogated and held for naught, and that the said complainant he fully assured in his title to and possession of said premises, and that said defendants he restrained and enjoined from interfering with or disturbing the complainant in his lawful use and possession of said premises. Answers were filed denying the material allegations of the bill. Upon hearing, the bill was dismissed, and the complainant prosecutes this appeal.
    It appears that Mrs. Hershey and Bowen were owners of an irregular-shaped piece of land adjoining said city, upon which there was a spring. Early in May, 1883, Schwass went to look at the ground, and being unable to find any stakes or boundaries, called on Bowen, who told him it had not been surveyed, but it would be in a few days. Shortly afterwards, Schwass sent Mr. Jacobs to Mr. Bowen. Bowen then told Jacobs that Schwass could have the whole tract for $175, or the larger lot of the tract, upon which was the spring, for $125. Jacobs asked Bowen for a diagram of the tract, which Bowen then made in pencil, on a scrap of paper, substantially as follows :

    On the following Sunday, Jacobs and Schwass visited the land, and found it, as they say, staked off,—that is, stakes driven into the ground at the corners of lots. The land owners platted this tract, with adjoining lands, as L. S. Bowen’s addition. The county surveyor surveyed the land, laid it off into lots, and platted it, on the 10th and 11th days of May, 1883. The whole addition, as platted, will be seen in the following diagram, the ground claimed by complainant being that part of lot 5 lying south of lot 7, included in dotted line:

    On the 1st day of June, 1883, the parties entered, into a written contract of purchase, by which the vendors bound themselves to convey to Schwass, lot 7, as shown on the plat of said addition, upon payment by him of $125, as therein stipulated. On December 1, 1883, full payment having been made, a deed to said lot 7 was made and delivered to Schwass. It appears that the contract was really made on the 26th of May, but dated June 1, as it had to be sent away for execution by Mrs. Hershey. There is a conflict as to what then occurred, Bowen testifying that he exhibited the plat to Schwass, telling him that the lot he was getting was lot 7, on which the spring was. This, Schwass denies. On the 16th day of August, 1884, Hershey and Bowen sold lot 5 to defendant Skipper. Up to that time Schwass had not fenced, but in the evening of the day of Skipper’s purchase he put a wire fence on the line claimed by him, through lot 5, which Skipper tore down, and afterwards erected a board fence between lots 5 and 7, on the line as shown in the plat.
    Mr. James M. Hunter, for the appellant:
    Courts of chancery have full authority and power to restrain parties from unlawful interference with the rights and property of others, and to hear and determine bills to quiet title, and remove clouds from the title to land, whether occupied or improved, or not; and more particularly should they do so when, by fraud or overreaching, parties seek to take or destroy property lawfully owned and possessed by another.
    Mr. James Shaw, and Mr. D. S. Berry, for the appellees:
    Where oral proof is relied on to establish contracts different from the written ones entered into, the proof must be very clear and satisfactory in order to change or reform the written contracts or deeds. Allen v. Webb, 64 Ill. 342; McCornack v. Sage, 87 id. 484; Peck v. Arehart, 95 id. 113; Chase v. Debolt, 2 Gilm. 371; Enos v. Hunter, 4 id. 218; Bishop on Contracts, 707, 708.
    The rule is substantially the same where mistakes are alleged to have been made in deeds or written contracts. The evidence of the mistake must be clear and convincing,—almost irrefragible,—and the strongest possible. Sapp v. Phelps, 92 Ill. 588; Hamlow v. Sullivant, 11 Bradw. 423; Hunter v. Bilyeu, 30 Ill. 228; 2 Pomeroy’s Eq. Jur. 324, 331.
    When contracts are sought to be changed or reformed on account of mistakes, the mistakes must be mutual, and be made by both parties. Sutherland v. Sutherland, 69 Ill. 482; Wilson v. Byers, 77 id. 76; Bispham’s Eq. 244, 246.
    Where specific performance is sought to be enforced, the rule is the same. It requires clear, satisfactory and almost irrefragible proof to authorize the change of the terms of a written contract deliberately entered into. Bowman v. Cunningham, 78 Ill. 48; Trailor v. Hill, 2 Gilm. 364; McCornack v. Sage, 87 Ill. 484; Fleischman v. Moore, 79 id. 539; Brink v. Steadman, 70 id. 241.
    If one carelessly execute a contract without reading it or having it read to him, equity will not interfere to help him out. 2 Pomeroy’s Eq. 322, note 1; 42 Iowa, 107.
    It is negligence in the signer of an instrument to trust the statements of a person seeking his signature, as to the character of the instrument, and if he places confidence in him, it is at his peril. Daniel on Neg. Inst. sec. 850; Dekamp v. Hamer, 29 Ohio St. 467; Chapman v. Rose, 56 N. Y. 138; Douglas v. Matting, 29 Iowa, 498.
    ' Antecedent verbal agreements and talks are all merged in the written agreement when made. Fitzgerald v. Staples, 88 Ill. 234; Pickrel v. Rose, 87 id. 265.
    Where it is doubtful if the agreement alleged to have been concluded was made, no reformation or change can be made by a court of equity. Race v. Weston, 86 Ill. 91; Hamlow v. Sullivant, 11 Bradw. 426.
    A much stronger case must be made to set aside an executed contract than to enforce an executory one. 3 Parsons on Contracts, 415, note.
   Mr. Justice Shope

delivered the opinion of the Court:

The bill seeks to enforce the equitable right of complainant to a part of lot 5, in L. S. Bowen’s addition to the city of Savanna, derived, as it is claimed, by virtue of his contract of purchase thereof. It is averred in the bill, and shown, that the contract was made May 26,1883, but it is not shown that any representations were then made of the area of the lot purchased by complainant. The contract was reduced to writing as of June 1, 1883, and by reference thereto it is seen that the lot agreed to be conveyed, is “known and described as lot No. seven (7), in block No. one (1), in L. S. Bowen’s addition to the city of Savanna,” and by the same description is conveyed to complainant by deed dated December 1, 1883. Lot 7, on its eastern boundary, is one hundred and sixty-four feet in length, but complainant contends that his purchase included a piece of land of the same width of lot 7, and abutting that lot on the south, sixty feet on its eastern boundary, and, practically, thirty feet on its west line.

It is not contended that any representations were made by Bowen, with whom the contract of purchase was made by appellant, by which appellant was misled as to the description of property inserted in the written contract or in the deed. Appellant knew, aside from the fact that the description was shown on the face of the contract and deed, that the premises were described therein as lot 7 in said addition. But the contention is, that by the representations of Bowen, prior to the making of the contract, appellant was induced to believe that by the description inserted in the contract he was getting all of the tract of land included in lot 7, and the abutting piece before described.

In the view we take of the case, no analysis of the bill will be necessary, farther than to state, that without seeking to reform the deed, it seeks to compel a specific performance as contended for by appellant, and a conveyance of that portion of lot 5 in said addition described as abutting on lot 7, to appellant, and to remove as a cloud the deed made to defendant Skipper. The doctrine is well settled, that while the rule in courts of law is, that the written instrument is better evidence of the intention of the parties than can be furnished by parol proof, and that the writing, therefore, in contemplation of law, contains the true agreement of the parties, courts of equity will, if justice requires it, look beyond the writing, and grant relief from the effect of a deed or contract, if entered into or founded in mistake or fraud. In such cases, resort may be had to parol evidence to establish the true contract, „which, when found by the court, may be enforced by appropriate decrees. 1 Story’s Eq. Jur. 153, 161, 768; Gillespie v. Moore, 2 Johns. Ch. 585; Hunter, Admr. v. Bilyeu et al. 30 Ill. 228.

If, by the contract between these parties, the purchase and sale were of the tract of land claimed by appellant in his bill, and he was induced, by the fraud of Bowen, to part with his money and accept a contract in writing, and subsequently a deed, for another and different tract of land, there is no want of power in a court of equity, upon proper bill filed, to declare the true agreement and grant relief, either by reforming the deed or by compelling specific performance of the real contract. The policy of the law, however, is to require evidence of title to real estate to be in writing, that nothing may be left to the frailty of the memory, or as a temptation to the commission of perjury; hence, where it is sought to establish a contract, by parol, different from that evidenced by a written contract entered into between the parties, the proof should be clear and satisfactory. (1 Story’s Eq. 157, note; Miner v. Hess, 47 Ill. 170; Sapp v. Phelps et al. 92 id. 588; Allen v. Webb et al. 64 id. 342.) The presumption is in favor of the written instrument, and that it is the true and full expression of the intention of the parties in respect of the subject matter to which it relates; and the contract thus expressed will control, unless it is clearly and satisfactorily established, not only that the written instrument incorrectly states the agreement of the parties, but the contract sought to be substituted must be definitely and clearly shown. This would be so if appellant was induced to accept the written contract by the fraud of Bowen, for while the fraud might be inferred from circumstances affording a sufficiently strong presumption of fraud to satisfy the conscience of the chancellor, (1 Story’s Eq. Jur. 190,) appellant will still be required to clearly and satisfactorily establish the contract really entered into, and with such certainty and definiteness that the court could declare and enforce it. This, we are of opinion, the chancellor was warranted in finding had not been done by this complainant.

It appears that Bowen and Hershey owned the land now designated as block 1, in L. S. Bowen’s addition to the city of Savanna, and that about May 1, 1883, Schwass applied to Bowen to know the price of the tract of land on which “the spring” was situated. Bowen then told him the land “was not surveyed yet, and that he must wait.” Shortly after this Mr. Jacobs called on Bowen, at the instance of Schwass. Bowen testifies (and is corroborated by many circumstances,) that the survey and plat had not then been made. Jacobs was told that he could have the larger lot for $125, or the smaller lot for $75, or both for $175. It is difficult to understand what was meant by this designation.of the lots not yet surveyed, and comprising only the north end of the tract which it was proposed to plat, unless it be stated that said tract on the north had a frontage of two hundred feet on Van street, which ran north-easterly and south-westerly, thereby making the west line of the tract shorter than the east line thereof. If the north end of the tract was so laid off that it was divided into two lots by a line through the middle, north and south, each lot would have an equal frontage on Van Street; but if the south end of the lots was run at right angles to the east line, as seems substantially to have been indicated in the diagram made for Jacobs by Bowen, the east lot would be the larger of the two. At the interview mentioned, between Jacobs and Bowen, Jacobs requested Bowen to draw a diagram of the tract, which Bowen did upon a scrap of paper. The particular fraud insisted upon is, that by this diagram the larger lot had, on its east line, the figures “236,” and thereby Schwass was misled into supposing that he was purchasing a lot the east line of which would be two hundred and thirty-six feet long, and was induced to part with his money therefor upon that belief, induced by the act of Bowen in making said diagram, whereas, without notifying him of any change in the size of the lots, the conveyance was made of lot 7, which has on its eastern boundary only one hundred and sixty-four feet. It is apparent that very shortly after the making of this diagram the survey and plat were made, for on the next Sabbath after the interview between Jacobs and Bowen, Schwass testifies that he went upon the land, and found the lot staked off. It is not pretended that there were stakes on the tract other than those set by the surveyor who platted the addition. The survey and plat were made May 10 and 11, and although the plat was not recorded until June 14 following, it was in Bowen’s possession from the time of its completion.

As before said, the contract was made May 26, 1883, and at that time, it is shown by appellant’s testimony, the diagram given by Bowen to Jacobs, and by Jacobs to him, was not present, or in any way alluded to by any of the parties. Nor was anything said by either party in reference to the size of the lot contracted to be conveyed, or that could have apprised Bowen that Schwass was relying on said diagram, or upon any representation previously made. Schwass says he bought this lot because it was larger and had the spring on it. On the other hand, Bowen, who, so far as shown by this record, is of equal credit with Schwass, testifies, that at the time of the purchase he produced to Schwass the plat made by the surveyor, upon which the size of lot 7 is designated in figures, and sold him the lot as designated on that plat. Early in May, Schwass was told the land was to be surveyed. Shortly afterward he found stakes designating the boundaries of lots, which were not there at his first examination of the grounds. On the diagram upon which he claims to have relied, the lot was not designated by number, so that when Bowen told him he would sell him lot 7 for $125, on which the spring was situated, it would seem strange that he would not at least inquire if the lots were the same, if he had in his mind the lot as described in the diagram. There was no assurance or suggestion by any one that they were the same, and no question in respect thereof was asked by appellant. The evidence of Bowen is strongly corroborated by the written contract and deed. The deed was, as we have seen, made and accepted by appellant long after the plat had been placed of record. All. of the payments were made by appellant, under his contract, after the recording of the plat, except the sum of $10. Appellant, at no time prior to the sale to Skipper, in the summer of 1884, went into the actual occupancy of the tract of land in question. After the sale to Skipper, and after lot 5- had been measured off to him, appellant took possession of that part of lot 5 claimed by him, by building a wire fence on the line he contends for; but for over a year after his purchase no possession had been taken or claim made to the abutting tract described, so far as shown by this record.

We do not think it can be said that it is clearly and satisfactorily shown that the written contract and deed do not correctly express the contract of the parties; nor does the preponderance of the evidence establish fraud on the part of Bowen, by which appellant was induced to make and enter into the written contract of purchase. It must be said, if it be conceded that appellant entered into the contract and accepted his deed under a misapprehension of the amount of land he was getting, it was through his own negligence. By inquiry he could readily have ascertained the amount of land that lot 7 contained. The means were at hand by reference to the plat. He knew, as we have seen, that he was contracting for lot 7, and it is not shown that any artifice was employed or untrue representations made by the vendors to induce appellant to make the purchase.

The decree of the circuit court dismissing the bill was correctly entered, and will be affirmed.

Decree affirmed.