author: Mr. Chief Justice Scott Mr. Justice Walker :

text:
    Theodore Freydendall et al. v. Lyman Baldwin et al.

      Filed at Ottawa June 21, 1882.

      1. Assignment fob benefit of creditors—what property passes thereby. A voluntary assignment, made by a failing debtor for the benefit of his creditors, if valid, passes all the property, real and personal, which the debtor at the time owned.
    2. Same—jurisdiction of county court—creditor’s bill—whether it will be entertained in chancery. In case of such assignment, the county court, by the statute, is invested with complete and full jurisdiction over the trust fund and the assignee, until the property is disposed of and the proceeds distributed to those entitled to share therein, and a court of equity, on creditor’s bill, where the assignment is not questioned or impeached, will not assume jurisdiction to manage and direct the application of such fund by the assignee, unless under special circumstances, but will leave that to the-county court.
    3. Where a debtor has made a valid general assignment, under the statute, of all his property and effects, for the benefit of creditors, a creditor having a judgment can not maintain a bill in equity to have prior judgments against his debtor set aside on the ground they are void or fraudulent. His remedy in such a case is before the county court, which has the power to determine what creditors are entitled to share in the proceeds of the debtor’s effects, and the priority of the equitable liens of the several creditors.
    4. Whether judgments confessed by the insolvent debtor are void for any reason, or whether executions issued on such judgments were satisfied by a technical levy on personal property and its release, or whether such judgment creditors are entitled to priority over the other creditors by reason of their execution liens at the time of the assignment, are questions within the jurisdiction of the county court, to be decided by it in its supervision and direction of the settlement and distribution of the trust funds in the hands of the assignee.
    5. The'whole management of the estates of insolvent debtors, under voluntary assignments, is by law committed to the jurisdiction of county courts. How the funds in the hands of the assignee are to be paid over and distributed, are matters for the determination of the county court where the proceedings are pending, and its judgments and orders in that respect can only be reviewed on appeal or error.
    6. Chancery—waiver of relief sought in bill. Where a creditor’s bill asked that a voluntary assignment of a debtor, for the benefit of creditors, be set aside as fraudulent, but the matter was not pressed in the court in which the cause was first heard, nor in the Appellate or this court, counsel stating in this court that his position is not hostile to the assignment: Held, that the part of the bill seeking to have the assignment set aside must be treated as having been waived.
    7. Judgment—when a stranger may attach it. A- judgment or decree absolutely void for want of jurisdiction in the court, may be assailed by a stranger to the record, if it affects his prior or superior equities. Otherwise he can not intermeddle with it.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the City Court of Aurora; the Hon. C. D. Smith, Judge, presiding.
    Mr. Charles Wheaton, and Messrs. Nichols & Clapsaddle, for the appellants.
    Mr. A. J. Hopkins, and Mr. N. J. Aldrich, for the appellee the Second National Bank of Aurora.
    ' Mr. R. G. Montony, for the appellees Bebecca M. Baldwin, Nellie E. Higgins,' and Susan S. Jenks.
    Mr. Eugene Canfield, for the appellee William F. Dickinson.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

The bill in this case was brought by a number of the judgment creditors of William Lawrence & Co., and the object was to set aside as fraudulent a voluntary assignment made by that firm, under the provisions of the statute, to William F. Dickinson, on the 25th day of January, 1879. Incidentally to the principal relief, it was sought to set aside a judgment in favor of the Second National Bank of Aurora, also one in favor of Bebecca M. Baldwin, one in favor of Nellie E. Higgins, and one in favor of Susan S. Jenks, because such judgments were alleged to be fraudulent as to complainants. It is also alleged a number of conveyances of real estate made by the judgment debtors to parties named, were fraudulent as to complainants, and should be set aside, and the property subjected to the payment of their respective judgments.

It appears the judgments in favor of the bank and other defendants were all obtained prior to the assignment, and it is charged in the bill that executions issued on such judgments were levied on a stock of merchandise owned by the judgment debtors before the assignment, or at least before the assignee got possession of the goods, and that when the assignee went to take possession of the property, a deputy sheriff had made, or was about to make, a levy on the goods under the executions in his hands. An arrangement was then made between the assignee and the sheriff, with the written consent of all the execution creditors interested in the executions in his hands, if the county court would permit the same to be done, to allow the assignee to take possession of and sell the goods at private sale, and pay the proceeds realized to the deputy sheriff, until the executions in his hands should be satisfied. A petition was accordingly presented to the county court for the leave desired, which was granted. It was under that arrangement the assignee took possession and proceeded to sell the goods, and from time to time paid over to the sheriff or his deputy the proceeds, which, it is alleged, amounted to a large sum of money. The prayer .of the bill is, that the assignment to Dickinson be set aside as fraudulent and void as to complainants, and that a receiver be appointed, and that the execution creditors—the sheriff having the executions in his hands—and the assignee, all be required to account to such receiver for any money or property in their hands that may have come to them under the assignment, or otherwise, belonging to the judgment debtors, to be appropriated in satisfaction of the judgments in favor of the several complainants. On the hearing the court set aside the judgments in favor of Mrs. Baldwin, Mrs. Higgins and Mrs. Jenks as fraudulent and void as to complainants, and dismissed the original hill so far as it asked other relief. On appeal to the Appellate Court for the Second District, that decree, in so far as it set aside the several judgments mentioned, was reversed, and that part of the bill which asked relief as to them was dismissed, but in all other respects the decree of the circuit court was affirmed, and now the original complainants bring the case to this court.

The bill in this case is in the strictest sense a creditor’s bill. It seeks a discovery of assets alleged to be in the hands of persons made defendants, and that the same may be paid to a receiver to be appointed by the court, and to be ultimately appropriated to the payment of complainants’ judgments against the debtor firm. Specific relief is sought concerning certain matters: First, that the assignment made by the judgment debtors on the 27th day of January, 1879, to William F. Dickinson, be set aside as fraudulent as to complainants; and second, that the judgments in favor of the Second National Bank, and in favor of Mrs. Baldwin, Mrs. Higgins and Mrs. Jenks, be all set aside as null and void, because such judgments were all confessed on notes ante-dated, and that the same were not in fact due at the time such judgments were confessed by the attorney in fact of the makers, or that such judgments shall be decreed to be satisfied, because the executions issued thereon were levied by the sheriff on personal property of the execution debtors of sufficient value to satisfy them, and which property was afterwards, with the consent of the execution creditors, surrendered to the assignee of the judgment debtors.

It is a proposition that needs nothing in its support, if the voluntary assignment made by the failing debtors was valid, all the property, real and personal, which they owned at the time passed to their assignee, under the provisions of the statute. Unless, therefore, the assignment could be set aside for some valid reason, it is not perceived what standing complainants can have in a court of equity. A creditor’s bill proceeds on the ground complainant therein has a judgment at law that is a lien upon the property of the debtor, no matter in whose hands- it may be, and the aid of a court of chancery is invoked to assist in subjecting it to the payment of his judgment. While it is true in this case the bill asks that the assignment be set aside, the matter was not pressed on tlie attention of the court in which the cause was first heard, nor was it in the Appellate Court, or in this court. Counsel now states his position is not hostile to the assignment. That being so, that part of the bill that asks to have the assignment set aside may be held as having been waived. No reason is or has been suggested why the assignment is void. It seems to have been made in conformity with the statute, and no cause is shown why it may not stand.

Treating the assignment, as must be done, as valid in law, it is difficult to comprehend on what principle complainants can°demand of a court of equity the incidental relief sought by their bill. Certainly they can not demand that the judgments at law in favor of defendants against the common debtors shall be set aside, unless they are in some way injuriously affected by them, and then only to the extent such judgments interfere with their prior or superior equities. Whether such judgments are absolutely void for want of jurisdiction in the court to render them, is a matter in which complainants have no concern. That question can only be made by a party to the record. A judgment or decree absolutely void for want of jurisdiction in the court, if it affects his prior or superior equities, may be assailed by a stranger to the record. Otherwise he may not intermeddle with it.

All the property the insolvent debtors had at the time of the assignment passed to and vested in the assignee under the statute, and must be administered by him under the supervision of the county court. Section 7, of the act of 1877, in relation to voluntary assignments, makes the assignee subject to the sujiervision of the county court, and such court may, by citation or attachment, compel the assignee to file reports of his proceedings, and of the situation and condition of the trust, and to proceed in the faithful execution of the duties required of him by law in relation to the complete and final distribution and paying over of the proceeds derived from the trust, or any part- thereof, until a final settlement and distribution are made. Thus it is seen the whole management of the estates of insolvent debtors, under voluntary assignments, 'is committed to the jurisdiction of county courts, and by section 14, full authority and jurisdiction are given to such courts in regard to such matters. How the trust funds in the hands of the assignee are to be paid over and distributed, are matters for the determination of the county court where such proceedings are pending, and its judgments and orders in that respect can only be reviewed as the judgments and decrees of other courts of competent and original jurisdiction are reviewable by appellate courts. It was entirely competent for the General Assembly to confer such jurisdiction on county courts, and their jurisdiction in such matters is too manifest to be disputed. Certainly a court of chancery will not assume jurisdiction on a bill to interfere and direct how the county court shall distribute a trust fund over which it has full and complete jurisdiction by positive statute, unless under special circumstances. Although this bill is not framed with a view to obtain any such relief, counsel now say in argument they “do not repudiate the assignment,” but “claim under it,” and are seeking to enforce their “equitable liens under it.” That a court of chancery will not aid them to do, when another court under the statute has full and complete jurisdiction over the subject. The power of a court of chancery to so interpose and wrest from the county court that jurisdiction it has by law in such matters, is not referable to any known head of equity jurisdiction. And since the county court has first obtained jurisdiction, and may be presumed to be exercising it according to law, to that court complainants will be remitted for any relief, if any, to which they may be entitled.

Whether the judgments confessed in favor of defendants were void for any reason, or whether the executions issued on them were satisfied by a technical levy on personal property, when in fact they were not satisfied, or whether defendants are entitled to any priority over other creditors, by reason of their execution liens, in the distribution of the trust funds, are questions within the jurisdiction of the county court, and to he determined by it as it shall proceed in the supervision and direction of the settlement and distribution of the trust funds in the hands of the assignee. These questions must necessarily arise, if they have not already been determined, in that court, when it comes to make the necessary orders for paying over and distributing the trust funds preparatory to final settlement. Should this court now express an opinion upon them, it would answer no purpose other than to advise the county court of its opinion should the same questions he raised in that court, if they ever shall be. That would be a work of supererogation. It will be presumed the county court is entirely competent to determine all questions that may arise within its jurisdiction concerning the trust property which the law has placed under its Immediate supervision.

The judgment of the Appellate Court is clearly right, and must be affirmed, which is done.

Judgment affirmed.

Mr. Justice Walker :

I deny the power of the court of chancery to take jurisdiction in any ease pending in the probate court, of which it has complete jurisdiction. It is, I think, unprecedented, and therefore dissent to so much of this opinion as seems to hold it'may be done under special or any circumstances.


source: Caselaw Access Project

author: Mr. Justice Walker

license: Public Domain

text:
    John A. Smith et al. v. Mary A. West et al.

      Filed at Ottawa June 21, 1882.

    1. Witness—competency—defendant in chancery for a co-defendant. Where a party defendant in a suit in chancery disclaims any interest in the subject matter of the litigation and the result of the suit, he is a competent witness, both at common law and under the statute, for his co-defendants. Under the practice in chancery, a defendant might always testify for a co-defendant, if his evidence did not necessarily involve his own interest.
    2. Remainders—of vested and contingent remainders. Where a conveyance of a particular estate is made to support a remainder over, the tenant for the particular estate takes it, and if the remainder-man is in being, he takes the fee. In such a case the remainder is not contingent as to its becoming a vested remainder, because the title vests in the remainder-man on the delivery of the deed. The title thus vested becomes an estate of inheritance, and in case the remainder-man dies before the previous estate is expended, the title passes to his heirs, unless the deed directs otherwise.
    3. A remainder is vested when there is a fixed right of future enjoyment. A vested remainder is a fixed interest, to take effect in possession after the intervening estate is spent or ceases, but if it be uncertain whether a use or estate limited in futuro shall ever vest, that use or estate is contingent. The fact, however, that the remainder-man may die before the tenant for life, will not affect the vested nature of the estate. It is the present capacity of taking effect in possession, in case the prior estate were determined, that distinguishes a vested from a contingent remainder.
    4. Where a conveyance is made to a woman, of a life estate, and the remainder to the children of her body, or such as may be living at her death, or the descendants of any one that may be then deceased, it will pass immediately to her children a vested remainder in fee, and not a contingent remainder.
    5. Statute oe Frauds—sale of land by parol—performance to tahe a case out of the statute. The owner of several tracts of land sold one of them to his agent in this State in consideration that the latter would fence certain others of the remaining tracts, which the agent did according to the terms of the agreement, though no written contract was made, and in 1856 took actual possession of the tract so sold him, inclosed the same, and put a part of it in cultivation, and made valuable and lasting improvements thereon, and kept such possession until in 1879, when he conveyed .the same to a woman for life, with remainder to the children of her body. It was held, that these facts were sufficient to take the case out of the Statute of Frauds, and that the conveyance vested in his grantees an equitable title to the premises conveyed.
    6. Evidence—as to ownership of land—by paying taxes in former owner’s name. Where a person claimed to have purchased a tract of land from a non-resident owner, for whom he was agent in respect to a large number of other tracts, the alleged purchase being a verbal one, and during a period of thirty years afterward, in paying taxes as agent on his principal’s other lands, he included his own tract in his principal’s list of lands, but there was no proof that he ever charged the taxes on his tract to the principal in any of their settlements: Held, that this was likely a mistake, and the facts did not afford sufficient evidence to show that his claim to the tract alleged to have been bought, was unfounded.
    7. Chanceby—affirmative relief on answer not proper. A defendant is not entitled to affirmative relief on his answer alone, when it is not made a cross-bill. To obtain such relief it must be on original or cross-bill.
    Appeal from the Circuit Court of Henry county; the Hon. John J. Glenn, Judge, presiding.
    Mr. James E. Munroe, for the appellants :
    The defendant Allan could not render himself a competent witness for. his daughter, Mrs. West, by disclaimer. A defendant can not, by disclaiming, deprive the complainant of a full answer to his bill, unless it is evident the defendant should not, after the disclaimer, be continued a party to the suit. Ellsworth v. Curtis, 10 Paige, 105; Glassington v. Thwaites, 2 Russ. Ch. 458.
    If Allan was a proper or necessary party to the suit, or was interested adversely to appellants, he was not competent to testify against them as to any facts occurring between him and their ancestor before his death. The fact that he made a deed of this land to Mrs. West made him a' proper party to the bill, so far as it sought to remove such conveyance as a cloud upon complainants’ title. Himes v. Keightlinger, 14 Ill. 469; McEuan v. Kerfoot, 37 id. 530; Philpot v. Taylor, 75 id. 309; Bradys. McCosker, 1 Comst. 214; Bowles v. Stewart, 1 Schoales & Lef. 227; Gaylord v. Kelshaw, 1 Wall. 82; Ward v. Hollins, 14 Md. 158; Bulkeley v. Dunbar, 1 Aust. 37; Graham v. Coape, 9 Simons’ Ch. 93; Whiting v.

      Rush, 2 Young & Col. 546; 1 Daniell’s Chancery Practice, 707, 708; Robinson v. Davis, 11 N. J. Eq. 305.
    If there remains any interest, right or liability of the assignor which can be affected by the decree, he is a necessary party. Barbour on Parties, 463; Story’s Equity Pleading, sec. 153; Montague v. Lobdell, 11 Cush. 111; Thompson v. McDonald, 2 Dev. & Bat. 463.
    Allan’s deed to Mrs. West conveyed to her only a life estate, and the remainder to the children of her body who might survive her is purely contingent. Beacroft v. Strawn, 67 Ill. 28; Thompson v. Luddington, 104 Mass. 193; Olney v. Hull, 21 Pick. 311; Stevens v. Evans, 30 Ind. 37; Johnson v. Jacob, 11 Bush, 646; Williamson v. Williamson, 11 B. Mon. 368; Robertson v. Wilson, 38 N. H. 38; Augustus v. Seabolt, 3 Metc. (Ky.) 162; Price v. Hall, 5 Law Rep. Eq. Cas. 399; Festing v. Allen, 12 Mees. & W. 278; Smith v. Rice, 130 Mass. 141; Duffield v. Duffield, 3 Bligh, (N. R.) 334; 2 Blackstone’s Commentaries, 169; Fearne on Contingent Remainders, 8, 9, 351; Washburn on Real Prop. *263, 264.
    The deed of Allan to West is a deed operating by way of use, under the Statute of Uses. Shackleton v. Sebree, 86 Ill. 621.
    When possession is relied on to take a case oiit of the Statute of Frauds, it must affirmatively appear that the party obtained possession under the agreement and in part performance of the same, and the improvements must have been made under the contract itself. Pickerell v. Morss, 97 Ill. 220; Padfield v. Padfield, 92 id. 190; Wood v. Thornly, 58 id. 464.
    Mr. Charles Dunham, for the appellees :
    Mr. Allan was a competent witness for the defendants after being dismissed as a party on his disclaimer, and, indeed, before it was shown he had no interest in the land.

      The charge of the taxes on this land for two of the various years, was through mistake in paying on a long list of lands. This tract was listed in Allan’s name during those years, and Allan swears he paid all the taxes on this tract out of his own means.
    It is contended that the remainder in Allan’s deed to the children of Mrs. West is contingent. The uncertainty as to whether they will ever enjoy the estate, does not determine whether their remainder is vested or contingent. Such an estate is vested in interest when the person is in being, and ascertained, who will, if he lives, have an absolute and immediate right to possession upon the termination of all the precedent estates, provided the estate limited to him shall last so long, Howley v. James, 5 Paige, 466; 2 Blackf. 169; 2 Cruise, 270; 4 id. 260; Fearne, 216.
    As to the proper distinction between a vested and contingent remainder, and to show that the children of Mrs. West took by Allan’s deed a vested remainder, counsel also cited the following other authorities: Moore v. Littel, 41 N. Y. 72 : Lawrence v. Bayard, 7 Paige, 75; Vanderheyden v. Crandall, 2 Denio, 18; 4 Kent’s Commentaries, *202; 1 Hilliard on Real Property, 513, 518, 526 a, 527, 528, 529.
   Mr. Justice Walker

delivered the opinion of the Court:

This was a bill, filed by appellants, against Mary A. West and against minor heirs claiming to have an interest in common with complainants, for the partition of the north-west quarter of section 8, town 17 north, range 3 east of the fourth principal meridian, in Henry county, and to remove a deed to her from her father for the land, as a cloud on their title.

It appears that Allan, the father of Mrs. West, entered the land in controversy, with quite a number of other tracts of land, for David A. Smith, in the year 1836; that the title to this tract stood in the name of Smith until the time of his death, which occurred on the 13th of July, 1865, and his will was probated on the 26th of that month, and by it his ten children, as devisees, became invested with the title to this land, if he held any at his death. The bill, as finally amended, claimed that complainants owned the title.

It was set up in .the answer that Smith sold this .tract to Allan in consideration that he would fence certain other of Smith’s lands, which he did according to the terms of the agreement; that he, in 1856, took the actual possession of and enclosed it, and put about twenty acres into cultivation, and had been in the actual and exclusive possession of it ever since, until he sold it to Mrs. West, by quitclaim deed, on the 10th day of July, 1879, and she had been so in possession ever since, claiming it as the owner. Complainants on leave amended their bill, and made Allan a party defendant. He thereupon filed a disclaimer to all interest in the premises. He alleges that he does not claim, and has not claimed since before the filing of the first amended bill therein, any right, title or interest in or to the estate or premises described in the bill, and disclaims all interest and right of every kind in the estate or premises. Complainants filed a replication to Mrs. West’s answer, and also a replication to Allan’s disclaimer. A trial was first had on Allan’s disclaimer, and the issue was found in his favor. A trial was subsequently had on the bill as amended, and Mrs. West’s answer, and the court found in her favor, and rendered a decree dismissing the bill at complainants’ costs, and they appeal to this court.

Whether the practice of trying the issue on Allan’s disclaimer was or not correct, can not matter, as from the evidence in the case he was a competent witness, both at common law and under the statute. It clearly shows he had no interest in the result of the suit. Under the practice in chancery a defendant might always testify for a co-defendant, if his evidence did not necessarily involve his own interest, otherwise a complainant could have prevented a witness from testifying, simply by making him a defendant to the bill.

It is urged that Allan’s deed to Mrs. West only having conveyed a life estate to her, and a remainder to the children of her body, or such as might be living at her death, or the descendants of any one that might be then deceased, the fee remained in him or his heirs until her death, and the fee would not vest in the remainder-man until the life estate should be expended, and hence the remainder was contingent. We do not so understand the rule. We understand it, that when a conveyance of the particular estate is made to support a remainder over, the tenant for the particular estate takes it, and if the remainder-man is in being, he takes the fee. In such a case the remainder is not contingent as to its becoming a vested remainder, because the title vests in the remainder-man on the delivery of the deed. The title thus vested becomes an estate of inheritance, and in ease the remainder-man dies before the previous .estate is expended, the title passes to his heirs, unless the deed directs otherwise.

Fearne, in his work on Remainders, p. 1, in defining them, says: “An estate is vested when there is an immediate right of present or future enjoyment. An estate is vested in possession when there is a right of present enjoyment. An estate is vested in interest when there is a present fixed right of future enjoyment. An estate is contingent when a right of enjoyment is to accrue on an event which is dubious and uncertain. ” Here the event is not uncertain. The children of Mrs. West were in being. Her death is certain to occur, although the time is dubious.

Chancellor Kent,.vo1. 4, p. 202, defines a vested remainder thus: “A remainder is vested when there is an immediate right of present enjoyment, or a present fixed right of future enjoyment. It gives a legal or equitable seizin. * " * * A vested remainder is a fixed interest, to take effect in possession after a particular estate is spent. , If it be uncertain whether a use or estate limited in futwro shall ever vest, that use or estate is said to be a contingency. But though it may be uncertain whether a remainder will ever take effect in possession, it will nevertheless be a vested remainder if the interest is fixed. * * * Every reiñainder-man may die, and without issue, before the death of the tenant for life. It is the present capacity of taking effect in possession, if the possession were to become vacant, that distinguishes a vested from a contingent remainder. When the event on which the preceding estate is limited must happen, and when it also may happen before the expiration of the estate limited in remainder, the remainder is vested, as in the case of a lease to A for life, remainder to B during the life of A, the preceding estate determines on an event which must happen, and it may determine by forfeiture or surrender before the expiration of A’s life, and the remainder is therefore vested. ” The definition and illustrations which he gives are taken from the unquestioned doctrines as collated by Fearne, Cruise, and other commentators of acknowledged authority, and fully supported by adjudged cases.

The application of the rule is well illustrated by Chancellor Walworth, in Hawley v. James, 5 Paige, 466. He says: “A remainder is vested in interest where the person is in being and ascertained, who will, if he lives, have an absolute and immediate right to the possession of the land upon the ceasing or failure of all the precedent estates, provided the estate limited to him by the remainder shall so long last,—in other words, where the remainder-man’s right to an estate in possession can not be defeated by third persons, or contingent events, or by- a failure of a condition precedent, if he lives, and the estate limited to him by way of remainder continues till the precedent estates are determined, his remainder is vested in interest.” So, in Moore v. Littel, 41 N. Y. 72, it is said: “Decisions and text-writers agree, that- by the common law a remainder is vested where there is a person in being who has a present capacity to take in remainder, if the particular estate be then presently determined; otherwise the remainder is contingent. It is said that before the remainder is vested the person must be ascertained, and in this sense that is perfectly true'. The person must be one to whose competency to take no further or other condition attaches, etc., i. e. in respect to whom it is not necessary that any event shall occur, or condition be satisfied, save only that the precedent estate shall determine. ”

In this case, under all of the conditions of the rule, the remainder passed from and vested in the children of Mrs. West. They were then in being, were ascertained and designated as the remainder-men, and were capable of, and did take, a vested remainder, and as has been seen, them death before them mother, without issue, would not prevent or defeat the vested remainder,—it would in such a ease descend to- their heirs. But whatever may become of the estate in the future, we have no doubt it vested in the children of Mrs. West when the deed was delivered. It then follows that Allan had parted with all of his title by conveying the land, and was not incompetent as a witness, because he held no title to or an interest in the land. •

Nor is there the slightest force in the objection that Allan reserved a lien of $'5000 on the land. That was fully paid before he was made a party to the suit. He therefore held no title to or interest in the land, immediate or- remote, direct or collateral, and was competent to testify.

It is urged, however, that the evidence of Allan does not sustain the decree. It is clear, consistent, reasonable, and apparently fair. If it is to be believed, it is ample. He specifies the time, place and terms of the purchase. They are sufficient in every respect to have authorized the specific performance of the contract, had it been asked by original or cross-bill in the case. Its terms are not doubtful or ambiguous, and Allan swears that he did all things required by the agreement, and performed it in full; that he took possession of the property, and made lasting and valuable improvements on it, by fencing the entire tract, and breaking and cultivating a part. This was sufficient to take the contract out of the statute and vest an equitable title in Allan, and he conveyed it to Mrs. West, who continued the possession. If, then, this testimony is reliable, it sustains the decree.

It is urged that the evidence of Allan is not reliable, because, it is insisted, he was mistaken in the date of one or two occurrences. There is, perhaps, nothing more difficult to remember than precise dates. After many years but few can from memory even approximate them. If the evidence of witnesses depended for credence on accuracy in such matters, but few would stand the test. Again, Allan had his house and all of his papers destroyed before he testified, and labored under the disadvantage of not having his books and memoranda from which to refresh his memory. That he could not remember dates, or even should forget occurrences through a period of thirty years, is not surprising, but on the contrary was to be reasonably expected.

It is urged that Allan, two or three years, in paying taxes on Smith’s list of lands, included this, and thus showed he had no claim to it. That such a mistake might occur in paying taxes on a considerable list for thirty years is not surprising; nor does it appear that although paid in Smith’s name the money was not furnished by Allan, and the amount of the taxes on this tract never charged to Smith in their settlements during his life, or with the executor after his death. Neither is alive, nor did complainants produce Smith’s books to repel that conclusion. On the other hand, this tract seems to have always been assessed in Allan’s name, when none of the others were. He took possession of this tract and used it, but there is no pretense that he did either of the others. These are circumstances strongly corroborating his evidence. The circumstances relied on to impeach his positive, clear, and apparently fair and truthful evidence, are too slight to induce us to disbelieve and reject it as untrue. He and Smith were brothers-in-law, and were on the most friendly and confidential terms, and from that fact dealt and acted with less care than had they not been thus connected by family ties. They seem to have had unshaken faith in the fairness and honesty of each otherj hence writings were not drawn to evidence their contracts. Allan’s agency was not in writing, nor did receipts pass on settlements, so far as we can learn from this record; nor did they ever, so far as we can see, have the slightest difference in reference to this or any other matter. From their relations they did their business more loosely and with less care than would strangers or persons having less confidential relations. We, on a careful examination of the evidence,- believe it is true in all of its essential particulars, and that it fully supports the decree.

The views here expressed render it unnecessary to discuss the question whether the Statute of Limitations has barred the suit. If, as we have seen, Allan purchased the land from Smith, and performed the agreement on his part, after having entered into possession under the contract, that affords a complete bar to the relief sought.

It is urged that the court erred in decreeing the fee to be in Mrs. West and her children. A defendant is not entitled to relief on an answer alone, whatever the evidence may be on the hearing. To obtain relief it must be on an original or cross-bill. None was filed in this ease, nor was the answer made a cross-bill, according to the rule announced in Thielman v. Carr, 75 Ill. 385, and Purdy v. Henslee, 97 id. 389, and in this there was error. On the evidence heard the court should have dismissed the bill, at the costs of complainants.

So far as the decree affords relief, beyond the dismissal of the bill, it will be reversed, but in all other respects affirmed, and the costs of this court will be equally divided.

Decree reversed in fart and in fwrt affirmed.


author: Mr. Chief Justice Scott

text:
    The City of Chicago et al. v. Joseph G. Hall et al.

      Filed at Ottawa June 21, 1882.

    1. Appeal—what matters involved—where there a/re several suits relating to the same subject matter. Several chancery suits were consolidated and heard together, and certain of the defendants who had brought suits at law to enforce the individual liability of stockholders, and whose suits had been enjoined in the chancery suits, filed a petition claiming priority, by reason of the institution of their suits at law, of the funds collected from such stockholders. On overruling a demurrer to the petition, the claim of priority was allowed, and from that order the other parties appealed: Held, that the appeal only brought before the court of review the proceedings had upon the petition filed in the consolidated cases.
    2. Tim's—priority of right—when not acquired merely by the institution of suit. The mere institution of a suit at law by one of several creditors of an insolvent bank to enforce the personal liability of a stockholder for the payment of his claim, does not give him a prior right or lien on the fund when collected, to the exclusion of all other creditors of the bank, and the fact that such creditor was prevented from obtaining final judgment in his suit at law by injunction on bill filed by other creditors, after the bringing of the suit at law, can make no difference. Such fund, when collected of the stockholder, under decree in the suits in chancery, is for the benefit of all the creditors who are parties to the suits in equity. In this State it is the final judgment or decree of the court which creates a lien.
    3. Degree—conclusive on parties. Where a suit at law by a creditor of an insolvent bank against a stockholder to enforce his personal liability to creditors, under the bank charter, is enjoined in equity by other creditors of the bank, seeking bjr bill to have the liability of the stockholders enforced as a fund for the payment of creditors, and the stockholders discharge their liability, as found by the decree of the court under the bill, by payment of the sum found against them, and such decree has been affirmed by this court, the decree must stand forever as conclusive of the rights of all persons affected by it, and the fund must be administered by the court on the principles of equity and equal justice, and no priority can be given to the creditor whose suit at law was stayed.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.

      Messrs. Mason Brothers, for the appellants :
    A court of equity which takes jurisdiction for one purpose takes it for all,—it does not do justice by halves. Taylor v. Marine and Fire Ins. Co. 9 How. 390.
    It will, upon undertaking the administration of the assets, enjoin law proceedings, and settle the whole estate, in a case like that at bar, upon the maxim that equality is equity. 2 Joyce on Injunctions, 1048, 1056; Kerr on Injunctions, secs. 103, 107, 108; Rankin, Receiver, v. Elliott, 14 How. 345.
    At law, those who sue first must recover the whole of their debt, which would be palpably unjust. This, of all cases which can arise, seems to call most loudly for chancery jurisdiction. Harris v. First Parish, 23 Pick. 113; Thompson on Liability of Stockholders, sec. 275; Crease v. Babcock, 10 Metc. 525; Coleman v. White, 14 Wis. 700.
    When proceedings are instituted by part of the creditors of an insolvent corporation against the stockholders, to' enforce them individual liabilities for the benefit of all the creditors, no creditor can acquire priority, or commence a separate suit to enforce such liability in his own behalf. Wright v. McCormack, 17 Ohio St. 86.
    The principle that equality is equity should apply in such a case. Briggs v. Penmann, 8 Cow. 392; Bank v. Ibbotson, 24 Wend. 473; Smith v. Huckabee, 53 Ala. 191; Weeks v. Love, 50 N. Y. 571; In re Empire City Bank, 18 id. 199.
    The Supreme Court of the United States holds that under a similar charter all creditors of the corporation are entitled to share alike in the proceeds of the litigation. Carroll v. Green, 2 Otto, 509; Horner v. Henning, 3 id. 228.
    Messrs. Shufeldt & Westover, for the appellees :
    The decree in the injunction suits merely ordered the money to be paid into court, leaving the question of its distribution an open one. It contained no direction as to whom this money should be paid.

      The nature of the liability of the stockholders, in the absence of a directory statute, controls the remedy and fixes the rights of the litigants. This court has settled the law that the remedy is at law. McCarthy v. Lavasche, 89 Ill. 270; Fuller v. Ledden, 87 id. 310; Hull v. Burtis, 90 id. 213; Wincock v. Turpin, 96 id. 135.
    The appellees having brought actions at law against Hunger and Hatch to recover upon an obligation which the law would thus enforce, acquired rights thereby which' a third party could not defeat by a subsequent action.
    If another creditor can take away the plaintiff’s right of recovery, and appropriate the plaintiff’s victory largely to himself, why can not the stockholder, the defendant, voluntarily pay another creditor, and thus defeat a suit pending against him?
   Mr. Chief Justice Scott

delivered the opinion of the Court:

Much confusion exists in the record on account of the introduction of matter wholly irrelevant to the present appeal. The abstract was found to be of little use in ascertaining what the present litigation concerns. Resort has been had to the transcript, and it is seen the appeal brings before this court nothing but the proceedings had on the petition of Joseph G. Hall and others, filed in the consolidated causes of Cunningham et al. v. The Bank of Chicago, and Jacobson et al. v. Piper et al., originally commenced in the Superior Court, on the chancery side of the court. Thrifts v. Fritz, 101 Ill. 457; Smith v. Brittenham, 94 id. 624; Smith v. Brittenham, 88 id. 291.

The petition on which the order appealed from was made, states with sufficient clearness that long before the suit in chancery was begun, petitioners commenced separate actions at law against Hunger and Hatch, to recover upon their individual liability as stockholders therein the several amounts due each of them from the Bank of Chicago; that by the decree of April 2, 1879, petitioners were enjoined from further prosecuting their suits, final judgments therein being prevented by the proceedings in chancery; that Hunger and Hatch had paid into court, under the decree in the consolidated causes in chancery, the amounts of their liability, as fixed by such decree, the aggregate amount being a sum in excess of $40,000; that the sums so paid by such stockholders were not sufficient to discharge the claims of petitioners represented in their suits at law; that by the commencement and prosecution of such suits at law to recover from Hunger and Hatch the amount of their liability, petitioners acquired a prior right to the fund in court to any other creditors not suing, in the order in which they had begun their several suits. Petitioners further stated the order in which their respective suits were begun, the amounts of their individual claims, and prayed that the same be paid and satisfied from the money paid into court by Hunger and Hatch, so far as it would satisfy them. And petitioners further stated, should such fund be distributed to the creditors of the bank generally, without regard to priorities, or suits having been commenced, then, of the $40,000 so paid into court by Hunger and Hatch, $0000 would belong to the complainants in the consolidated chancery causes, and who -are the same parties prosecuting this appeal, and $34,000 would belong to petitioners, there being no other creditors of the bank.

This brief statement contains the substance of all the facts alleged in the petition,—certainly all that are material to an understanding of the case; and to the petition stating these facts, with others more at length, the receiver of the bank and other complainants in the original bill interposed a demurrer, which was by the court overruled, and the demur-rants electing to stand by their demurrer, the court decreed substantially according to the prayer of the petition, and directed that all the money paid into court under its former decree by Hunger and Hatch, being a sum in excess of $40,000, should be paid to Shufeldt & Westover, solicitors for petitioners, less the sum of $4000 decreed to he paid to E. G-. & A. B. Mason, solicitors for Jacobson, for such receiver’s costs, charges and counsel fees. On the appeal of the complainants in the consolidated causes, this decree of the Superior Court was affirmed in the Appellate Court for the First District, and the same parties bring the case to this court on appeal.

A stipulation purporting to be signed by the respective counsel conducting this case, is copied into the transcript filed in the cause. It is entitled in the consolidated causes of Cunningham et al. v. The Bank of Chicago, and Jacobson, Receiver, v. Piper et al., and is as follows: “It is stipulated and agreed that after the entry of the decree of February 2, 1878, herein, an appeal was taken by Isaac P. Coates, assignee, to the Supreme Court, which appeal was disposed of by said court by an affirmance of said decree, February 22, 1879; that after the entry of the decree of April 21, 1879, two appeals were prosecuted from it,—one by the stockholders Hunger and Hatch, and one by all the creditors of the bank who' had sued Hunger and Hatch at law, viz., Piper and others; that in both appeals the decrees were affirmed by the Appellate Court; that appeals were prosecuted by both sets of appellants to the Supreme Court; that the appeal of Piper and others was dismissed in said court, and the appeal of Hunger and Hatch was decided by an affirmance of the decree below as' to said appellants, Hunger and Hatch, and the consolidated cause was properly brought before the Superior Court again in June, A. D. 1881, by filing the proper procedendo and order of affirmance.” The clerk, in making up the transcript of the record filed in this case, states this “stipulation is among the files in this cause, ” but it is not made a part of the record in any manner known to the practice in such cases, and whether it was used on the hearing of this cause in the Superior Court- does not appear.

It is apparent the only question that can arise on the present appeal is, whether petitioners are entitled to the relief decreed to them. That question arises on the demurrer to their petition, and is not otherwise presented. Unless the petition itself states a case that would entitle the parties asking it, no relief ought to have been granted to them. Recurring again to the allegations of the petition as previously stated, it will be seen petitioners base the right to have their claims against the insolvent bank first paid out of the fund under the control of the court to the exclusion of other creditors, upon the fact that “by reason of having first brought actions at law against said Hunger and Hatch to recover the said liability of the said Hunger and Hatch in satisfaction of the claims of your petitioners against said corporation, they acquired a right of priority in said liability, and in and to the funds paid into this court by said Hunger and Hatch, to discharge their said liability. ” The court, by its decree, found, as a matter of fact, the allegations of the petition were true, as stated; that petitioners were creditors, in the several sums stated, of the Bank of Chicago; that long before the chancery suits in which their petition was filed were commenced, petitioners had commenced separate actions at law against Hunger and Hatch on their respective claims, on their liability as stockholders in such bank, and that the sum paid into court by Hunger and Hatch in discharge of their liability as such stockholders, was insufficient to pay in full all the creditors of the bank, and as a matter of law the court found that petitioners, “by reason of their having commenced their said suits at law prior to the said chancery proceedings, and diligently prosecuted the same uptil stayed by order of this court, acquired and obtained and now have first hen upon the said fund now in court, which should be enforced in then- favor, ” and thereupon the court decreed accordingly.

The findings of facts by the court are of course correct, as they appear by admission on demurrer, but the error in the decree consists in finding, as a matter of law, that petitioners had a prior lien on the funds under the. control of the court by reason of being first to commence actions at law against certain stockholders on their liability as such, to enforce payment of their claims against the failing bank. Such is not the law. Whether the liability of the stockholders under the charter of the Bank of Chicago could be enforced at law or only in chancery, is a question that does not and can not arise in this case as it now comes before this court, and no discussion of that branch of the case will be entered upon. ■ The ground of liability, as set forth in the petition, is, that petitioners, by reason of having first commenced suits at law against stockholders on their liability, under the charter of the debtor bank, before other creditors instituted any suits at law or in chancery, acquired a prior lien on that liability, and to the funds paid into court under its decree to discharge such liability, which they have a right*to have enforced in their favor to the exclusion of other creditors. It is not alleged, nor is it true, that petitioners ever recovered any judgments at law against such stockholders. It is stated, however, they were prevented from so doing by the restraining order of the court. On what principle the claim insisted upon rests, is not understood. Under the laws of this State the mere institution of a suit does not create a lien on anything. It is the final judgment or decree that creates a lien. It is a matter of no consequence, so far as the lien is concerned, what prevented petitioners from obtaining judgments at law for the indebtedness of the bank to" them against its stockholders. It is an admitted fact, petitioners obtained no judgments at law against any stockholder of the bank, and without judgments no liens exist that could be enforced in their favor. It is for the reason there is no statute or other law that gives a lien in such cases. It would be to state a new doctrine to hold the mere institution of a suit at law by one creditor gave him a prior right or lien on the fund out of which a class of creditors are to be paid, that would exclude all others from a participation therein until he should first be fully paid out of such fund. Such a rule would rest upon no principle of justice. It would have nothing reasonable in its support, and would be palpably unjust.

The fund mentioned in the petition is now in a court of equity, under its decree, which, if the stipulation found in this record is to be regarded, has been affirmed by a court of last resort, and must therefore stand forever as conclusive of the rights of all persons affected by it, and such fund must be further administered by the court on principles of equity and equal justice. Nothing is shown by the petition herein that would give the petitioning creditors any prior claim upon the fund in court over other creditors of the bank entitled to participate in it.

The judgment of the Appellate Court will be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Judgment reversed.

Mr. Justice Walkeb : I dissent to the conclusion reached by the court in this case.


author: Mr. Justice Scholfield

text:
    Esther E. Taylor v. Simon Reid et al.

      Filed at Ottawa June 21, 1882.

    1. Sale under trust deed—of the notice of sale—effect of malting publication in advance of the time required. Where a deed of trust requires thirty days’ notice to be given previous to a sale, by publication once in each week for four successive weeks, a notice of the sale published the first time a few days more than thirty days prior to the sale, and continued in three other issues of the paper, weekly, is not invalid, but is a substantial compliance with the power. It may be that a notice in such a case published a great length of time before the sale, would be no notice at all, though within the letter of the power.
    2. Same—of notice wider statute—as to the first and last days of publication. The provision of the statute relating to sales under powers in mortgages and deeds of trust, requiring at least thirty days’ previous notice of a sale to be given, whether so specified in the power or not, and that such notice shall be given by publication, once in each week for four successive weeks, in some newspaper, etc., does not require that the last publication shall be at least thirty days before the sale, but it is sufficient that the first publication shall be at least thirty days before the sale, and the publication shall be continuous, as nearly as possible, in weekly newspapers, for thirty days prior to the sale.
    3. Same—and herein, of the evidence of the publication of notice of sale. A certificate of the publisher of k weekly newspaper, that the notice of the sale of land under a trust deed, of which an annexed slip is a true copy, was published for four successive weeks, to-wit: four times in the “Chicago Legal News,” a weekly secular newspaper, published every Saturday in, etc., and that the date of the first paper containing the same was the 9th day of November, A. D. 1878, and that the date of the last paper containing the same was the 30th day of November, 1878, the sale being advertised to take place on December 10, 1878, is a substantial compliance with the statute relating to such notices, and is sufficient evidence of the publication of the notice of the sale, which is required to be made on thirty days’ prior notice, by publication for four successive weeks.
    4. Same—publication of notice in advertising pages of “ Chicago Legal News.” A notice of sale under a trust deed was given on sheets of advertisements attached to the “Chicago Legal News,” which sheets or pages were headed “Chicago Legal News,” and were of the same size as the other pages of the paper, and folded and sent out to subscribers with and as a part of the “Legal News.” The pages containing law or miscellaneous reading were numbered consecutively both at the top and bottom of the page, but the pages containing advertisements were numbered consecutively with the other pages at the bottom only, and in this respect, and in the fact that the entire page is filled with advertisements only, did these pages differ from the others: Held, that the pages of the paper containing legal notices were as much a part of the “Legal News” as any other part of the pages of that publication, and proof of these facts did not impair the evidence of due publication afforded by the publisher’s certificate.
    5. Same—when retention of notes does not invalidate sale. Where a sale is made of lots under a power in a deed of trust to the party holding the notes secured, and the amount of the sales credited on the notes, their retention by the payees, not as subsisting liabilities, but simply'as a muniment of title, will not invalidate the sale, or give the former owner, the debtor, the right to redeem from the sale.

      Appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    Bill was filed in the Circuit Court of Cook county, on the 23d of March, 1881, by Esther E. Taylor, against Simon Reid, Thomas Murdoch, Frederick Fischer, Anton Christian-son Berg, and George S. Bullock, to redeem lots 2 and 4, in block 20, of Duncan’s addition to Chicago, from a sale made under a deed of trust.
    It is alleged in the bill that on the 27th of October, A. D. 1875, the complainant, with her husband, Douglas S. Taylor, borrowed of said Reid, Murdoch & Fischer, partners in business in Chicago under the firm name of “Reid, Murdoch & Fischer, ” the sum of $10,500, for which they gave their promissory note, payable three years after date, with interest at the rate of ten per cent per annum, payable semi-annually ; that to secure the payment of such promissory note the complainant, together with her husband, conveyed lots 2 and 4, in block 20, in Duncan’s addition to Chicago, in trust to L. C. Paine Freer, with power in him, in case of default, etc., on the application of the legal holder of said promissory note, after having given thirty days’ previous notice, by publication once in each week, for four successive weeks, in the “Chicago Legal News, ” or some other newspaper at the time of sale published in the city of Chicago, to sell the said premises at a time specified in such notice, at the south-east corner of Adams and La Salle streets, in the city of Chicago, at public auction, to the highest bidder, for cash, etc.; that on or about the 1st of November, 1878, the said principal sum of $10,-500 being due, and the interest thereon, amounting to $525 due April 27, 1878, and $525 due October 27, 1878, being •unpaid, said firm of Reid, Murdoch & Fischer, being the holder of such note and of notes given for such interest, caused to be prepared and published a notice signed by said Freer, as such trustee, that on the 10th day of December, A. D. 1878, at the hour specified in said notice, at the southeast corner of La Salle and Adams streets, he would sell the said premises under and by virtue of such power, and for the purposes aforesaid; that afterwards, and before the 10th of December, 1878, complainant applied to said Eeid, Murdoch & Fischer, to desist from such sale, and to allow complainant forbearance on the said debt, and said Eeid, Murdoch & Fischer assured complainant that the sale would not make any difference, for all they wanted was their money, and they would take that at any time, after sale as well as before— that there would be no bidders at the sale advertised, and they would have said lands struck off and conveyed to themselves, and would thereafter hold the same, as before, as security for said debt, and would at any time accept said debt and interest, and that it would not make any difference about such sale—complainant could redeem the property after the sale just as well as before. It is further alleged that complainant, relying on and being thrown off her guard by such assurances, did not sacrifice other property to raise money, as she could have done, to redeem said lots before the time fixed for such sale, nor did she attempt to procure bidders to bid at such sale and buy said lands for their value, though said lands were worth much more than the said sum secured thereon. And it is further alleged that said sale coming on, there were no bidders, but said Eeid, Murdoch & Fischer caused said lots to be entered as sold to Thomas Murdoch, one of the members of said firm, for $5919 each, and caused said Freer to execute a deed for the same to him, etc.
    It is charged that the notice was not published, as recited in the trustee’s deed to Murdoch, for four successive weeks in the “Chicago Legal News,” but for at least two of said weeks it was not published in said “Legal News, ” nor in any other newspaper; that the holder of said notes had no -authority or right to become a purchaser at a sale made under and by virtue of the powers aforesaid; that on or about the 2d day of October, A. D. 1879, Reid, Murdoch & Fischer pretended to sell and convey unto Ant'on Christianson Berg the north half of said lot 4, by warranty deed, for the consideration of $3750, and, on the same day, they also pretended to sell and convey unto George Bullock the south half of said lot, for a like consideration of $3750; and it is also further charged that each of the defendants has acknowledged the right of the complainant to redeem said premises until within the then last sixty days. The prayer of the bill is; that the complainant be let in to redeem.
    The answers admit the' borrowing of the money, execution of note and deed of trust, sale under deed of trust, execution of deed of trustee, and sale and conveyance to Berg and Bullock, as alleged, but deny that there was ever any agreement that complainant be allowed to redeem, that the notice was insufficient, but, on the contrary, allege and claim that the sale was, in all respects, regular and legal. The material allegations are all put in issue, and the defendants set up' and rely, also, upon the laches of the complainant in prosecuting her suit.
    On hearing, the court below decreed that the bill be dismissed. From that decree complainant appeals to this court, and assigns for error—
    First—The Circuit Court erred in dismissing said bill.
    Second—The court rejected evidence offered by plaintiff that ought to have been received. .
    Third—The court received evidence offered by defendant that ought to have been rejected.
    Fowth—The court ought to have granted to the plaintiff relief according to the prayer of her bill.
    Mr. Edward Roby, for the appellant :
    The notice, if published as recited in the trustee’s deed, was. insufficient. The trustee’s deed was void for defect of power, and this appears in the deed itself.

      The trust deed required thirty days’ prior notice of the sale, while the notice was for more than thirty days before. Power to sell on thirty days’ notice can not be exercised on sixty or ninety days’ or a year’s notice. Stine v. Wilkeson, 10 Mo. 96; Kellogg v. Garrico, 47 id. 159.
    Power to sell on thirty days’ notice, by publication in a newspaper, requires a publication in every issue of the paper for that period. Stine v. Wilkeson, 10 Mo. 96; Armstrong v. Scott, 4 G. Greene, 433.
    The statute (Rev. Stat. chap 95, sec. 14,) requires at least thirty days’ previous notice of such sales by publication in four weekly issues of some newspaper. This notice was not given until the publication was complete. Burton v. Chicago, 53 Ill. 87; Chicago v. Vulcan Iron Works, 93 id. 222.
    The provision of the statute is not that the trustee shall begin to give the notice thirty days before sale. It means that the four weeks’ publication must be completed before the sale. As to when notice is complete, see Thormeyer v. Sisson, .83 Ill. 188; Scammon v. Chicago, 40 id. 146; Randall v. Sanger, 16 id. 27; Haywood v. McCrary, 33 id. 459; Vairin v. Edmonson, 5 Gilm. 270.
    No laches can be imputed because her notes were kept outstanding, and the keeping of such notes against appellant is evidence that the debt is still outstanding, and the title, though absolute on its face, is still in mortgage. Enner v. Thompson, 46 Ill. 223; Sutphen v. Cushman, 35 id. 196.
    Mr. Frank J. Crawford, for the appellees :
    Appellant’s counsel assumes two propositions: first, that the notice was given too long before the sale; and second, that the notice was not given long enough before the sale. The first is based upon the provisions in the deed of trust, and the second on the statute.
    The authorities cited have no application here, as, if the trust deed was made prior to the time the statute was in force, July 1, 1874, and had simply required twenty days’ notice, one notice published twenty days previous to the sale would have been sufficient. Wild et al. v. Rees, 48 Ill. 428 ; Cushman v. Stone et al. 69 id. 520; St. Joseph’s Manf. Co. v. Daggett, 84 id. 559.
    A longer notice than is required, by a few days, can work no injury, but is calculated to work to the debtor’s benefit. Tooke et al. v. Newman et al. 75 Ill. 219; Beal v. Blair et al. 33 Iowa, 313. See, also, Atkinson v. Duffy, 16 Minn. 48.
    When a statute requires three weeks’ notice to be given before court, it does not require that three weeks shall intervene between the third publication and the session of the' court. Fry v. Bidwell, 74 Ill. 381.
    The publisher’s certificate, which in all respects conformed to the requirements of the law, sufficiently proved that the notice was duly published. That, under the statute, was sufficient evidence thereof. Rev. Stat. chap. 100, sec. 1.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The first objection taken by counsel, in argument, to the decree below, is, “the notice, if published as recited in the trustee’s deed, was insufficient; the trustee’s deed was consequently void for defect of power, and 'this appears in the deed itself. ”

The proof of the notice published, as recited in the decree, was, that “on the 9th day of November, A. D. 1878, the trustee caused due notice to be published in the ‘ Chicago Legal News,’ a newspaper published in the said city of Chicago, that said premises hereinafter described would, on the 10th day of December, A. D. 1878, at the hour of 10 o’clock in the forenoon of said day, be sold at public auction, at the south-east corner of Adams and La Salle streets, in said city of Chicago, in said county of Cook, to the highest bidder, for cash, by virtue of the power and authority in him vested by said trust deed, which said notice was duly published once a week for four successive weeks, to-wit: four times in the said ‘Chicago Legal News,’ and that the date of the first paper containing the same was the 9th day of November, A. D. 1878, and of the last the 30th day of November, A. D. 1878,” etc. The power in the deed of trust required that the premises should be sold at public auction, for the highest and best price, etc., “thirty days’ previous notice of such sale having been given, by publication, once in each week for four successive weeks, in the ‘Chicago Legal News,’ or in any newspaper at that time published in Chicago. ”

The first ground of objection discussed is, under this power no latitude is given the trustee,—the notice must be published precisely thirty days before the day of sale. This is not tenable. The power does not require that the notice shall be published, for the first time, thirty days previous to the day of sale, but simply that there shall be thirty days’ previous notice, etc. It may be conceded that the publication of a notice a great length of time before the day of sale, although strictly within the letter would not be within the spirit of the power, and would be no notice in fact; but that case is not now before us. The sale here was on the 10th of December, and the last publication on the 30th of November,—a reasonable time enough for all purposes of notice.

In Tooke et ux. v. Newman et al. 75 Ill. 219, to a like objection there urged, it was replied: “The claim that the notice is insufficient is extremely technical, and without force or merit. The deed of trust required that there should be published a notice of sale for five consecutive days, the last of which should be ten days before that fixed for the sale. The deed does not" state the last insertion of the notice shall be ten days, and no more, before the sale. Had there been but nine days, then it would have been insufficient, because the longer the notice, within reasonable limits, the greater the number of persons who will see it, and the larger the chances for an enhanced price that may be had for the property. Hence the law gives to the debtor the full benefit of the stipulated notice, and prevents the creditor from abridging the time, and thus injuring his debtor. But a longer notice than is required, by a few days, can work no injury, hut is calculated to operate to his benefit. ” In principle that case and the present, in respect of the point under consideration, are entirely analogous.

In Beal v. Blair et al. 33 Iowa, 318, where it was provided sale might be made upon giving thirty days’ notice thereof, it was held the time of sale was not limited thereby to the day immediately succeeding the expiration of the thirty days.

We have carefully examined the eases referred to by counsel for appellant, and we deem them inapplicable. The dictum in Armstrong v. Scott, 3 G. Greene, 433, relied upon, was subsequently overruled by the same court in Lefler v. Armstrong, 4 Iowa, 487.

The next ground of objection urged is this: It is provided by section 14, chap. 95, Rev. Stat. 1874, that “in all sales of real estate under a mortgage, or trust deed in the nature of a mortgage, executed after the taking" effect of this act, which may be made pursuant to a power of sale, at least thirty days’ previous notice of such intended sale shall be given, whether so specified in the power of sale or not. * * * The notice shall be given by publication, once in each week for four successive weeks, in some newspaper or other paper authorized by law to publish legal notices, published in the county or counties where the premises are situated, or if no paper is published in such county, the nearest newspaper published in this State; but in no case shall a notice be given for a shorter time than is required by the mortgage or deed of trust, ” and the contention is, this requires that the last publication shall be at least thirty days before the sale. But this, in our opinion, is neither in accordance with the letter nor the spirit of the statute. “At least thirty days’ previous notice shall be given, ” says the statute, and this is fully answered by one publication—the first—at least thirty days before the sale. This ends the direction as to when the notice shall be published, and then follows the direction how long it shall be published, namely, “once in each week, for four successive weeks.” Thus there is required a continuous publication, as nearly as is possible by weekly newspapers, for thirty days prior to the sale. Had it been designed the last publication must be at least thirty days prior to the sale, we must presume it would have been so enacted, and as it was not so enacted it can not be held to be the law. Fry v. Bidwell, 74 Ill. 381.

■ The next point urged is, that there was in fact no publication as recited in the decree. It is provided by sec. 1, chap. 100, Bev. Stat. 1874, “that when any notice shall be required by law, or the order of the court, or any contract, to be published in any newspaper, and no other mode of proving the same is provided, the certificate of the publisher, * * * with a written or printed copy of the notice annexed, stating the number of times which the same shall have been published, and the dates of the first and last papers containing the same, shall be sufficient evidence of the publication therein set forth. ” Accompanying and annexed to the -notice here, is a certificate of the publisher of the “Chicago Legal News” that the notice, “of which the annexed printed slip is a true copy; was published for four successive weeks, to-wit, four times in the ‘Chicago Legal News,’ a weekly secular newspaper, published every Saturday in the city of Chicago, county of Cook, and State of Illinois, * * * and that the date of the first paper containing the same was the 9th day of November, A. D. 1878, and that the date of the last, paper containing the same was the 30th day of November, 1878.” This we regard as a full compliance with the section of the statute quoted, and a complete protection to third parties acquiring rights under the sale; but since, as to one lot, the cestuis que trust under the deed of trust are claimants, it is, perhaps, necessary to go farther, and inquire whether appellant has successfully impeached this certificate.

Appellant claims to have impeached the certificate by proof that the pages on which the notice was published were not, in fact, a part of the “Legal News,” though folded with and circulated with it. The substance of the proof is, a large number of advertisements are published in the “Legal News, ” and upon some of the pages on which this notice was published there was nothing but advertisements. These pages were, as the others, however, headed “Chicago Legal News;” they were of the same size as the other pages, and folded and sent out to subscribers with and as a part of the “Legal News.” The pages containing law.or miscellaneous reading are numbered consecutively, both at the top and the bottom of the page, but the pages containing nothing but advertisements are numbered consecutively with the other pages at the bottom of the page only, and in this respect, and in the fact that the entire page is filled with advertisements, do these pages differ from the others. We can not think the omission of the paging at the top a circumstance of any importance. It in nowise affects the question of notice, and is a mere matter-of convenience in making reference, which is as effectually promoted by the paging at the bottom. The law does not require, nor does the deed of trust require, the notice shall be published on a page containing law reading or miscellaneous reading. The pages containing legal notices seem to us to be just as much a part of the “Legal News” as any other of the pages of that publication. We do not think the certificate is at all impaired by the evidence.

Another objection urged by counsel for appellant against the decree below is, there was “no auction, no bidding. ” This is not sustained by the evidence. Freer, the trustee, testifies that he offered the property for sale at public auction; that one of the lots was first bid off by a gentleman whose name he does not recall, and the other was then bid off by Murdoch; that the gentleman bidding off the first lot claimed to have been laboring under a mistake, and in consequence refused to take the lot. He then says: “It is my impression * * * that I went on then and re-offered the first piece of property.” And he subsequently states that “Murdoch became the purchaser of it also.” We do not think Freer’s evidence on this point successfully contradicted.

The objection that no money was paid by Murdoch at the time of the sale, is untenable. It was sufficient that the amount bid was credited upon the note. Jacobs v. Turpin, 83 Ill. 424.

Steumbaugh v. Hallam, 48 Ill. 305, Sutphen v. Cushman et al. 35 id. 186, and Ennor v. Thompson, 46 id. 214, referred to by counsel for appellant, are not in point. In those cases the notes were held by the payees as subsisting evidence of indebtedness, while here they are retained simply as muniments of a title derived by virtue of a sale resulting in their satisfaction. Doubtless, being satisfied, the maker is entitled to their possession. (In re Costar, 2 Johns. Ch. 503.) But their possession by the payees, under the circumstances here proved, does not rebut the idea that there was a sale of the property under the power in the deed of trust.

But counsel insist, as a final and conclusive objection to the decree below, that the equities are such as to preserve the right of redemption, notwithstanding the sale, and, under this head, they contend there was an agreement between appellant and Murdoch, Reid & Fischer, whereby they agreed she should be allowed to redeem, notwithstanding the sale. Appellant testified: “On learning that the property *'* * had been advertised for sale, for foreclosure, Ool. Roberts went with me immediately to see Messrs. Reid, Murdoch & Fischer. We saw Mr. Murdoch and one other gentleman, I don’t know whether it was Mr. Reid or Mr. Fischer, and asked them to give me a little more time, as it was the first I had heard of it, and they told me if I would bring them the amount of the interest then due they would withdraw, and I could make a new loan at a lower rate of interest; but I told them the time was so short, it was too short then for me to raise the money. It was then the 7th or 8th, and the sale was the 10th of December. They told me that the sale then would have to go on, but that I could redeem the property at any time. Mr. Murdoch stated to me that the sale would have to go on, but that I could redeem the property. * * * After he stated to me that I could redeem the property at any time, I left then, feeling very easy, and never thought any more about it for some time. ” She shows that at this time she had with her her attorney, R. Biddle Roberts, who heard the whole conversation, and his recollection fails to sustain her. Among other things he testified: “They (i. e., Murdoch, Reid & Fischer,) stated that they only wanted to get back their loan. I think that Mr. Reid said that the money was not theirs; that they were only acting for other parties, and that they must get back the loan. Mrs. Taylor was unable to give them a distinct assurance as to when she would make a payment, and we parted, as I recollect, they agreeing to postpone the sale if certain payments were made, and stating that all they wanted was their money.” On cross-examination he says this payment was to be made at some time prior to the time the sale was to take place.

The husband of appellant corroborates her, in his testimony, to some extent. He testifies, that after the sale was made Murdoch told him that he (Murdoch) would be very glad to take the money at any time; that he was loaning money; wanted his money and interest, and not property. But this is emphatically denied by Murdoch, and he also denies that any agreement was made whereby appellant should be allowed to redeem after the sale. His testimony is fully corroborated by that of Reid. They admit they agreed to postpone the sale if the interest due should he paid before the day fixed for the sale, but deny that any right of redemption after the sale was recognized.

We can not say the court below erred in finding thejalleged agreement to allow redemption after the sale not proved by the evidence. If such an agreement had been made, it would have been strange indeed if it had no limitations, and yet appellant’s testimony fixes no time within which redemption was to have been effected. It does not, from her testimony, appear that she undertook to redeem at all. She was simply allowed the privilege to do so, indefinitely. Such an agreement, if made, would have been void for want of mutuality. It is most singular that business men should enter into such an agreement. Why have a sale, if no title could pass ?

Some minor objections are urged, which we deem untenable, and not of sufficient importance to specifically notice.

On the whole, we are unable to say there is such error in the record as would warrant us in reversing the decree below. It will, therefore, be affirmed.

Decree affirmed.


text:
    Bernhard Kihlholz v. Fredericke Wolf, Exrx.

      Filed at Ottawa June 21, 1882.

    1. Usury—burden of proof lies on party alleging usury. The burden of proving a transaction usurious, rests upon the party alleging it. The usury must he established by a preponderance of evidence, or else the defence fails.
    2. Same—what constitutes usury—as to commissions paid to party obtaining loan. Where the lender of money at the request of the borrower pays out of the money loaned commissions and other expenses of third persons, as agents of the borrower in procuring the loan, being of no benefit to the lender, this will not render the transaction usurious. It has been held otherwise where the commissions paid the agent inured directly to the benefit of the lender.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    Messrs. Dent & Black, and Mr. Marshall Beck, for the appellant :
    A loan of money, when the lender retains a part of the sum loaned to pay an agent procuring the loan a bonus or commission, above the legal rate of interest, is usurious, although the lender retains only a legal discount. Meagoe v. Simmons, 1 Moody & Malkin, 121; Condit v. Baldwin, 21 N. Y. 219; Bank of the United States v. Owens, 2 Pet. 536; Hine v. Handy, 1 Johns. Ch. 7; Gates v. Hack et al. 57 Ill. 587; Reinback v. Crabtree, 77 id. 182; Meiswinkle v. Jung, 30 Wis. 361; Kendig v. Linn, 47 Iowa, 62; Payne v. Newcomb, 100 Ill. 611.
    The rule in this court is, that usury paid with the principal can not be recovered back, but so long as any portion of the principal remains, out of or in connection with which the usurious interest accrued, it may be deducted from or set off against such principal. Hawhe v. Snydecker, 86 Ill. 197; Mitchell v. Lyman, 97 id. 525; Peddicord v. Connard, 85 id. 102; Jenkins v. Greenebaum, 95 id. 11; House v. Davis, 60 id. 367; Haddin v. Inness, 24 id. 381; Farwell v. Meyer, 35 id. 41; Saylor v. Daniels, 37 id. 331; Jenkins v. International Bank, 97 id. 568; Driscoll v. Tannock, 76 id. 154.
    Mr. W. D. Bishop, and Mr. T. Morrison, for the appellee :
    A party may take from the borrower a reasonable compensation in excess of interest for services and expenditures in procuring the money to be loaned, where there is no intent to evade the law, provided the services were performed and the expenses incurred at the request of the borrower, and upon his express promise to pay therefor. Thwrston v. Cornell, 38 1ST. Y. 281; Shirley v. Spencer, 4 Gilm. 583; Eaton v. Alger, 2 Abbott’s App. Decís. (N. Y.) 5; Eaton v. Alger, 2 Keyes, (N. Y.) 41; Elcbñdge v. Reed, 2 Sweeney, (N. Y.) 155; Beadle v. Munson, 30 Conn. 175; Harger v. McCullough, 2 Denio, 119; Atlanta et al. v. Gage, 48 Ga. 11; First Nat. Bank of Martinsville v. Caustey, 34 Ind. 149; Brown v. Harrison, 17 Ala. 774; 3 Parsons on Contracts, 133, sec. 9; Tyler on Usury, 130-141; Shirley v. Spencer, 4 Gilm. 583.
    This principle seems equally settled in England. Haynes v. Fry, 15 Yesey, 120; Palmer v. Bohee, 1 Maulé & Selwyn, 56; Burden v. Parry, 2 Term K. 52. See, also, Puterbaugh v. Farrell, 73 Ill. 213; Boyleston et al. v. Bayne, 90 id. 283 ; Condit v. Baldwin, 21 N. Y. 219.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

The bill in this case was brought by Henry Wolf, since deceased, against Bernhard Kihlholz, to foreclose two deeds of trust,—one given by defendant to John Buchler, and the other to Otto Wolf,—to secure the sums of money evidenced by the promissory notes described in the trust deeds. Since the death of Henry Wolf the suit has progressed in the name of Fredericks Wolf, executrix of his estate. The defence attempted to be made is, that usury was reserved in the making of both loans. The cross-bill filed by defendant having been dismissed, nothing remained to be considered except the question made whether the transactions were usurious or not. The cause was referred to the master in chancery, to take testimony and report his conclusions. Touching the vital question made by the pleadings, the evidence consists mainly of testimony given by the parties in interest. Some testimony of disinterested witnesses was taken, but it was so remote to the real issue as not to be of a conclusive character. It can not he said it strengthens in any considerable degree the testimony of either party. The report made by the master in chancery presents a very clear and satisfactory analysis of the testimony, and may be regarded as in the main entirely accurate. The Superior Court found by its decree there was no usury in either transaction, and entered a decree of foreclosure for the amount ascertained to be owing to complainant. That decree, on defendant’s appeal to the Appellate Court for the First District, was reversed, because “the direction in the decree as to defendant’s surrendering possession to the purchaser upon the latter obtaining the master’s certificate of purchase, was in contravention of . law, ” but concerning the finding of the Superior Court upon the question of usury, it was the opinion of the Appellate Court it was not erroneous. On the remandment of the cause a second decree was entered by the Superior Court conforming to the views expressed by the Appellate Court, which latter decree, on defendant’s appeal, was affirmed in the Appellate Court, and now he brings the case to this court on appeal.

The question whether- the transactions between the parties were usurious, has been again elaborately argued, and the case has been considered with that care its - importance demands. As before remarked, the evidence touching the issue as to the usurious character of the transactions consists chiefly of that given by the parties themselves. On every material point it is flatly contradictory, and it may be justly said the testimony of neither party finds any considerable support in the testimony of other witnesses. Considering the same question, the Appellate Court, by its then presiding judge, very correctly remarked: “The evidence is so conflicting we can not say there was a preponderance in favor of appellant. ” (8 Bradw. 371.) No reason is perceived for departing from the conclusion reached by the Appellate Court in that respect. It would answer no good purpose to enter again upon an analysis of the testimony. That work has been done by the master to whom the cause was referred. It is sufficient for this court to say, that after a patient consideration of the testimony in the record, it is not perceived it was proven by any preponderance of the testimony that either transaction between the parties was usurious. The law is, the burden of proving a transaction usurious rests on the party alleging it. This he must do by a preponderance of evidence, or else the defence fails. That has not been done in this case. Should the testimony of the original complainant be credited, as the trial court was warranted in doing, it does not appear he received anything above the legal rate of interest on the loans made to defendant. That which was paid as commissions and other expenses was paid by decedent to other persons at defendant’s request. The payments made to third persons to secure the loans were not of the slightest benefit to him. They were made for, and at the instance of, defendant. In this respect it is unlike the case of Payne v. Newcomb, 100 Ill. 611. In that case the commissions paid to the agent transacting the business inured directly to the benefit of the lender, and that was thought to render the loans usurious. A nearer affinity exists between this case and Colehour v. State Savings Institution, 90 Ill. 152, and the reasoning in that case may be referred to as supporting, in some degree at least, the conclusion reached in the case at bar.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.