text:
    George Munroe v. The People, for use of Young, Admr.

      Filed at Ottawa March 28, 1882.

    1. Administration of estates—appointment of 'administrator dc bonis non—whether properly made. Until a valid revocation of letters of administration already granted on an estate is made, the county court has no power or jurisdiction to appoint another as administrator de bonis non of the same estate, and an order for such appointment under such circumstances is absolutely void.
    2. Same—power to revolee letters of administration—and upon what grounds. The county court, in the# absence of statutory authority, has no power to remove an administrator, or to revoke letters of administration, after the administrator has accepted and qualified, and entered upon his duties. And until some one of the causes mentioned in the statute is placed before the court for action, the court has no power to act at all, or, in other words, has no jurisdiction.
    3. In this case the only facts stated in a petition for the removal of an administratrix were, that she had failed and neglected to pay the petitioner the amount of his claim allowed against the estate, although the estate was solvent, and all other allowed claims had been paid, and that she had become the owner, by deed from the heirs, of the only tract of land on which the judgment of the creditor was supposed to be a lien; that to satisfy his demand it would be necessary to sell that land, and that under the circumstances the creditor thought it advisable to remove the administratrix and have a new administrator appointed: Held, that the facts stated gave the court no jurisdiction of the subject matter, as the statute gives no power to remove for any such cause.
    4. Sauk—proceedings upon revocation of letters—proper notice required. On a citation from the county court, served on December 5, 1877, on an administratrix, to appear before that court on the 17th day of that month, and show cause “why she should not pay said claim” of a creditor of the estate, to which she fails to answer or appear, the county court has no jurisdiction, with no further notice to the administratrix, to adjudge that she be removed and her letters revoked. To authorize a revocation, summons to show cause why the same should not be done must be issued and served, and when a revocation is made, the reasons must be spread at large on the record.
    5. Judgment—-jwrisdietion essential to its validity. Where a matter is submitted to a court upon which that court has jurisdiction to consider and decide, and such court does decide, its judgment, though erroneous, is valid until reversed or set aside; but unless a case brought before a court is such that the court has lawful authority to deliberate and decide, isuch court has no jurisdiction, and its decision in such case is a nullity. The case must be one committed to that court by law.
    Wbit of Ebbob to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Will county; the Hon. Josiah McEobebts, Judge, presiding.
    Messrs. Gabnsey & Knox, for the plaintiff in error:
    Mrs. Osgood never was removed from the office of administratrix. The attempted order of removal was void for want of jurisdiction. Before such removal, summons must be issued and served upon the administrator, requiring him to show cause to the contrary. Hurd’s Stat. 1877, sec. 130, p. 105.
    The citation issued against her was under section 115 of the act relating to the administration of estates, to compel the administratrix to show cause why she had not paid the creditor. The penalty for a failure to show cause is not a revocation of letters, but imprisonment, etc.
    The rule that a judgment can not be attacked collaterally, does not apply where it is shown to be void for want of jurisdiction.
    Mr. Stephen E. Moobe, and Mr. Thomas Hutchins, for the defendants in error:
    The county court has power to grant and revoke letters. The theory of the law is, that the court, through-the agency of the administrator, is settling the estate, and any irregularity in the discharge of one agent, and the appointment of another, can not in anywise affect the acts of the de facto administrator. Wright v. Wallbaum et al. 39 Ill. 552; Diffin et al. v. Abbott et al. 48 id. 19; Sheppard v. Rhodes et al. 60 id. 301; Meek v. Allison et al. 67 id. 46; 2 Kent’s Com. 413; Herman on Estoppel, 139.

      The county court being one of general jurisdiction over a particular class of cases, when acting within that sphere has as general jurisdiction as ¡the circuit court, and as liberal intendments will be made in favor of its orders and judgments. Probst v. Meadows, 13 Ill. 169; Reynolds v. People, 55 id. 332; Housh v. People, 66 id. 181; Marsh v. People, 15 id. 286; Searle v. Galbraith, 73 id. 264; Swearengen v. Gulick, 67 id. 208; Beaubien v. Brinckerhoff, 2 Scam. 269; Kenney v. Greer, 13 Ill. 432.
   Mr. Justice Dickey

delivered the opinion of the Court:

Young sues Mrs. Osgood as principal, and Munroe as surety, upon a bond given by defendants for the faithful administration of the estate of Uri Osgood, deceased." The plaintiff sues as administrator de bonis non of the same estate, as the successor of Mrs. Osgood, and for a. failure on her part to pay over to him certain moneys of the estate said to be in her hands. Defendants pleaded, inter alia, that Young is not administrator. On this issue was produced in evidence a full transcript of the record of the county court, from which it appears that that court did make an order revoking the letters formerly issued to Mrs. Osgood, and afterwards did appoint Young administrator de bonis non.

The circuit court, with this transcript in evidence, instructed the jury, as a matter of law arising from this evidence, that “Mansfield Young is administrator de bonis non of the .estate of Uri Osgood, ” and that Mrs. Osgood was removed, and on these questions the law is for the plaintiff. This instruction was clearly wrong. The pleadings show that Mrs. Osgood was appointed, gave bond, and qualified as administratrix of the estate, in February, 1871, and acted as such for many years, and it follows that she still is such, unless the orders of the county court, already mentioned, terminated her administration. On inspection of the transcript of the proceedings of the county court, in which the supposed revocation of her letters occurred, we are of opinion that the order of revocation was and is utterly void, and of no effect whatever.

Defendant in error contends that these orders were made hy a court of competent jurisdiction, and are of force and valid until reversed or set aside. There is no doubt that where a matter is submitted to a . court upon which that court has authority to consider and decide, and such court does decide, such judgment, though erroneous, -is valid until reversed or set aside; but unless a case brought before a court be such that the court.has the lawful authority to deliberate and decide, such court has no jurisdiction, and its decision in such case is a nullity. The case must be one committed to that court "by law. Chief Justice Maeshall said: “Suppose administration be granted on the estate of a deceased person whose executor is present in the constant performance of his executory duties, * * * in* the opinion of the court it would be absolutely void. The appointment of an executor vests the whole personal estate in the person appointed. He * * * holds the legal title in all the chattels of the testator. ” And it is there said, so long as he remains executor, this “is incompatible with any power in the ordinary to transfer these chattels to any other person, by grant of letters of administration on them. His grant can pass nothing,—it conveys no right, and is a void act. It is plain that unless the order revolting the letters of administration granted to Mrs. Osgood be valid, there was no power or jurisdiction in the county court to appoint Young administrator de bonis non, and the order for his appointment was absolutely void.

We think the order revoking and repealing the letters issued to Mrs. Osgood was also a mere nullity,—absolutely void, for want of jurisdiction in the county court to act. The county court, in the absence of statutory, authority, has no power to remove an administrator, or to revoke letters of administration, after the administrator has accepted and qualified and entered upon his duties. Our statute authorizes the removal of administrators, and the revocation of letters, for divers causes mentioned therein. Letters may be revoked “in all cases where the.same were granted * * -* upon any * * * false pretense whatever, ” (Eev. Stat. chap. 3, sec. 26,) and where, after their issue, “a will of the deceased shall be produced, and probate thereof granted according to law, (sec. 28,) and “the county court may revoke all letters testamentary or of administration granted to persons who become insane, lunatic, or of unsound mind, habitual drunkards, are convicted of infamous crimes, waste or mismanage the estate, or who conduct themselves in such manner as to endanger their co-exectitors, or co-administrators, or securities,—in all which cases the court shall summon the person charged to be in default or disqualified, as aforesaid, to show cause why such revocation should not be made. When revocation is made, the reason therefor shall be stated at large upon the record. ” (Sec. 30.) And when notified, (on account of being about to remove from the State,) for four weeks, to appear before the court “and make settlement of his accounts, ” and he neglects or refuses to make such settlement, the court “may remove an administrator from office, ” (see. 31,) and in default of giving other, or additional, or new security, when' required by the court to do so, or in default of settling and adjusting his accounts within a time fixed by the court, the letters of administration “shall be revoked. ” (Secs. 32, 33 and 36.) These are the cases, and (so far as called to our attention) the only cases, wherein power is given by ■ statute to the county court to remove an administrator and revoke and repeal his letters of administration. Until some one of the causes mentioned in the statute is placed before the court for action, the court has no power to act at all in this regard,— has no jurisdiction to act. To render the judgment of any court valid, it is essential that such court shall have jurisdiction of the person, and also of the subject matter. Looking at the full transcript, we find that when the county court made the order revoking the letters granted to Mrs. Osgood, that court had neither.

It was not alleged that any one of the cases, mentioned in the statute as such that the court may order the revocation of letters, was presented or before the court. The only facts' stated in the petition as authorizing the court to act are, that she, as administratrix, had failed and neglected to pay the complaining creditor the amount of his claim allowed against the estate, although the estate was solvent, and all other allowed claims had been paid, and that she, had become the owner, by deed from the heirs, of the only tract of land on which the judgment of the creditor was supposed to be a lien; that to satisfy this demapd it would become necessary to sell that land, and that under the circumstances the creditor thought it advisable to remove the present administratrix and have a new administrator appointed. The statute nowhere gives jurisdiction to the county court to remove for any such cause. The statute prescribes other remedies for such ease. In the language of Chief Justice Marshall, (speaking of the ordinary) : “The case, in truth, was not one within his jurisdiction. It was not one in which he had a right to deliberate. It was not committed to him by the law. ”

Again, the county court had not acquired jurisdiction of the person for this purpose. It is true a citation had been served on her on the 5th of December, 1877, to appear before that court on the 17th day of that month, and show cause “why she should not pay said claim” of this creditor, and that she omitted to appear and show such cause. But this did not give the court jurisdiction of her person to adjudge on the 15th day of the next month, and with no further notice to her, that she, as administratrix, should be removed, and her letters revoked. Circuit courts have jurisdiction to enter judgment in actions of assumpsit. They have also jurisdiction to sentence men to the penitentiary for larceny. It, however, can not be inferred that by a summons in an action of assumpsit, duly served, a circuit court acquires jurisdiction of the person of the defendant to try and convict hinj, in his absence, for larceny of the property, for the price of which the action of assumpsit was ■ brought. Such a proceeding would simply be void. There is nothing in the statute impairing the principle upon which these views rest. On the contrary, before the court has lawful power to adjudge a revocation of letters of administration, it is expressly provided “the court shall summon the person charged to be in default, ” not to show cause why he shall not pay a certain claim, but “tó show cause why such revocation should not be made. ” And the more effectually to limit the power of the county court in such a proceeding, it is added: “When the revocation is made, the reasons therefor shall- be stated at large upon the record. ”

The order removing the administratrix being void, and hence the order appointing an administrator de bonis non being also void, the right to the custody of the moneys and property of the estate remained in Mrs. Osgood. Young was a mere intermeddler, without any rights or legal authority.' The refusal to pay over to him was no breach of the condition of the bond sued on. The plaintiff clearly had no cause of action.

The judgment is therefore reversed, and the cause dismissed.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Dickey

license: Public Domain

text:
    The Traders’ Insurance Company v. Marcus A. Farwell, Collector, et al.

      Filed at Ottawa March 28, 1882.

      Taxes—grounds for enjoining—errors and mistakes. Courts can not convert themselves into assessors of property for purposes of taxation, and re-assess in every case where the assessor has erred in his judgment as to the value of property, even if the tax-paver has notified the assessor that the true value is less than that fixed in the assessment," and the collection of a tax will not be enjoined merely because of an erroneous judgment as to the valuation of the property, or for a mistake in deducting-the proper amount of exemptions, where no fraud is shown.
    Appeal from the Circuit Court of Cook county; the Hon. William H. Barnum, Judge, presiding.
    Messrs. Schuyler & Follansbee, for the appellant:
    An assessment of the capital stock of a corporation made on a wrong valuation, is hot uniform as to class, and is illegal. This court has repeatedly held that a bill will .lie to restrain an illegal or fraudulent assessment. Town of Lebanon v. Ohio and Mississippi Ry. Co. 77 Ill. 539; First National Bank v. Cook et al. 77 id. 622; Republic Life Ins. Co. v. Pollack, 75 id. 295; Chicago, Burlington and Quincy R. R. Co. v. Cole et al. 75 id. 591.
    The capital of the company invested in United States bonds was exempt from taxation. U. S. Rev. Stat. 1874, p. 736, see. 3, 701; Bank of Commerce v. New York City, 2 Black, 620; Bank Tax Case, 2 Wall. 200.
    If, then, the tax on the capital stock is void by virtue of the investment, the> whole tax, including the tax on the franchise, is void, for a tax can not be void in part and legal in part. Campbell et al. v. State, 41 Ill. 454; Johnson v. Colburn, 36 Vt. 693; Allen et al. v. Peoria R. R. Co. 44 Ill. 85; Hilliard’s Law of Taxation, 307, 313; Cooley on Taxation, 571.

      Mr. Francis Adams, and Mr. Consider H. Willett, for the appellees:
    The .franchise of a corporation is property, and subject to taxation. Porter et al. v. Rockford, Rock Island and St. Louis R. R. Co. 76 Ill. 572; State Railroad Tax Cases, 92 U. S. 603; Republic Life Ins. Co. v. Pollak, 75 Ill. 293; Spencer et al. v. People, 68 Ill. 510; Pacific Hotel Co. v. Lieb, 83 id. 603; Law v. People, 87 id. 405; Union Trust Co. v. Webber, 96 id. 354; Chicago, Pekin and Southwestern R. R. Co. v. Raymond, 97 id. 212.
    The ground for relief set up is an alleged excessive assessment. This is no ground for relief in equity. Spencer et al. v. People, 68 Ill. 510; Republic Life Ins. Co. v. Pollak, 75 id. 294; Adsit v. Lieb et al. 76 id. 198; Porter v. Rockford, Rock Island and St. Louis R. R. Co. 76 id. 595; People v. Big Muddy Iron Co. 89 id. 116; Gage et al. v. Evans, 90 id. 569; State Railroad Tax Cases, 92 U. S. 614.
   Mr. Justice Dickey

delivered the opinion of the Court:

This is an appeal from the decree of the circuit court of Cook county, dismissing upon demurrer the bill of appellant, seeking an injunction against the collection of a part of the tax upon its capital stock, complainant having paid part thereof, and offering to pay more, if directed by the court.

The gist of the complaint in the original bill was, that the board of equalization had wrongfully determined that the paid up shares of stock owned by the stockholders were worth. $750,000, when in fact they were not worth over $625,000, and the board had notice that this was so. The difference in these valuations being $125,000, if the latter had been adopted, the result would have shown that the taxable portion of the capital (excluding that invested in United States bonds, as exempt,) did not exceed the equalized value of tangible property, and hence the whole tax on capital stock was wrong.

This corporation, in its return to the Auditor, stated, in substance, that its paid up stock was divided into 5000 shares, of the nominal or face amount of $100 each; that these shares had no market value, but “the actual value” “of the shares of stock” was “par.” The bill now concedes that the actual value of each of these shares was $125. The corporation having stated the actual value inaccurately, it became the duty of the board, under its rules, to determine what was the true value thereof. It did exercise its- judgment, and determined that each such share was worth $150. The bill seeks to have this finding set aside, upon the allegation that in fact the actual value of each was but $125, and the further allegation that the board was notified that this was so, before and at the time of this determination. There is no charge that the board knew and believed that the valuation was wrong. The charge is merely that the valuation was erroneous, and that notice to that effect was given to the board. Courts can not convert themselves into assessors, and re-assess in every case where the assessor has erred in his judgment as to the value, even if the tax-payer has notified the assessor that the true value is less than the value fixed in the assessment.

By an amendment to the bill it is charged that that part of the capital of this company which was invested in United States bonds, was in fact worth $535,000. This being exempt from State taxation, that entire amount should have been deducted in finding the value of the part of the capital subject to tax, and the bill shows that only $500,000 was so deducted. The court is asked to correct this mistake. The appellant, in its return to the Auditor, states: “The amount of capital stock paid up, all of which was on May 1, 1880, and now is invested in bonds of the United States, not subject to taxation, is $500,000.” The bill now says this capital was and is in bonds of the United States, which were and are worth their face and a premium of seven per cent, and says also that the board was notified of this at the time of the assessment. The return does not' state the amount of bonds, on their face, held by the company. It says $500,-000 was invested in United States bonds. If it be true that the cash capital was $500,000, and that this was invested in bonds of the United States when the same were at a premium of seven per cent, it follows that on their face the bonds held by this corporation amounted to but little over $467,289, instead of $500,000.

Nor can we infer, even if this were otherwise, that the board of equalization (after finding the actual value of the shares, in their judgment, to be $750,000, when the company » had reported their actual value to bé par, or $500,000, which is now conceded to have been $625,000,) are to be charged with fraud if they failed to listen to and believe the corporation when it claimed and gave notice that • the value of its United States bonds was in fact $535,000, although by its own report it had said they were worth but $500,000, and this, too, when no statement of the size or number of the bonds so held was given to the board, and no proof offered upon the subject, by the production of the bonds or otherwise.

The demurrer to the bill was properly sustained, and the decree is therefore affirmed.

Decree affirmed.


author: Mr. Justice Dickey Mr. Justice Walker : Mr. Chief Justice Craig :

text:
    Lincoln Avenue and Niles Center Gravel Road Co. v. Joachim Madaus.
    Filed at Ottawa March 28, 1882.
    Witness&emdash;competency of a wife to testify in corroboration of the testimany of her husband in a suit in which he was or was not interested. In an action against a corporation to recover for personal services rendered by the plaintiff for the defendant, a question was made whether the claim arose under a special contract fixing the compensation at less than the amount sought to be recovered. A person, who was not a party to the suit, testified in behalf of the defendant company that he, as agent of the company, made the special contract alluded to, with the plaintiff. The testimony of the wife of this witness was offered in support of that of her husband. The members of the court were not agreed upon the question of fact whether the husband who had testified, had an interest in the event of the suit as being a stockholder in the defendant corporation, or whether his relation to the company was merely that of a contractor and builder of the road to construct which the company was organized,&emdash;but a majority of the judges concurred in holding that under the statute concerning the qualification or disqualification of witnesses the wife was a competent witness whether her husband was a stockholder in the corporation or not.
    Appeal from the Appellate Court for the First District;&emdash; heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    This is an action by Madaus, against the gravel road company, for personal services. The plaintiff gave evidence tending to prove that his services were worth some thirty-six dollars ($36) per month. The defendant contended that the work was done under a special contract for twenty-four dollars ($24) a month. Louisa Harms, the wife of Henry Harms, was offered by the defendant as a witness to prove the making of the special contract in question. The Superior Court of Cook county, where the cause was tried, held that she was not competent as a witness to so testify, and excluded the offered testimony. It was shown that her husband, Henry Harms, was the general agent of the defendant company in the management of its business, and that he was interested in the event of the action, being a stockholder in the defendant company. He had testified that the contract in question was made by plaintiff with him, as the agent of the defendant, and the testimony of his wife was offered in support of that of her husband. A verdict and judgment for plaintiff followed, for the sum of $1200. Defendant appealed to the Appellate Court, where the judgment was affirmed, and defendant brings the case here by appeal.
    Messrs. Osgood & Riggle, and Mr. Edward Riggle, for the appellant:
    Witnesses not parties can not refuse to be examined on any ground derived from marriage, and husbands and wives may mutually discredit and contradict each other, as freely as if the marriage was null. Stapleton v. Crofts, 18 Q. B. 373; Best on Evidence, sec. 175; 1 Phillips on Evidence, 72; Taylor on Evidence, (4th ed.) 1235.
    Messrs. Theodore & T. H. Schintz, for the appellee:
    The common law rule in regard to the disability of the wife to testify in civil cases wherein her husband is interested, is not changed by sec. 1, ch. 51, Rev. Stat. 1874, but has been made a special subject of legislation by the enactment of section 5 of said chapter, and has been only changed in the cases therein specified.
    A statute removing incompetency by reason of interest, does not remove it as to husband and wife, founded on public policy. Mitchinson v. Cross, 58 Ill. 369; Alcock v. Alcock, 12 Eng. L. &.E. 354; Stapleton v. Crofts, 18 Ad. & Ellis, N. G. 367; Hasbrouck v. Vandervort, 5 Seld. 153; Kelly v. Proctor, 41 N. H. 139; Breed v. Gove, id. 452; Crane v. Crane, 33 Yt. 15; Gee v. Scott, 48 Texas, 516. See, also, 1 Greenleaf on Evidence, sec. 333; 13 Ill. 523; 18 id. 88; 25 id. 393.
   Mr. Justice Dickey

delivered the opinion of the Court:

At common law the wife, who was offered as a witness in this case, should clearly be held incompetent to testify for the defendant company, because of the interest of her husband in the result of the suit. Appellant contends that our statute has removed her incompetency. This the appellee denies.

We are not aware that this precise question has ever been determined by this court. In Mueller v. Rebhan, 94 Ill. 142, and in Mitchinson v. Gross, 67 id. 366, this court has decided that in cases where the husband or the wife is a party to the action, the other can be a witness in all the cases in which it is so provided in section 5 of our statute, and neither can be a witness, either for or against the other, where the other is a party to the record, in any case other than those pointed out in section 5. But it has not been decided whether in cases wherein the husband or wife, not being a party, is interested in the event of the suit, the other can be a witness, either to testify in favor of the interest or against the interest of his wife or her husband.

The first section of our statute, in so far as it bears on this question, is in these words: “No person shall be disqualified as a witness in any civil action, * * * except as hereinafter stated, by reason óf his or her interest in the event thereof, as a party or otherwise. ” At common law the wife could not be a witness for her husband where he was a party, or where her husband had an interest in favor of the party calling her, and this, because his interest, as a party or otherwise, disqualified him, and the law held the interests of husband and wife to be the same. Nor could she be a witness against her husband where he was a party, and this, upon the ground of public policy, because any other rule it was supposed would lead to dissensions, and tend too strongly to mar the marriage relation. But she was not held incompetent, in a case where her husband was not a party, to testify against the interest of her husband, or to contradict testimony given by him in the same case, or even to impeach him. Whatever may be thought of the consistency of the views upon which these rules rest, it seems to be true that the rule establishing the incompetency of the wife upon the ground of public policy, did not extend to cases wherein he was not a party, either in form or substance. In 1 Phillips on Evidence, 78, it is said: “They can not be witnesses for each other, because their interests are absolutely the same; they can not be witnesses against each other, because this is inconsistent with the relation of marriage, and would tend to dissension and unhappiness.” Starkie says: “The husband and wife can not be witnesses for each other, for their interests are identical; nor against each other, on grounds of public policy. ” (2 Starkie on Evidence, 706.) In Best on Law of Evidence, see. 175, it is said of the latter branch of the rule, that it applies only “where the husband or wife is a party to the suit in which the other is called as a witness,' and does not extend to collateral proceedings between third parties. ” In 3 Paige, 37, Chancellor Walworth, speaking of the competency of a wife in this regard, says: “ She may be examined as a witness between other parties, although her husband has a collateral interest in opposition to the party calling her.” In Fitch v. Hill et al. 11 Mass. 286, where an action was brought against the maker of a promissory note by the assignee, the payment of which was guaranteed by the assignor, the wife of the assignor and guarantor was called by the defendant, to prove that the note was fully paid by the maker before its assignment. She was held competent. That court said: “The objection is, * * * that her testimony went t.o make him liable, which is said to be contrary to the policy of the law. None of the authorities cited support this position. Where the husband is a party the wife can not be sworn, either for or against him; not for him, because their interests are one, * * * not against him, because it would be likely to promote dissension. But where the liability of the husband is contingent, and not necessarily established by the trial, her testimony may be received.” So, also, in Williams v. Johnson, 1 Peake, 504, where the plaintiff sued one for goods sold, the wife of another, not a party to the suit, was held competent to prove that the plaintiff had sold-the goods in question on the credit of the husband of the witness. So it seems that the rule, founded upon public policy, which forbids a wife to "testify against the interest of the husband, is confined to cases where the husband is a party to the record.

If this be the true view of the common law, it would seem, at first blush, to follow, that any statute providing merely “that interest, as a party or otherwise, shall no longer disqualify á witness, ” would render a wife competent to' testify for or against the interests of her husband, in all cases except those wherein the rule resting on public policy should be in the way,—that is, as we have seen, except in cases wherein he is a party and she is called to testify against him. In other words, it would seem that the passage of such a statute (one saying merely that no witness shall be held incompetent by reason of his or her interest, whether as a party or otherwise,) would render a wife competent to testify in favor of the interest of her husband, or against it, in all actions where he is not a party, and also competent to testify for him in actions wherein he is a party, but leave her incompetent only to testify against him in cases wherein he is a party. And so it was held in Merriam v. H. and N. H. R. R. Co. 20 Conn. 354, under a statute abolishing the common law disqualification of witnesses, by reason of interest, as a party or otherwise, that the wife is a competent witness for her husband in an action where he is a party. The weight of authority on that question is otherwise. Under such a statute it has generally been held, that the removal of objection on account of interest, not removing the objection on the ground of public policy, to a wife testifying against her husband when he is a party, she remains incompetent in such cases; and, being incompetent-in such cases to testify against him, she can not be allowed, where he is a party, to testify for him. Mitchinson v. Cross, 58 Ill. 368; Barbet v. Allan, 10 Eng. L. & E. 596; Stapleton v. Crofts, id. 455; Alcock v. Alcock, id. 354; Hasbrouck v. Vandervort, 5 Seld. 153; Kelly v. Proctor, 41 N. H. 139; Breed v. Gove, id. 452; Crane v. Crane, 33 Vt. 15.

All these cases are confined to the question of competency* of the husband or wife, under such a statute, to testify for or against the other, where such other is a party to the proceeding in question, and they have no bearing upon the question of the competency of the husband or wife to testify, under such a statute, for or against the interest of the other in a case where such other is not a party to the proceeding in question. In fact, in the case of Crane v. Crane, supra, the Supreme Court of Vermont takes note of the distinction between these two classes of cases, and, referring to R. and B. R. R. Co. v. Lincoln’s Estate, 29 Vt. 208, wherein that court had held the wife of one who was interested in the result of the suit, but who was not a party, to be a competent witness for the party in whose favor was the interest of her husband, that court said of that case: “The husband of the witness was not a party to the suit, although he was interested in its event, * * * and the ground of admission in -that case was, she did not come within the rule of exclusion on the ground of policy,” and that “the statute had removed the disqualification arising from her interest or that of her husband in the event of the suit. ”

No case or authority has been cited to support the position that in this case Mrs. Madaus was not a competent witness for the defendant. She does not fall within the rule of exclusion upon the ground of public policy. At common law the only ground of objection to her was her interest in the result of the action by reason of her husband’s interest. That ground having been removed by statute, she was competent, and it was error to exclude her testimony. For this error the judgment must be-reversed, and the cause remanded for a new trial.

, Judgment reversed.

Mr. Justice Walker :

I concur in the conclusion reached

in this case, but hold, under our statute, that the wife was a competent witness whether her husband was or was not a stockholder. I do not concur in the reasoning of the opinion.

Mr. Chief Justice Craig :

I concur in reversing the judgment, but not in what has been said.

Scott and Sheldon, JJ.: Harms was a contractor and builder of the road, and afterwards was superintendent. That being his true relation to the company, he was a competent witness under the statute, and so was his wife. For this reason we concur in reversing the judgment.


text:
    Frederick Parrott v. Adam Kumpf.

      Filed at Mt. Vernon March 29, 1882.

    1. Homestead—purchaser under foreclosure—extent of his rights when homestead not released. A purchaser of land at a sale under a decree of foreclosure of a mortgage, acquires by his deed the absolute title to all that was by the mortgage subjected to the payment of the debt, and no more. If the homestead is not properly released, he takes the surplus in value over $1000, but when the homestead has not been set off he acquires no right to the possession.

      2. Same—indebtedness—whether for the purchase or improvement of the premises. Money borrowed with a view of being used in the purchase or improvement of real estate, and which is so used, as between the borrower and lender does not constitute a debt or liability incurred for the purchase or improvement thereof, within the meaning of the Homestead law.
    3. Pabol evidence—as to whether premises sold under a mortgage were occupied as a homestead. After the foreclosure of a mortgage in which the homestead is not released, and a sale and deed of the property is made, parol evidence is admissible, in an action of forcible detainer for possession, to show that the premises were occupied as a homestead at the time of the execution of the mortgage, and have been so occupied ever since. Such evidence is not to contradict or vary the record, but to show the status of the property at the time of the mortgage, and thus show what, in fact, was the subject matter of the mortgage, and hence the subject matter of the claim.
    4. Constitutional law—law for acknowledgment of deeds and, mortgages—as impairing obligation of contracts. The law in regard to the acknowledgment of deeds and mortgages is not unconstitutional, as impairing the obligation of contracts. The legislature has the power to enact, as to future contracts, that the same shall not be binding or effective in any way without a seal, or without an acknowledgment of a specific kind. Such a statute only prescribes what shall be essential to constitute a valid contract.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of Monroe county; the Hon. Amos Watts, Judge, presiding.
    On December 24, 1872, Adam Kumpf, and Maria, his wife, executed to Frederick Parrott a mortgage on certain real estate in Monroe county, to secure the payment of a note for $2000, five years from that date. On July 9, 1875, Kumpf and wife executed to Parrott another mortgage, to secure the payment of a note of that date for $500, payable December 24, 1877. Both notes bore interest from date, at the rate of ten per cent per annum. After maturity of these notes, Parrott filed his bill against the makers of these mortgages, and certain judgment creditors of the makers, and at the March term, 1878, of the circuit court of that county, procured a decree of foreclosure, directing, among other things, in default of payment of the amount found due by the decree, that “the mortgaged premises mentioned in the bill of complaint, ” (setting the same out by metes and bounds,) “or so much thereof as may be necessary to satisfy this decree, be sold” by the master in chancery, and “that the master, on sale of such mortgaged premises, execute a certificate of purchase to each purchaser, and in default of redemption within fifteen months, the master shall make and execute to the purchaser, or his assignee, a deed in fee simple of said premises.” Under that decree the master, on May 11, 1878, sold the premises to Frederick Parrott, and gave him a certificate of purchase, and on August 13, 1879, the time of redemption having elapsed without redemption, the master executed to Parrott a deed, reciting the decree and sale, etc., and conveying to Parrott, his heirs and assigns forever, the premises described in the mortgage. On January 19, 1880, Parrott demanded possession from Kumpf in writing, which was refused. He thereupon brought this action of forcible detainer to recover the possession of the land named in the mortgage, the decree, and the master’s deed.
    On a trial had before the court (a jury being waived) the plaintiff put in evidence the decree and master’s deed, and his written demand of possession, and proved the fact of present possession. The defendant then proved by parol that at the time of the making of the first mortgage, and ever since, the premises in question were occupied by Kumpf -and his family, as a homestead. This testimony was received against plaintiff’s 'objection, and exception. It was also proven that the mortgages were neither of them given for purchase money, or' to pay for improvements, but on cross-examination it appeared that the last mortgage was given for §500 cash loaned to Kumpf, to be expended in rebuilding a shop which had been destroyed, and that the money was in fact paid out by Kumpf in such rebuilding, and so was expended for improvements made upon the premises. Defendant produced, and put in evidence, the original mortgages on which the decree was founded, and it appeared, on inspection, that in the execution and acknowledgment thereof by Kumpf and his wife, no relinquishment of the right or estate of homestead was made, according to the requirements of the statute. On this proof the circuit court found for defendant, and gave judgment upon the finding. On appeal to the Appellate Court that judgment was affirmed. Parrott now appeals to this court.
    Mr. B. P. Slate, and Mr. B. A. D. Wilbanks, for the appellant.
    Mr. Wm. Winkelmann, for the appellee.
   Mr. Justice Dickey

delivered the opinion of the Court:

We think the judgment of the circuit court is right. Under the foreclosure proceedings the purchaser under the decree acquired by his deed the absolute title to all that was by the mortgages subjected to the payment of the debt, and he acquired no more. He took the surplus in value in excess of $1000. His right so acquired gives him no right to the possession in the present condition of affairs.

Appellant’s counsel insist that it was incompetent to prove the homestead right, because its object and effect was “to change or affect the judgment or decree of a court of record, ” and invoke the doctrine that a record can not be opened, modified or contradicted by parol evidence. The doctrine is sound, but has no application. The evidence did not tend to show that the purchaser did not take all that was conveyed by the mortgage. It was admitted to show the status of the property at the time of the mortgage, and thus show what in fact was the subject matter of the mortgage, and hence the subject matter of the decree. There was no adjudication that Kumpf did not have a homestead estate, or that he had alienated a homestead estate, hence it is no impeachment of the decree to show that he had such estate, which the decree does not profess to deal with.

It is also contended that the homestead estate was not exempt from the lien of the second mortgage, because that mortgage was given, as appellant insists, for improvements on the houses on the premises, and the money was used for that purpose. The language of the statute is: “No property shall, by virtue of this act, be exempt from sale * * * for a debt or liability incurred for the purchase or improvement thereof. ” Where money is borrowed with a view of being used in the purchase or improvement of real estate, and is so used, it can not, in such case-, be said properly that the liability or debt incurred by such borrowing is a debt incurred for the purchase of the property, or a debt or liability for the improvement thereof. As between the lender and borrower, it is a liability for money loaned. As between the borrower and the vendor to him of the property, it may be purchase money, and as between the borrower and the maker of the improvements, it may be regarded as paid for a debt “for improvement thereof. ” In this case we are not dealing with the relations of such parties, and we think this provision of the statute has no application here. (Eyster v. Hatheway, 50 Ill. 531.)

Lastly, it is insisted “that the law with regard to the acknowledgment of deeds and mortgages is unconstitutional and void, as impairing the obligation of contracts.” The claim is, “that deeds and mortgages are contracts, and that after they are signed by the parties then the contract is complete, and if not acknowledged at all, the contract is good between the parties.” Whether a contract be complete by the mere signing by the parties, depends upon the law of the place at the time when the contract is signed. It is within legislative power to enact, as to future contracts, that the same shall not be binding or effective in any way without a seal, or without an acknowledgment of a specific kind, or without being recorded. Where any such enactments are in force, papers purporting to be contracts, though signed by the parties, are not in reality contracts at all until the statutory condition be complied with. Such statutes do not impair the obligations of a contract. They simply prescribe what shall be essential to constitute a valid contract. No constitutional provisions forbid such enactments.

The judgment of the Appellate Court,in this case is therefore affirmed.

Judgment affirmed.


text:
    William P. Bradshaw, Admr. v. William S. Combs.

      Filed at Mt. Vernon March 29, 1882.

    1. Witness—competency in suit against administrator. The principal in a promissory note is a competent witness in a suit in equity by the surety against the administrator of the payee, to enjoin the collection of the note, on behalf of the surety, to prove a valid contract by the payee extending the time of payment to the principal without the consent of the surety.
    2. In chancery, any defendant was always competent to testify in behalf of a co-defendant on any question in the decision of which he had no interest, and the passage of the act of 1867, abolishing the disqualifications of witnesses, has in no manner impaired that rale. The qualifications to the general rule therein stated are mere limitations upon the effect of that act in rendering a witness competent in cases wherein he had been before incompetent. It does not-render any witness incompetent when, in the absence of ■ the statute, he was and had been competent.
    3. Evidence—parol—to add to written contract. An indorsement upon a note, “it is agreed by the parties to this note that the interest shall be at the rate of ten per cent until paid,” and signed by the principal maker, does not render parol evidence incompetent to prove that when the indorsement was made and signed, it was agreed between the principal and the agent of the payee that the time of payment should be extended one year, and that the promise to pay ten per cent interest, instead of eight, was the consideration for the agreement to give the extension. When only a part of a contract is reduced to writing, and the part so reduced to writing is merely a partial execution of a part of an entire agreement, the whole agreement may be proven.

      4. Same—leading questions—when proper. In the case of a reluctant or unwilling witness, the law does not require a s’trict and literal adherence to the general rule forbidding leading questions to a party's own witness.
    5. Remedy—of surety for release for extension of time to principal. A court of equity has jurisdiction to enjoin the collection of a note, at the instance of a surety, where the payee or his agent has made a valid extension of the time of payment with the principal, without the knowledge or consent of the surety.
    Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Madison county; the Hon. Amos Watts, Judge, presiding.
    On the 13th of July, 1865, George A. Miller and W. S. Combs made their joint and several promissory note for the sum of $1350, payable to Patience C. Morrison, or order, two years after date, with interest from date, at the rate of eight per cent per annum, payable annually. This note was delivered to A. W. Brown, for Mrs. Morrison, to secure the repayment, with interest, to her of $1350 in cash, lent to Miller through Brown, as her agent, Combs joining in the note as a mere surety, and this was fully known to Brown. Brown continued to act as her agent until 1876, in which year she died. Bradshaw, administrator cle bonis non of the estate of Mrs. Morrison, deceased, brought an action at law against Miller and Combs upon the promissory note.
    This is a suit in chancery, brought by Combs against Bradshaw, as such administrator, and against Miller, to enjoin the collection of the note as against Combs, upon the ground that (as alleged in the bill) the creditor and the principal debtor had, without the knowledge or consent of the surety, made between themselves a valid contract, on about July 13, 1870, for the extension of the time of payment for one year from that date, upon consideration that the debtor undertook to pay interest thereafter at the rate of ten per cent per annum. This allegation, among others, was denied in the answer of the administrator, and replication was filed. Miller gave his deposition. The evidence of Brown was also heard in behalf of complainant. On final hearing the bill was dismissed. On appeal to the Appellate Court this decree was reversed and the cause remanded. Upon a second hearing, in pursuance of the views of the Appellate Court, a decree was entered perpetually enjoining further proceedings against Combs upon that note. This latter decree was affirmed by the Appellate Court, and the administrator brings the case here for review.
    Mr. A. W. Metcalf, for the plaintiff in error:
    Miller, the principal in the note, is incompetent as a witness, because a party to the suit at law sought to be enjoined. That being a suit by an administrator, he is excluded under section 2 of the act entitled “Evidence, ” not being embraced in any of the exceptions. Boynton v. Phelps, 52 Ill. 219; Merrill v. Atkins, 58 id. 59; Richerson v. Sternberg, 65 id. 272; Donlevy v. Montgomery, 66 id. 227; Langley v. Dodsworth, 81 id. 86. .
    If the defendant in error had introduced Brown, the agent, then Miller would have been competent, but can not be so unless this is done. Marshall v. Karl, 60 Ill. 208; Freeman v. Freeman, 62 id. 189; Stonecipher v. Hall, 64 id. 121; Jacquin v. Davidson, 49 id. 82.
    Miller being incompetent in the suit at law as a party to the record, can not be rendered competent by the surety suing in equity alone, and making him a defendant. Boynton v. Phelps, 52 Ill. 210; Whitmore v. Rucker, 71 id. 410.
    That parol evidence was not admissible to vary the contract indorsed on the note, and show that a definite period of extension was agreed to, while the writing shows it to be indefinite, see Marshall v. Gridley, 46 Ill. 247; Purinton v. N. I. R. R. Co. 46 id. 297; Lane v. Sharp, 3 Scam. 573; Magee et al. v. Hutchinson, 2 Gilm. 269; Harlow v. Barnett, 15 Ill. 56; Perry v. Graves, 12 id. 289; Rall et al. v. Ben

      jamin, 56 id. 106; Beattie v. Brown, 64 id. 360; Weaver v. Fries, 85 id. 357.
    While in many cases of sureties courts of equity will take cognizance, it is only where the remedy at law is incomplete. In a case like this the surety’s remedy is as complete at law as in equity, and the court of law having first acquired jurisdiction, was the proper forum to settle the rights of the parties. Thomas v. Caldwell, 51 Ill. 139; Ramsey v. Perley, 34 id. 504.
    To release a surety by an extension of the time of payment to the principal, it must be without the assent of the surety, and upon a new consideration, and the extension must be for a definite time. Flynn, Exr. v. Mudd & Hughes, 27 Ill. 323; Pearl et al. v. Wilhaus, 11 id. 352; Woolford v. Dow, 34 id. 424.
    Mr. Frank W. Burnett, for the defendant in error:
    1. As to the jurisdiction of equity: This is the appropriate remedy for the relief of a surety in' such cases. High .on Injunctions, secs. 1375, 1376; Story’s Eq. Jur. sees. 324, 325'.
    The distinct ground of equity jurisdiction here is, that the remedy at law is not as adequate as in equity, for the reason that the principal debtor was not a competent witness at law, and is competent in equity. Norton v. Woods, 5 Paige, 249; Miller v. McCann, 7 id. 451; Jarvis v. Chandler, Turn. & R. 319; Melter’s Admr. v. Melter, 4 C. E. Greene, 457; Hayward v. Dinsdale, 17 Ves. 111.
    2. As to the competency of Miller: The statute permitting parties to testify, except in certain cases, was intended to enlarge the rule, and not to restrict it. Its object was to remove disqualifications, and not to add them, where not existing before. Before this statute, at law no party to the record could testify, whether interested in the result or not, while in equity a party not interested in the result could testify. Kimball v. Cook, 1 Gilm. 433.

      Miller had no interest in the result, or it was equally balanced, and he was competent as a witness. Kennedy et al. v. Evans, 31 Ill. 269; Norton v. Woods, 5 Paige, 249; Miller v. McCann, 7 id. 451.
    3. As to the competency of the testimony: The parol evidence only showed the consideration of the written agreement to pay ten per cent interest instead of a less rate. This was not to add to or vary the contract, but to give it validity and effect. The contract was of two parts, consisting of mutual promises, the promise of Miller; to pay the ten per cent, and the promise of Brown to extend the time of payment. The one formed the consideration for the other, and both might be in writing, or one in writing and the other by parol. Bishop on Cont. secs. 61, 65, 512; 429, 421, note ; Morgan v. Fallenstein, 27 Ill. 31; Morris v. Tillson, 81 id. 608; Donlin v. Daegling, 80 id. 608; 1 Parsons on Contracts, 448.
   Mr. Justice Dickey

delivered the opinion of the Court:

Counsel for plaintiff in error contends that under our statute Miller, being a party to this suit, could not properly be allowed to testify for Combs upon this point, because the fact sworn to occurred before the death of Mrs. Morrison. He relies upon the provisions of the act of 1867 as to the competency of witnesses, which is now, with some additions and modifications not affecting this question, incorporated in the first eight sections of chapter 51 in the Revised Statutes of 1874, entitled “Evidence and Depositions.” Before the passage of that act, by the rules and usages of courts of chancery one defendant was held competent to testify in behalf of a co-defendant on any question in the decision of which he had no interest. The passage of that statute has in no manner impaired that rule. The first section (Rev. Stat. 1874, p. 488,) abolishes all disqualifications of a witness by reason of interest, as a party or otherwise, except as thereafter stated in the act. The qualifications thereafter-found are mere limitations upon the effect of that act in rendering witnesses competent in cases wherein they had been incompetent. Nothing in the act contained indicates an intention to render any witness incompetent in any case where, in the absence of the statute, he was, and had been, competent. We think Miller was properly held a competent witness.

It is also contended that parol evidence of the contract charged was rendered incompetent by a writing found upon the note. The note has indorsed upon it the following: “It is agreed by the parties to this note that the interest shall be at the rate of ten per cent until paid. ” This writing is signed by George A. Miller, the principal debtor, and bears date July 13, 1870. The testimony of Miller is, that at the time when this memorandum was signed by him it was agreed 'between himself and Brown, the agent of Mrs. Morrison, that the time of payment should be extended one year, and that this promise to pay ten per cent was made in consideration that the creditor agreed to forbear for one year. It is insisted that to receive this oral testimony is to vary the terms of a written agreement by parol proof of what was said at the making thereof, which the law forbids. We think not.- Had the parol proof offered been that the new rate of interest was to be nine per cent instead of ten, the rule in question would hake applied. Where parties reduce them agreement to writing they can not be allowed to vary its terms by parol; but where it is evident that the agreement is not reduced to writing, but only a part of it, and where that part reduced to writing is merely a partial execution of a part of an entire agreement between the parties, the whole agreement may be' proven. A man may buy a horse at $100, and agree to give his note, at one year, for $80 of the price, and to do labor at a given rate to the amount of $20, in payment for the horse. In such case the fact that he gives his note for the $80, and no other writing is made except the note, does not preclude the vendor of the horse from proving the promise to do the labor, nor would such fact prevent the purchaser of the'horse from proving the contract of sale, so as -to sustain his title to the horse. The case at bar is of that class of cases presented by this illustration. There was no valid objection to the proof on this ground.

Complaint is made that leading questions, and answers thereto, were permitted, and especially in the examination of Brown. After a careful examination of this suggestion we think no wrong was done. Brown was plainly a reluctant or unwilling witness. In such cases the purposes of truth and justice do not demand a strict and literal adherence to the general rule on the subject.

We think the proofs fully sustain the decree, and that the appropriate remedy for the relief of Combs, as surety, has been pursued in this case. High on Injunctions, (2d ed.) secs. 1375, 1376; Story’s Eq. Jur. secs. 324, 325.

Finding no error in the record, the judgment of the Appellate Court is affirmed.

Judgment affirmed.


text:
    E. Bonham v. The People, for use of Wilson, Admr.

      Filed at Mi. Vernon March 29, 1882.

    1. Limitation—when the statute begins to run—sufficiency of a plea. A plea to an action on a guardian’s bond, by a surety, that he 'did not, at any time within sixteen years before the suit, execute the bond, is clearly bad. The limitation runs only from the time a cause of action accrues, and not from the date of the bond, and it requires both the execution of the bond and its breach to constitute a cause of action.

      2. Same—saving of right of action after disability ceases. Section 19 of the Limitation law, Rev. Stat. 1874, and section 21 of the same law, saving rights of action after a party’s disability is removed, or his death, have no application where the cause of action would not be barred in the absence of such statutes.
    3. Plea—must answer all it professes to answer. A plea in an action upon a guardian’s bond, which professes to answer two breaches assigned in the declaration, is bad, if it does not set up a good defence to both of the breaches.
    4. Guardian’s bond—conditions as to liability for converting the ward’s money to use of guardian. An assignment of a breach of the condition of a guardian’s bond, that the guardian had converted to his own use a large amount of the moneys of his ward, is not answered by a plea that no adjustment was ever had of the accounts of the guardian by the probate court, and that the guardian had not been ordered by that court to pay to the ward in her life, or to the administrator of her estate after her death, any sum of money, and that the guardian had never been cited to appear before that court and make a settlement of his guardianship. Our statute provides, that whenever the condition of the bond of any guardian shall be violated, suit may be instituted on such bond, and prosecuted to final judgment against such guardian and any one or all of the sureties, or against one or more of them, “without first establishing the liability of the principal by obtaining judgment against him alone, ” and that it shall not be necessary to a recovery that a devastavit shall' have previously been established against the principal.
    Appeal from the Appellate Court for the Fourth District ;—heard in that court on appeal from the County Court of Wayne county; the Hon. Carroll C. Boggs, Judge, presiding.
    This was an action upon a guardian’s bond, brought in the county court of Wayne county, by appellee, against the guardian and against appellant. The declaration charges that the bond was executed by Justus Beach, guardian of Laura J. Stinnett, a minor, in the sum of $1000, with appellant as surety, dated February 22,' 1861, setting out a bond in the ordinary form; that Beach was duly appointed such guardian and then entered upon his duties, and so continued to be such guardian until September, 1874, when said Laura died intestate; that on December 20, 1878, Wilson was duly appointed administrator of her estate by the county court of said Wayne county, and qualified as such. The declaration charges, as the first breach of this bond, that while he was so guardian, etc., divers large sums of money— that is, $1000, the property of said Laura,—came to his hands as such guardian, which he “disposed of to his own use, ” and refused to pay the same to her in her lifetime, and still refuses to pay to her administrator. Other breaches were assigned, which, from the view taken of the case by the court, need not be stated. Process against the principal was returned not found, and the plaintiff proceeded to judgment against the surety only.
    To this declaration appellant pleaded several pleas, upon some of which issues of fact were joined, and found against him, and to some of which demurrers were sustained by the court. Among the pleas thus held bad, were the following:
    No. 4. And for a further plea in this behalf, the said defendant says actio non, because he says he did not, at any time within sixteen years next before the commencement of this suit, execute the said supposed writing obligatory, in the declaration mentioned, etc.
    No. 9. And for a further plea to the first and fourth breaches in said declaration contained, which breaches charge the receipt of money by said guardian, said defendant says, etc., because he says that no adjustment was ever had of the accounts of said Justus Beach, as guardian of said Laura J. Stinnett, deceased, by the probate court of said Wayne county, and said guardian ordered by said court to pay to said Laura J. Stinnett during her lifetime, or to the said Wilson since her decease, any sum of money claimed to be due from said guardian, nor had said guardian ever been cited or notified to appear in said court and make a settlement of his said guardianship; wherefore, etc.
    No. 10. And for a further plea, etc., because he says that said Laura J. Stinnett departed this life, to-wit, on the first day of October, 1873, within the age of eighteen years, and that this suit was not brought within one year from the time of said decease; wherefore, etc.
    No. 11. And for a further plea, etc., because he says that said Laura J. Stinnett departed this life on the first day of October, 1873, within the age of eighteen years, and that her disability of minority was then removed, and that this suit was not' commenced within two years after the removal of such disability; wherefore, etc.
    No. 12. And for a further plea, etc., because he says that Laura J. Stinnett departed this life October 1, 1873, that said Laura would have been eighteen years old on the first day of January, 1877, and that this suit was not commenced within two years from that date; wherefore, etc.
    The case was then submitted to the court without a jury. The court found the issues for the plaintiff, and assessed the damages at $1000, and entered judgment upon the finding. Defendant appealed to the Appellate Court, where the’ judgment was affirmed. He brings the case here by appeal from that court, and seeks a reversal, insisting that the above pleas, held bad on demurrer, were each good in law.
    Mr. Edwin Beecher, for the appellant:
    Suit can not be brought on the bond until there has been an adjustment in the probate court, or a refusal by the guardian after being legally required to do so. Stillwell v. Miller, 19 Johns. 303; Robertson v. Robertson, 1 Root, 51; Bailey v. Rogers, 1 Greenlf. 185; Critchell v. Hall, 56 N. H. 324; Smith v. Davis, 45 id. 570; O’Brien v. Strong, 42 Iowa, 643; Nutz v. Renter, 1 Watts, 229; Wiser v. Blachley, 1 Johns. Ch. 608; Hall v. Burnstead, 20 Pick. 8; Dawes v. Bell, 4 Mass. 106; Salisbury v. Van Hoesen, 3 Hill, (N. Y.) 77; Dennison v. Cormvell, 17 S. & R. 378; Conner v. Raser, 62 Pa. St. 436; Sebastian v. Bryan, 21 Ark. 447; Graff v. Mesner, 52 Cal. 636; Tate v. Norton, 4 Otto, 746; Gilbert v. Guptill, 34 Ill. 137; Harvey et al. v. Harvey, Exr. 87 id. 56; Matthews on Guardians, 92; 2 Redfield on Wills, 823; United States v. Curtis, 10 Otto, 123.
    The third and fourth pleas of limitation of sixteen years were a bar to the action. Acts of 1849, 2d session, p. 44, sec. 1; Gilbert v. Guptill, 34 Ill. 112; Scheel et al. v. Eidman et al. 77 id. 304; Favorite v. Booker’s Admr. 17 Ohio St. 548; Cockran v. Taylor, 13 id. 382.
    After the death of the ward the action must be brought within one year. Bev. Stat. 1814, p. 616, sec. 19; Mercer’s Lessees v. Selden, 1 H. 53.
    The ward, if living, would be barred unless suit was, brought within two years after the disability was removed. Bev. Stat. 1814, p. 616, sec. 21.
    These acts of the legislature limiting to one and two years, as set forth in pleas 10, 11 and 12, are valid. Whitney et al. v. Webb et al. 10 Ohio, 522; Demarest v. Wynkoop, 3 Johns. Ch. 142; Lewis v. Lewis, 7 H. 782; Hodgen v. Henrickson, 85 Ill. 259; Morse v. Goold, 1 Kernan, 288; Cropsey v. Ogden, id. 233; Hawkins v. Barney’s Lessees, 5 Peters, 466; Ross v. Duval, 13 id. 63; Lewis v. Admr. of Broadwell, 3 McLean, 563; Angell on Limitation, secs. 194, 416; Sedgwick on Stat. and Const. Law, 691.
    Messrs. Robinson & Johns, and Messrs. Cbeig-hton & Sibley, for the appellee:
    The act of the county court in the appointment of an administrator can not be inquired into in a collateral proceeding. Wright v. Wallbamn et al. 39 Ill. 563; Diffin et al. v. Abbott et al. 48 id. 18.
    By statute it is not necessary to a recovery upon an administrator’s or guardian’s bond, that a devastavit shall first be established. Rev. Stat. 1814, p. 130, sec. 13, ch. 103.
    The statute in force when the bond in this case was given, fixed the limitation at sixteen years, not from the execution of the bond, but after the cause of action accrued, and no action could accrue during the lifetime of the ward before his majority. He could not sue before arriving of age. Scheel v. Eidman et al. 77 Ill. 301.
   Mr. Justice Dickey

delivered the opinion of the Court:

The fourth plea is clearly bad. The allegation is, that the bond was not executed at any time within sixteen years before the commencement of this suit. There is no statute rendering the lapse of sixteen years from the date of the instrument a bar to the action. The statute applicable to an action of this kind upon a bond of that date, says: “Actions on bonds * * * shall be commenced within sixteen years next after the cause of action accrued. ” It does not say within sixteen years after the execution of the bond. The cause of action is not the making of the bond. No action accrued upon the making of the bond. The cause of action consists of the execution of the bond, in combination with the breach of the condition of the bond. It requires both the execution of the bond and the breach of the bond to constitute a cause of action.

The ninth plea is also bad. It professes to be a plea to the first and fourth breaches assigned in the declaration. Such a plea, to be good, must answer both of the breaches mentioned. It is not sufficient that it may furnish a good defence to one of the breaches. The first breach assigned is, that the guardian had converted to his own use a large amount of the moneys of his ward. It is no answer, finder our laws, to such a charge in the declaration, to say that no adjustment was ever had of the accounts of the guardian by the probate court, and that the guardian had not been ordered by that court to pay to the ward in life, or to the administrator of her estate after her death, any sum of money, and that the guardian had never been cited to appear before that court and make a settlement of his guardianship. Our statute provides, that whenever the condition of the bond of any guardian shall be violated, suit may be instituted on such bond, and prosecuted to final judgment against such guardian and any and all of the sureties, or against one or more of them, “without first establishing the liability of the principal by obtaining judgment against him alone, ” and that it shall not be necessary to a recovery that a devastavit should have previously been established against the principal.

"Whether, in a case where a guardian has simply failed to pay over and continues to hold funds of the ward, it is or is not necessary that his accounts be first settled in the probate court, or that he fail to make such settlement after citation, before an action at law can be maintained upon the bond, we are not called upon here to decide. In this ease the declaration charges expressly that he converted to his own use the money of his ward. This allegation is not denied by any plea on file. Being a material allegation in the declaration, it is admitted, for the purposes of that plea, by every plea which does not deny it. We do not decide that the mere retention of the custody of the ward’s money, without an order of the probate court to pay the same, would of itself constitute a conversion to the use of the guardian. No question of that kind arises here, for it is confessed of record in this ease that the guardian did so convert the money of his ward.

The statutes of limitation relied on for the support of the tenth, eleventh and twelfth pleas, have no application where the cause of action would not be barred in the absence of these statutes, and hence have no application here.

The judgment of the Appellate Court is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Scott

text:
    Henry Bartling et al. v. Frederick Brasuhn et al.

      Filed at Mt. Vernon March 29, 1882.

    1. Notice—by possession of la/nd. The actual possession of land is notice to all persons dealing with it of whatever rights the possessor has in it, and a person buying land from the holder of the legal title, with notice that he holds such title merely as a security for money loaned, may be treated the same as Ms grantor, and will' take the premises subject to redemption.
    2. Mortgage—proof to show title is held as a security. To establish a deed absolute in form as a mortgage, the evidence must be clear, satisfactory and convincing. But it may be shown from the conduct of the parties, and facts and circumstances attending the transaction and transpiring afterwards.
    . Appeal from the Circuit Court of Washington county; the Hon. Amos Watts, Judge, presiding.
    Messrs. Casey & Dwight, for the appellants:
    That Brasuhn advanced and loaned to Bartling the money to complete the payment of the contracts for the lands¿ and took title to himself to secure the repayment of this money, and when repaid was to convey the land hack to Bartling, is sufficient evidence to show that the party advancing the money took the legal title only as a security for the loan. Preschbaker v. Feaman, 32 Ill. 475; Ewart v. Walling, 42 id. 453; Ruckman v. Alwood, 71 id. 155; Strong v. Shea, 83 id. 575; Ross v. Dumoss, 45 id. 447.

      Laches not imputable to those in peaceable possession: Wilson v. Rodgers, 77 Ill. 76; Glover v. Fisher, 11 id. 666; Morgan v. Herrick, 21 id. 497; Strong v. Shea, 83 id. 575.
    A party’s possession. of land is notice of all his rights therein. Morrison v. Kelly, 22 Ill. 610; Doolittle v. Cook, 75 id. 354; Rupert v. Mark, 15 id. 540.

      Mr. W. S. Forman, for the appellees:
    A conveyance absolute upon its face will not be construed to be a mortgage, upon slight or contradictory evidence. Remington v. Campbell, 60 Ill. 516; Pitts et al. v. Cable et al. 44 id. 103; Magnussen v. Johnson et al. 73 id. 159.
    After the lapse of ten years, upon loose statements and admissions, the court will not hold the conveyance from Bartling to Brasuhn a mortgage. The proof must be clear and convincing. Wilson v. McDonald, 78 Ill. 517; Knowles et al. v. Knowles, 86 id. 1; Maher v. Farwell et al. 97 id. 56.
   Mr. Justice Scott

delivered the opinion of the Court:

The bill in this case was brought by the widow and minor heirs of William Bartling, deceased, against Frederick Brasuhn and Henry Eggeman. It is set forth in the bill that William Bartling, in his life, was the owner of contracts with the Illinois Central Railroad Company for three forty-acre tracts of land, originally made to one Baldwin, who assigned them to. Bartling some time in February, 1867. Bartling went into possession of the lands under the contracts, and made valuable improvements thereon, consisting of a dwelling house, stable, and other out-buildings, and thereafter resided on the lands with his family until his death, which occurred in April, 1873. It is alleged in the bill, and not denied in the answers, that Bartling made payments to the railroad company on, the contracts, but the exact amount of such payments does not appear from the testimony, nor is it very material. It is further set forth in the bill, that Bartling was desirous of paying up the amount due on the contracts to the railroad company, and to accomplish that object he made an arrangement with defendant Frederick Brasuhn to obtain the amount of money necessary to make such payments. In order to secure Brasuhn for the money to be advanced, it is alleged Bartling was to assign his contracts to him, which was done in October, 1871, and afterwards, on payment of the sum due, the railroad company caused a deed to he made to Brasuhn for the several tracts of land embraced in the contracts. There is some conflict in the testimony as to the exact amount of money Brasuhn paid to the railroad company for Bartling before he could get a deed for the lands, hut the better evidence is it was $609.20. There is a receipt that was given in evidence, which recites a payment of $600 in September, 1871, as having been made on the contracts to J. W. Turley, agent for the railroad company. That, it will he perceived, was before the contracts were assigned to Brasuhn, and the testimony of Turley is, the signature to the receipt is not his, and to the best of his recollection Brasuhn did not, at that date, or at any other time, pay him for the railroad company the sum of $600.

It appears that in January, perhaps in 1880, Brasuhn conveyed the lands to Henry Eggeman, but the bill charges he had actual notice of complainants’ rights before buying the lands. The prayer of the bill is, that the deed from the railroad company to Brasuhn, as between him and William Bartling, deceased, be declared to be a mortgage, to secure the indebtedness of the intestate to him; that an account be taken of the sum yet remaining due to Brasuhn, after deducting payments and rents, on the sum loaned to the intestate; that the deed to Eggeman he declared void as to the heirs of Bartling, and that Brasuhn be decreed, on payment to him of whatever sum may be found to be due to him, if any, to convey the lands to the heirs of William Bartling, deceased. The circuit court dismissed the bill, and complainants bring the case to this court on appeal.

The widow of the intestate has been in possession of the premises ever since his death, and a part of the time some of his children resided with her. Her possession was notice to all persons dealing with the property of whatever rights she had in it. The subsequent purchaser was distinctly notified by the guardian of two of the heirs, with whom he negotiated the trade, of the interests of his wards,—that they would - be entitled to all the surplus of the purchase money after deducting the sum claimed by Brasuhn. The case is not embarrassed by the rights of an intervening innocent purchaser, and it may therefore be treated as if the controversy was confined to the original parties to the transaction.

The question involved is one of fact. It is whether Brasuhn, by the deed from the railroad company, took the absolute estate in the property, or whether he took the title by way of security for the indebtedness of .the intestate to him. The latter theory is the one best sustained by the evidence, and is- most consistent with the attendant circumstances. Indeed, the conduct of the parties from the beginning is wholly inconsistent with any other hypothesis. At the time Bartling assigned the contracts to Brasuhn he had made improvements of considerable value on the premises, and there remained only an inconsiderable amount of the purchase money to be paid. It seems most unreasonable he should agree to give up his land, with its improvements, for the mere privilege of becoming a tenant of Brasuhn, and yet that is all it is claimed he was to have for his land, upon which he had paid .considerable sums of money'on the contracts and for the improvements he had made upon it. It is not improbable he could have sold the land outright, and saved something for himself and family.

Neither Brasuhn nor any of the parties connected with the transaction ever treated the land. as belonging to Brasuhn. Soon after the death of Bartling his widow paid Brasuhn $300 on the indebtedness of her husband to him. This fact in the case is not called in question by the defence. It is not claimed the intestate owed him for anything else, other than the money advanced for him to the railroad company, and what did he take the money for if he owned the lands absolutely ? No more distinct and positive recognition of the relation of debtor and creditor between the parties could possibly have been made. Besides that, it is clearly proven, at the time of the payment of the $300, he promised, on the payment of the balance due him from the intestate, which he stated to be $900, he would make the heirs a deed for the lands. After the death of Bartling he permitted the guardians of the heirs to have charge of the lands, and authorized one of them to negotiate the sale of the lands to Eggeman, with the distinct understanding the heirs of Bart-ling were to have all of the purchase money over the amount claimed to be due to Brasukn. It was so divided. It is quite improbable he would have so dealt with the land had he believed himself to be the absolute owner of it, subject to no defeasance whatever.

The rule of law is undoubtedly as defendants insist it is :• that to establish a deed absolute in form 'is a mortgage, the evidence must be clear, satisfactory and convincing. Adhering to the strictest rule declared by the cases in this court on this subject, the evidence makes a clear case, entitling complainants to equitable relief. The direct proof, as well as the acts of the parties and the circumstances, about which there can be no misunderstanding, make it apparent the deed from the railroad company to Brasukn, although absolute in form, was nothing more than mortgage security for the money advanced by him for the intestate to obtain the title to the lands for him. It was not to vest Brasukn with the absolute title. This was well understood by the parties themselves, and their subsequent conduct conformed to this understanding. That the title to these lands was in Brasuhn as mortgage security, not the slightest doubt is entertained. The fact he received a payment of $300 from the widow on this very indebtedness of her husband to him, after his death, and that he permitted the guardian of the minor heirs to negotiate the sale of the property, and to retain a part of the purchase money for their use, is most convincing evidence the lands were trust property in his hands, and was so treated by him. Any other conclusion would be wholly inconsistent with the well established facts of the case.

The decree will be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Decree reversed.


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    Theodore Selb et al. v. Anne Montague.

      Filed at Mi. Vernon March 29, 1882.

    !• Do web—homestead—where there are incumbrances—rights of the widow, as to a stranger purchasing from the husband. If mortgaged property is bought by a stranger, from the mortgagor, under such circumstances as to show that he only paid for the excess of its value over the mortgage debt, which he is to pay as a part of the purchase price, the widow of the mortgagor will be let in to claim dower at law if such purchaser obtains a discharge of the mortgage.
    2. Same—in case of mortgage before marriage. Where the husband has mortgaged his land before marriage, his wife, on marriage, takes an inchoate right to dower only in the excess of the value of the land over the amount of the mortgage, and if the husband pays the mortgage debt, he acquires the title that was in the mortgagee, and his wife’s dower attaches to it the same as to any other interest in land acquired by him during coverture.
    3. Same—where the heir discharges the incumbrance. If the mortgage is paid by the heir after the death of the ancestor, this is equivalent to a purchase by the heir of that interest in the estate which was in the mortgagee. The widow will have no dower in such new estate, except she makes just contribution towards the cost of removing the incumbrance, or pays her ratable share of the redemption money.
    ’4. Same—as to purchaser at administrator’s sale. A purchaser of mortgaged land at an administrator’s sale takes the right of the heir, neither more nor less—the equity of redemption—and if he redeems from the mortgage he holds as the heir would have held had he paid off the mortgage, and the widow can have dower only by paying her ratable share of the money necessary to discharge the mortgage. The same rule applies in regard to her claim of an estate of homestead.
    5. So it is hold, where a husband had, before marriage, mortgaged his lauds, releasing the homestead, and after marriage he gave another mortgage on the same land, in which the dower and homestead were duly relinquished by him and his wife, and the lands were sold at administrator’s sale to one who subsequently discharged the incumbrances, it was error to grant the widow, unconditionally, dower and an estate of homestead in the property, without subjecting each of her said rights to the condition she should, as to each right, contribute a ratable share of the redemption money.
    6. Adiiinistbatob’s sake—administrator Jias no power to make terms of sale. An administrator, on the sale of real estate to pay debts of his intestate, has no lawful authority to make the sale on the terms that the purchaser is to discharge a mortgage thereon, and also the widow’s dow'er and right of homestead; and if in fact he makes such terms, his act is inoperative and void. He can sell the interest of the heirs, and no more and no less.
    Writ of Error to the Circuit Court of Madison county; the Hon. Amos Watts, Judge, presiding.
    This was a petition for dower, filed by appellee, as widow of Daniel Montague, deceased, claiming dower and homestead in certain real estate in Madison county.
    The facts are, that Daniel Montague died intestate on the 17th day of November, 1877, leaving appellee, his widow, owning the equity of redemption in about 260 acres of land in said county. Appellee was married to deceased on the 31st day of August, 1875. On June 17, 1872, Daniel Montague gave a mortgage, covering a portion of the land in controversy, to Celia Morrison, to secure the sum of $500, and on the 3d day of November, 1873, he gave a second mortgage to John Wood, covering a portion of said land, to secure an indebtedness of $852] and interest. These mortgages were executed in due form, and in each the said Montague released his homestead rights. . On October 20, 1876, Montague executed a third mortgage, his wife, the appellee, joining therein, covering another part of said land, to secure the principal sum of $1000, in which mortgage the appellee released her dower and homestead rights in said land. The first two mortgages were foreclosed at the March term, 1880, of the Madison county circuit court, upon a hill and cross-bill, and the premises were sold under the decree of said court on the 3d day of July, 1880, to J. H. Spence and John Sceclitig, for the sum of $1638. On the 7th day of August, 1880, all of the premises in controversy were sold by the administrator of the estate of Daniel Montague, by virtue of an order of the probate court, to appellants, for the sum of $3500, subject to all claims against it. After the sale to the appellants, the certificate of purchase held by Spence and Scechtig, and the note secured by the last mentioned mortgage, were transferred to appellants by the legal holders thereof, by a formal assignment on the backs of said instruments. The -only controversy about the facts is, that it will be claimed by appellee that when the administrator sold the land at public sale he announced that the purchasers .were to pay all the incumbrances, and that by virtue of that announcement they are legally bound to do so.
    The question presented is, shall appellants be compelled to pay all of the above incumbrances, or must appellee contribute her proportionate share towards their payment before she can have dower in said premises.
    Messrs. Krome & Hadley, for the plaintiffs in error:
    On the husband’s death, his widow takes her dower or interest in the estate, if at all, charged with any mortgage thereon given by him before marriage, or by both during the marriage, in which her dower is released; "and if any one interested in the estate, as heir or purchaser, discharges or redeems the mortgage, he'thereby acquires an equitable lien upon the estate, which he may hold against the widow till she contributes her portion of the charge, according to the value of her interest. 1 Washburn on Real Property, (2d ed.) 186 ; 4 Kent’s Commentaries, 48; Eaton v. Simonds, 14 Pick. 98; Swaine v. Perrine, 5 Johns. Ch. 482; Gibson v. Crehore,
      5 Pick. 146; Richardson v. Skolfield, 45 Maine, 369; Denton v. Nanny, 8 Barb. 318; Rossiter v. Cassit, 15 N. H. 38; Bank of Commerce v. Owens, 31 Md. 320; Johnson v. Watson, 87 Ill. 535; Stribling v. Ross, 16 id. 122.
    An express agreement by a purchaser of land at an administrator’s sale, to pay off a mortgage, will not let the widow in to have dower without contribution. Gibson v. Crehore, 3 Pick. 475; 5 id. 146; Von Vronker v. Eastman, 7 Metc. 157; Bell v. Mayor of New York, 10 Paige, 70; Wood v. Wallace, 10 Post. (N. H.) 384.
    The administrator has no authority to make any terms for the sale of his intestate’s lands, whereby to reduce the assets of. the estate. This would be unjust to creditors of an insolvent estate.
    Messrs. Metcalf & Bbadshaw, for the defendant in error:
    Where the mortgagor discharges a mortgage given by him on his land, he can not call on any one for contribution, he having only paid his own debt. So, if the mortgaged estate is bought by a stranger under such circumstances as to show that he only paid for the excess of its value or price over the mortgage, the widow of the mortgagor will be let in for dower when the purchaser procures a discharge of the mortgage. 1 Washburn on Beal Property, (1st ed.) 184.
    In this ease the purcháker at the administrator’s sale bought subject to the mortgage and the homestead and dower of the widow, paying only the excess of the value of the land above the incumbrances, and the case falls within the rule laid down above. Weiner v. Heintz et al. 17 Ill. 259.
   Mr. Justice Dickey

delivered the opinion of the Court:

In Washburn on Beal Estate it is correctly said, (vol. 1, p. 184,) that “as the mortgagor, * * * if he discharge the mortgage, is not allowed to call upon another for contribution, having only paid his own debt, so, if the mortgaged estate is bought by a stranger, under such circumstances as to show that he only paid for the excess of its value over the mortgage, or so that one part of the estate satisfies the whole, the widow of the mortgagor will be let in to claim dower at law if 'such purchaser shall obtain discharge of the mortgage. ” This rule, however, applies only where “the mortgaged estate is bought by a stranger, ” by a purchase from the husband. In such case, the husband having by his contract of sale, made during coverture, provided for the discharge of the mortgage, the case in this regard stands as though he had himself paid off the mortgage during coverture. In case the husband, before marriage, had mortgaged his land, the wife, upon marriage, takes an inchoate right to dower only in the excess of the value of the land over the amount of the mortgage. If the husband in his life pays the mortgage, he acquires title to that interest in the land which at the time of marriage was in the mortgagee, and 'the wife’s right to dower attaches to the same as to an interest in land bought by the husband during coverture. But if the mortgage be paid by the heir after the death of the husband, this is equivalent to a purchase by the heir of that interest in the estate which is in the mortgagee, and as the widow takes no dower in estates bought by the' heir, she acquires no right of dower in the new estate so bought by the heir. The right of the heir, however, having been acquired by removing an incumbrance upon an estate in which the heir and the widow each had an interest subordinate to the incumbrance, the widow, in such case, has the right, by a just contribution, to avail herself of the benefit of the purchase by the heir of the adverse title of the mortgagee. And so the same author says, (vol. 1, p. 187,) that “if the mortgagee 'is in possession of the mortgaged premises for condition broken, or the purchaser of the equity of redemption who has redeemed the mortgage, the widow’s remedy for the recovery of her dower is by bill in equity only, as she can not maintain a writ of dower until she has contributed her share of the redemption money. ” And so Kent says, (vol. 4, p. 48,) that “though the wife be dowable only of an equity of redemption when the mortgage was given prior to her marriage, or when she joined her husband in the mortgage, she is, after her husband’s death, if she claims her dower, bound to contribute ratably towards the redemption of the mortgage. ”

A sale by the administrator, under our statute, of the real estate, is equivalent to a sale by the heir and an appropriation of the purchase money to the payment of the debts of the testator, the administrator being made, by statute, in substance the attorney in fact of the heir to make such sale. His power, where the land is mortgaged, is merely to sell the equity of redemption, for that is all that vests in the heir. The purchaser takes the right of the heir, no more, no less—that is, the fee, subject to the mortgage. If the purchaser redeems from the mortgage, he holds as the heir would have held had he paid off the mortgage. The widow can have dower only by paying her ratable share of the money necessary to discharge the mortgage. The debt paid in discharging the mortgage, is not the debt of the heir. In paying that debt he is not “paying his own debt,"” as would be the case were the debt paid by the mortgagor in person. The case of Bank of Commerce v. Owens, 31 Md. 320, is directly in point on this question.

It is claimed that the administrator’s sale was made on terms that the purchasers undertook to discharge not only the mortgages, but also the dower and homestead rights of the widow. The proofs are not satisfactory in support of the allegation. This, however, is not deemed material, for the administrator had no lawful authority to make any such terms. His agency arose from the statute. The bounds of his powers were therefore known to all. • He could sell just what the law authorized him to sell,—that was, the rights of the heir,—no more, no less. Had he in fact made such terms, his acts would have been inoperative. He had no power to divert from the use of the creditors a part of the value of the interest of the heir, and apply it to the use of the widow.

The reasoning applicable to the dower interest of the widow, is equally applicable to her claim of an estate of homestead. In the mortgages made by the husband before his marriage with appellee, he released his homestead right. In the mortgage made during coverture, her right of dower and his homestead right were duly relinquished by both husband and wife, as provided by statute. At the death of the mortgagor the rights of the mortgagees were all superior to the homestead right and the dower right. After the death of the husband the widow held both her right of dower and her estate of homestead, subject to the mortgagees, and they are still subject to the same rights in the hands of the purchasers at the administrator’s sale, who have paid the mortgage debts.

The decree of the circuit court granting to the widow, unconditionally, dower and an estate of homestead, was therefore erroneous in not subjecting her rights each to the condition that she should, as to each right, contribute a ratable share, in regard to such right, of the redemption money paid by appellants for the discharge of the mortgages, before she should be permitted to avail herself of that right.

The decree is therefore reversed, and the cause remanded for other proceedings not incompatible to the views here expressed.

Decree reversed.