text:
    The City of Bloomington v. Laura Shrock.

      Filed at Springfield June 11, 1884.

    1. Evidence—medical and other scientific books—whether admissible in evidence before a jwry. The weight of current authority is decidedly against the admission of scientific books in evidence before a jury, and against allowing them to be read from to contradict an expert, generally. When, however, an expert assumes to base his opinion upon the work of a particular author, that work may be read in evidence to contradict him.
    2. Where a witness was examined as an expert, and gave evidence tending to prove that a party had been guilty of negligence after a fall, in omitting proper care to avoid an abortion, but did not quote from or make any reference to any medical books on the subject, the court allowed counsel, on cross-examination, to ask-him if he was acquainted with Playfair, and Bed-ford, (treatises on midwifery,) and upon his responding in the affirmative, and that they were standard authorities on such questions, the court allowed counsel to read at length from each of those authors, consecutively, and then inquire of the witness whether he agreed with the authors as to the parts so read: Held,, that it was error to allow the reading from the books and the questions to be propounded to the witness as to his agreeing with the authors.
    3. Since medical or other scientific books are not admissible as original evidence, it follows they are not admissible on cross-examination, when their introduction is not for the direct contradiction of something asserted by the witness, but simply to prove a different theory.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of McLean county; the Hon. Owen T. Reeves, Judge, presiding.
    Mr. John T. Lillard, for the appellant:
    The court below was probably misled by a false interpretation of the rulings in Chicago Mutual Life Ins. Co. v. Ellis, 89 Ill. 516, where a doctor had stated that he had read text books that he might be able to state why he diagnosed the ease as delirium tremens. It was for that reason held that his knowledge of the question and of the books might be tested by propounding questions to him from the book. Here the appellant elicited nothing from the books. The course pursued in this ease is not answered by the decision in 89 111. 516, supra, for there the doctor had, in chief, professed a knowledge and familiarity with the books, and he was, of course, open to a cross-examination on the books; and as to the jury, it is almost everywhere admitted they are not to be enlightened by the reading of medical works. Washburn v. Cuddihy, 8 Gray, 430; Commonwealth v. Wilson, 1 id. 838; People v. Hall, 48 Mich. 482; Gale v. Rector, 5 Bradw. 481; Marshall v. Brown, 50 Mich. 148; Commonwealth v. Sturtevant, 117 Mass. 122. And see Rogers on Expert Testimony, secs. 181, 182, in the notes of which are cited the. above mentioned and many other eases.
    Messrs. Fifer & Phillips, for the appellee:
    It is proper to read from standard medical works in cross-examining medical experts. (Connecticut Mutual Life Ins. Co. v. Ellis, 89 Ill. 516.) The books were not given in evidence.
    The case of Marshall v. Brown, 50 Mich. 148, holds that medical books are not admissible in evidence, and in that case the book was sought to be, in effect, introduced in evidence under the guise of asking the witness to approve certain passages read from it. We did no such thing in the ease at bar. We simply tested the witness, sifted his scientific pretensions, and elicited the truth. There are many courts which hold that standard medical books may be read in evidence. Other courts hold the contrary. Between the two your honors have taken a ground promotive, we think, of justice, which ought by all means to be maintained, and it is hoped that the doctrine will be enlarged rather than restricted.
   Mr. Justice Scholfield

delivered, the opinion of the Court :

This was an action on the case, for negligence, by appellee, against appellant. Appellee, a married woman, was violently thrown down while walking along a sidewalk adjacent to one of appellant’s streets, by reason of a defect in the sidewalk, and thereby received injuries which, she claimed, resulted in causing her to have an abortion. It was contended by appellant, upon the trial, that she was guilty of such contributory negligence as to bar her right to recover, in omitting proper care and caution to avoid the abortion,—and this was the most important question upon the trial, although there were other questions of minor consideration contested.

Dr. Luce was called and examined as a witness on behalf of appellant, as an expert, and gave evidence tending to prove that appellee was guilty of negligence in the respect contended by appellant. He quoted from and made reference to no book; but upon his cross-examination, counsel for appellee inquired of him whether he was acquainted with “Playfair, ” and “Bedford, ” (treatises on midwifery,) and upon his responding in the affirmative, and that they were standard authorities on questions of this character, counsel proceeded to read at length from each of these authors, consecutively, and then inquired of the witness whether he agreed with the authors as to the parts so read. This was objected to by the counsel for appellant, but allowed by the court, and the witness was required to make answer.

The weight of current authority is decidedly against the admission of scientific books in evidence before a jury, although in some States they are admissible. (1 Greenleaf on Evidence, sec. 440, and note; Wharton on Evidence, see. 665; Rogers on Expert Testimony, sees. 168, 169, et seq., and cases cited in notes.) And the weight of current authority is, also, against allowing such treatises to be read from, to contradict an expert, generally. (See authorities supra, and Commonwealth v. Sturtevant, 117 Mass. 122; Davis v. The State, 38 Md. 15; The State v. O’Brien, 7 R. I. 336.) Where, however, an expert assumes to base his opinion upon the work of a particular author, that work may be read in evidence to contradict him. This was, in effect, our ruling in Connecticut Mutual Life Ins. Co. v. Ellis, Admr. 89 Ill. 516; and it was expressly so ruled in Pinney v. Cahill, 48 Mich. 584, City of Ripon v. Bristol, 30 Wis. 614, and Huffman v. Click, 77 N. C. 55. See, also, Marshall v. Brown, 50 Mich. 148; Rogers on Expert Testimony, sec. 181.

But counsel for appellee insist the ruling of the court below is in exact conformity with the ruling of this court in Connecticut Mutual Life Ins. Co. v. Ellis, Admr. supra. This is a misapprehension. In that case the witness stated “that he had read text books that he might be able to state why he diagnosed the case as delirium tremens;” and it was held “not unfair to the witness to call his attention to the definitions given in the books, of that particular disease, and asking him whether he concurred in the definitions. ” And it was said: “That is, in no just sense, reading books to the jury as evidence, or for the purpose of Contradicting the witness.” The source of his professed knowledge was given, and it was allowed to show that he was mistaken, by resorting to that source. In the present case, it has been seen, the course pursued was entirely different. The witness based no opinion which he gave, upon the authority of books, and they were only brought in to impair his evidence on cross-examination.

Where a witness says a thing or a theory is so because a book says so, and the book, on being produced, is discovered to say directly to the contrary, there is a direct contradiction which anybody can understand. But where a witness simply gives his opinion as to the proper treatment of a given disease or injury, and a book is produced recommending a different treatment, at most the repugnance is not of fact, but of theory; and any number of additional books expressing different theories, would obviously be quite as competent as the first. But since the books are not admissible as original evidence in such cases, it must follow that they are not admissible on cross-examination, where their introduction is not for the direct contradiction of something asserted by the witness, but simply to prove a contrary theory.

We think the court erred in admitting this evidence, and for that error the judgment is reversed, and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Walker

license: Public Domain

text:
    Truman E. Andrews et al. v. Content F. Andrews et al.

      Filed at Mt. Vernon June 13, 1884.

    1. Will—devise as violating the rule against perpetuities—and in what cases .that rule applies. A devise of land to certain tenants for life, remainder over to another, which prohibits the sale of the property for twenty-five years after the death of the last tenant for life, would seem to fall within the rule against perpetuities, if the devise is not to charitable uses.
    2. Charitable uses—perpetuities—exception under the rule—the statute of 43d Fliz. The statute of 43d Eliz., chapter 4, is in force in this State, and, operates to exclude conveyances and devises for charitable uses from the operation of the rule against perpetuities.
    3. That statute embraces schools or institutions of learning, and not only free schools, but other schools, without their instruction being gratuitous; and a devise for the purpose of establishing a school of learning at a certain place, is sufficiently public in its character to be sustained as a public charity.
    4. Same—what regarded as a public charity—of a devise to a religious society, for church and educational purposes. A devise of land to a church of a certain city, to sustain the preaching of the gospel in such city by such church, and to advance the educational interests of the church, and authorizing the use of the income of the property to pay any balance of salary due the minister or pastor of such church, and the surplus to be applied to educational purposes in connection with the church, is not void as being local, and not a public charity, and the object of the devise is sufficiently specific and certain.
    5. A devise of a block of land to the Presbyterian church of a certain place, after the expiration of prior life estates, (created by the will in trust for the following uses and purposes: First, to sustain and maintain Presbyterian preaching in such place; and second, to advance and promote, as far as practicable, the educational interests of said church,) authorized the improvement of the block, and prohibited its sale for twenty-five years from the death of the last tenant for life, and empowered the session of the church to use the income, first to pay any balance or part of salary due the minister or pastor of said church, and to apply the surplus to such educational purposes in connection with said church, as they might deem advisable. After fifty years the will authorized the whole, principal and accumulations, to be used in establishing an educational institution, under the control and patronage of said church: Held, that the purposes of the devise were within the exception to the rule against perpetuities, and that the uses to which the property was devoted were charitable, and that the devise was valid and binding.
    6. Same—devise to a charily—whether sufficiently certain. A testator devised a block of land to a Presbyterian church of a certain place, the land to be improved and kept for a certain number of years, when the proceeds and accumulations might be applied in establishing an institution of learning, and provided that until the period fixed for establishing the institution of learning, the income should be used to pay the minister or pastor of such church any unpaid balance on his salary, and the surplus to be applied, under the directions of the session of the church, to such educational purposes, in connection with the church, as the session might deem advisable: Held, that the devise was not too vague and indefinite as to the purpose of the devise, or as to who are the beneficiaries, to be valid, and was capable of being enforced.
    7. Religious society—limit of capacity to tahe and hold real estate. The statute authorizes a church or religious body to acquire and hold not exceeding ten acres of land, without any limit as to value or income. Such bodies are limited as to the quantity of real estate they may hold, but not as to its value.
    8. Same—as to the vesting of title, in case of a devise to a trustee. On the incorporation of a church all property held by a trustee for its use, is by the statute vested in the corporate body, to be held and used according to the intention of the grantor or donor.
    9. So where" a testator devised land to the Presbyterian church of the city of Chester, for charitable uses, expressed and directed the manner of the election of a trustee, in whom the title should vest, it was held, that on the death of the testator the title to the land vested in the church as a corporate body, and that the trustee afterward elected could not become invested with the title. He toolc only a power (given by the will) to manage, control, sell and convey under the session of the church. Although the fee vested in the corporation, it was subject to the control and power conferred on the trustee by the will.
    Writ of Error to the Circuit Court of Randolph county; the Hon. Amos Watts, Judge, presiding.
    Mr. J. H. Lindsey, for the plaintiffs in error:
    Any limitation in future, by way of remainder of lands of inheritance, which in its nature tends to perpetuity, although there be a preceding vested estate so as to take it out of the description of an executory devise, is by our courts considered void in its creation. 1 Fearne on Remainders, 502, 429, 430; Perry on Trusts, sec. 736; Washburn on Real Estate, (2d ed.) 224; Lewis on Perpetuities, 14, 162, 389; 2 Jarman on Wills, 462; 4 Kent’s Com. 263; 2 Redfield on Wills, 653.
    As a devise in trust the sixth clause is void, because the beneficiaries are not, with definiteness and positive certainty, pointed out. Perry on Trusts, sec. 116; Malin v. Keighley, 2 Ves. 335; 2 Story’s Eq. Jur. sec. 979 a b, sec. 1071; Wheeler v. Smith, 9 How. 55.
    It is also void for uncertainty as to the object of the devise. 1 Jarman on Wills, 316; Taylor v. Kief et al. 2 Bradw. 368.
    It is not required that the institution that might be established under the direction of the session shall be a charitable one. Whether such a school shall be established is a matter of discretion, and this renders it void. Williams v. Kershaw, 5 Cl. & Fin. 111; Kindall v. Granger, 5 Beav. 300; West v. Shuttleworth, 2 M. & K. 684; Lapage v. McNamara, 5 Iowa, 124.
    There is a wide distinctio'n between a gift to charity and a gift to a trustee, to be by him applied to charity. Wheeler v. Smith, 9 How. 55; Brown v. Yell, 7 Ves. 50.

      Mr. A. D. Duff, also, for the plaintiffs in error:
    The statute of 1872 puts an end to churches further holding any kind of property through trustees, by executing trusts and vesting the title in the corporation,—hence no such trust as is attempted to be created by this will can exist under our law, and if the trust fails the devise is void. As a charitable devise it is void for uncertainty as to use.
    Pious and religious purposes do not necessarily mean charitable purposes. Heath v. Chapman, 2 Drew, 417.
    A charity is a gift to a general public use. Jones v. Williams, Ambler, 652; Coggshall v. Pelton, 7 Johns. Ch. 294; Purvine v. Cary, 24 How. 506.
    A devise “for the establishment of a school at M., for the instruction of children, ” was held void for uncertainty, because, as the court say, it might be a private school, and therefore no public charity. Attorney General v. Soule, 28 Mich. 153.
    There is a marked absence, throughout this devise, of any word tending to connect it with a public or general benefit or use. To make it a public charity there must appear to be some benefit to be conferred upon, or a duty to be performed towards, either the public or an indefinite class thereof. Old South Society v. Crocker, 119 Mass. 1.
    A gift “to the M. A. M. society, to preach the gospel to the poor, ” was held void for uncertainty. Owens v. M. Society, 14 N. Y. 380.
    A bequest “for the relief and support of the poor and indigent who may from time to time reside in the twelfth ward of the city,” was held too indefinite, and therefore void. Wilderman v. Mayor, 8 Md. 551.
    A bequest “for the purpose of founding a college in Liberia, to be applied by the executors as would, in their judgment, best effect thé object, wishing them specially to have in view the establishment of a theological department in said college, to be under the supervision of the Union Theological Seminary in the city of New York, ” was held too indefinite, and therefore void. Phelps’ Exr. v. Phelps, 28 Barb. 121; Phelps v. Pond, 23 N. Y. 69.
    This devise seems to be rather a private charity. Phelps v. Aldridge, 4 T. R. 264; Toone v. Copestake, 6 East, 328 Lapage v. McNamara, 5 Iowa, 146.
    These trusts will be sustained only when their purposes are so clearly expressed that a court-of chancery itself can execute them should the trustee refuse. Nash v. Morely, 5 Beav. 192; 1 Jarman on Wills, 407.
    All attempts to restrain the free transfer of real estate for more than twenty-one years and nine months after the life or lives of parties then in being, are null and void. 2 Blackstone’s Com. *173; Brattle Square Church v. Grant, 3 Gray, 142; 4 Kent’s Com. *266, 267.
    By this limitation of twenty-five years the entire devise is rendered void. Williams on Real Prop. *293-295; Irving v. DeKay, 9 Paige, 521; Matter of Thomas’ estate, 1 Tuck. 367; Newman v. Newman, 10 Sim. 51.
    The devise does not fall within the exception in favor of charitable uses. Fonblanque’s Equity, 459, note; 1 Bacon’s Abridgment, p. 364, title “Charitable Uses.”
    Mr. W. J. Allen, also, for the plaintiffs in error.
    Messrs. Hartzell & Simpson, for the defendants in error:
    The devise being for charitable purposes is not void for uncertainty. The authorities cited by plaintiffs in error upon the doctrine of perpetuities apply exclusively to uses not charitable, and for private purposes only.
    In addition to the objects named in the statute of Elizabeth, many other objects have been decided to be charitable, though not in its letter, but as falling within the spirit of the statute. Bispham’s Equity, sees. 119, 122, 133; Jackson v. Phillips, 14 Allen, 556.

      A charitable use is not subject to the ordinary rules in regard to perpetuities. Bispham’s Equity, sec. 133; 2 Perry on Trusts, secs. 701, 737; Franklin v. Aunfield, 2 Sneed, 305; Perrin v. Carey, 24 How. 465; Dartmouth College v. Woodward, 4 Wheat. 641; Heuser et al. v. Harris et al. 42 Ill. 425.
    Mr. H. Clay Horner, also, for the defendants in error:
    That the uses of the devise in this case are charitable, and are expressed with sufficient certainty and definiteness, we cite Trustees v. Beatty, 28 N. J. Eq. 575; Williams v. Williams, 4 Seld. 525; Townsend v. Carnes, 3 Hare, 257; Camp v. Dobbins, 29 N. J. Eq. 36; Jackson v. Phillips, 14 Allen, 556; Attorney General v. Jolly, 2 Strobh. 379; 2 Pomeroy’s Eq. Jur. sec. 1021, and note; Perry on Trusts, sec. 701, and note; Price v. Maxwell, 28 Pa. St. 33.
    That the clause of the devise, “or to any other of the charitable or religious objects of said church, ” is not too uncertain, see Thompson v. Norris, 20 N. J. Eq. 553; Wilkinson v. Lindgren, 5 L. R. Ch. App. 570; Jemmit v. Verrill, Ambler, 585; Boyle on Charities, 225-230; Phelps v. Phelps, 25 Barb. 121; Owens v. M. Society, 14 N. Y. 380; Nash v. Morely, 5 Beav. 182.
    Mr. J. Perry Johnson, also, for the defendants in error.
   Mr. Justice Walker

delivered the opinion of the Court:

The contest in this case grows out of the sixth clause of the will of Amzie Andrews, deceased. The substantial part of the clause is this :

“I do hereby give, devise and bequeath unto the First Presbyterian Church of Chester, (now in connection with the Old School General Assembly,) all of block A, in the city of Chester, county of Bandolph, and State of Illinois, * * * after the expiration of the life estates herein created, * * * in trust, however, for the uses and purposes following, and subject to the following restrictions, that is to say: First, to sustain and maintain (old school) Presbyterian preaching in said city of Chester, Illinois; and secondly, to advance and promote, as far as practicable, the educational interests of said First Presbyterian Church of Chester, Illinois. And for the better carrying out of the objects of said trust, it is my will, ” etc. The testator authorizes the improvement of the block, and prohibits the sale of the same for twenty-five years from the death of the life tenants* and directs the manner of the election of a trustee after the death of the life tenants, in whom the title shall vest, and then provides for the collecting of the income, and for the management of the real estate during the twenty-five years. “And the session of the * * * church are hereby especially intrusted with the management and control of the income, * * * and are empowered and entrusted to use the income, * * * first, to pay any balance or part of salary due the minister or pastor of said church; and secondly, if any surplus shall remain, may apply the same to such educational purposes, in connection with said church, as they may deem advisable. ” After the expiration of the twenty-five years a sale is authorized, the proceeds to be invested and income used for the purposes “hereinbefore mentioned, ” for twenty-five years additional. After the expiration of fifty years the whole of the principal and accumulations may be used “in the establishment of an educational institution under the control and patronage of the church in Chester, * * * or they may keep the same invested as before that time, and use the income * * * in the objects above herein specified, or in any other of the charitable or religious objects of the church, as they may elect or deem advisable. ”

The testator died in 1876, and a part of his heirs at law filed this bill to have this clause of his will declared void, as contravening the statutes and public policy of the State. Defendants demurred to the bill, and the demurrer was sustained, and the bill dismissed for want of equity, and complainants bring the record to this court on error.

It is urged that this clause creates an estate in the nature of a perpetuity, which the law prohibits; that the law will not permit estates in land to be tied up longer than for a life or lives in being and twenty-one years, and in case of a posthumous birth, nine months more after the termination of the life estate, and as this clause prohibits the sale of the land for twenty-five years after the death of the last surviving tenant for life, the devise falls within the prohibition of the rule. This would seem to be true, unless it falls within the exceptions in favor of conveyances and devises to charitable uses. In the ease of Heuser v. Harris, 42 Ill. 425, it" was held that the statute of 43d Eliz., chapter 4, is in force in this State, and it operates to exclude conveyances and devises for such uses from the operation of the rule against perpetuities. This we regard the law of this jurisdiction. And the rule conforms to the adjudged cases in England under that statute, and those of the various States of the Union where that statute is in force.

It is urged that conceding this rule to be in force, the objects of the trust are not within that statute,—that it only names the repair of churches, but does not name the support of churches, religion, or to pay for preaching any particular religious doctrine, and therefore this clause of the 'will is not protected by that statute. There are abundant decisions of English courts, as well as of the courts of the various States of the Union, which hold that such purposes, although not expressed in the statute, are within its equity, and hence within its spirit. The case of Fuller v. Griffin, 3 Vt. 401, involved a gift “to the Methodist Episcopal Church, * * * forever, the interest of which is to be appropriated for the support and payment of the constant preaching of the gospel in Charlotte, by the ministers of the Methodist Episcopal Church, * * * the principal to be kept whole, forever. ” The gift was held to be for a charitable use, and was sustained as valid and binding. In that case, as in this, the gift was to the church, and trustees were required to control the fund. To the same effect are the eases of Trustees v. Beatty, 28 N. J. 570; DeCamp v. Dobbins, 29 N. J. Eq. 36; Townsend v. Carnes, 3 Hare, 257.

It is urged that the devise is not of public interest, and is local, and therefore is not a public charity, and is not good or valid. The object is no more local than was the devise in the case of Heuser v. Harris, 42 111. 425, and that was held to be a public charity, although the appropriation of the interest on the fund was to a school in a specified township, and the discretion vested in the trustee that he pay any balance or part of salary due the minister or pastor of the church, is specific and certain. There can be no well founded objection to the final disposition of the property in founding an institution of learning to be under the control of the church. The founding of such an institution thus controlled is so clearly within the statute of charitable uses, that we will only refer to a few of the large number of authorities that hold such devises valid. In Taylor v. Trustees, 34 N. J. Eq. 101, referring to the act of 43d Eliz., it was held that it embraced not only free schools, but schools of learning without the instruction therein being gratuitous. In the ease of Attorney General v. Lonsdale, 1 Sim. 109, it was held that although a school for the education of the sons of gentlemen, is not, in popular language, a charity, yet it is embraced in the act of 43d Eliz. It was there held that all schools were within its provisions. This ease is approved by those of Franklin v. Aunfield, 2 Sneed, 305, and Price v. Maxwell, 28 Pa. St. 33. The mere term “an educational institution,” manifestly implies such an organization as shall teach the usual branches of literature, or some of them, so that nothing pernicious or injurious to morals or public interest could be taught in such a school, even if there was not a guaranty implied from its being under the control of the church.

But^ whether or not the charity must be of a public nature, we regard this devise for educational purposes sufficiently specific and public to be sustained as a charity. In Heuser v. Harris, supra, this court said: “And another principle, well established is, that if a bequest be for charity, it matters not how uncertain the persons or the objects may be, or whether the persons who are to take are in esse or not, or whether the legatee be a corporation capable, by law, of taking, or not, for in all of these and the like cases the court will sustain the legacy, and give it effect according to its own principles; and where a literal execution becomes inexpedient or impracticable, the court will execute it, as nearly as it can, according to the original purpose, or cy pres.” The provision that the income shall, until the period arrives for instituting an institution of learning, be applied to promote and advance the educational interests of the church, under the directions of the session of the church, is not too vague and indefinite to be valid, and is capable of being enforced. The cases to wdiich reference is made sustain devises no more definite.

It is urged that this and like devises are condemned by public policy. We are unable to consider questions of policy where law exists sanctioning such a devise. We have seed the statute of 43d Eliz. is in force in this State, and it authorizes devises to charitable uses, and we have seen that this is a devise to charity. But this question is disposed of in Heuser v. Harris, supra. It is there held that the policy of the law is not against bequests of the description of this will. There being no statute in this State prohibiting such bequests, is it not a fair inference the law-making power of this State has not regarded them as impolitic? And this has been so held by the English courts, and a number of the courts of the States of the Union, notwithstanding the common law has never favored, but has held perpetuities void as against public policy. This is manifest from the adjudged cases.

It is also said the statute has limited the quantity of land which may be held by a church to not more than ten acres, and this limitation would prevent a church from holding more than that quantity by direct conveyance or devise, or by conveyance or devise in trust for its use,—that what can not be done directly will not be sanctioned when attempted by indirection. This is probably true, but that question is not presented in this case. There is nothing in the record from which it appears that, even including this block, the church owns more than the authorized quantity. It is not so averred in the bill, and is not admitted by the demurrer. Nor can we presume, in the absence of an admission and of all proof, that the corporation has violated its charter in purchasing more than is limited. It may be that more than ten acres can not be held by direct conveyance or by conveyance to trustees, but that question is not before us for decision, and we decline its discussion.

It is also urged that these bodies, by a fair construction of the statute, in the light of public policy, must be limited in value as well as in quantity. It is a sufficient answer to say the statute has authorized such bodies to acquire and hold not exceeding ten acres of land, without any limit as to value or income. Again, the 41st section of chapter 32 provides, that on the incorporation of a church all property held by a trustee for its use shall vest in the church, and be subject to its control, and may be used, mortgaged, sold or con-' veyed as if it had been conveyed to such corporation by deed; but such conveyance or mortgage shall not affect or destroy the intention or effect of any grant, devise or donation to such person or trustee for the use of the church, congregation or society. The 42d section empowers the corporation to bold not exceeding ten acres of land, and build upon and improve it; but such use is limited to the manner expressed in the gift, grant or devise, and if no use or trust be expressed, then for the benefit of the church. Here is a full recognition of the power of the church to have property conveyed or devised to its use, certainly within the limit of ten acres.

The 41st section in express terms vests the title of property held, conveyed or devised to a trustee for the use of the church, in the corporation, but requires it to be held and used according to the intention of the grantor or donor. So on the death of the testator the title to this block vested in the church, as a corporate body. This was a result both of the statute and of this clause of the will. The trustee elected by the church session could not, therefore, become invested with the title, because, under the statute, the title remained in the corporation, notwithstanding the will provided he should, on his election, be invested with the title. He therefore took but a power to manage, control, sell and convey, under the session of the church. This fully answers the objection that there was no person to take .the title until the trustee was elected, or, if the corporation took immediately on the death of the testator, the fee could not be afterwards vested in the trustee, as the testator could not vest a fee in the church, and by the same instrument divest it after it was thus vested, and vest it in another. Nor could he limit a fee upon a fee, unless the first fee limited failed for the want of the happening of a specified contingency, which was not the case in this devise, but inasmuch as the statute vests the fee in the corporation, the grantor or devisor can only direct the use and control of the property, which the testator did by this devise. Although the fee in the property vested in the corporation, it was subject to the control and power conferred on the trustee by this clause of the will.

If tested by the rule that to create a trust there must be sufficient language for the purpose, there must be a subject sufficiently described, and there must be a specific object, this devise must be sustained. There is not a particle of doubt that the language is sufficient, there is not the shadow of a doubt as to the subject devised, and under the strong, if not uniform, current of decisions of the courts since the enactment of the 43d Eliz., the object is sufficiently specific to require the devise to be executed by a court of equity; and according to the great weight of English and American authority this devise is to charitable uses.

After a most careful consideration of all the questions pressed on our attention, we are unable to say there is any error in this record, and the decree of the court below is affirmed.

Decree affirmed.


author: Mr. Justice Scholfield

text:
    Azra F. Brown et al. v. The Scottish-American Mortgage Company.

      Filed at Ottawa June 13, 1884.

    1. Usury—commissions to loan broker, or to the borrower’s own agent. The payment of an amount to a loan broker as commissions, by the borrower of money, which, added to the current interest upon the note, largely exceeds legal interest, does not show usury in the loan, without proof that the broker acted as the agent of the lender. It does not concern the lender what the borrower pays to his own agent.
    2. Same—taking interest in advance. It is the well settled law of this State that it is not usurious to exact the payment of interest in advance.
    3. A person obtained a loan of $4500 when the statute authorized ten per cent interest on money loaned, and the agent effecting the loan retained $225 of that sum. The borrower gave his note for $4500, payable five years after the date thereof, with nine per cent interest. It was held,, that there could be no usury, as the $225 was the interest on the whole sum for five years, at one per cent. In such case the borrower did not pay more than ten per cent, (the legal rate,) so there was no usury, even if the agent acted for the lender.

      4. Practice in the Supreme Court—whether question arises as to legality of master’s fee. Until the trial court has adjudicated upon the master’s fee charged or entered in his report, this court will not inquire whether the amount charged is legal or illegal. By approving the master’s report the court below will not be presumed to have passed upon the master’s charge and statement of costs appended below his signature, where such charges were not within the reference.
    5. Corporation—corporate existence—effect of dealing with a body as a corporation, as an admission of its corporate existence. The execution of a note, mortgage, etc., to a corporation, as such, is sufficient prima facie evidence of the existence of the corporation, and no further proof thereof is necessary until such proof is rebutted. This is a rule of evidence, rather than the application of the doctrine of a strict estoppel.
    6. Same—plea of ultra vires—whether allowable by a borrower of money from a corporation. There is nothing in the character of a corporation for the loaning of money, contrary to public policy in this State; and where a party has borrowed money of such corporation, and given his note for the same, secured by mortgage, to allow the plea of ultra vires would work a wrong and injustice, which is not admissible.
    7. Chancery practice—objections to answer—how to be taken—and when availing. No question can be raised by demurrer to an answer in chancery. Under the chancery practice, if an answer is defective it must be excepted to, a demurrer not being allowed. And when the answer is not under oath, exceptions will not lie, because such answer is not evidence for the party making it.
    Appeal from the Appellate Court for the First District;— heard in that court on writ of error to the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.
    Mr. B. M. Munn, and Mr. Edward J. Hill, for the appellants :
    The allowance of $50 as the master’s fees for the report, is $40 in excess of the amount limited by statute. Rev. Stat. chap. 53, sec. 20; Lee v. Rowley, 4 Bradw. 218; Harvey v. Harvey, 87 Ill. 54.
    The powers of a foreign corporation depend for their validity under the laws of its own sovereignty. Bank of Augusta v. Earle, 13 Pet. 519.
    The weight of authority is against the existence of corporate authority, unless clearly shown by express grant or by clear implication. Ramsey v. Peoria Marine and Fire Ins. Co. 55 Ill. 311.
    No corporation can exist without some domicil where it may do business. Land Grant Ry. and Trans. Co. v. Coffee County, 6 Kan. 245.
    Under the general issue the better opinion seems to he that a corporation is not bound to prove its corporate existence, for its right to sue is thereby admitted; but when put in issue by nul tiel corporation, the allegation must be substantially proven. Angell & Ames on Corp. sec. 634; 16 Johns. 300; McIntire v. Preston, 5 Gilm. 48; Hargrave v. Bank of Illinois, Breese, 84; Jones v. Bank of Illinois, id. 86.
    Under the plea of nul tiel corporation the burden of proof is on the party alleging corporate existence. Ramsey v. Insurance Co. supra; Cross v. Pinckneyville Mill Co. 17 Ill. 54; Marsh v. Astoria Lodge, 27 id. 421; President and Trustees of Mendota v. Thompson, 20 id. 197; Baker v. Administrator of Backus, 32 id. 79; Tarbell v. Page, 24 id. 46; Stone v. Great Western Oil Co. 41 id. 85.
    A plaintiff corporation, by taking issue on a plea of nul tiel corporation, takes upon itself the burden of proving its corporate existence in accordance with its allegations and replication, and the estoppel to deny the corporate existence is waived. 1 Chitty’s Pleading, 634; Smith v. Whittaker, 11 Ill. 417.
    Mr. Theodore Sheldon, for the appellee:
    The master’s fee has not yet been allowed. The item of his fee is no part of the report, but a mere direction to the clerk in taxing the costs. The allowance of such costs is not reviewable in this court. Ling et al. v. King & Co. 91 Ill. 571.
    Appellants having contracted with the appellee as a corporation, obtained the loan from and delivered to it as such corporation, eo nomine, the note, coupons and deed of trust securing the same, are thereby estopped from denying its corporate existence, or its power to loan money, or to bring suit to recover money so loaned. Angell & Ames on Corp. (10th ed.) 649; Hermann on Estoppel, secs. 579, 580; Bigelow on Estoppel, (2d ed.) 424; Steam Navigation Co. v. Weed et al. 17 Barb. 578; Lombard v. Chicago Sinai Congregation, 64 Ill. 477.
    Had the entire commission been received by the mortgage company it would have made the rate of interest for the five years exactly ten per cent, which was then lawful, but the commission went to the brokers who procured the loan, McGovern v. Union Mutual Life Ins. Co. 109 Ill. 151.
    It is claimed the estoppel was waived by the company failing to plead the same by demurrer to the answer of nul tiel corporation. A demurrer to an answer in chancery is at least unusual; The estoppel was properly raised by the general replication.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was a bill in chancery, by the Scottish-American Mortgage Company, (Limited,) against Azra E. Brown, Lydia Elizabeth Brown, his wife, Philo Allen, and Mary Allen, his wife. Philo Allen and Mary Allen made default, and a decree pro confesso was rendered against them. Azra Brown and Lydia Elizabeth Brown answered, denying the existence of the complainant as a corporation, and also its right or power to loan money in this State. They allege that the loan mentioned in the bill was made by James Duncan Smith and Thomas J. Gordon, capitalists of Scotland, in the kingdom of Great Britain, to Azra F. Brown, through their agents, Henry I. Sheldon and Daniel H. Hale, of the firm of Daniel H. Hale & Co., of Chicago, and not by or through them as officers of complainant; that as such agents they were guilty of fraud and circumvention, in exacting usurious interest and a bonus of $225 for negotiating said loan, and in requiring the giving of the principal note of $4500 when the borrower received only the sum of $4220. There was a replication to the answer, and the cause was, at the October term, 1882, of the court, referred to the master in chancery, to take and report the evidence, and his conclusions thereon. The master in chancery subsequently made his report, in writing, to the circuit court, and Brown filed exceptions thereto, and after-wards, at the February term, 1883, of the court, these exceptions were overruled, and the court decreed a foreclosure of the mortgage. Azra and Lydia Elizabeth Brown sued out a writ of error from the Appellate Court for the First District, upon that decree, and that court, at its October term, 1883, affirmed the decree of the circuit court. They now appeal from that affirmance to this court, and bring this record before us for review.

The charge in the answer that there was fraud and circumvention in the loan in charging usurious interest, is very clearly not made out. In the first place, it is not shown that the firm of Daniel H. Hale & Co., to whom the $225 was paid, were' the agents of complainant in making the loan. If they were not the company’s agents, but were the agents of Brown, in that transaction, although he might have paid them an amount which, added to the current interest upon the note, largely exceeded legal interest, it would not prove usury in the loan. It can not concern the lender what the borrower pays to his own agents. (Kihlholz v. Wolf, Ex’x. 103 Ill. 362; Phillips v. Roberts, 90 id. 492.) The burden of proving a transaction usurious rests upon the party alleging it. (Boylston v. Bain, 90 Ill. 283; Kihlholz v. Wolf, Ex’x. supra.) In the next place, at the time this loan was made (July 15, 1875,) it was lawful to exact ten per cent per annum interest on money loaned. The note given bears interest only at the rate of nine per cent per annum, and runs for five years. It has been held, and is the well settled law of this court, that it is not usurious to exact the payment of interest in advance. (Mitchell v. Lyman et al. 77 Ill. 525; Goodrich v. Reynolds, 31 id. 490; McGill v. Ware, 4 Scam. 21.) One per cent on $4500 (the amount borrowed) for five years makes just $225 ; and so, in any view, interest has not been exacted beyond the rate of ten per cent per annum—the then legal rate. McGovern v. Union Mutual Life Ins. Co. 109 Ill. 151.

The objection to the master’s fee is untenable. Without stopping to inquire whether the amount charged is illegal, we deem it sufficient to say the circuit court has never adjudicated upon that question. The facts are, the master appended below his signature to his report, a statement of costs, as a guide to the clerk in making up his fee bill. • It is not within the reference, is no part of the report proper, and the court in approving the report is not to be presumed to have passed u}Don it. When the fee bill is made up including it, it will be competent for appellants to question its validity by a proper proceeding, if they shall deem it advisable. In all respects, we think the evidence authorizes the amount of the decree as rendered.

The principal question, and only one upon which we have had any hesitancy, is that arising upon that part of the answer which denies the existence of the complainant as a corporation, and its authority to loan money in this State; but after mature consideration we are satisfied it must be decided against appellants. They do not deny, but, at least indirectly, admit, the execution of the promissory note, the power of attorney to confess judgment, and the deed of trust or mortgage,—each of which expressly admits and recognizes the existence of the complainant. The rule is, the execution of a note, mortgage, etc., to a corporation, as such, is sufficient prima facie evidence of the existence of the corporation, and no further proof thereof is necessary until such proof is rebutted. Morawetz on Private Corporations, sec. 138: Angell & Ames on Corporations, (5th ed.) 635; Hermann on Estoppel, (2d ed.) 424; Dutchess Manf. Co. v. Davis, 14 Johns. 238; Jones v. Cincinnati Type Foundry Co. 14 Ind. 90; Cahill v. Kalamazoo Mutual Ins. Co. 2 Doug. (Mich.) 124; Steam Navigation Co. v. Weed, 17 Barb. 378; Black River R. R. Co. v. Clark, 25 N. Y. 208; Lombard v. Sinai Congregation, 64 Ill. 477.

But counsel contend this is upon the principle of estoppel, and could properly only have been relied upon, here, by demurring to the answer. In this class of cases, while it is usually said the party is estopped to deny the existence of the corporation, the courts really proceed upon a rule of evidence, rather than upon the strict doctrine of estoppel. As is well said by Perkins, J., in Jones v. Cincinnati Type Foundry Co. supra: “They have treated the contract with a party by a name implying a corporation, really as evidence of the existence of a corporation, more than as an estoppel to disprove such fact. ” But we are not aware that any question could have been raised by demurrer to this answer. Under the chancery practice, if an answer is defective it must be excepted to,— a demurrer is not allowable. (Stone et al. v. Moore, 26 Ill. 165.) But where the answer is not under oath exceptions will not lie, because such answer is not evidence for the party making it. (Supervisors of Fulton County v. Mississippi and Wabash R. R. Co. 21 Ill. 366.) Nothing could have been replied specially, for the statute provides: “Replications shall be general, with the like advantage to all parties as if special.” (Rev. Stat. 1874, chap. 22, sec. 28.) The oath to the answer is here waived by the bill, and the answer is not under oath. It must result, either that the effect of the evidence of the execution of the note, cognovit and trust deed to appellee, by its corporate name, can not be considered at all in cases like the present, or it is competent to consider it under the issue raised upon the answer. This latter course seems to us unobjectionable, and appears to be in the interest of justice. There is nothing in the character of such a corporation contrary to public policy in this State, (Stevens v. Pratt et al. 101 Ill. 206,) and to allow the plea of ultra vires here would be to work a wrong,—it would be contrary to natural right and justice. This is never admissible. Darst v. Gale et al. 83 Ill. 136.

We perceive no reason for disturbing the decree below, and it is therefore affirmed.

Decree affirmed.


author: Mr. Justice Craig

text:
    Terrence Burns v. Christopher C. Miller et al.

      Filed at Mt. Vernon June 13, 1884.

    1. Description—rejecting one of two descriptions of land in the same instrument. Where there are two descriptions of the same premises in a deed or other writing, one of which is complete and the other has something added which is subordinate and incorrect, the incorrect or subordinate part may be regarded as surplusage.
    2. A decree on a bill for the assignment of dower and partition of lands found that the ancestor of the heirs, and husband of the widow, died seized of the north-west quarter of the south-west quarter of section 1, and the north half of the south-west quarter of the south-west quarter of section 1, in town 14 south, range 2 east, and other lands described, and appointed commissioners to set apart the widow’s dower in such lands, and divide the residue thereof between the heirs, if partition could be made without prejudice to the owners. The commissioners reported that they had examined “the said real estate,” and set apart and allotted to the widow, “as her dower in full in and to said real estate,” the north-west quarter of the south-west quarter, and the north half of the south-west quarter of the south-west quarter of section 2, town 14 south, range 2 east. It further appeared that the deceased ancestor never owned any such land in section 2: Held, that from the whole decree it was apparent the commissioners never intended to set off to the widow the land described as being in section 2, but on the contrary it was plain that the figure “2” was used when “1” was intended, and that the description of the land as being in section 2 might be rejected as surplusage.

      3. Evidence—admissions amounting to proof of life tenant’s death. The heirs of a deceased person can not recover in ejectment the lands of their ancestor set off to the widow as dower, during her lifetime; but when it is admitted on the trial that plaintiffs are prima facie entitled to recover the lands in controversy by reason of being the heirs of F. M., deceased, who died, etc., seized in fee of the lands, proof of the widow’s death may be regarded as waived or her death as conceded.
    Writ op Error to the Circuit Court of Johnson county ; the Hon. David J. Baker, Judge, presiding.
    Mr. A. G. Damron, for the plaintiff in error :
    The evidence shows that the land allotted to the widow is . in section 2, and it is contended that the words in the decree describing the widow’s dower as being allotted in “section 2,” must be rejected as surplusage or for repugnancy, and the words “section 1” substituted. This is purely technical.
    The cases of Swift v. Lee, 65 Ill. 336, Myers v. Ladd, 26 id. 415, and Kruse v. Wilson, 79 id. 233, are not applicable to this case in their facts. The repugnancy here does not arise in one continuous description of two different quantities, with the intention of describing only one, but arises argumentatively by comparison of different parts of the decree.
    Mr. H. M. Ridenhower, for the defendants in error :
    In the description of lands in conveyances and judicial proceedings, it is held that if it can be made certain by rejecting that which is repugnant or false, it will be done. Swift v. Lee, 65 Ill. 336; Myers v. Ladd, 26 id. 415; Blakely v. Bestor, 13 id. 708; Miller v. Beeler, 25 id. 163; Kruse v. Wilson, 79 id. 233.
    The rule is, where there are two descriptions in a deed, the one, as it were, superadded to the other, and otie description being complete and sufficient of itself, and the other, which is subordinate and superadded, is incorrect, the incorrect description, or feature, or circumstance of the description, is rejected as surplusage, and the complete and correct description is allowed to stand alone. Myers v. Ladd, 26 Ill. 415; Kruse v. Wilson, 79 id. 233.
    Plaintiff in error, by admitting a prima facie case in the •plaintiffs, admitted the death of the widow before the suit was brought, and he is now estopped from setting up a failure to prove that fact on the part of the defendants in error. Stribling v. Prettyman, 57 Ill. 372; Hensoldt v. Town of Petersburg, 63 id. 111.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action of ejectment, brought by defendants in error, heirs at law of Frederick Miller, deceased, to recover the north-west quarter of the south-west quarter of section 1, and the north half of the south-west quarter of the southivest quarter of section 1, all in township 14, range 2, in Johnson county.

It was admitted on the trial that Frederick Miller died seized of the lands, in April, 1868, and that the plaintiffs are his heirs; but it was contended by the defendants that the lands had been sold under a decree rendered in the circuit court of Johnson county, in a proceeding between the widow and heirs of Frederick Miller, deceased, to assign dower and partition the lands belonging to his heirs. The decree of sale in the partition suit was put in evidence by the defendants on the trial, and the main question presented by the decree, and, indeed, by the entire record, is whether the lands in controversy were ordered sold by that decree. If they were, the defendants would be entitled to hold possession of the lands, as they claimed under a sale under the decree. If, on the other hand, they were set off to the widow as dower, then upon her death the heirs were entitled to the possession of the lands so set apart to her.

The decree was rendered at the September term, 1868, of the Johnson circuit court. Lavina Miller, the widow of Frederick Miller, and three of his children, were complainants, and the balance of his heirs were defendants. The decree found that at the time of his death Frederick Miller was seized in fee simple of the following described real estate, situate, lying and being in the county of Johnson, and State of Illinois, to-wit: The south-west quarter of the south-west quarter, and the south-west quarter of the north-east quarter, of section 26, town 13 south, range 2 east, and part of the north-west quarter of the south-east quarter of section 2, town 14 south, range 2 east, beginning at the south-east corner of the above described tract of land, thence in a southeast direction, with the meanders of a branch, to the south line of said tract, thence east to the south-east corner, thence north eighty rods, thence west to the place of beginning, containing twenty acres, more or less; and the north half of the south-east quarter of the south-west quarter of section 1, town 14 south, range 2 east, twenty acres; and the north half of the south-west quarter of the south-west quarter of section 1, town 14 south, range 2 east, and the north-east quarter of the south-east quarter, and the north-west quarter of the south-west quarter of section 1, town 14 south, range 2 east, containing in the aggregate two hundred and sixty acres, more or less; and that no other person or persons than the said parties to this suit have any interest in or title to said real estate, in any manner whatever. The decree then contained the following:

“It is ordered and decreed by the court that partition be made of said real estate among the several parties to this suit, equally, according to their respective shares, if the same can be done without prejudice or injustice to the owners and proprietors thereof; and that Robert M. Whitnel, W. D. Peeler and Joshua P. West be and they are hereby appointed commissioners to make said partition, and they are hereby ordered to report the same to the court, here, by nine o’clock in the morning of Saturday next.
“Wednesday, Sept. 9, 1868.—This day come the complainants, by their said solicitor, and also come the said commissioners, and submit to the court their report, showing that after having been duly sworn before W. D. Deans, a justice of the peace in Johnson county, as such commissioners, and examining the said real estate, they have set apart and allotted to the said Davina Miller, widow of the said Frederick Miller, deceased, as her dower in full in and to said real estate, the following, to-wit: The north half of the southwest quarter of the south-west quarter, and the north-west quarter of the south-west quarter of section 2, town 14 south, range 2 east, in said county of Johnson, and State of Illinois, containing sixty acres, more or less; and they further report that the remainder or balance of said real estate can not be divided among the several parties to this suit without manifest injustice and prejudice to the several parties interested therein. ”

This report the court approved, and" decreed as follows: “Therefore it is further ordered, adjudged and decreed by the court, that the balance of said real estate (not set off, as aforesaid, to the said Davina Miller,) be sold by the master in chancery, at the court house door, in Vienna, at public auction, to the highest bidder. ”

It will be observed that Frederick Miller owned no land in section 2 except twenty acres, and that was located in the south-east quarter. So far as the north half of the southwest quarter of the south-west quarter, and the north-west quarter of the south-west quarter of section 2, town 14 south, range 2 east, are concerned, Miller never owned or claimed such lands, and it is apparent, when the entire decree is considered, that the commissioners never intended to set off to the widow the land described in section 2, but, on the contrary, it is plain that the figure “2” was used when “1” was intended. In the first part of the decree the court found that Frederick Miller died seized of the north half of the south-west quarter of the south-west quarter, and the northwest quarter of the south-west quarter of section 1, town 14 south, range 2 east, and other lands particularly described, all in Johnson county, and containing in all two hundred and sixty acres. These lands, and these only, the court decreed should be divided, and commissioners were appointed to set off to Lavina Miller her dower in these lands. Now, the commissioners reported that they had examined said real estate,— that is, the land which the court had found belonged to Miller at the time of his death, and not the south-west quarter of section 2. They then report that they have set apart and allotted to Lavina Miller, widow, as her dower in and to said real estate, (that is, the land the court had found Miller was seized of at the time of his death,) the following. The description does not, however, conform to the description as contained in the former part of the decree. But in so far as the description of the land fails to conform to the description in the former part of the decree, it may be rejected.

The doctrine of Myers v. Ladd, 26 Ill. 415, may be invoked here. It was there held that where there are two descriptions of the same premises in a deed, one of which is complete and the other has something added which is subordinate and incorrect, the incorrect or subordinate part may be rejected as surplusage. Here, in the first part of the decree the sixty acres of land set-off to the widow is correctly described, but- in the last part of the decree a mistake was made and the land described erroneously. From the reading of the whole decree the intention is so apparent to set off to the widow the lands in question, that we think the erroneous description may be rejected as surplusage, and allow the first description given in the decree to prevail. It is absurd to suppose that dower was given to the widow from lands never owned by her husband, and yet such is the result if the position of plaintiff in error is sustained.

It is also contended that the evidence fails to show that the widow is dead, and for this reason the judgment is erroneous. The heirs could not recover the lands set off to the widow as dower during her life; but as we understand the record, the death of the widow was conceded on the trial. It was admitted on the trial by the defendants, as appears by the record, that plaintiffs were “prima facie entitled to recover the lands in controversy, by reason of their being the heirs of Frederick Miller, deceased, who died in April, 1878, seized in fee of the lands.” Under this admission, proof of the widow’s death may be regarded as waived.

After a careful examination of the entire record, we are of opinion the judgment of the circuit court was correct, and it will be affirmed.

Judgment affirmed.


text:
    Nathaniel J. Austine v. The People of the State of Illinois.

      Filed at Ottawa June 13, 1884.

      1. Witness—credibility—how questioned. The prosecutrix in a prosecution for rape, or for an assault with intent to commit a rape, may be contradicted by showing that she has made statements, not under oath, inconsistent with her evidence, leaving her credibility a question for the jury.
    2. Continuance—application by defendant in prosecution for rape— sufficiency of grounds—absence of witness. An affidavit by the defendant for a continuance of a case of indictment for a rape, against him, showed that the prosecutrix was'the principal witness for the People; that she would testify on the trial that the defendant committed a rape upon her upon two different occasions, giving the time and place; that such evidence would be false; that defendant was not guilty as charged, and the prosecution by the prosecutrix was purely for blackmail. It also showed diligence in endeavoring to procure the attendance of a witness of the county, whose name was given, and that defendant could prove by such witness that at a time named, subsequent to that when the last rape was alleged to have been committed, in a conversation which he then had with the prosecutrix, she told him, voluntarily, “that the defendant never used any force or violence on the occasions the said prosecuting witness will testify as having been raped and assaulted by the defendant, and that the defendant never committed the crime of rape upon her, as charged, ” but his only offence was soliciting her to commit adultery, which she refused to do. The affidavit also showed the absence of the witness beyond the limits of the State without defendant’s procurement or consent, his inability to procure the attendance of the absent witness at that term of the court, and his ability to procure his attendance at the next term, and concluded by stating that defendant knew of no other witness by whom this proof could be made, and that the affidavit was not made for delay. The court denied the application: Held, that the court erred in refusing a continuance, and that it was not necessary to state that the prosecutrix would deny that she made such a statement to the absent witness. The party making such an affidavit is not required to state what he can not know, or his belief based solely on facts previously stated.
    3. Same—duty to cross-examine prosecuting witness as to matters proposed to be proven by absent witness. A party indicted for rape made application for a continuance, to enable him to procure the attendance of a witness, by whom to prove that the prosecutrix stated to him that the defendant used no force on her, and did not assault or rape her, etc., which was overruled. On the trial the prosecutrix testified to the rape, and defendant did not ask her in regard to what she had said to the absent witness, and from this omission it was claimed that the defendant was not prejudiced by the refusal of a continuance: Held, that the defendant was under no obligation to cross-examine the witness in this respect, his witness being absent, and that he waived nothing by declining to do so.
    4. Same—attachment of absent witness—of the questions presented on answer to the attachment. Where a motion for a continuance, based on an affidavit showing the absence of a material witness without the party’s consent, is overruled, and after the trial the absent witness is attached for absenting himself, and he, in answer to interrogatories, states that he went away by the consent of the party and his attorney, such statement of the witness can not be used to the prejudice of the party applying for the continuance, he being no party to the attachment.
    5. Rape—omitting to resist or make outcry. If a woman, when raped, is paralyzed by fear, she will not be expected to make resistance or outcry; and if the superiority of the defendant’s strength over hers is very great, she might not be able to make effectual resistance. If so remote from all human help that an outcry would prove unavailing, none need be made, as the law does not require the doing of impossible or useless acts.
    6. In a prosecution for a rape, where the defendant asked the court to instruct the jury as to the legal presumption arising from the conduct of the prosecutrix, such as failing to resist or make an outcry, the court modified the instruction by adding the words, “unless there was good excuse, ” etc.: Held, that the modification was erroneous. Instead of the words “good excuse, ” the court should have added what, in law, in the particular instance, constituted a “legal excuse, ” leaving the jury to find if the requisite facts constituting such legal excuse were proved.
    Writ of Error to the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding.
    Messrs. McKenzie & Calkins, for the plaintiff in error.
    Mr. J. J. Tunnicliff, State’s Attorney, and Mr. James McCartney, Attorney General, for the People.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The plaintiff in error was indicted for the crime of rape upon one Permelia Slutz. Upon trial he was convicted of an assault with intent to commit rape, and sentenced to the penitentiary for the term of three years.

Before the case was called for trial, the plaintiff in error moved the court to continue the cause until the next term, supporting the motion by his affidavit. The court overruled the motion, and this ruling presents the first question for our consideration. The affidavit shows that Permelia Slutz, the prosecutrix, is the principal witness on behalf of the prosecution ; that she will testify, on the trial, that the defendant committed a rape upon her upon two different occasions, giving time and place; that this evidence will be false; that the defendant is not guilty as charged in the indictment, and the prosecution of the case by the prosecutrix is purely for blackmail. Diligence is then shown in procuring the attendance of a witness, whose name is given, and who is a resident of the county, by whom he can prove that at a time named, subsequent to that when the last rape is alleged to have been committed, in a conversation which he then had with the prosecutrix, she told him, voluntarily, “that the defendant never used any force or violence on the occasions the said prosecuting witness will testify as having been raped and assaulted by the defendant, and that the defendant never committed the crime of rape upon her, as charged,” but his only offence was soliciting her to commit adultery, which she refused to do. The absence of the witness beyond the limits of the State without his procurement or consent, his inability to procure his attendance at that term of court, and his ability to procure his attendance at the next term of court, are then shown; and it concludes by stating that he knows of no other witness by whom this proof can be made, and that the affidavit is not made for delay, etc.

If authority be needed upon so obvious a proposition as that the prosecutrix, in a case like' this, may be contradicted by showing that she has made statements, not under oath, inconsistent with her evidence', and that the question of her credibility is then a question for the jury, it will be found in Kennedy v. The People, 44 Ill. 283.

The only objection urged against the sufficiency of this affidavit is, that it does not state that the prosecutrix will, in giving her evidence, deny that she made the statement to which the absent witness will testify. We do not think this was essential. The matters to which the affidavit shows the prosecutrix and the absent witness will testify, are directly contrary to each other. Both can not be true, and it is not, therefore, to be presumed that the prosecutrix would admit the matters to which the affidavit alleges the absent witness will testify. Whether she would do so or not, so far as appears by the affidavit, was, when it was made, undisclosed, and rested entirely in her. breast. How could the defendant testify to a future, undisclosed intention of the prosecutrix ? Her intention to testify in regard to the alleged commission of a rape, the record shows was disclosed in a preliminary trial before a justice of the peace, and probably before the grand jury, and was therefore properly embodied in the affidavit. But this can not be said as to her testimony in regard to a subsequent admission contradictory of that testimony, unless it affirmatively appears her intention with regard to her testimony in that respect has been disclosed. An affidavit of this kind is not required to state what the party making it can not know. Nor is it required that the party shall state his belief in regard to matters which he bases solely on facts previously stated,—as, for instance, if all he knows is that the prosecutrix has manifested an intention to testify to one state of facts, and has said another state of facts is true, the court will draw its own inferences. His belief, apart from facts, and except as warranted by. facts, can be of no consequence whatever. When this affidavit was presented, the State’s attorney might have admitted its truth, and then, if it became material upon the trial, the prosecutrix would have been allowed to explain why she had made the statement; but if the facts stated were not true, the proper course to contest them was pursued. We think the affidavit contained all that was essential to entitle the defence to a continuance, its statements being not admitted.

But it is contended the error in this ruling could not have prejudiced the defendant, because he did not inquire of the prosecutrix, when cross-examining her, in regard to what she had said to this witness. We do not think so. He was not then in a condition to contradict her, his witness being absent, and the policy of taking her answers uncontradicted might be very questionable. He certainly was under no obligation to enter upon a cross-examination in this respect, and in our opinion waived nothing by declining to do so.

Again, it is pressed upon our attention that the absent witness returned before the end of the term of the court, and upon being arrested upon attachment for contempt of court in refusing to obey its process, in answer to interrogatories then propounded to him, stated that he had absented himself from court by the consent of the defendant and his attorney. It is enough to say, the defendant was no party to that proceeding, and it is unprecedented, and violative of all principle, that the answer of the witness in that proceeding should he allowed to affect the defendant in this. That was an independent case of the People against the witness, and the record of it has no place here. It is not compatible with the orderly and systematic proceedings of courts to consider evidence in one case w'hieh belongs to another and wholly different case between different parties, however much it may reflect upon a party thereto.

The affidavit, here, is stronger than that for a continuance in Shirwin v. The People, 69 Ill. 55, which we held sufficient to entitle the defendant to a continuance. In that ease it was not stated that the prosecutrix would be the principal witness in the prosecution, or to what it was expected she would testify; but the court inferred, from certain facts appearing in the record, that she would be the principal prosecuting witness.

We do not desire to express any opinion as to the weight of the evidence in this case, further than to say the defendant’s guilt is not so clearly proved that we can confidently say the jury would not have found different had the absent witness been present and testified to the matters set forth in the affidavit.

The court erred, in our opinion, in overruling the motion for a continuance, and for that error the judgment is reversed and the cause remanded.

Several other objections have been urged upon our attention, but inasmuch as they are not likely to occur on the next trial, we deem it unnecessary to pass upon them. It may be well, however, to direct the attention of the court below to certain language used in modifying some of the defendant’s instructions, which we regard as objectionable. These instructions were in regard to the legal presumption arising from certain conduct of the prosecutrix claimed to have been proved by the evidence, and the court modified them by adding the words, “unless there was no good excuse, ” etc. The words “good excuse, ” can only mean “legal excuse, ” and “legal excuse” presents a question of law. The court should have added, instead of the words “good excuse, ” if modification was deemed necessary, what, in law, in the particular instances, constitutes “legal excuse, ” leaving the jury to find whether the requisite facts were proved,—as, for instance, if the prosecutrix was paralyzed by fear, she could not be expected to make resistance or outcryif the superiority of strength of the defendant over her was very great, she might not be able to make effectual'resistance; if they were so remote from all human help that 'all outcry must be unavailing, outcry need not be made. The law does not require the doing of impossible or useless acts. But we do not think the jury should be left to find that a party did or did not have a “good excuse” for doing or omitting to do an act, without any direction as to what, in law, constitutes a “good excuse. ”

Judgment reversed.


author: Mr. Justice Scott

text:
    The National Bank of Pontiac v. Solomon E. King et al.

      Filed at Ottawa June 13, 1884.

    1. Practice in the Supreme Court—who may complain of error. On an appeal by one of the parties to a decree, to this court, who alone assigns error, suggestions of error not affecting the appellant can not be considered.
    2. Release of mortgage—as affecting an intervening judgment lien. A tract of land was purchased subject to a mortgage thereon, previously given by the vendor, which was assumed by the purchaser as part of the price, and he gave his note, secured by mortgage on the premises, for the balance of the purchase money, but never paid anything on the purchase. After the recovery of a judgment against him by a third person, the purchaser reconveyed the land to his vendor, in satisfaction of his notes and mortgage, and the mortgagee entered satisfaction of this second mortgage upon the record, in ignorance of the fact of there being a judgment against the mortgagor, and the land was sold under execution issued on the judgment: Held, that the purchaser from the original mortgagor never had any interest in the land other than the equity of redemption, he having never paid anything, and that the plaintiff in execution, by his purchase, succeeded to no greater interest on account of the entry of satisfaction of the mortgage of record, he being in no way injured by such release, and in no manner deceived by it or induced to take any action he would not otherwise have taken.
    3. Pubchaseb of land from one who had never paid the purchase price—rights of such second purchaser, as against the original vendor. A judgment creditor who levies upon and purchases the land of his debtor, who had bought the same but paid nothing of the purchase money, acquires only the interest the debtor had in the premises, which is nothing but the right to perform the debtor’s contract. Before such creditor can obtain any title he must pay what his debtor was obligated to pay as purchase money and taxes accruing on the land.
    4. A purchased a tract of land subject to a prior mortgage, which he was to satisfy, as a part of the purchase price, giving back his own mortgage on the same premises to secure the purchase money. The purchaser never paid any part of the purchase price of the land, nor any of the taxes which had accrued thereon, and finally reconveyed the premises to his vendor in satisfaction of the obligations he had assumed in respect to them, and the latter entered of record satisfaction of the mortgage he had received. During the time intervening the purchase by A and his reconveyance, a third person recovered a judgment against him, but this fact seems not to have been known to the vendor of A at the time he entered satisfaction of his mortgage. The premises were levied upon and sold under that judgment, the plaintiff therein becoming the purchaser. Subsequently, upon bill filed by the holder of the original mortgage, to foreclose, in which the execution purchaser was made a party, it was decreed that unless the latter should, within a prescribed time, perform the agreement made by his debtor, A, at the time he purchased the premises, in respect to complainant’s mortgage, and also reimburse complainant the amount of taxes paid by him which ought to have been paid by A, then such execution purchaser should take nothing by his purchase: Held, the decree was proper.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Livingston county; the Hon. Owen T. Reeves, Judge, presiding.

      It appears from the original and amended bills exhibited in the circuit court of Livingston county by Solomon E. King and Hugh M. Hamilton, against Isaac Defenbaugh, Franklin D. Sweetser, the National Bank of Pontiac, and the widow and heirs of Allen Walters, deceased, that on the first day of August, 1870, Franklin D. Sweetser and Henry Stanchfield were seized in fee simple of the quarter section of land about which this litigation is had, with some other land described in the bill; that on that day they made and delivered to Emma F. Hapgood their note for $3700, to become due in six years, with interest at ten per cent per annum, and to secure the same they executed and delivered to Charles Hap-good a mortgage or trust deed on all the lands described in the bill; that on the same day Sweetser and Stanchfield made and delivered to Emma F. Hapgood their other note for $1150, to become due in five years, with interest at ten per cent per annum, and als,o on the same day made and delivered to Lydia F. Hapgood their other note for $1150, to become due in five years, with ten per cent interest per annum, and to secure the payment of these last named notes they made another trust deed or mortgage on the same land described in the first mentioned mortgage, to Charles Hapgood. Both trust deeds or mortgages were recorded shortly after the making of the same, in the proper office in the county where the lands are situated.
    It further appears that afterwards, on the 2d day of October, 1871, Sweetser and Stanchfield sold and conveyed the quarter section, which is the real subject of this litigation, to Isaac Defenbaugh, for $6400, subject to the two Hapgood mortgages, both of which were on record, and on the same day they sold and conveyed the other two tracts described in the bill, to Adam Defenbaugh, for $4600, subject, also, to the two Hapgood mortgages. As a part of the purchase money for the tract of land sold to Isaac Defenbaugh, he assumed and agreed to pay on the Hapgood note, $3428.80, and for the balance ($2971.20) he gave to Sweetser his four notes, each for $650, to become due in seven, eight, nine and ten years, and one other note for $371.20, to become due in seven years, all bearing interest at the rate of ten per cent per annum, and secured the same by mortgage made to Sweetser, on the lands sold to him. In the same way Adam Defenbaugh agreed to pay a portion of the purchase money for the tracts of land sold to him, on the Hapgood notes, and gave his notes for the balance of the purchase money, running for a long series of years, secured by mortgage on the land sold to him. Isaac and Adam Defenbaugh went into the actual possession of the lands respectively purchased by them, but never paid any part of the purchase price. Failing to pay any part of the purchase money, or the taxes accruing thereon, an arrangement was afterwards, on the 14th day of October, 1875, made, by which Isaac Defenbaugh reconveyed the quarter section conveyed to him, back to Sweetser, in satisfaction of the note and mortgages executed by him to Sweetser, and also in satisfaction of the amount agreed to be paid by him on the Hapgood note, and for no other consideration. It was expressly agreed this latter conveyance was made subject to the Hapgood mortgages, and Sweetser released of record the mortgage made to him by Isaac Defenbaugh. In the meantime, (that is, on the 10th day of August, 1875,) the National Bank of Pontiac recovered a judgment in the circuit court against Isaac Defenbaugh and others, for $1700, which became a lien on the equity of redemption which the judgment debtor had in this quarter section of land. Afterwards, perhaps on the 19th day of June, 1876, a plañes execution, issued on the judgment in favor of the bank, was levied on this quarter section, and it was sold to the bank, to which the usual certificate of purchase was issued. No redemption from that sale having-been made, the sheriff made the bank a deed for the land. It is alleged, and it is no doubt true, that Sweetser had no actual knowledge of the judgment in favor of the bank when he released the Isaac Defenbaugh mortgage.- Defenbaugh did not disclose that fact.
    It further appears, that on the 21st day of October, 1875, Sweetser sold and conveyed the same quarter section that Isaac Defenbaugh had just reconveyed to him, to Allen Walters, for the sum of $6400, and to secure a part of the purchase money Walters gave to Sweetser his four notes, each for $1100, to become due March 1, 1881, 1882, 1883 and 1884, respectively, with ten per cent interest per annum, and secured the same by mortgage on the land, and also secured the balance of the purchase money ($2000) on another tract of land. These notes of Walters were assigned soon after, and delivered to King & Hamilton, complainants. At the time of the conveyance of this quarter section to Walters, the Hapgood trust deeds or mortgages were known to be an incumbrance on the land, and complainants, King & Hamilton, who were interested in the matter, covenanted with Walters, in writing, to take care of the Hapgood mortgages, so that when Walters paid for the land he would have it discharged from those prior mortgages. Afterwards the Hapgood notes came into the possession of complainants, and were held by them when their original bill herein was filed.
    It is alleged in the amended bill, that at the time of filing the original bill in this cause, complainants were, and had been for a long time, the legal and equitable owners of all the notes described as having been secured on this land, having derived their title thereto by regular assignments from the payees. It is also charged in the bill, that at the time the bank recovered its judgment against Isaac Defenbaugh and others, both the Hapgood mortgages and the mortgage given by Isaac Defenbaugh to Sweetser, were prior and valid liens on the land, and are still such liens thereon, and that the bank is fraudulently seeking to acquire the title to this quarter section, under the circumstances stated, against the rights and equities of complainants. It is also alleged that taxes had accrued on the land, and had been paid by the holders of the securities, which were also a prior lien on the land. Allen Walters died December 28, 1878, and his widow and heirs are made defendants to the bill, with the National Bank of Pontiac, Franklin B. Sweetser, Isaac Defenbaugh, and others. The National bank answered the bill, and set up and insisted on its title acquired under its judgment against Isaac Defenbaugh, and denied the ownership of the notes by complainants, as set forth in the bill. Franklin D. Sweetser also answered the bill, admitting all the material allegations, and then filed a cross-bill reciting the fact, and asked to have the Isaac Defenbaugh mortgage foreclosed in his favor, notwithstanding the release of the same on record, alleging the release was procured by fraud, when he had no knowledge of the judgment of the bank against the mortgagor. To the cross-bill, it seems, the circuit court sustained a demurrer, and dismissed it. The minor heirs of Allen Walters answered by guardian ad litem, and the cause being at issue, it was heard by the court on the bill and proofs introduced at the hearing.
    The court found the facts substantially as they are alleged in the original and amended bills, and decreed that unless the defendant the National Bank of Pontiac pay to complainants the sum of $7983.29, (which sum includes the amount due on the mortgage from Isaac Defenbaugh to Sweetser, and also the amount Isaac Defenbaugh agreed to pay on the Hapgood notes and mortgages,) and the taxes that have accrued on the land, within ninety days from the date of the decree, it shall thenceforth stand absolutely debarred and foreclosed of and from all rights, title and interest, and equity of redemption, in the quarter section of land. It was also further ordered, that if this money was not paid by the bank to complainants, they should have leave to file a supplemental bill in this cause, foreclosing the mortgage made by Allen Walters, since deceased, to Sweetser, it having been found by the decree that complainants were the holders of the Walters notes and mortgages, as assignees of Sweetser. This decree was affirmed in the Appellate Court for the Second District, where the bank assigned errors, and where Sweetser also assigned for error that the circuit court erred in dismissing his cross-bill. The bank brings the case to this court on appeal, but Sweetser has not assigned any errors in this court, and that branch of the case in which he is particularly interested on his cross-bill, is not considered in the opinion of the court. "
    Mr. S. S. Lawrence, for the appellant.
    Messrs. Blanchard & Blanchard, for the appellees.
   Mr. Justice Scott

delivered the opinion of the Court:

The only question in this case in which the National bank is interested, is whether it acquired the title to the land in controversy under the levy and sale on the execution issued on its judgment against Isaac Defenbaugh, or whether the land, as against the claim of the bank, is still subject to the mortgage made by Isaac Defenbaugh to Sweetser, and to the sum he agreed to pay on the Hapgood notes. Other questions are made by the pleadings, but as to some of them the court made no decree, and as to others touching which the court did decree, as the parties affected are not now complaining, they will not here be considered.

Narrowing the discussion within the limits indicated, it will only be necessary to consider whether the decree made by the circuit court injuriously affects the bank,—the only party that assigns error in this court. If it does not, then it should be affirmed. Other suggestions of error not affecting the bank can not, of course, be considered on its appeal.

On looking into the record it is seen that Isaac Defenbaugh, through whom the bank claims the title to the property, never had any interest in it other than the equity of redemption. He bought the land from Sweetser and Stanchfield, subject to the Hapgood notes and mortgages, which it is conceded were then valid, prior liens upon it. It is not claimed that Isaac Defenbaugh ever paid one dollar upon the property. He occupied the. land from October, 1871, (the time he purchased the equity of redemption,) until October, 1875, when he reconveyed the equity of redemption to Sweetser alone, in satisfaction of his mortgage for the purchase money, and of the sum he had agreed to pay on the Hapgood notes. During all that time he never paid one cent of the principal or interest of the purchase price, of any of the taxes accruing on the property. When it became apparent he could not pay for the land, by way of foreclosing or cutting off his equity of redemption, it was agreed that Isaac Defenbaugh should re-convey the land to Sweetser, which he did, and thereupon Sweetser released the mortgage of record. No money was paid. It was done in consideration the mortgagor should be discharged from his obligation to pay for the land—nothing else. The bank was in no way injured by the release that was entered of record. It was in no manner deceived by it, nor induced to take any action it would not otherwise have done. Had the release not been entered, it would not be claimed the bank could obtain any title under the levy and sale without paying what its judgment debtor would have to pay before he could have become the owner of the land. The mere fact satisfaction was inadvertently entered on the record did not and could not change the equities of the parties concerned. It was far less expensive to foreclose the equity of redemption which Isaac Defenbaugh had in the property, by a voluntary reconveyance, as was done, than by decree of court. It was better for the interests of the bank, if it intended to redeem the property from the prior incumbrances resting upon it, that its judgment might attach to the equitable estate of the mortgagor in it.

This case, although not analogous in its facts with Campbell v. Trotter, 100 Ill. 281, is within the just principle of that case. All the bank is equitably entitled to by its levy and sale, is the interest Defenbaugh had in the property. That was absolutely nothing, for he never paid any portion of the purchase price.' Standing in his shoes the bank occupies no better position than he did. Before the bank can obtain any title to the property, it must pay what Defenbaugh was obligated to pay as purchase money, and taxes accruing on the land. The suggestion the bank can take the property as the property of its judgment debtor, discharged from the prior subsisting liens thereon for the purchase money, has absolutely nothing in its support, either in law or justice.

The taxes accruing on the property were a prior lien, which the bank’s debtor was obligated to pay, and they follow the property. It is a matter of no consequence whether the taxes were paid by King & Hamilton or Sweetser. Payment of the taxes was necessary to preserve the property for the benefit of all concerned,—the bank as well as others,—and it was not error to charge the property with their payment, and w'hoever obtains the property must take it with that incumbrance resting upon it.

It may be the decree requires the payment to the original complainants of more money than they are entitled to receive from the property, as between them and Sweetser. Perhaps all they are entitled to receive is the $4400 due from the estate of Walters, with the interest and the taxes they actually paid on the property. But of that no one can complain but Sweetser, and he has assigned no cross-errors in this court. The bank is in no way interested in adjusting the equities touching the sum secured on the property, as between the original complainants and Sweetser. By the decree the bank was required to pay no more than should be paid to complainants, King & Hamilton, and to Sweetser, and so far as it is concerned it matters little to whom the court directed it to be paid. In no event can the bank obtain title to the property until it shall have paid all that Isaac Defenbaugh was obligated to pay for the land, and the decree does not require it to do more.

It is said it was error to decree a strict foreclosure in this case. As this decree is understood, it does not purport to foreclose any of the mortgages on the property. That portion of the prayer of the bill asking for a foreclosure of the mortgages does not seem to have been allowed. It appears the amount due from Isaac Defenbaugh on the property for the purchase money, interest and taxes, is more than its actual value. All the decree does is to declare that unless the bank shall, within ninety days, pay the amount that would have been due from Defenbaugh, it shall thenceforth stand absolutely debarred and foreclosed of and from all right, title and interest, and equity of redemption, in and to the land. Ninety days was a reasonable time in which to pay the money. Although the specific relief asked was not granted, it was proper, under the general prayer for such relief as the facts warranted, to decree as was done.

No error appearing in the record which injuriously affects the bank, which is the only party assigning error in this court, the judgment of the Appellate Court must be affirmed.

Judgment affirmed.