author: Mr. Justice Baker

text:
    Patrick Kelly v. Jane Kelly et al.

      Filed at Ottawa November 15, 1888.

    1. Chancery—trial by jury—whéther verdñct is conclusive upon the chancellor, or merely advisory. In chancery cases in which, the right of a trial by jury is not expressly given by law, the verdict of the jury is merely advisory. The chancellor may either predicate his findings and decree upon the verdict, or, if he is not satisfied with it, may set it aside and submit the issues to another jury, or, acting in disregard of the verdict, may, on the evidence submitted at the jury trial, render a decree contrary to the findings returned by the jury. He may also hear additional evidence that may be offered.
    2. Same—as to matters not within the scope of the bill. On bill by a husband against his wife to enforce an equitable division of the proceeds of real estate received on its sale, the title to which stood in the wife, on the sole ground that he furnished one-half of the purchase money, there will be no error in the decree in not finding that the complainant had a right of homestead and dower in the land or its proceeds.
    3. Besulting trust—evidence—in rebuttal of claim. On bill by a husband, against his wife, to have a resulting trust declared in his favor in the proceeds of real estate, the title to which was taken in the wife’s name, on the ground that he furnished one-half of the purchase money, evidence on behalf of the defendant that an adult daughter of the parties paid all the purchase money for the land except a certain sum contributed by a minor daughter, is proper, not for the purpose of establishing an equity in favor of the adult daughter, or of impeaching the deed, but for the purpose of rebutting the claim of the husband that he has an equity growing out of the payment of half the purchase money.
    4. Same—rule of adjustment as to improvements. Title to a lot was taken in the name of a married woman. The price given was $700, all of which was paid by an adult daughter, except $35, which last named sum was realized from the earnings of a minor daughter. The wife' purchased a building, and moved the same on the lot, and improved the building, her husband contributing nothing in respect of the building. The wife sold the lot and building for $7000, the husband joining in the deed. On bill by the latter to havS a resulting trust declared in his favor for one-half of the proceeds, the court estimated the value -of the lot at $2800, and the improvements at $4200, which were declared to be personal property, and decreed that the husband was entitled to a thirty-five seven-hundredth part of $2800, or $140, giving him the benefit of the sum realized from the earnings of his minor daughter, and paid on the purchase money of the lot: Held, that the rule adopted for finding the interest of the husband in the proceeds of the sale was equitable and just, and afforded the only reasonable basis for determining the amount he was entitled to receive that was available under the facts.
    ' Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook ■county; the Hon. Egbert Jamieson, Judge, presiding.
    In 1882, a deed for the real estate hereinafter mentioned •and described was made to Jane Kelly, and in 1885 a two-story house was bought and moved onto said real estate, and the house repaired and improved. In 1886, the land, and the building and improvements thereon, were sold and conveyed to the Chicago and Great Western Railway Company for the -consideration of $7000, both Jane Kelly, and Patrick Kelly, her husband, joining in the conveyance, and the $7000 was paid over to Ruel W. Bridge, the attorney and agent of said Jane Kelly. Thereupon, said Patrick Kelly filed, in the Superior Court of Cook county, this bill in chancery against his wife, Jane Kelly, and said Ruel W. Bridge, and claimed that said real estate, house and premises were purchased with the joint money of himself and his said wife; that he contributed at least one-half of the purchase money, and that at the time ■of the purchase of the property, the title thereof should have been taken in the joint names of himself and his wife; that she, Jane Kelly, held said property as a trustee, for the joint benefit of himself and of her, and that said Bridge should be held to hold said $7000 as such trustee, and that he, said Patrick Kelly, was equitably entitled to have and receive, for his own use, one-half of said money. Answers and replications were duly filed in the cause.

      On the 14th of April, 1887, a jury was impaneled for the trial of the cause, and they, -after hearing the evidence and the arguments of counsel, and the instructions of the court,, returned a verdict finding that the real estate and premises described in the bill of complaint in the suit were acquired by the joint earnings of Patrick Kelly and Jane Kelly, and that Patrick Kelly was entitled to $1500 of the fund involved, and that Jane Kelly was entitled to the remainder of said fund. This verdict was set aside, upon motion, and a further order was made by the court, to the effect that the order theretofore made, allowing the cause to be tried by a jury, should be set aside and vacated. Thereupon the court, on the 22d of April,. 1887, entered a final decree in the cause, as follows:
    “This cause having come on to be heard, upon the bill of complaint, and answers of the defendants thereto, replication, of complainant to answers, and upon proof taken in said cause,, on the trial of issues of fact, by jury heretofore sworn to try same, and cause having been argued by counsel for parties,, and court having heard and considered said pleadings, proofs and arguments, and being fully advised in the premises, doth find that the real estate described in complainant’s bill was purchased in the year 1882, for $700, and that title for it was taken in name of defendant, Jane Kelly; that neither complainant, nor defendant Jane Kelly, paid any part of said purchase money; that all the said purchase money, excepting $35, was paid by Mary Kelly, daughter of said complainant and defendant, after she, said Mary Kelly, became of full age ; that said sum of $35 was earned by Jennie Kelly, daughter of ■ complainant, during her minority, and that complainant is entitled to the same benefit thereof as though he had himself contributed said amount towards the purchase of said real estate. The court further finds, that the improvements upon said real estate were purchased and built by the joint earnings, of defendant Jane Kelly, and Mary Kelly and Jennie Kelly;, that no part of said money for said improvements was earned. by Mary and Jennie Kelly during the minority of either of them; that "complainant contributed no portion of the moneys paid for said improvements, and performed no services upon or about the same that he was not paid for; and the court further finds, that the said improvements ought, in equity, to be considered and held to be personal property, and not as part of said real estate; that at time of said sale, complainant had no right to or interest in, except that arising from the payment of said $35.
    “The court further finds, that the said real estate, and the improvements thereon, were sold for the sum of $7000; and the court further finds, that the value of said improvements at the time of said sale was $4200, and the value of said real estate, at said time, was $2800; and the court further finds, that the complainant is entitled to receive out of the said $2800 paid, the same proportion that said sum paid is to said sum sold for, or that $35 is to $2800, or, $140. This court further finds, that the money in the hands of the clerk of this court, under an order heretofore made, is more than said sum of $140, the proceeds of said sale, and that the proceeds of said sale should stand in lieu and in place of the said real estate and improvements thereon, and that $2800 thereof stand in the place of said real estate, and that $4200 thereof stand in the place of said improvements on said real estate.
    “It is therefore ordered, qdjudged and decreed, that the improvements which were upon the premises described in complainant’s bill of complaint as the west twenty-five feet of the south ninety feet of lot 11, in block 53, in the canal trustee’s new subdivision of the south-west quarter of section 21, township 39 north, range 14, east of the third principal meridian, in the city of Chicago, county of Cook, after the time of sale thereof, should be regarded as personal property; that the value thereof, at the time of said sale, was $4200; that out of the $7000, proceeds of the sale of said improvements and said real estate, the said sum of $4200 stand in the place and in lieu of said improvements; that complainant has no right, title or interest to or any claim upon said sum of $4200; that the value of said real estate at time of said sale was $2800; that out of $7000, proceeds of sale of said improvements and real estate, said sum of $2800 stand in place and in lieu of said real estate; that the complainant’s infant daughter having contributed of her earnings the sum of $35 towards the sum of $700 paid for said real estate, the complainant is entitled to of $2800, to-wit, the sum of $140, and no more.
    “It is further ordered, adjudged and decreed, that the clerk of said court, out of the moneys now in his hands, under order of court "made in this cause, pay to complainant $140, and take his receipt therefor, and the balance of the moneys in his hands, under said order, he pay to defendant R. W. Bridge, by whom the same was paid to said clerk; and it is further ordered, adjudged and decreed, that the injunction issued on the same is hereby dissolved.”
    This decree of the Superior Court was affirmed in the Appellate Court for the First District, and the cause is now brought here by a further appeal.
    Mr. "William H. Sisson, and Mr. C. F. Gooding, for the appellant :
    The decree is contrary to the finding of the jury on the issues of fact, and can not be based -thereon, for the reason the verdict and submission were set aside.
    Kelly had a homestead and dower in the premises. He was the head of the family, and residing on the premises, when the property was sold. Homestead attaches to lands of the wife in which the husband had curtesy. Boyd v. Cudderback, 31 Ill. 113; Henson v. Moore, 104 id. 403.
    Title to the family homestead may be in the wife. Tourville v. Pierson, 39 Ill. 446 ; Lawson v. Lawson, 117 id. 98.

      Parol evidence should not have been admitted on the trial, to impeach the deed to Jane Kelly. It was not necessary to plead the Statute of Frauds, for Mary Kelly was not a party to the suit. Hovey v. Holcomb, 11 Ill. 660; Lantry v. Lantry, 51 id. 458; Rogers v. Simmons, 55 id. 76.
    The title to the lot being in Jane Kelly, the improvements made thereon would attach to the realty. It was error to divide the property.
    Messrs. Campbell & Custer, for the appellees:
    Under the pleadings, the sole question is whether Patrick. Kelly contributed any portion of the money invested in the purchase or repairs of the premises, the proceeds of the sale of which it is sought to divide., The question of dower and homestead is not presented by the pleadings, nor is there any proof in respect to such claim.
    No parol evidence was admitted to impeach the deed to Jane Kelly. The only object was to show that appellant did not contribute to the purchase of the property. The most effective way to do that was to show who did pay for it.
    The decree is not founded on the verdict of the jury. The verdict in a feigned issue out of chancery is merely advisory, and may be disregarded by the court. Titcomb v. Vantyle, 84 Ill. 371; Smith v. Newton, id. 14.
   Mr. Justice Baker

delivered the opinion of the Court:

The action of the court in setting aside the verdict of the jury, and in vacating the order for the submission of the cause to a jury, and in proceeding to find the facts and enter a decree without evidence other than that which had been heard upon the jury trial, was not erroneous. In chancery causes in which the right of a trial by jury is not expressly given by law, the verdict of a jury is merely advisory. In such cases, the chancellor may act as his sound judicial discretion, and his judgment and opinion of the weight of the evidence, dictate. He may either predicate his findings and decree upon the verdict, or, if he is not satisfied with it, may set it aside and submit the issues to another jury, or, acting in total disregard of the verdict, may, on the evidence submitted at the jury trial, render a decree that is contrary to the findings returned by the jury. The chancellor may, as matter of course, hear additional testimony. But in the case at bar it does not appear, from the record, that either party to the cause offered or proposed to produce any testimony other than that which had been heard at the jury trial. It is not even now suggested that appellant desired to introduce further evidence at the hearing. An examination of the record shows that the findings and decree of the Superior Court were fully sustained by the proofs.

There is no forcé in the claim that the rights of Mary Kelly, daughter of appellant and appellee, who was not a, party to the suit, were adjudicated therein. The court admitted testimony to show that she earned and paid all the purchase money for the land, except the $35 contributed by her sister, Jennie, who was a minor. This evidence was clearly admissible, not for the purpose of establishing an equity in Mary Kelly or of impeaching the deed to Jane Kelly, but for the object of rebutting the claim of appellant that he had an equity growing out of the payment of purchase money. Proof that the consideration for the land was paid by Mary Kelly, was a legitimate and effective way of showing it was not paid by him.

It is also urged as error,' that the court did' not find that appellant had a right of homestead and dower in the land or its proceeds. In respect to this matter it is sufficient to say that no question of homestead ór dower was involved in the suit. The claim made by the bill of appellant, and all that the evidence offered by him tended to prove, was simply and solely that he had contributed purchase money for the property, and was therefore entitled, in equity, to an interest in its proceeds.

It is insisted that ^as the title to the land was in appellee, :and she purchased the house and moved it onto the lot, it "thereby became a part of the realty, and that it was error for the court to decree that in ascertaining the interest of appellant in the proceeds of the premises, the improvements ■upon the lot should be separated from the realty, and- separate ■compensations made of the values of, and of the moneys received for, the lot and the house, severally. The whole property, including both land and building, realized $7000, and the court was justified in finding, from the evidence, that the building was worth $4200 and the land worth $2800. It was :also found by the court that appellant had contributed nothing to the purchase or repair of the building, but had contributed, through his minor child, $35 of the money paid for the land. The court determined his equitable interest in the proceeds of "the sale of both land and building, by allowing him that proportion of the value of the lot which the $35 contributed by him bears to $700, the whole amount paid for the lot. The rule adapted for ascertaining the interest of appellant in the proceeds of the sale was equitable and just, and afforded the •only reasonable basis for determining the amount he was entitled to receive that was available under the facts of the case.

We find no error in the record. The decree of the Superior ■Court and the judgment of the Appellate Court are affirmed.

Judgment affirmed.

Mr. Justice Bailey, having heard this case in the Appellate 'Court, took no part in its decision here.


source: Caselaw Access Project

author: Mr. Chxee Justice Craig

license: Public Domain

text:
    Willard H. Alexander et al. v. The Northwestern Masonic Aid Association.

      Filed at Ottawa November 15, 1888.

    1. Life insurance—;payable to “devisees or heirs-at-law"—who may take—“heirs-at-law” defined. Where a person takes a certificate of life insurance in a benevolent society, payable to his-“devisees or heirs-at-law,” if he executes a will bequeathing the fund to.a person or persons therein named, such person or persons will be entitled to the same on his death; but if he dies intestate, without issue, the fund will go to his widow, if any, to the exclusion of his next of kin, or father, mother, and brothers and sisters.
    2. The words “heirs-at-law,” in a bequest of personal estate, or in a policy of life insurance, used to designate the beneficiaries, unexplained by the context, will be held to mean the persons appointed by law to succeed to the estate of the testator or assured in case of intestacy. This rule of construction will not be affected by the mere fact that other and independent provision has been made for some of the same beneficiaries.
    Writ of Error to the Appellate Court for the First District; —heard in that court on writ of error to the Superior Court of Cook county; the Hon. Gwynn Garnett, Judge, presiding.
    Messrs. Cratty Bros. & Ashcraft, for the plaintiffs in error:
    ■ The intention of a party in making a contract is to be arrived at and enforced. He is to be understood by the court in the same sense in which he understood himself. 2 Parsons on Contracts, (5th ed.) 501, 515, note t; Metcalf v. Taylor, 36 Me. 28; Navigation Co. v. Moore, 2 Whart. 491; People v. Phelps, 78 Ill. 147.
    A widow is not an heir of her deceased husband, even under the statute of Illinois, except where she may take by virtue of • the statute. She can not take as heir under or by virtue of a will, deed or contract. Brown v. Harmon, 73 Ind. 412; Lord v. Bourne, 63 Me. 368; Richardson v. Martin, 55 N. H. 45; Jacobs v. Jacobs, 42 Iowa, 600; Tilman v. Davis, 95 N. Y. 17;
      Elsey v. Odd Fellows Association, 142 Mass. 224; 1 Bouvier’s Law Dic. 664.
    All papers in connection with a contract, and used or re- . ferred to in the making thereof, and all statutes or hy-laws hearing upon it, are to be considered in arriving at a construction of the contract. Bullock v. Bullock, 2 Dev. Eq. 307.
    The fund arising from an insurance policy is the property of the beneficiary from the issue of the policy, and the assured can not thereafter control ,it. Bliss on Life Insurance, (2d ed.) 318; Wilburn v. Wilburn, 83 Ind. 55; Elsey v. Odd Fellows Association, 142 Mass. 224; Gauch v. Life Ins. Co. 88 Ill. 251 ; Glanz v. Gloeckler, 104 id. 573.
    Where one of several terms or words may be used, the selection and use of one is the exclusion of the others. 2 Parsons on Contracts, 515, note t; People v. Phelps, 78 Ill. 147.
    Facts and circumstances surrounding the parties at the time of making a contract or will, are proper to be shown in evidence, to aid in a proper understanding and construction of the writing. Schouler on Wills, sec. 579; Smith v. Bell, 6 Pet. 68; Blake v. Hawkins, 98 U. S. 315.
    Mr. E. Walker, for the defendant in error:
    The contract is in the nature of a will. It directs the payment of the fund, on the death of the assured, to his heirs-at-law,—and those words mean those that would succeed to his estate on his death intestate. 2 Williams on Executors, 808, 809; Rawson v. Rawson, 52 Ill. 52; Sutherland v. Sutherland, 69 id. 484; Richards v. Miller, 62 id. 417; Corbett v. Corbett, 1 Jones’ Eq. 114; Rand v. Sawyer, 115 Mass. 124.
   Mr. Chxee Justice Craig

delivered the opinion of the Court:

. This was a bill of interpleader, brought by the Northwestern Masonic Aid Association, a corporation organized under the laws of this State, in which it is alleged that the association was organized on the 27th day of June, 1874; that the object for which it was formed was to secure pecuniary aid to the widows, orphans, heirs and devisees of deceased members; that on the 28th day of January, 1882, the- association issued and delivered to Elijah S. Alexander three certificates, under which it agreed to pay, upon the death of Alexander, the sums therein named, amounting, in.the aggregate, to $8500, to his devisees or heirs-at-law. It is also alleged that Alexander died on the 23d day of February, 1886, leaving no will or devisee; that proofs of death have been duly made; that the association is ready and willing to pay the amounts named in the certificates, to the person or persons entitled thereto; that Josephine P. Alexander, widow, Willard H. Alexander, father, Eunice L. Alexander, mother, Serotia A. Alexander, sister, and -Charles E., John F. and Edward Frank Alexander, brothers of the deceased, make claim to the $8500. The hill prays that the parties named may be made defendants, that they may interplead, and settle and adjust their demands and differences between themselves, and that the fund, should be distributed, by decree, between those entitled thereto.

Josephine T. Alexander, the widow, answered the bill, admitting, in substance, all its material allegations, and settingup her claim to the entire fund, as sole heir of the deceased. The defendants Willard H., Eunice L., Serotia A., Charles E. and John F. Alexander answered the bill, and set up that they are entitled to receive five-sixths of the fund, and they deny the right of Josephine P. Alexander, as widow or otherwise, to have or claim any part of the fund. Edward Frank Alexander answered the bill, and admitted all the material allegations therein. He set up that he was a brother of the deceased, and prayed that the court might make proper distribution of the fund according to equity. The administrators of the estate of the deceased filed their answers, disclaiming all interest in the fund as administrators.

In addition to the facts disclosed by the pleadings, it may be proper to state that the association furnished blanks for applications, and deceased made his application, which was ■ approved January 28, 1882. The application contains this clause: “To whom do you desire the money to be paid in ease of death ? State names, what relations, and how the money shall be divided.” (Ans.) “To my heirs or assigns that I may hereafter elect.” Three certificates were issued on the same day, (January 28,1882,) each in like language in that respect, in which the association “do promise and agree to pay his devisees, or to the heirs-at-law of said Alexander,” etc., sums aggregating $8500. Alexander died intestate February 23, 1886, leaving no child or descendants of child.

The Superior Court entered a decree April 23, 1887, finding all the material allegations in the bill to be true, and that the “widow is the sole heir-at-law to the personal property of said deceased, and that said other defendants have no right, title or interest in said sum of money, or any part thereof.” The decree of the trial court was affirmed in the Appellate Court.

There is no controversy in this case in regard to the facts which control the decision of the question involved. Alexander, the person named in the certificates, died intestate, leaving no child or descendant of a child, but he left a widow, father and mother, one sister and three brothers. It is not claimed, as we understand the argument, by either side, that the fund is assets belonging to the estate of the deceased, which would pass to the administrators, to be used by them in the payment of debts and in the settlement of the estate, but it is conceded that the fund should be paid to the person or persons named in the certificates. The real question for determination seems to be one of construction. In other words, what does the contract entered into between Elijah S. Alexander and the Northwestern Masonic Aid Association mean? To whom, by the terms of the contract, shall the fund be paid ?

In placing a construction on the contract of the parties, it must be remembered that in the use of the words named in the policies it will be presumed the parties had in view the disposition of personal assets, and not real property, as they were dealing only with the disposition of personal assets.

The association, by the terms of the contract, as stated in the certificates, “within sixty days after receipt of satisfactory evidence of the death of Elijah S. Alexander,” “do promise and agree to pay to his devisees, or to the heirs-at-law of said Elijah S. Alexander,” the amount therein named. If Alexander had executed a will, and therein devised the fund to a person or persons therein named, such person or persons, beyond all doubt, would have been entitled to the fund; but as no will was made, there are no devisees to take, and we must now determine what was intended by the use of the words, “to the heirs-at-law of said Elijah S.- Alexander.”

In Richards v. Miller, 62 Ill. 420, this court had occasion to place a construction on a clause in a will where substantially the same language was used as is contained in the certificates under consideration. There Frances Miller, a married woman, executed a will. She first directed the payment of funeral expenses and debts, after which she made various specific bequests, among which was one of $2000 to her husband, John N. Miller. The testatrix then added a residuary clause, as follows: “I give, devise and bequeath to my heirs-at-law the remainder of my estate.” The testatrix died without children or descendants of children, but left surviving her, a husband and brothers and sisters. During the settlement of the estate a controversy arose between the husband and the brothers and sisters of the deceased, in regard to the construction to be placed upon the words “heirs-at-law,” as used in the residuary clause of the will, and it was there held, that the words employed will be presumed to have been used in their strict and primary sense, unless the context shows them to have been used in a different sense. When not- thus explained, their legal and technical meaning will be enforced; that the word “heirs,” unexplained by the context, will be held to mean the persons appointed by law to succeed to the estate in case of intestacy. It is then said: “Where the will gave the residue of the estate to the heirs-at-law, uncontrolled by any other words, the property must descend according to the law of the place where it is situated, and where the will is to be carried into effect.”

We might quote more from the opinion, which has a direct hearing on the case, but it will not be necessary to do so. The court, in plain and unmistakable language, held, that as the husband was an heir under the statute, he was entitled to share in the distribution of the estate.

We are unable to distinguish this case from the one cited supra. The language construed in the Miller case was found in a will, while here the same language is found in a certificate or policy of life insurance; but that fact is of no importance. The rule of construction which should control in the one case should also govern in the other. The language used in the Miller case and in this case will be found to be identical. In the former, “I give, devise and bequeath to my heirs-at-law the remainder of my estate,” while in the latter the language is, “do promise and agree to pay to his devisees, or to the heirs-at-law of said Elijah S. Alexander.”

It is, however, said, the fact that provision had been made for the widow of Alexander under other life policies, which had been made payable directly to her, may he taken into consideration in construing the certificates of insurance. It will, however, be observed, that in the Miller case there was a special devise of $2000 to the husband, and yet he was allowed to take as an heir under the residuary clause in the will.

Rawson v. Rawson, 52 Ill. 62, is also a ease involving the construction of a clause in a will similar to the provision in the certificates. It provided that the remainder of the testator’s property should be distributed to his heirs-at-law according to the statute of Illinois in such case made and provided. The testator left no children, but his widow, parents, brothers and sisters survived him. The court held, that under the language used, the widow was entitled to take under the will, and among other things said: “Our conclusion is, that as there is nothing in the will calling for a particular or special construction upon the term ‘heirs-at-law,’ as used in the will, it must he interpreted according to its strict technical import; that heirs-at-law are as made so by the statute, and are the person or persons on whom the law casts the estate in ease of intestacy; that the widow of the testator is within the contingencies specified in the statutes, and is the heir-at-law to this estate.”

It is said, in the argument, by the use of the words “my heirs,” in the application, Alexander intended to designate his next of kin, and not his widow, as the persons who should receive the amount named in the certificates. The question in the application, as heretofore stated, was as follows: “To whom do you desire the money to he paid in case of death ? State names, what relations, and how the money shall be divided.” (Ans.) “To my heirs or assigns that I may hereafter ■elect.” We do not think there is anything in the answer which discloses any intention on behalf of Alexander to have the fund upon his death pass to his next of kin. Indeed, there is no conflict, as to the persons named as beneficiaries, between the clause in the application and the clause in the certificates of insurance. Bach names his heirs. The clause in the application throws no light on the intention of Alexander which is not found in the certificates of insurance.

It is also claimed that the words “heirs-at-law” should be construed in their popular sense; “that.Alexander must have intended those persons who, in common parlance, are understood to be heirs,—whom the mass of mankind understand to be heirs.” We do not concur in this view. It is to be presumed that Alexander knew who were meant by the words “heirs-at-law,” and when he accepted a contract containing those words, in the absence of anything in the contract manifesting a different intention, we will presume that he adopted the legal meaning those words have when used in statutes, deeds, and other instruments of writing, by persons skilled in the use of such words.

Gauch v. St. Louis Mutual Life Ins. Co. 88 Ill. 252, is a case which has an important bearing in regard to the construction to be placed upon the words involved in this case. There Gauch obtained a policy on his life, payable to “his legal heirs or assigns.” He died leaving surviving him a widow and children. By his will the policy was devised to the children. The widow renounced the provisions of the will, and elected to take under the statute. It was conceded that the policy did not pass to the children under the will of Gauch, and the question arose, whether the term “legal heirs, ” as used in the policy, included the widow. In passing upon this question it is said: “In certain contingencies, brothers, sisters, parents, and even kindred in the remotest degree, are heirs-at-law; but it would be absurd in the extreme to suppose that an individual having children, who should devise his property to his ‘legal heirs/ intended all his kindred should take. The legal presumption in such case would clearly be, that he intended those to whom the law would give his property, real and personal, he dying intestate; and hence it is the actual capacity of inheritance at the time of the death of the owner of the property, and not the fact that a particular person might have inherited from him under a state of facts which did not exist, that determines who is heir.”

If, as held in the ease last cited, it is the actual capacity of inheritance at the time of the death of the owner of the property, that determines who is heir, no argument is needed to establish the right of the widow in this case to hold the fund as an heir of the deceased.

The law of descent (Bev. Stat. chap. 39, div. 3 of par. 1, “Buies of Descent,”) provides, that “when there is a widow or surviving husband, and no child or children, or descendants of a child or children, of the intestate, then, after the payment of all just debts, one-half of the real estate and the whole of the personal estate shall descend to such widow or surviving husband as an absolute estate forever.” This clause of the statute establishes the right of the widow to claim the fund as heir, within the meaning of the terms of the policy. If Alexander, at the time the contract of insurance was made, had intended to make provision for his parents and brothers and sisters, doubtless they would have been named as such in the certificates of insurance. It is unreasonable to suppose that he had them in mind when the contract was made, otherwise they would have been mentioned as beneficiaries. The provision in the policy for the payment of the fund to the heirs-at-law was a very 'natural one, indeed. When the policy was obtained Alexander had no children, it is true; but who can say that he did not intend by the certificates of insurance, and by the use óf the words “heirs-at-law,” to provide for children who might be thereafter born unto him ? Or, in the event that no living child or descendant of a child should survive him, then his widow should take the fund as sole surviving heir?

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.

Mr. Justice Bailey, having heard this case in the Appellate Court, took no part in its decision here.


author: Mr. Justice Magruder

text:
    Huntington W. Jackson, Receiver, v. Oliver H. Horton, Receiver, et al.

      Filed at Ottawa October 2, 1888.

    1. Consideration—compromise of doubtful claim. On bill to foreclose a trust deed, certain of the defendants set up, in good faith, an equitable claim to the land, (seventy acres,) which they claimed as superior to the lien of the trust deed. By leave of court, a compromise of the litigation was effected, by which the title was to be perfected in the complainant, to the entire tract, who was to select ten acres thereof and convey the same to the defendants claiming the adverse equitable title, and they were to release all claims to the remaining sixty acres: Held, that, the agreement for the settlement was based upon a sufficient consideration, namely, the compromise of a doubtful claim prosecuted in good faith.
    2. Setedbment by compboiiise—conditions to be performed, before laches can be imputed. In such case, as the complainant seeking the foreclosure of the trust deed was not entitled to the releases from the defendants whose claim was settled, until he had first selected and conveyed to them their ten acres of the land, they could not be held guilty of laches in failing to release the remaining portion, as until their part was selected and conveyed it could not be determined what the remaining part was.
    3. Tetjst—execution dependent on condition. Where, by means of a compromise by a receiver of a bank, in a proceeding to foreclose a deed of trust on a tract of land, and under the decree of the court in the case, A, B and C, three of the defendants, were entitled to a certain proportion of the tract, to be selected by the receiver, subject only to the condition that after such selection they should convey all their interest in the remainder of the tract, it was held, that the receiver, on acquiring- the trustee’s deed, held the ten acres in trust for A, B and 0, to be conveyed to them upon a condition which they could not perform until their part had been first selected by the receiver.
    4. Sabe—by a receiver under order of eou/rt—what embraced therein— of portion held in trust for a third person. The receiver of a bank holding the legal title to seventy acres of land, of which sixty acres were subject to sale as assets of the bank, and ten acres were held in trust f or certain persons named, when selected by the receiver, obtained leave of the court appointing him, to sell either the whole tract, or his interest therein as receiver, as he might deem best; but he was not to sell the entire tract except upon the consent of the cestuis que trust, and in that event the sale was to be for not less than $42,000, but if only the receiver’s interest was sold, then it was to be for $36,000. The sale was made without the consent or approval of the cestuis que trust, for only $36,000: Held, that the ten acres so held in trust could not be regarded, in equity, as having passed by the receiver’s deed, which described the property as “all right, title and interest in and to” the tract.
    5. Same—sale without reservation as to third person—subsequent action to enforce the rights of the latter. But where a receiver holds the legal title to a tract of land, a portion of which he holds in trust for a third person, and the balance as assets of the debtor, the portion held in trust to be selected by the receiver, which he fails to do, and under an order of court sells the whole to one having notice of the rights of the cestuis que trust, the receiver will not thereafter be required to select the part of the premises held in trust, but a conveyance of a proper proportion "will be decreed and a partition ordered between the parties.
    6. Purchases—with notice—notice to agent—how notice may he afforded. Notice to the agent of a purchaser of land, of the equitable rights of a third person in the same, the agent having been employed in respect of and participated in the transaction, is notice to the purchaser. Such notice may be afforded by the examination of an abstract of title, and also by the decree or order of court under which the sale was made.
    Appeal from the Superior Court of Cook county; the Hon. Gwynn Garnett, Judge, presiding.
    Mr. E. A. Otis, for the appellant:
    The compromise and settlement, in good faith, of disputed claims, when fairly made, will he upheld. McKinley v. Watkins, 13 Ill. 140; Honeyman v. Jarvis, 79 id. 318; Parker v. Enslow, 102 id. 272; Pool v. Docker, 92 id. 501; Fry on Specific Per. (3d Am. ed.) 183.
    Tucker had notice of appellant’s rights, through his agent, Ware. The decree of compromise spread upon the record of the court was notice to every one, of these rights. Morris v. Hogle, 37 Ill. 150.
    Until the selection or location of the ten acres, appellant was not hound to make releases of the balance of the tract. Therefore, there was no laches in the ease. But it is necessary to plead the Statutes of Frauds and Limitations, to avail of them as a defense. School Trustees v. Wright, 12 Ill. 432; Hull v. Peer, 27 id. 312; Hannas v. Hannas, 110 id. 53 ; Finucan v. Kendig, 109 id. 198; Darst v. Murphy, 119 id. 343.
    Messrs. Lyman & Jackson, also for the appellant.
    Mr. Joseph N. Barker; and Mr. John Woodbridge, for the appellees I. K. Tucker and W. B. Gates:
    The record does not disclose any equitable title in appellant. An unaccepted offer of compromise is not competent evidence for any purpose. Stranahan v. Haddam, 11 Conn. 507; Jones
      v. Foxall, 13 Eng. L. and Eq. 140; City of Peru, v. French, 55 Ill. 320; Paulin v. Howser, 63 id. 312; Barker v. Bushnell, 75 id. 221.
    The record disproves the existence of any contract. Horton, as an officer of the court, was powerless, except so far as he was authorized to act by order of record. Hooper v. Winston, 24 Ill. 365; High on Receivers, secs. 191, 192.
    The sale to Tucker was in itself a withdrawal of the offer of compromise. Chrisman v. Miller, 21 Ill. 227; Marshall v. Perry, 90 id. 293.
    The long delay of appellant is a sufficient defense, even if there had been a complete executory contract. Anderson v. Frye, 18 Ill. 95; Mix v. Balduc, 78 id. 216; Hoyt v. Tuxbury, 70 id. 338.
    A verbal promise to pay, or to part with anything valuable, in settlement of a controversy not existing in the form of a pending suit, can not be enforced in a court of law, without some proof that there was a reasonable ground for such controversy. Prater v. Miller, 25 Ala. 321; Stuart v. Bradford, 26 id. 410.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is a bill filed in the Superior Court of Cook County by Huntington W. Jackson Receiver of the Third National Bank of Chicago, against Oliver H. Horton Receiver of the German Savings Bank of Chicago, Luther K. Tucker, William B. Gates, J. Young Scammon, J. Irving Pearce and Thomas M. Hoyne. The original bill was filed on March 13,1884, and an amended bill was afterwards filed on May 7, 1885. The amended bill alleges that Horton as Receiver made a deed to Tucker, which had the effect of conveying seventy acres of land when it was intended to convey only sixty acres, and that ten acres of the seventy equitably belonged to Jackson as Receiver and to Pearce and Scammon, and were held in trust for them by Horton. The prayer of the bill is for a reformation of the deed to Tucker so that it shall not pass the title to the ten acres, for a conveyance of the ten acres by Horton to the complainant, for a partition etc., and for “such other and further relief as equity may require.” The Court below dismissed the bill for want of equity and the ease is brought here by appeal.

Horton was appointed receiver in 1877 of the German Savings’ Bank by the Superior Court of Cook County in the case of Berls et al. v. The German Savings Bank, and found among its assets a note dated July 17, 1873, for $50,000.00 signed by George H. Ward and secured by a trust deed to Henry Greenebaum, the President óf the Bank, upon W. J S. W. J S. 35, T. 39, N. R. 13 E. in Cook County, containing 70 acres after deducting about 10 acres that were subject to Canal and Bailway rights. On February 6, 1878, he filed a bill in the Superior Court to foreclose this trust deed and made Jaekson as receiver, Scammon, Pearce, John H. Brown, Joseph T. Brown and Edgar F. Brown defendants thereto. . These defendants answered the bill and set up that, they owned an equitable -interest in the premises, which was alleged to be superior to the lien of the trust deed, and of which the Savings’ Bank was alleged to have had notice before it became the owner of the trust deed. The Browns were the original owners of this equitable interest and had assigned it as security for an indebtedness they owed to the Third National Bank of Chicago and to J. T. Scammon. The Third National Bank, in which Pearce was a stockholder to the amount of $200,000:00, had failed and Jackson was appointed Beceiver of it by the Comptroller of the Currency. He found among its assets the. claim against the Browns and the assignment of their interest in these premises, made to secure that claim.

It thus appears that, in the foreclosure suit, there was a controversy between Horton as Beceiver of the Savings’ Bank, on the one side, and Jackson as Beceiver of the National Bank, Scammon, Pearce and the Browns, on the other side. Negotiations were entered into between the-parties for a settlement of this controversy. Joseph T. Brown offered to procure conveyances to Horton of. the interests of Jackson as Receiver and of Pearce, Scammon, Ward, and the Browns in said premises, so as to vest in Horton a fee simple title thereto free of incumbrance, on condition that Horton, upon acquiring such title, should convey ten acres of the ■'property to Joseph T. Brown. On June 19, 1878, Horton, as Receiver, filed his petition in the Superior Court in the case of Berls et al. v. The German Savings Bank, recommending a compromise upon the terms thus stated and asking for authority to carry it out. Accordingly, on July 3, 1878, an order was entered hy the Court directing him, upon receiving the conveyances aforesaid together with releases of such dower interests as might exist, and upon becoming vested with an absolute title free of incumbrance on or before October 1,1878 to the premises in question, to convey ten acres thereof to the said Joseph T. Brown.

In pursuance of this order and in consummation of the settlement authorized hy it, Horton had obtained before December 21, 1878, an unencumbered title to the seventy acres subject to the rights of Pearce, Scammon and Jackson Receiver, as shown by the petitions and orders hereafter mentioned. The three Browns released to him all their interests in the property; it does not appear that the assignment they made to the Third National Bank was ever put on record. Jackson as receiver and Pearce and Horton as receiver signed a written stipulation, which was filed in the foreclosure suit on October 11, 1878, and is in the following words: “We hereby stipulate and consent that the answer of the defendants * * * Jackson as receiver and * * * Pearce be and the same are hereby withdrawn; all matters in difference with said defendants having been adjusted.” . Scammon testifies :• “I filed an answer in the'case of Horton v. Ward et al. I have never taken the answer off the files, although I consented that it should be withdrawn.” On October 12, 1878 the foreclosure suit was dismissed.

It is not shown that Ward, the maker of the trust deed, executed to the Eeceiver of the Savings Bank the conveyance contemplated by the order of July 3, 1878. But “acting upon the faith of such negotiations” for settlement, the parties in interest made no opposition to a. sale under the power contained in the trust deed. Accordingly the premises were advertised for sale and sold on October 14th 1878 by Greenebaum, the trustee, to Horton, as Eeceiver, for $54,186.00, the amount of the debt and interest. The usual trustee’s deed was executed by the trustee to the purchaser and recorded on February 25, 1879.

The receiver of the Savings’ Bank had not before December 21, 1878, and has not at any time since then conveyed to Joseph T. Brown or to any of the defendants in the foreclosure suit either ten acres or any other part of the premises in controversy. On that day he filed another petition in the Superior Court stating that he had obtained releases from the Browns; that he had foreclosed the deed of trust by advertisement and sale; that such “foreclosure was, however, subject to the alleged equities of the said Jackson as receiver and said Pearce and Scammon and upon the understanding and agreement that they should severally release all claims to the residue of said land on receiving a conveyance from your petitioner for ten acres thereof” etc.; that “it was impossible to accomplish the whole of said compromise * * * by October 1, 1878;” that, “by the conveyance of ten acres of said land, he can procure the release of all claims and equities of said Jackson as receiver * * * and of said Pearce and Scammon in all the remaining portions thereof” etc.; that it is for the interest of the estate “that he be again authorized to convey ten acres of said land to procure releases of said parties and perfect his said title in the remainder thereof,-” and praying that he may be directed “as such receiver to convey * * * his * *■ * interest in ten acres of said land, such ten acres to be selected by your petitioner” etc., * * * upon your petitioner receiving from said Jackson * * * and * * * Pearce and J. Y. Scammon a full release * * * of all estate, right, claim or equity * * * with release of all dower right in * * * the said remaining portion of the said lands included in said deed of trust” etc.

In accordance with the prayer of this petition an order was entered by the Court on January 2, 1879, which, after “finding the facts stated in said petition to be true,” proceeds as follows: “It is ordered, adjudged and decreed that Oliver H. Horton, the receiver in this cause, * * * is hereby authorized and directed to convey * * * all his * * * interest * *• * ^ * * * ten aeres of the lands described in said petition * * * such ten acres to be selected by said receiver and subject to such reservations and limitations as to the location of streets and alleys * * * through the same as he may deem necessary to a subdivision into' lots, blocks, streets and alleys of the whole of said tract of land, upon the receiver receiving from * * * Jackson as receiver etc., and Pearce a full conveyance * * * of all their * * * claim and equity, * * * including a release of * * * dower * * * of the wife of said Pearce, in * * * all the remaining portion of said tract etc., * * * and also upon receiving a full release of any right or equity in said land * * * on the part of J. Young Bcammon or his wife etc.”

On February 10, 1882, Horton as receiver filed another petition in the Superior Court in the Berls case, in which he states that he holds the title to the 70 acres “subject to whatever interest, title, claim and demand therein and thereto there may be in H. W. Jackson as receiver etc., J.-1. Pearce and J. Y. Scammon”; that he had been theretofore authorized by ■ the order of the Court to settle with them “by conveying to them 10 acres of said land upon their conveying to your petitioner all interest in the remainder thereof, which settlement and compromise has not been consummated”; that he had made an agreement for the sale of the 70 acres for $42,000.00 or $600.00 per acre, $12,000.00 in cash and the balance in three annual payments of $10,000.00 each with interest at 6 per cent; that he believes “he could consummate such sale at once in ease said Jackson as such receiver and said Pearce and Scammon would join therein or in due form assent thereto”; that he believes “he can consummate a sale of his interest therein -if authorized by this Court to do so” for $36,000.00, payable $10,400.00 in cash, $8600.00 in one year, $8500.00 in two and $8500.00 in three years with 6 per cent interest, “the buyer to pay all commissions;” that he “believes it to be for the best interest of the estate * * * to consummate such sale in one manner or the other”; and in which petition he prays that he be authorized “to at once consummate such sale for * * * $42,000.00 upon the terms aforesaid in case said Jackson as such receiver and said Pearce and Scammon properly assent to and approve thereof,” and that, in case they “do not at once properly assent to and approve thereof, your petitioner be authorized * * * to at once consummate a sale of his interest as such receiver in said premises for * * * $36,000.00 upon the terms aforesaid.”

Upon the same day, February 10, 1882, the following order was entered: “Upon reading the petition of Oliver H. Horton as receiver in said cause this day filed herein, it is ordered and decreed that said receiver be and he is hereby authorized and directed to at once.either consummate a sale of the” 70 acres above described * * * “or of his interest therein as such receiver, as he may be able or deem best in accordance with the terms stated in said petition.”

At 12 o’clock on the same day, February 10, 1882, a special warrantee deed, dated January 21, 1882, acknowledged February 10, 1882, and executed by Horton as receiver to Luther K. Tucker, was filed for record in the Recorder’s office of Cook County. The consideration expressed in the deed is $1.00 and the-property conveyed -is described as follows: “all the following described lot, piece or parcel of land situated in the county of Cook and State of Illinois and known and described as follows, towit: all right, title and interest in and to the W. £ S. W. i S. 35 etc.”

At the same hour of 12 o’clock on February 10, 1882, a warrantee deed, dated February 4, 1882, acknowledged February 8, 1882, and executed by Luther K. Tucker and wife to William B. Gates, was also filed for record in said Recorder’s office. The consideration expressed in this deed is $56,000.00, and the property conveyed is described as follows: “the following described real estate, towit: the W. £ S. W. £ S. 35, •T. 39, N. R. 13 E. of 3d P. M. excepting” railroad and canal rights.

At 2 o’clock P. M. of February 10, 1882, there was also filed for record in said Recorder’s office a trust deed upon said property, dated January 21,1882, acknowledged January 24, 1882, and executed by Luther K. Tucker to Thomas M. Hoyne, as trustee, for the purpose of securing Tucker’s three notes one for $8600.00 and two each for $8500.00. The deed from Tucker to Gates recites that it is made subject to this trust deed, and Gates assumes the payment of the notes thereby secured.

The controversy in this ease is between Gates on the one side, and Jackson as Receiver and Scammon and Pearce on the other side. Gates claims to be the owner of the whole tract of 70 acres through the title obtained by the foregoing deeds. Pearce, Scammon and Jackson as Receiver claim that they are entitled to ten acres out of the seventy, and that only sixty acres of the tract belong to Gates. Upon the trial they tendered to Gates a deed executed by themselves and the wives of Pearce and Scammon “conveying to * * * Gates all the land in controversy except an undivided ten acres thereof upon Gates conveying ten acres to complainant.” On April 18, 1885, an order was entered by the District Court of the United States for the Northern District of Illinois authorizing Jackson, as such receiver, to execute the deed so tendered.

It is unnecessary to discuss the question whether the claim to the 70 acres set up by the defendants in the foreclosure suit was valid or not. It may be that, if that suit had gone to hearing, such claim would have been held to be invalid. It is sufficient to say that the parties relying upon it did so in good faith believing that their equities were superior to the lien of the trust deed. Therefore the agreement for a settlement had a sufficient consideration, in that it was the compromise of a doubtful right and put an end to a litigated dispute. (McKinley v. Watkins, 13 Ill. 140; Honeyman v. Jarvis, 79 id. 318.)

The receiver of the German Savings Bank derived important advantages from the settlement agreed upon; he received releases from the Browns of all their interest in the seventy acres; he secured the termination of the foreclosure suit; he obtained title through a sale under the power contained in the deed of trust. His policy was to subdivide the acre property owned by the Bank into blocks and lots and pay off the indebtedness of the Bank by deeding such lots to the creditors in exchange for their bank books. He was in a position to thus utilize sixty acres of the tract in controversy by reason of the advantages derived from the agreement of compromise. Through the title acquired as a result of that compromise, he has been enabled to make a sale from which his bank has realized at least $36,000.00. In return for these advantages he has parted with nothing. Surely it is not equitable that one party to an agreement of settlement should reap all the benefits and that the other party should receive no benefit whatever.

It is true, that, before Horton sold the property to Tucker or Gates, he obtained no releases or conveyances from Pearce and Seammon and Jackson, the receiver. But he was to be the moving party in the matter of procuring such releases and he made no movement in that direction. By the order or decree of January 2, 1879, he was directed to convey to Pearce and Scammon and Jackson ten acres to be selected by himself as receiver, and they were to convey to him their interest in "all the remaining portion of said tract.” He was first to select the ten acres to be conveyed to them. Until he made such ■selection, it could not be determined what the “remaining portion” of the tract was. Therefore, they can'not be justly chargeable with laches in not making the releases called for by the decree.

The record shows, that, in 1883, they objected before the ■Superior Court to the final discharge of Horton as receiver, and moved for a correction of the deed to Tucker; so as to preserve their rights in ten acres of the property. But that court overruled their motion and objections, on the ground that the relief asked for could not be properly granted in the Berls suit but should be sought in an original proceeding, and thereupon granted leave to the receiver of the Third National Bank to file a bill against the receiver of the German Savings Bank. The present suit was instituted in pursuance of such leave.

The decree of July 2, 1879, fixed no limit of time within which the conveyances required of the respective parties were to be made or tendered. If Horton as receiver had at any time selected the ten acres and tendered a deed therefor to Pearce, Scammon and Jackson, a delay on their part thereafter to make a conveyance of their interest in the remainder of the land would have furnished grounds for the charge of laches. ■ But no selection of ten acres was ever made and no deed of ten acres was ever tendered.

By the terms of the compromise and of the decree of January 2, 1879, Pearce, Scammon and Jackson as receiver were entitled to ten acres of the tract to be selected by Horton, as receiver, subject only to the condition that, after such selection, they should convey all their interest in the remainder of the tract. It follows, that Horton held ten acres of the tract in trust for them to be conveyed to them upon a condition, which they could not perform until he had first made a selection. Did their interest pass by the deed to Tucker ?

Horton testifies that he received $36,000.00 in cash and notes as above specified for his transfer to Tucker, and that he intended to sell nothing but his own interest as receiver,, which he regarded as sixty acres, -and which, at $600.00 per acre, amounted to the $36,000.00. He certainly could not sell the land without an order from the Superior Court. We-must look to the order of February 10,1882, for his authority to make a sale. That order furnishes the measure and extent of his power in the premises. It refers to the petition filed on the same day and authorizes him to either sell the whole seventy acres or his interest therein as receiver, “as-he may be able or deem best in accordance with the terms stated in the petition.” The word, “terms,” as'here used does not refer merely to the amount, in cash and notes, for which the sale was to he made and the dates at which the notes were to he paid. It refers to all the conditions and provisions stated in the petition.

By referring to the petition it will be seen, that the receiver was only to sell the whole tract in case Jackson, Scammon and Pearce should consent to such sale and approve of it. The petition recognizes their interest and recites that the title-is held subject thereto. The receiver had no power to sell their interest without their consent and approval. According to the* allegations of the petition the whole tract, if sold at all, was to he sold for $42,000.00 or $600.00 per acre. Before the entry of the order of February 10,1882, Pearce positively refused to sell for $600.00 per acre and wanted $1000.00 per acre. Scammon was unwilling to sell for less than $800.00-per acre. Jackson swears that he did not consent to the sale at $42,000.00, although, so far as he was individually concerned, he was not opposed to it. As he was- acting in a representative capacity, he could do nothing against the wishes of Pearce and Scammon.

But the order of February 10, 1882, construed in connection with the petition, contemplated that the approval of Pearce, Scammon and Jackson was to be obtained after the" entry of the order, and was to be manifested by their joining in the sale or assenting thereto “in due form.” It clearly appears, however, that, after the order was entered, they were not consulted at all. Their consent and approval were not' asked. Jackson was absent in the State of New Jersey, where-he had gone about the 24th or 25th of January, 1882, and he testifies that “on a telegram he could have returned on 24 hours’ notice.” Indeed the record shows that the deed from Tucker to Gates and the trust deed to Hoyne were executed before February 10, 1882, and that the deed from Horton as receiver to Tucker was executed before 12 o’clock on that day.

Inasmuch, therefore, as the Beceiver of the Savings’ Bank hail no power to sell the seventy acres for less than §42,000.00, nor at that figure without the consent and approval of Jackson, Pearce and Scammon, and inasmuch as their consent and approval were not obtained and the sale as actually made was for only §36,000.00, the ten acres in question can not be regarded in equity as having passed by the deed to Tucker.

According to the testimony of Tucker and E. 0. Ware the latter was the agent of the former in the purchase of the property. Ware had actual notice of appellant’s claim to the ten acres, because he went to Pearce to find out at what price the ten acres could be bought. Hence, if Tucker be regarded as a real purchaser, he must be held to have had notice of appellant’s rights through the notice to his agent.

It is claimed, however, that Gates was a bona fide purchaser of the whole tract from Tucker without notice of appellant’s claim to ten acres. As above stated, the consideration named in the deed from Tucker to Gates was §56,000.00. By the terms of the contract made in Tucker’s name for the sale of the property to Gates, the latter agreed to pay §50,000.00.’ He testifies that, as matter of fact, he paid only §44,000.00: and can give no explanation of the deduction of $6000-.00 from the original contract price. Of the $44,000.00, $18,400.00 was paid in cash and the remaining $25,600.00 by assuming the three notes secured by the trust deed above mentioned. •

Joseph N. Barker was the attorney of Gates and examined the title for him. He was also the agent of Gates in the matter of closing up the trade and receiving the title papers and paying the purchase money, Gates being at that time in New York. He introduced Gates to Ware; the contract between them was signed in his office; he went with Gates and Ware to see the property and advised freely with the former about the matter; he says he bought the property and paid for it for Mr. Gates; Gates speaks of him as “to a certain extent perhaps my agent in the matter.” Horton testifies, that he explained to both Ware and Barker that he could not sell the whole’tract, because the parties claiming the ten acres refused to join in the sale and Jackson, their representative, was absent from the city, and that he informed them of his inability to sell any more than sixty acres and figured with them on $36,000.00 as the price of sixty acres at $600.00 per acre. Barker says in his testimony that Horton is mistaken, that there was no talk about sixty acres, that he, as Gates’ attorney, never thought of buying 60 acres, but “the examination was made for the whole tract described in the deed.” Whatever may be the fact as to what took place in the interviews between these witnesses, there are other circumstances which were sufficient to put Barker upon inquiry as to appellant’s rights.

It is undisputed that Barker received from Ware and examined an abstract of title to the property brought down to January 25, 1882. This abstract showed the foregoing petitions of June 19 and December 21, 1878, and the orders of July 3,1878 and January 2,1879. These petitions and orders furnished full information as to the interest of Pearce, Scammon and Jackson in the ten acres in question. (Morris v. Hogle, 37 Ill. 150; Insurance Co. v. Ford, 89 id. 252.) Furthermore, Barker says in his testimony, that on February 10, 1882, he went to the. clerk’s office and examined the petition filed on that day and the order entered on that day. He was therein informed, that Horton as receiver held his title subject to the rights of Pearce, Scammon and Jackson, and had no power to sell the whole tract without the consent and approval of those parties, nor for any less sum than $42,000.00. He must have known that, although the expressed consideration in the deed to Tucker was only $1.00, the actual consideration received by the Savings’ Bank was $36,000.00, because Gates assumed the payment of the trust deed to Hoyne and that trust deed secured the notes mentioned in the petition of February 10,1882, as being a part of the $36,000.00. Knowing that $36,000.00 was the consideration of the deed from Horton to Tucker, he could but know from the terms of the petition and order of February 10, 1882, that for that amount Horton had no power to sell the whole tract, but was only authorized to sell the receiver’s interest in the whole tract.

If it could be successfully maintained, that Tucker was the only party, who was bound to take notice of the rights of appellant and Pearce and Scammon or to make inquiry as to how far Horton was acting in accordance with the powers conferred upon him as receiver, and that Gage was under no obligations to take such notice and make such inquiry, it could only be so maintained by showing conclusively, that Tucker was a real purchaser from Horton and that Gage was a bona fide purchaser from Tucker. We are satisfied, however, from a careful study of the record, that Tucker had no real interest in the matter, but was. made use of by Ware, or by Ware and Barker, as a conduit through which to pass the title to Gates. Of the $44,000.00 paid by Gates only $36,000.00 went to the Savings’ Bank and $8000.00 remained in the hands of Ware.

It has already appeared that Tucker made his deed to Gates and his trust deed to Hoyne before he received any conveyance from Horton. There was a written contract for the sale of the property by Horton to Tucker and a written contract for the sale of it by Tucker to Gates, but neither of these contracts has been produced in evidence. Gates says: “Mr. E. 0. Ware of Pierce & Ware first called my attention to this property, which was in the early part of January 1882. * * * I think the date of the contract was in the fore part of January, sure. It was earlier than the 15th. I should think it was from the 8th to the 12th of January.” Horton says: “My best recollection is there was a written contract for thirty days for consummation of sale. * * * I think the notes and deeds were dated back to the time when the contract for the sale was made.” The deed to Tucker and the notes and trust deed are dated January 21, 1882. Therefore, the contract for sale to Gates was made before the contract for sale to Tucker, the former being dated “from the 8th to the 12th of January” and the latter on the 21st of January.

The testimony shows that Tucker was an Insurance solicitor, and had no money, and that all the money paid to Horton came from Gates. Ware says: “Mr. Gates advanced the money for Mr. Tucker.” Tucker testifies, that he had no conversation with Horton as to the purchase of the property; that Ware conducted the negotiations; that he never saw the abstract of title, and does not know whether it was examined, and can not remember whether he paid for its examination or not; that he never saw Mr. Gates until the day of the trial of this cause; that he can not state how much money he paid Horton for the property and can not “approximate the amount”; that he did not “personally, physically give any money * * * to Mr. Horton or Mr. Ware or Mr. Pierce”; that he does not remember how much commission he paid Ware, and can not state who filed for record the deed from Horton to himself, or who delivered the deed from himself to Gates; that he can not state how much money he received from Gates for the sale of the property to him, whether 42000.00 or $1000.00 or $500.00; that Ware, his agent, received something, but he “did not get it”; that he does not know what Gates paid for the property, or whether $36,000.00 was the true consideration paid to Horton, or that there was a, profit of $8000.00; that he does not remember what the profit was.

Ware’s recollection is equally faulty with that of Tucker as to all these matters. The deed from Horton to Tucker and the deed from Tucker to Gates were delivered to Barker at the same time. Barker took both deeds to the Recorder’s office ■and recorded them at the same time, that is to say, at 12 o’clock on February 10, 1882. Barker paid the money for Gates to Ware. Ware can not remember the amount of the ■check he gave Horton or the amount of the check Barker gave him. Barker can not remember whether he gave Ware his •own check or that of Gates.

It is objected on the part of Gates, that Jackson as receiver of the Third National Bank was not in a position to carry out -the compromise agreed upon for want of an order from the United States District Court permitting him to do so. This ■objection is not well founded. Horton was never in a position to demand a deed of Jackson because he never selected the ten acres. It was time enough for Jackson to get the necessary authority to act, after the selection was made and the ■“remainder,” which he was to give a deed for, was ascertained. It is to be noted, that this objection was never made by Horlon, who admits the agreement for compromise as claimed by appellant, and disclaims any intention of having disposed of appellant’s interest. It is to be further noted, that the Receiver of the Third National Bank did obtain'the order authorizing him to convey his interest in the property before the amended hill in this cause was filed.

It is manifest that the selection of the ten acres in question nan not now be made by the Receiver of the Savings Bank. So long as the Savings Bank held the title to the yffiole tract of seventy acres, its receiver, by selecting ten acres for the outside claimants, would thereby at the same time select the particular sixty acres to be retained by the bank for itself. Now, however, it is admitted that Gates owns sixty acres or six-sevenths of the property. It might not be just to him to-compel him to accept the particular sixty acres, which the receiver would be setting off to him by selecting the ten acres. Nevertheless, equity will not suffer the rights of appellant and of appellees Pearce and Scammon to be lost through want of a remedy for their enforcement. We, therefore, think that the ten acres should be set apart through the ordinary machinery of a partition proceeding as prayed for in the bill.

The decree is reversed and the cause is remanded to the Superior Court, with directions to proceed in accordance with the views here announced, and with further directions that, before the partition herein provided for, Gates, Tucker and Horton as Receiver be required to convey an undivided ten acres to Jackson as Receiver as aforesaid in trust for the Third National Bank and Pearce and Scammon as their interests may appear, upon the latter conveying-to Gates their interest in the other undivided sixty acres of the tract.

Decree reversed.