text:
    The City of Chicago v. Thomas H. Hulbert.

      Filed at Ottawa November 13, 1886.

    1. Pawn-BBOKEBS—powers of municipalities in respect to them. Cities incorporated under the general law have the power to license, tax, regulate, etc., hawkers, peddlers and pawn-brokers, but they have no power whatever to determine who is or may be a pawn-broker.
    2. Same—what constitutes a pawn-broker. A pawn-broker in this State is one engaged in the business of receiving personal property in pledge, or as a security for money or other thing advanced to the pawner or pledger.
    3. Two important elements are necessary to constitute a pawn-broker: First, he must be engaged in the business of taking property in pledge for money advanced,—an occasional loan will not do, but he must so engage in the occupation that it may be known as his regular business; and second, he must be engaged in receiving property in pledge for money, etc., advanced or loaned.
    4. A person in an incorporated city may loan money of his own, or of others on commission, and take as security a mortgage on real or personal property, or stocks, notes, or warehouse receipts, without becoming! a pawnbroker.

      5. Same—the word “property,” as used in the statute concerning pawnbrokers—defined. The word “property,” in the statute defining a pawnbroker, does not include real estate, but is intended to embrace only such articles of personal property as may be actually delivered over to the possession and custody of another as a security, and not stocks, bonds, notes or mortgages, or choses in action.
    Appeal from the Appellate Court for the First District;—■ heard in that court on appeal from the Criminal Court of Cook county; the Hon. Gwynn Garnett, Judge, presiding.
    Mr. George Mills Eogers, for the appellant.
    Mr. C. Frank White, for the appellee.
   Mr. Justice Craig

delivered the opinion of the Court:

The city of Chicago has in force an ordinance, two sections of which are as follows:

“Sec. 1704. The mayor may, from time to time, grant licenses to such persons as shall produce to him satisfactory evidence of their good character, to exercise or carry on the business of a pawn-broker, or of a loan-broker or keeper of a loan office; and no person shall exercise or carry on the business of a pawn-broker, loan-broker, or a keeper of a loan office, without being duly licensed, under a penalty of $100 for each day he or she shall exercise or carry on said business without such license.
“Sec. 1705. Any person who loans money on deposit or pledge of personal property, or who deals in the purchase of personal property, on condition of selling the same back again at stipulated price, or who makes a public display at his place of business of the sign generally used by pawnbrokers to denote their business, to-wit, ‘three gilt or more or less yellow balls,’ or who publicly exhibits a sign of ‘money to loan on personal property, or deposit or pledge,’ is hereby declared to be a pawn-broker. ”

Appellee, Thomas H. Hulbert, a resident of the city, a private banker, was, and still is, engaged in loaning money (both his own, and that of others on commission,) on real estate and furniture, horses, wagons, machinery, warehouse receipts, etc., without removal from the possession of the owner, and also in loaning money on watches, diamonds and jewelry. Under the agreed statement of facts it appears that the method employed, where an advance is made on jewelry, or other valuables of a similar nature, is as follows: The borrower makes an application at the office of said Hulbert for a loan, offering, as security, a watch, (for example,) and he is directed to have some reliable jeweler place a valuation on the watch, and then, if it is deemed good security for the loan asked, he is requested to store it in some warehouse and get a warehouse receipt for it. On the borrower indorsing and turning over to said Thomas H. Hulbert this receipt, and executing his promissory note for the amount to be advanced, the loan is made.

Cojfies of the usual form of warehouse receipt, and of the promissory note used, are as follows, viz.:

Warehouse Receipt issued by the Illinois Fire-Proof Warehouse, 46, 48 and 50 North Morgan street, near Lake street.
G. A. Bobinson, Proprietor.
Storage for Valuables.
Chicago, 111..........188—.
“Beceived in store for account of ............sub-
ject to.......order thereon, and surrender of this receipt.
“Perishable goods and loss or damage by elements, heat, leakage, mice, rats, fire, moths and shrinkage, at owner’s risk. “Goods subject to sale unless charges are paid within six
months, from date.
“Storage per month................$
“Insurance per month...............$
“Advance charges..................
“Total...................$
Per Proprietor.
“$100. Chicago, 111.......188—.
“....... 1886, after date, for value received, I promise to pay to the order of.......:...........dollars, at the office of Thomas H. Hulbert,. in Chicago, with interest at......per cent per annum until paid, having deposited with them as collateral security............... which I hereby authorize and empower the said Thomas H. Hulbert, or his assigns, to sell on the maturity of note, or at any time thereafter, or before, said security being free from claim or incumbrance, and transferable by indorsement, with all its rights and privileges, at public or private sale, without giving notice, and to apply so much of the proceeds thereof to the payment of this note as may be necessary to pay the same, with all interest due thereon, and also to the payment of all expenses attending the sale of the said securities, including attorney’s fees and commissions.”

From the foregoing facts the question presented is, whether Hulbert is liable to the penalty imposed by section 1704, supra.

It appears from the stipulation found in the record, where the facts involved in the case have been agreed upon by the parties, that the defendant, Hulbert, is a private banker in the city of Chicago; that he loans money, for himself and others, on real' estate and personal property security. We apprehend that a person may loan money in Chicago, and take, as security, a mortgage on real or personal property, without incurring any liability under the ordinances of the city, or without becoming a pawn-broker. This proposition is so obvious that no argument is needed in its support. But it is claimed that the defendant made loans and received personal property in pledge as security for the loan; that the warehouse receipts which were given to the defendant gave him the constructive possession of the property, and thus he may be regarded as one loaning on personal property actually placed in pledge,—in other words, that he may be regarded as a pawn-broker. Whatever disagreement may exist in regard to a correct or accurate definition of a pawn-broker in other States, that matter has been placed at rest here by an act of the legislature. Section 1 of an act approved June 4, 1879, (1 Starr & Curtis, 1369,) provides, “that every person or company engaged in the business of receiving property in pledge, or as security for money or other thing advanced to the pawner or pledger, shall be held and is hereby defined to be a pawn-broker. ”

The common council of the city of Chicago, under section 63, chapter 24, (1 Starr & Curtis’ Stat.) page 466, has the power to license, tax, regulate, etc., hawkers, peddlers and pawn-brokers, but it has no power whatever to determine who is or may be a pawn-broker. And the fact that the city council has declared, by section 1705 of an ordinance, that a person engaged in a certain business is a pawn-broker, does not make him such. In order to be a pawn-broker he must fall within the definition given in the statute. Under the section of the statute heretofore cited, two important elements are required to constitute a pawn-broker: First, the person must be engaged in the business of receiving property in pledge for money advanced. An occasional loan will not be sufficient, but the person must so engage in the occupation that it may be known as his regular business or occupation. Second, the person must be engaged in receiving property in pledge, or as security for money or other thing advanced to the pawner or pledger. What was intended by the legislature by the use of the word “property, ” in the act ? Was it intended to embrace lands, personal chattels, bonds, notes, money and stocks, or was the intention to give the word a more restricted sense, and confine it to articles of personal property? That the latter was the object we think is apparent. Lands are property, but it is plain they were not intended to be embraced in the word “property, ” as used, because they are mortgaged almost daily as security for money loaned, and the person taking such security has never been regarded as a pawnbroker. Bonds and stocks and promissory notes could not have been intended, because they are pledged as security for money loaned by the banks all over the country, almost daily, and it has never been understood that our bankers are pawnbrokers ; and yet such might be the result if the term “property” was used in an enlarged sense, and intended to include every species of property. We think the legislature intended by the use of the word “property” to include only such articles of personal property as might be actually delivered over to the possession and custody of the person who advanced the money, and not stocks, bonds, notes or mortgages, or choses in action, or evidences of debt. Here no article of personal property was delivered to the defendant. He took into his possession no article of personal property whatever. The transaction was this: The defendant loaned a certain amount of money, for which he received a note payable at a certain time. To secure the note, the person who obtained the money gave as collateral security a warehouse receipt. If this transaction constituted the defendant a pawn-broker, every banker in the State might be called a pawn-broker. All the banks, to a greater or less extent, make loans, and take as collateral, bonds, stocks, notes and mortgages, or warehouse receipts, and we think they have the right to do so without becoming pawn-brokers.

From what has been said, we think it is clear that the defendant was not liable to ariy penalty under the ordinances of the city,—that he can not be regarded a pawn-broker so long as he receives no personal property in pledge for a loan.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Mulkey

license: Public Domain

text:
    Alexander Long et al. v. William P. Long et al.

      Filed at Ottawa November 13, 1886.

    1. Advancement—in what manner to be evidenced. An advancement which is not evidenced in the manner required by the statute, is, in legal effect, no advancement at all, however clearly it may appear it was so intended.
    2. Specific performance—contract must be clear in its terms. A contract which is sought to be specifically enforced, must be clear, certain and unambiguous in its terms, and must be admitted by the pleadings, or proved with a reasonable degree of certainty. It is not sufficient to show that a contract of some kind exists between the parties, and that it has, in whole or in part, been performed by the complainant, but all its material terms must be satisfactorily proved or admitted.
    3. Heir’s expectancy—release—as to evidence thereof. The mere making and delivery of a quitclaim by a person to his grandfather, as to the lands of the latter, afford no evidence of an intention on the part of the grantor to release an expected inheritance.

      i. In this case the facts and circumstances relied on as evidence of a contract of a prospective heir with his ancestor, to take certain property conveyed to him, in full of his share in the grantor’s estate, as heir, are stated, and held insufficient to show such agreement.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Lee county; the Hon. John Y. Eustace, Judge, presiding.
    Messrs. W. & W. D. Barge, and Messrs. W. E. Ives & Son, for the appellants:
    The land conveyed was not charged to the grandson by the intestate, nor did the grandson receive it as an advancement, but in full payment and satisfaction of his portion of the estate. Such releases of an heir’s expectancy have frequently been sustained. Bishop v. Davenport, 58 Ill. 110; 2 Story’s Eq. sec. 1040 b.
    All agreements by expectant heirs in regard to their future contingent estates, when fairly made, will be enforced in equity. Parsons v. Ely, 45 Ill. 232; Kenney v. Tucker, 8 Mass. 142; Quarles v. Quarles, 4 id. 680; Hobson v. Trevor, 2 P. Wms. 191; Fitch v. Fitch, 8 Pick. 479; Witherell v. Witherell, 2 Eng. Ch. 184; Varick v. Edwards, 1 Hoff. Ch. 382.
    The declarations of a party to the record are admissible in evidence against him. Ashlock v. Linder, 50 Ill. 169; Robbins v. Butler, 24 id. 387; Railway Co. v. Boone County, 44 id. 240; 1 Greenleaf on Evidence, secs. 171, 172, p. 227.
    The declarations and statements of William Long were competent evidence. Cline v. Jones, 111 Ill. 563; 1 Greenleaf on Evidence, secs. 106, 189; Galbraith v. McLain, 84 Ill. 379.
    Mr. John D. Crabtree, for the appellees:
    The bill seeks to compel the specific performance of an alleged contract. This will only be decreed, by a court of equity, where the right to the relief sought is established by a clear preponderance of the evidence. Fleischman v. Moore, 79 Ill. 539 ; Brink v. Steadman, 70 id. 241; Rolls v. Rolls, 82 id. 243; Bowman v. Cunningham, 78 id. 48; Allen v. Webb, 64 id. 342; Hartwell v. Black, 48 id. 301; Simmons v. Hill, 4 Harr. & McH. 252; Hazelton v. Putnam, 3 Pinney, 107; Aday v. Echols, 18 Ala. 353.
    William P. Long was a competent witness as to the agreement between his grandfather and himself, concerning the conveyance to him of the land in question. None of the parties to this record either sue or defend as heirs, and the statute cited by counsel has no application to a case like this. Pigg v. Carroll, 89 Ill. 205; Mueller v. Rebhan, 94 id. 149.
    Evidence as to the declarations of William Long, made to third persons in the absence of William P. Long, after the deeds were delivered, and not connected with any act being performed in relation thereto, was clearly inadmissible as against William P. Long, being only hearsay. Bishop v.
      Georgeson, 60 Ill. 484; Bowen v. Rutherford, id. 41; Kent v. Mason, 79 id. 543.
    Declarations of the ancestor, under whom both parties claim, unaccompanied by any act showing what disposition he had made or intended to make of his estate, are not evidence. Chadwick v. Webber, 3 Greenlf. 141; Hatch v. Straight, 3 Conn. 31; Faulkner v. Watts, Atk. 407; Bulkeley v. Noble, 2 Pick. 337; Haynes v. Rutter, 24 id. 242; Ladd v. Abd, 18 Conn. 513; 1 Greenleaf on Evidence, sec. 110; Mims v. Sturtevant, 23 Ala. 664; Starkie on Evidence, note 1, page 88; Dunn v. Simpson, 6 Binn. 478; 6 Am. Dec. 490; Morse v. Thorsell, 78 Ill. 600; Osgood v. Manhattan Co. 3 Cow. 612; Jackson v. Kniffen, 2 Johns. 31; 3 Am. Dec. 390, note 395; Meeker v. Boylan, 4 Dutch. 283; Chase v. Ewing, 51 Barb. 597; Dewey v. Goodenough, 56 id. 54; Sanford v. Sanford, 5 Laws, (61 Barb.) 293.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The present litigation has its origin in a dispute between the children and grandchildren of William Long, deceased, about the right of William P. Long, one of the grandchildren, to share in the distribution of the personal estate of the deceased.

William Long, the ancestor of the distributees, died intestate, on the 4th of July, 1877, leaving little real but a large amount of personal estate. In August of the same year, William B. Long, a son of deceased, was appointed administrator of the estate, and qualified as such. On the 30th of September, 1880, the question in dispute was brought to a hearing, in the county court, upon the amended report of the administrator, who was acting in concert with the other heirs in resisting the claim. That court, upon hearing the proofs, held that William P. Long was entitled to his distributive, share of the estate, fixing the amount at $5240, and thereupon entered an order that the administrator pay the same within thirty days. From this order the administrator prosecuted an appeal to the circuit court, which, so far as this record shows, is still pending. On the 10th of March, 1881, and pending said appeal, the heirs of William Long other than the appellees, who were made defendants, filed the present bill, praying that William P. Long be decreed to execute a release of all interest and claim in and to the estate, and that he be perpetually enjoined from prosecuting any suit or action for the enforcement or recovery thereof. The cause was heard before the circuit court of Lee county, upon the pleadings and proofs, resulting in a decree dismissing the bill for want of equity. On appeal, that decree was affirmed by the Appellate Court for the Second District, whence the case comes to this court for review.

The theory upon which it is sought to exclude William P. Long from participation in the estate, is based, in part, upon certain transactions that occurred between him and his grandfather, something over a year before the latter’s death. It is an undisputed fact, that on the 3d of June, 1876, William Long conveyed to his grandson, William P. Long, a tract of land containing a fraction over two hundred and forty-nine acres, for the expressed consideration of ,$4600, and that the latter, at the same time, executed to him notes amounting, in the aggregate, to $4000, and a mortgage upon the conveyed premises, to secure the same, and also a quitclaim deed for a certain other tract of land, which was understood by both of them to belong to William Long, and in which William P. claimed no interest, though there is evidence tending to show that the latter did have the legal title to at least small interest in an eighty-acre tract covered by the quitclaim deed.

While these transactions are undisputed, there is a wide and radical difference between counsel as to the object and purposes with which they were entered into. The claim of the bill, as originally framed, is, in substance, that the conveyance of the two hundred and forty-nine acres of land, less-the $4000, for which the notes and- mortgage were taken, was intended by the grandfather as an advancement, in full, of the grandson’s presumptive share in his estate, and that the latter accepted it as such; that the land, at the time of the transfer, was worth, in excess'of the $4000, more than the grandson’s share of the estate at that time or at the time of the grandfather’s decease. William P. Long, by his answer, admits the conveyance to him of the two hundred and forty-nine acres of land, but denies that it was made in pursuance of the special agreement set forth in the bill. On the contrary, it is positively averred that no such agreement was ever made, but charges the conveyance in question was made under the following circumstances, viz.: That William Long, for many years before his death, made his home with his son, James-Long, the father of appellee, and was living with him at the time of the death of the latter, in 1870; that in 1864, James Long, being desirous of purchasing two hundred acres of the two hundred and forty-nine acre tract in question, and not having the money for that purpose, his father purchased it for him, taking the deed in his own name, with the understanding that when James was able to pay for it, he was to-have it at the same price his father paid for it, J ames agreeing in the meantime to pay a reasonable rent in lieu of interest on the money advanced in its purchase; that J ames Long had resided on the land, under this agreement, about three years before his death; that upon his decease, it was mutually agreed between William Long and appellee, that the latter was to have the land on the same terms offered to and accepted by his father; that appellee took possession of it with this understanding, and paid rent therefor accordingly ; that afterwards, to-wit, on the 2d of February, 1875, appellee being desirous of securing the remainder of the two hundred and forty-nine acre tract, the said William purchased it for him, on the same conditions the other was purchased; that the two hundred acres first purchased cost $3600, and the forty-nine acres cost $1000, making $4600 all together; that on the 3d of June of the following year, the above agreement and understanding with respect to the land was finally consummated by William Long conveying to' appellee the two hundred and forty-nine acres of land, and the latter paying him $600 in cash, and executing to him his four promissory notes of that date, for the sum of $1000 each, payable in one, two, three and four years, respectively, with interest thereon at the rate of eight per cent per annum, the amount thus paid and secured to be paid being the exact amount which the land cost.

A vast amount of evidence was introduced at the hearing, in support of these respective theories, which are formally set forth in the pleadings, and we have examined it with much care and deliberation, in order, if possible, to arrive at the very truth of the matter in dispute, and thus reach a satisfactory conclusion, at least to ourselves. In our efforts to perform this duty, our labors have been not a little augmented by the unusual amount of incompetent testimony that has been incorporated into the record, and which, for that reason, can be of no avail in disposing of the case. Even the relevant testimony has taken such wide range as to absolutely forbid a discussion of it in detail, and we shall not, therefore, attempt to do so, but will content ourselves with adverting to such portions of it as are deemed most important.

The bill, as originally drawn, proceeds entirely, as we construe it, upon the theory that the conveyance of the two hundred and forty-nine acres of land was a mere advancement. That the bill can not be maintained upon the theory of an advancement, is quite clear. Indeed, this is conceded in appellants’ reply brief. The 7th section of chapter 39 of the Revised Statutes, entitled “Descent, ” expressly provides that “no gift or grant shall be deemed to have been made in advancement, unless so expressed in writing by the intestate as an advancement, or acknowledged in writing by the child or other descendant. ” There is not the slightest allusion in the conveyance of the property in question, or in the mortgage or quitclaim deed executed at the same time, to an advancement, nor is it claimed or pretended there is any other instrument or writing wherein the conveyance of said land is charged by the intestate or acknowledged by appellee as an advancement. This becoming apparent in the progress of the suit, complainants found it necessary to so amend their bill as to place the right to relief upon the distinct and substantive charge, “that at the time of the conveyance of the two hundred and forty-nine acres of land, it was expressly agreed and stipulated between William and William P., that at the death of William the residue of his property should pass to his other heirs, free from all claim of William P.; that William P. accepted said conveyance with that understanding, and agreed, in consideration thereof, to execute to William in his lifetime, or to his heirs after his death, a release of all claim or interest in the remaining portion of the estate of William. ”

These averments inserted in the amended bill, change its entire character. As amended, the bill, in legal effect, is one for specific performance, and, consequently, must be governed by the general principles applicable to such bills. Perhaps the most important of these principles, and the one which is presented at the very threshold of every case, is, that the contract sought to be enforced “must be clear, certain and unambiguous in its terms, and must be either admitted by the pleadings, or proved with a reasonable degree of certainty. ” It is not sufficient, within the rule, to show that a contract 1 of some kind exists between the parties, and that it has, in whole or in part, been performed by the complaining party, but all the material terms of the contract must be satisfactorily proved or admitted. This is manifest from the very nature of the relief sought, for how could the court, in any case, direct the performance of an agreement, the terms of which are unascertained or not established ?

Such being the rule of law, the question arises, have the complainants in this case brought themselves within it ? It is conceded the special contract set up in the bill, and which is now sought to be enforced, does not appear in any of the written instruments which were drawn up at the time the contract is claimed to have been made. This fact, of itself, is not without significance. Nor has any living witness testified to having been present at the making of any such contract, or to having otherwise obtained any personal knowledge of the existence of such a contract. On the contrary, appellee, the only living person who really does know whether such a contract was made or not, denies it, under oath, in the most positive terms,—and in this, so far as it relates to the occasion when the contract is claimed to have been made, he is fully corroborated by his mother.

Outside of certain supposed corroborative circumstances, the evidence relied on to sustain the bill, consists, mainly, of certain admissions alleged to have been made by appellee. The testimony of Alexander Long and Alexander D. Crawford, in this connection, is the most important, and about all that requires special notice. The following synopsis of it, taken from appellants’ brief, we find substantially correct, and here insert it without alteration:

Alexander D. Crawford states: “I think it was in the fall of 1877 I was at his (appellee’s) house or premises, and he told me that his grandfather, William Long, gave that farm to him for his father’s share in his grandfather’s estate. William P. Long told me his grandfather gave him the farm upon which he was living, as his share of his grandfather’s estate. He said he was satisfied with what he had received as his share of his grandfather’s estate. His mother (William P. Long’s) was present.”

Alexander Long testifies: “William E. Long asked me to go and notify William P. Long and his mother that the administrator was about to close up the estate, and if they, or either of them, had any interest in the division of the property or claim against the estate, then was the time to make it. I did tell both William P. Long and his mother what the administrator requested me to say to them. William P. Long said he had no interest in the matter,—that he had settled with William Long, and had given him a quitclaim deed to the balance of his property. On the day after this conversation with William P. and his mother, I told William E. Long what they said. William P. Long told me in that conversation, on the Grove farm, that he had received from his grandfather’s estate what he was entitled to receive therefrom, and had taken it in the Grove farm, pursuant to the contract between his father, James Long, and his grandfather. William P. Long said to me he had received a deed to lands in Lee county, Illinois, from his grandfather, as his share of his grandfather’s estate, receiving the Grove farm. He said when he received the deed he was to release all claim against the estate of William Long, to whom he executed a quitclaim deed for that purpose.

Both these conversations are positively denied by William P. Long and his mother. But even without their denial we do not think this evidence is of that clear and satisfactory character to bring the case within the rule above indicated. So far as Crawford’s testimony is concerned, nothing is perceived in it that even tends to prove such a contract as that set forth in the bill. It tends, rather, to establish a mere advancement of what was deemed by the parties appellee’s share of his grandfather’s estate. But this not having been declared by the one or acknowledged by the other in writing, as required by the statute, it can not be given effect as an advancement. The witness does not make the slightest reference to the agreement relied on, nor, indeed, to any agreement at all. While the admissions testified to by Alexander Long differ from those sworn to by Crawford in this, that they show there was a contract of some kind between William Long and appellee, and that the conveyance of the land to the latter was made in pursuance of such contract, yet they fail to satisfactorily show its terms, or any breach of it, whatever it may have been, by appellee. On the contrary, it rather tends to show that he has already done just what was supposed to be required of him by the agreement. At all events, the whole matter is left in such doubt and uncertainty as to afford a complete answer to the present bill.

Viewing the case in the light of the admissions claimed to have been made to Alexander Long, all that can be made out of it is, that William Long made a conveyance of the land in question to his grandson, and the latter made a quitclaim deed to the former for certain other lands in which he had no beneficial interest, and that both conveyances were made in pursuance of an agreement and understanding ■ between the parties. If appellee stipulated to do anything which he has not performed, or which was not accepted and understood by both parties to the transaction as performance, these admissions clearly fail to show it.- Alexander Long- expressly states, that appellee told him that the quitclaim deed was executed by appellee for the purpose of releasing all his claim against the estate of William Long. Conceding, for the purposes of the argument, that appellee made this statement, yet it is difficult to believe the quitclaim deed was made for such a purpose, unless we impute to the parties a degree of ignorance seldom to be met with, and hardly to be reconciled with the business experience of the parties to this transaction. To say that William Long, a. practical business man, who had amassed a considerable fortune, and who was frequently making and receiving conveyances for land, did not know the effect of an ordinary quitclaim deed, is hardly justified by our knowledge of human affairs. But suppose the instrument in question was executed under a misapprehension as to its legal effect, and that it is one of those mistakes of law which, in extreme cases, are relievable in a court of equity,— about which we express no opinion,—is the conveyance, in seeking such relief, to be wholly disregarded, just as if it had never been made ? If the instrument does not correctly express the agreement of the parties, the proper course would have been to have it reformed. The present bill, however, seeks to accomplish nothing of this kind.' It is not alleged in the bill that anything was inserted in the deed which ought not to be there, nor that anything has been omitted which ought to have been inserted, and yet evidence is offered to prove that this quitclaim for certain specifically described land was intended to operate as a release of all interest in the estate of the grantee, upon his decease, personal as well as real! Except where fraud or mistake has intervened, the legal effect of a solemn deed can not be thus assailed.

But this is not all. Learned counsel, in effect, at least, insist that this deed is, per se, evidence of the making of the contract sought to be enforced. We perceive nothing in it to justify such a conclusion. A deed can in no case be evidence of an antecedent agreement not indicated by the terms or contents of the deed. When a conveyance has been made between parties sui juris, it will be presumed, in the absence of anything to the contrary, there was an antecedent agreement to deliver just that kind of an instrument, and no other. Hence it is altogether illogical to assert, as is done here, that an ordinary quitclaim deed for a certain specifically described tract of land affords any evidence of an intention on the part of the grantor to release an expected inheritance -from the grantee. This conclusion could not be reached by any recognized principle of reasoning, nor without doing the grossest violence to the terms of the instrument itself.

It is also supposed, the fact that appellee is characterized in this deed as grandson and heir of William Long is evidence tending to show such a release was intended. This conclusion is not justified by the language used. The words used in thus characterizing appellee. are in no sense uncertain or ambiguous. They are expressive, simply, of two relations which the grantor bore to the grantee, namely, that of grandson and prospective heir. This is all. Why these words were inserted in the deed is not stated, and presents quite a different question. If anything was intended beyond the solemn recognition of the relations specified, it is wholly a matter of conjecture. A number of theories might be suggested that would be equally as reasonable as the one urged by appellants, yet they, like that, would have nothing but conjecture to support them, and it would consequently be a useless consumption of time to do so.

As remotely bearing on the controlling question of fact under consideration, counsel for appellants introduced, upon the hearing, a considerable amount of testimony, for the purpose of showing the two hundred and forty-nine acre tract of land at the time of the conveyance was worth, in excess of the $4600 paid by appellee, as much, or more, than his share of the estate would be upon an equal division of it among the heirs. The whole of the evidence bearing on this question, considered, we think counsel for appellants failed in this undertaking. We can not stop to go into detail, but suffice it to say, we are of opinion that the weight of evidence upon this branch of the case is with the appellee rather than the appellants. In short, we do not think the case made by the amended bill is sustained by the evidence, and it is therefore unnecessary to consider other questions, discussed by counsel, for whatever our views or conclusions might be upon them, it could be of no avail to appellants, if they have failed, as we hold they have, to establish the case made by the bill.

If the section of the statute relating to advancements, above cited, was out of the way, and the question to be determined upon the proofs now before us was, whether the conveyance of the two hundred and forty-nine acre tract of land was intended in part as an advancement to appellee, appellants, in our judgment, would have a much stronger case than they now have. But the statute is not out of the way, and can not be dispensed with, although it may result in defeating William Long’s intentions in the partial distribution of his property among his descendants before his death. The law must be administered as we find it. An advancement which is not evidenced in the manner required by the statute, is, in legal effect, no advancement at all, however clearly it may appear it was so intended.

We are of opinion the circuit court did right in dismissing the bill, and it follows that its decree to that effect was properly affirmed by the Appellate Court.

Judgment affirmed.


author: Mr. Justice Sheldon

text:
    Annie L. Kelly v. George W. Kendall, Sr., et al.

      Filed at Ottawa November 13, 1886.

    1. Specific performance—contract obtained by fraud. A court of equity will not specifically enforce a contract for the sale of land, which has been procured to be made through the practice of deception and making of false representations.
    2. Statute of Frauds—by whom it may be availed of. A verbal contract for the sale of land is equally as obligatory on the parties as a written one, when they make no objection to it themselves that it is not in writing. Third persons can not object for them that they are not bound by a verbal contract.
    3. Same—written contract operating as a repudiation of a prior verbal agreement—fraudulent representations. A written contract for the sale of land will not operate as a repudiation of a prior verbal one, when there is no such intention, as, where the written contract is induced by false representation that a prior purchaser under the verbal contract would not take the land.

      Appeal from the Circuit Court of Lake county; the Hon. Clark W. Upton, Judge, presiding.
    Mr. Charles Whitney, and Mr. Alfred Moore, for the appellant:
    As to what constitutes fraud, and what must he shown in order to avoid a contract for fraud, see Kohl v. Lindley, 39 Ill. 195; Mitchell v. Deeds, 49 id. 416; Walker v. Carrington, 74 id. 446; Hirden v. People, 9 Bradw. 42.
    Lehman’s contract, if he had any, was void under the Statute of Frauds, and can not be made the ground of defence any more than of an action. Wheeler v. Frankenthal, 78 Ill. 124.
    Messrs. Knickerbocker & Holdom, for the appellees:
    A court of equity will not decree a specific performance of a contract obtained through fraud or misrepresentation. Fry on Specific Per. secs. 233, (note,) 241, 242, 425, 432; Tamm v. Lavalle, 92 Ill. 263; Race v. Merton, 86 id. 94; Gosse v. Jones, 73 id. 508; Casey v. Hall, 81 id. 160; Taylor v. Merrill, 55 id. 52; McCabe v. Crosin, 69 id. 501.
    Unless the contract has been entered into with perfect fair-mess, and without misrepresentation, misapprehension or oppression, and it will not be unjust or inequitable to enforce it, specific performance will not be decreed. Race v. Merton, 86 Ill. 95; Fish v. Leser, 69 id. 394.
    A specific performance will not be decreed unless the agreement has been entered into with perfect fairness, and without misapprehension, misrepresentation or oppression. Frisbie v. Ballance, 4 Scam. 299; Longwood v. Barnerderton, 3 Atk. 133; Underwood v. Hitchcock, 2 Ves. 279; Seymour v. Delancey, 3 Cow. 505.
    A contract procured by false representations, equity will mot specifically enforce. Kelley v. Sheldon, 8 Wis. 108; Miner
      v. Medbury, 6 id. 295; Smith v. Mariner, 5 id. 551; Reed v. Jones, 8 id. 392; Wells v. Millett, 23 id. 64; McClelland v. Scott, 24 id. 81.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a bill for the specific performance of a contract for the sale and conveyance of land described in the bill. The bill and supplemental bill set forth, that on September 7, 1883, George W. Kendall, Sr., and Julia Kendall, his wife, executed to the complainant a contract, in writing, for the sale and conveyance of the premises to her for $3500, and the assumption of a mortgage of $1000,—the $3500 to be paid, $125 down, the balance in time paymentsthat on September 11, 1883, George W. Kendall, Sr., and Julia Kendall, conveyed the same premises to George W. Kendall, Jr., and Herman P. Kendall, they having notice of the contract, and that the latter, on September 13, 1883, conveyed the premises to E. J. Lehman, he having like notice of the contract ; that the complainant had performed and tendered performance of the contract on her part. ' The circuit court, upon hearing, dismissed the bill, and complainant has appealed.

The complainant made the contract through her husband, E. H. Kelly, as her agent, and Lehman made his purchase through his agent, one Emmett.

There is conflict in the testimony, but the evidence establishes, satisfactorily to us, the following facts: That George W. Kendall, Jr., and Herman P. Kendall, the sons of George W. Kendall, Sr., were in the occupation of the land, living upon it, having previously purchased the same from their father, and being entitled to a deed thereof from him; that about the first of September, 1883, Emmett applied to George W. Kendall, Jr., and Herman P. Kendall, to purchase the land; the latter stated their price, $3500, and the assumption of the $1000 mortgage, and gave to Emmett an option to take the land, or not, within ten days; that on the succeeding day, K. H. Kelly called upon the Kendall sons to buy the land; they informed him of the price, of the option- which had been given to Emmett, and Kelly said that if Emmett did not take the land, he would, and would come out at the end of the ten days, but requested to be notified in case Emmett did take the land, so as to save him the trouble of coming out to the place from Chicago. The second day after this, Emmett came to see' the Kendalls again, and said he would take the place. The Kendalls then requested Emmett, who was going to Chicago the next day, to notify Kelly that the place was sold, which notice was given. Afterwards, Kelly came again to see the Kendalls, and represented to them that Emmett had “backed out, ” and was not going to take the place,—that he had got no word from Emmett,— and, as Kelly says, they suggested to him to go and see their father, who was then residing in Waukegan, and take the place if he wanted it. Kelly did so, and obtained from the father, George W. Kendall, Sr., and his wife, this contract of September 7, 1883. A day or two after this, they found out that Emmett had bought the place of their sons, and that Emmett had so informed Kelly, and they refused to carry out the contract, and on September 11, 1883, they made a deed of the premises to the sons, and the latter, on'September 13, 1883, conveyed the land to Lehman, in accordance with the contract with Emmett,—Lehman paying $3500, and assuming the payment of the $1000 mortgage. He immediately went into the possession of the premises, and has occupied them ever since.

These facts go to show that the contract in question was procured to be made through the practice of deception, and the making of false representations that Emmett would not take the land, and that the latter had not informed Kelly that he would take it. Had it not been for this, and had the Kendalls known that Emmett would take the property, and that he had so notified Kelly, it is entirely apparent, from the evidence, that the contract of September 7, 1883, would not have been entered into. A contract obtained under such, circumstances is not a fair and honest one, and there is no-equity to have it enforced. In Fry on Specific Performance, see. 241, the author says: It is enough, generally speaking, to induce the court to refuse performance-, that there are any circumstances about the making of the contract which render it not fair and honest to call for its execution. And see Dement v. Bonham, 26 Ill. 158, Mitchell v. King, 77 id. 466, and Tamm v. Lavalle, 92 id. 263. As said in the last ease : “To entitle a party to relief, he must come into court with, clean hands, and a cause that appeals to equity for relief. ”

It is said that the promise from the Kendalls to Emmett,, if any such promise was made, was a mere verbal promise-to convey lands, and void under the Statute of Frauds; that-George W. Kendall, Sr., by the act of executing the written, contract to the complainant, repudiated the prior verbal contract with Emmett. A verbal contract respecting land may he equally obligatory upon the parties to it as a written contract, where they make no objection themselves that it is not-in writing. It is not for a third person to object for them that they are not bound by a verbal contract. The written contract would be no repudiation of the prior verbal one-where there was no such intention, and the written contract was induced by false representations that Emmett would not, take the land under the verbal contract.

The decree will be affirmed.

Decree affirmed.


author: Mr. Justice Magruder

text:
    Leander J. McCormick et al. v. The West Chicago Park Commissioners.

      Filed at Ottawa November 13, 1886.

    1. Eminent domain— of the payment of the compensation. Under the statute relating to Eminent Domain, the compensation awarded is required to be paid either to the person entitled to it, or to the county treasurer. It is error to direct its payment into court, to await further proceedings to determine who is entitled to it.
    2. After final judgment of condemnation of land for. park purposes, the commissioners filed their petition in the county court, in the nature of a bill of interpleader, in which that court directed the compensation which had been awarded to one of the parties, (which largely exceeded $1000,—the limit of the jurisdiction of the court in civil matters,) to be paid into that court, there to be held until it should determine a question of title to the land, and. dispose of the fund according to its decision on that question: Held, that the court, in directing the money to be brought into court, instead of ordering its payment to the county treasurer, or to the parties entitled to it, exceeded its jurisdiction, and that its order in that regard was void.
    3. Same—of the jurisdiction of county court. The county courts have-no other jurisdiction in proceedings for the condemnation of private property for public use, than that conferred by the Eminent Domain act itself. They have no general chancery jurisdiction.
    4. Appead—whether order appealed from is final. After a judgment of condemnation of land for public use, awarding the payment of the compensation assessed, to a party, as the owner of the property sought to be taken, a subsequent order directing the payment of the condemnation money into court, to await its further order as to whom to be paid, is such a final order as may be reviewed on appeal or writ of error.
    Writ of Error to the County Court of Cook county; the Hon. Richard Prendergast, Judge, presiding.
    Messrs. John N. Jewett & Jewett Bros., for the plaintiffs-in error,
    contended that the county court had no jurisdiction to make the order it did to pay the money into court, referring to the constitution of 1870, art. 6, sec. 18; Rev. Stat-chap. 37, secs. 93, 95.

      That court has no jurisdiction to adjudicate in a civil suit when the amount in controversy exceeds $1000.
    The law requires the condemnation money to be paid either. to the person entitled thereto, or. to the county treasurer. Railroad Co. v. Prussing, 96 Ill. 203; South Park Comrs. v. Todd, 112 id. 379.
    Mr. J. D. Adair, for Lorin C. Collins and Patrick Flaherty:
    The county court has ample jurisdiction to made the order in question. That court has, generally speaking, such jurisdiction as may be provided by general law. Const, art. 6, sec. 18.
    Its jurisdiction in matters of eminent domain is conferred by the general law relating to that subject, and is concurrent with that of-circuit courts. Starr & Curtis’ Stat. 1885, chap. 47, see. 18, p. 1042.
    The county court has general jurisdiction of unlimited extent over a particular class of subjects, among these eminent domain, and when acting within that sphere its jurisdiction is as general as that of the circuit court. Probst v. Meadows, 13 Ill. 157; Von Kettler v. Johnson, 57 id. 109; Housh v. People, 66 id. 178; Bostwick v. Skinner, 80 id. 147; Magill v. Brown, 98 id. 235; Barnett v. Wulff, 70 id. 76; Westbay v. Williams, 5 Bradw. 521; People v. Stacey, 11 id. 506; Morrow v. Weed, 4 Iowa, 77; Hanchett v. Waterbury, 115 Ill. 220.
    The provision of section 14, chapter 47, entitled “Eminent Domain, ” (Starr & Curtis’ Stat. 1885, p. 1052,) that “payment of compensation adjudged may in all cases be made to the county treasurer, ” is directory, merely. Schuyler County v. Mercer County, 4 Gilm. 20; Kane v. Footh, 70 Ill. 587; Fowler v. Pirkins, 77 id. 271; School District v. Sterricker, 86 id. 595.
    Where jurisdiction has once attached it continues necessarily, and all powers requisite to give it full and complete effect can be exercised until the end of the law shall have been attained. People ex rel. v. Barr, 22 Ill. 241; Watson v. Reissig, 24 id. 281; Mason v. Thomas, id. 285; Worsham v. Richards, 46 Texas, 441; Jenkins v. Simms, 45 Md. 533; Berard v. Young, 26 La. Ann. 598.
    But even if the county court had no jurisdiction, the order entered in this proceeding is not one from which an appeal or writ of error will lie, it not being a final order.
    It is merely an interlocutory order, and makes no disposition of the fund, which, upon hearing, may or may not be awarded to the plaintiffs in error; and until that stage of the proceeding is reached, it can not possibly be known that the rights of the plaintiffs in error have been in any manner prejudiced. Young v. Zinc Co. 105 Ill. 26; Railroad Co. v. Trust Co. 70 id. 249; Gage v. Eich, 56 id. 297; Woodside v. Woodside, 21 id. 207.
    The payment of the money into court is not an adjudication of the rights of either party to it, nor does it involve a finding by the court as to the ownership of the property condemned. Railroad Co. v. Prussing, 96 Ill. 203.
    Mr. William E. Mason, for the defendants in error,
    on the question of jurisdiction, made reference to Bostwick v. Skinner, 80 Ill. 148; Probst v. Meadows, 13 id. 157; Housh v. People, 66 id. 178; Von Kettler v. Johnson, 57 id. 109; Barnett v. Wulff, 70 id. 76; Magill v. Brown, 98 id. 235; People v. Stacey, 11 Bradw. 506; Westbury v. Williams, 5 id. 521; Hanchett v. Waterbury, 115 Ill. 220; Morrow v. Weed, 4 Iowa, 77.
    When' a court has once obtained jurisdiction, that jurisdiction continues necessarily,, and all powers requisite to give it full effect will be exercised until the end of the law shall be attained. Mason v. Thomas, 34 Ill. 285; People ex rel. v. Barr, 22 id. 241; Jenkins v. Simms, 45 Md. 543.
    It is claimed by the plaintiffs in error that the statutes direct the payment of the money to the county treasurer. That provision of the statute is purely directory, and not mandatory. Kane v. Footh, 70 Ill. 587; School District v. Sterricker, 86 id. 595.
   Mr. Justice Magruder

delivered the opinion of the Court i

In May 1881, the West Chicago Park Commissioners filed a petition in the county court of Cook county to condemn certain land, owned by plaintiffs in error, in the south-west quarter of section 30, township 39 north, range 14 east, in Cook county, for the purpose of locating and establishing a boulevard, two hundred and fifty feet wide, running from the south end of Douglas Park to the Illinois and Michigan canal. On November 29, 188.2, the jury returned a verdict, “that the owners and parties interested therein, being Cyrus II. McCormick, (who has since deceased, and whose executors are Nettie Fowler McCormick and Cyrus H. McCormick, Jr.,) Leander J. McCormick and Alpheus C. Badger, are entitled to the sum of $6657.60, the value of the land taken, in full compensation for the same. ” On the same day, to-wit: November 29, 1882, the court entered the following judgment:

“The court, having heard the motion of the petitioner herein, that judgment be entered upon the verdict herein-before rendered against the following described pieces or parcels of land, and being fully advised in the premises, doth thereupon order, adjudge and decree, that upon the petitioner, said West Chicago Park Commissioners, paying to the owner or owners, viz: Cyrus H. McCormick, Leander J. McCormick and Alpheus C. Badger, of” (here follows description of the property,) “the sum of $6657.60, with interest thereon at the rate of six per cent per annum from this date, the petitioner be let into the possession thereof.

The petition for condemnation was filed against many other-owners besides the McCormicks, and the proceeding was entitled West Chicago Park Commissioners v. Western Union Telegraph Co. et al. On March 29, 1886, Patrick Flaherty and Lorin C. Collins, Jr., filed therein a petition, setting up all the proceedings in the original case, including the verdict and judgment aforesaid; and alleging, that, when such proceedings were begun, Flaherty owned a portion of the premises, hut was not made a party to the original petition, and had no notice thereof, or of any of the steps, taken thereunder ; that, on September 29, 1883, he conveyed an undivided half of said premises to Collins; that the judgment and finding are invalid against the petitioners; that the park commissioners have not yet paid the amount of the finding, and have-not yet taken possession of the premises, but that the money is in their hands, and that Flaherty is entitled to receive therefrom $2221.29, as .compensation for the portion of the property taken, that was owned by him; that he accepts the finding and judgment thereon as to the value of the premises and no further; and praying, that a rule be entered against the McCormicks, and Badger, and one Day, to show cause, why $2221.29 in the hands of the commissioners should not be paid to the petitioners. The park commissioners answered, admitting the allegations of the petition, and that, since the judgment above set forth, the portion of the premises, claimed by Flaherty, had been decided by the Supreme Court to be his property, and asking that they be allowed to pay the money, due from them, into court, and be released from responsibility, and that the court direct the payment of the money. The McCormicks and Day moved to dismiss the petition, for a number of reasons, the main one being a want of jurisdiction in the court over the parties and the subject matter. These reasons, as one of the counsel states, “were deemed untenable. ”

On May 15, 1886, Flaherty and Collins filed therein an amended petition, making substantially the same allegations, as were made in their petition of March 29, 1886, except that they allege the death of Cyrus H. McCormick, and the appointment of his executors, ¡md, also, the execution, soma time in 1885, of a deed by Leander J. McCormick and the said executors, conveying the property in question to Henry Day of New York. The prayer of this amended petition was, that the McCormicks and Day should be ruled to show, “whether they have any interest in said moneys, and that they and said commissioners show cause * * * why said $2221.19, with interest, should not be paid to petitioners, and, in case the money is paid into court, that said rule be discharged as to the commissioners. ”

On May 15, 1886, the park commissioners also filed, in said proceeding, what is called an intervening petition, entitled in the condemnation case of West Chicago Park Commissioners v. Western Union Telegraph Co. et al., therein alleging, that they were the petitioners in the original proceeding, that the sum of about $6000 was awarded to C. H. and L. J. McCormick, which has not been paid, that Flaherty had filed his intervening petition therein, claiming to own part of the premises, and seeking his pro rata share of the judgment, that they have money enough to pay the judgment, that they do not wish to. enter into the controversy between Flaherty and the McCormicks, but desire to stop the running of interest; and therein praying, that an order be entered, “directing the commissioners to pay, within ten days, into this (county) court, the money due in the condemnation proceedings, on account of property, described in the petition of Flaherty, said money to be held subject to the order and disposal of this (county) court. ”

On May 15, 1886, a hearing was had before the county' court upon the said intervening petition of the park commissioners, who introduced in evidence, in support thereof, all the proceedings in the original condemnation case, and the petition and amended petition of Flaherty and Collins, and all the proceedings thereunder, to all of which, objections were made by attorneys of plaintiffs in error. The objections were overruled and exceptions taken.

Thereupon, on May 15, 1886, in the condemnation proceeding, entitled as above, and begun in May 1881, the county court entered the following order:

“It is hereby ordered, that the West Chicago Park Commissioners pay into court, within ten days from this date, the sum of money, found due in said condemnation proceedings for the property described herein, to-wit: the property, for which judgment was entered in the original ease in favor of C. H. and L. J. McCormick, together with legal interest thereon up to the date of payment into this court, said money to be held subject to the order and-disposition of this court. Whereupon the defendants McCormick duly except to this order of court.”

The question, presented for our consideration, is: Did the county court have power to make the order, entered by it on May 15, 1886.?

This order is in conflict with an express provision of the statute. The 10th section of the Eminent Domain act provides, that the court shall adjudge, that the petitioner enter upon the property taken and the use of the same, “upon payment of full compensation. ” The 14th section provides, that payment of the compensation, so adjudged, “may, in all cases, be made to the county treasurer, who, shall, on demand, pay the same to the party thereto entitled, taking receipt therefor, or payment may be made to the party entitled, his, her or their conservator or guardian. ” The law specifies only two ways, in which the compensation is to be paid. It must either be paid to the county treasurer, or directly to the party, entitled to it. The order under consideration, directs it to be paid into the county court,—an entirely different disposition of it from that, which is directed by the statute.

County courts have no general chancery jurisdiction. They have original jurisdiction in all matters of probate, etc., “and such other jurisdiction, as may be provided by general law. ” (Constitution, art. 6, sec. 18.) By general law, they have concurrent jurisdiction with the circuit courts in certain cases,' where the amount in controversy does not exceed $1000, etc. (Eev. Stat. chap. 37, sec. 95.) But they have no other jurisdiction in proceedings for the condemnation of private property for public.use, than that which is conferred by the Eminent Domain act itself. If, therefore, in the judgments, rendered by them in such proceedings, they undertake to specify, how compensation for property taken is to be paid, they can only direct such compensation to be paid into the county treasury, or directly to the parties entitled to it. In the case at bar, the county court has assumed to entertain a petition in the nature of a bill of interpleader. It has directed a .fund, largely in excess of $1000, to be paid into its own hands, there to be held, until it shall determine a question of title to real estate, and dispose of the fund according to its decision upon that question. In doing this, .we think that it exceeded its jurisdiction, and that the order in question is void. South Park Commissioners v. Todd, 112 Ill. 379; Peoria, Pekin and Jacksonville Railroad, Co. v. Laurie, 63 id. 264; St. Louis and Southeastern Ry. Co. v. Teters, 68 id. 144; Chicago and Iowa Railroad Co. v. Hopkins, 90 id. 316; Chicago and Western Indiana Railroad Co. v. Prussing, 96 id. 203.

It is objected, that the order can not be reviewed by this court, because it is not final. The objection, however, is not a valid one, under the circumstances of this case. So long as the judgment, rendered in November 1882, was unreversed by appeal or writ of error, plaintiffs in error had a vested interest therein. They had a right, thereunder, to have the money paid to themselves, whenever the commissioners should take possession of the land. The order deprived them of this right, and directed the money to be paid elsewhere. (Blake v. Blake, 80 Ill. 523.) Flaherty did not claim any more than $2221.29, yet the order directs the whole fund, both that which was in dispute, and that which was admitted to belong to plaintiffs in error, to be paid into the county court. Plaintiffs in error had a right, under the law, to have their money paid into the county treasury, if it was not paid into their own hands. The order was a final deprivation of that right, in that it forced the payment of the money into the county court, there to be kept for an indefinite time. This •order, moreover, is, in effect, a final judgment against the park commissioners, directing them to pay into court a certain amount of money, already found to be due from them.

The order of the county court, entered on May 15, 1886, is, accordingly, reversed.

Order reversed. .


author: Mr. Justice Scholfield,

text:
    Owen Evans v. Mary Price et al.

   Mr. Justice Scholfield,

dissenting:

I do not concur in the opinion of the majority of the court in this case. At the time this will was made, the statute provided, “that every male person of the age of twenty-one years, .and every female of the age of eighteen years, being of sound mind and memory, shall have power to devise all the estate, right, title and interest in possession, etc., * * * in and to any lands, tenements * * * and personal estate, * * * by will or testament.” (Public Laws of 1871-2, p. 715.) 'This clearly includes persons of illegitimate birth as well as those of legitimate birth. ■ I am aware of no language that ■could have been used that would have been broader and more •comprehensive, within the limitations expressed. This section must, I concede, however, be construed as in pari materia with section 78 of the act in relation to the administration of estates, in force July 1,1872, (Public Laws of 1871-2, p. 97,) which provides, that “the widow or surviving husband of a. testate may, at any time within one year from the time at which the will of her or his testate husband or wife was admitted to probate, renounce, in writing, all her or his claim to the legacies and bequests made for her or him in such will, in which case she or he shall be .allowed ihe same property as if the husband or wife had died intestate. ” But, in my opinion, the words, “she or he shall be allowed the same property as if the husband or wife had died intestate, ” can not be held to have reference to the third clause of section 3 of the act in relation to the descent of property, in force July 1, 1872, (Public Laws of 1871-2, p. 352,) which provides, that “in case of the death of an illegitimate intestate, leaving no child nor descendants of a child, the whole estate, personal and real, shall descend to and absolutely vest in the widow, and thus establish, in regard to persons dying without a child or descendants of a child surviving them, one rule in regard to the wills of those who are of legitimate birth, and another rule for the wills of those who are of illegitimate birth, because—

First—Those of legitimate and those of illegitimate birth having the same right to make a will, there can only be the same right of renunciation in their widows, for the effect of the right of renunciation is the withdrawal, to the extent it exists, of the right to make a will, because a right to will, subject to the will of another, is, in practical effect, no right to make a will; and legitimacy being the rule, and illegitimacy the exception, when the General Assembly undertook to establish a single uniform rule applicable to all widows of testate husbands dying without children or descendants of children, by analogy to the laws of descent then in force, it is to be assumed they referred to the laws of descent relating to.persons of legitimate birth,—the rule,—and not to the laws of descent relating to persons of illegitimate birth,—the exception.

Second—It was not competent, in my opinion, for the General Assembly to enact that widows of persons, in the given case of legitimate birth, should have power to renounce the-provisions of the husband’s will, and take one-half of the real and all of the personal estate,—leaving the will to operate upon one-half of the real estate,—and, at the same time, te enact that widows of persons of illegitimate birth should have-power to renounce all of the provisions of the will, leaving nothing for the will to operate upon, for the rule is familiar, that in determining the validity of an enactment we are to-lo ok at its effect rather than its form; and so, here, giving the construction of the majority to this section 78, the question is nowise different than it would be, had the General Assembly expressly denied power to persons of illegitimate birth, in the given case, to make a will, while, at the same time, granting to persons of legitimate birth, in precisely the same situation, power to make a will of one-half of their real estate.

Our constitution guarantees that “no person shall be deprived of life, liberty or property without due process of law. ’r (See. 2, art. 2.) And this is held to be equivalent in meaning to the guaranty in Magna Charta, that no person shall be deprived of life, liberty or property unless by the law of the land. Cooley’s Const. Lim. (4th ed.) 435-437; 1 Broom & Headley’s Corns. Ill, 112, *159, and note 59. An act selecting particular individuals from a class, and subjecting them to peculiar rules from which others in the same class are exempt, violates this provision of the constitution, and is, therefore, not law. Cooley’s Const. Lim. (4th ed.) 480-490. The effect, here, of the construction given in the opinion of the majority, is to take particular individuals,—that is to say, husbands of illegitimate birth,—from a class to which they belong, namely, husbands having neither child nor descendants of a child, and deny to them a privilege and power-granted to all others of the class. I concede that, for some-purposes, persons of illegitimate birth form a distinct class, but I deny that they do so for any purpose affected by the statutory provisions under consideration. Classification, to be valid,—to be anything more than an arbitrary designation, —must rest upon an actual difference between the persons classified, when regarded with reference to the object or purpose of the classification. The difference must, in some substantial way, afford a reason why the classification should be made,—in other words, necessitate a different rule of law for the respective classes. To illustrate: Individuals may be classified, for the purpose of locomotion, into those who are lame and those who are not; for the purposes of professions or callings, they may be classified as physicians, lawyers, carpenters, etc.; for purposes of religion, they may be classified as Episcopalians, Roman Catholics, etc.; and for purposes of family pride, they may be classified with reference to the merits or demerits of their ancestors. But no one would seriously contend that either of these, or other like classifications, could be made for the purpose of the law of wills, or the law in relation to husband and wife,—and it' is simply because such a classification can, in no possible view, afford a reason why one rule of law, on either of these subjects, should be applied to one class, and another rule of law, on the same subject, should be applied to the other class. Persons of illegitimate birth may, undoubtedly, on account of their status under the common law,—that of nullius films,— be classified as respects the laws of inheritance; but, apart from that, their status, under the law, is precisely that of persons of legitimate birth. Blackstone says: “The incapacity of a bastard consists principally in this, that he can not be heir to any one; neither can he have heirs, but of his own body, for, being nullius filias, he is therefore of kin to nobody, and has no ancestor from whom any inheritable blood can be derived; * * * and, really, any other distinction but that of not inheriting, which civil policy renders necessary, ■would, with regard to the innocent offspring of his parents’ ■ crimes, be odious, unjust and cruel to the last degree.”

No text book of common law, and no adjudged case in any ■ court of last resort where that law is administered, has ever come to my knowledge, wherein it is asserted that a person - of illegitimate birth occupies a different relation with respect to the ownership, use and disposition of property he has himself acquired, than that occupied by a person of legitimate birth with respect to the property he has acquired, or that "the relations, obligations and duties between husband and wife are different where the husband is of illegitimate birth, from what they are where the husband is of legitimate birth; and the opinion of the majority of the court does not assert, .and manifestly it could not be rationally asserted, that there are distinctions, in fact, as contradistinguished from distinctions in the common law, in these respects, affording a suffi•cient basis for statutory classification.

I think a rehearing should be allowed, and a judgment ■rendered in conformity with these views.

Mulkey and Shops, JJ.: We fully concur in the foregoing ■opinion of Mr. Justice Scholeield.

       The principal case to which this dissenting opinion belongs will be found ¡reported in this volume, ante, p. 593.


author: Per Cubiam : Baker, J.:

text:
    Fred Bennitt et al. v. The Wilmington Star Mining Company et al.

      Filed at Ottawa May 15, 1886.

    1. Mechanic’s men— as against a purchaser—lime of commencing suit—and as to neyi parties. A mechanic’s lien may be enforced against a purchaser of the property, if the suit is brought for that purpose within six months after the last payment falls due. The filing of the petition is the institution of the suit, and when a new party is made by amendment, the suit is brought, as to him, from the date of the amendment.
    2. Pabtt—to enforce mechanic’s lien—trustee. In a proceeding to enforce a mechanic’s lien against property incumbered by a deed of trust, the trustee, as well as the cestui qué trust, is a necessary party; but if the cestui que trust allows a decree to pass upon the merits, without the trustee having been made a party, he, and those claiming under him, will be bound by such decree.
    3. Former adjudication—binding as to matters that might have been decided. The doctrine of res judicata embraces not only what has been actually determined in the former suit, but also extends to any other matter properly involved, and which might have been raised and determined in it. Therefore, a decree on the merits is conclusive as to all defences that might have been interposed.

      i. Same—extent of application of the rule. The conclusive effect of a former adjudication sometimes applies to persons not parties to the record, and who have not acquired rights pendente lite. Persons on whose behalf and under whose direction a suit is prosecuted or defended, in the name of some one else, will be equally concluded by the judgment or decree in such suit.
    5. Same—parol evidence to connect person with judgment or decree. In order to show that a person not a party to the record is concluded by the judgment or decree in a suit, parol evidence is admissible. This may be shown by proof that he conducted or managed the case in the name of another, and that he employed and paid counsel in the ease.
    6. Estoppel—to assail a title warranted. ■Where a party in his deed covenants that he has not done, or suffered to be done, anything, whereby the property therein described was or might be in any manner incumbered or charged, and that he will forever defend the premises against all persons lawfully claiming, or to claim, the same, through or under him, such covenant will, in equity, estop him from collecting a judgment in his favor out of such property.
    7. Chancees-—part-y seeking relief must do equity. It is a maxim in courts of equity, that he who seeks equity must do equity. So where one party has freed real estate in dispute from a subsisting lien, by a redemption from a sale, the other party availing of the removal of the lien must offer to repay the sum so advanced by his adversary in making the redemption.
    ■ Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Grundy county; the Hon. Geobge W. Stipp, Judge, presiding.
    Messrs. Joedan & Wing, for the appellants.
    Mr. Geobge S. House, for the appellees.
   Per Cubiam :

After a careful examination of the record in this case, and a full consideration of the elaborate arguments presented upon the questions involved, we perceive no error in the decision of the Appellate Court. The questions involved have been fully considered and elaborated in the opinion of the Appellate Court, by Bakeb, J., in which we concur. Cross-errors have been assigned by appellees, but we do not regard them well taken. A sufficient discussion of the questions raised by the cross-errors will be found in the opinion of the Appellate Court.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.

The opinion of the Appellate Court above referred to is as follows:

Baker, J.:

The facts involved in this case are very numerous and quite complicated, and in the view we take of the merits of the controversy, it is necessary to state but comparatively few of them, and these may properly be referred to in connection with the points it is deemed essential to consider and decide.

First—The Coleman Gas Works Manufacturing Company filed its petition for a mechanic’s lien, in the circuit court of Grundy county, on the 14th day of September, 1875, against the Coalfield Coal Company, Charles H. Goold, and H. Leroy Thayer,—and it is admitted that this was within the six months after the last payment for labor and materials became due and payable, that is allowed by section 28 of the Lien law for the institution of a suit for the purpose of enforcing such lien, in order to make it effective as against other creditors and- incumbrancers. It appears, however, that the Coalfield Coal Company parted with its title to the hotel premises in question after the petition was filed, but before jurisdiction of its person was acquired, by the service of process or otherwise. We understand the claim of appellees, made in this behalf, to be, that in such case, one who purchases from the owner of the land and defendant to the petition, takes the title to the property forever freed from the lien created by the statute. This position is not tenable, and for several reasons. In the first place, a purchaser is not within the protection of this section, as he is neither a creditor nor an incumbrancer. It was expressly so held in Dunphy v. Riddle, 86 Ill. 22. In the second place, the statute saves the right of the holder of the lien, if suit is instituted to enforce such lien within the six months limited for such purpose; and it has been decided that the proceeding under the Statute of Liens is a chancery proceeding, and that the filing of the petition is the institution of the suit. (Work v. Hall, 79 Ill. 196; Dunphy v. Riddle, supra.) And, in analogy, where an amendment is allowed making a new party defendant to the petition, the suit is brought, as to him, at the time of the amendment. (Crowl v. Nagle, 86 Ill. 437.) If the rule were as is urged, then this Lien law would afford but scanty protection to those whom it is intended to benefit, for the owner might, in every instance, by simply evading service of process, have both power and opportunity to either sell, or incumber to the full value of the land, and thereby render nugatory the plain intent of the statute.

Second—It is objected by appellees to the validity of the decree that was entered in the mechanic’s lien suit, as affecting their rights, that on the 27th of .July, 1875, and prior to the filing of the petition, the Coalfield" Coal Company executed to Frank Goodspeed, as trustee, a trust deed, to secure the payment of $4750 to Goold and Thayer, and that while Goold and Thayer, the cestuis que trust, were made parties to the proceeding, yet the trustee was not, and that they were each and all necessary parties. We understand the general equity rule to be as is claimed. (McGraw v. Bayard, 96 Ill. 146; Scanlan v. Cobb, 85 id. 296; Story’s Eq. PI. sec. 207.) ' The first cited case is directly in point, and it was there decided^ that where a trustee is interposed between lender and borrower merely for the purpose of enabling the lender to obtain payment through the exercise by the trasteé of powers conferred upon him, both trustee and cestui que trust must be made parties. It is also true that it was held in Crowl v. Nagle, and Dunphy v. Riddle, that where there is an existing incumbrance at the time the suit is brought, and the incumbrancer is not, within six months after the last payment becomes due, made a party to the petition, then the lien of the mechanic will be postponed to that of the incumbrancer.

In order to properly apprehend this matter of the omission of the trustee as a party defendant in the lien proceeding, it is necessary to briefly state a few additional facts that appear in the record. On the second day of May, 1876, Goodspeed made a sale, under the provisions of the trust deed, of the premises, and conveyed them to Goold and Thayer, who were purchasers at such sale.On the third day of October, 1876, Goold and Thayer entered into a written contract with Ira F. Benson for. the future conveyance of the property to him, Benson. On November 22,1876, Benson assigned his interest in the contract, and made a quitclaim deed of the premises to the Wilmington' Star Mining Company, one of the appellees herein. On the 18th day of December, 1878, the mechanic’s lien suit, a former decree therein having been reversed by the Supreme Court arid the cause remanded, was still pending and undetermined in the Grundy circuit court. At that tiirie the three defendants to the petition,—the Coalfield Coal Company, Goold, and Thayer,—filed 'answers to it, for the first time; and the only persons who then had any interest in the premises upon which the lien was sought to be enforced, were the two latter and the Wilmington Star Mining Company. The title of the Coalfield Coal Company had long prior been divested by the sale under the trust deed. The suit had become lis pendens, in respect to Thayer, on the 2Sth'of October, 1875, by the service of process on him; but it is questionable whether it became lis pendens, .with reference to Goold and the Coalfield Coal Company, before their answers were filed. Assuming that Goold and Thayer, by the failure of the petitioners to make Goodspeed, the trustee, a party to the. proceeding, and by the conveyance from.such trustee, were in a jiosition to insist the lien could hot be made effective to their prejudice, then it was their bounden duty to interpose such defence in the pending litigation. The petition charged that Goold and Thayer were interested in the real estate covered by the lien, as mortgagees or otherwise, and prayed for a lien, and that the lots might be sold clear of all incumbrances. If these parties to the suit had a valid defence to the enforcement of the lien, as against any rights they were vested with, they should have disclosed it; and if they either did or did' not do so, the binding force of the li'en is res.judicata as between them and their privies, and all parties claiming under the' decree. That decree necessarily affirmed the validity of such lien as against whatever right or title the defendants therein possessed, for. the court expressly found and decreed that the “petitioner is entitled to a first lien upon said premises,” and it is' conclusive upon the parties and their privies. The doctrine of res judicata embraces not. only what has actually been determined in the former suit, but also extends to any other matter properly involved, and which might have been raised and determined in it. Hamilton v. Quimby, 46 Ill. 90; Rogers v. Higgins, 57 id. 244; Kelly v. Donlin, 70 id. 378 ; Ruegger v. I. & St. L. R. R. Co. 103 id. 449. In Bigelow on Estoppel, p, 46; note, it is- said r “It follows, also,: from the authorities considered, that a valid judgment for the plaintiff sweeps away every defence that should have been raised against the action,—and this, too, for the purposes of every subsequent suit, whether founded on the same or a different cause.” See, also, Gage v. Ewing, 107 Ill. 11, and Scates v. King, 110 id. 456.

This rule of the binding' and conclusive effect of a former adjudication has a still broader application than we have thus far stated, and will include not only Goold and Thayer, but the-Wilmington Star Mining Companj%. Sometimes persons who are not parties to the record, and have not acquired interests pendente lite,, are bound by the. judgment or decree.. Persons on whose behalf and "under whose direction the suit is prosecuted or defended in. the name of some other person,' fall within this category; and in such cases parol evidence is' admissible to show who. are the real parties in interest", and that they conducted the litigation in the names of other persons. Freeman on- Judgments, see. 174, and authorities cited in notes.

In the ease of Cole v. Favorite, 69 Ill. 457, the Supreme Court of this State recognized and approved this extension of "the principle of res judicata, and there said: “The suit in the Federal court, although in the name of appellee, was prosecuted at the request of and for the benefit of appellant. He advised and directed it, was a witness therein, and while he was not formally a party to the record, he was a party in interest, and must be regarded a privy. ” The parol evidence conclusively shows that the Wilmington Star Mining Company employed the attorney who sued out and prosecuted the writ of error from the Supreme Court, to bring before it the record of the first decree entered in the lien suit, and upon which it was reversed, and employed the attorney who made the defence that was interposed both before and at the time the decree now in question ivas rendered, and who afterward litigated the matter, on error, in the Appellate Court, and not only paid the fees of such attorney, but all the other expenses of the defence.

One or two other matters may properly enough be noted in this connection. The' rights of the Wilmington Star Mining Company are based upon and have their origin in the Goold, Thayer and Benton contract of October 3, 1876, and it was possessed of such rights when it employed counsel, and made defence to the suit for mechanic’s lien. The corporation also had a claim or color of title to the hotel property, through a quitclaim deed executed by the Coalfield Coal Company on the 22d of November, 1876. This siprposed title we have ignored in our consideration of the case, and for the simple reason that all right and title of the coal company had passed out of it on the 2d of May, 1876, by virtue of the sale and conveyance made by Goodspeed under the deed of trust, so that nothing was conveyed by this deed of November 22. Mary S. Buchanan, the other appellee herein, derives her interest in the premises as follows: On January 3, 1880, Goold transferred his interest in the land, and in the Goold, Thayer and Benson contract, to Isabella Clark and Bacon Wheeler. On the 28th of March, 1881, Isabella Clark transferred her interest so acquired therein, to' said Wheeler, and Wheeler died on the 26th of May; 1882, having devised the interest vested in him, to her, the said Mary S. Buchanan, and Thayer, by deed dated ■ December 5, 1883, also conveyed his interest in the premises to her. ' - • ' .

Our conclusion, then, .upon this branch of the controversy is, that in respect to* the right and'title now-held by the Wilmington Star Mining Company, the validity of the mechanic’s lien, as- a first lien, is res judicata,- that with reference to the right and title of Mary S. Buchanan, derived through G-oold, the rule of lis pendens will apply, as the transfers from the-latter were made in 1880, and the mechanic’s lien proceeding became lis pendens, as .to Goold, on 'the 18th of December, 1878, if not sooner, and continued to be such until the entry of final decree on the- 20th of December, 1881; and the law of lis pendens is, that an alienation of the subject matter of the controversy madq-pendente lite, is void-against the judgment or decree finally rendered in' the suit. In respect, to the title derived'by Máry S. Buchanan from the Thayer deed of 1882, it is sufficient to say, that conveyance was executed long after the.decree, for-the lien was .entered in a suit to which the grantor was a party,'and,-of course, such title-was subject to the lien of the decree. ■'

Third—It appeal’s from the. record, that at the -time the mechanic’s lien petition was filed, one of-- the five incumbrances, in the nature of either "mortgages -or trust deeds, that had been placed' upon the hotel lots and were then subsisting liens, was a mortgage to H. Leroy Thayer, dated April 1, 1875, to secure-eleven notes, of $1000'each,-and. one. note of $1500, making $12,'500 in' all. The point is made as against the binding force of the mechanic’s lien decree, so- far as the rights of appellees are concerned,' that four of the notes for $1000 each, and the note for $1500, were sold and transferred by Thayer prior to the filing of the petition, and that the holders of said notes were not made parties to the bill within six months from the time the money was due for the work and material furnished, and that afterward the amounts due on said notes were included in the decree entered in the Grundy circuit court, in the cause of the bill filed by the Wilmington Star Mining Company, against Thayer, for specific performance, and wherein specific performance was awarded upon payment of the amounts due Thayer, which amounts were there determined and decree therefor rendered, and which decree was, subsequently, upon payment by her of the full amount thereof, assigned to Mary S. Buchanan. It is urged that the assignees and then holders of each of these notes stood in the light of a mortgagee, and should, within the time limited by the statute, have been made parties to the petition. We do not, from the testimony as abstracted, understand it to be a fact that said five notes were, when petition was filed, held by assignees. The evidence does show they were assigned after the day of their date, and prior to the third day of October, 1876,—the time the Goold, Thayer and Benson contract was entered into; but proof they were in the hands of other parties at and just before this latter date, does not establish they were assigned prior to the 14th day of September, 1875, and in the absence of evidence to the contrary, the presumption of fact would be that they continued in the hands of the person to whom they were executed and delivered, and were owned by him when the petition was filed. However this may be, we do not deem it an essential matter, for the testimony shows that Thayer assigned these notes, without any consideration, to one J. D. Bennitt, “without recourse, ” and then claimed them as his own, and sought to have them returned, and in fact did get two of them back on October 3,1876, and afterward, during October and November, 1876, obtained the others. They were all hack in Thayer’s hands, as mortgagee, and he continued to hold them as such mortgagee during the residue of the time the petition was pending, and still held them at the date of the decree for the amounts due on them, which was rendered in the suit for specific performance. So we must hold with reference to these five notes as we hold in regard to the matter of omitting Goodspeed, the trustee, as a defendant,—that the defence should have been availed of by those through whom the appellee, Mary S. Buchanan, claims, in the proceeding for the lien.

Fourth—The lots in controversy were sold on the 13th day of Januaiy, 1SS3, under the decree for a mechanic’s lien, and were purchased by H. H. C. Miller, to whom a certificate of purchase was executed, and wdiich he subsequently assigned to Charles Goodspeed. The property was not redeemed by the appellees, the owners of the equity of redemption, within the twelve months allow'ed by law. H. Leroy Thayer had, at the September term, 1877, of the Will county circuit court, recovered a judgment, by default, against the Coalfield Coal Company, for §5963.21, damages, and costs, and on January 15, 1SSÍ, he assigned this judgment to Fred Bennitt, one of the appellants, wdio, as such assignee, on the same day, sued out an execution on the judgment, directed to the sheriff of Grundy county. Bennitt thereupon redeemed from the master’s sale, and the sheriff executed and delivered to him, as a judgment creditor of the Coalfield Coal Company, a certificate of redemption, and caused said real estate to be advertised for sale under said execution. Appellees then exhibited the present bill, alleging they are the owners of the real estate in controversy, the said Mary S. Buchanan holding the legal title, and the Wilmington Star Mining Company holding the equitable title, and being in actual possession and occupancy of the premises under agreement of purchase, and alleging the invalidity of the lien obtained in the decree of December 20, 1881, on the ground already considered by us ; and further alleging, that Bennitt is not the owner of the Will county judgment in good faith and for value, and that said judgment is in part fraudulent, (setting forth the matters of alleged fraud,) and as to the matter not fraudulent had been paid in full. The bill prayed for an injunction and for a removal of the cloud from their title, and that the levy made by virtue of the execution from the Will circuit court be set aside and annulled. On the hearing, all the material allegations of the bill were found to be true, and a decree was entered substantially as prayed for, and making the injunction perpetual.

It is insisted by appellants, that if the decree in the mechanic’s lien case concludes the appellees, then the question of the validity or invalidity of the judgment under which Bennitt seeks to make redemption, can not be raised by them, and that it is wholly immaterial whether the Will county judgment was fraudulent or not. If we properly apprehend the point made, it is,- that if the decree is of binding effect as to appellees, then, as the twelve months allowed them by statute in which to redeem have expired, the bill can not be maintained by them for want of interest in the subject matter of the suit. Of course, appellees must have an interest in the subject matter, in order to give them a standing in court; but we do not understand the authorities cited by appellants to go to the extent of holding that in the case suggested, appellees would have no such interest. Meyer v. Mintonye, 106 Ill. 414, is an authority to the contrary. There, land had been sold under a decree of foreclosure, and the twelve months in which the owner might redeem had passed and no redemption had been made, and thereupon a void execution was issued on a judgment at law against the owner, and the purchaser at the master’s sale accepted the redemption money tendered, and the premises were re-sold on the void execution, and it was held that the acceptance of the money necessary to redeem from one haying no right to redeem, after the expiration of the twelve months given the owner for redemption, had the effect simply to extinguish all rights under the first purchase, and relieve the land of the incumbrance of the mortgage. It would seem a similar*result would follow in this case, if the process upon which the redemption was made was issued upon a void judgment.

Fifth—The appellant, Bennitt, is not an assignee of the Will.county judgment in good faith and for value. His own testimony shows that he paid nothing for the assignment, and is under no obligation to pay anything,—that it was made at the suggestion of Thayer, who told him that any title that he, Thayer, might acquire, would inure to Mrs. Buchanan, and that a court of equity would not permit him to hold such title. We are satisfied from the evidence, as a whole, that Bennitt is but a mere volunteer or nominal party, and has no real interest in the judgment.

Sixth—We think it would subserve no useful purpose to discuss the very voluminous facts and circumstances upon which the charge of fraud in the obtension of the judgment in the Will circuit court is predicated. Suffice it to say, that in the present case, the court below found that that judgment “is now, and at the time of the rendition of the same was, fraudulent, and without any consideration whatever, as to the greater part of the damages awarded and reserved therein, and as to such part of said damages judgment ought not to have been recovered, and that as to the remainder of said damages the same had been paid in full at and prior to the date of the assignment of said judgment,” and that with this finding we are content. The judgment was a fraud to the extent of $3000, and the residue included in it was also embraced in the amount assumed by Benson in his own contract, and was afterward included in the decree rendered in the suit with the Wilmington Star Mining Company, and which was paid by the appellee, Mary S. Buchanan. It would he inequitable and unjust to permit Thayer, the real party in interest, to have from her a second satisfaction of the amount so paid. Besides, in his deed to her, Thayer expressly coven anted that he had not done or suffered to be done anything whereby the lands in question were, or might be in any manner, incumbered or charged, and that he would warrant and ever defend the premises against all persons lawfully claiming or to claim the same through or under him. These covenants should estop him, in equity, from making his judgment out of this property.

Seventh—But the appellant, Fred Bennitt, after the time within which appellees could redeem these lots from the master’s sale had expired, did redeem them, and the redemption money was accepted by the holder of the certificate of purchase, and such redemption has freed the real estate of appellees from a binding and subsisting lien. It is a maxim of the courts of chancery, that those who seek equity must do equity. As appellees have voluntarily sought the assistance of the equity court, they should be compelled to observe the requirements of the maxim we have cited.

The decree of the circuit court is reversed, and the cause remanded, with these directions: That if appellees shall be so advised, they have leave to amend their bill by tendering to appellant, Bennitt, the sum of money paid by him for redemption, with six per cent interest thereon from January 16, 1884, and that they be required to pay the same into court, and that upon their so doing a final decree be entered herein in. accordance with the prayer of the bill, and making the injunction perpetual; but that in the event appellees should decline and refuse so to do, then their bill of complaint shall be dismissed, at their own proper cost.