source: Caselaw Access Project

author: Mr. Justice Magruder

license: Public Domain

text:
    Daniel H. Horne v. Granville S. Ingraham et al.

      Filed at Ottawa May 9, 1888.

    1. Action of account—as between partners. The action of account provided for by our statute may be maintained by one partner against another partner or partners, to settle and adjust partnership accounts, and may be so maintained immediately upon the dissolution of the partnership, and without any previous adjustment of the accounts.
    2. Limitation—equity following the law. Where there is a legal and also an equitable remedy in respect to the same subject matter, the latter is under the same statutory bar as the former.

      3. Same—bill for an accounting, as between partners. So a bill in equity for an accounting of partnership affairs, filed by a member of the partnership, after an action of account might have been maintained by the same person for the same accounting, which has been barred by limitation, will be barred by the same limitation.
    4. Same—when the statute begins to run—in respect to an accounting between partners. The Statute of Limitations can only be pleaded against an accounting sought by one partner against another after the partnership has been dissolved. It does not begin to run during the continuance of the partnership. Although a partial settlement is had, but the partnership is continued as to property not disposed of, the statute does not begin to run during the continuance of such relation.

      5. Same—of the period of limitation—on bill for an accounting. Under the law in force in 1868, a bill for a partnership account, based upon a written agreement for a partnership, would not be barred until sixteen years after the right of action accrued.
    6. Same—in respect to trusts. In case of an express trust, the Statute of Limitations does not apply until the trust is disavowed by the trustee, and an adverse right or interest is insisted upon, and made known to the cestui gue trust. A suit to enforce the trust will, during its pendency, stop the running of the statute, and a withdrawal of the disavowal and an acknowledgment of the trust by the trustee will do away with the limitation of the statute up to that time.
    7. Statute of Frauds,—express trust—not in writing. An express trust attempted to be created by the holder of the legal title to land is void under the Statute of Frauds, when it is not declared or created by some instrument in writing signed by him.
    8. Power of attorney—by one partner to another—construed, as to the extent of the power given. Two persons entered into co-partnership in the purchase and sale of land, and one gave the other a power of attorney to sign the name of the former “to any instrument in any and all business pertaining to the real estate business, or otherwise, that” the latter might desire: Held, that the power of attorney was to enable the one to whom it was given to carry out the agreement and to transact the business therein provided for, and the general words should be construed and limited accordingly.
    9. In such case, where the partnership agreement gave each partner a one-half interest in the profits realized, the power conferred upon the one to sign the name of the other to any instrument in any and all matters pertaining to their business, did not authorize the holder of the power to take an outside party into the firm and give him an equal interest, or to sign an agreement for the creation of a trust to be vested in one partner for the benefit of the other.
    10. Trust—whether a trust arises—partnership dealings in real estate. A and B formed a partnership for the purchase and sale of lands, A to advance the means with which to make the purchases, which was first to be repaid him, with interest, and the profits were to be equally divided. B, without the knowledge, consent or authority of A, made an agreement with C to take him in as an equal partner in the profits. Afterward A purchased one hundred and sixty acres of land, taking the title in his own name, without any knowledge of B's agreement with C, the latter acting as the agent of the owner of the land in making the sale to A. Shortly after, A wrote to B in reference to C’s connection with the purchase, saying, “we must give him an interest in the net proceeds:” Held, that this expression, most favorably construed for G, was nothing more than a suggestion that he should have an interest in the proceeds, and was not evidence that A held one-third of the land in trust for 0. Yerbal declarations of A that C was interested in the land, are not enforceable in equity.
    11. A gave to B a writing, which certified that the former thereby gave the latter an equal interest in the business of buying and selling real estate, and all business pertaining to the handling of real estate, after paying all expenses attending such business, ten per cent interest being allowed for all moneys advanced as purchase money. Afterwards A purchased one hundred and sixty acres of land, taking the conveyance to himself. In several of his letters to B he spoke of the land as belonging to them: Held, that under the written agreement, as soon as the one hundred and sixty acres of land was purchased, an express trust attached to one-half the land in favor of B, subject to the terms, and conditions of such agreement.
    12. In such case, any verbal statement of A that B’s connection with him in the business was only to continue until the former should realize profits to a certain amount, was merged in or abrogated by the written contract of partnership, which, after its execution, fixed the rights of the parties.
    13. Resulting trust—in whose favor. Where a party purchases land in his own name, and pays the entire consideration with his own means, there can be no resulting trust in favor of another.
    14. Partnership dealings in lands—contract construed. Under a partnership agreement between A, B and G, that all land transactions during a year named, “which may be negotiated by the said C, and for which the purchase money shall be furnished by the said A,” shall be for the mutual benefit of all and on their joint account, and shall be settled between all by giving one-third share of the profit or loss to each after paying A ten per cent interest on cash advanced, before C can have an interest in a certain tract bought by A, it must appear he negotiated for the purchase of that tract for the “mutual benefit and joint account” of the parties to the contract. If 0 negotiated the sale of a tract as the agent of the vendor, he will have no interest in the same as against A, the grantee of his principal.
    Appeal from the Superior Court of Cook county; the Hon. Gwynn Garnett, Judge, presiding.

      Messrs. French & May, and Mr. J. S. Huey, for the appellant :
    "When the remedy at law is barred, it will be in equity. 1 Story’s Eq. Jur. secs. 529, 1520, 1028a; Hancock v. Harper, 86 Ill. 446.
    When the account has not been stated or the partnership dissolved, or when the subject matter of the partnership and the relations of the partners are such that an action of account is not adequate and effectual to adjust their rights, and could therefore not lie, the five years’ statute of limitations will not bar a suit in equity to adjust the rights of the partners. Angell on Limitations, sec. 26; 1 Story’s Eq. Jur. sec. 529; 2 id. sec. 1520.
    The statute does not begin to run against an express trust until such trust has been disavowed. Perry on Trusts, secs. 883, 884; Angell on Limitations, pp. 161, 162; Wood on Limitations, secs. 210, 212. In such case, the limitation would be twenty years. 2 Story’s Eq. Jur. sec. 1520.
    The purchase of this tract, therefore, under the agreement of August 29, 1868, and the taking of the title thereto in the name of Granville S. Ingraham, for the joint benefit of the three partners, created an express trust in him, by the very terms of the contract, in favor of the other two, against which the Statute of Limitations would not begin to run until such trust had been openly disavowed, and could not bar Horne’s right of action until after the expiration of twenty years from the time of such open disavowal. Perry on Trusts, secs. 863, 864; Wood on Limitations, secs. 210, 212; 2 Story’s Eq. Jur. sec. 1245; Cholmondeley v. Clinton, 2 J. & W. 177; Buchan v. Summer, 2 Barb. Ch. 165; Kane v. Bloodgood, 6 Johns. Ch. 110; Whaling Co. v. Borden, 10 Cush. 458; Angell on Limitations, pp. 161, 162.
    This trust was manifested and approved by a writing signed by him, the party taking the title, and was otherwise established and defined by parol evidence, and is therefore valid and operative. Kingsbury v. Wall, 68 Ill. 311.
    The purchase of this State street property under this last writing or agreement, therefore clearly and unmistakably created an express trust in the lands purchased, in G. S. Ingraham, in favor of Horne and William S. Ingraham, and the statutory period necessary to bar an action in relation to the same would be twenty years after disavowal. Perry on Trusts, secs. 863, 864, and notes; 2 Story’s Eq. Jur. sec. 1520; Wood on Trusts, sec. 212; Patterson v. Brewster, 2 Edw. Ch. 352; Dudley v. Littlefield,, 21 Me. 418; Pierce v. McClellan, 93 Ill. 245; King v. Hamilton, 16 id. 190; Smith v. Gear, 59 id. 381.
    The business of the partnership, therefore, remains unsettled and its affairs unadjusted, and must necessarily remain so until the lands have been sold, and the statute can not run. Parsons on Partnership, pp. *270-285; 1 Story’s Eq. Jur. secs. 659-665; 5 Leigh, (Va.) 583; King v. Hamilton, 16 Ill. 190; Gleason v. White, 34 Cal. 263.
    Under these circumstances, therefore, the relations between these parties, during all this period, was that of a continuing partnership or continuing trust. Wood on Limitations, sec. 210, and references; Parsons on Partnership, p. 368; Kane v. Bloodgood, 6 Johns. Ch. 110; Wallace v. Duffield, 2 S. & R. 529; Piatt v. Vattier, 9 Pet. 416; 2 Barb. Ch. 165; 5 Metc. 562; Gleason v. White, 34 Cal. 263.
    Messrs. Flower, Remy & Holstein, for Granville S. Ingraham:
    The right of action accrued upon the contract of June 2, 1868, more than sixteen years prior to the filing of his cross-bill, and the same is barred by section 16, chapter 83, of the Revised Statutes. Under that agreement the parties became partners, and a right of action for an accounting accrued to them more than five years before this action, and it is barred by section 15 of the Limitation act.

      The dismissal of the bill by W. S. Ingraham, without reservation, is, in effect, a waiver of his right of action, and the great delay is a bar to equitable relief.
    In equity, partnership real estate is treated as personalty. 2 Lindley on Partnership, 652, note; Nicoll v. Ogden, 29 Ill. 323; Mauck v. Mauck, 54 id. 281; Bopp v. Fox, 63 id. 540; Morrill v. Colehour, 82 id. 618; Trowbridge v. Cross, 117 id. 109.
    A bill for a partnership accounting is barred after five years from the dissolution. Quayle v. Guild, 91 Ill. 378; Hancock v. Harper, 86 id. 446; Pierce v. McClellan, 93 id. 245; Askew v. Springer, 111 id. 662.
    As to laches being a bar, see 1 Pomeroy’s Eq. Jur. 460; Rodgers v. Simmons, 55 Ill. 77; Castner v. Walrod, 83 id. 173; Cox v. Montgomery, 36 id. 396; Carpenter v. Carpenter, 70 id. 457; Maher v. Farwell, 97 id. 56; Dakey v. Hurlburt, 100 id. 214; Bissell v. Lloyd, id. 214; Dobbins v. Wilson, 107 id. 17; Hoyt v. Pawtucket, 110 id. 390; Lequatte v. Drury, 101 id. 77; Breit v. Yeaton, id. 245; Furlong v. Riley, 103 id. 628; Harris v. McIntyre, 118 id. 275; McDonald v. Stow, 109 id. 40; McKean v. Vick, 108 id. 373.
    Mr. Franklin Denison, for the appellee W. S. Ingraham:
    As William and Granville were partners, real estate purchased could not be taken in the partnership name. Tidd v. Rives, 26 Minn. 201.
    For the purpose of paying creditors and repaying the advances of either partner, real estate will be treated as personalty, but no further. Shanks v. Klein, 104 U. S. 18; Dyer v. Clark, 5 Metc. 562; Reeves v. Ayers, 38 Ill. 418; id. 394.
    Surplus goes to the heirs. Tillinghast v. Champlain, 4 R. I. 174; Estate of McAvoy, 12 Phil. 83; Robertshaw v. Hanway, 52 Miss. 713; Shearer v. Shearer, 98 Mass. 107; 25 N. Y. 505.
    There being an express written trust, the twenty years limitation law could not be urged against William, much less than twenty years having elapsed. Nor would that limitation begin to run until the open disavowal of the trust. Kane v. Herrington, 50 Ill. 232; Ryder v. Emrich, 104 id. 470.
    The contract of partnership continued as to the disposition of the land in hand, without impairing its obligation. Robbins v. Laswell, 27 Ill. 365; 17 S. & R. 165; Story on Partnership, secs. 197, 198, 278.
    The contract of August 29, 1868, under which Horne claims an interest in the Dyer, tract, is a contract for a contract, and does not convey an interest in real estate; nor, under the evidence, is that tract included within the terms of that contract. Wilson v. Campbell, 5 Gilm. 383; Doyle v. Bailey, 75 Ill. 418.
    Mr. William H. Barnum, also for W. S. Ingraham.
   Mr. Justice Magruder

delivered the opinion of the Court:

Daniel H. Horne, the appellant, filed the original bill in this case against Granville S. Ingraham and William S. Ingraham, in the Superior Court of Cook County, on May 28, 1884; he filed an amended bill on July 29, 1884, a second amended bill on December 15, 1884, and a third amended bill on April 28, 1885. Upon the latter bill and the answers thereto a hearing was had as to the rights of Horne, and his bill was dismissed by the chancellor for want of equity.

The object of the bill is to get from the Ingrahams an accounting as to the proceeds of the sales of certain lands, and also to procure a conveyance from them of part of a certain other tract of land.

By deed, dated June 29, 1868, the Brighton Company conveyed to William S. Ingraham 1813 42/100 acres of land in Cook County, called, in the pleadings and evidence, the Brighton or Calumet tract. On the same day W. S. Ingraham and Horne and W. S. Ingraham, as attorney in fact of G. L. Ingraham under the power of attorney hereinafter mentioned, signed the following instrument:

“Chicago, June 29, 1868.
“The undersigned, William S. Ingraham, has this day purchased of N. P. Iglehart, president of the Brighton Company, 1813 42/100 acres of land, for the sum of $9000, and the title of said land may be taken in his name or in that of his brother, Granville S. Ingraham; and it is understood and agreed that Daniel H. Horne is to have one-third interest in the profits of said lands, after paying to said Ingraham the $9000 advanced by him for the purchase, and also interest on the same at the rate of ten per cent per annum, profits and losses on the sale of said land to be shared in the same proportion, share and share alike. Bach of said W. S. Ingraham and D. H. Horne shall use their best endeavors to sell said land, but no commissions are to be charged for such services.
(Signed.) G. S. Ingraham,
by W. S. Ingraham,
W. S. Ingraham,
Daniel H. Horne.”

The whole of the 1813 42/100 acres, named in this contract, had been sold by the Ingrahams and Horne by the first day of November 1870. By his bill and amended bills Horne prays for an account of the sales of the different portions of said Calumet tract, and claims that, upon such accounting, a large amount of money will be found to be due to him from the Ingrahams, as his share of the proceeds of said sales under the contract of June 29, 1868.

The Statute of limitations is pleaded as a bar to the accounting asked for as to the sales of the Calumet tract. We think that it is well pleaded.

Counsel for Horne admit in their argument that the Calumet land was all sold before 1871, that various portions of it were sold by Horne himself in the summer of 1869, and that the balance of it was sold by the Ingrahams in October 1870. Horne knew of these sales at or about the time they took place. The sale made in October 1870 was to the Chicago and Calumet Canal and Dock Company, and Horne says he knew of this from the deed to the Company, which was dated October 2Í, 1870. He took no steps to get an accounting, nor to assert his claim to any portion of these proceeds of sale, until the filing of his bill in this case on May 28, 1884, allowing a period of nearly fourteen years to elapse after the accruing of his cause of action, if any he had.

Whatever may have been the rights of Horne under the contract of June 29, 1868, before the property therein described was sold, there can be no doubt that, after the sale, his only claim was a money demand. The only recourse which he then had was upon the money received from the sales of the land, or the money value of the land.

The action of account provided for by our statute may be maintained by one partner against another partner or partners to settle and adjust partnership accounts, and may be so maintained immediately upon the dissolution of the partnership and without any previous adjustment of the accounts. We have held that such action of account is barred after the lapse of five years. It might have been brought within that period by the appellant Horne for the recovery of such portion of the proceeds of the sales as he could have shown himself to be entitled to. Where there is a legal and an equitable remedy in respect to the same subject matter, the latter is under the control of the same statutory bar as the former. “A bill in equity for an accounting of partnership affairs filed by a member of the partnership after an action of account, which might have been maintained by the same person for the same accounting, has been barred by limitation, will be barred by the same limitation.” The appellant, Horne, should have brought his suit for the money, claimed to be due him, within five years, the period of limitation prescribed by the statute for the recovery of money. (Hancock v. Harper 86 Ill. 445; Quayle v. Guild 91 id. 378; Bonney v. Stoughton 122 id. 536.)

Afterwards the appellant Horne executed the following declaration of trust:

“Chicago, August 27, 1868.
“This is to certify, that whereas William S. Ingraham has purchased from Silas M. Moore and James H. Stead ten acres of land, to-wit, the north-east quarter of the north-west quarter of the south-west quarter of section 35, 38, 14, for the sum of $500, and has procured the money from Granville S. Ingraham, and given it to me to pay for the same, and desires me to take the deed for the same in my own name, that I agree to hold the same land for the joint profit of the said William S. In-graham, Granville S. Ingraham and myself, and when sold do agree to settle in accordance with the agreement between us of date June 29, 1868, in relation to Calumet lands.
"(Signed.) Daniel H. Horne.”

Upon the lower half of the same sheet of paper, upon which the foregoing declaration of trust was written, there was also written, in the handwriting of Horne and signed by him and W. S. Ingraham and by the latter as attorney in fact of his brother G. S. Ingraham, the following instrument:

“And it is hereby understood and agreed that all land transactions during the year 1868, which may be negotiated by the said Daniel H. Horne, and for which the purchase money shall be furnished by the said Granville S. Ingraham, shall be for our mutual benefit and joint account, and shall be settled between us by giving one-third share of the profit or loss to each, after paying to said Granville S. Ingraham ten per cent interest on cash advanced. The deeds for any such purchases may be taken in either of our names.
“Witness our hands and seals this 29th day of August, A. D. 1868.
(Signed.) William S. Ingraham, [Seal.]
Granville S. Ingraham, [Seal.]
by William S. Ingraham, Att’y., [Seal.]
Daniel H. Horne. [Seal.]”

No question arises upon the declaration of trust, dated August 27, 1868, as it seems to be conceded, that the property therein described was finally sold after much difficulty and the. proceeds were divided to the satisfaction of all parties.

On October 26, 1868, 160 acres of land, located upon the east side of State street and known in the proofs and pleadings as the Dyer or State street tract, were conveyed by Dr. Dyer, the owner at that time, to Granville S. Ingraham for a consideration of $32000.00, of which $14000.00 were paid by said Granville in money or money .and notes, and the remaining $18000.00 were paid in Star Metal Stock transferred to Dyer by said Granville. On February 16, 1874, Granville deeded ten acres of the Dyer tract to one Stafford for a recited consideration of $15000.00.

The appellant Horne claims that the Dyer tract was conveyed to Granville S. Ingraham under and in pursuance of the above instrument bearing date August 29, 1868, and that he is entitled to a one third interest in said tract after reimbursing Granville for his advances and interest thereon. The prayer of his third amended bill is for an accounting as to the ten acres sold; for a dissolution of the co-partnership alleged to exist between himself and William and Granville Ingraham; that Granville may be decreed to hold the title to the 150 acres remaining unsold in trust for Horne and the two Ingrahams, and that they three be declared to be the joint owners thereof, and that a partition be made between them, or a sale and division of the proceeds, etc., in case partition can not be made.

After a thorough and careful examination of all the evidence, we are satisfied that the appellant Horne is not entitled to any interest in the Dyer tract, and that the Court below committed no error in dismissing his bill for want of equity.

It is claimed by counsel for Horne, that the instrument of August 29, 1868, created an express trust in his favor in the State Street land. Under the circumstances, which surrounded the purchase of that land, Granville S. Ingraham, the grantee and holder of the legal title, was the proper person to make whatever declaration of trust may have been made in reference thereto. The statute of frauds has been pleaded in this case. If there was any express trust in favor of Horne, it was void under the statute, for the reason that no declaration or creation of such trust was manifested by any writing signed by Granville S. Ingraham.

It is true, that William S. Ingraham signed the name of his brother, Granville, by himself as “Att’y” to the paper, dated August 29,1868. But we do not think that he was authorized to do so by the power .of attorney, under which he assumed to act.

On June 2, 1868, Granville executed and delivered to his brother, William, the following written agreement and power of attorney:

“This is to certify that I, Granville S. Ingraham, do hereby give my brother, William S. Ingraham, an equal interest with me in the buying and selling of real estate, and all business pertaining to the handling of real estate, after paying all expenses attending said business, with ten per cent interest being allowed for all moneys advanced as purchase money. Said W. S. Ingraham is to have an equal one-half interest with me in all real estate business that may be done in the year 1868.
“Dated Chicago, June 2, 1868.
(Signed.) G. S. Ingraham.”
“Know all men by these presents, that I, Granville S. Ingraham, of Chicago, Cook county, Illinois, have made, constituted and appointed, and by these presents do make, constitute and appoint, William S. Ingraham my true and lawful attorney, for me, and in my place and stead, to sign my name to any instrument in any and all business pertaining to the real estate business, or otherwise, that he may desire to do, giving and granting to my said attorney full power and authority to do and perform every act and thing whatsoever, requisite and necessary to be done in and about the premises, as fully, to all intents and purposes, as I might or could do if personally present, with full power of substitution, hereby ratifying and confirming all that my said attorney shall do or cause to be done by virtue hereof.
“In witness whereof, I have hereunto set my hand and seal this second day of June, in the year one thousand eight hundred and sixty-eight.
“Sealed and delivered in the presence of H. M. Hayes.
(Signed.) G. S. Ingraham. (Seal.)”

Shortly after executing these two papers Granville left the City of Chicago on account of failing health and was absent in another State when the instruments dated respectively on June 29, August 27 and August 29, 1868, were signed by Horne and William S. Ingraham.

The power of attorney above recited was executed at the same time with the partnership agreement between Granville and William, and was evidently intended to enable William to carry out that agreement and to transact the business therein provided for. He had very little if any means, while his brother Granville was a capitalist and was to furnish the money for the purchase of land. The general expressions in the power of attorney should be limited to the “clear and obvious intent and object of the agency” therein created. The language in the power was used in connection with the subject-matter of the partnership agreement and will be presumed to have related to that matter and will be construed and limited accordingly. (1 Wait’s Actions and Defenses 224)

By the terms of the instrument which Horne induced William to sign on August 29, 1868, the partnership of June 2, 1868, was materially changed. As to the transactions therein named Granville’s interest of one half, as fixed on June 2, 1868, was reduced to one third. A new partner was admitted into the firm in the person of Horne. Deeds to property, for which Granville was to furnish the purchase money, might betaken in the name of Horne, a man in whom Granville had. no confidence, and whose unreliable character he frequently alluded to in his letters, as set forth in the record. These extraordinary provisions, contained in the contract of August 29, do not come legitimately within the purview of the language used in the power of attorney of June 2, 1868. The power, conferred upon William to sign Granville’s name to any instrument in any and all matters pertaining to their business, did not authorize him to take an outside party into the firm, to change the interests of the old members and to provide for the creation of a trust to be vested in one partner for the benefit of the others. It follows that the contract of August 29, 1868, can not be regarded as having been signed by Granville S. Ingraham.

The testimony does not show, that Granville ever ratified the act of his brother in so signing his name. The papers, signed on June 29 and on August 27 and 29, were at once taken possession of by Horne and by him kept until after the bringing of this suit. William did not take copies of them. They were never seen by Granville until after the present bill was filed in 1884. Upon his return from the east Granville was informed by William that an arrangement had been made to give Horne a third of the profits to be realized from the property described in the papers, dated June 29 and August; 27, 1868, but nothing was ever said to lead him to suppose, that any instrument had been executed whose terms could be construed to give Horne an interest in the State Street property,

William swears that he did not tell his brother of having signed his name “by virtue of the power of attorney;" that he never mentioned to him the agreement of August 29, 1868; that he supposed the latter agreement, written as it was by Horne on the same sheet of paper with the declaration of trust, had reference to the ten acres purchased from Moore and Stead, in which some parties named Reed had such an interest or title, as made a settlement with them necessary in order to save the $500.00 already invested; that he never knew that Horne had or claimed any interest in the State Street property until he said something to that effect in April 1879 or thereabouts.

To the same effect is the testimony of Granville. The conduct of all the parties shows that they never regarded Horne as having or claiming "any interest in the Dyer tract. Gran-ville and William had a settlement of some of their real estate transactions on September 25, 1871, and, while they differ in their statements in regard to its terms, they treated themselves as the only parties concerned. On June 25, 1874, William filed a bill in the Circuit Court of Cook County against his brother Granville to secure his one half interest in the Dyer tract and therein claimed that he and Granville were the sole owners, making no reference to any interest of Horne. Horne knew of the filing of this hill and was aware of its contents.

In the summer of 1869, the Ingrahams had reason to believe that Horne, who was aiding them in the sale of the Calumet property, had made some unwarranted changes in a deed given him to he delivered to a purchaser named Boynton, and that he had sold 40 acres, instead of 14 76/100 acres, as reported by him, and had realized $2500.00 instead of $500.00 as reported by him. This led to a rupture. There was some talk of having Horne indicted. He was notified by the Ingrahams that they would have nothing more to do with him, and that their transactions with him in handling real estate would be closed from that date. Notwithstanding this notice to Horne in the summer of 1869 of the adverse position assumed by Granville S. Ingraham, whom he claims to have regarded as his trustee holding a part of the Dyer tract for his benefit, he took no steps to assert his claim against such trustee until nearly fifteen years afterwards in May, 1884.

It is claimed, however, that the trust contended for is shown by a letter, which Granville wrote to William on October 28, 1868, in reference to the purchase of 160 acres from Dr. Dyer. In that letter he refers to Horne’s connection with the purchase and says: “we must give him an interest in the net proceeds.” This language, construed most favorably for Horne, is nothing more than a suggestion that he should have an interest in the proceeds. It reveals no knowledge of the contract of August 29, 1868. It contains no statement that an interest has been, given him and makes no declaration that he is entitled to an interest. It is the mere expression of a desire to give him a share in the proceeds. But there is no evidence that the intention here intimated was ever carried out. In Phillips v. South Park Comr's 119 Ill. 626, somewhat similar language was used in a letter, and we there held it to be insufficient as written proof of a trust.

The only writings, claimed to have been signed by Gran-ville S. Ingraham as evidences of a trust, are the instrument of August 29, 1868, and the letter of October 28, 1868. These being disposed of, no written proof remains of the creation of any such trust.

Horne and a witness produced by him by the name of Pulling state that, on one or two occasions after the purchase of the Dyer tract, Granville spoke of himself and his brother and Horne as being all interested in that tract. The Ingrahams, in their testimony, contradict the statements thus made by Horne and Pulling. But even if Granville did use such words as are attributed to him, they were mere verbal or oral declarations, which can not be enforced in a Court of equity. (Adams v. Adams, 79 Ill. 517).

We can not see that there are, in the transactions relating to the Dyer land, any of the elements of a trust arising by implication or by operation of law. The three papers dated respectively June 29 and August 27 and 29, did not together constitute one partnership agreement. They were separate and distinct instruments, each standing by itself and each having reference to different matters.

Nor does the evidence establish that there was a parol partnership agreement existing between Horne and the Ingrahams for the transaction of a general real estate business. Hence, the doctrine, even if sound, of such cases as Dale v. Hamilton, 5 Hare 369, which hold that, upon proof of such parol agreement, one of the partners may establish his interest in land, the subject of the partnership, “without such interest being •evidenced by a writing signed by or by the authority of the party to be charged therewith,” has no application here.

It is conceded that the whole of the $32,000.00 paid for the Dyer tract was advanced by Granville S. Ingraham, and, therefore, there was no resulting trust in favor of Horne. It is claimed, however, that the tract in question was secured for -the Ingrahams by the services of Horne. This leads to a further consideration of the language of the instrument dated August 29, 1868.

Even if that instrument was properly signed by authority of Granville Ingraham and duly ratified by him, the Dyer tract can not be brought within its provisions without parol proof of an outside fact. The land transactions therein spoken of were to be those, which should be negotiated by Horne, and for which the purchase money should be furnished by Granville. Defore Horne could have an interest under the contract in the Dyer tract, it must appear that he negotiated for the purchase of that tract for the “mutual benefit and joint account” of the parties to the contract.

The testimony shows, that, before the attention of Granville Ingraham had been called to the State Street land and thereafter up to the day of his purchase of it, Horne was the agent of Dr. Dyer for the sale of that land. He was in the employ of Dyer and Dyer had agreed to pay him a commission of .$2000.00 for making a sale of the property. When the sale was completed Dyer did pay him the commission agreed upon. The deed executed hy Dyer to Granville was drawn for Dyer by Horne. The duty, which the latter owed to Dyer, was to get as high a price as possible for the land. The duty, which he would owe to the Ingrahams if acting for them, would be to buy at as low a figure as possible. The two positions, one of agency for the seller and the other of agency for the buyer, were inconsistent with each other. Hence, it will be presumed that whatever Horne did in the matter he did as agent for Dr. Dyer. His services must be referred to his employment by Dyer and can not be regarded as constituting that negotiation in behalf of the Ingrahams, which is called for by the contract of August 29. To hold otherwise would be to stamp the appellant, Home, as the betrayer of a sacred trust.

We come now to the second branch of this long and complicated litigation, which has reference to the interests of the two brothers William and Granville Ingraham. In the suit begun by the filing of Horne’s bill, as above stated, William Ingraham filed a cross-bill against his brother Granville on September 13, 1884, and, in lieu of such original cross-bill, which was lost from the files, he filed a substituted cross-bill on December 5, 1885. He therein claims to be the owner of one half of the Dyer tract under the agreement of June 2,1868, and prays for a conveyance of half thereof to himself after allowing Granville for his advances and interest, etc.; that an account be taken of the ten acres sold to Stafford, and that the amount of the proceeds of such sale be applied upon the amount due for advances, etc. Granville denies that William has any interest in the property, and, among other defenses, pleads laches and the statute of limitations. The issue thus presented by the pleadings in the cross-suit is, whether William has a half interest in the Dyer tract, or whether Granville owns the whole of it. The court below decreed in accordance with the prayer of the cross-bill. We think the decree was right.

When the purchase was made from Dyer, a trust in favor of William attached, eo instanti, to one half of the tract under the terms and conditions of the written agreement of June 2, 1868. Subject to the provisions of that instrument Granville held one half the land in trust for his brother. The trust arose directly, ex contractu, and was manifested by the writing. In addition to this, in several letters written by Granville to William, he speaks of the Dyer land as “ours” and as “our real estate.” Moreover, it is admitted by Granville in his testimony and by his counsel in their argument, that up to September 25, 1871, William owned a one-half interest in the tract.

It is claimed, however, that on September 25, 1871, the two brothers had a settlement of their business and that, by the terms of such settlement, William’s interest in the Dyer tract ceased and had no existence whatever after that date. Prior thereto they had been jointly interested in a number of pieces of real estate under then* partnership agreement, but, at that time all these had .been sold except the State Street property. William says that the State Street property was not embraced in the settlement then made, and Granville says that it was.

The evidence does show that there was an accounting between the brothers on September 25, 1871. It-is also proven that, in this accounting, the proceeds of the sales already made were divided, or if not actually divided, an understanding was reached as to the mode of their division. The accounts made out hy Granville, which were then used and passed upon, are in evidence. They contain a large number of items on both the debit and credit sides. These items refer to monies derived from sales of the Brighton or Calumet tract of 1813-42/100 acres, of the Oakwood tract of 160 acres, of the Moore or Reed tract of ten acres, of the Teed tract of 60 acres, of the Cass tract of ten acres. They contain no reference whatever to the Dyer tract. The accounting proceeded upon the basis of an ownership by William of one half of all the proceeds of the different sales.

The sale heretofore mentioned to the Chicago and Calumet Canal and Dock Company was for $45,000.00 in the stock of that company. William accepted from his brother in lieu of his half interest in this stock a deed for seven acres of land in Lake County known as the Waukegan property. That deed bears date August 13, 1872, but whether the division of the stock was made at the latter date or earlier is not clear from the evidence. With the exception, perhaps, of this stock matter, the accounting of September 25, 1871, disposed of all the sales growing out of the partnership business.

In “Exhibit C,” which is the summing up of all the accounts, the total amount of credits in William’s favor is $39568.02 and the total debits are $28943.60, showing a balance in his favor of $10624.42. Of this balance the sum of $7755.66 was then paid to him in cash and $2868.76 in Granville’s due bill, dated September 25, 1871, and due in 1, 2 and 3 years. The last installment of the due bill would appear to have been paid August 9, 1880.

William swears that, after the other matters had been thus arranged, he and Granville talked about the Dyer tract and agreed to hold it as an investment and for a future rise. His testimony is: “We both agreed that it was property to hold and that we should make no further effort to sell it; but, to use his words, ‘we would let it lay as a nest of eggs well set’ ” etc.

All the probabilities of the case tend to confirm William’s statement. As the Dyer tract had not been sold on September 25, 1871, it was difficult at that time either to determine the precise extent of each brother’s interest by reason of the uncertain value of the stock paid towards the purchase, or to divide such interests, if determined, otherwise than by a partition of the land, which is not claimed by either side to have been then thought of.

No sufficient consideration is shown to have passed to William for a release of his interest in the tract. He was induced by Granville, by letters written in 1867 and the early part of 1868, to close out his business and sell his property in the State of New York, where he was then living, and to come to Chicago and assist in the real estate operations of his brother, whose health was delicate at that time. It being admitted that William was entitled on September 25, 1871, to a half interest in the Dyer tract after deducting advances, etc., why should he part with his interest on that day, and, if he did, what did he receive in return for it ? The State Street property, bought in 1868, was rapidly rising in value in 1871, and is now claimed to be worth more than $300,000.00. It was conceded at the settlement and is conceded now, that he owned a half interest, under the terms of the contract of June 2, 1868, in all the other pieces of property that had been theretofore sold and that were embraced in the accounting; and it is nowhere shown, that he was given any greater interest in the proceeds of those sales, as a consideration for releasing his rights in the State Street land.

Granville’s evidence upon this subject is not satisfactory. He says in his answer: “defendant then (June 2, 1868) stated to him that if he managed the business prudently defendant would continue in business with him until complainant’s profits amounted to $50,000.00 and then complainant must take care of his own business. ” He says in his testimony, speaking of what occurred at the September settlement: “I told him. I had accomplished more than my purpose. I had told him I would stay with him until I could make $20,000.00, or he could make $20,000.00 or $50,000.00. Said I, ‘You have got $67,000.00 or $65,000.00 * * * I intended to give you an interest in the State Street property, if it ever amounted to anything, but as I have done more than I agreed to, I think I shall ignore you in the State Street property’ or something to that effect.” All this is denied by William. We see nothing in the record to indicate that William did not possess the common prudence of an ordinary business man. No man of ordinary prudence would submit to have his rights in a valuable piece of property ignored in the manner here indicated.

It is not clear from the evidence, that William’s share of the profits had reached $50,000.00 or even $20,000.00 at the time of the settlement. But whether this be so or not, any verbal statement by Granville, that his brother’s connection with the business was only to continue until he had made $50,000.00, was merged in or abrogated by the contract of June 2, 1868. That contract fixed the rights of the parties and entitled William to claim whatever his “equal one-half interest” might amount to, whether $50,000.00 or $100,000.00.

We do not think it necessary to discuss the different accounts given of the destruction of the contract. The evidence is close and conflicting. The trial Judge saw the parties and heard them testify. We are not prepared to say that he did not reach a correct conclusion in regard to the fact of the settlement and in regard to the other facts in the case, including those hereinafter referred to.

In January 1874 William met with a Railroad accident and was confined for a long time to his house in Waukegan by sickness. He was visited by Granville in the spring of 1874 and, during such visit expressed the fear that he would not get well. Shortly afterwards he wrote to Granville and requested the latter to convey his interest in the State Street property to his three children. On May 11, 1874, Granville wrote in reply, denying that William had any interest in the property, and saying that, if he “got anything farther, it would be at the end of a lawsuit.” William swears that this letter was the first intimation he had ever had of Granville’s claim to the ownership of all the Dyer tract.

Thereupon, on June 2, 1874, William filed in the Recorder’s office of Cook County a written notice or certificate wherein, after describing the Dyer tract and reciting the conveyance by Dyer to Granville Ingraham, and after further reciting the contract of June 2, 1868, it is made known and declared that Granville holds the land for the joint use and benefit of himself and William Ingraham, etc. Thereafter on June 25, 1874, William filed a bill against Granville in the Circuit Court of Cook County setting up and claiming his rights in the State Street property. This bill was answered, the issues were made up, depositions were taken and the suit was pending until April 1879. Various reasons for not bringing the case to a hearing are given in the record, among which were the continued sickness of William and the death in 1877 of his solicitor, Mr. Joseph P. Clarkson.

On April 21, 1879, William voluntarily dismissed the bill so filed in 1874. This was done in pursuance of an arrangement made between himself and his brother on April 3, 1879, at the Commercial Hotel in Chicago. The two brothers then and there had an interview with each other for the first time since 1874. What took place is a matter of dispute between them, in reference to which they flatly contradict each other.

Granville swears, that he came in from his home at Hyde Park to meet William at the hotel at the latter’s request, and that William at such meeting expressed regret for having begun the suit, and, of his own accord, offered and agreed to dismiss it without exacting any consideration or any promises of any kind in return for such dismissal. William, on the other hand, swears that he was sent for to come in from his home at Waukegan to the hotel in Chicago at Granville’s request; that he there met Granville on April 3, 1879; that Granville spoke of threats that Horne had been recently making to begin suit and set up an interest in the property, and of the necessity of ending the pending litigation between brothers and uniting their efforts to defeat Horne; that thereupon Granville promised to give William his interest under the contract in the Dyer tract if he would dismiss his bill; that he agreed to dismiss his bill in consideration of the promise so made by Granville; that the dismissal took place solely and only in consequence of the agreement and promise so made.

Several circumstances tend to confirm William’s testimony upon this subject. In the first place, Charles Ingraham swears, that, on April 2, 1879, he heard Horne say, that he intended to begin suit against the Ingrahams and claim a third interest in the Dyer tract; that, as soon as he heard it, he went to Hyde Park and informed Granville of it, and the latter requested him to go to Waukegan and arrange for an interview with William the next day at 100 Lake Street; that he did go to Waukegan that night and succeeded in bringing about the meeting of the next day. In the second place, if the agreement, made on April 3, 1819, for the dismissal of the pending suit, had been intended by William to be a surrender of his interest in the Dyer tract and a withdrawal of all his claims thereto, it would have been natural for him to make a quitclaim to Granville, or, in some other mode, to vacate the certificate or declaration of notice recorded on June 2, 1874. He did not do so.

But it is unnecessary to further discuss these questions of fact. We have only commented upon a few of the principal occurrences detailed in this long record of 1318 pages for the purpose of indicating some of the reasons, which have led us to a concurrence in the conclusion reached by the Court below.

The statute of limitations has no application to the claim of William Ingraham. It can only be pleaded against an accounting sought by one partner from another after the partnership has been dissolved. The statute does not begin to run during the continuance of the partnership. In the present case, it was agreed to hold the Dyer tract and make no sale of it. As to that tract the firm relation was prolonged and continued by mutual consent. The title was permitted to remain in one partner for the joint benefit of both partners. In Askew v. Springer, 111 Ill. 662, there was a partnership for dealing in city lots. After sales had been made amounting to $23,000.00, some lots yet remained unsold. An agreement to partition the unsold lots fell through. We there said: “Nor does the fact that a settlement was made of all other prior transactions without including this claim for commissions preclude appellee from asserting his claim, inasmuch as other lands remained to be sold and the affairs of the firm were not closed. Nor does the plea of the Statute of Limitations apply, because the charges were, some of them, made fifteen or sixteen years since. The partnership was still in existence and its affairs were not closed. Until that has ceased to exist, the statute does not begin to run. If it were otherwise no account could be taken of long partnerships back of the period of the bar of the statute. Until a dissolution or an accounting by the partners neither has a right to sue for an accounting or for a balance, and the statute never begins to run until an action accrues.”

Even if the cross-bill of William Ingraham be regarded as a suit upon the written contract of June 2, 1868, the bar of the 16 years’ statute of limitations, which was then in force, would not be complete. The cause of action upon the contract could not arise as to the Dyer tract until October 26, 1868, when the Ingrahams became the owners of the property. The contract took effect upon the Dyer tract when the deed was made to Granville and not before. On September 13, 1884, when the cross-bill was filed, a period of 16 years had not elapsed since October 26, 1868.

If the relation between Granville and William, so far as the Dyer tract is concerned, be regarded as that of trustee and cestui que trust, the trust was an express one as manifested by the deed of October 26, 1868, in connection with the written contract of June 2, 1868. In case of an express trust, the statute of limitations does not apply until the trust is disavowed by the trustee and an adverse right or interest is insisted upon and made known to the cestui que trust. (Hancock v. Harper 86 Ill. 445; Albretch v. Wolf 58 id. 186). Granville did not disavow the trust until May 11, 1874; William at once asserted his rights by filing a bill on June 25, 1874. The suit of 1874 stopped, for the time being, the running of the statute. In April 1879, when the suit was dismissed, Granville reacknowledged the trust and withdrew his disavowal thereof and his adverse attitude towards his cestui que trust. The proof does not show any further disavowal or any further assertion of a hostile claim on his part until the coming in of his answer to the cross-hill filed in 1884.

In view of the promptness of William Ingraham in asserting his rights whenever denied, we see no ground for the application of the doctrine of laches.

The decree of the Superior Court is affirmed.

Decree affirmed.


author: Mr. Justice Scott

text:
    James W. Ellsworth v. The Miner T. Ames Company.

      Filed at Ottawa June 16, 1888.

    1. Trust—when it arises—as between principal and agent. A partnership firm obtained a certificate of membership in the Board of Trade of the city of Chicago. The certificate was taken in the name of an agent of the firm, in order that the agent might thereby, with greater facility, transact the business of his principal. The certificate of membership was regarded as the property of the firm, and as such was held in trust by the agent for his principal.
    2. Jurisdiction in chancery—in matters of trust. In the case of a trust, as, between principal and agent, where the latter holds a certificate of membership in the board of trade, but which is the property of the former, a court of equity has jurisdiction to compel the transfer of the certificate of membership to the real owner.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Oliver A. Harker, Judge, presiding.
    Mr. Melville W. Fuller, for the appellant.
    Mr. Thomas Dent, for the appellee.
   Mr. Justice Scott

delivered the opinion of the Court:

This is an appeal from a judgment of affirmance by the Appellate Court for the First District, of a decree rendered by the circuit court of Cook county in a suit brought by the Miner T. Ames Company against James W. Ellsworth.

It is set forth in the original bill, that complainant, for a valuable consideration, succeeded to the business and all the property rights and assets of the late firm of Miner T. Ames & Co., and that among such assets was a certificate of membership of the Board of Trade of the city of Chicago, which was issued on or about the 21st day of September, 1872, to defendant, who, it is alleged, was at the time an employe of the firm of Miner T. Ames & Co., by which firm the admission fee for such certificate of membership was paid, and to which firm it in equity belonged, and that it was issued to defendant without any consideration paid by him, solely to facilitate the transacting of the -business of that firm. An amendment filed to the original bill by leave of court, sets forth more particularly the facts relied on for relief, and shows that the transfer of the assets and effects of Miner T. Ames & Co. to complainant was intended to be full and complete, and a general transfer of all such assets, including the certificate of membership mentioned in the original bill, but that through some oversight or accidental omission the written transfer does not specifically mention such certificate, yet in fact, and as a matter of right and equity as between the parties, the right to such certificate did pass to complainant, by reason of its having become entitled to the assets and effects of its predecessor, of which the certificate of membership so issued to defendant constituted a part. The relief demanded is that defendant be required to transfer and assign to complainant the certificate- of membership, so that complainant may have the full benefit and advantage of it. The answer of defendant is quite full, and puts at issue all of the material allegations of the original and amended or supplemental bills, and states other matters, but in the view that will be taken of the case it will not be necessary to state them. On the hearing of the cause the trial court found the equities to be with complainant, and that it was entitled to have transferred to it the certificate of membership referred to in the pleadings, and decreed specific relief.

As respects the question of ownership of the certificate of membership in the board of trade, which is the subject of this litigation, and as to which the testimony is quite conflicting, it is thought the evidence is sufficient to sustain the finding, it was the property of complainant, and that complainant was entitled to have the same assigned to it, as the circuit court decreed should be done. The testimony is too voluminous to admit of any analysis in detail, and it would be a useless work when done. This court agrees with the conclusion reached by the Appellate Court, that the evidence show's the certificate of membership was held by defendant at the time of filing the bill, under such circumstances as made it, in equity, the property of complainant, which fact would warrant the relief decreed.

It is said, if complainant is entitled to any relief, it is at law. This point in the case need not be elaborated. It is alleged in the bill, the certificate of membership was partnership assets, and there is evidence tending to show it was so treated, and that it was taken in the name of defendant while the relation of principal and agent existed, that the agent with greater facility might transact the business of his principal. These facts show the property is trust property, over which equity always assumes jurisdiction, and will place it where it of right belongs. The case comes directly within, and is controlled by, Weaver v. Fisher, 110 Ill. 146.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Shope

text:
    The St. Louis Bridge Company v. The People ex rel. J. D. Baker, Collector.

      Filed at Mt. Vernon June 16, 1888.

    1. Boundary—western boundary of East St. Louis and of St. Clair county. The western boundary of St. Clair county and of the city of East St. Louis is identical with the western boundary of the State.
    2. St. Louis bridge—within what jurisdiction—where taxable. All that part of the St. Louis bridge which lies east of the middle thread of the Mississippi river, as it now is, is within the State of Illinois, and being so, is subject to taxation by the State, St. Clair county, and the city of East St. Louis.
    3. Municipal taxation—for sewerage purposes—and herein, in what consists the establishment of a system of sewerage. By statute, the legislative authority of any city which has established a system of sewerage is invested with power annually to levy and collect a sewer tax, not exceeding one mill on the dollar, for the extension of sewers therein, and the maintenance of such sewers, provided the board of public works, if any, or the head of the sewer department of such city, shall first certify to such legislative authority the amount necessary for that purpose.
    4. Where the legislative authority of a city created by special charter has assumed control of the sewerage of the city, and created a department of the city government charged with the location, extension, construction and maintenance of sewers, and has accepted plans and estimates for the extension of the sewerage already under its control, this will be an establishment of a system of sewerage, within the meaning of the statute; and such authority, upon the report of the sewer department of the amount necessary for the purpose of constructing and maintaining the same, will be authorized to levy and collect a sewer tax.
    5. In such case, it is not necessary that the system of sewerage adopted shall extend to all parts of the city. What sewerage is necessary for the welfare of the city and health of its inhabitants is a political question, and is to be determined by the legislative authority of the city.
    Appeal from the County Court of St. Clair county; the Hon. John B. Hay, Judge, presiding.
    Messrs. G. & G. A. Koerner, for the appellant.

      Mr. R. D. W. Holder, and Mr. F. G. Cockrell, for the appellees.
   Mr. Justice Shope

delivered the opinion of the Court:

This was an application in the county court of St. Clair county, by the collector of taxes of that county, for judgment against lands and lots against which taxes were delinquent, for the year A. D. 1886. No objection is made to the return of the delinquent list or notice of application for judgment-Appellant, the St. Louis Bridge Company, appeared, and filed! objections to rendering judgment against the portion of their bridge described in the assessor’s return and notice of the collector, for the following reasons: First, that the greater part of said structure lies beyond the jurisdiction of the State of Illinois and beyond the State limits, and could not be assessed and taxed by the officers of the State of Illinois; second, the defendant objects to the city tax of East St. Louis, the same-being beyond the rate of taxation to which the city is limited* being beyond the rate of ten mills; third, objects to the city tax of East St. Louis for sewerage, that city having established none. The county court overruled the objections, and rendered judgment for the delinquent taxes as shown by the collector’s; return. The bridge company prosecutes an appeal therefrom to this court, and insists that the objections should have been sustained, and that the judgment is therefore erroneous.

No evidence was offered to sustain the second objection, nor does anything appear in the record showing that the rate of taxation in the city of East St. -Louis was greater than the-prescribed limit of taxation therein. The principal question,, and the one to which the argument of counsel is chiefly directed arises under the first objection. This involves, as contended the determination of the western boundary of the State of Illinois at this point.

The western boundary of the county of St. Clair, and of the city of East St. Louis, is identical with the western boundary of the State. (Charter of East St. Louis, 1 Private Laws of 1869, p. 886; St. Louis Bridge Co. v. City of East St. Louis, 121 Ill. 238.) The contention, however, is, that about six Lunched feet of the bridge belonging to appellant company, being that portion commencing at the middle of the Mississippi liver as it now is, and extending east toward the Illinois shore, is not within the territorial limits of Illinois, and therefore not subject to taxation by the State, or by the authorities of said city or county. Evidence was offered, tending to show that in 1818, when Illinois was admitted into the Union, the middle of the Mississippi river was six hundred feet east of the now center thread of that stream, and it is contended that the boundary of the State is the line of the middle of said river as it then existed. This precise question was before this court in "the case of Buttenuth et al. v. St. Louis Bridge Co. 123 Ill. 535, "where, after full argument, the question was determined ad-versely to the contention of the appellant. Upon petition for .rehearing in that cause, the opinion again received full consideration, and was adhered to. Every point here made was Ihen fully considered and disposed of, and the determination then reached must be adopted as conclusive, upon the question of the boundary of the State and of said city and county.

All of that portion of the bridge structure assessed for taxation in the county of St. Clair and the city of East St. Louis, and as to which the taxes were returned as delinquent, lies east of the middle of the channel of the Mississippi river, and, as held in the case referred to, is liable to taxation in this State, and by said city and county.

The third objection was properly overruled. Section 1 of the act of 1883, (Laws of 1883, p. 68; Starr & Curtis, par. 324, p. 546,) provides: “That the legislative authority of any city which now has, or may hereafter have, established a system of sewerage for such city, shall have power, annually, to levy and collect a tax upon the taxable real and personal property of such city, not to exceed one mill on a dollar, for the extension and laying of sewers therein, and the maintenance of such sewers, which tax shall be known as ‘the sewerage fund tax/ to be levied and collected as other taxes: Provided, however, that the board of public works of such city, if any, or the head of the sewer department of such city, shall first certify to such legislative authority the amount that will be necessary for such purpose.” In 1885, prior to the levy of the sewerage tax in question, the city council of said city of East St. Louis had adopted an ordinance creating a “city sewer department,” to consist of three persons, denominated “Sewer Commissioners of East St. Louis.” The first commissioners were named in the ordinance, their organization as a board, and the annual appointment of their successors in office provided for. It was ordained that said commissioners shall have general charge of the location and construction of sewers in said city, and cause surveys and estimates of costs of sewers to be made, in their discretion; and, subject to the approval of the council, to contract for constructing of sewers, and supervise all local assessments made by the council, etc. It is shown, that at the time of the passage of this ordinance there were about three miles of sewer constructed and in use in said city. The commissioners entered upon the discharge of the duty imposed, and afterwards made a report to the city council, which was. accepted by the council, of plans and estimates for extending and repairing the sewers of said city, with estimates “of the amount of tax required to extend and repair the sewers of East St. Louis.” The amount so reported was, it is shown, put, as an item, in the general appropriation ordinance for the year 1886, and forms the basis for the sewerage fund tax in question. We are of opinion that when the legislative authority of the city assumed control of the sewerage of the city, and created a department of city government charged with the location, extension, construction and maintenance of sewers, and had accepted plans and estimates for the extension of the sewerage already under its control, it had established a system of sewerage, within the meaning of the act of the legislature referred to, and was authorized by that act, upon report of the city sewer department of the amount necessary for the purpose of constructing and maintaining the same, to levy and collect a sewerage fund tax.

It is shown that the sewers already constructed extended along Illinois and Division avenues, Fourth and Tenth, and other streets in the city, and the plans and estimates reported contemplated extensions and repairs thereof. It is not necessary that the system of sewerage adopted shall extend to all parts of the city. What sewerage is necessary for the welfare of the city and health of its inhabitants, is political, and to be determined by the legislative authority of the city, under its grant of power. It may be, so far as anything appearing in this record, that.the proposed extensions and improvement of the sewers will complete a perfect system of sewerage for the entire city.

Finding no error in this record, the judgment of the county court will be affirmed.

Judgment affirmed.


text:
    Peter Hansen et al. v. Leopold Schlesinger et al.

      Filed at Ottawa June 16, 1888.

    1. Amendments—as to record of a judgment—verity of record. Where the record shows the entry of judgment by confession in open court, the game will not be amended or changed on the motion of the defendants in the judgment, on affidavits, so as to show the judgment was not in fact entered in open court.
    2. Where the record showed that the court convened for the term on June 7, 1886, and continued in session until after the 17th of the same month, on which last named day a judgment was entered by confession, but failed to show at what hour on that day the court resumed its session, it was held, that it would be presumed the court took the usual recess from one day to the next, and over Sundays, and that it was in session when the judgment was confessed, and that this presumption could not be contradicted by affidavit showing the court did not open before ten o’clock, and that the judgment was in fact entered before that hour, upon the direction of the judge made “outside of the court room.”
    3. The theory of the law is, that during the term of a court all proceedings rest in the breast of the judge, and he can amend the record according to the facts within his own knowledge.

      4. It can not be shown by parol evidence that a judgment was in fact rendered at an hour earlier than the time appointed for the convening of the court, simply by an order of the judge “at chambers,” in opposition to the record to the contrary.
    5. Judgment by confession—setting aside for cause—attorney exceeding his powers. A judgment entered in term time upon cognovit will not be set aside at the same term, on motion, and the execution thereon quashed, except upon some equitable ground shown. The fact that the attorney confessing the same exceeded his power by waiving the defendant’s right to an appeal or writ of error, will not furnish ground for setting the same aside, when the defendant in fact has the benefit of a writ of error.
    6. Same—presumptions. Where the record shows a judgment was rendered in term time, though upon a cognovit, the same presumptions will be indulged in its favor as in the case of ordinary judgments of courts of general jurisdiction.
    Writ of Error to the Appellate Court for the First District; —heard in that court on writ of error to the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. Grant & Brady, Mr. Frank Leffingwell, and Mr. N. W. Bliss, for the plaintiffs in error:
    The court below should have set aside the cognovit, for the reason that the attorney who filed it did not pursue the authority conferred upon him by the warrant of attorney. Chase v. Dana, 44 Ill. 262.
    Both a cognovit and a judgment are an entirety, and if invalid in any part are invalid altogether. Freeman on Judgments, secs. 557, 136; Chapin v. Thompson, 20 Cal. 681; Shuford v. Cain, 1 Abb. 302; Commercial Bank v. Wilson, 14 Grant’s Ch. 473; Insurance Co. v. Clover, 36 Mo. 392; Voorhis v. Gamble,
      6 Mo. App. 1; Newburgh v. Munshowe, 29 Ohio St. 617; 23 Am. Rep. 769; Frazier v. Williams, 24 Ohio St. 625; Gargan v. School District, 4 Col. 53; Streeter v. Marshall, id. 535 ; 2 Saund. 101; Manufacturers’ Bank v. Cowden, 5 Hill, 497; Gee v. Lane, 15 East, 592; Raw v. Alderson, 7 Taunt. 452; 3 Dane’s Abstract, 516, rule 8; McFarran v. Taylor, 3 Cr. 270.
    The court should have vacated the judgment, because it was not rendered or entered in open court. Conkling v. Ridgely, 112 Ill. 40; Anderson v. Field, 6 Bradw. 314; Ex parte Gladhill, 8 Metc. 168; Hobart v. Hobart, 45 Iowa, 501; Ling v. King, 91 Ill. 573.
    The court should have quashed the execution, because there had been no judgment rendered by the court. Freeman on Executions, secs. 17, 24, 38, 40 ; Peacock v. Day, 3 Dowl’s Pr. 291; Cummins v. Holmes, 109 Ill. 15; Hall v. Marks, 34 id. 358; California v. Patterson, 1 Nev. 150; Howell v. Morlan, 78 Ill. 162; Thompson v. People, 23 Wend. 587; Davidson v. Smith, 1 Biss. 351; Truett v. Legg, 32 Md. 147; Rev. Stat. “Judgments,” secs.l, 4; Wade v. Pratt, 12 Heisk. 238; Tidd’s Pr. 930; Freeman on Judgments, secs. 2, 52; 3 Blackstone’s Com. 395, 396; Terrill v. VanBibber, 3 La. Ann. 634; Taylor v. Runyan, 3 Clarke, (Iowa,) 474; Cooper v. Insurance Co. 3 Col. 321; McNulty v. Hurd, 72 N. Y. 521; Eastham v. Sallis, 60 Texas, 576; Railroad Co. v. Chicago, 53 Ill. 80; Anderson v. Field, 6 Bradw. 307; Owners of Lands v. People, 113 Ill. 296; Martin v. Barnhardt, 39 id. 9; Edwards v. Evans, 61 id. 492; Faulk v. Kellums, 54 id. 188; Lincoln v. Cross, 11 Wis. *91; Ling v. King, 91 Ill. 571.
    The court below should have quashed the execution, because at the time the same was issued there had been no judgment entered. Rev. Stat. 1880, chap. 25, secs. 14, 16; chap. 77, secs. 1, 4; Practice act, sec. 66; Ling v. King, 91 Ill. 571; Cummins v. Holmes, 109 id. 15; Baker v. Barber, 16 Bradw. 621; King v. French, 2 Saw. C. C. 441; Marvin v. Herrick, 5 Wend. 109.

      Messrs. Kraus, Mayer & Stein, for the defendants in error:
    Court is open from the commencement of the term until its close or adjournment sine die, and the whole term is regarded as one day. Richardson v. Beldam, 18 Bradw. 527; Railroad Co. v. Hand, 7 Kan. 380; Barrett v. State, 1 Wis. 156.
    A judgment by confession will not be opened, unless it appears the defendant has a meritorious defence. Hempstead v. Humphrey, 38 Ill. 90; Rising v. Brainard, 36 id. 79; Farwell v. Meyer, id. 510; Ball v. Miller, 38 id. 110; Stuhl v. Shipp, 44 id. 133; Knox v. Savings Bank, 57 id. 330.
    A term of court is to be regarded as one day, and the law takes no notice of parts of a day, except when the priority of one legal right over another depends upon the order of events occurring during the same day. Richardson v. Beldam, 18 Bradw. 527; Chiniquy v. People, 78 Ill. 571; Keith v. Kellogg, 97 id. 147; Railroad Co. v. Chamberlain, 84 id. 333; Boon v. Moline Plow Co. 81 id. 293; Shoemate v. Lockridge, 53 id. 503; Barrett v. State, 1 Wis. 175; Railroad Co. v. Hand, 7 Kan. 380.
    The fact that the attorney confessing exceeded his power, is no ground for setting aside the judgment. Stewart v. Banking Association, 78 Ill. 596 ; Knox v. Savings Bank, 57 id. 330; Zuckermann v. Solomon, 73 id. 130 ; Frye v. Jones, 78. id. 627; Campbell v. Goddard, 117 id. 251; Davenport v. Wright, 51 Pa. St. 292; Adam v. Arnold, 86 Ill. 185.
    The fact that the statute has regulated the mode of procedure, does not convert the proceeding into one of such special statutory character that the same presumptions do not obtain as in the case of ordinary judgments of superior courts of general jurisdiction. Bush v. Hanson, 70 Ill. 480.
    A judgment by confession should, and must; be supported by the same presumptions as if entered after trial. Bush v. Hanson, 70 Ill. 480; Osgood v. Blackmore, 59 id. 261; Allen v. Norton, 6 Oregon, 344.

      The law of this State does not require the recording or docketing of the judgment before an execution can issue. Rev. Stat. chap. 77, secs. 1, 4; Freeman on Judgments, secs. 38, 67, 87; Freeman on Executions, 24; Schirmer v. People, 33 Ill. 276; Day v. Graham, 1 Gilm. 441; Fish v. Emerson, 44 N. Y. 378.
    No condition or requirement different from that applicable to other judgments, applies to those by confession. Bush v. Hanson, 70 Ill. 480; Conkling v. Ridgely, 112 id. 42; Allen v. Norton, 6 Oregon, 344.
    In Jewett v. Fink, 47 Wis. 446, an attempt was made, by evidence dehors the record, to show that what purported to be the judgment was signed by the clerk alone. The court says: “There is nothing in the record which warrants the presumption that the judgment was entered by the clerk alone. On the contrary, the presumption is, that it was rendered in open court. The record itself so imports on its face, and that is conclusive upon the question.” See, also, Barnett v. Wolf, 70 Ill. 81; Harris v. Lester, 80 id. 314; Herrington v. McCollum, 73 id. 482; Wiley v. Southerland, 41 id. 25; Koren v. Roemheld, 7 Bradw. 646; Reed v. Sutton, 2 Cush. 115; Willard v. Whitney, 49 Maine, 235.
   Mr. Justice Scott

delivered the opinion of the Court:

It appears from the record in this court, the June term, 1886, of the Superior Court of Cook county, convened on the 7th day of June, 1886, the Hon. Elliott Anthony, one of the judges of that court, presiding; that afterwards, on the 17th of the same month, in the same year, there was filed in the office of the clerk of that court a certain declaration, note and warrant of attorney, affidavit and cognovit, all of which appear in full in the transcript filed in this court; and afterwards, on the 17th day of June, 1886, the same being one of the days of the June term of said court, a judgment by confession was entered, in favor of Leopold Schlesinger and David Mayer, against Peter Hansen, Joseph A. Hansen and Daniel B. Hansen, for the sum of $5375.04. On the 26th day of June, 1886, being one of the days of the said June term of court, defendants appeared, and entered their motions to have the record amended, and to have the judgment rendered against them set aside, and to quash the execution that had been issued on such judgment. These several motions were overruled by the court, and its decisions in that respect were subsequently affirmed by the judgment of the Appellate Court for the First District.

Although the questions raised on this record have been elaborately argued, the views entertained by this court may be briefly stated. Most of the principles of law applicable have been definitely settled by the previous decision of this court in Roche v. Beldam, 119 Ill. 320, and need no further discussion.

The amendment which the defendants asked should be made was, that the record should be corrected so as to show “that the branch of the court which is presided over by the Honorable Elliott Anthony, one of the judges thereof, did not open on the 17th day of June, 1886, and the judge did not take his seat on the bench, till ten o’clock in the forenoon of that day; that the direction to enter such judgment, and pursuant to which it was entered, was indorsed by the judge upon the declaration filed in the cause, to which was then attached the cognovit, note and warrant of attorney filed therewith; that such indorsement was made before the hour of ten o’clock in the forenoon of said 17th day of June, and outside of the court room which was at that date occupied and used by said judge for the holding of his branch of said court.” There is nothing in this record that shows it was error, or even irregular, if the direction given to enter the judgment was in fact made before the hour of ten o’clock on the day it was rendered. It does not appear, from anything in this record, that the court was not then in open session. All that appears is, that the court convened for that term on the 7th day of June, 1886, and continued in session, until this judgment was rendered. Of course, the presumption will be indulged, the court took the usual recess from one day to the next, and over Sundays; but at what hour it announced it would resume its sessions on the succeeding days, nowhere appears in the record. It might have been at nine o’clock in the forenoon, for anything that appears in this record. Nor is there anything to show the direction given by the judge to enter the judgment, was made “outside of the court room” which at that date was used by him for holding a branch of the Superior Court. The record, in this respect, is absolutely silent.

It is plain, therefore, there was no error in the court in refusing to amend its record. Indeed, it does not appear there was anything to amend by. It seems idle to present affidavits of the clerk of the court, to advise the judge presiding at the same term whether he had directed a judgment to be entered while the court was in session for business, or at an hour when he was not transacting the business of the court. The theory of the law is, that at the same term all proceedings rest in the breast of the judge of the court, and he can amend his record according to the facts within his own knowledge. The record shows the judgment in this ease was rendered in term time, and although it was rendered upon a cognovit, the same presumptions in its favor will be indulged as in the case of ordinary judgments of courts of general jurisdiction. (Bush v. Hanson, 70 Ill. 480.) But aside from this view, it was expressly ruled by this court in Roche v. Beldam, supra, it could not be shown by parol, the judgment was in fact rendered at an hour earlier than the time appointed for the convening of the court, simply by an order of the judge “at chambers,” in opposition to the record to the contrary. It was for the reason the record imports verity, and can not be contradicted by parol. •

In respect to the other branch of the motion, unless some equitable ground was shown the judgment could not be set aside and the execution quashed. (Rising v. Brainard, 36 Ill. 79; Farwell v. Meyer, id. 510.) None has been shown in this case. There is no pretense the judgment was not confessed for the exact amount honestly due to plaintiffs from defendants. If the attorney waived more than he was authorized to do by the warrant of attorney, in respect to defendants’ right to an appeal or writ of error, it is obvious it did them no harm, for they have now had their day in court, notwithstanding the action of their attorney of which complaint is made.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.