author: Mr. Justice Mulkey

text:
    The Life Association of America v. Alfred K. Fassett.

      Filed at Springfield March 28, 1882.

    1. Corporation—effect of dissolution—as to property of the corporation. Upon the dissolution or civil death of a corporation, all its real estate, by the strict rule of the common law, reverts to the original owners or their heirs, and all its personal estate vests in the Crown, in England, and the State here, and all debts due to or from it are, by operation of law, extinguished. But a court of equity will, upon the dissolution or civil death of a corporation, lay hold of its corporate property as a trust fund for creditors and shareholders, and distribute it for their-benefit.
    2. Same—continuance after dissolution, to settle its affairs. It is the settled policy of this State, at least so far as domestic corporations are concerned, that upon their dissolution, however that may be effected, they shall nevertheless be regarded as still existing for the purpose of settling up their affairs, and having their property applied for the payment of their just debts, and no reason is perceived why the same policy should not, so far as practicable, be extended to foreign corporations that have property here, and are located among us for business purposes.
    3. "Where a decree against a corporation in terms declares it to be dissolved, and appoints a receiver, yet in other parts thereof authorizes suits to be brought and defended in the name of the corporation, for the purpose of winding up its affairs and paying its debts, and it is also authorized, for the same purposes, to make, in its corporate name, all necessary conveyances of its property and effects, the corporation will not be treated as absolutely extinguished, but regarded as kept in existence to collect and apply its assets to the payment of its debts.
    4. Same—prior attachment lien—subsequent dissolution of corporation. The lien of an attachment rightfully acquired by a levy upon the property of a corporation, domestic or foreign, doing business in this State, and holding property here, will not be defeated by a decree under insolvent proceedings, dissolving the corporation and appointing a receiver to take charge of its assets and effects. The corporation will be treated as still existing for the purpose of enforcing the attachment lien, by proceeding to judgment and execution.
    5. Abatement—death of plaintiff. The death of a plaintiff pending the suit must be taken advantage of by plea in abatement, otherwise the judgment in his name will be binding.
    6. Same—death of sole defendant. Where the fact of the death of the sole defendant to a suit is admitted, or the court itself is cognizant of such fact, it will not be justified in entering up a judgment without the legal representatives of the deceased being first made parties. In such a case, if the plaintiff does not, within a reasonable time, take the proper steps to make them parties, the,.court should, on its’ own motion, enter a judgment or order that the suit abate.
    7. Same—plea must be verified. Every pleading which sets up matter in abatement which does not appear of record to be true, must be verified by affidavit, and if not so verified, should be stricken from the files, on motion. So, a suggestion of the dissolution of a defendant corporation by its' receiver and successor, the receiver not seeking to be made a -party and the paper not verified, can not be acted on by the court, and the plaintiff is not bound to answer it as a plea in abatement.
    8. Judgment—taken against a deceased person is a rmllity. By the common law, in the absence of any statutory provision on the subject, a judgment against a dead person, either natural or artificial, is absolutely void, and the fact that service may have been obtained, or the suit commenced before the death of the party, makes, no difference. This rule, of the common law. as to judgments against" natural persons, is still in force in this State.
    9. Practice—who may suggest defendant’s death. There is nothing in section 11, of the Abatement act, that authorizes the representative of a deceased defendant to intrude himself into a case for the purpose of suggesting the defendant’s death, except it is done to make himself a party to the suit for the purposes of defence, or other legitimate object. To avail himself of the statute he must submit himself unreservedly to the jurisdiction of the court, and be substituted as a defendant for all purposes.
    10. Same—forum to correct error of fact. A judgment taken against an infant, dead person, married woman, and the like, when the character of such person is not properly brought to the 'attention of the trial court, and made to appear of record, must .be reviewed, in the first place, in the court where the judgment was rendered, by writ of error coram nobis, or by motion, under the modem practice.
    11. Wbit of ebeor—after dissolution of corporation—by whom. If a corporation is absolutely extinct, so as to be presumed civilly dead, no writ of error can be prosecuted in its name to correct an error in the circuit court, but it should be prosecuted in the name of the receiver, where one has been appointed, as its legal representative, and the law in this respect can not be changed or suspended by a decree of any court, foreign or domestic.
    Writ of Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Sangamon county; the Hon. Charles S. Zane, Judge, presiding.

      Messrs. Carr & Beynolds, for the plaintiff in error:
    Every person contracts with a corporation with full knowledge that the State under whose authority it was created" may arrest its franchises, and dissolve it, and wind up its affairs. Mumma v. Potomac Co. 8 Peters, 281; Rorer on Inter-State Law, 78; Thompson on Stockholders’ Liability, sec. 3.
    ' The dissolution of a, corporation, as provided by the laws of the State creating it, operates as its legal death in every other State in which it may be doing business. Farmers and Mechanics’ Bank v. Little, 8 Watts & Serg. 207; Relfo v. Reindle, 103 U. S. 222.
    A court has no authority to render judgment against a natural person after his death. Vaughan v. Sturtevant, 7 T. R. 372.
    Judgment against a corporation after its dissolution is suggested of record, without reviving against its rejiresentatives, is not only erroneous, but absolutely void. Thompson on Stockholders’ Liability, sec. 335; Scanlon v. Crawshaw, 5 Mo. App. 337; National Bank v. Colby, 21 Wall. 609; Greeley v. Smith, 3 Story, 657; Merrill v. Suffolk Bank, 31 Me. 62; Ingraham v. Terry, 11 Humph. 574; Saltmarsh v. Planters and Merchants’ Bank of Mobile, 17 Ala. 761; McCullough v. Norwood, 58 N. Y. 562; Wilson v. Person, 12 Ind. 285; Bank of Mississippi v. Wram, 3 S. & M. 790; People v. Walker, 17 N. Y. 502; Lagrange & M. R. R. Co. v. Rainey, 7 Cold. 420.
    While the legislature may prescribe the terms on which foreign corporations may do business here, it can not authorize the courts to prolong their existence, after their dissolution by a decree of the court of the State of their creation. Farmers and Mechanics’ Bank v. Little, 8 Watts & Serg. 277; Booker v. Hall, 60 Maine, 172; Ordway v. Bank, 47 Md. 217.

      Mr. C. L. Conkling, for the defendant in error:
    A writ of error being a new suit, if the corporation is dead it could not sue or be sued, and this writ of error should abate. Ripley v. Morris, 2 Gilm. 381; Hickman v. Haines, 5 id. 20; Roberts et al v. Fahs et al. 32 Ill. 474; Orr v. Thompson, 4 Gilm. 451; 1 Chitty’s Pleadings, 1, 2, 3, 12 ; Larned v. Carpenter, 65 Ill. 543.
    A person who assumes a name which imports a corporate existence, and by it exercises corporate powers, is estopped from denying the existence of the corporation. United States Express Co. v. Bedbury, 34 Ill. 459.
    The question of the dissolution of a corporation, and the effect thereof, should be raised by plea in abatement. A corporation is unlike a natural person, and a mere suggestion of its dissolution does not raise a presumption that it can not be sued. In re Independent Ins. Co. 1 Holmes, 104; Holloway et al. v. Freeman, 22 Ill. 201; Express Co. v. Haggard, 37 Ill. 465; Hurd’s Stat. 1877, ch. 1, sec. 1.
    Even if the suggestion is to be treated as a' plea in abatement, it was properly stricken from the files, because not verified. Fowler v. Arnold, 25 Ill. 284.
    Proceedings by attachment do not abate by the death of the defendant. Hurd’s Stat. 1877, ch. 3, sec. 11, ch. 1, sec. 13; Davis et al. v. Shapleigh et al. 19 Ill. 386; Rauh v. Reitchie, 1 Bradw. 191.
    Foreign corporations are non-residents, and their property is subject to attachment, like that of natural persons. Mineral Point R. R. Co. v. Keep, 22 Ill. 9; Drake on Attachments, (4th ed.) sec. 70; Hurd’s Stat. 1877, ch. 131, sec. 1, sub. 5.
    One seeking to defeat an attachment on the ground the defendant corporation is dissolved, and that he, as receiver, is its sole representative, and entitled to the possession of its property, should interplead. Hurd’s Stat. 1877, ch. 11, sec. 29; City Ins. Co. v. Commercial Bank, 68 Ill. 348.

      The decree of the Missouri court, although using the word “dissolve,” does not operate as an absolute dissolution of the corporation, but keeps it alive for certain purposes. Suits may still be prosecuted or defended in the corporate name after dissolution of the corporation. Hurd’s Stat. 1877, ch. 73, sec. 107; Ramsey v. P. M. & F. Ins. Co. 55 Ill. 311.
    The tendency of modern decisions is to treat corporations once existing as continuing to exist, for the purpose of suing and being sued, in winding up their affairs. And courts of foreign States will, upon the slightest opportunity, keep them alive for such purposes. Pomeroy v. Bank, 1 Wall. 23; Shackleford v. Railroad Co. 52 Miss. 159; City Ins. Co. v. Commercial Bank, 68 Ill. 348.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Alfred K. Fassett, a creditor of the Life Association of America, a corporation organized under the laws of, and having its principal office and place of business in, the State of Missouri, on the 15th of October, 1879, sued an attachment out of the circuit court of Sangamon county, and caused the same to be levied upon certain lands belonging to the company in this State, where it had lately been doing an insurance business. Subsequently, on the 18th of the same month, by a decree of the circuit court of the city of St. Louis, on the petition of William S. Eelfe, superintendent of the Insurance Department of the State of Missouri, the Life Association of America was declared insolvent, and dissolved, and by virtue of the proceedings there had, all its assets and property, of every kind and description, were turned over to, and by the decree declared to be vested absolutely in, the said William S. Eelfe, as the receiver and successor of the company. Subsequently, on the 20th of February, 1880, the said Eelfe, in his character of superintendent, by leave of the court, entered a special appearance in the attachment proceeding commenced by Fassett against the company, for- the purpose of filing a written suggestion of the dissolution of the company under the legal proceedings in Missouri, as above stated. Fassett, by his counsel, entered a formal motion to strike the suggestion from the files, on the hearing of which Eelfe offered in evidence the record of the proceedings in the St. Louis circuit court, limiting his appearance for that purpose only. Upon consideration of the matter the circuit court entered an order striking the suggestion from the files, to reverse which order Eelfe removed the cause to the Appellate Court for the Third District, where the same was affirmed, and Eelfe now brings the record to this court, by writ of error, for review, and assigns for error the affirming of the order of the circuit court sustaining the motion to strike the suggestion from the files.

Whether Eelfe, as superintendent of the Insurance Department of Missouri, under the circumstances stated, is entitled to the property, and to administer the same under the laws of Missouri, is not directly presented by this record. Under our statute it would have been perfectly competent for him to have entered an appearance, and by interpleader submitted his rights in the attached estate to the consideration, and judgment of the court. This, however, he very carefully and studiously avoided. We are not aware of any rule of law or practice that warrants the filing of such a suggestion under the circumstances stated, unless it be assumed that our Statute of Abatement applies to corporations as well as individuals. It is well understood, in the construction of statutes, the word “person” or “persons” is often held to include corporations. Indeed, by the 5th clause of section 1, of chap. 131, Eev. Stat. entitled “Statutes,” it is expressly provided that “the word ‘person’ or ‘persons,’ as well as all words referring to or importing persons, may extend to and be applied to bodies politic and corporate as well as individuals, ” and-the position that the several provisions of the Abatement act relating to the death of parties were intended to apply to a dissolved corporation which has a legal successor, is not without force. But whether this be so or not, and about which we express no opinion, we are clear there is nothing in the Abatement act that warranted * the course taken by Relfe to raise the question of the dissolution of the company. The 11th section of that act provides, in sulistance, that where a sole defendant in any action dies before final judgment, such action shall not on that account abate, if it might originally have been prosecuted against his legal representatives, but in such case “the plaintiff, petitioner or complainant may suggest such death on the record, and shall, by order of the court, have summons against such person or legal representative, ” etc.

There is clearly nothing in this provision that authorizes the representative of a deceased defendant to intrude himself into a case for the purpose of making such a suggestion, unless it is done to make himself a party to the suit for the purposes of defence; or other legitimate object. To avail himself of the statute, he must submit himself unreservedly to the jurisdiction of the court. The object of the statute was to provide a cheap and expeditious mode by which the legal representatives of a deceased party to a suit may be substituted for the deceased. The representatives of a deceased defendant are not bound to make such application. They may or may not, just as they please; but if they elect to do so, they must be substituted for all purposes. On the other hand, if they omit or decline to make application to be thus substituted, they are not to be prejudiced by it. If the plaintiff proceed and take judgment against a deceased defendant without making his legal representatives parties, he does so at his peril. As to his legal representatives, it will be time enough for them to interpose when it is sought to enforce the judgment. Not having been made parties to it, they are not bound by it. As to them it is simply a nullity.

It is not to be inferred from anything we have said that where the fact of the death of a defendant to a suit is admitted, or where the court " itself is cognizant of such fact, it would be justified in entering up a judgment without the legal representatives of the deceased being first made parties. In such case, if the plaintiff does not, within a reasonable time, take' the proper steps to make them parties, the court should, on its own motion, enter a judgment or order that the suit abate.

But it may be claimed that although the limited appearance of Belfe, and the filing by him of the suggestion, can not be regarded as an application, under the Statute, to be admitted as a party to the suit, as we have held it can not, still, the civil death of the defendant constituted matter of abatement, and Belfe, as the legal representative of the defendant company, had, on common law principles, the legal right to appear in the cause for the purpose of interposing such defence, and in this view the suggestion should be regarded in the nature of a plea in abatement. Viewing it in this light, the suggestion was clearly insufficient, both in form and substance. It is well settled that every pleading which sets up matter in abatement which does not appear of record to be true, must be verified by affidavit, and if not so verified, should, on motion, be stricken from the files. King v. Haines, 23 Ill. 340; Cook v. Yarwood, 41 id. 115; McNab v. Bennett, 66 id. 157. The law has wisely prescribed certain forms in which defences of all kinds are required to be interposed, and a proper administration of justice requires they should be substantially followed. In the case last cited, where an informal motion in the nature of a plea in abatement had been made to dismiss the suit for an alleged want of jurisdiction,.which was unsupported by affidavit, and had been stricken from the files on motion, this court, in holding there was no error in doing so, said: “Even if the question could have been raised by motion, the court did not err in striking the paper from the files, because it was not informed in any proper manner as to the truth of the extrinsic facts alleged in the written motion.” The statement of facts in the suggestion were in no manner verified, hence the court was not authorized to act upon it when filed, even if it had, in other respects, been a formal plea in abatement, and the plaintiff was under no obligation to answer it. Nor was the insufficiency of this paper, considered in the nature of a plea, cured, in this respect, by Eelfe subsequently offering in evidence the record of the proceedings in the St. Louis circuit court, for that did not at all change the character of the paper as originally filed, and, upon the .motion to strike it from the files, the only question which the court could properly consider, was whether the paper, as originally filed, was legally sufficient, and that was purely a question of law, upon which the record could not have the slightest bearing. The record being a mere instrument of evidence, there was no issue of fact to which it could possibly relate, hence the offering it in evidence was of no legal consequence or significance whatever.

Upon the dissolution or civil death of a corporation, all its real estate, by the strict rule of the common law, reverts to the original owners or their heirs, and all its personal estate vests in the Crown, in England, and the State here, and all debts due to or from it are by operation of law extinguished. Angelí & Ames on Corporations, 195.

Equity, however, views the matter in quite a different light. In equity the corporation is regarded as a trustee holding the corporate property for the benefit of its creditors and shareholders, which, upon its dissolution or civil death, a court of chancery will lay hold of as a trust fund, and distribute for their benefit. With a view of mitigating the rigor of the common law with respect to the effects of a defunct corporation,' the legislature of this and most, if not all, of the other States of the Union have, by appropriate legislative enactments, provided for a just and equitable distribution of their assets in cases of insolvency, or sudden dissolution from any cause, and our own act on the subject contains a provision which in express terras extends their corporate existence two years from the date of their dissolution, for such purpose. Sections 10 and 25, chap. 32, Eev. Stat.

From these and other provisions of the statute it clearly appears that it is a part of the settled policy of the State, at least so far as domestic corporations 'are concerned, that upon their dissolution, however that may be effected, they shall nevertheless be regarded as still existing for the purpose of settling up their affairs and having their property applied for the payment of their just debts, and we see no sufficient reasons why the same policy should not, so far as practicable, be extended to foreign corporations that have property here, and are located among us for business purposes. These wise and wholesome laws have been ordained chiefly for the protection of our own citizens, and it is but just they should be enforced, so far as may be, against foreign as well as domestic corporations.

When the attachment in this case was sued out, there was no legal impediment in the way of enforcing the plaintiff’s claim. It was rightfully levied upon the company’s lands, and became ah existing 'lien upon, them, and a security for the attaching creditor’s" claim. If the company were a domestic corporation, it is clear this lien could not be defeated by a decree of dissolution under insolvent proceedings here. The company would be regarded, notwithstanding such decree, as still existing, for the purposes of enforcing the "attachment lien, by proceeding to judgment and execution in the usual way, and we see no sufficient reason why foreign corporations owning property and doing business here should not be regarded in the same way, and placed upon an equal footing in this respect with domestic corporations.

Whatever may be the effect of a decree of dissolution in the State creating the corporation, it may nevertheless be regarded as at least a de facto corporation here, for the purpose of enabling creditors to reach its effects in this State. This view is not only eminently just to the creditors here, but places all corporations doing business in this State upon the same footing in this respect. This view of the matter is substantially recognized in The City Insurance Company of Providence v. The Commercial Bank of Bristol, 68 Ill. 348, which was a case, in all its essential features, like the present. It was there said: “There is nothing in the comity which exists between States that makes it improper our courts should afford this remedy (attachment), notwithstanding the fact, by the laws of the State which created this corporation, its effects are in the hands of a receiver. ”

It is not denied, or even questioned, that by the common law a corporation which has been dissolved absolutely, for all purposes whatsoever, stands upon the same footing as a dead person with respect to any power in the courts to enter a valid judgment against it. In the absence of any statutory provisions on the subject, the manifest logic and reason of the thing is the same in both cases. Much the largest portion of the authorities on this subject relate to natural persons, and it is to be regretted they are anything but harmonious.

Much of the confusion and uncertainty which prevail in the authorities on this subject- is attributable, doubtless, to the fact that courts, in jurisdictions where the common law system obtains, in attempting to follow the adjudications of other courts, have failed to distinguish the cases resting on purely common law grounds • from those resting, in whole or in part, upon statutes modifying the common law. A careful examination of the authorities clearly shows that a judgment by the common law, in the absence of any statutory provisions on the subject, against a dead person, either natural or artificial, is absolutely void, and the fact that service may have been obtained, or the suit commenced, before the death of the party, makes no difference in this respect; and this was unquestionably the rule from the earliest period of the common law down to the seventeenth year of the reign of Charles II, when the British Parliament passed the first act somewhat modifying the common law'' on the subject. Randal case, 2 Mod. 308; 1 Salk. 8; 2 Sandf. 72, note m. The rule of the civil law was the same. 7 Rob. Practice, 157.

By statute (17 Car. 2, chap. 8, sec. 1,) it was enacted, in substance, that the death of neither plaintiff nor defendant, between verdict and judgment, should be assigned for error, provided the judgment should be entered up within two terms after such verdict. The courts of Westminster, in giving a construction to this act, held that where a party—and there was no difference between plaintiff and defendant in this respect—died in term time, though before verdict, the cause might nevertheless proceed to trial and judgment, upon the theory the entire term was in contemplation of law but one day. (2 Sandf. 72, note m.) The judgments in these cases were entered precisely in the same manner as if the death of the party had not occurred, and the statute applied as well where the right of action did not survive to or against the legal representatives of the deceased party, as where it did. Ibid.

The next legislation on the subject was the statute of 8 .and 9, W. 3. Section 6, chapter 11, of that act, provided, in substance, that in all actions to be commenced in any court of record, if the plaintiff or defendant should happen to die after interlocutory and before final judgment, the action should not by reason thereof abate, if such action could be originally prosecuted or maintained by or against the executors or administrators of the party dying; but the plaintiff in such case, or, in the event of his death after such interlocutory judgment, his executors or administrators, might have a scire facias against the defendant, or, if he should die after such interlocutory judgment, then against his executors or administrators,, to show cause why damages should not be assessed or recovered in such action, etc. It will be perceived. that this act -is- in some of its main features much like our own statute on this subject, and is doubtless the original from which oar own was modeled, though ours is unquestionably a great improvement on the English model. This act, it will be further observed, extends only to cases where the death of either party occurs after an interlocutory judgment.

This brief reference to the earlier decisions founded on the common law, and subsequent legislation on the subject, clearly shows that the idea that a judgment against a dead person is voidable only, had its origin in the construction given to the act of 17 Car. 2, above mentioned, and any extension of the doctrine to cases not falling within that act, or other acts of a similar character, would, on principle, be a clear misapplication of it. It is also to be observed that these statutes, having both been passed since the fourth year of the reign of James I, are not of any binding force in this country, and it is clear the decisions of the English courts construing them are likewise, on principle, of no authority here, and so far as they have been acted upon by the courts of this country in deducing the common law as to the effect of a judgment for or against a dead person, they have led, as already remarked,, to much, misapprehension and confusion on the subject. Such a judgment, when tested- by the common law alone, as we have already seen, is absolutely void.' Prior to the legislation above referred to, there was no difference, as respects the validity of a judgment, whether it was rendered against or in favor of a dead party. It was equally void in either case. The very wording of these acts shows such was understood to be the rule at the time of their adoption. The law, however, in course of time became settled in England the other way, so far as it relates to judgments in favor of dead plaintiffs, and the rule became firmly established that the death "of the plaintiff must be taken advantage of by plea in abatement, otherwise the judgment would be binding. And such is the general doctrine on the subject at this time. (Stoetzell et al. v. Fullerton, 44 Ill. 108.) And many respectable courts and authors in this country apply the same rule to judgments against deceased defendants, where they die after having been regularly served with process. According to these authorities such judgments are voidable only, and hence can not be successfully assailed in a mere collateral proceeding. Freeman on Judgments, secs. 140 and 153.

We are of opinion, however, there is just ground for a distinction in the two classes of cases. Where a suit is being prosecuted in the name of a dead plaintiff, the defendant may well plead the fact in abatement, and there is no great hardship in holding that if he does not so take advantage of it the judgment shall bind him, when collaterally drawn in question. In the nature of things, the deceased defendant can not plead in abatement, or otherwise interpose, the fact of his own death, and his legal representatives, until brought into court by the plaintiff, as contemplated by the statute, are not supposed to be present, or to know anything about the pendency of the suit, and to hold a judgment obtained under such circumstances binding upon them, would seem not only inconsistent with well settled principles, but would probably lead to the perpetration of great frauds. We are, therefore, clearly of opinion such judgments are, as already stated, absolutely void.

In addition to the reasons already given why we hold the company to be still existing for the purposes of enforcing the claim of defendant in error, it may be further stated, that although the decree of the St. Louis circuit court, in terms, declares the corporation dissolved, yet by other portions of the decree, for the purpose of winding up the business of the company, paying its debts, etc., suits are authorized to be brought and defended in the name of the corporation, and it is also authorized, for the same .purpose,.to make, in its corporate name, all necessary conveyances of its property and effects. It is thus clear, when all the provisions of the decree are considered together, as they should be, the corporation is not absolutely extinguished for all purposes, but, on the contrary, is expressly kept alive, so far as its existence may be necessary, to collect and apply its assets to the payment of its debts, (Ramsey v. Peoria Marine and Fire Ins. Co. 85 Ill. 311,) and therefore it can not with propriety be said to be civilly dead, to the extent of abating suits pending against it in a foreign State.

If, then, the company still exists in its own State for the purpose of suing and being sued, and having its property applied to the payment of its debts, and for the purposes of making conveyances and transfers of its property to accomplish the same ends, how can it consistently be said that it has no existence here, for like purposes ? The attached lands in this State still belong to the company, unless they have since been conveyed by it to some one else, for the title to them could not possibly have passed by the Missouri decree to the receiver. (City Ins. Co. v. Com. Bank, 68 Ill. 348.) If they have subsequently been conveyed by the company, the grantee took them subject to the attachment lien.

But there is still another view of this case which we regard as fatal to plaintiff in error. If the corporation is absolutely extinct, so as to be pronounced civilly dead, on what principle can this writ of error be maintained ? It is a familiar doctrine that the suing out of a writ of error is the commencement of a new suit, and assuming the circuit court erred in not abating the suit, and that the error may be corrected upon a writ of error coram nobis, then this writ of error should have been prosecuted in the name of the receiver, as the legal successor of the corporation. Upon the hypothesis just stated there is no more propriety in suing out the present writ of error in the name of the defunct corporation, than there would be in an heir or executor suing out a writ of error in the name of the deceased ancestor or testator, to reverse a judgment entered against him in his lifetime, and it will be admitted such a writ could not be maintained. Nor does the fact that the Missouri decree authorized suits to be brought in the name of the corporation after, its alleged dissolution, make any difference in this respect, here. That provision of the decree, whatever its effect might be in Missouri, could not affect the legal procedure of our courts. By the law of this State no suit can be maintained in the name of a dead person, where the objection is taken in apt time, or the fact appears of record, and it is clear the law in this respect can not be changed or suspended by the decree of any court, foreign or domestic. It follows, therefore, that if the position of plaintiff in error is correct, this writ of error should be dismissed. Barret et ux. v. Gaston, Exr. Breese, 255.

Moreover, if the error complained of existed, and the suit was brought' by the proper party, still, under the circumstances of this case, we do not think this is the proper forum, in which to obtain redress. The doctrine is well settled that a judgment taken against an infant, dead person, married woman, or the like, where the character of such person is not properly brought.to the attention of the trial,court, and made to appear of record, must be reviewed, in the first place, in the court where the judgment was rendered. The judgment in such cases is supposed to be founded upon a misapprehension of facts, hence the error is required to be corrected in the same court, as courts of error proper only review errors in law. By the common law the ordinary method of correcting an error of this kind is by a writ of error coram nobis, but the modern practice is to accomplish the same thing by motion. If the court should, on proper application, refuse to correct the error where its existence is clearly established, the question would then be reviewable in this court,—and so it would, also, if the question was properly raised, and the error made to appear of record in the first instance; but¿ as we have already seen, that was not done in this case.

Upon all theegrounds suggested, we think the law is with the defendant in error.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Walker

license: Public Domain

text:
    John Long v. The People of the State of Illinois.

      Filed at Springfield March 28, 1882.

    1. Cbiminal law—motion to quash—waiver. A pending motion to quash an indictment is waived by pleading to the merits.
    2. Same—practice—entering plea after trial. Under section 423 of the Criminal Code, the clerk is required to enter the arraignment and plea of a defendant upon the minutes of the proceedings, and if he neglects to do so, it may and shall be done, at any time, by order of the court, which shall cure the error or defect. This entry may be ordered even after the trial, nunc pro tunc.

    3. Habitation—right to eject intruder. "Where a person requests another to leave his house, and the latter refuses to go, the former has the right to use such force as is necessary to remove him, and no more.
    4. Ebbob—when instruction not acted on by the jury. The giving of an instruction, on the trial of one for an assault with intent to murder, that the jury might convict of an assault with intent to commit manslaughter, if warranted by the evidence, can not be assigned for error, when the jury find the defendant guilty of the crime as charged in the indictment.
    5. Pbactice—time to object—limiting argument of counsel. The limiting of counsel in their argument to the jury, in a criminal case, can not be urged as error by the defendant, where no objection was made thereto at the time, and no further time was asked. The objection comes too late when made for the first time in the reasons for a new trial.

      Writ of Error to the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.
    Messrs. Tipton & Ryan, for the plaintiff in error:
    The ease was tried without a plea, and while a motion was pending to quash the indictment. This fact was not discovered until after sentence. After sentence, and without notice to Long or his counsel, the court, -without evidence and without a hearing, ordered the -entry of a plea nunc pro tunc. The record must show that a plea of not guilty was entered, as without there is no issue to try. Johnson v. People, 22 Ill. 314; Aylesworth v. People, 65 id. 301; Yundt ,v. People, 2 Gilm. 540; Phillips v. People, 88 Ill. 160.
    One in the lawful possession of premises has a right to eject an intruder therein, using no more force than is necessary. Phillips et al. v. City of Springfield, 39 Ill. 83; Wyatt v. Wood, 4 Johns. 157; Woodman v. Howell, 45 Ill. 367; Abt v. Burgheim, 80 id. 92.
    But this doctrine has no application to this ease, for the reason that Long was rightfully at Miller’s house. Hence the eleventh instruction for the People, giving the jury to understand that Long was an intruder, and the assault on him with the razor justifiable, was erroneous.
    Under an indictment for an assault with intent to commit murder, no conviction can be had of an assault with intent to commit manslaughter. An assault with intent to commit manslaughter is impossible. There can be no intent to commit manslaughter, in which there is no deliberation.
    Such instructions only should be given as are based upon legitimate evidence, and if an irrelevant one be given, containing a correct abstract proposition of law, which is calculated to mislead, it will be error. Coughlin v. People, 18 Ill. 267; Humphrey v. Collier, 1 Scam. 47; Hill v. Ward, 2 Gilm. 285; Denman v. Bloomer, 11 Ill. 177; McKinley v. Watkins,
      13 id. 140; Baxter v. People, 3 Gilm. 368; Miller v. People, 39 Ill. 458.
    The time for the argument of the case was limited to twenty minutes on a side. This was too short, and was error. White v. People, 90 Ill. 111.
    Mr. James McCartney, Attorney General, for the People :
    Entering the plea of not guilty nunc pro tunc, was justified by the statute. Rev. Stat. ch. 38, sec. 423.
    •It is clearly inferable, from Hopkinson v. People, 18 Ill. 264, that a person may be convicted of an assault with intent to commit manslaughter. See, also, State v. Williams, 5 Baxter, (Tenn.) 655; Wilson v. State, 4 Tex. App. 637.
    The following are some "of the cases directly in point, holding that under an indictment for an assault to murder, the defendant may be convicted of an assault to kill, or to commit manslaughter: Jarrell v. State, 58 Ind. 293; State v. White, 45 Iowa, 325; State v. Butman, 42 N. H. 490; State v. Waters, 39 Me. 54; State v. Phinney, 42 id. 384; State v. Nichols, 8 Conn. 496; Scott v. Commonwealth, 6 S. & R. 224; Slave Nancy v. State, 6 Ala. 483; State v. Reed, 40 Vt. 603.
    But in this case the instruction on this subject was valueless, as the jury did not find the defendant guilty of an assault with intent to commit manslaughter.
    Mr. Robert B. Porter, State’s Attorney, and Mr. John T. Lillabd, also for the People:
    The entry of the order showing a plea before trial, cured the defect in the record. Crim. Code, sec. 423; Johnson et al. v. People, 22 Ill. 317; May v. People, 92 id. 346.
    The motion to quash the indictment was waived by the plea of not guilty. McKinney v. People, 2 Gilm. 555; Bulliner v. People, 95 Ill. 395; Perteet v. People, 70 id, 171.

      If one enters with authority the house of another, he becomes a trespasser and intruder when, on request, he refuses to leave. Woodman v. Howell, 45 Ill. 367.
    A man’s house-is his castle, and he may eject a trespasser therefrom, using reasonably necessary force therefor. He may defend his dwelling house even to the taking of life, if necessary. Davison v. People, 90 Ill. 229; Woodman v. Howell, supra.

    It is claimed there is- no such crime as an “assault with intent to commit manslaughter. ” The crime of manslaughter includes an intent. The statute says, “it must be voluntary. ” If an act of volition, it is an act of intent.
    The law presumes an intent in every criminal act. Crim. Code, see. 281; York v. Com. 9 Metc. 103; People v. Herrick, 13 Wend. 87; 1 Wharton on Crim. Ev. sec. 724.
   Mr. Justice Walker

delivered the opinion of the Court:

Plaintiff in error, together with Sophia Miller, were indicted in the McLean circuit court for an assault with intent to murder Fred Miller. A trial was had, and the jury found plaintiff in error guilty, as charged in the indictment, and Mrs. Miller guilty of an assault. Plaintiff in error brings the record to this court, and urges a reversal on various grounds, some plausible and others frivolous.

It is admitted that plaintiff in error shot Miller, but it is claimed that it was in self-defence. After a careful examination of the evidence, we fail to see a single element of self-defence. Even according to the testimony of plaintiff in error it does not appear. If we were to look alone to his evidence, as his counsel have argued the case, self-defence is wanting. He says that Miller had a razor, and said he would kill him, and he went into another room and got his gun, returned to and stood in the door, and shot first on the floor, to frighten Miller, and as he approached, plaintiff in error shot him. He does not state that Miller used, or attempted to use, the razor. He went to another room, and Miller did not follow him,—made no demonstration of any kind,—and yet, instead of closing the door to keep Miller out, had he attempted to qiursue him to the room, he returned to and stood in the door, and shot, as he says, to frighten Miller. Could any person, under the ■ circumstances, have believed he was in danger of losing his life, or of great bodily injury? No one, surely, could for a moment have believed he was justified in resorting to extreme measures to preserve his life, or to prevent great bodily harm. His own acts, as he details them, repel the belief that he so believed.

Again, in recounting the circumstances of the affair to two disinterested witnesses, a few days afterwards, plaintiff in error made no mention of Miller having a razor. This, so soon after the occurrence, and so important a fact in the case, he would surely have spoken of if it had been true. It must have been an afterthought, to strengthen his defence. It is true that Miller’s daughter testified her father had a razor, but the jury, most probably, did not believe her. But even if they did as to" that fact, she failed to state facts that justified plaintiff in shooting.

Again, from the evidence it appears that Miller was shot in the left arm and in the right side. Miller testified he was twice shot; and one of the physicians who saw the wounds says, from their location both wounds could not have been made by the same shot. The jury were therefore. fully warranted in believing plaintiff in error had sworn falsely when he said the first shot was at the floor, and as that was a material fact, if the jury believed he had sworn falsely as to that, they were warranted in rejecting his whole testimony, unless corroborated by other credible evidence. All of the evidence considered, we think it not only warranted, but required, the verdict of the jury.

We shall now consider the technical objections urged for a reversal. It is first urged, that the case was tried without a plea, and while a motion to quash was pending. As to the motion to quash, it is not a rash presumption that all persons in the profession know that such a motion is waived by pleading to -suit or action.

But it is said that the case was tried without a plea. On turning to the record, we find the court found that the plaintiff in error, on the 13th day of October, 1881, did appear in open court and enter his plea of not guilty, and the clerk was ordered to enter the plea nunc pro tunc, and when this order was entered, the record finds plaintiff in error was present in court.

But it is urged that this finding and order were made after the trial. If counsel had turned to the 423d section of our Criminal Code, we presume this objection would not have been urged on the attention of the court. It provides that the arraignment and plea shall be entered by the clerk on the minutes of the proceedings, “and if the clerk neglects to insert in the minutes the said arraignment and plea, it may and shall be done at -any time, by order of the court, and then the error or defect shall be cured. ” This, beyond all cavil, cures or removes this extremely technical objection.

It is said that plaintiff in error had a right to dispute the fact that he had entered a plea. He was jcresent, as the record finds, when the order was made, and why did he not dispute the fact ? This is frivolous.

It is urged that the court erred in instructing the jury that if' Miller requested plaintiff in error to leave his house, and he refused to go, he had the right to use such, and no more, force than was necessary to remove him. This has been the settled and undisputed law for centuries, if not from the first organization of society, in its crudest state. There was evidence on which to base it, and it was not error to give it to the jury.

It is urged that the court erred in instructing the jury that, if the facts warranted it, they might find defendants guilty of an assault with intent to commit manslaughter,— that under an indictment for an assault with intent to commit murder, the law will not sanction a conviction of an assault with intent to commit manslaughter. Even if this could be conceded to be true, the jury did not convict plaintiff in error of an assault with intent to commit manslaughter. They found him guilty of the crime charged in the indictment. We are unable to comprehend how it was possible to have prejudiced plaintiff in error. But it is said it may have misled the jury. We fail to comprehend how it could, and counsel have not pointed out how it did; and the finding of the jury shows that it did not, as they did not find a verdict as it informed them they could, if warranted by the evidence. The instructions are based on the evidence. If all of the People’s evidence were left out of view, there would, perhaps, be ground for the objection. Nor do we see that they were calculated to mislead.

It is also claimed that the court erred in limiting the time for arguing the case to the jury. It is a sufficient answer to say, counsel did not object, or ask more time. No objection was made till reasons for a new trial were filed. It appears that one of the counsel for plaintiff in error, before the argument commenced, said he did not desire to argue the case. Under such circumstances it would not be fair to the circuit court to hold this to be error, nor would it promote justice, but would be to protect crime, by unfair methods.

An inspection of this record fails to disclose any error, but on the contrary, it shows that plaintiff in error has had a fair trial, and has been properly convicted. The judgment of the court below is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Dickey

text:
    Edgar T. Ryder v. Samuel Rush.

      Filed at Springfield March 28, 1882.

    1. Bankruptcy—sufficiency of assignee’s deed under act of 1841. Under the Bankrupt law of 1841, the title of all the bankrupt property vested in the assignee as soon as the owner was adjudged a bankrupt and the assignee was clothed with the right to sell the same, and his deed is not invalid for not reciting an order of the court to sell at private sale. The deed containing a copy of the decree of bankruptcy and of the appointment of the assignee, needs no other recitals, and will be good, if in other respects sufficient, the same as a deed made by the bankrupt before the adjudication.
    2. Recording law—deed not recorded, void as to subsequent purchaser. A deed from an assignee in bankruptcy, for land, which is not recorded, is void as to a second grantee from such assignee without notice of the prior deed, the subsequent deed being properly recorded.
    3. Same—purchase presumed to bebona fide. Under the recording laws a subsequent purchaser from the same grantor whose prior deed is unrecorded, is presumed to be a bona fide purchaser, and the burden of proof to show bad faith or want of consideration is upon the party alleging it.
    Writ of Error to the Circuit Court of McDonough county; k the Hon. Chauncey L. Higbee, Judge, presiding.
    Mr. John S. Bailey, for the plaintiff in error.
    Mr. Wm. H. Neece, and Mr. John Mosher, for the defendant in error.
   Mr. Justice Dickey

delivered the opinion of the Court:

This is ejectment, by Byder against Bush. Both parties claim title under Amos Hogin, to whom the land in controversy was conveyed, December 24, 1831, by one McCormick. Hogin petitioned the District Court of the United States for the Southern District of New York, to be declared a bankrupt, under the act of 1841. Waddell was appointed as assignee in bankruptcy, January 4, 1842. A decree declaring Hogin a bankrupt was rendered January 14, 1843. In the report of assets is included “one undivided half” of the land in dispute.

Plaintiff, Byder, claimed title through a deed from Waddell, as such assignee, to Bodman, for one undivided half of the land in question, dated May 7, 1844 (but never recorded), and a deed from Bodman to Amos Hogin, for one undivided half of the land, dated September 3, 1844 (but never recorded), and a deed dated February 22, 1875, for the land in question, from the heirs at law of Amos Hogin, with evidence that Hogin died April 8, 1851, in the city of Brooklyn, New York. Defendant claimed through a deed by Waddell, as such assignee, to Cushman, for all right, title and interest which the bankrupt had, and which he has right to convey, in the whole of the land in question, (this deed bears date September 14, 1860, and was duly recorded October 24, 1860,) and through a deed for the same land from Cushman to Bobinson and Long, dated October 22, 1860, and a deed from Bobinson and Long to James A. Bunby, dated December 24, 1860, (the last two deeds were recorded September 3, 1866,) and through a deed from Bunby to Bush, the defendant, dated December 2, 1874, with proof that at the time when this action was begun Bush was in possession of the land under a title bond before that made to him by Bunby, and in pursuance of which the last deed was made, pending the action. The cause was tried by the court, by consent, and the finding and judgment were for defendant. The plaintiff brings the record here by writ of error.

Counsel for Byder contends that the deed from Waddell to Cushman was improperly received in evidence, because, he says, the deed contains no recital of an order by the bankrupt court to sell at private sale. By operation of the Bankrupt law of 1841 the title of all property of the bankrupt vested in the assignee January 14, 1843, when Hogin was declared a bankrupt, Waddell having been appointed assignee of bankrupts of that district before that time, and this, by section 3 of the Bankrupt act, clothed the assignee with right and power to sell, subject to the orders of the bankrupt court, such property, as fully, to all intents and purposes, as might have been done by the bankrupt before or at that time. The title being thus in the assignee, it would seem that the same might be conveyed by him by any ordinary form of deed which might have been used by the bankrupt, had he not become bankrupt. Section 15 of the same act says, a copy of the decree of bankruptcy, and of the appointment of the assignee, shall be recited in the deed of land by the assignee, and that deeds with these recitals shall pass the title. Whether these recitals be essential to pass title or not, it is clear that no other recitals are necessary. The deed in question does contain copies of the order mentioned in section 15 of the act. No other recitals were needed.

Again, it is insisted that this deed, not professing to convey the land, could pass only such title as actually was in the assignee when the deed was made, and that the assignee having before that time conveyed one undivided half of that land to Bodman, this deed of 1860 operated only to convey the other undivided half, and hence plaintiff ought, in any event, to have judgment for an undivided half. The difficulty in that position is, that the first deed was not recorded, and the grantee in the second deed had no notice thereof. As to him the first deed is as no deed.

It is true, as contended, that the recording laws can only operate for the protection of bona fide purchasers, but it is not true, as counsel seems to suppose, that such a purchaser is presumed not to be bona fide until proof be made to the contrary, or, that to avail himself of the benefit of such laws in an action of ejectment, a defendant must prove, aliunde the recitals in his deed, that a valuable consideration was paid therefor. The burden of proof in such cases is upon the party alleging bad faith or want of consideration.

We find no cause to disturb this judgment.

Judgment affirmed.


author: Mr. Chief Justice Craig

text:
    Cassandra Drennan et al. v. James Douglas et al.

      Filed at Springfield March 28, 1882.

    1. Consideration—founded in violation of law, and immorality. The violation of the marriage obligations by a married woman by committing adultery, and becoming pregnant by one not her husband, under an alleged promise of marriage, can not be made the foundation for a consideration to support a promise by her seducer to make a will giving her and the child all his property, and a court of equity will not specifically enforce such an agreement, even if such an agreement, founded on a proper consideration, is enforcible.
    2. Marriage contract—void, when one of the parties is married. A person having a husband or wife living, and undivorced, is incapable of entering into a valid marriage contract, and no right of action can arise for its breach.
    3. Bastardy—right of married woman to maintain. Where a married woman becomes pregnant, during coverture, of a child, which is born less than eight months from the time she obtains a divorce, it is doubtful whether she can maintain a bastardy proceeding against one as the putative father of the child, the presumption being that her husband is its father, especially in the absence of proof of no cohabitation by him within the proper period to beget the child.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. Charles S. Záne, Judge, presiding.
    Mr. N. M. Broadwell, for the appellants:
    The forbearance to prosecute a claim, and its compromise, constitute a sufficient consideration to support an agreement, and it is immaterial on whose side the right turns out to he. Husband v. Epling, 81 Ill. 172; McKinley v. Watkins, 13 id. 140; Cassell v. Ross, 33 id. 244; Miller v. Hawker, 66 id. 185; Honeyman v. Jarvis, 79 id. 318.

      That courts of equity will enforce agreements to make a particular disposition of one’s property by will, when there are no intervening equities, by seizing the assets and treating the holder as trustee for the benefit of the party entitled, see Johnson v. Hubbell, 2 Stockt. Ch. 332; Wright v. Tinsley, 30 Mo. 389; 3 Parsons on Contracts, 406; Gupton v. Gupton, 47 Mo. 37; Bell v. Hewitt’s Exr. 24 Ind. 280; Duff v. Fisher, 15 Cal. 375.
    Messrs. Stuart, Edwards & Brown, for the appellees, contended that there was no sufficient consideration for the alleged agreement, and that the facts showed an evident intent to frighten a timid and sick man out of his property on behalf o'f an adulteress, for criminal intercourse, commenced and continued before the birth of the child, while she was married, and that the agreement, even if based on a sufficient consideration, was too vague and indefinite to be enforced.
    Messrs. Gross & Conkling, also for the appellees:
    According to the allegations of the bill, Reed had sexual intercourse with Cassandra, the mother of the child, Adaline, while she was the wife of Davis W. Lawley, six weeks prior to her divorce from him. The allegation that Reed gained access to the person of Cassandra under a promise of marriage, is without force, for the reason that if made at all it was made to a married woman, who is incapable of making a contract of marriage. Hebblethwaite v. Hepworth, 98 Ill. 126.
    It is also alleged, that in consideration of Cassandra’s forbearance to enforce her legal remedies against Reed, he made the agreement, etc. For an act of adultery committed with her with her consent, while she was a married woman, she could maintain no action.
    Had Cassandra her action against Reed for bastardy ? We think not, for the reason that the statute gives this remedy only to an unmarried female, and because the law, in the absence of proof of non-access by the husband, presumes the child to be his, and legitimate. Van Arnum v. Van Arnum, 1 Barb. Ch. 375.
    Sexual intercourse is presumed where personal access is not disproved, unless the contrary is shown by satisfactory evidence; and where it. is either presumed or proven, the husband must be taken to be the father of the child, unless • there was a physical or natural impossibility that such intercourse could have produced such child. Cross v. Cross, 1 Paige, 139; King v. Luffe, 8 East, 193; Head v. Head, 1 Sim. & Stu. 150; Turner & Russ. 138, same case on appeal; Rev. Stat. 1874, sec. 3, p. 420.
    A court of equity will not specifically enforce a contract, unless it be reasonable, reciprocal, fair and just, and founded on a valuable consideration. Lear v. Choteau, 23 Ill 39; Stone v. Pratt, 25 id. 25.
    And the contract must be clearly and satisfactorily proven. Allen v. Webb, 64 Ill. 342; Bailey v. Edmunds, id. 125.
    And it must be proved as alleged. Tiernan v. Granger, 65 Ill. 351; Cronk v. Trumble, 66 id. 428.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by Cassandra Drennan and Adaline Beed, in the circuit court of Sangamon county, against the administrator and heirs at law of the estate of John A. Beed, deceased, and to enforce the specific performance of an alleged contract to make a will. It is alleged in the bill that in the year 1865, Beed, under promise of marriage, seduced Cassandra Drennan, whereby she became pregnant, and in March, 1866, she was delivered of a child, Adaline Beed; that Beed was an unmarried man; that about four months after the birth of the child, Beed visited complainants, and admitted that he was the father of Adaline; that Cassandra Drennan made known to Beed her purpose to prosecute him, and take all such legal remedies as were authorized by the laws of the State for the wrong committed; that Eeed, to induce her to desist and forbear legal proceedings, proposed to make a will by which he would give complainants all his property, and it was then and there agreed between Cassandra and Eeed that she would forbear legal remedies, and in consideration thereof Eeed agreed to make a will, and thereby give complainants all property of which he might be the owner at his death; that, relying upon said agreement, no proceedings were instituted against Eeed. It is alleged that Eeed died, without performing said agreement, on the 4th day of September, 1876, leaving an estate consisting of personal property, of the value of $5000, which is in the hands of James Douglas, administrator of the estate of Eeed, duly appointed by the county court of Sangamon county.

Under the facts of this case we do not deem it necessary to enter upon a consideration of the authorities, and determine the question whether a court of equity would or would not, under all circumstances, refuse relief where a bill is filed to enforce the specific performance of a contract to make a will. This case must be determined by the facts, as established by the evidence, and the first inquiry is, whether the alleged contract was made upon such a consideration as will give complainant a standing in a court of equity.

It is said that Reed was liable to be prosecuted for a breach of marriage contract, seduction and bastardy, by Cassandra Drennan, and the agreement on her part to forbear prosecution formed a sufficient consideration for the agreement to make the will. An examination of the evidence will show that complainant could maintain no action against Eeed for seduction, for the obvious reason that when she was seduced and the child begotten, if seduced at all, she was a married woman, the wife of one Lawley, and if a right of action existed in behalf of any person, it was the 'husband. As to the marriage contract, as she was then a married woman, she could not enter into a marriage contract, and any marriage contract hy her then made would be void. So far as the bastardy was concerned, it is very doubtful whether, under the facts as they existed, an action could be maintained. Cassandra was not divorced from her husband until July 11, 1865, while the child was born March 1, 1866,—less than eight months from the time when the divorce was granted. From these facts it is apparent that at the time complainant became pregnant,—allowing the usual period for gestation,— she was a married woman, and the presumption is that her husband was the father of the child. It is true that she commenced an action for divorce in January, 1865, but it is not proven that her husband did not cohabit with her in June, when she became pregnant.

The substance of the transaction, when properly analyzed, is this: Reed had connection with a married woman, under promise of marriage. She became pregnant, whether hy him or her husband is uncertain. She subsequently threatened prosecution, and he promised to make a will, under which his property, at his death, should go to her and her child. Can a court of equity sanction and enforce a contract founded on such a consideration ? We think not. At the time the alleged agreement was made Eeed was under no legal obligation whatever to complainant. It may be true that he had committed adultery with her, but if he had, that fact can not be regarded as a sufficient consideration to support'a promise to make a will. It is a familiar rule of equity that a party seeking the aid of a court of conscience must come into court with clean hands. Here complainant violated her marriage obligation. When she became pregnant by Eeed she violated the laws of the State, and was guilty of adultery, and then in turn undertakes to make these violations of duty and law the foundation for a consideration to support a promise, which she calls upon a court of equity to enforce. A court would stultify itself should it grant relief under such circumstances. A will, to be valid and effectual to pass property, under our statute, is required to be reduced to writing, signed by the testator, and attested in the presence of two credible witnesses. If the relief prayed for in this case should be granted, and the alleged agreement to make a will enforced, the salutary provision of the statute would in effect be set aside, and estates of deceased persons would in many cases be at the mercy of some reckless pretender, who would ever be ready to work up some plausible state of facts to prevent property from descending in the mode pointed out by the- statute.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


text:
    Alexander Mann v. The People ex rel. A. J. Barr, Collector, etc.

      Filed at Springfield March 28, 1882.

      Taxes—requisites of collector’s return—as to hack taxes of specific years. A judgment against a village lot for $451.93, for the taxes of 1880, and back taxes for the years 1875 to 1879 inclusive, of which sum the back taxes amounted to $391, without showing what part thereof is for the year 1879, can not be sustained, where the collector’s report only shows “back taxes 1879, and subsequent years, $391,” and contains no statement of any charge against the lot for back taxes for either of the years 1875, 1876j 1877 or 1878. The collector’s return fills the place of a declaration, and judgment can not be rendered thereon for matter not embraced in its allegations.
    Appeal from the County Court of Edgar county; the Hon, A. T. Trogdon, Judge, presiding.
    Messrs. Hunt & Dyas, for the appellant.
    Mr. A. J. Hunter, and Mr. George W. Fisher, for the appellee.
   Mr. Justice Dickey

delivered the opinion of the Court:

Judgment was rendered in this case against a village lot, the property of appellant, for the sum of $451.93, for taxes of 1880, and for back taxes for the years 1875, 1876, 1877, 1878 and 1879. These back taxes constituted some $391 of the judgment. It does not appear how much of this $391 consisted of back taxes for 1879, nor how much thereof consisted of back taxes for the four preceding years of 1875 and 1878 inclusive; but it does appear that back taxes for each of those four years entered into and formed part of the judgment.

The collector’s report of this lot on the delinquent list specifies as part of the delinquencies chargeable against this lot the following: “Back taxes 1879, and subsequent years, $391.81.” But this report contains no statement of any charge against the lot for back taxes for either of the years 1875, 1876, 1877 or 1878. The collector’s return fills the place of a declaration, and judgment can not properly be rendered thereon for matter not embraced in its allegations.

For the error of including in the judgment back taxes for the years 1875, 1876, 1877 and 1878, when no delinquency in that regard was stated in the collector’s return or notice, this judgment must, we think, be reversed.

Appellant makes other objections to the correctness of the proceedings, but we find no merit in the other objections.

The judgment is reversed, and the cause remanded.

Judgment reversed.


author: Mr. Justice Scott

text:
    John Mann et al. v. William F. Ruby.

      Filed at Springfield March 28, 1882.

    1. Fraudulent conveyance—without consideration, to delay creditors. A colorable conveyance of real estate by a debtor to his brother, without any valuable consideration, made with the design of all concerned to delay and hinder the creditors of the grantor in the collection of their just demands, will be set aside on creditor’s bill, and the land subjected to the payment of the complainant’s judgment.
    2. Creditor’s bill—by whom. A creditor’s bill is properly brought in the name of the judgment creditor, as the owner of the judgment. The statement of the indorser of the note upon which the judgment was recovered, in his testimony, that the suit was being “carried on for his benefit,” does not prove that the money, when collected, is to go to him. The indorser might well have an interest in the prosecution of the suit, as, if the judgment was made out of the property of the judgment debtor, he would not be responsible as such indorser.
    Appeal from the Circuit Court of Vermilion county; the Hon. Oliver L. Davis, Judge, presiding.
    Messrs. Mann, Calhoun & Frazier, for the appellants.
    Mr. J. W. Jones, for the appellee.
   Mr. Justice Scott

delivered the opinion of the Court:

This was a creditor’s hill, brought by William F. Ruby, against John James and Henry Mann, and was to subject the alleged interest of John Mann in the real estate described in the bill, the title to which was in J ames and Henry Mann, to the payment of a judgment at law in favor of complainant, and against John Mann.

The cause was heard in the circuit court on bill, answer and replication and proofs, and the court found that John Mann was the owner of one undivided third of the farm lands described, and was also the owner of the town lots mentioned ; that John Mann conveyed his interest in the property to James and Henry Mann without any valuable consideration, with a view to hinder and delay -his creditors in the collection of their just demands against him; that the grantees received such deed with a design to aid him in such unlawful purpose, and decreed that unless the sum due complainant on his judgment was paid within a time fixed by the court, the property should be sold in the usual way of making such sales.

It is quite clear, from the evidence, the court found correctly. It appears defendants were brothers, and carried on the business or trade of painting, all working together as partners. Most of the contracts were taken in the name of John Mann, but the testimony is, the brothers were all alike interested in them.' When real property was purchased it was most generally bought on joint account, and, for the convenience in making subsequent conveyances, the deeds were taken in the name of John Mann. Nearly all the trading in which the brothers were jointly interested seems to have been done by him. Without entering upon any analysis of the evidence, which has been fully considered, it is sufficient to say it is satisfactorily proven John Mann was the owner of the property, as the decree finds. It is equally clear the conveyance of the lands and the lots by John Mann to his brothers was colorable, and was made without any valuable consideration, and was done with a design on the part of all concerned to delay and hinder the creditors of the grantor in the collection of their just demands against him. It is unnecessary to point out what particular testimony establishes these important and controlling facts in the case. The whole evidence considered together makes that impression, and any other conclusion than that reached by the circuit court would be inconsistent with the testimony.

There is nothing in the point the bill was not brought in the name of the party in interest. It was brought in the name of this judgment creditor, and the money, when collected, will go to him, so far as can be known from anything contained in this record. The indorser of the note in judgment in the name of complainant, stated, in giving his testimony, the suit was being “carried on for his benefit.” That, in one sense, was true. He was the indorser of the note, and if the judgment was made out of the property of the judgment debtor, he would not be responsible as such indorser. It nowhere appears the money, when collected, would go to him. The bill was properly brought in the name of the judgment creditor.

No error appearing- in the record, the decree of the circuit court will be affirmed.

Decree affirmed.


author: Mr. Justice Sheldon

text:
    Melville C. Eames et al. v. Elizabeth J. Doris.

      Filed at Springfield March 28, 1882.

    1. Stockholders—remedy to enforce their liability—whether at law or in equity. It has been held by this court that an action at law by a single creditor will lie against any stockholder of an insolvent corporation, to enforce an individual liability created by its charter;—but these rulings are not to be taken as a denial of the right to seek relief in a court of equity when there are equitable grounds therefor. The right to sue at law does not necessarily exclude the jurisdiction of a court of equity.
    2. So where the personal liability of stockholders of a corporation is made, by statute, a common fund for the benefit of depositors of trust and savings funds, and the debts due such depositors greatly exceed the assets and such personal liability combined, so that the funds will be insufficient to discharge all of the claims upon it, a court of equity may, at the suit of a part of the creditors, on their own behalf and that of all other such creditors, take jurisdiction, and bring before it all the stockholders and depositors, and determine the several rights and liabilities, and adjust equities, marshal the fund, and distribute it pro rata, and in.such case enjoin the prosecution of suits at law by individual creditors against stockholders, seeking to appropriate the entire and unequal benefit of such security. The securing of a ratable distribution of such fund among all the creditors entitled to share, is a proper ground for equitable jurisdiction, and so is the avoidance of a multiplicity of suits.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.
    This is a joint appeal, prosecuted hy Lucius B. Otis, as receiver of the State Savings Institution, and Melville C. Eames and others, creditors of that institution, from a decree dissolving an injunction which had been granted to restrain Elizabeth J. Doris, with other creditors of the institution, from prosecuting actions at law against its shareholders to enforce the stock liability under section 9 of its charter, and sustaining the demurrer to the bill and petition for such injunction, and to enforce such liability.
    The State Savings Institution was incorporated under an act approved February 21, 1861, and since 1863 had been doing business" as a savings bank, in Chicago. On September 1, 1877, Eames and other savings depositors filed their bill in chancery, in the circuit court of Cook county, for the appointment of a receiver over the institution, alleging its failure, a fraudulent assignment of its effects to Abner Taylor, the absconding of its officers, and the abandonment by-them of the banking institution. On September 18, 1877, Lucius B. Otis was appointed receiver thereof. On September 25, 1877, an amended and supplemental bill was filed by Eames and his co-complainants, and a petition in the same cause was also filed by the receiver, the relief sought by both being the enforcement of the stock liability under section 9 of the charter of the institution, for the benefit of all the creditors interested, and to enjoin individual creditors from prosecuting actions at law in their own behalf against such stockholders. On November 21,1877, a decree was entered pro confesso, upon the amended and supplemental bill, against the institution, and on December 10, 1877, an injunction was granted restraining the prosecution of suits at law for the enforcement of such stock liability.
    On March 14, 1881, in pursuance of. leave given, the complainants filed a second amended and supplemental bill, and the receiver an amended and supplemental petition. This bill averred that complainants were depositors in the institution, suing for themselves and all others similarly situated;. that on August 25, 1877, the institution assigned its effects to Abner Taylor; that shortly before such assignment many of its stockholders had transferred their shares to the institution, amounting to about 2000 shares; that the assets were delivered to Taylor, and thereupon its officers and trustees abandoned their trust, and its president and cashier departed; that for a long time prior thereto there had been great mismanagement and waste of assets and deposits; that Spencer, the president, had converted to his own use $479,-177.40 of assets, besides interest; that the capital stock was 5000 shares, of $100 each, Spencer holding about 2700 shares; that the transfer of their stock by the trustees, being stockholders, to the institution, was made shortly before the assignment, and when they knew that their gross mismanagement had rendered it insolvent, and that under color of such transfer by such trustees and stockholders, they took out of the assets either their own notes or other obligations or securities, in fraud of the creditors.
    The bill further averred, that by section 9 of the charter of the institution it was provided as follows: “Each stockholder of this corporation, hereby created, shall, as to the trust funds and saving funds deposited therewith, be individually liable, to the amount of his share or shares of the capital stock, for all losses or deficiencies that may occur while he was such stockholder, which individual liability shall continue for six months after transfer of his said stock. ” The hill averred that the stockholders should pay into court a sum equal to the par value of their stock for the benefit of the trust and saving funds, or that the receiver receive the same for the benefit of those interested; that the losses and deficiencies of the trust funds and saving funds exceed §1,000,000; that complainants are depositors interested in such trust and saving funds, and entitled to share equally, with others so interested, in any moneys recovered from such stockholders under section 9; that the number of savings depositors similarly interested is more than 13,000; that since filing the original bill many persons claiming to be interested as creditors in such trust and saving funds have commenced their several actions at law against stockholders, to enforce the liability under section 9 for their individual benefit, seeking to obtain priority over complainants and others interested in the trust and saving funds.
    The bill prayed that the liability under section 9 be decreed to be. in favor of- the trust funds and saving funds, as such; that the stockholders pay into court, or to said receiver, the sums due by them under section 9, in order that the same be distributed equally; that the persons interested in and entitled to such trust and saving funds be ascertained, and the sums recovered from the stockholders be distributed pro rata among them; that the receiver be continued, and the creditors be enjoined from prosecuting their actions against the stockholders under section 9.
    The amended and supplemental petition of Otis, receiver, avers his appointment September 18, 1877, and continuance in the discharge of his duties since, with substantially the same averments as to the mismanagement and failure of the institution and fraud of its officers, and otherwise as contained in the amended and supplemental bill, avers his right to enforce the liability under section 9, and prays the same relief as the amended and supplemental bill.

      To this second amended and supplemental bill, and to the receiver’s amended and supplemental petition, appellee, one of the creditors who had brought such actions at law, filed a general demurrer for want of equity, which the court sustained, dissolved the injunction granted on the first amended and supplemental bill, and on the receiver’s petition, as to appellee, and dismissed both such bill and petition, as to appellee, for want of equity, which order was affirmed on appeal to the Appellate Court for the First District, and the complainants and the receiver appeal from such order of affirmance.
    Mr. E. B. Sherman, and Mr. J. L. High, for the appellants:
    The liability of shareholders, under section 9 of the State Savings Institution, may be regarded in a double aspect: 1. As an asset of the bank, which the bank could have enforced in the event of a deficiency in the trust funds and savings funds. 2. As a security to the trust and saving funds as an entirety, for the equal benefit of all creditors interested in such funds.
    1. As an asset of the bank it passed to the receiver, by-virtue of his appointment, and under the deed of assignment from the bank to him, as receiver. The liability being as to the trust and saving funds as an entirety, can only be enforced as an entirety, and for the benefit of the entire body of creditors, who are represented by the receiver. The receiver, therefore, is the proper person to enforce the stock liability by a proceeding in equity, for the common benefit of all persons interested in the trust and saving fund. Osgood v. Laytin, 5 Ah. Pr. (N. S.) 1; S. C. 42 N. Y. (3 Keyes,) 521; Osgood v. Ogden, 43 N. Y. (4 Keyes,) 70; Story v. Furman, 25 N. Y. 214; Calkins v. Atkinson, 2 Lansing, 12; Attorney General v. Guardian Mutual Life Ins. Co. 77 N. Y. 272; Pollard v. Bailey, 20 Wall. 520. See, also, Munger v. Jacobson, Receiver, 99 Ill. 349.

      2. The liability being not to the creditors as such, but to the trust and saving fund as a whole, may be enforced in equity by creditors interested in such fund, suing for themselves and all others similarly interested. The fund, when collected, is to be distributed pro rata among the creditors interested therein, under the doctrine that equality is equity, and no creditor of the two classes interested can be allowed priority over his co-creditors. Equity alone can marshal the assets and distribute the fund, under section 9, ratably among those interested, and as an incident to this relief it must enjoin individual creditors from suing at law. Harris v. First Parish in Dorchester, 23 Pick. 112; Crease v. Babcock, 10 Metc. 525; Coleman v. White, 14 Wis. 702;. Bank of St. Marys v. St. John, 25 Ala. 566; Matthews v. Albert, 24 Md. 527; Norris v. Johnson, 34 Md. 485; Briggs v. Penniman, 8 Cow. 387; Pollard v. Bailey, 20 Wall. 520; Carrol v. Green, 92 U. S. 509; Hornor v. Henning, 93 id. 228; Merchants’ Bank v. Stevenson, 10 Gray, 232; Same v. Same, 5 Allen, 398; Moore v. Reynolds, 109 Mass. 473.
    Mr. George Bass, Mr. Ellis S. Chesbrough, Jr., Mr. Edward M. Bayley, and Mr. Farlin Q. Ball, for the appellee:
    This double liability is not an asset of the bank, enforcible by it in the event of a deficiency in the several funds, but belongs to the creditors. Crease v. Babcock, 10 Metc. 525; Merchants’ Bank v. Stevenson, 10 Gray, 232; Same v. Same, 5 Allen, 398; Moore v. Reynolds, 109 Mass. 473; Coleman v. White, 14 Wis. 702; Story v. Furman, 25 N. Y. 215; Bank of St. Marys v. St. John, 25 Ala. 566; Matthews v. Albert, 24 Md. 527; Norris v. Johnson, 34 id. 485; Morse on Banking, 501, cited by appellant. Also, Bank of Poughkeepsie v. Ibbotson, 24 Wend. 473; Tracy v. Yates, 18 Barb. 152; Garrison v. Howe, 17 N. Y. 458; Woodruff v. Chittenden, 4 Bosw. 406; Judson v. Rossie G. Co. 9 Paige, 598; Burr v. Wilcox, 22 N. Y. 557; Walker v. Crain, 17 Barb. 119; Moss v. Oakley,
      2 Hill, 265; Van Hook v. Whitlock, 3 Paige, 409; Atwood v. R. I. Ag. Bank, 1 R. I. 376; Perry v. Turner, 55 Mo. 418; Norris v. Johnson, 34 Md. 485; Demming v. Bull, 10 Conn. 409; Paine v. Stewart, 33 id. 516; Hawthorne v. Calef, 2 Wall. 10; Bullard, v. Bell, 1 Mason, 243; Dutcher v. Assignee of Central Bank, 12 Blatchf. 435; Stanley v. Stanley, 26 Maine, 191; Dozier v. Thornton, 19 Ga. 325; Lane v. Morris, 8 id. 468; Bank of United States v. Dallam, 4 Dana, (Ky.) 574.
    The receiver takes only the property and rights of the bank. High on Receivers, secs. 315, 204, 205, 208; Curtis v. Leavitt, 15 N. Y. 44; Lincoln v. Fitch, 47 Mo. 456.
    The remedy, at the election of the creditor, is at law. Norris v. Johnson, 34 Md. 485; Garrison v. Howe, 17 N. Y. 458; Atwood v. R. I. Ag. Bank, 1 R. I. 376; Perry v. Turner, 55 Mo. 418; Paine v. Stewart, 33 Conn. 516; Bullard v. Bell, 1 Mason, 243; Stanley v. Stanley, 26 Maine, 191; Dozier v. Thornton, 19 Ga. 325; Hawthorne v. Calef, 2 Wall. 10.
   Mr. Justice Sheldon

delivered the opinion of the Court:

The bank, here, by its charter, was empowered to transact ordinary commercial and other business, as well as to receive saving deposits and trust funds. As regards its commercial and other like business, no stock liability was created to guard against losses and deficiencies. The liability is confined to losses and deficiencies “as to the trust funds and saving funds deposited.”

This court has frequently held that an action at law by a single creditor will lie against any stockholder of an insolvent corporation, to enforce an individual liability created by its charter. Culver v. Third National Bank, 64 Ill. 528; Corwith v. Culver, 69 id. 502; Tibballs v. Libby, 87 id. 142; Fuller v. Ledden, 87 id. 310; Arenz v. Weir, 89 id. 25; McCarthy v. Lavasche, 89 id. 270. But the court never has held that there might not be-resort to a court of equity to enforce the liability, or that one creditor might not, at the instance of the whole body of the other creditors, be restrained from the prosecution of his individual suit, where its prosecution would be to the prejudice of the equal interest of all the creditors.

Wincock v. Turpin, 96 Ill. 135, is the only case in this court where there has been a contest like the present, between the receiver and creditors suing as a whole, in equity, for the common benefit of all, upon the one hand, and upon the other a single creditor suing for himself. And although in that case the depositor was left free to prosecute his individual suit at law, it was under the circumstances and with the implication appearing, in the following language there used by the court: “It may be a state of facts might exist which would authorize a court of equity to bring before it all the stockholders and depositors, and determine their rights and adjust equities, marshal the fund, and distribute it pro rata; but no such case is made by this bill, and until such a case shall be made we must leave the depositors to pursue their remedies under the law.” We think the state of facts thus suggested as authorizing the interposition of a court of equity is here presented.

The liability under section 9 is created for all losses and deficiencies as to the trust funds and saving funds deposited, that is, as to the depositors of trust funds and saving funds. The liability constitutes a fund for the benefit of. all of these two classes of creditors, and they are entitled to share in it in proportion to the amount of their debts. The debts here largely exceed the assets and this liability combined, so that the fund will be insufficient to discharge all of the claims upon it. If individuals of these two classes of savings and trust depositors be allowed to prosecute their separate suits, they may recover payment of their demands in full, while others of the classes having claims equally equitable, may be enabled to obtain no payment whatever, or but a partial one. Hence the propriety, in the case of such a deficiency in a common fund for the common benefit of creditors, of a proceeding in equity b/ one or more in behalf of all the creditors, in order that the equitable princijile that equality is equity, may be applied,—that single creditors, by individual suits, may be prevented from an appropriation to themselves of the entire or unequal benefit of the security, to the exclusion of others equally entitled, and that there may be a collection, and pro rata distribution of the whole fund among all the creditors.

The cases are numerous which recognize a liability of such a character as that created by section 9, as a common fund for the benefit of all the creditors who are entitled to share in it, and that the securing of a ratable distribution of it-among all such creditors is a proper ground for the jurisdiction of a court of equity. See Merchants’ Bank v. Stevenson, 5 Allen, 401; Crease v. Babcock, 10 Metc. 532; Briggs v. Penniman, 8 Cow. 387; Hornor v. Henning, 93 U. S. 228; Low v. Buchanan, 94 Ill. 81; Harper v. Union Manufactwing Co. 100 id. 225. The avoiding of a multiplicity of suits is a further ground of equitable jurisdiction.

As before intimated, former. decisions in similar eases, that the creditor may sue the stockholder at law on such a liability, are not to be taken as in denial of the right to seek relief in a court of equity when there are equitable grounds therefor. The remedy at law is not adequate in such a case as this.

As recognized by some courts, the creditors, in the case of such a personal statute liability of stockholders, have a concurrent remedy by a suit at law, or by a bill in equity for the enforcement of the liability. Bank of Poughkeepsie v. Ibbotson, 24 Wend. 473; Van Hook v. Whitlock, 3 Paige, 409; Norris v. Johnson, 34 Md. 485; Perry v. Turner, 55 Mo. 418; Dozier v. Thornton, 19 Ga. 325. The authorities sufficiently show that the right to sue at law does not necessarily exclude the jurisdiction of a court of equity.

As to the question which has been discussed, whether this liability is an asset of the corporation, and the receiver has the right to sue for its enforcement, we do not stop to consider it, as we do not deem it material. The petition of the receiver is with the concurrence of the complainants, and is cooperative with their bill to the same end of obtaining the relief of a pro rata distribution of the fund among all these creditors, and is but a part of their proceeding, and hence we do not regard it as of any practical importance that such petition should be passed upon separately. The question is, whether upon the face of the whole proceeding there appears an equitable right to the relief demanded. We think there does, and 'that the circuit court erred in sustaining the demurrer.

The order of affirmance of the Appellate Court will be reversed, and the cause remanded for further proceedings consistent with this opinion.

Decree reversed.

Mr. Justice Walker : I concur in the conclusion reached in this case, on the ground that it is properly distinguished from Wincock v. Turpin, supra.