text:
    William E. Robbins v. Martha J. Robbins.

      Filed at Mt. Vernon January 18, 1882.

      1. Divorce—alimony—decreeing husband’s land to wife. On cross-bill by a wife for a divorce from her husband, it appeared that the husband’s real and personal property was worth about $26,000. On granting the divorce the court gave the wife, for herself and two children, as alimony, $3000, to be paid in ninety days, and a like sum to be paid in eighteen months, and by the decree gave her the title in fee to 160 acres of his land. On petition-of the husband for a modification of the decree, it appeared that he had paid a judgment to the wife’s father of $1390 for her support; that he had paid "the first $3000, and the other $3000 had been paid by a sale of 210 acres of his land, which sale had passed redemption; that the balance of his lands was incumbered by a claim of dower held by his mother, and that the income derived from them was small, and that the value of the lands had decreased thirty per cent since the final decree; and that none of his property had been derived from or through his wife. The petition was denied; Held, that it was error to decree the wife the quarter section of land, and that the $6000 allowed by the court was quite as large a sum as should have been allowed.
    2. Where the husband has obtained no money or property through his wife, and she has contributed nothing to make the property, the court is not justified, on any principle, in decreeing to the wife the title in fee to a portion of his lands, on a divorce. It might be otherwise if the wife, at the time of the marriage, or during coverture, acquired money which passed into the hands of the husband, and he invested it in real estate.
    Writ of Error to the Circuit Court of Lawrence county; the Hon. William C. Jones, Judge, presiding.
    Messrs. Brewer & Hoffman, and Mr. J. C. Allen, for the plaintiff in error,
    contended that the court allowed the wife too large a sum as alimony, and that as she brought no property to the marriage, it was error to decree her the title to 160 acres of land in addition to the very liberal allowance in money. Keating v. Keating, 48 Ill. 241; Ross v. Ross, 78 id. 402; Russell v. Russell, 4 Green, (Iowa) 26; Dinet v. Eigenmann, Admr. 80 Ill. 274; Stewartson v. Stewartson, 15 id. 145; 46 id. 135.
    Alimony should be reasonable and fair, in view of all circumstances. The wife should be held to labor for her own support and that of her children, and not indulged in idleness. The rule as to alimony varies, according to circumstances, between a one-half, which appears to be the highest in extreme cases, down to a small proportion of the estate. And the eases where the court has awarded to the wife a large amount, either in gross or real estate, are when she brought money, personal or real property to the husband, or contributed largely by her industry or economy to the increase of his estate. In support of the view here presented, we cite the following cases: 2 Bishop on Marriage and Divorce, 464, 429, secs. 463, 464; Andrews v. Andrews, 69 Ill. 609;
      Ross v. Ross, 78 id. 402; Parker v. Parker, 61 id. 369; Daily v. Daily, 64 id. 329; Foote v. Foote, 22 id. 425; Wheeler v. Wheeler, 18 id. 39; Hurd’s Stat. of 1880, 424, see. 18.
    Messrs. Bell & Green, and Mr. Aaron Shaw, for the defendant in error:
    There was no error in decreeing to the wife a sum in gross for alimony, and in making it payable in two installments. This has been expressly sanctioned by this court in a -number of cases. Plaster v. Plaster, 47 Ill. 290; Draper v. Draper, 68 id. 17; Dinet v. Eigenmann, 80 id. 274.
    In decreeing a divorce, at the suit of the wife, the circuit court has the power to assign to her, as alimony; a part of the real estate of the husband. Armstrong v. Armstrong, 35 Ill. 109; Stewartson v. Stewartson, 15 id. 145; Wheeler v. Wheeler, 18 id. 39; Bergen v. Bergen, 22 id. 189; Joliff v. Joliff, 32 id. 527.
    There may, sometimes, ■ be a question as to the propriety of vesting in the wife a portion of the husband’s real estate in fee; but in that regard each case must rest upon its own merits. The conduct of the parties may very properly be taken into consideration upon the question of alimony. Stewartson v. Stewartson, 15 Ill. 145; Becker v. Becker, 79 id. 532; Bergen v. Bergen, 22 id. 187.
    All the cases in this court that question the propriety of vesting a portion of the husband’s real estate in the wife, in fee, must be restricted to the peculiar circumstances of those cases. The 'powér and right of the court are admitted. They "were eases in which the court had given to the wife the greater part of the husband’s property. Keating v. Keating, 48 Ill. 241; VonGlahn v. VonGlahn, 46 id. 134; Ross v. Ross, 78 id. 402.
    There- is no. inflexible rule by which to determine the amount of alimony in a ease like this. It must rest entirely in the sound judicial discretion of the chancellor, and his determination will not be disturbed unless it is manifestly wrong. It will be granted in proportion to the wants of the party asking it, and the ability of the party who is to pay it. Foote v. Foote, 22 Ill. 425; Joliff v. Joliff, 32 id. 527.
    In many of the following cases a moiety of the husband’s property was given to the wife as permanent alimony: Cook v. Cook, 1 Eng. Ecc. R. 178; Smith v. Smith, id. 244; Otway v. Otway, id. 203 ; Kirby v. Kirby, 1 Paige Ch. 261; Priner v. Priner, 1 Rich. Eq. (S. C.) 282; McCrockin v. McCrockin, 2 B. Mon. 372.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

This was a bill' for divorce, brought by William E. Bobbins, in the circuit court of Lawrence county, against Martha J. Bobbins. The ground for divorce alleged in the bill was desertion. The defendant put in an answer to the bill, in which she denied the desertion charged by complainant. She also filed a cross-bill, in which she charged that complainant had, without just cause, abandoned and deserted her, and refused to contribute to the support of herself and two small children, upon which ground she prayed for a divorce, and for alimony. On the hearing, the court dismissed complainant’s bill, and decreed a divorce in favor of the defendant, on the allegations contained in the cross-bill. .

On the question of alimony, the court found, as appears from the recitals in the decree, that the complainant was possessed of real and personal property of about the value of $26,000, and upon this finding rendered a decree that complainant pay the defendant $3000 in ninety days from the date of the decree, and the further sum of $3000 in eighteen months from the date of the decree. The court further decreed that the following real estate owned by complainant, to-Wit: the south-east quarter of section 5, in town 3 north, range 12 west, in Lawrence county, containing 160 acres, be, and the title to the same is, vested in defendant, her heirs and assigns forever. The decree was .made a lien on all the lands of defendant, and he was decreed to pay all costs. The complainant in the bill paid the costs of .the litigation, and paid the $3000 first ordered to be paid, and he also paid a judgment amounting in the aggregate to $1390, which had been rendered against him before the decree was rendered, in favor of defendant’s father, which was recovered for the alleged support of the defendant. After these payments had been made, and at the February term, 1878, of the circuit court of Lawrence county, complainant filed a petition asking for a modification of the decree, and a reduction of the alimony. The court, after hearing the testimony on the petition, denied the relief, and dismissed the petition. The defendant, for the purpose of reversing the decree of the circuit court, in so far as it relates to the alimony allowed, sued out this writ of error.

From the evidence heard on the petition for a reduction of the alimony, it appears that complainant’s money and personal estate have been mainly expended in the payment of the $3000 first named in the decree, and in payment of the judgment obtained by defendant’s father; that in default of payment of the second installment of $3000, a special execution issued and was levied Upon 240 acres of complainant’s lands, which were sold and bid off by the defendant. The redemption expired, and a deed was made to her in pursuance of the sale¡ It also appears that the balance of his lands are incumbered by a claim for dower and homestead on behalf of his mother, and the income derived from them is small. It also appears that the value of complainant’s lands has decreased at least thirty per cent since the decree for alimony was rendered.

See. 18, chap. 40, Bev. Stat. 1874, entitled “Divorce, ” provides: “When a divorce shall be decreed, the court may make such order touching the alimony and maintenance of the wife, the care, custody and support of the children, or any of them, as from the circumstances of the parties and the nature of the case shall be fit, reasonable and just. * * * And the court may, on application, from time to time, make such alterations in the allowance of alimony and maintenance, and the care, custody and support of the children, as shall appear reasonable and proper.”

Under this statute cases may arise where it would be proper and just for the court to decree a sum in gross for alimony, or a part of the husband’s real estate in fee to the wife. If at the time of the marriage, or during coverture, the wife acquires money which passes into the hands of the husband, and he invests it in real estate, when she obtains a divorce it would be only justice to her to decree the title to land thus obtained to her.. But where the husband has obtained no money or property through the wife, and she has contributed nothing to make the property, we are aware of no principle upon which a court would be justified in decreeing to the wife the title in fee to a portion of his lands. As was said in Dinet v. Eigenmann, 80 Ill. 274: 1 “Where the Mfe brings nothing to the husband, and contributes little or nothing to the accumulation of her husband’s fortune, she has no just claim to share in a division of propérty; but under the law,where the husband was in fault, he is bound to support her according to his circumstances and condition in life; and in such case it is proper that such support be afforded by an annual, half-yearly, or quarterly allowance of a fixed sum so long as she lives, or until supervening circumstances render it improper.” In Ross v. Ross, 78 Ill. 402, it was held, that “the practice of vesting the fee of real estate in the wife by decree for alimony, although sometimes sanctioned by this court under special circumstances, is objectionable.” In VonGlahn v. VonGlahn, 46 Ill. 184, a similar question arose, and the court held: “Where the property of the husband was accumulated by him before marriage, and the wife brought no property to him upon the marriage, it would be unjust to decree' to her as alimony, after decree of divorce, a large amount of the husband’s property absolutely. ” The same' principle is announced in Keating v. Keating, 48 Ill. 241.

In view of these authorities, can the decree for alimony in this case be sustained ? It is true the evidence upon which the decree was granted has not been preserved and incorporated into the record, but from the petition presented to obtain a modification of the decree, and from the evidence introduced in support thereof, it sufficiently appears that the property and money possessed by Bobbins when the decree was rendered came to him by descent from the estate of his father, and that no part of his property was derived from his wife, or came to him through her labor or exertion. Under such circumstances, while it was proper that Bobbins should be decreed to pay to his wife for her support and the support of his children a reasonable sum of money as alimony upon the granting of a divorce, yet we are of _ opinion that it was error to decree the wife the title to the quarter section of land named in the decree.

From the evidence presented on the hearing of the petition to modify the decree, we are of opinion that the $6000 allowed by the court as alimony when the divorce was granted was quite as 'large a sum as in equity should have been allowed. As to the south-east quarter of section 5, township 3 north, range 12 west, the decree will be reversed. In all other respects it will be affirmed.

Decree reversed in part and in part affirmed.


source: Caselaw Access Project

author: Mr. Justice Dickey

license: Public Domain

text:
    Henry H. Wernse et al. v. William H. Hall, Admr.

      Filed at Mt. Vernon January 18, 1882.

    1. Jurisdiction—as to suits against executors, etc., in Missouri—judgment void for want of jurisdiction. By a statute of Missouri it is provided that “all actions commenced against the executor or administrator” of an estate shall be considered “demands legally exhibited against such estate, from the time of serving original process on such executor or administrator. ” By another statute it was shown that the probate court of Balls county, and others, had exclusive jurisdiction “to hear and determine all suits and other proceedings against administrators, upon any demand against the estate of their testator or intestate.” A judgment was obtained in the circuit court of St. Louis against the administrator of the estate of a person who died a resident of Balls county, in that State, in which county the administration was had, and the institution of the suit in which that judgment was obtained was claimed as an exhibition of the claim, to save it from the operation of the limitation laws of that State: Held, that the judgment, and the whole proceeding in the St. Louis circuit court, were void for want of jurisdiction of the subject matter, and could not be set up to avoid the limitation in a proceeding in this State to recover upon the same demand. ^
    2. Limitation—action barred in another State.

       Where a demand against the estate of a deceased non-resident is barred by the laws of the State where he was domiciled at the time of his death, it is equally barred in this State.
    3. Same—as to demands against estates in the State of Missouri—what is a proper exhibiting of a claim in that State. The Missouri statute provides that all demands against estates of deceased persons, not legally exhibited within two years after the granting of the first letters of administration, shall be forever barred; and further, that “any person may exhibit his demand * * * by serving upon the executor or administrator a notice in writing, stating the amount and nature of his claim, with a copy of the instrument of writing or account upon which it is founded, and such claim shall be considered as legally exhibited, from the time of serving such notice;” but it is also provided that no claimant shall avail himself of this mode of exhibiting his demand, “unless he shall present his demand” to the proper probate court within three years after the granting of the first letters of administration: Held, in a proceeding in a county court in this State for an allowance of the same claim, administration having been granted here, that the presentation of a void judgment of another court to the probate court, not for allowance, but for classification, within the three years, did not take the case out of the operation of the limitation.
    4. Administration—revocation of letters improperly obtained. Where a person failing to have his claim allowed in the State of an intestate, comes to this State, and on his representation that he is a creditor of the deceased procures letters of administration here, and it is made apparent on the trial of his claim that he is no creditor, it is proper, not only to disallow his claim, . but also to enter an order revolting the letters of administration.
    Writ op Error to the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Madison county; the Hon. William H. Snyder, Judge, presiding.
    Mr.. David Gillespie, for the plaintiffs in error,
    insisted that the claim was not barred by the statute of Missouri, and that it was duly presented twice within the statutory period.
    That the suit in the circuit court of St. Louis county was -sufficient to prevent the bar of the statute, see Tevis v. Tevis, Admr. 23 Mo. 256; Williams v. Anthony, Admr. 47 id. 299; North v. Walker, 2 Mo. App. Rep. 174; Judy et al. v. Kelly, 11 Ill. 211; Collins v. Ayers, 13 id. 358.
    In the lifetime. of Abram McPike', the right of action upon the note in question was transitory in its character. Claimants could have followed him into any other State and brought suit against him, and the fact that both parties to the contract resided in and were citizens of the same State, could not be pleaded in bar or abatement of the suit; nor could the pendency of a suit for the same thing, between the same parties, in another State, be pleaded in bar or abatement of the suit. McJilton v. Love, 13 Ill. 486; Brown v. Joy, 9 Johns. 221; Walsh v. Durkin, 12 id. 99; see, also, Rosenthal v. Renick et al. 44 Ill. 202.

      Messrs. Wise & Davis," for the defendant in error:
    This demand should, by the laws of Missouri, have been presented to the probate court of Balls county, Missouri, within two years, and. not having been presented there in that time, was rejected by the court, and this, by the law of Missouri, is an extinguishment of the debt. Cones v. Ward’s Admr. 47 Mo. 289; Pearce v. Calhoun, 59 id. 274.
    That which is a discharge of a contract in the government where made, is a discharge everywhere. Powers v. Lynch, 3 Mass. 77; Rev. Stat. Ill. p. 644, sec. 20; Vermont State Bank v. Porter, 5 Day, 316; Conpamp v. Bund, 4 Dall. 419; Hull v. Blake, 13 Mass. 153.
    The rule is, where it is the intention of the statute to convert a possession of any given length of time, or a neglect to institute proceedings according to its provisions, into a positive and unavoidable. bar, the statute is a bar in the courts of every government. Blackford v. Wade, 17 Ves. 88; Shelley v. Gay, 11 Wheat. 361; Brent v. Chapman, 5 Cranch, 358; McAllister v. Smith, 17 Ill. 328; Evans v. Anderson, 78 id. 558.
    When ancillary or auxiliary administration has been granted, no creditor outside of the ancillary administration can present his claim before the commission of ancillary administration or the court granting the same. 3 Redfield on Wills, par. 15, chap. 1; Richards v. Dutch, 8 Mass. 506; Dawes v. Boyleston, 9 id. 337; Dawes v. Head, 3 Pick. 128 ; Hunt v. Fay, 7 Verm. 183; Churchill v. Bryden, 17 id. 319.
    But even if allowed by our law in some cases, as is intimated in Bowles’ Heirs v. Rowen, 3 Gilm. 421, and in Rosenthal, Admr. v. Renick, 44 Ill. 207, yet it would never be permitted where administration has been granted on the estate at the domicile of the deceased, and when the claim has been presented there for allowance, as it would avail nothing to non-resident creditors, as the assets realized would be sent to the principal administrator to distribute.

      A- voluntary payment by the debtor to the principal administrator, where there is no conflicting grant of domestic letters, will discharge the debtor. Doolittle v. Lewis, 7 Johns. Ch. 49; Parsons v. Lyman, 20 N. Y. 103; Treecotkeck v. Austin, 4 Mason, 16; Wilkins v. Ellett, 9 Wall. 740.

       See Hyman v. Bayne, 83 Ill. 256, as to the effect of the 20th section of the Limitation act of 1872.

   Mr. Justice Dickey

delivered the opinion of the Court:

This is the case of a claim filed hy plaintiffs in error against the estate of Abram McPike, deceased, in the county court of Madison county, Illinois.

A promissory note, dated St. Louis, December 23, 1872, was made and signed by Leiper & Co. as makers, for the sum of $3000, payable sixty days after date, at the Traders’ Bank of St. Louis, to the order of A. McPike. This note, before maturity, was indorsed in blank by A. McPike, and sold, and became the property of the bank. It appears from the record that A. McPike was a resident of Balls county, Missouri, and that he died intestate early in January, 1873, and, before the maturity of the note, and that Henry C. McPike, a resident of Missouri, was appointed, by the county court of Balls county, administrator of the estate of A. McPike, deceased, and received letters of administration on the 28th of January, 1873. The note was not paid at maturity, and the same was duly protested for non-payment, on February 24, 1873, and notice thereof mailed to the administrator.

This claim against the estate of Abram McPike rests upon his supposed liability as indorser of that note. His estate in Missouri is shown to have been entirely solvent. The defence interposed is a statute of Missouri, which provides that all demands against estates of deceased persons, not legally exhibited within two years after the granting of the first letters of administration, “shall be forever barred.” It is insisted that this claim is barred by that statute.

The statute of Missouri provides Several modes in which a claim may be thus “legally exhibited, ” and in addition to other modes, not claimed to apply in this case, the following are mentioned in the statute: “All actions commenced against the executor or administrator * * *" shall be considered demands legally exhibited against such estate, from the time of serving of original process on such executor or administrator. ” And again: “Any person may exhibit his demand *' * * by serving upon the executor or administrator a notice in writing, stating the amount and nature of his claim, with a copy of the instrument of writing or account upon which the claim is founded, and such claim shall be considered legally exhibited from the time of serving such notice; ” but it is also provided that “no claimant shall avail himself” of this latter mode of exhibiting his demand “unless he shall present his demands to the court (the proper county court), in the manner provided by law, for allowance, within three years after the granting of the first letters on the estate. ”

It is shown that in June, 1873, an action was begun in the circuit court of St. Louis against this administrator, upon this indorsement, and that a copy of the writ and petition was served upon him July 5, 1873, and judgment rendered against him on October 16, 1873, and it is claimed by plaintiff in error that this was a “legal exhibiting” of his demand, from the time of the service of process. It is, however, shown that by the statutes of Missouri the probate court of Balls county (and of certain other counties specially named) had exclusive jurisdiction “to hear and determine all suits and other proceedings against administrators, upon any demand against the estate of their testator or intestate.” This act took away expressly the jurisdiction in such matters from the circuit court of St. Louis. It was so held in Dodson v. Scroggs, 47 Mo. 285, and again in Cones v. Ward, page 289 of same- volume, where it is said that parties can not, by consent, give that court jurisdiction.

We have been referred to Tevis v. Tevis, 23 Mo. 256, as holding otherwise. This question did not arise in that ease. The claim in that case was against an estate in course of administration in the county of St. Louis. That county is not mentioned in the act giving exclusive jurisdiction to the probate court of Balls county, and certain other counties. The circuit court of St. Louis being without jurisdiction in this matter, the whole proceeding was coram non judice, and inoperative. There was no service of process in a judicial proceeding. It was in no sense a judicial proceeding, for the court had no jurisdiction of the subject matter.

It is contended that the claim was legally exhibited by service of a written notice of the nature and amount of the claim, and a copy of the note and indorsement on which the claim is founded, in this, that the notice of protest was such a notice; and again, in this, that the service of a copy of the petition in the circuit court of St. Louis constituted such notice. The difficulty about this position is, that even if such proceedings be regarded as such notice, the statute says no claimant can avail himself of this mode of “legally exhibiting his claim, unless' he shall present the same for allowance, to the proper probate court, within three years of the issue of the first letters of administration. ” In this case no claim upon this indorsement was presented in the probate court of Balls county until in the year 1877,— more than four years after the date of the first letters of administration. It is true, a copy óf the void judgment of the circuit court of St. Louis was presented to the probate court of Balls county, April 15, 1874, for classification, but it was not presented for allowance. No application was made to have the claim allowed, and had it been then presented for allowance, it may well be doubted whether the demand upon the judgment should be regarded as identical with the demand upon the indorsement of the note. .We think this claim was barred by the laws of Missouri. If so, under our statute, the demand is barred here.

Failing to get this claim, or that upon the void judgment, allowed in the courts of Missouri, plaintiff in error came to this State, and upon his representation that he was in fact a creditor, procured letters of administration to be issued to defendant in error, as administrator of this estate, in the county of Madison, where lies real estate belonging to the estate. When it was made apparent upon the trial that plaintiff in error was not a creditor, it was proper to not only disallow the claim, but also to enter an order revoking the letters of administration, as was done in this case.

The judgment of the Appellate Court in this case is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Walkeb

text:
    Logan Byars et al. v. Mary E. Spencer et al.

      Filed at Mt. Vernon January 18, 1882.

    1. Delivery or deed—essential to its validity. A delivery is essential to render a deed operative, and it does not take effect until it is delivered. Without delivery it is void.
    2. Same—what amounts to a delivery—to whom, it may he made. The delivery of a deed may be to the grantee or to his agents, and no particular form or ceremony is necessary to constitute a sufficient delivery. It may be by acts, or words, or both; but what is said or done must clearly manifest the intention of the grantor and of the grantee, that the deed shall at once become operative, to pass the title, and that the grantor shall lose all control over it.
    3. Where a deed is executed and delivered to a stranger, to be delivered to the grantee, without conditions, it will be a sufficient delivery to pass the title; but the execution of a deed, and having it recorded, without'the knowledge of the grantee, is not a delivery.

      4. When the facts show that the grantor did not intend to lose control over the deed, and he still continues to have power over the title without the consent of the grantee, there is not such a delivery as the law requires to render it a deed, and it can not pass title.
    5. So, where a father made and acknowledge! a dee! to his two minor children, but retained it until his death, and declined to have it recorded, on the express ground that he would thereby place the title beyond his power or control, and expressed ah intention, after he had made and acknowledged the deed, to sell the land if he could get a certain price, and in pursuance of that intention did offer to sell the land, it was held, that the deed was inoperative for want of a delivery.
    6. Judicial sale—party can not impeach, and still retain the proceeds. A party can not impeach a sale of his interest in land, under a proceeding by his co-tenants, when he has received and retains his share of the proceeds, on any ground, either for want of jurisdiction in the court ordering the sale, or for any irregularity in the sale. He who seeks equity must do equity. Before he can be heard to deny the validity of the sale he should restore, or offer to return, the money so received by him.
    Wbit oe Bbboe to the Circuit Court of Jackson county; the Hon. Moneoe C. Cbawfobd, Judge, presiding.
    Messrs. Babe & Lemma, and Mr. G-. W. Smith, for the plaintiffs in error.
    Mr. Ahdbew D. Dufe, for the defendants in error.
   Mr. Justice Walkeb

delivered the opinion of the Court:

It appears that one Thomas Whitson, of Jackson county, in this State, was, in his lifetime, the owner of one hundred and seventy-four acres of land, situated in that county; that the land was improved, and he resided on the. same many years before his death. He was twice married, and was the father of eleven children, nine by the first and two by the latter wife. He survived both, and the children by the first wife, being grown, had left him, and he remained on the farm with complainants, the two children by the latter wife. They were minors, the one eight and the other ten years of age. • He made, executed and acknowledged a deed conveying this land to them. The deed was made in July, 1864, but was never delivered to the grantees, or to any person for them, nor was it recorded, nor did it ever pass out of the possession of the grantor or from under his control. At the time he made it he took it, after acknowledging it, to his house, and placed it in a drawer of a bureau with other papers, where it remained till the time of his death. He went to Worthen, a justice of the peace of Jackson county, and said to him he wished to convey these lands to his two minor daughters. He said to Worthen: “You know that I have given to my children by a former wife, that are grown and have left me, a good farm. These little ones have yet to be raised. I think it nothing but right that they should be provided for, making it equal with the others. ” The deed was made and acknowledged at the time this conversation occurred.

Subsequently, Worthen, in a conversation with Whitson, suggested to him that he should have the deed delivered and recorded. Whitson replied, that he, being the natural guardian,—the father of the children,—was the proper person to hold it; and with regard to recording it, he had an objection to its being recorded at that time, because if he could sell the land for $6000 he would divide the proceeds between the two children, but if the deed was on record he could not sell it, because of the deed being recorded; nor could the girls sell it, because they were minors. If the deed remained, then, unrecorded at his death, it would show his intention,— what he would do,—and right would be done. Whitson said, in conversation with Worthen’s wife, that in value more was given to these two children than to the others; but he considered the matter in the light of the fact that the older children were raised, and “doing for themselves, ” but these two were to be raised, and added, he did not expect to live to raise them. He, but a short time before his death, offered to sell the land, and on several occasions called it his. Letters of administration were granted to Benj. B. Whitson, who took possession of the personal effects of deceased, and closed up and settled the affairs of the estate. Complainants charge that the administrator obtained possession of the deed, and destroyed or suppressed it, and there is some evidence that the deed came to his hands after the death of his father; but he denies it in his sworn answer, and deposition, and denies ever having seen it, or of having any knowledge that it ever existed.

Izir Byars, one of the sons-in-law of Thomas, after the death of the latter, purchased of a number of the heirs their claims to or interest in the property, representing nearly one-half. He thereupon filed a bill against the heirs who had not sold, for a partition. On the hearing the court appointed commissioners to make partition, but they reported that the land was not susceptible of division without manifest injury to the parties in interest. The court approved the report, and thereupon decreed the sale of the land, and decreed that the master in chancery make the sale, after specified notice, etc. The sale was made to the Mount Carbon Coal and Railroad Company, now the Grand Tower Mining, Manufacturing and Transportation Company, for the sum of $7852.95, ' which was distributed and paid to the several parties to the bill, according to their interests as found by the court, the complainants receiving their share, under the order of the court.

In the view we take of the case these are the material facts. Other facts are averred, and evidence was heard on them, but we regard them immaterial to the decision of the case. The bill prayed that the title of complainants might be established and confirmed; that the proceedings for partition might be set aside as void, and that all deeds from the heirs to Izir Byars be held and declared void as to them. On a hearing the circuit court decreed the relief asked, and the defendants below bring the record to this court on error, and urge a reversal. .

The first question we propose to consider is, whether the deed executed by Thomas Whitson ever became operative to pass the title to the grantees named in the deed,—whether there was such a delivery as passed the title to the land from him to them. It is conceded that to have that effect there must have been a delivery. On the one side it is claimed there was, and on the other it is insisted there was no delivery. The question as to what acts are necessary to constitute a sufficient delivery to render a deed operative and to pass the title to the land, has been the subject of much discussion in this court. It is held that a delivery is essential to render a deed operative, and it does not take effect until it is delivered. Skinner v. Baker, 79 Ill. 496; Blake v. Fash, 44 id. 302. It may be delivered to the grantee or to his agent. Nor is any particular form or ceremony necessary to constitute a sufficient delivery. It may be by acts or words, or both, or by one without the other; but what is said or done must clearly manifest the intention of the grantor and of the grantee that the deed shall at once become operative, to pass the title to the land conveyed, and that the grantor loses all control over it. Bryan v. Wash, 2 Gilm.. 557. It has been' held that where a deed is executed and delivered to even a stranger, to be delivered to the grantee, without conditions, it will be a sufficient delivery to pass the title. Rawson v. Fox, 65 Ill. 200. But the execution of a deed, and having it placed on record, without the knowledge of the grantee, is not a delivery. Kingsbury v. Burnside, 58 Ill. 310; Krebaum v. Cordell, 63 id. 23. But in such a case the subsequent assent of the grantee will be sufficient. Dale v. Lincoln, 62 Ill. 22.

In Gunnell v. Cockerill, 79 Ill. 79, it was held, that any act which clearly manifests an intention of the grantor and the person to whom it'is delivered that the deed shall presently take effect and become operative, and the grantor loses all control over it, is a sufficient delivery. In all cases the intention of the grantor to part with its possession and control enters largely into the question of delivery. When the facts show that the grantor did not intend to lose control of the deed, and -still continues to have power over the title without the consent of the grantee, there is not such a delivery as the law requires to render it a'deed, and it can not pass title. In this case Thomas Whitson, so far from manifesting such an intention, on the contrary retained the deed, and declined to have it recorded, on the express ground that he would thereby place the title beyond his power to control it. He also expressed the intention, after he had made and acknowledged it, to sell the land if he could do so at $6000, and in pursuance of that intention he did offer to sell it. Instead of his doing or saying anything indicating an intention to deliver the deed, his declarations and acts clearly prove that he did not intend to deliver the deed or place the title in the grantees. Under none of the eases referred to can it be held there was a delivery, but they all hold there' could not, under the facts'of this case, have been a delivery, and there being no delivery the complainants took no title under the deed.

It is, however, insisted by defendants in error that the case of Dale v. Lincoln, supra, is in fact and principle so nearly like this that it requires an affirmance. There is a broad distinction between that and this case. There, the grantor had the deed recorded, and all of his acts showed he intended the title to pass to the grantee; nor did he do or say anything that showed an intention to retain any control over it while he was in the army. Again, it was a delivery in escrow, and he directed that it should take effect ón his death, if he should die in the army. The grantee having sold the land after the death of the grantor in the army, it was by a majority of the court held there was a sufficient delivery to pass the title, in equity, the grantee being his wife. Here, the deed was not recorded, and was not, for the express purpose of retaining the power to control it by the grantor.

The case of Reed v. Douthit, 62 Ill. 348, is referred to as announcing rules that govern this case. In that case a father signed, sealed and acknowledged a deed to his minor son, saying he intended it as a provision for the son. He spoke of the land as his son’s, who rented a portion of the land in the lifetime of the father, and exercised other acts of ownership over the land, and had the deed recorded after the death of his father, and had possession of the deed, and this was held to be evidence of the delivery of the deed, and cast the onus of proving a want of delivery on the parties questioning the grantee’s title. There was no direct proof of a delivery of the deed, but the grantee had possession of it after his father’s death. Those claiming to be tenants in common insisted that he was required to prove a delivery by specific evidence, but it was held that a delivery would be presumed under the circumstances appearing in evidence. But in this case there is evidence that the deed was not delivered, nor was it intended to be delivered. This fact clearly distinguishes this from that ease.

Defendants in error refer to Stinson v. Anderson, 96 Ill. 373. In that case the father made and acknowledged a deed to his three minor children, and left it with the justice of the peace before whom it was acknowledged, requesting him to keep it for the grantor, saying, if he wanted it he would call for it, but if he died that he deliver it to the grantees. The grantor after-wards mortgaged the same land to a third party, and it was held there was not a delivery to pass the title. There, as here, the grantor retained control over the deed, and it was held there was no delivery, and no title passed. In this case it clearly appears that it was the intention of Thomas Whit-son to provide for these minor children by giving them this land, or its proceeds, but he failed to do so by omitting the observance of essential requirements of the law to effectuate the purpose. He seemed to rely on the sense of justice of his children by his first wife, and their supposed respect for his wishes, to fulfill and carry them into effect. He said to Worthen, if the deed remained there unrecorded at his death, it would show his intention as to what he would do, and right would be done. But he misplaced his confidence, as his children by the former marriage have^ failed to' carry out his manifest intention. His intention is clear, but he failed to execute it. Complainants, therefore, took nothing under this deed, but simply by his death inherit in common with the other heirs.

Complainants ask that the proceedings i-n the partition suit be vacated and set aside, because they are void. The record discloses the fact that this land was sold, under the decree in partition, for $7852.95, and the proof shows the money was distributed among the heirs of Thomas Whitson, deceased, and that complainants received their proportionate share of the money. This they have not restored or offered to return to the corporation. It would be manifestly unjust, and highly opposed to every principle of equity, to permit them to set aside the sale and recover the property and also to hold the money. The maxim is, that the party who seeks equity must do equity. Complainants have not done equity, nor have they offered to do so, by returning the money. The principles announced in the cases of Penn v. Hiesey, 19 Ill. 295, and Walker v. Mulvean, 76 Ill. 18, are conclusive on Ibis question. In the former of these eases the guardian -had sold the property of the ward under a license from the court, but the sale was never approved. It appeared the guardian applied a portion of the proceeds of the sale to the purchase of other lands, and accounted for the balance on a final settlement with the ward. Suit was brought to recover the land by the ward, and defendant, who claimed under the guardian’s sale, brought a suit to enjoin the suit at law, and it was held that the injunction was properly granted restraining the prosecution of the suit. In the latter of these cases land of minors was sold under a decree in partition, and after coming of age they received their just proportion of the money with a knowledge of the facts. It was held they could, not assert title to the land, and were prevented from denying the validity of the sale, on any ground, either as to the jurisdiction of the court or for any irregularity of the sale.

The decree of the court below is reversed, and the cause remanded.

Decree reversed.

Mr. Justice" Mulkey having been once consulted in this case, took no part in its decision.


author: Mr. Justice Scott

text:
    Louisa Hartman et al. v. Charles Schultz et al.

      Filed at Mt. Vernon January 18, 1882.

    1. Homestead—as to the character of the exemption. Under the Homestead law of 1873, “all right and title” which the head of the family has in the premises which constitute his homestead, is exempted from forced sale for the payment of his debts, or other purposes. It is not the mere right of occupancy, but it is the lot or ground occupied as a residence that is exempted.
    2. "Where the homestead premises do not exceed in value $1000, there can he no valid sale of the property itself on execution or decree for the payment of debts or other purposes, and this exemption, on the death of the householder, is continued in force as to his widow and children, precisely as held by him.
    3. Same—exempt from administrator’s sale. No sale can he rightfully made of the homestead by the administrator of the deceased householder to pay his debts, when the property does not exceed in value $1000, until the exemption in favor of the widow and minor children has been in some mode terminated; and if such a sale is made, a court of equity has the power to set the same aside at the instance of the homestead occupant. The homestead, when not exceeding $Í000 in value, can not even be sold subject to the homestead right.

      Writ of Error to the Circuit Court of Randolph county; the Hon. William H. Snyder, Judge, presiding.
    Messrs. Gordon & Hood, for the plaintiffs in error:
    The homestead exemption is declared by statute. Laws of 1872, see. 1, p. 478; Rev. Stat. 1874, ch. 52, sec. 1. Continues after death of householder to the widow and children until the majority of the youngest child. Rev. Stat. 1874, ch. 5, sec. 2; Wolf v. Ogden, 66 Ill. 224; Vanzant v. Vanzant, 23 id. 536. Distinction between voluntary conveyance and forced sale. Hartwell v. McDonald, 69 Ill. 293. Sale is void. Haworth v. Davis, 67 Ill. 301; Bliss v. Clark, 39 id. 590. A mortgage on homestead premises not exceeding $1000 in value, without a release of the homestead right, creates no lien. Asher v. Mitchell, 92 Ill. 480.
    Sale of homestead by administrator to pay debts is void in law. Rorer on Judicial Sales, sec. 495.
    Complainants have a right to file original bill, and assert their homestead rights, and have the sale set aside. Mooers et ux. v. Dixon, 35 Ill. 208; Moore et ux. v. Titman, 33 id. 358; Hubbell et al. v. Canaday, 58 id. 425; Allen et al. v. Hawley et ux. 66 id. 164.
    Messrs. Johnson & Horner, for the defendants in error:
    The homestead right that devolves upon the widow and ■minor children is essentially different from that of the owner of the fee during his lifetime. In the wido.w, and especially in the minor children, it is much less in value than in the deceased, and $1000 is'not, and can not be, regarded as the value of such interest. Merritt v. Merritt, 97 Ill. 249; Walters v. The People, 18 id. 199.
    The $1000 simply measures the value of the land to which the right attaches, and this is true both of the householder during life, and of his widow and children after his death. Merritt v. Merritt, 97 Ill. 249: Rev. Stat. 1874, p. 428, sec. 44, and amendment of 1875, Laws of 1875, p. 75.

      The “marked distinction” between forced and voluntary conveyances grows out of the policy of the law to permit the owner to sell his household and re-invest in another. Bev. Stat. 1874, p. 498, sec. 6; Merritt v. Merritt, 97 Ill. 249; Hartwell v. McDonald, 69 id. 297.
    Hence a voluntary conveyance passes the fee subject to the homestead, if not released. McDonald v. Crandall, 43 Ill. 231; Asher v. Mitchell, 92 id. 480, and citations.
    A judgment or decree does not create a lien on the homestead, and a sale under either is therefore void as to the homestead. But the judgments and decrees here referred to are such as, under the statute, would create a lien but for the Homestead act, of which class a decree to sell land to pay debts of deceased is not one. Green v. Marks, 25 Ill. 221.
    The policy of the Homestead-act in regard to the owner of the fee—the ancestor—as outlined above, and as indicated in sec. 6, Bev. Stat. 1874, p. 498, does not apply after death, and the homestead may or may not be set off in the proceeding to sell land to pay debts. (Laws of 1875, p. 75.) And in either case the fee passes. See McCormick v. Kimmel, 4 Bradw. 121.
   Mr. Justice Scott

delivered the opinion of the Court:

The facts in this case appear by admission on demurrer to the bill. Prior to his death, which occurred on the 11th day of April, 1873, William H. Bruggeman was the owner in fee of the lands in controversy, and resided thereon, up to the time of his death, with his family, as his homestead. Conrad Welge was appointed administrator, and under an order of the county court obtained leave to sell the real estate of the intestate to pay debts. The administrator sold the premises to Christian Brockmyer, and made him a deed therefor in the usual form of administrators’ deeds. Afterwards Christian Brockmyer,—his wife joining with him in the execution of the deed,—conveyed the premises by trust deed to Henry Schultz, to secure the payment of a note to Charles Schultz. Default having been made in the payment of the indebtedness secured, the premises were sold by the trustee, under the power contained in the trust deed, and at his sale Charles Schultz became the purchaser. The bill in this case •was exhibited by the widow and minor children of the intestate, to set aside the administrator’s deed to Brockmyer, and all subsequent deeds conveying the property to Charles Schultz, on the ground the premises had been the homestead of the intestate, and since his death the homestead of his widow and minor children, and for that reason the administrator’s sale of the premises to pay debts was void. . It is alleged in the bill, the premises that constituted the homestead of the intestate, and since his death of his widow and minor children, are not worth exceeding $1000, and are so situated a division of the same could be made without injury to the rights of any one interested. Of course the demurrer to the bill admits these allegations to be true, and for the purposes of this decision it will be assumed the premises do not exceed in value $1000, and are susceptible of division without injury to parties interested, should a division become expedient or necessary for any purpose.

The decision of the case involves a construction of the Homestead law in some of its provisions, and presents a question not heretofore considered by this court.in the exact form presented by this record.

Section 1 of the Homestead act, in force July 1, 1873, declares, “that every householder having a family, shall be entitled to an estate of homestead, to the extent in value of $1000, in the farm or lot of land and buildings thereon, owned or rightly possessed, by lease or otherwise, and occupied by him or her as a residence; and such homestead, and all right and title therein, shall be exempt from attachment, judgment, levy or execution sale for the payment of his debts or other purposes, and from the laws of conveyance, descent and devise, ” except as in the act thereafter provided. It is difficult to conceive how the exemption of the homestead from involuntary sale, under judicial process, could be more clearly expressed than it is in this section of the statute. It must be understood to mean what is so plainly expressed,— that is, that “all right and title” which the head of the family has» in the premises which constitute his homestead, shall be exempt from forced sale for the payment of his debts or other purposes. ' This section of the Homestead act received a construction in Hartwell v. McDonald, 69 Ill. 293, where it is said: “It is not the mere homestead right of occupancy which is exempted from levy and forced sale, but it is the lot of ground occupied as a residence. ” The context is in harmony with this view, and affords evidence it is the land itself which, constitutes the homestead, and not the mere right of occupancy, that is exempt from levy and forced sale. Section 9 absolutely forbids any sale of the homestead on execution or decree, unless a sum greater than $1000 is bid therefor. Should no greater sum be bid, the decree may be modified or the execution released as for want of property. It is not necessary the party having a homestead in premises should own the same in fee simple, to entitle him to the exemption provided by the statute. It is sufficient if he is rightly possessed of the premises, by lease or otherwise. It is plain, therefore, where the homestead premises do not exceed in value $1000 there can be no valid sale of the property itself, on execution or decree, or for the payment of debts or other purposes. This court has never recognized in any of its previous decisions the doctrine sometimes insisted upon, that there can be a sale of the property, subject to the right of occupancy by the party entitled to a homestead. Even a sale of the premises, where the homestead exceeds in value $1000, is invalid unless the provisions of the statute in regard to assigning homestead, and for a sale where the premises are not susceptible of division, have been substantially complied with.

Keeping in view this definition of what is exempt from levy and forced sale, in favor of the householder having a homestead on which he resides with his family, a clearer under- • standing will be more readily obtained of the second section of the Homestead act, which has more immediate application to the case in hand. That section provides: “Such exemption shall continue after the death of such householder for the benefit of the husband or wife surviving, so long as he or she continues to occupy such homestead, and of the children until the youngest child becomes twenty-one years of age. ” What exemption is it that is continued in favor of the husband or wife surviving, or of the children? But one answer can be given. It is the exemption from levy and forced sale, for the payment of debts or other purposes, of the homestead, where the property does not exceed in value $1000, that existed in favor of the householder himself. The language employed will bear no other construction, consistently with the common understanding of the words used to express the legislative intention. Sanction is given to this reading of this section of the Homestead act, by the reasoning in Wolf v. Ogden, 66 Ill. 224, Hartwell v. McDonald, supra, and in Bursen v. Goodspeed, 60 Ill. 277. Although the exact question was not involved in either case, it seems to have been assumed, or taken for granted, there could be no sale of the homestead property by the administrator of the householder, for the payment of the debts of the estate, or for other purposes, where it did not exceed in value $1000, until the exemption continued in favor of the widow and minor children was terminated in some way known to the law. In Wolf v. Ogden, in respect to the lien of the creditors upon the estate of the intestate, it was said, if the premises were worth less than $1000 it would not attach until the termination of the homestead interest. Cogent reasons suggest' themselves in favor of this construction. Should a sale he made before the termination of the homestead estate, it might subject the heir entitled to the remainder to most ruinous sacrifice of the property. . Examples readily occur. The widow or husband in whose favor the homestead is continued, being young, a purchaser buying the property at administrator’s sale would consider the probable duration of the estate in such party. The longer it would probably endure, the less would be expected to be bid. Should the estate of homestead be suddenly terminated, by death or abandonment, the purchaser would obtain a perfect title to the property, subject to no burden, at vastly less than its real value, to the great prejudice of the creditors of the estate of the householder, or the parties entitled to the remainder. It was surely never intended property should be thus, needlessly sacrificed, and any construction of the Homestead act that would lead to such a result would be mischievous in the highest degree. Plainly, no sale can be rightfully made of the homestead, by the administrator, to pay debts, where the property does not exceed in value $1000, until the exemption in favor of the widow and minor children has in some mode terminated. In Kingman v. Higgins, 100 Ill. 319, analogous questions are discussed, and that casé is an authority exactly in point, sustaining the views here expressed. Where the homestead exceeds $1000 in value, the statute directs how a sale of the property may be made. Hotchkiss v. Brooks, 93 Ill. 392, and Merritt v. Merritt, 97 id. 249, discuss the value of the homestead of the widow and minor children where the property exceeds $1000 in value, and is sold under judicial process, and hence illustrate no pdiase of the case under consideration.

In Conklin v. Foster, 57 Ill. 104, this court entertained a bill to set aside a sale of homestead premises made in viola•tion of the provisions, of the statute, at the instance of the party entitled to the occupancy, and in other .eases the enjoining of the making of judicial sales of the homestead has been sustained. No doubt is entertained as to the power of a court of equity to afford the relief asked for by the homestead occupant in this case.

The decree will be reversed, and the cause remanded for further proceedings conforming to this opinion.

Decree reversed.


author: Mr. Justice Scholfield

text:
    James Galbraith v. Joseph Plasters.

      Filed at Mt. Vernon January 18, 1882.

    1. Appeal—whether freeholdis involved. No appeal lies directly from the circuit court to this court, from an order dismissing a bill seeking to set aside a sale of land on execution, on the ground of its being the complainant’s homestead, as no freehold is involved in the suit.
    2. It is not enough that the freehold be affected, it must be involved,— that is, directly the subject of the litigation,—to give the Supreme Court jurisdiction by appeal directly from the circuit court.
    Appeal from the Circuit Court of Franklin county; the Hon. D. M. Browning, Judge, presiding.
    Messrs. Youngblood & Moyers, for the appellant.
    Mr. W. H. Williams, for the appellee.
   Mr. Justice Scholfield

delivered the opinion of the Court:

Certain real estate of the appellant was sold by the sheriff of Franklin county, by virtue of an execution, and bid in by appellee, to whom the sheriff gave a certificate of purchase, showing that if the property should not be redeemed, according to law, within fifteen months from the day of sale, he would be entitled to a deed. On the 7th day of April, 1881 (less than six months from the day of sale), the present bill was filed in the circuit court of Franklin county, to set aside the sale, on the ground that the property was exempt from sale by virtue of the provisions of the law relating to the “Exemption of Homesteads.” The circuit court, on hearing, dismissed the bill for want of equity, and the present appeal is prosecuted from that decree directly to this court.

The appeal must be dismissed. It is very clear no freehold is involved in the present litigation, and there is no other ground, apparent to us, upon which it could be pretended the right of appeal, directly from the circuit court to this court, exists. Until appellee obtains a deed, he can not claim the freehold, and until the expiration of the time of redemption, appellant can, at any moment, remove the lien of appellee’s claim by simply paying the redemption money. Should appellant get all he prays by his bill, it would not be a freehold, but simply the removal of a lien which he, by his negligence, might suffer to ripen, in process of time, into a freehold; and by having the prayer of his bill refused he loses no freehold, but simply fails to have this lien removed. See Gage v. Busse, 94 Ill. 590; Hutchinson v. Howe, 100 id. 11. It is not enough that the freehold be affected, it must be involved,—that is, directly the subject of the litigation,— to give us jurisdiction by appeal from the circuit court.

The appeal will be dismissed, with leave to appellant to withdraw his record, abstracts and briefs, if he so desires.

Appeal dismissed.


author: Mr. Justice Sheldon

text:
    The Wiggins Ferry Company v. The People ex rel. Herman G. Weber, Collector, etc.

      Filed at Mt. Vernon January 18, 1882.

    1. Bes judicata—in Appellate Court as to errors not assigned. An affirmance of a judgment in the Appellate Court on appeal or writ of error, where the appellee or defendant in error files no cross-errors, is not conclusive on the latter, and he may, on writ of error from this court, assign errors, and have the original judgment reversed.
    2. Practice—whether an exception is necessary. Where an error appears in the record proper, as made up by the clerk, no exception to the judgment of the court is necessary; but if the ruling is upon matters which can only appear in the record by a bill of exceptions, it must be shown that the erroneous ruling was excepted to at the time.
    3. So where the delinquent list filed by a collector on application for judgment for taxes, shows that a greater rate of city taxes has been levied against the property than is allowed by the city charter, no exception is necessary to the judgment of the county court for such excessive rate of taxes. It is-sufficient that such defence was made in the written objections. The delinquent list is in the nature of a pleading, serving the office of a declaration in the case, stating what is the cause of action.
    Writ of Error to the County Court of St. Clair county; the Hon. Frederick H. Pieper, Judge, presiding.
    Mr. H. P. Buxton, for the plaintiff in error:
    This case is submitted on the authority of Weber, Collector, v. Traubel, 95 Ill. 427, in which this court held the city of East St. Louis is limited by its charter to a levy of one percent on the valuation of property. No bill of exceptions was necessary, as the error complained of appears in the delinquent list and the objections filed by plaintiff in error. The rate of the city tax appears in such list.
    Mr. J. M. Freels, for the defendant' in error:
    On writ of error to the Appellate Court, brought by the defendant, this judgment was affirmed. Plaintiff in error in that court failed to assign cross-errors, and is concluded by the judgment of the Appellate Court. The question is res judicata, and this defendant in error has pleaded. Graceland Cemetery Co. v. People, 92 Ill. 622; 6 Wait’s Actions and Defences, 769, 770.
    When a former adjudication is pleaded as an estoppel, it is conclusive as a bar. Abbott on Trial and Evidence, 824.
    This judgment being affirmed in the Appellate Court, there was no remanding order, and in such case none is required. Statutes of 1878, p. 982, sec. 83; Kern v. Strasberger, 71 Ill. 303; Carmichael v. Vandebur, 51 Iowa, 226.
    A judgment of affirmance is conclusive while it remains unreversed. Voorhees v. Bank of United States, 10 Pet. 449. And this final judgment in the Appellate Court is not open to further proceedings in the county court. Abrams v. Lee) 14 Ill. 167.
    That plaintiff in error, by failing to file cross-errors in the Appellate Court, will not be allowed to assign error in this court on. appeal or error, see Diversy v. Johnson, 93 Ill. 548; Johnson v. Maples, 49 id. 105; People ex rel. v. Brislin, 80 id. 424; Elliott v. Mitchell, 28 Texas, 105; White v. Allen, 3 Ind. 561; Nutter v. Junction, 13 id. 479; McRae v. Bank of Columbus, 1 Ala. 578.
    As to the conclusive effect of a judgment until reversed, as to all matters that might have been decided, see 6 Wait’s Actions and Defences, 786; Cromwell v. County of Sal, 94 U. S. 352; Perry et al. v. McLindon, 62 Ga. 598; Green v. Weaver, 63 id. 302; Sheldon et al. v. Patterson, 55 Ill. 510; Mabry v. Henry, 83 N. C. 298; Rogers v. Higgins et al. 57 Ill. 247; Freeman on Judgments, sec. 323.
    The record in this case nowhere shows an exception taken by the plaintiff in error to the judgment of the county court, and without which it can assign no error to said judgment in this court. Parsons v. Evans, 17 Ill. 238; The David Force Manf, Co. v. Horton, 74 id. 310; Pottle v. McWarter,
      13 id. 455; Case v. Fogg, 46 Mo. 44; Jameson v. Jefferson County, 45 id. 332; Swearingen v. Newman, Admr. 4 id. 456; , St.Louis v. Milligan, 18 id. 181; London v. King, 22 id. . 337; Smith v. Phillips, 33 id. 43.
    A party, to avail himself of an exception to a decision of the court, must except at the time the decision is made, and the bill must affirmatively show that the exception was taken _ at that time, or it will not be considered. Burkett v. Bond, 12 Ill. 87; Sullivan v. Dollins, 13 id. 85; Leigh v. Hodges, 3 Scam. 17; Charlesworth v. Williams, 16 id. 338; Harbaugh v. Monmouth, 74 id. 370; Duncan v. Pope, 47 Ga. 445.
    An error in the ruling of the court is waived by a failure to except thereto. York v. Clements, 44 Iowa, 95; McMillan v. Gilt Edge Cheese Factory, 23 Mich. 545; Lynch v. Jennings, 43 Ind. 276.
   Mr. Justice Sheldon

delivered the opinion of the Court:

The plea here filed in this court of a former adjudication in the Appellate Court, is the same as the first plea in the case of Page & Buckland v. The People, 99 Ill. 418, and for the reasons there given the demurrer to the plea is sustained.

The only error assigned upon the record is, that the county court erred in rendering judgment for more than ten mills on the dollar of the equalized valuation.

In Weber v. Traubel, 95 Ill. 428, we held that such a judgment, as applied to taxation in East St. Louis, was erroneous,—that that city was limited by its charter to a levy of one per cent on the valuation qf property.

It is objected that this question is not properly before us, because there was no exception taken in the county court to the judgment of that court, citing Parsons v. Evans, 17 Ill. 238, and other eases in this court, as so holding. But the rule is, where an error appears in the record proper, as made up by the clerk, no exception to the judgment of the court is necessary. Randolph v. Emerick, 13 Ill. 344.

The cases cited were where the ruling was upon matters which did not appear in the record except as they were introduced into it by a bill of exceptions, which was necessary for that purpose; and in such cases it must appear that the erroneous ruling was excepted to at the time it was made. In the present case, the matter upon which the judgment was pronounced appears in the record, without the necessity of its being brought into the record by a bill of exceptions. The delinquent list of lands filed by the collector, upon which he asked judgment, showed the valuation of the property and the amount of the city tax. From this it appears that the rate per cent of taxation levied by the city is twenty-two mills on the dollar. This delinquent list is in the nature of a pleading in the case, serving the office of the declaration in a case, stating what is the cause of action.

An objection in writing was filed by defendant that the per centum of taxation assessed against the property for city purposes was greater than is allowed by the charter of the city. The record of the judgment of the county court states in terms that judgment is refused for eight twenty-seconds, and given for fourteen twenty-seconds of the city taxes. We think it appears from the record, outside of the bill.of exceptions, that the city tax levied was twenty-two mills on the dollar of the valuation, and hence that there was no necessity of excepting to the judgment in order to assign error upon it.

The judgment being for fourteen mills on the dollar, which is four mins in excess of the limitation of the city charter, is erroneous, and must be reversed, and the cause remanded.

Judgment reversed.


text:
    Henry Winter v. Napoleon B. Thistlewood.

      Filed at Mt. Vernon January 18, 1882.

    Contested election—of mayor of city—county court has jurisdiction. The county court has jurisdiction to hear and determine contested elections of mayors of cities organized under the general law relating to cities and ' villages. The common council has no such jurisdiction, possessing no judicial powers.
    Appeal from the County Court of Alexander county; the Hon. Reuben S. Yocum, Judge, presiding.
    Messrs. Mulkey & Leek, for the appellant.
    Messrs. Green & Gilbert, for the appellee.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was a proceeding, commenced by a statement in writing, in the form of a bill in chancery, filed in the county court of Alexander county, to contest an election to the office of mayor of the city of Cairo. That court sustained a demurrer to the petition on the ground of a want of jurisdiction, and that ruling presents the- only question upon which we are required to pass.

The petition alleges that the city of Cairo is incorporated under the general law in relation to the incorporation of cities and villages, and this is, of course, admitted by the demurrer. The 49th section (sec. 2, art. 4,) of that law enacts, that “at the general election held in 1877, and biennially thereafter, a mayor, a city clerk, a city attorney, and a city treasurer shall be elected in each city.” * * * And the 57th section (sec. 10, art. 4) enacts, that “the manner of conducting and voting at elections to be held under this act, and contesting the same, the keeping of poll lists and canvassing the votes, shall he the same, as nearly as may be, as in the ease of the election of county officers under the general laws of this State. ” * * * What, then, is the mode provided by general law for contesting elections of county officers ?

By section 97, chap. 46, Bev. Stat. 1874, entitled “Elections, ” the circuit court is empowered “to hear and determine contests of the election of. the judges of the county courts of their counties, and in regard to the removal of county seats, and in regard to any other subject which may by law be submitted to the vote of the people of the county. ” And by section 98 of the same chapter, “the county court shall hear and determine contests of election of all other county, township and precinct officers, and all other officers for the contesting of whose election no provision is made. ” And section 113 of the same chapter provides,-that “the person desiring to contest such election shall, within thirty days after the person whose election is contested is declared elected, file with the clerk of the proper court a statement, in writing, setting forth the points on which he will contest the election, which statement shall be verified by affidavit in the same manner as bills in chancery may be verified. ”

It would, therefore, seem beyond controversy,—First, that the election of mayor of the city of Cairo was held under' the general law relating to the incorporation of cities, villages, etc.; second, that being so held, the manner of “contesting the same” “shall be the same, as nearly as may be, as in the case'of the election of county officers under the general laws of this State; ” third, that since the only county office to be contested in the circuit court is that of- county judge, and the county court “shall hear and determine contests of election of all other county officers, ” etc., the contest is properly made in the county court; and fourth, that the statement in writing was sufficient to give that court jurisdiction, unless some provision can be found in the statute showing, clearly, a contrary intention.

Such a provision, it is contended, is found in section 6, art. 3, of the general law providing for the incorporation of cities,' villages, etc., which declares that “the city council shall be judge of the election and qualification of its own members.” The argument is, section 1 of that article, provides that the city council shall consist of the mayor and aldermen, and the right to judge of the election and qualification of its own members is not restricted, but is general, and includes all,—the mayor as well as the aldermen. Suppose this be conceded, to what extent will it affect the present question ?

The right conferred upon the council is only to judge of the election and qualification of its own members,—simply to determine who shall be a part of it and participate in its deliberations. No judicial powers are conferred upon it, and " when it has denied one, claiming to be a member, the privilege of participating in its proceedings, it has done all that there is the slightest pretence it has any authority for doing.

But the mayor is the chief executive officer of the city, and, independently of the council, in that capacity may exercise, within the city limits, the powers conferred upon sheriffs to suppress disorder and keep the peace. (Section 8, art. 2.) He may release any person imprisoned for a violation of any city ordinance. (Section 9, art. 2.) He shall take care that the laws and ordinances are faithfully executed. (Section 10, art. 2.) He shall have power, at all times, to examine and inspect the books, records and papers of an agent, employé or officer of the city. (Section 11, art. 2.) He shall annually, and from time to time, give the council Information relative to the affairs of the city, etc. (Section 12, art. 2.) He shall have power, when necessary, to call on every male inhabitant of the city over the age of eighteen years to aid in enforcing the laws and ordinances, and to call out the militia to aid in suppressing riots, etc. (Section 13, art. 2.) The mayor, or any three aldermen, may call 'special meetings of the city council. (Section 17, art. 3.) And he may exercise a veto power in regard to ordinances. (Section 18, art. 3.) In none of these respects does the city council have any control over him, and in all of them he acts entirely independently of the common council, and without the slightest reference to the question of his membership in that board. Indeed, except in case of a tie in the votes of the aldermen, when he is required to give the casting vote, his duties as a member of the council are more formal than substantial, being limited to merely presiding. It is to be borne in mind authority is not conferred upon the common council to be the judge of the election and qualification of the mayor, as it is to be presumed would have been if such had been intended, but simply of its own members.

We are clearly of opinion whatever power the common council may exercise in regard to the election and qualification of a mayor, as affecting his membership of the council, it has no power to go beyond the letter of the statute and determine a contest between two rival candidates for the office of mayor. Even if it be conceded, which we do not," that the council may lawfully decline to allow the mayor to preside over its deliberations, and give the casting vote in case of a tie, on the ground that he is not elected and qualified, its power extends no further. In such case the power is given to the body to enable it to protect and purify itself, but neither principle nor analogy extends it any further.

Incidentally, we have heretofore recognized authority in the county court to hear and determine contests of this character. Brush v. Lemma, 77 Ill.496; Young v. Adam, 74 id. 480; Linegar v. Rittenhouse, 94 id. 208. In the last named case w7e held that the council was the sole tribunal for determining a contest for the office of alderman, solely becatise such we construed to be the reading of the statute. But the duties of that office are purely legislative. The alderman can act only as an integral part of the council. And it was there said, that under the 57th section (section 10, art. 4,) of the general law for the incorporation of cities and villages the county court has jurisdiction to hear and determine cases of contested elections for the office of mayor.

The decree of the county court is, reversed, and the cause remanded, with directions to that court to overrule the demurrer, and allow answer to he filed.

Decree reversed.


author: Mr. Chief Justice Craig

text:
    Isabelle V. Simmons v. John W. Stum.

      Filed at Mt. Vernon January 18, 1882.

    1. Becobding act—of the rule of priority. A mortgage on land was not recorded until after a conveyance by the mortgagor was made to a person having notice of the mortgage, which deed was recorded, and not until after a conveyance was made by such grantee to another who had no notice of the existence of the mortgage, the mortgage being recorded a few days after the malting of the second conveyance. On bill to foreclose the mortgage, such last grantee failed to produce his deed, or show when it was recorded: Held, that as the evidence did not show such second conveyance was recorded prior to the recording of the mortgage, it could not take precedence over the mortgage.
    2. Under our recording laws, the instrument first on record takes priority, without regard to the time of its execution. So, a subsequent deed will not take effect to cut off a prior mortgage, unless it is first put upon record.
    Appeal from the Circuit Court of White county; the Hon. Thomas S. Casey, Judge, presiding.
    Mr. Thomas Gr. Parker, and Mr. S. F. Crews, for the appellant.
    Mr. P. A. Pearge, for the appellee.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

This was a bill to foreclose a -mortgage, executed on the 22d day of September, 1874, by Isaiah McHenry, to the complainant in the bill, John W. Stum, to secure the payment of seven promissory notes, of $100 each, due, respectively, on the 1st day of March, 1876, 1877, 1878,1879,1880, 1881, and 1882, which were given for the purchase money of the mortgaged premises, consisting of 80 acres of land in White county. The bill was brought to foreclose the mortgage for the non-payment of the note due March 1, 1879, the notes which became due. before that time having been paid.

It is alleged in the bill that the mortgage was recorded on the 15th day of March, 1879; that on the 7th day of November, 1878, Isaiah McHenry conveyed the mortgaged premises to William E. Cochran and Samuel Strong; that the grantees were informed, at the time of the conveyance, of the existence of complainant’s mortgage, and that they took the deed subject to the mortgage. It is also alleged in the bill, that on the 13th day of March, 1879, Cochran and Strong conveyed the premises to Isabelle Simmons; that the conveyance was made without consideration, and for the purpose of defrauding complainant.

Cochran and Strong, and Isabelle Simmons, and the mortgagor, Isaiah McHenry, were made parties defendant to the bill. The defendants, Cochran, Strong and Simmons, put in an answer to the bill. A replication was filed, and a hearing had on the evidence,- which resulted in a decree in favor of complainant, as prayed for in the bill, and the defendant Isabelle Simmons appealed.

There is no controversy in regard to the fact that Cochran and Strong had notice of the existence of complainant’s mortgage at the time they obtained a deed to the mortgaged premises. The evidence upon this point is clear and undisputed. But it is claimed that Isabelle Simmons purchased the premises in good faith, without notice, and that she is entitled to hold the premises as an innocent purchaser. The circumstances under which Isabelle Simmons obtained a deed for the land are calculated to create a strong suspicion that she knew, or had good reason to know, of the existence of complainant’s mortgage, although there is no direct proof in the record that she had notice of the mortgage, or notice of such facts as might put a prudent person on inquiry.

■ But we do not find it necessary to determine whether appellant, at the time of the alleged purchase of the premises, knew of the existence of the mortgage or not, as the decree will have to be affirmed on another ground. It is alleged in the bill, and shown by the evidence, that the deed to Isabelle Simmons was executed on the 13th day of March, 1879. There is also proof in the record that the deed was recorded, but the, deed was not introduced in evidence, and the record contains no evidence, in regard to the date, that the instrument was recorded. Conceding, then, that appellant purchased the mortgaged premises without notice of the existence of complainant’s mortgage, if she failed to record her deed until after March 15, 1879, the date of the record of the mortgage, the deed would stand subordinate to the prior lien of the mortgage. Under our recording laws, the instrument first on record takes priority. Brookfield v. Goodrich, 32 Ill. 363.

The statute declares: “All deeds, mortgages and other instruments of writing which are authorized to be recorded, shall take effect, and be in force, from and after the time of filing the same for record, and not before, as to all creditors and subsequent purchasers without notice; and all such deeds and title papers shall be adjudged void as to all such creditors and subsequent .purchasers without notice, until the same shall be filed for record.” Rev. Stat. 1874, p. 278. The deed made to appellant could not take effect so as to cut off the mortgage unless it was first on record, and this fact appellant was bound to establish by the evidence. It may be, that under the allegations of the bill appellant could not be required to prove the date of her purchase as that was alleged, but the bill contained no allegation in regard to the date of the record of the deed, and that was a vital fact, which appellant was bound to establish.

As the evidence fails to show that the deed was recorded prior to the mortgage, the decree giving the mortgage a prior lien must be affirmed.

Decree affirmed.