text:
    James G. Smith et al. v. Elizabeth Hutchinson et al.

      Filed, at Ottawa January 23, 1884.

    1. Burnt Records act—petitioners not bound, to show invalidity of defendant’s claim of title. In a proceeding to confirm title under the Burnt Records act, the petitioner is not required to show that the defendant’s title is invalid. He is only required to establish the validity of his own, leaving the defendant to show his title by competent evidence, if he desires. If the defendant claims title under a tax deed, he must show a valid judgment, precept and affidavit of the notice required by law, before taking out a deed.
    2. Same—tax titles set aside—must be on equitable terms. On petition to confirm and to quiet the title to land under the Burnt Records act, where the defendant sets up a tax title to the premises, if the court sets aside the tax title it should be upon equitable terms, and the petitioner should be required to pay to the holder of such tax title all moneys paid out by him on his purchase and for subsequent taxes, with interest thereo'n. It is error to decree such tax title void except upon such equitable terms.
    3. Tax title—preliminary evidence to admit deed. It devolves upon a party claiming title to land under a tax sale and deed, to show a valid judgment against the land, and a precept under which it was sold, and an affidavit, such as the statute requires, before a deed shall issue. These are indispensable to the title under such a deed.
    4. Administbator—no power to incumber real estate. An administrator of an estate has no power, under the statute, to give a mortgage upon the real estate of his intestate, and if he gives one with a power of sale it will not bind the estate, and a sale under the power will pass no title.
    5. Same—estoppel, where the administrator assuming to make the mortgage is also part owner. But where the administrator who thus attempts to incumber the lands of the estate by mortgage, is also a part owner in the lands, he will be estopped to dispute the validity of the mortgage so far as concerns his own interest therein.
    6. Will—power of executors to mortgage real estate. Power in executors by a will to lease real estate, or make a sale thereof for the purpose of making a division of the proceeds among the devisees, will not authorize them to incumber the real estate by mortgage or deed of trust, for money borrowed.
    Appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    Mr. James A. Burhaus, and Mr. Augustus N. Gage, for the app ell ants:
    By foreclosure proceedings appellants became invested with the patent title, and unless the bill disclosed sufficient facts to show such title void, or alleged facts showing it was obtained by fraud, and the evidence sustains the allegation, the bill can not be maintained. That the executors described themselves as administrators in the trust deed can make no difference. Sheldon v. Smith, 97 Mass. 34.
    It certainly is good against the heirs who executed the same, as to their interest. Washburn on Real Prop. 488; Sumner v. Williams, 8 Mass. 162; Godley v. Taylor, 3 Dev. (N. C.) L. 178.

      To impeach the tax titles it was necessary to show in the bill some irregularities. Failing to do this, the court erred in finding them void. 1 Daniell’s Chancery Practice, 377; Story’s Eq. Pl. sec. 257; Helm v. Cantrill, 59 Ill. 524; Hyde v. Heath, 75 Ill. 381; Gage v. McLaughlin, 101 id. 155; Gage v. Reid, 104 id. 509.
    Unless the owner is in possession, or the property is taxed in his name, he is not required to be served with notice of a tax purchase. Rev. Stat. 1874, chap. 120, sec. 216; Garrick v. Chamberlain, 97 Ill. 620; Gage v. Bailey, 102 id. 11; Frew v. Taylor, 106 id. 159.
    A decree setting aside a tax title as a cloud on title, is erroneous, if it fails to require the repayment of the taxes. Reed v. Taylor, 56 Ill. 288; Gage v. Busse, 102 id. 592.
    Mr. John Y. LeMovne, and Mr. Jesse B. Baeton, for the appellees:
    When petition is filed under the Burnt Records act to establish title, and no cross-bill is filed, the only duty of the court is to decree which is the better title. Robinson v. Ferguson, 78 Ill. 538.
    Administrators have no power to give a trust deed, and it is void even if the heirs or estate have'the benefit of the money. Black v. Dressell, 20 Kan. 153; Edwards v. Taliafero, 34 Mich. 13; Merritt v. Simpson, 41 Ill. 391; Wetherel v. Harris, 67 Ind. 452.
    The tax titles were void. The affidavits 'show that no search was made for the owners of the property to sei've them with notice. If the owner resided in the county, and' could be found on reasonable search, notice should be served on him. Wilson v. McKenna, 52 Ill. 43; Dalton v. Lucas, 63 id. 337.
    A tax sale notice to the owner or occupant is essential, and notice that the time for redemption would expire on the wrong day was fatally defective. Gage v. Bailey, 100 Ill. 530; Wilson v. McKenna, 52 Ill. 43; Gilmore v. Sapp, 100 Ill. 297. Hence the court properly held that this title was inferior to appellees’ title.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a petition brought by appellees, in the Superior Court of Cook county, under the Burnt Records act, to establish and confirm their title to let 22, block 10, Walcott’s addition to Chicago. Appellants were made defendants to the petition. Appellees claim that William Dixon originally owned the property; that he derived title through mesne conveyances from the United States; that in 1867 Dixon died testate, having devised the property to appellees, who were his children, to be divided equally among them. Appellants claim title to the land through four different sources : First, under a mortgage executed by two of appellees, Joseph H. and John S. Dixon, administrators of the estate of William Dixonj second, under a deed from Mina Haase, who claimed .under a tax sale; third, under a deed, dated February 18, 1876, made by Herman Lieb, county clerk, to Henry H. Gage; fourth, under a deed, dated April 18, 1879, from E. F. Klokke, county clerk, to Henry H. Gage. On the hearing the court found that William Dixon was seized of the premises at the time of his death, July 25, 1867; that the premises were devised to appellees, his. ten children; that petitioners remained in possession of the premises until 1874; that Joseph H. and John S. Dixon were executors under the will of William Dixon, deceased; that they made a deed of trust on the premises to William Yocke, in which they were described as administrators of the estate of William Dixon; that the premises were sold under this deed of trust, purchased by Gage, who subsequently conveyed to appellants. The court also found the three tax titles claimed by appellants to be void; that appellees, except Joseph and .John Dixon, are each seized in fee of an undivided one-tentli of the premises. The court decreed that the interest of Joseph and John Dixon should be held liable for the amount remaining due on the -mortgage they had executed, but that the tax titles were void, and no relief was granted under them.

Appellants, from their argument, seem to believe that it was the duty of appellees to prove that appellants’ title,was invalid. This is a misapprehension of the statute under which the proceedings were instituted. The petitioners were only required to establish the validity of their own title. The statute provided that they should make all persons owning or claiming any estate in fee in the premises, and all persons in possession, and all persons to whom the lands had been conveyed and the deeds placed on record since the destruction of the record, defendants. But when such persons were made defendants, and were served with process, it became their duty to establish, by competent testimony, whatever title they had to the premises, if they desired to rely upon such title. Section 16 of the statute requires the petitioner to state in his petition the names of all persons owning or claiming title, and provides that they shall be made defendants. Section 18 provides that any person interested may oppose such petition, and file demurrer, answer or cross-petition. Here is a complete mode provided by which the conflicting titles on the land in question may be investigated, and the true title established; but where a person is made a defendant in a petition of this character, it devolves upon him to establish the title he may claim to the property. Was this done by appellants ?

The answer of appellant James G-. Smith denies that appellees have any title to said lot, but says that he owns the same, and has paid therefor, including taxes and other necessary outlays, more than $3000 in cash; that he obtained his title as follows: First, by mesne conveyances from the United States to William Vocke, trustee, by trustee’s deed, dated December 10, 1879, from said Vocke to Asahel Gage, and by deed of said Gage to this defendant; second, by a tax deed, dated September 8, 1868, from the sheriff of Cook county to William H. Haase, and thence by sundry mesne conveyances to this defendant; third, by a tax deed, dated February 18, 1876, from Herman Lieb, county clerk of Cook county, to Henry H. Gage, on a tax sale of said lot November 12,1873, and thence by deed from said Gage to Lettie B. Smith, and by deed from said Lettie B. Smith to this defendant; fourth, by a tax deed, dated April 18, 1879, from E. F. C. Klokke, county clerk of Cook county, to Henry H. Gage, and thence by mesne conveyances to said defendant.

Under the answer it will be observed that appellant claimed, first, the same title held by the petitioners, and also claimed under three distinct tax titles, but the proof does not seem to sustain the answer. We will consider it first as to the tax titles.

A tax deed was introduced in evidence from the sheriff of Cook county to Haase, as set up in the answer, and also a tax deed from the clerk to Gage, made in 1876, and another in 1879, but no judgment or precept in support of either of these deeds was offered in evidence. It devolved upon appellant to show a judgment against the land, and a precept under which it was sold, and an affidavit, such as the statute requires, before a deed shall issue. If appellant desired to establish a tax title, and rely upon it, a valid judgment, precept and affidavit were indispensable, and as they were not proven, the court could not hold that appellant owned the title to the property under the tax sales. But the court, on the hearing, not only found against the validity of the tax titles, but rendered a decree vacating and setting them aside, without requiring the money for which the property was sold for taxes, or subsequent taxes, to be refunded. This part of the decree, in our judgment, was erroneous. The tax titles should only have been vacated and set aside on equitable terms. It was the duty of the petitioners to pay the taxes assessed on the land. This duty they neglected, and allowed the land to be sold for the payment of the taxes, and when they come into a court of chancery and attempt to set aside the tax sales, equity requires that they should refund to the holder of the tax title all moneys paid out, with interest thereon, before such relief should be granted. <

In addition to the tax titles appellants claim under a mortgage, with power of sale, dated November 28, 1874, executed by Joseph H. and John S. Dixon, as administrators of the estate of William Dixon, deceased, to William Yocke, as trustee, to secure a certain note made by Joseph H. and John S. Dixon, as administrators, as aforesaid, payable to the order' of Luther Nichols. Under this mortgage, Yocke, the trustee, sold the premises to Gage, and he conveyed to appellants. It will be observed that the two Dixons executed the mortgage as administrators of the estate of William Dixon, deceased, and if they had ho power, as such, to mortgage the land, no title passed under the sale made by the trustee. The statute has not conferred authority on an administrator to mortgage the lands belonging to an estate of which he is administrator, and in the absence of such authority a mortgage made by an administrator would be void. An administrator may obtain a decree to sell the lands belonging to an estate to pay debts, but as a general rule this is all the power or control that he can exercise over the lands of the estate.

But it is said that Joseph H. and John S. Dixon were executors under the will of William Dixon, deceased, and as such had power to execute the mortgage. Neither the will, nor a copy of the will, was produced on the trial, and from the evidence of the contents of the will it does not appear that the executors were authorized to mortgage the premises. They had power to lease the property; and for the purpose of making a division of the proceeds among the devisees they were authorized to sell, but we find no evidence which authorized the executors to borrow money, and secure the payment by a trust deed or mortgage. Indeed, there was no necessity for the executors, as such, to borrow money and incumber the property. The estate they represented was not indebted, and the deed of trust in question was not given for money to be used in the discharge of any claim against the estate: but on the other hand, the money was procured to pay an assessment against the property, which was a tax due from the owners of the property. Under such circumstances, while John S. and Joseph H. Dixon might execute a deed of trust, which would incumber their own interest in the property, they could not, as executors, bind the interest of the, other owners of the premises.

The decree of the Superior Court vacating the sale under the mortgage was, in our judgment, correct. And the court also held that J. H. Dixon and John S. Dixon were, so far as they were personally interested in the land, estopped from disputing the validity of the mortgage they had executed, and rendered a decree requiring them to pay the amount due thereon, within a short day named, upon payment of which appellants released whatever claim they had acquired in the premises under the mortgage. We perceive no error in this part of the decree; but as the court failed to require the appellees to refund the amount for which the property had been sold for taxes, and interest thereon, and subsequent taxes, and interest thereon, the decree will be* reversed and the cause remanded.

Decree reversed.


source: Caselaw Access Project

author: Mr. Justice Walkeb

license: Public Domain

text:
    William Scheerer v. Herman Scheerer.

      Filed at Ottawa January 23, 1884.

    1. Payment—what constitutes—accepting promissory note in the distribution of an estate. A person, on the purchase of a lot, signed his father’s name to the notes given to his wife’s father for the money to pay for the same, and had the lot conveyed to his father, and afterward, in the settlement of his wife’s father’s estate, these notes were taken by such person and his wife as a part of her distributive share: Held, that this was a payment of the notes by the son and his wife.
    2. Witness—competency—one heir against another. On petition for the partition of land by one heir against his two brothers, co-heirs, where one defendant, by his answer and cross-bill, claims the entire title, on the ground that the ancestor held the legal title in trust for him, and the other defendant disclaims any interest, the latter will be a competent witness for his co-defendant, and against the petitioner, both at common law and under the statute.
    3. Resulting trust—how it arises. A resulting trust arises where one person’s money pays for land, and it is conveyed to another.
    Appeal from the Circuit Court of Jo Daviess county; the Hon. William Brown, Judge, presiding.

      Mr. William Spensley, for the appellant:
    A resulting trust can not arise unless the money of the cestui que trust was used in the purchase. Holmes v. Holmes, 44 Ill. 168; Remington v. Campbell, 60 id. 516; Sturns v. Thompson, 13 id. 186.
    The evidence to sustain such trusts must be clear, and is always received with great caution. Mahoney v. Mahoney, 65 Ill. 406.
    Charles Scheerer was not a competent witness. The parties to this suit claimed the property as heirs at law of John Scheerer, and Charles claimed in that capacity, and was therefore incompetent. Pyle v. Oustatt, 92 Ill. 209; Stone v. Cooke, 79 id. 424.
    Messrs. D. & T. J. Sheean, for the appellee:
    The evidence clearly shows that the purchase money was raised and paid by Herman Scheerer. Where land is purchased with the money of one person, and deed taken in the name of another, a trust results, by operation of law, in favor of the person whose money was used. Coates v. Woodworth, 13 Ill. 654; Smith v. Smith, 85 id. 189; Mathies et al. v. Stufflebeam, 94 id. 486; Cramer et al. v. Hoose, 93 id. 503; Mahoney v. Mahoney, 65 id. 407; Stephenson v. Thompson, 13 id. 186; Thompson v. Renoe, 12 Miss. 157; Lynch v. Cox, 23 Pa. St. 265; Dwinel v. Veasie, 36 Maine, 509; Howell v. Howell, 2 McCarter, (N. J.) 75.
    As to the competency of both Herman and Charles Scheerer to testify, we refer to Smith et al. v. West et al. 103 Ill. 332; Mueller v. Rebhan, 94 id. 142; Pigg et al. v. Carroll et al. 89 id. 205; Rause et al. v. Rause, 95 id. 433; Kershaw v. Kershaw et al. 102 id. 307.
   Mr. Justice Walkeb

delivered the opinion of the Court:

Appellant filed a petition for partition of the lot in controversy, in the Jo Daviess circuit court. He made appellee and his brother Charles defendants. Appellee filed an answer and cross-bill, claiming the property as his own. There is no dispute that the fee simple title was in John Scheerer at the time of his death. Appellant claims title as heir to his father, and appellee claims that he paid the purchase price for the lot, and his father held the property in trust for his use. On the hearing the court below decreed the property to appellee, and denied the relief sought by appellant, and dismissed his bill, and he appeals to this court and asks a reversal.

The evidence shows that appellee paid all the purchase money, paid all taxes after the lot was purchased, paid for its insurance and made improvements thereon, and that he was in possession. His father, just before bis death, called to his bedside his children, and stated to them that the property belonged to appellee, and that his money paid for it. He at the same time requested appellee to pay to Charles $100 he had advanced to pay a note given for the property. Charles testified that he heard his father say frequently that the property belonged to appellee, and his money paid for it. Appellee paid the $100 to Charles, as requested by his father. It is clearly shown that he held the property in trust for appellee.

A portion of the money paid for the property at the time of the purchase was borrowed from Peter Schmidt, and appellee gave his father’s note for the amount. Appellee having married the daughter of Schmidt, and he having died, in the settlement of his estate appellee and his wife received and receipted for the note as so much money on his wife’s share of her father’s estate. This was as effectual a payment as had appellee paid the note to the administrator, and he had paid it to appellee’s wife.

John Scheerer died intestate, and Charles being a son and heir, he inherited from his father one-third of his estate, yet he concedes the property in dispute belongs to appellee, and disclaims ownership. There is no evidence that appellant ever claimed rent of appellee during the time after his father’s death and before he sued. His father died nearly ten years before appellant filed his petition, and had his claim been well founded, we may well presume he would have demanded rent from appellee long before he brought suit.

It is urged that Charles was not a competent witness, and if his evidence were excluded there would be no evidence to sustain the decree. This is a misconception, as Charles was clearly a competent witness, independent of our statute in reference to the competency of witnesses. Charles disclaimed all interest in the property or the result of the suit. In the case of Smith v. West, 103 Ill. 332, it was said the evidence “clearly shows that he (Allen) had no interest in the result of the suit. Under the practice in chancery a defendant might always testify for a co-defendant, if his evidence did not necessarily involve his own interest, otherwise a complainant could have prevented a witness from testifying, simply by making him a defendant to the bill.” As announcing the same rule, see Kershaw v. Kershaw, 102 Ill. 307, and Pigg v. Carroll, 89 Ill. 205. Charles was a competent witness, both at the common law and under the statute, and his evidence may be properly considered.

It is urged that the facts of this case do not establish a resulting trust. They do establish a resulting trust, and it is capable of being established and enforced in equity. It is true the trust was not declared in writing, but it is as clearly established as if it had been. A resulting trust arises where one person’s money pays for land, and it is conveyed to another. Here, it is clearly and most satisfactorily proved Herman’s money paid for this land, and the title was conveyed to the father, who repeatedly stated that Herman’s money had paid for the property, and it was his. Of this there seems to be no doubt, and it establishes a resulting trust that equity is required to enforce. Appellee entered into possession, and made valuable improvements on the property. His father repeatedly, and at all times, stated the property belonged to appellee. The evidence clearly shows that the father held the property in trust for appellee, and the circumstances take the case out of the Statute of Frauds, and there was no error in decreeing the title to appellee.

Finding no error in the record, the decree of the court below must be affirmed.

Decree affirmed.


author: Mr. Justice Scott

text:
    James A. Cummins v. William H. Holmes et al.

      Filed at Ottawa January 23, 1884.

    1. Appeal—assigning error for disregarding ruling of Appellate Cou,rt in the same case—and in what manner the grounds of decision of that court to he shown. In order to properly present the question whether the ruling of the trial court, upon a second trial of a cause, upon the admissibility of certain evidence, was erroneous, as being contrary to the ruling of the Appellate Court on the particular question, on an appeal from the judgment rendered on the first trial, it must appear that the ruling of the trial court on the first trial, on the question, was the ground, or one of the grounds, of reversal,—and that can be shown only by the judgment or final order of the Appellate Court. The opinion of that court will not be looked into for the purpose of ascertaining the grounds of its decision.
    2.. Amendment—if of no avail, need not he allowed. There is no error in refusing leave to amend the record of a judgment by confession, when the amendment desired can be of no avail to the party asking it.
    3. Execution—on judgment hy confession in vacation—judgment must have Seen actually entered. The filing of the necessary papers to authorize the entry of a judgment by confession in vacation is not of itself sufficient, but the judgment itself must in fact be entered up by the clerk before the clerk can legally issue an execution; and an execution issued before the actual entry of such judgment in the record is void, and may be attacked collaterally. The subsequent entry of the judgment can not validate such an execution.
    4. Chattel mortgage—mortgagee in possession—who may question his right, and in what manner. A mortgagee in possession of chattels under his mortgage, for condition broken, has the right to retain the property as against the mortgagor and creditors, whether his mortgage is valid or not, until his right is challenged in some mode known to the law. This can not be done by an officer under and by virtue of a void execution against the mortgagor.
    5. Possession—as evidence of title—in replevin. Where chattels are taken'from one without any legal authority, his prior possession is sufficient to warrant a recovery against the tort feasor.

    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Mercer county; the Hon. Geo. W. Pleasants, Judge, presiding.
    Messrs. McCagg & Culver, for the appellant:
    On the first trial the record of the judgment was excluded as being void. The Appellate Court held that this was error, and remanded the case. If the circuit court erred on the first trial, it did also on the second trial, in failing to follow the decision of the Appellate Court. , Cummins v. Holmes et al. 11 Bradw. 158.
    The court below had no power on the second trial other than to follow the ruling of the Appellate Court. Boggs v. Willard, 70 Ill. 315.
    The judgment of the Appellate Court not having been appealed from or in any manner vacated, became res judicata. Hollister v. Abbott, 31 N. H. 442.
    The clerk has no judicial authority, but when the proper papers are filed in vacation it is his duty to enter up the proper judgment. These papers become, when so filed, part of the record of the case. Roundy v. Hunt, 24 Ill. 598; Waterman v. Caton, 55 id. 94.
    As to our right to have the record amended, and as to the effect of such amendment when made, see Freeman on Judgments, sees. 71, 72, 72a; Freeman on Executions, secs. 63, 71, 72; Hill v. Hoover, 5 Wis. 386; Wyman v. Buckstaff, 24 id. 477; Close v. Gillespey, 3 Johns. 526; Dobson v.
      Dickson, 8 Ala. (N. S.) 252; Sheldon v. Gunn, 57 Cal. 40; Will of Cole, 52 Wis. 591; Ætna Life Ins. Co. v. McCormick, 20 id. 265; Rickman v. Rickman, 6 Lea, 483; Howell v. Morlan, 78 Ill. 162; McLeran v. McNamara, 55 Cal. 508; Rousset v. Boyle, 45 id. 64; Hollister v. The Judges, 8 Ohio St. 201; Doty v. Colton, 90 Ill. 453.
    Messrs. Bassett & Wharton, for the appellees:
    The record offered was not a judgment. It shows no finding or order of judgment, and recites no confession of judgment. It was a nullity. Martin v. Barnhardt, 39 Ill. 13; Faulk v. Kellums, 54 id. 188.
    The motion was to amend a record of a judgment against Samuel W. Gailey, who was not a party to this suit, and no notice was served upon him. The attorneys in this suit were not his attorneys, and did riot pretend to act or answer for him. The attorneys could well and properly waive notice as to the appellees, but they had no right, nor did not pretend, to waive notice as to Gailey. Freeman on Judgments, sec. 72; McCormick v. Wheeler, 36 Ill. 114; Lill v. Stookey, 72 id. 495; Wallahan v. People, 40 id. 102; McKinsley v. Burch, 43 id. 488; State Savings Institution v. Nelson, 49 id. 171; Means v. Means, 42 id. 50.
    The motion to amend was made in a collateral suit. It was not permissible. Pitkin v. Yaw, 13 Ill. 251; Bonnell v. Neely, 43 id. 289; Cook v. Wood, 24 id. 297; Swift v. Allen, 55 id. 303; Rauh v. Ritchie, 1 Bradw. 188.
    There was nothing by which to amend. Cairo and St. Louis R. R. Co. v. Holbrook, 72 id. 423; Freeman on Judgments, sec. 70.
    The record could not be amended to the prejudice of parties whose rights had intervened. Church v. English, 81 Ill. 445; Gillette v. Booth, 95 id. 183; Coughran v. Gutchens, 18 id. 391; Loomis v. Francis, 17 id. 206; Shirly v. Phillips, id. 471; McCormick v. Wheeler, 36 id. 114.
   Mr. Justice Scott

delivered the opinion of the Court:

This action was commenced in replevin by William H. Holmes and others, against James A. Cummins, as sheriff, to recover the possession of a stock of boots and shoes which the sheriff had levied on by virtue of an execution against one Samuel W. Gailey, as the property of the execution debtor. The case has been twice tried in the circuit court of Mercer county, and on both trials the issues were found in favor of plaintiffs, and judgment rendered accordingly. The first judgment, on the appeal of defendant, was reversed by the Appellate Court, and the cause remanded for a new trial, but the second judgment was affirmed by the Appellate Court, and defendant brings the case to this court on appeal.

It is assigned for error the trial court erred in excluding, when offered as evidence, on the last trial, the judgment and execution under which defendant, as sheriff, claimed the right to the possession of the goods in question. One reason assigned in support of the position taken is, on the first appeal to the Appellate Court that court held it was error in the circuit court, on the first trial of the cause, to exclude the judgment and execution, and reversed the judgment of the trial court for that reason, and remanded the cause. It is thought the question made can not arise on the present record. It contains nothing that shows the judgment and execution, under which the sheriff claims the possession of the property in controversy, were offered in evidence on the first trial of the cause and were rejected by the court, nor is there anything in this record now before the court that shows for what reason or on account of what particular error the first judgment of the trial court was reversed. In the mandate of the Appellate Court which appears in this record, it is recited the judgment is reversed and the cause remanded “for such other and further proceedings as to law and justice shall appertain. ” No other direction is given to the trial court, nor does it appear from the mandate for what reason the judgment was reversed. It was held by this court in Coalfield Coal Co. v. Peck, 98 Ill. 139, the opinion of the Appellate Court may not be looked into to ascertain what that court decided in any given case,—it must appear from the judgment or final order of the court. (Harzfeld v. Converse, 105 Ill. 534.) In the case being considered it does not appear, from the judgment or final order., of the court made on the first appeal, what that court did decide, and so it can not be known, from anything in the record, that it was held the trial court erred in excluding the judgment and execution when offered as evidence on the first trial of the cause.

It is not a matter of any consequence whether the court erred in overruling defendant’s motion for leave to amend the record of what is alleged to be a judgment by confession. An amendment such as defendant desired to have made, would have availed him nothing in the present suit. Under the decision of this court in Ling v. King, 91 Ill. 571, the execution issued by the clerk, and under which defendant levied on the property in controversy, was void. It was ruled in that case, the filing of the necessary papers to authorize the entry of a judgment in vacation by confession, is not of itself sufficient, but the judgment must in fact be entered up by the clerk before an execution can be legally issued, and that an execution issued when no judgment has in fact been entered, is void, and may be attacked collaterally. In the case now before this court no judgment had been entered by the clerk prior to or at the time the execution was issued. Papers had been filed that would authorize the entry by confession of a judgment against the debtor, but it was not in fact done. In this respect this case is “on all fours” with Ling v. King. Conceding, then, as must be done, the execution in the hands of defendant, when issued by the clerk, was void, and might be attacked collaterally, it is apprehended no subsequent entry of a judgment by the clerk on the papers filed in his office would validate the execution. That which is only voidable might be cured, but it would involve a legal solecism to say, that which is void from the beginning could be helped by any subsequent amendment.

Treating the execution in the hands of defendant as void, he had no lien, in any event, upon the goods in question that he could maintain. Plaintiffs were mortgagees in possession of the property. That would give them the right of possession as against the mortgagor, and also against, creditors, whether their mortgage was valid or not, until their right was challenged in some mode known to the law. That has not been done in this case, and their previous possession was sufficient to warrant a recovery in the present action.

The judgment will be affirmed.

Judgment affirmed,.


author: Mr. Justice Dickey

text:
    Pullman Palace Car Company v. George G. Bluhm.

      Filed at Ottawa January 23, 1884.

    1. Appeal—reviewing questions of fact. In an action by a servant against his master to recover for an injury caused by the use of a defective derrick in raising lumber, the question as to what was the cause of the injury, or the combination of causes producing the result, is one of fact, which by law it is not the duty of this court to consider. So, also, is the question whether the damages are excessive.
    2. Evidence—as to the result of a personal injury, as, the breaking of an arm. In case, for an injury by the breaking of the plaintiff’s arm, there is no error in admitting proof that the bones at the fracture had failed to unite, and had formed what is called a “false joint,” as it is not a question of law for the court to determine whether this was the result of the breaking of the arm as a proximate cause, or the result of a new, independent factor. Such question can properly be tested only by hearing the evidence, and submitting the questions of fact to a jury, under appropriate instructions.

      3. Negligence—contributory negligence—duty of one receiving personal injury, as to care bestowed after the fact. A plaintiff can not hold the defendant responsible for an injury to himself caused even in part by his own fault in failing to use ordinary care or ordinary judgment, or for any injury not resulting from the fault of the defendant, but caused by some new intervening cause not incident to the injury caused by the defendant’s wrongful act or omission of duty.
    4. In a case where the plaintiff’s arm has been broken from the negligent conduct of the defendant, and the plaintiff exercises ordinary care to keep the parts together, and uses ordinary care in the selection of surgeons and doctors, and nurses, if needed, and employs those of ordinary skill and care in their profession, and still, by some unskillful or negligent act of such surgeon, doctor or nurses, the bones fail to unite, thereby making a false joint, the defendant, if responsible for the breaking of the arm, will be liable in damages for the unfavorable result of the injury.
    5. A party, when injured, is bound by law to use ordinary care to render the injury no greater than necessary. It is his duty to employ such surgeons and nurses as ordinary prudence in his situation may require, and to use ordinary judgment and care in doing so, and to select only such as are of at least ordinary skill and care in their profession. But the law does not make him an insurer in such case.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Rollin S. Williamson, Judge, presiding.
    This is an appeal from the judgment of the Appellate Court affirming a judgment against appellant for the sum of $3500, rendered in the circuit court in favor of appellee.
    The action rests upon allegations by appellee, in his declaration, that being a laborer for appellant, using a defective derrick of appellant in elevating lumber to the upper part of a building of appellant, he was hurt by the falling of the lumber upon him, “maiming, bruising and battering him, and breaking and bruising his arm, and so disabling him that he has been unable to do manual labor from thence hitherto, and remains still in the same condition, ” and that the falling of the lumber was caused “by reason of the unskillful and defective workmanship of defendant” in constructing and erecting the derrick, and “without any fault” upon the part of plaintiff; and in another count, that the injury was the result of “poor material” used in constructing the derrick, and of unskillful construction, and that he used reasonable care, and that the falling lumber broke his arm and shoulder, and otherwise maimed and injured him, and he remained so; and in the third and fourth counts, that the injury done to him was great and permanent. There is no allegation that the injury was caused by the unskillful or negligent mode of using the derrick. The sole complaint against appellant is, that the derrick furnished for use was imperfect and unsafe.
    The proofs tend to show that certain employees of the appellant constructed a derrick to be used in raising lumber and materials in the finishing of a house, to the top or upper parts of the house, and that while appellee and others were using the derrick it broke, and the lumber, being raised at the time, by reason of the breaking of the derrick, fell upon the appellee, bruising him and breaking his arm between the shoulder and the elbow; that appellee had surgical and medical attention, but the broken bone failed to unite, and formed what is called, sometimes, a “false joint. ” There was evidence tending to show that this failure of the bones to unite is a result which may be permanent, and that this difficulty resulted from want of care in appellee, or from bad surgery, or bad nursing, etc. There was also evidence tending to show that the injury may not be permanent, and that appellee used ordinary care, and employed surgeons, doctors and nurses of ordinary professional skill and care, and that the unfortunate result of the bones not uniting was caused by merely an error in judgment or exceptional negligence in those employed to treat him.
    Messrs. Isham, Lincoln, Burry & Ryerson, for the appellant:
    The defendant was not responsible for the false joint, or consequences not the natural and probable result of the original cause of the injury. Schmidt v. Mitchell, 84 Ill. 195; Fent v. Toledo, Peoria and Warsaw Ry. Co. 59 id. 349; 3 Parsons on Contracts, 179; Toledo, Wabash and Western Ry. Co. v. Muthersbaugh, 71 Ill. 572; Tweed v. Insurance Co. 7 Wall. 44; Phillips v. Dickerson, 85 Ill. 11.
    Defendant is not liable for any permanent injury caused by the malpractice of the plaintiff’s surgeon. Schmidt v. Mitchell, 84 Ill. 195. See, also, Chicago, Burlington and Quincy R. R. Co. v. Drew, 52 Ill. 451; Chicago and Rock Island R. R. Co. v. McKean, 40 Ill. 241.
    Special damages, not necessarily following an injury, must be set out and claimed in the pleadings. Olmstead v. Burke, 25 Ill. 88; Furlong v. Polleys, 30 Maine, 491; Quincy v. Hood, 77 Ill. 68; Horne v. Sullivan, 83 id. 30; Adams v. Gardner, 78 id. 568; Miles v. Weston, 60 id. 381; Baldwin v. Western R. R. Co. 4 Gray, 333; Squier v. Gould, 14 Wend. 159; 1 Chitty’s Pleading, 396.
    Mr. John Lyle King, for the appellee:
    The verdict of the jury settles the fact that the plaintiff’s injury was the result of the accident resulting from defendant’s negligence, and is not attributable to the negligence of the plaintiff, either at the time of the accident, or since, in the selection of surgeons to treat him. Stover v. Bluehill, 51 Maine, 439.
    The direct or proximate consequences of a wrongful act are those occurring without any intervening, independent cause. Rice v. City of Des Moines, 40 Iowa, 638; Tweed v. Insurance Co. 7 Wall. 44; Scott v. Shephard, 2 Wm. Black, 892; Sauter v. New York Central and Hudson River R. R. Co. 66 N. Y. 50.
    For care of himself and care in employing a physician subsequently to a personal injury received from a wrongdoer, the party injured is bound only to the exercise of reasonable and ordinary care. City of La Salle v. Thorndike, 7 Bradw. 282.
   Mr. Justice Dickey

delivered the opinion of the Court:

We can not inquire into or consider the proposition of counsel for appellant, that, as he says, “the only causes of the injury were the carelessness of appellee and that of his fellow-servants.” What was the cause of the injury, or the combination of causes producing the result, is a question of fact, which, by law, it is not the duty of this court to consider. So, also, is the question as to whether the damages are, or are not, excessive.

... /It is insisted that the court erred in permitting plaintiff to prove, in enhancement of his damages, that his arm, which was broken between the shoulder and elbow, was not cured, and that the parts of the bone, instead of uniting in one, had failed to unite, and formed what is called a “false joint.” Appellant insists that this last was the result of bad surgery, and, to be proven, should have been set out as special damages, not being, as he suggests, such damages as ordinarily arise from a broken arm. We think the declaration is sufficiently specific to admit the proof. Whether this particular ailment (the false joint) was, or was not, the result of the breaking of the arm as a proximate cause, or the result of a new, independent factor, for which appellant was not responsible, could not be determined by the court as a question of law. It could be properly tested only by hearing the evidence and submitting the questions of fact to a jury, under appropriate instructions.

There is evidence tending to show that had this broken arm received ordinary care and ordinary professional skill, the parts would have united with little or no permanent injury, and on this hypothesis alone appellant insists that the matter of this false joint should have been, at least hypothetically, excluded from the jury. We understand the law on this subject to be, that plaintiff can not hold defendant answerable for any injury caused, even in part, by the fault of plaintiff in failing to use ordinary care or ordinary judgment, or for any injury not resulting from the fault of defendant, but caused by some new intervening cause not incident to the injury caused by defendant’s wrong. Thus, in this case, if it be conceded that the false joint, under proper care and skill, would not have resulted from the breaking of the arm alone, but was brought about by the subsequent separation of the parts after they had been properly set, and before nature had formed a firm union, then, if this subsequent separation of the parts had been caused by an assault and battery by a stranger, or some foreign cause with which appellant had no connection, and which was not in its nature incident to a broken arm, plainly appellant ought not to be held to answer for the false joint; but if appellee exercised ordinary care to keep the parts together, and used ordinary care in the selection of surgeons and doctors, and nurses, if needed, and employed those of ordinary skill and care in their profession, and still by some unskillful or negligent act of such nurses, or doctors or surgeons, the parts became separated, and the false joint was the result, appellant, if responsible for the breaking of the arm, ought to answer for the injury in the false joint. The appellee, when injured, was bound by law to use ordinary care to render the injury no greater than necessary. It was therefore his duty to employ such surgeons and nurses as ordinary prudence in his situation required, and to use ordinary judgment and care in doing so, and to select only such as were of at least ordinary skill and care in their profession. But the law does not make him an insurer in such case that such surgeons or doctors, or nurses, will be guilty of no negligence, error in judgment, or want of care. " The liability to mistakes in curing is incident to a broken arm, and where such mistakes occur, (the injured party using ordinary care,) the injury resulting from such mistakes is properly regarded as part of the immediate and direct damages resulting from the breaking of the arm.

"Without discussing each ruling of the court in the matter of instructions, it is sufficient to say that such rulings were at least as favorable to the appellant as the law would permit, and in some respects more so.

Finding no error in law in the record of the proceedings in the circuit court, the judgment of the Appellate Court is hereby affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    Moses J. Frank v. Hannah Kaminsky.

      Filed at Ottawa January 23, 1884.

    1. Allegations and proofs—under the general issue in action for slander—as to the speaking, and publication, of the words. In an action on the case for verbal slander, the plea of not guilty puts in issue both the speaking and publication of the slanderous words complained of, and to recover, the plaintiff must prove, by a preponderance of evidence, the speaking and publication of at least one set of the words charged.
    2. It is just as necessary, under the general issue in an action for slander, to prove the publication of the slanderous words,—that is, that they were spoken in the presence and hearing of others than the plaintiff,—as it is to prove the fact of their having been spoken.
    3. Error will not always reverse. In case of an error in an instruction it is only when such error prejudiced, or was calculated to prejudice, the objector, that it demands a reversal.
    4. Where the proof was clear that certain slanderous words had been spoken in the presence of others besides the plaintiff, and this fact was not disputed, it was held, that an instruction basing the right to recover on the speaking of the words, omitting the hypothesis that they were also published, though erroneous as an.abstract proposition of law, was not calculated to injure the defendant, and hence no ground for a reversal of the judgment.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding..
    Mr. B. M. Shaffner, for the appellant:
    The general issue put in issue both the utterance of the words alleged to have been spoken, and their publication. Jamigan v. Fleming, 43 Miss. 725.
    The declaration must state that the slanderous words were published “in the presence and hearing of divers persons, ” otherwise it would be demurrable. Every instruction given for the appellee ignored this principle, and consequently were erroneous.
    If no one heard the words other than the plaintiff, it is not slander. Viner’s Abridg. title “Actions,” L. B. 4; Townshend on Slander, secs. 95, 107; Broderick v. James, 3 Daly, 483; Lyle v. Glason, 1 Caines, 583; Heller v. Howard, 11 Bradw. 554.
    Messrs. Brandt & Hoffman, for the appellee:
    There was no evidence of the speaking of any slanderous words by appellant except in the presence of third persons. How, then, could the jury be misled by the omission of the words complained of in the instructions ? The only controversy before the jury was whether the words were spoken at all or not.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is an appeal from a judgment of the Appellate Court for the First District, affirming a judgment of the circuit court of Cook county for $1200, recovered by Hannah Kaminsky, the appellee, against Moses J. Frank, the appellant, in an action on the case for verbal slander. The words charged in the declaration to have been spoken by the defendant are: “You (meaning the plaintiff) are a damned whore, ” and other sets of words of like import.

It is true, as stated by counsel for appellant, the defendant’s plea of not guilty put in issue both the speaking and publication of the slanderous words complained of, and in order to warrant a recovery it devolved on the plaintiff to prove, by a preponderance of testimony, the defendant spoke and published, of and concerning the plaintiff, at least one set of the slanderous words charged in the declaration. It was just as important to prove the publication of the slanderous words,—that is, that they were spoken in the presence and hearing of others than the plaintiff,—as it was to prove their speaking. To prove the speaking of the words charged by the defendant, was one fact, and to show that others than the plaintiff were present and heard them, was a distinct and independent fact. Both these facts were submitted to and passed upon by the jury, and must necessarily have been also passed upon by the trial court in disposing of the motion for a new trial, and in rendering final judgment in the cause. As shown by the verdict and judgment, the plaintiff was successful upon both these issues, and the affirmance of the judgment by the Appellate Court must be accepted as a final disposition of them, so far as this court is concerned.^

It only remains to inquire whether the record discloses any errors of law which may have contributed to the result stated.

Upon the trial of the cause the court, at the instance of the plaintiff, gave to the jury, among others, the following instruction:

“If the jury believe, from the evidence, that the defendant falsely and maliciously spoke of and concerning the plaintiff any one or more of the sets of words alleged in the declaration, charging the plaintiff with being a whore, and intending thereby to charge her with being a whore, then the jury should find the defendant guilty, and assess the plaintiff’s damages, and in such case the jury may find exemplary damages.”

As an abstract proposition of law it is clear this instruction is erroneous, in this, that it omits from the hypothesis stated the duty of the defendant to prove the publication as well as the speaking of the slanderous words. Nor is there anything in any of the other instructions that cures the instruction in this respect. Other instructions were given, at the instance of the plaintiff, obnoxious to the same objection. It only remains to inquire whether this omission in the instruction could have prejudiced appellant. If it may have had that effect, the case should be reversed for that reason, otherwise it should not. It is a familiar rule, error will not always reverse. New England Fire and Marine Ins. Co. v. Wetmore, 32 Ill. 221; Parker v. Fisher, 39 id. 164; City of Chicago v. Hesing, 83 id. 204.

It must be borne in mind the objection in question relates only to the publication of the slander,—that is, to the speaking of the slanderous words in the presence of others than the plaintiff. So far as this question is concerned, the evidence shows no controversy whatever. The testimony of the witnesses on both sides shows that several persons other than the parties themselves were present on the occasion when the slanderous words are claimed to have been spoken, hence, if the words were spoken at all, they were necessarily sqmken in the presence and hearing of others than the parties. The time of speaking of all but one set of the words charged was definitely fixed by specific facts and circumstances, so that there was no reason for mistake as to the occasion, or as to the fact that various third parties were present and in hearing of what was actually said on the occasion. Such being the case, it is impossible the jury could have been misled by the technical error in the instructions.

The judgment of the Appellate Court was, for the reasons stated, proper, and it is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    Samuel McNay v. Daniel G. Stratton.

      Filed at Ottawa January 23, 1884.

      Appeal—trespass to the person—finding for defendant. In trespass for an assault and battery, in which a judgment for the defendant is affirmed by the Appellate Court, no appeal lies to this court unless a majority of the appellate judges shall certify that the case involves issues of law of such importance, etc., as that it should be passed upon by this court.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Henry county; the Hon. John J. Glenn, Judge, presiding.
    Mr. C. C. Wilson, for the appellant.
    Messrs. Shepard & Marston, for the appellee.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This appeal must be dismissed. The action is trespass, for an assault and battery. The verdict and judgment of the circuit court were for the defendant, and- that judgment was affirmed in the Appellate Court for the Second District, on appeal. A majority of the judges of that court have not cerified to us that the case “involves questions of law of such importance, either on account of principal or collateral interests, as that it should be passed upon by this court. ” Sess. Laws, 1877, pp. 70-71, sec. 8; id. p. 153, sec. 90; Baber v. Pittsburg, Cincinnati and St. Louis R. R. Co. et al. 93 Ill. 342; Umlauf v. Umlauf, 103 id. 651.

Appeal dismissed.


author: Mr. Justice Craig

text:
      In re Thomas Murphy.

      Filed at Ottawa January 23, 1884.

    Insolvent debtor—discharge from imprisonment—where malice is the gist of the action. Malice being the gist of an action of trespass for an assault ancl battery, the defendant in a judgment rendered against him in such an action, held in custody under a capias ad satisfaciendum, is not entitled to a discharge from imprisonment under the provisions of the “Insolvent Debtors’ ” act.
    Appeal from the Appellate Court for the First District;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    Mr. Thomas Shirley, for the appellant:
    The main question involves the meaning of the statute in declaring the right to schedule in all civil suits, when malice is not the gist of the action. Rev. Stat. chap. 72, sec. 2.

      “Gist of the action, ” is a legal term, and must he construed according to its-technical sense. Therefore, its meaning is fixed, and it ceases to be anything else except what its technical definition implies,—“the essential ground of a suit, without which there is not a cause of action. ” First National Bank v. Burkett, 101 Ill. 394; 5 Mod. 305; 1 Stra. 574; Burrill’s Dictionary; 1 Bouvier’s Law Dic. 712; Gould’s Pleading, 41; Abbott’s Law Dic.; Wharton’s Law Dic.
    Malice is not the gist of the action for an assault and battery. Shanley v. Wells, 71 Ill. 81; 3 Blackstone’s Com. 120; Stra. 596; Hob. 134; Plowd. 119; Hathaway v. Rice, 19 Vt. 106; Taylor v. Cole, 3 T. R. 292; Hubbel v. Wheeler, 2 Ark. 359; Horton v. Monk, 1 Brown, (Pa.) 65; Andrews v. Stone, 10 Minn. 74; McWilliams v. Bragg, 3 Wis. 424; Mills v. Carpenter, 10 Ired. Law, 298; Hilliard on Torts, 189, 193; Bullock v. Babcock, 3 Wend. 391.
    If any blame is imputable to the defendant, though he had no intention to injure the plaintiff or any other person, he is liable. Dygert v. Bradley, 8 Wend. 469; Brown v. Collins, 53 N. H. 442; Losee v. Buchanan, 51 N. Y. 476; Richer v. Freeman, 50 N. H. 420; Brown v. Kendall, 6 Cush. 292.
    It is not necessary, in an action for an assault and battery, that the act should be willful. Vincent v. Steinhour, 7 Vt. 62. See, also, Reynolds v. Clarke, 1 Strange, 634; Sharpcott v. Mugford, 1 Ld. Raym. 187; Hayward v. Bankes, 2 Burr. 1114; Gates v. Bailey, 2 Wilson, 313; Scott v. Shepard, 2 Wm. Black. 892; Morgan v. Hughes, 2 T. R. 225; Day v. Edwards, 9 id. 649; Ogle v. Barnes, 8 id. 188; Sheldick v. Aberg,2 Esp. 55; Leame v. Bray, 3 East, 593; Adams v. Hemenway, 1 Mass. 145; Underwood v. Hewson, 1 Strange, 596; Covell v. Lansing, 1 Campb. 497; Loton v. Cross, 2 id. 464.
    Messrs. Ellis & Frake, for the creditor Heath:
    Malice is the intentional perpetration of an injury or wrong on another. First National Bank v. Burkett, 101 Ill. 394.
    The intent to do harm is of the essence of an assault and battery. Greenleaf on Evidence, secs. 83, 85; Rev. Stat. chap. 38, secs. 20, 21; Cooley on Torts, 162; 2 Hilliard on Torts, 181.
    Should the court hold that malice is not necessarily the gist of every trespass action for an assault and battery, then the question is, was it in this particular action ? The question of malice is one of fact, and having been found to have been the gist of the action by the circuit and Appellate courts, those findings are conclusive. Chicago and Alton R. R. Go. v. Bonifield, 104 Ill. 223.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an application for discharge under the Insolvent law of the State. The appellant was arrested on a capias ad satisfaciendum, issued in a judgment recovered in the circuit court of Cook county in an action of trespass for an assault and battery.

Section 2, chapter 72, of the Revised Statutes of 1874, provides: “When any person is arrested or imprisoned upon any process issued for the purpose of holding such person to bail upon any indebtedness, or in any civil action, when malice is not the gist of the action, * * * or is arrested or imprisoned upon execution in any such action, such person may be delivered from such arrest or imprisonment upon complying with the provisions of this act.” The circuit court held that malice was the gist of the action where a judgment had been rendered in an action of trespass for an assault and battery, and that the defendant could not be discharged under the insolvent laws. That judgment was affirmed in the Appellate Court, and Thomas Murphy, the insolvent debtor, appealed.

Was malice the gist of the action in which a judgment was rendered against appellant ? If it was, the judgment will have to be affirmed. Our statute defines assault and battery to be the unlawful beating of another, and Greenleaf on Evidence, see. 83, says: “The intention to do harm is the essence of an assault. ” In note 3, Cooley on Torts, 209, will be found a definition of malice, as follows: “Malice, in common acceptation, means ill-will against a person, but in its legal sense it means a wrongful act done intentionally, without just cause or excuse. ” Here there was an intent to do harm, and an unlawful execution of that intent, resulting in the infliction of a wrong and injury upon another. Under such circumstances, was malice the gist of the action ?

First National Bank of Flora v. Burkett, 101 Ill. 392, we think, settles that question. It is there said: “It (malice) in some cases - implies a wrong inflicted on another, with an evil intent or purpose, and this is the sense in which it is employed in the statute. It requires the intentional perpetration of an injury or wrong on another. The wrong, and intention to commit the injury, are necessary to deprive the party of the right to a discharge from arrest or imprisonment. ” This case falls clearly within the rule announced in the case cited, and in our judgment malice was the gist of the action, within the sense the word “malice” is used in the statute.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Soott

text:
    William E. Hale v. Henry B. Bryant et al.

      Filed at Ottawa January 23, 1884.

    1. Specific performance—party seeking must perform, and not have abandoned contract. To justify a decree for the specific performance of a contract, it must be fair and free from fraud on others, and it must be shown that the complainant has fully performed on his part. If this is not made to appear, or it appears by the weight of the evidence that the agreement has been abandoned, a specific performance will be denied.
    2. A defendant, after having assigned his property for the benefit of his creditors, employed one of them, the complainant, to assist him in effecting a settlement with the other creditors, agreeing to pay him one-half of the assigned property that might remain after the debts named were “settled and canceled,” they to be settled out of the property so transferred, or its proceeds. The creditors signed a composition, whereby they were to receive forty cents on the dollar. They were not paid out of such property or its proceeds, but the means were raised otherwise, and the claims, instead of being canceled, were assigned to a third party, who made advances on them to the creditors. After this, the parties treated the contract as abandoned, the complainant receiving the defendant’s indebtedness to him in full, although he had signed the composition: Feld, that a bill for the specific performance of such agreement was properly dismissed.
    3. Same—contract must be fair. No matter what form a transaction may take, however plausible on its face, a court of equity will discover the real intention of the parties, and will not permit one party to reap an advantage from a contract not just to others with whom he is dealing.

      Appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    Messrs. Dupee & Judah, for the appellant.
    Messrs. Monroe & Tewkesbury, for the appellees.
   Mr. Justice Soott

delivered the opinion of the Court:

This case has been subjected to a most thorough and elaborate discussion by the respective counsel, yet the view taken by the court may be shortly stated. The bill is to compel a specific performance of a contract of the date of October 23, 1878, between William B. Hale, complainant, and defendant Henry B. Bryant. It may be well, first, to learn what the contract is; and second, to ascertain, as near as may be, its meaning. It is set forth in the contract, by way of recitals, that Henry B. Bryant had, on the 17th day of June, 1878, made an assignment of all his property and effects to Farlin Q. Ball, for the benefit of his creditors ; that he was desirous of securing the aid and assistance of complainant in procuring a full settlement of the indebtedness mentioned in. a schedule attached, marked “A;” that the property described in exhibit “B, ” and attached, is a portion of that included in the assignment; and it is then set forth it was agreed the contracting parties should use their best efforts to effect a settlement with the creditors named in schedule “A, ” on the most favorable terms, and that it was agreed that any property mentioned,—that is, in the schedule attached,—may be sold, or otherwise used in the settlement of such indebtedness. In consideration of the services complainant was expected to render in the premises, Bryant agreed he would cause to be conveyed to complainant, by as good title as he had himself, one-half of all the property described in the contract that might be left after the debts therein mentioned should be “settled and canceled, ” or have been assumed by parties satisfactory to him. The contract contains other provisions, some of which are not material in the view taken of the case, but such as may be thought to be necessary will be stated in the brief discussion that may be had.

As to the meaning of the contract, first, it is apparent the contract had exclusive reference to debts and property mentioned and described in the schedules attached, for it was provided any property belonging to Bryant, not mentioned in the exhibits, shall be and remain his without reference to the agreement, and any debts not scheduled should be paid by Bryant out of any property not described in the contract, or out of his share of the remainder of the property after the debts should be paid. Second, it is obvious the debts were to be paid from the proceeds, or the property itself, described in the schedules attached to the contract, and not otherwise. Third, complainant is only entitled, by the terms of the contract, to one-half of the property that may be left after the debts are fully paid. Fourth, complainant is in no event entitled to a specific performance of the contract until thirty days after the debts mentioned are “settled and canceled,” and that was to be done out of property described in the schedules attached.

Keeping in view this construction of the contract, it may now be inquired whether there is any satisfactory evidence of a performance on the part of complainant. It can hardly be said there is. There is no pretense the indebtedness spoken of in the schedules attached to the contract has been “settled and canceled. ” The allegation in the bill in regard to the claims against defendant is, “instead of being settled, have been assigned to Henry Willis Bryant. ” The testimony shows this allegation to be true. By the terms of the composition agreement, as originally made, the creditors, in consideration of forty per cent 'of the claims to be paid to them, agreed to assign their claims to Francis T. Wheeler; but when the money came to be paid, their claims were assigned to Henry Willis Bryant, who now holds many of them, independently of any control over them either by complainant or the debtor, and no reason is shown why he may not enforce payment—certainly to the extent he has advanced money upon them—against the estate of the debtor in the hands of his assignee. According to the testimony, the creditors sold and assigned their claims to H. Willis Bryant, and one reason complainant assigns why he did not take forty per cent for his claim, according to the terms of the composition agreement, which he had signed with other creditors, is, that he supposed if he did he would have to sell his claim to H. Willis Bryant, which he never agreed to do, and did not wish to do. Conceding, then, as the evidence is, these claims against the debtor were sold and assigned to H. Willis Bryant, how can it be said they have been “settled and canceled?” It is certain they are still held by the assignee as valid and subsisting indebtedness, beyond any control of either party to the contract. It does not appear the assignee is under any obligation to surrender the evidences of indebtedness in his hands until payment is made. It may be a question as to what sum he may demand,—whether the face value of the claims, or only the actual sum advanced upon them. But be that as it may, that they are subsisting claims in his hands, to some extent, seems evident, and for that reason it can not be said they have as yet been “settled and canceled,” in the sense those terms are used in the contract. Had the claims been assigned to Wheeler, as the agreement originally provided they should be, complainant might have controlled them so as to deliver them up to defendant to be “canceled,” but now they have passed from his control, either with or without his consent, and are still uncanceled in the hands of the assignee, who claims an interest in them adverse to complainant and to the original debtor.

As the contract has been construed, it implies the debts must be paid out of the property enumerated in the schedule made part of the contract, or the proceeds, when converted into money. That has not been done. The money with which the creditors were paid for assigning their claims was raised on property owned by others than the debtor. The title to the property out of which the debts should have been paid still remains in the assignee to whom it was conveyed, and it certainly can not be divested until the debts shall be paid or in some way discharged.

There is another view that may be taken of the case. The evidence affords some ground at least for the belief that after it was discovered the money with which to pay the creditors could not be raised out of or upon the property scheduled, the contract of October 23, 1878, was mutually abandoned. The defendant, and one other witness having no interest in the subject of the litigation, both distinctly so state. It is true complainant denies that he ever abandoned the contract for a moment, but always insisted upon his rights under it. Treating the parties as of equal respectability, as must be done, _the evidence would seem to preponderate in favor of that theory of the ease,—that the contract was mutually abandoned when it was ascertained the money with which to 'buy in the claims had to be raised out of trust property belonging to the children of defendant. It was certainly so changed the claims were to be assigned to Willis Bryant instead of Wheeler, and they were so assigned. That placed them beyond the control of complainant,—at least it is not shown he had any right to control the claims, or any of them, in the hands of Willis Bryant. Corroborative of this view is the fact that after the claims were assigned to, or that it was agreed they should be assigned to, Willis Bryant, complainant, by some proceeding had in the county court, insisted upon and did collect the full amount of his claim against defendant, notwithstanding he had signed the composition agreement with the other creditors to take forty per cent of their respective claims. At the time the other creditors were paid he would have received forty per cent on his claim, but he did not choose to take it, for, as he says himself, if he did he supposed he would have to “sell” his claim to H. Willis Bryant, which he did not wish to do. Had he then supposed the contract was in force, there can hardly be a doubt he would have taken the forty per cent on his claim as the other creditors did, and as he had agreed he would do. This fact itself tends most strongly to support the theory the contract had been abandoned, or at least the other parties understood it had been, and that he acquiesced in that understanding.

No discussion need be had, at this time, of the question so elaborately argued by counsel, whether the contract is contrary to public policy, and for that reason void. Without entering upon the consideration of that branch of the case, it may be said the proof does not show any contract so fair in all its parts, and so fully performed by complainant, that equity will decree a specific performance. Evidence given fully justifies the belief that complainant, when he executed the composition agreement and procured other creditors to do so, expected ultimately to realize more by the transaction than other creditors would get under its provisions. By inducing other creditors to take a small per cent of their claims, there would be something left to divide between himself and the debtor. No matter what form a transaction may take, however plausible on its face, equity will discover the real intention of the parties, and will not permit one party to reap any advantage from a contract not just to others with whom he is dealing. Without passing definitely on the question whether the contract is contrary to public policy, it may fairly be said enough appears from the attendant circumstances to make a court of equity hesitate to enforce it.

The decree of the Superior Court will be affirmed.

Decree affirmed.


text:
    Alexander J. McDonald v. Jane R. Stow et al.

      Filed at Ottawa January 23, 1884.

    1. Resulting trust—how it arises. A resulting trust does not grow ' out of the contract of parties, but is an implication of law arising when land has been purchased with the money of one and the deed made to another.
    2. Same—rights of cestui que trust. In such a case the person whose money has paid for the land may follow the title to the land, and treat the holder of the legal title as a trustee, and in equity compel a conveyance.
    3. Same—whether a trust, or a sale. Where a party sells and assigns a certificate of the purchase of land under execution, for a consideration expressed as paid to him, the doctrine relating to resulting trusts has no application. The transaction will be held a sale, and nothing more.
    4. Same—laches, as a defence. Courts will not enforce resulting trusts after a great lapse of time, or laches on the part of the supposed cestui que trust, especially when it appears that the supposed nominal purchaser has occupied and enjoyed the estate with the knowledge of the former. The person claiming under an alleged resulting trust should assert his claim at least within seven years after his purchase.
    5. Assignment—certificate of purchase. A certificate of purchase of land sold on execution is under our statute made assignable. An assignment of such a certificate is evidence of its sale to the assignee.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.
    Messrs. Forrester & Felsenthal, for the appellant:
    If William H. Stow, Jr., purchased this lot at the sheriff’s sale with his own means, and the assignment of the certificate of sale to Jane E. Stow was made without consideration, either executed or executory, it follows that a trust resulted to him in the legal title acquired by her, by virtue of the sheriff’s deed. Perry on Trusts, sec. 126; Coates v. Woodworth, 13 Ill. 659 ; Kane v. Herrington, 50 id. 238 ; Merrick v. Davis, 65 id. 319; Ward v. Armstrong, 84 id. 151; Smith v. Smith, 85 id. 189.

      The only exception is, when the person paying takes a conveyance to his wife or child, or other person standing in some such relation,—then the presumption is that the purchase was intended as an advancement. Perry on Trusts, see. 143.
    Where a purchase is made by a son, and the deed is made to his father, a trust results to the son. 2 Washburn on Real Prop. 441; 4 Kent’s Com. 306; 2 Story’s Eq. Jur. sec. 1201.
    The assignment of the certificate of purchase to Mrs. Stow was void for want of any consideration. A contract must be assented to by both parties, and be binding on both, or it is void for want of mutuality. Wain v. Wailters, 5 East, 16; McKinley v. Watkins, 13 Ill. 143; Cooke v. Oxley, 3 T. R. 654; Livingston v. Rogers, 1 Caines, 584; Beckwith v. Cheever, 21 N. H. 41; Chicago R. R. Co. v. Dam, 43 N. Y. 240; Benjamin on Sales, secs. 39, 64-72.
    Messrs. Monroe & Leddy, for the appellees:
    A resulting trust is an implication of law arising from the fact that land was purchased with the money of one party and the conveyance made to another. Franklin v. McIntyre, 23 Ill. 91; Bruce v. Roney, 18 id. 67; Emmons v. Moore, 85 id. 304; Stephenson v. Thompson, 13 id. 186; Williams v. Brown, 14 id. 200; Remington v. Campbell, 60 id. 516; Sheldon v. Harding, 44 id. 68; Holmes v. Holmes, id. 168; Braggs v. Geddes, 93 id. 39; Mahoney v. Mahoney, 65 id. 406; Walter v. Klock, 55 id. 362.
    The certificate of purchase issued to William H. Stow, Jr., was assignable by simple indorsement, under the statute, and required no consideration. Underwood’s Stat. chap. 77, see. 29.
    A deed of the property, or of all of the purchaser’s interest therein, would produce the same result. Freeman on Executions, sec. 313; Green v. Clark, 31 Cal. 591; Wright v. Douglass, 2 N. Y. 373.

      If a consideration was required, we have the written statement of William H. Stow, Jr., appearing in the assignment, that a consideration was paid him, which can not be contradicted for the purpose of invalidating such assignment. Illinois Central Ins. Co. v. Wolfe, 37 Ill. 354.; Morris v. Tillson et al. 81 id. 607; McCrea v. Parmont, 16 Wend. 473; Kimball v. Walker, 30 Ill. 482.
    Where the owner of an estate conveys it to another absolutely, as a purchaser for a valuable consideration, which, however, is not paid, but no case of fraud or mistake is made, the seller can not, by parol evidence alone, establish a trust for himself, and no resulting trust arises on such a transaction. Kimball v. Walker, 30 Ill. 482; Hill on Trustees, (4th Am. ed.) p. 156; Bispham’s Principles of Equity, sec. 90, pp. 132, 203, and authorities cited.
    A court of equity will refuse to interfere where there has been gross laches in prosecuting a claim, or long acquiescence in the assertion of adverse rights. Bispham’s Principles of Equity, secs. 39, 203, 259, 260; Kerr on Fraud and Mistake, pp. 303-312, 298, 127; Oakley v. Hurlbut, 100 Ill. 204; Bissell v. Lloyd, id. 214; Breit et al. v. Yeaton et al. 101 id. 242; Jenkins, Assignee v. Pierce et al. 98 id. 646; Castner v. Walrod, 83 id. 171; Williams v. Rhodes et al. 81 id. 571; Blanchard v. Williamson, 70 id. 647.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by Alexander J. McDonald, to obtain a decree requiring Jane B. Stow to convey to complainant a certain lot in Chicago, which she had obtained under a sheriff’s deed, dated December 12, 1873. The lot originally belonged to George I. Stow, and in 1866 it was 'sold on judgment which had been rendered against Stow, and bid in by Buckner S. Morris. The defendant failed to redeem within twelve months, and on December 28, 1867, William H. Stow, Jr., obtained a judgment against George I. Stow by confession, and redeemed from the sale as a judgment creditor. Upon a sale of the property under the redemption proceedings, on the 4th day of April, 1868, William H. Stow, Jr., became the purchaser, and the sheriff executed a certificate of purchase to him under the sale, which provided that he would be entitled to a deed in sixty days, if no further redemption was made. On the back of the certificate appears an assignment, as follows:

“In consideration of $500 to me in hand paid, I assign the within certificate of purchase to Jane E. Stow.
“Chicago, May 20, 1868.
W. Stow, Jr.”

This assignment, as appears from the evidence, was not executed by William H. Stow, Jr., until December 12, 1873, on which day a deed was made by the sheriff to the assignee, Jane E. Stow. Prior to this, however, and as early as 1869, Jane E. Stow went into possession of the property, claiming as owner under George I. Stow, from whom she obtained a deed in 1871. October 31, 1881, William H. Stow, Jr., deeded the property to McDonald, and he filed this hill.

The theory of the bill, as originally filed, was, that William H. Stow, Jr., had never assigned the certificate of purchase to Jane E. Stow, and that she had obtained the sheriff’s deed without right, and that she held the legal title as a mere trustee for the complainant, who had succeeded to the rights of William H. Stow, Jr. But on the trial the certificate of purchase, which was supposed to be lost, was produced by the sheriff who made the deed to appellee, and it was proven, beyond controversy, that the signature to the assignment on the back of the certificate of purchase was the genuine signature of William H. Stow, Jr. Indeed, Stow himself, when the certificate of purchase with the assignment was produced on the trial, did not, on the witness stand, deny his signature to the assignment on the back of the certificate. The position first taken, that the certificate of purchase had never been assigned to appellee, seems to have been abandoned, and it is now claimed that the assignment was made without consideration, and “a trust resulted to William H. Stow in the legal title acquired by appellee by virtue of the sheriff’s deed.”

A resulting trust does not grow out of the contract of parties, but, as we understand the subject, a resulting trust is an implication of law arising where land has been purchased with the money of one and the deed made to another. (Williams v. Brown, 14 Ill. 200.) In such a case the person whose money pays for the land may follow the title to the land, and treat the holder of the legal title as a trustee, and compel, in equity, a conveyance. (Sheldon v. Harding, 44 Ill. 68.) The doctrine of resulting trusts is stated by Perry on Trusts, sec. 126, as follows: “Where, upon a purchase of property, the conveyance of the legal title is taken in the name of one person, while the consideration is given or paid by another, the parties being strangers to each other, a resulting trust immediately arises from the transaction, and the person named in the conveyance will be a trustee for the party from whom the consideration proceeds.” It seems to be generally understood that where one person furnishes the money to pay for a tract of land, the purchase is made for his benefit, and where the deed is taken in the name of another, it is regarded as a matter of arrangement for some outside purpose, and not that the title should be held and owned by the person to whom the deed may be made.

But what has the law of resulting trusts to do with the facts of this case ?—or, in other words, are there any facts here which will bring the case within the doctrine of resulting trusts ? If William H. Stow, when he purchased the lot in 1868, at the sheriff’s sale, had placed the title in the name of appellee instead of his own, there might be some ground for invoking the doctrine of resulting trust, but such was not the case. He purchased in his own name, and held the title in his name, from April 4, 1868, until December 12, 1873, when, for an expressed consideration of $500, reduced to writing and signed by him, he sold the title to appellee. A certificate of purchase of this character being assignable, under the statute, in the mode this was transferred, the assignment of the certificate of purchase can be treated in no other or different light than a sale of the property by William H. Stow, Jr., to appellee. Suppose, in 1868, when he purchased, he had taken a deed in his own name, instead of permitting the title to be evidenced by the certificate of purchase, and suppose he had thus held the title until 1873, and then, for an expressed consideration of $500, deeded the land to appellee, would the doctrine of resulting trust have any control over the ease ? The answer is obvious, that it would not, and yet there is no substantial difference between the two cases. The transaction, as disclosed by the evidence, can only be regarded as a sale. It is true that appellee is not able to give the details of the transaction as it occurred, but that does not militate against her, as the business was at the time done by her husband, who is now dead, and the assignment of the certificate of purchase was written by him. Appellee went into possession of the lot as owner in 1869, and soon thereafter procured a deed from George I. Stow, the original owner, and when she purchased the certificate of purchase in 1873, and obtained a deed, it was doubtless done under some contract made between William H. Stow and appellee’s husband, and done for the purpose of perfecting the title in appellee.

But there is another ground which is equally fatal to a recovery in behalf of appellant. Courts will not enforce resulting trusts after a great lapse of time, or laches on the part of the supposed cestui que trust, especially when it appears that the supposed nominal purchaser has occupied and enjoyed the estate. (Perry on Trusts, sec. 141.) Here, as observed before, appellee went into pqssession of this lot in 1869, and claimed it as her own. William H. Stow, Jr., from 1868 to 1881, interposed no claim whatever to the property, although he knew appellee was in the possession, claiming and using the property in all respects as her own. Indeed, during this time William H. Stow, Jr., acted as the agent of appellee in renting the property and collecting rents. He signed leases in her name by himself, as her agent. The delay and laches of William H. Stow, Jr., are inexcusable. If he had any claim to the property, he ought at least to have asserted it within seven years from the time he became the purchaser, in 1868. In addition to the ground first named, we think complainant is concluded by laches.

The decree of the, circuit court will be affirmed.

Decree affirmed.