text:
    James A. Jackson et al. v. Eugene H. Lahee, Receiver.

      Filed at Ottawa June 13, 1885.

    1. Judgment men—os to property in the hands of a receiver. The recovery of a judgment against partners after the appointment of a receiver to take charge of the firm assets for the benefit of the firm creditors generally, creates no lien against any property or funds of the firm in the hands of the receiver. Such property or funds can not be levied on by an execution, or reached by garnishment, for the reason of its being in the custody of the law.
    2. Receiver—how far assets in the hands of a receiver are beyond the control of the parties, or of creditors—and herein, of creditors obtaining priority over each other. The possession of a receiver, as an officer of the court, is the custody of the law, and he holds the property or funds for the benefit of the party or parties whom the court shall find entitled thereto; and the law will not permit the receiver’s possession to be disturbed, without the consent of the court that first obtained jurisdiction to appoint him.
    3. Where a receiver has been appointed on a bill filed by one partner against his co-partner, merely to hold the property or funds pending the litigation between the parties, creditors of the firm are not bound to wait till the equities between the parties may be adjusted, as that might never be done. In such case the assets are treated as still belonging to the firm, and creditors may proceed in any lawful way to acquire a lien entitling them to priority over less diligent creditors.
    4. A receiver was appointed on bill filed by one partner against the other for the settlement and adjustment of the partnership accounts and the payment of creditors of the firm, which was insolvent, and the court had ordered notice to he given to all creditors to come in and prove their debts before the master. It was held, that one of the creditors, by the recovery of a judgment against the firm during the pendency of said bill, and the filing of a creditor’s bill on the same day that notice to creditors was ordered, did not acquire any lien upon the assets in the hands of the receiver, or right to be preferred over other creditors,—and this more especially when such creditor proved his claim before the master, and shared in the distribution of the funds in his hands.
    5. And where, in such case, the defendant partner appeared, and consented to the appointment of a receiver, who took possession of all the effects of the-firm, it was held, that this was equivalent to placing the assets of the firm, by the voluntary act of the parties, under the control of the court for the benefit of their creditors, generally, and that after the court had assumed jurisdiction the parties would not have been allowed to dismiss the suit.
    6. Same—estoppel of creditor to claim priority, inconsistently with former acts. Where a creditor of a firm obtained judgment after the appointment of a receiver, on a bill between the partners, and proved his judgment before the master in pursuance of an order of the court authorizing the same, and filed his petition to prevent the partners from dismissing their suit and discharging the receiver, and contested other claims presented before the master, and received his pro rata share of a dividend ordered to be paid by the receiver, it was held, that these acts estopped such judgment creditor from claiming priority over other creditors in the final distribution of the assets.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    Messrs. Monk & Elliott, for the appellants:
    A creditor, by obtaining a judgment and the filing a creditor’s bill, acquires an equitable lien. The filing of the bill operates as an attachment of all property which can not be levied upon at law. First National Bank v. Gage, 93 Ill. 173; Corning v. White, 2 Paige’s Ch. 567; Weed v. Price, 9 Cow. 928; Edmeston v. Lyde, 1 Paige, 639; Eager v. Price, 2 id. 333; Clarkson v. DePeyster, 3 id. 320; Insurance Co. v. Power, 3 id. 365.
    As to what is the commencement of a suit as between the parties, see Lowry v. Lawrence, 1 Caine, 61; Chatham v. Lewis, 2 Johns. 42; Fowler v. Sharp, 15 id. 323; Badger v. Finney, 15 Mass. 859; Harris v. Dennis, 1 S. & R. 236; Carpenter v. Butterfield, 3 Johns. Ch. 145; Hogan v. Cuyler, 8 Conn. 203.
    Under a bill filed by one partner against his co-partner for the adjustment of the partnership affairs between themselves, the appointment of a receiver by consent does not prevent á creditor from taking adverse proceedings, and thereby acquiring a lien. Coates v. Cunningham, 80 Ill. 467; Howell v. Ripley, 10 Paige, 43; Burrill v. Leslie, 6 id. 45; Banks v. Potter, 21 How. 467; Waring v. Robinson, 1 Hoff. Ch. 524; Ellicott v. Insurance Co. 7 Gill, 307; Adams v. Hackett, 7 Cal. 187; Adams v. Wood, 8 id. 152; Adams v. Haskell, 9 id. 24; Ross v. Titsworth, 37 N. J. Eq. 333; Holmes v. McDowell, 15 Hun, 585.
    Appellants were not estopped from asserting their lien by-accepting a pro rato distribution of the funds in the receiver’s, hands. Lanahan v. Latrobe, 7 Md. 278.
    By their creditor’s bill appellants acquired, not a right to a lien, nor a mere right to priority out of the general assets, but an actual, specific lien, which could only be defeated by satisfaction of the judgment or a successful defence of the suit. Weed v. Price, 9 Cow. 7; Edmeston v. Lyde, 1 Paige, 639; Eager v. Price, 2 id. 333 ; Corning v. White, 2 id. 567; Clarkson v. DePeyster, 3 id. 320; Insurance Co. v. Power, id. 365.
    The assets of the firm are legal—not equitable—assets. Adams’ Eq. *252, 254; 2 Leading Cases in Eq. pt. 1, p. 384.
    Mr. I. K. Boyeson, for the appellee:
    The appointment of a receiver placed the co-partnership property in the hands of the law, and no creditor could get a preference by obtaining a judgment subsequent to the appointment of the receiver. High on Receivers, 334, 345, 361; Holmes v. McDowell, 15 Hun, 585; 76 N. Y. 585; Law v. Ford, 2 Paige, 310; Rutter v. Tallis, 5 Sandf. 611; Marr v. Bank, 4 Cold. 471; Van Alstine v. Cook, 25 N. Y. 489.
    The appointment of a receiver places the property in custodia legis. Nicoll v. Boyd, 90 N. Y. 519; Temper v. Brooks, 40 Mich. 333 ; Maynard v. Bond, 67 Mo. 315; Wait on Fraudulent Conveyance, 183, 261.
    The title of the receiver relates back to the order appointing him. High on Receivers, 93; Maynard v. Bond, 67 Mo. 315; Rutter v. Tallis, 5 Sandf. 611; Ex parte Evans, L. R. Ch. Div. 260.
    Appellants are estopped by proving under the receivership and participating in proceedings before the master. Bigelow on Estoppel, 503; 2 Leading Cases in Eq. 139, 141; Am. Leading Cases, (1 Hare & Wall.) 556; Rupallee v. Hewart, 27 N. Y. 312; Rodermund v. Clark, 46 id. 354; Howes v. Henriques, 13 Wend. 243; Irwin v. Tabb, 17 S. & R. 419; Adlum v. Yard, 1 Rawle, 163; Jones v. Norsey, 4 Md. 306; Lanahan v. Latrobe, 7 id. 268.
    The assets in the hands of the receiver being equitable assets, which appellants could only reach through a court of equity, they must pay the price of equitable assistance, which always is, that they share pari passu. Silk v. Prine, 2 L. C. in Eq. 358; Purdy v. Doyle, 1 Paige’s Ch. 558; Benton v. LeRoy, 4 Johns. Ch. 651; Washburn v. Bank, 19 Vt. 278; Jones v. Lackland, 2 Gratt. 87.
   Mr. Justice Scott

delivered the opinion of the Court:

On the 26th day of April, 1883, Samuel H. Richardson filed a bill in the circuit court, against Truman B. Handy, in which it is alleged the partnership that had previously existed between them was not formed for any specified length of time; that the affairs of the firm had become disordered and embarrassed, and no longer profitable, and that complainant had elected to terminate the partnership; that various parties had instituted suits against complainant and defendant, and that there was danger of the firm assets being wasted by litigation; that the assets of the firm consisted mostly of open accounts and evidences of indebtedness, and office furniture. The prayer of the bill is for the appointment of a receiver to take charge of and collect and preserve the assets, that the cause be referred to a master to take an account between complainant and defendant, and that on final hearing a decree be entered according to the equities existing between complainant and defendant. On the same day, defendant, by stipulation in writing, entered his appearance in the court, waived service of process, and consented to the appointment of a receiver, which was done. Afterwards, on the 31st day of May, 1883, on motion, the cause was referred to the master in chancery to take proof of all claims against the firm, and it was by the court ordered that all persons having claims against such firm should present the same before the master for allowance by a day fixed, and that the master give the usual notice to all creditors. Under this order the creditors,—among whom are the petitioners in this case,—came before the master and proved up their claims against the assets of the firm in the hands of the receiver. ' When the court made its order calling the creditors before the master, the receiver had previously collected, and had then in his hands, the sum of $20,274.31. That sum constituted most of the assets to be distributed. Since then a further sum, less than $5000, has been collected by the receiver. The usual steps were being taken as rapidly as was practicable to close up the partnership affairs and pay the creditors.

On the 5th day of May, 1883, petitioners commenced an action in assumpsit in the circuit court against the firm of Handy, Richardson & Co. Service was had on both defendants, and on the 23d day of the same month judgment was rendered against them by default, for the sum of $9052.12, on which execution was issued on the 25th of the same month, and placed in the hands of the sheriff. On the 29th day of the same month the sheriff made return on the execution, he had made demand on Richardson for property; that he failed or refused to deliver any in satisfaction of the execution ; that Handy could not be found so that demand could be made on him, and that he made return of the execution by order of petitioners’ attorney, which was as follows: “The sheriff will return the execution in the above case forthwith no property found, no part satisfied.—May 29, 1883.” Two days thereafter,—that is, on the 31st day of May,—petitioners filed the usual creditors’ bill, in which was set forth the recovery of their, judgment against Richardson and Handy, the issuing of the execution thereon, and the return of the sheriff no property found and no part satisfied, and concluding with the prayer that defendants may be required to answer, and for a discovery of property to be subjected to the payment of .the execution. Service of process was had on Richardson on the same day the bill was filed, but Handy was not found. Richardson answered the bill, and disclaimed having any property subject to execution, and averred that he had turned over all his property to the receiver, and that no debts were due him or the firm other than those already in the hands of the receiver. Afterwards Handy was brought into court by publication, and nothing further seems to have been done in this case, except on the 13th of July an order was entered extending the receivership to this suit, and that assets in the hands of the receiver, or thereafter to be received by him, be held for the benefit of all parties to both suits, to be disposed of under the direction of the court.

Turning back, now, to learn what was done in the original suit, it is seen that on the 5th day of July, 1883, an order was entered granting leave to the present petitioners to file a petition praying that complainant and defendant in the original suit be not allowed to dismiss their suit, or the receiver be discharged. On the 6th day of the same month the time for filing claims before the master was extended to the August term, 1883, and it was ordered that the master mail notice to all persons appearing on the books of the firm to be creditors, and who had not then come forward and filed their claims. Other parties were allowed to 'file intervening petitions, and other orders were made, but it is not necessary to an understanding of the case to state them.

It appears from the report of the master, that divers claims were filed before him in June, 1883; that on the 29th day of the same month petitioners filed their claim before him, and for greater certainty referred to tlie judgments that had been previously obtained by them against the firm, and that in the proceedings on proof of claims petitioners had taken an active part, and had contested a large number, but not all, the claims presented. It also appears that at the date of the filing of the original bill in this suit, Handy, Richardson & Co. were in fact insolvent, and 'that numerous creditors of the firm had commenced, and others were about to commence, suits against them. On the 28th day of January, 1884, petitioners were, by the court, granted leave to file their petition herein, instauter, in the original cause, for priority over other creditors participating in the assets in the hands of the receiver, which they did. In their petition they set forth the recovery of the judgment against the firm of Handy, Richardson & Co., the issuing of the execution on such judgment, and the return of the sheriff no part satisfied ; that on the 31st day of May, 1883, they filed their creditors’ bill, making both partners defendants; that service of process was duly had on Richardson, and the other defendant having ceased to be a resident of the State, service ’was had on him by publication; that in July, 1883, they filed with the master, to whom the reference had been made to take proof of claims, their claim, and made proof of the same; that they had received no part of it, and that it had been allowed by the master and approved by the court. It is further stated no decree was entered in the original cause declaring the partnership dissolved, or for an accounting, or for the application of the partnership assets to the partnership debts, until after the bringing of their creditors’ bill, and not until after petitioners had asserted a priority to the assets in the receiver’s hands, and had obtained an extension of the receivership to their creditors’ suit. The prayer is, that petitioners’ creditors’ bill may be declared to have created a lien on all the assets of the firm, and to have entitled them to priority, to the extent of their judgment, over other creditors. The receiver, by his answer to this petition, admitted the commencement of the original suit April 26, 1883, in which lie was appointed receiver, and averred that in the bill it was alleged the estate was embarrassed; that the firm existed only during the pleasure of the parties; that complainant in the original bill elected to dissolve the partnership, and that on the 31st day of May, 1883, the cause was referred to a master to take proof of claim, and thereafter a decree was entered declaring the firm insolvent, and the receiver insisted such decree relates back to the date of his appointment.

It is on the claim made for priority of payment of petitioners’ judgment out of funds in the hands of the receiver, to the exclusion of other equally meritorious creditors of the failing debtors, that the controversy in this case arises. It will be noticed it is not claimed petitioners acquired any lien on the firm assets by the commencement and prosecution of the action at law against the debtor firm; but if such lien were insisted on, it is obvious it would have nothing in its support. Neither partner had any property subject to execution, nor did the firm have any assets other than what were in the hands of the receiver. It is plain the funds could not be levied on by an execution at law, nor could the same be reached by garnishment in the hands of the receiver, for the simple reason the assets were in custodia legis. It is only insisted petitioners’ creditors’ bill shall be declared to have created a lien on all the assets of the firm, and to have entitled them to priority of payment of their judgment against the firm debtors over their other creditors. On what principle consistent with equity and good conscience this can be done, is not readily perceived. It is certainly not upon the principle a diligent creditor is rewarded for his superior diligence in discovering assets that would not otherwise have been brought to light. There can be no pretence in this case that petitioners filed their creditors’ bill -with a view to discover assets other than those in the hands of the receiver. It is inconceivable the bill in this case was exhibited with any hope or expectation, founded in good faith, other assets would be discovered. It would be absurd to claim that funds in the hands of a receiver, to be administered under the direction of the court, could be discovered, in the sense that term is used in the books, for which a creditor should be rewarded as for superior diligence. If the bill in this case is to be sustained at all, it must be upon some other ground, and for some other reason.

It is conceded the funds in this case were in the hands of a receiver when petitioners filed their creditors’ bill, and that the same were not subject to levy at law. The receiver is a mere officer of the court, and his possession is the custody of the law. The property or funds were in the hands of the receiver for the benefit of the party ultimately entitled to them, and when he is discovered or ascertained, the receiver will be considered his receiver. The law will not permit that possession to be disturbed without the consent of the court that first obtained jurisdiction to appoint the receiver. It would seem an anomaly that a lien adverse to the rights of the receiver could be obtained, so as to control the distribution to be made. Obtaining a lien implies it may ultimately take the property or funds to which it attaches, and if that could be done in this case it would withdraw the same from the custody of the law, or from, what is the same thing, the custody of the receiver having the same in possession. There are cases that seem to hold something akin to this may be done, but they are mostly cases where the receiver has been appointed on a bill filed by one partner against his co-partner, and where the receiver is appointed to hold the property or funds pending such litigation. In such cases creditors are not bound to wait until the equities between the parties may be adjusted. That might never be done, or the proceeding might be dismissed and the receiver discharged. The assets in such cases are treated as still belonging to the firm, and the creditors may proceed in any way that may lawfully be done to acquire a lien, which would no doubt entitle them to priority over less diligent creditors. The cases are rare that permit this practice. The better rule is, as stated in Waring v. Robinson, 1 Hoff. Ch. 524, that although it is in the power of the partner who has filed such a bill, to dismiss it at any time before decree, and probably discharge the receiver, yet until he does so it must be treated as an equitable assignment of the property for all the creditors. The same general doctrine was declared in Holmes v. McDowell, 15 Hun, 585, which ease was afterwards affirmed in 76 N. Y. 596, on the grounds stated in the prevailing opinion of the judges concurring. That was a case commenced by one partner against his co-partner to adjust the affairs of the partnership, which was insolvent, and to distribute the assets equally among their creditors, and wdiere a receiver was appointed by stipulation. After that suit was instituted and the receiver appointed, and during the pendency of the suit, other actions were brought against the firm by other creditors, and judgments recovered. Afterwards, in supplementary proceedings, the receivership w'as extended to the latter actions, and on the application of the plaintiffs in the creditors’ action, to have the receiver directed to pay their claims out of the assets in his hands, it was decided the judgments recovered by the plaintiffs gave them no priority over other creditors. The decision proceeds on the theory that that which was done by the partners in causing the receiver to be appointed, was, in effect, an assignment of the partnership assets for the benefit of their creditors, to be administered by the court, or under its direction; that the owners of the partnership property had, by their voluntary act, placed it in the hands of the court for equal distribution, and that the court had assumed jurisdiction over it for that purpose. This doctrine finds support in the principles declared in the following cases, although not so definitely stated: Law v. Ford, 2 Paige, 310; Van Alstine v. Cook, 25 N. Y. 489; Maynard v. Bond, 65 Mo. 315.

In Ross v. Titsworth, 37 N. J. Eq. 333, it was ruled that where creditors recovered judgments against partners after the filing of a bill by one partner against the other for settlement of the co-partnership, and obtained execution thereon before any decree of dissolution and call for creditors, though after the appointment of a receiver by consent, they were entitled to the benefit of their liens. So in Ellicott v. United States Ins. Co. 7 Gill, (Md.) 307, it was declared that where the decree appointing a receiver and awarding an injunction did not state the ulterior intent of the court was to make an equitable distribution of the fund, and contained no direction to the receiver to give notice to the creditors to file their claims, such decree imposed no restriction upon creditors in prosecuting their claims, either at law or in equity, and a judgment thereafter obtained by a creditor was as much a lien on the real estate of defendant as if the appointment of a receiver had never been made. But if the court had stated in its decree the object of placing the effects of defendants in the hands of the receiver to have been that it might make an equitable distribution among creditors, and had directed the usual notice to creditors to come in and file their claims, then it was said creditors commencing a suit at law might be enjoined from prosecuting it; and if no such application was made by any one interested, the court would regard the judgment, if obtained, as an unwarrantable interference with the jurisdiction it had assumed, and rejected it as a lien on the property in the hands of the receiver. In Adams v. Hackett, 7 Cal. 187, one of the concurring judges held, in a case where one partner has filed a bill for a dissolution of the partnership and the appointment of a receiver, that until a dissolution has been pronounced by the court, and an order upon the receiver to make an equal distribution of the assets among creditors, a creditor is not prevented from resorting to adverse proceedings, and in that way obtain preference, while the other concurring judge was of opinion a fund in the possession of the receiver can only be distributed by order of the court in whose custody it is, and no party can, by an adverse proceeding, acquire a lien on such funds. In Adams v. Wood, 8 Cal. 152, it was decided, among other things, a bill for a dissolution of a partnership and the appointment of a receiver can not operate as an assignment for the benefit of creditors, so as to prevent a creditor from acquiring a legal priority, for the reason all such assignments, excepting in insolvency, were void under a statute of that State. The case of Adams v. Wood, 9 Cal. 24, seems to follow the decision of Adams v. Wood, last above cited, and is based definitely upon a statute of that State, which provides: “No assignment of any insolvent debtor, otherwise than is provided in this act, shall be legal or binding on creditors.”

It will thus be seen from this brief reference to cases, the present case is not within the principle of the strongest case in support of the position taken by petitioners. The utmost petitioners could claim, in any event, would be, they might, at any time before the creditors should be called, acquire a lien, by judgment at law or decree in chancery, which would give them a priority in the distribution of the assets in the hands of the receiver. Without conceding the position taken has the weight of authority or even any equitable consideration for its support, it may be said the case being considered can hardly be brought under the control of the principle insisted upon. It is conceded petitioners’ judgment at law against the partners gave them no lien upon the funds in the hands of the receiver. Did the filing of the creditor’s bill give them any such lien as will be recognized in equity ? Applying the strictest rules stated in any of the cases cited, no case is made that would entitle petitioners to priority over other creditors. It does not appear their creditors’ bill was filed before the creditors were called to go before the master to establish their claims. The order calling the creditors was entered on the 31st day of May, and the petitioners’ creditors’ bill Avas filed on the same day, but Avhich Avas first, in fact, in order of time, does not appear. The burden of showing facts Avhich would give petitioners priority over other creditors, must, of course, devolve on them, otherwise the claim put forth by them fails. Their creditors’ bill Avas filed in the same court Avhere the proceedings to sequester the assets of the debtor firm were pending, and it is not unreasonable to charge petitioners with notice of what was being done in that ease in the same court. It was for them to show that, when their creditors’ bill was filed, the court had entered no order directing the creditors to be called before the master to establish their claims. That they have not done. Where substantial justice requires it, courts Avill inquire when any particular act transpired,—as, for instance, the precise hour when a statute took effect, or when it received the executiA’e approval. If their creditors’ bill was, in fact, filed before the court made the order calling the creditors, that fact should have been made to appear from the evidence. No presumption Avill be indulged that would give petitioners an advantage over other equally meritorious creditors.

It is said that at the time petitioners exhibited their creditors’ bill, the partnership affairs were still under the control of the partners, and that they could reconcile their differences and dismiss the suit, and with it, the receiver. That proposition is certainly not correct under any view of the law, unless it appears the creditors’ bill was filed before the court directed the receiver to notify creditors to appear before the master and establish their respective claims. It is a matter of no consequence the order may not haA'e been spread at large on the records of the court by the action of the clerk until the next day after it was made.. It had been made by the court, and minuted on the record, and that ay as sufficient. After the entry of that order, it is apprehended the court would not have permitted the partners to dismiss their suit. It had then progressed too far. Creditors had interests the court had assumed to protect, and its equitable purpose in that regard could not be defeated by the partners. After the entry of that order calling the creditors before the master to whom the cause had been referred, any attempt to enforce payment out of the funds in the hands of the receiver, of any judgment or decree subsequently obtained, would have been deemed an unwarrantable interference with the jurisdiction the court had assumed to exercise, and the priority insisted upon under any such pretended lien would have been rejected. The original bill filed by one partner represented to the court the affairs of the firm had become disordered and embarrassed, that various parties had instituted suits against the firm, and that there was danger of the assets being wasted by litigation, and asked the court to appoint a receiver according to the practice in such cases. The other partner came in and consented to the appointment of a receiver, which was done. That was equivalent to placing the assets of the firm, by the voluntary act of the parties, under the control of the court for the benefit of their creditors. The court had taken jurisdiction, and was moving as fast as was practicable, to close up the partnership matter, and distribute the assets to whomsoever they should appear to belong. In a little more than one month from the time the bill was filed, the court had both partners before it, and had so far progressed as to refer the cause to the master, and to direct-notice to be given to all creditors to come before him to make proof of their claims. After all this was ¿one—for it does not appear the creditors’ bill was filed before the general creditors were called—it would be inequitable to permit petitioners to obtain priority over other creditors simply by the filing of a creditors’ bill, when it was apparent the court was proceeding with all convenient speed to make a distribution of the assets in the hands of its receiver, among the creditors. The haste with which the creditors’ bill was filed after the judgment at law was obtained, would seem to indicate it was a mere contrivance to be used to secure priority over other creditors, to the assets the court had assumed jurisdiction to distribute, p,nd which it was proceeding to do. Equity will not lend petitioners its aid to accomplish any such result, and without such aid the pretended lien could never be made available.

But aside from this view, petitioners came in with other creditors and proved their claim before the master, and contested claims of other creditors. This could only be done by parties entitled to share in the final distribution to be made, otherwise it would have been mere officious intermeddling. Shortly after the court had referred the cause to the master to take proofs of claims, petitioners obtained leave of the court to file a petition to prevent the partners from dismissing their suit and discharging the receiver. This may have been, and perhaps was, unnecessary at that stage of the proceedings, but it tends to show petitioners had submitted to the jurisdiction of the court in the matter of the distribution. The sequel shows that when a dividend was ordered to be paid by the receiver, petitioners received their pro rata share. These are considerations that ought to have estopped them from claiming priority over other creditors in the final distribution of the assets. Had they intended to insist on the priority obtained by filing their creditors’ bill, there was no occasion for intermeddling with the proceedings before the master, causing large expenses, which could only be paid out of the only fund available for the payment of their claims.

In no view that can be taken are petitioners entitled to priority over other creditors, and the judgment of the Appellate Court must be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author:
      Mr. Justice Sheldon
      Mr. Justice Scott,

license: Public Domain

text:
    Daniel Irwin et al. v. Sarah Dyke et al.

      Filed at Springfield June 12, 1885.

    Specific peefobmanoe—parol gift of land by a father to Ms son. In this case the facts established were considered sufficient to bring it within the rule, that where a father makes a verbal agreement with a son to convey to him a tract of land if the latter will go and live upon the same, make expenditures upon and improve it, and this is done in reliance upon the promise, a court of equity will enforce the specific performance of the agreement.
    Appeal from the Circuit Court of McLean county; the Hon. Owen T. Reeves, Judge, presiding.
    This was a bill for partition of a certain two hundred acres of land, described in the bill filed October 21, 1881, by Daniel Irwin, and Narcissa Irwin, his wife, setting out that Daniel Irwin was the owner in fee of the undivided half of the land, and that Lewis M. Dyke and said Narcissa Irwin, the only children and heirs at law of Benjamin Dyke, deceased, were the owners in fee of the other undivided half of the land, and praying partition accordingly. The answer of Lewis M. Dyke admits the interest of Daniel Irwin as alleged, and that Benjamin Dyke, at the time of his death, held the legal title to the one undivided half of the land, but that it was in trust for him, Lewis M. Dyke, who was-the equitable owner thereof. The answer alleges that from January, 1875, until February, 1879, Lewis M. Dyke and his wife lived at the house of Benjamin Dyke, and, during all that time, worked for him with the horses and farm machinery of said Lewis M., without ever having received any pay therefor, except through said land; that at the time said Lewis M. went to live with said Benjamin, it was under an agreement between them that if the former would come and live with the latter, said Benjamin would buy a farm, as soon as lie got able, for said Lewis M., which the latter should have, and that it was upon that inducement and promise said services were rendered; that about January 1, 1879, the said Benjamin Dyke and Daniel Irwin purchased the land described in the bill; that in pursuance of said agreement, Benjamin Dyke, placed the said Lewis M. in possession of the land, and the land was by the said Benjamin, up to the time of his death, treated, in all respects, as the land of the said Lewis M., but was not deeded to him; that soon after the purchase of the land, Lewis M. and Daniel Irwin partitioned the land between them, by verbal agreement; that the said Lewis M. took possession of his part, and has been in possession ever since, and has put considerable improvement on the same, and has paid about $1200 on the notes given by Benjamin Dyke for the purchase of the land. A cross-bill was filed by Lewis M. Dyke, setting forth the same facts stated in his answer, and praying that the verbal partition of the land between them, made by the said Daniel Irwin and Lewis M., be confirmed, and that the said Irwin and Narcissa Irwin make to the said Lewis M. a deed for his portion! of the land. Replications were filed to the answers to the original and cross-bills, and proofs taken, and, on final hearing, the court decreed relief in accordance Avith the prayer of the cross-bill, and the complainants appealed to this court.
    Mr. J. S. Neville, for the appellants:
    The mere possession of land under a parol agreement to convey, even with the superadded fact of valuable improvements, will not be deemed sufficient if the possession was obtained otherwise than under the contract. Padfield v. Padfield, 92 Ill. 198.
    To entitle a party to specific performance, the proof must be clear, and it must also be fair, and it must be proved as laid, and not otherwise. Hatwell v. Black, 48 Ill. 301.

      Where a contract for the sale of land rests in parol, it must clearly appear that the contract of sale has been made. Its terms must be clearly proved, and it must appear that they have been relied on and performed by the party seeking the enforcement of the contract, in order to entitle him to a decree for specific performance. Gosse v. Jones, 73 Ill. 508.
    A court of equity, when called on to decree a specific performance of an alleged parol agreement, is asked to exercise an extraordinary jurisdiction. The court must be well satisfied of the existence and character of the agreement, and will always look to the substantial justice of the case. It must be satisfied that any resistance to the completion of the agreement alleged and proved, would operate as a fraud upon the other party. Selton v. Shipp, 65 Mo. 297.
    The act relied upon as a part of performance, must, in itself, furnish evidence of the identity of the contract, and it is not enough that it is evidence of some agreement, but it must relate to and be equitable evidence of the particular agreement charged in the bill. Wallace v. Rappleye, 103 Ill. 229.
    Messrs. Fifer & Phillips, for the appellees:
    This court has repeatedly held, that where a father gives land to his son by parol, and the son moves upon the land and makes thereon valuable improvements, the father retaining the legal title in himself, the contract stands upon the same basis as a bargain and sale for a valuable consideration, and equity will compel a conveyance of the legal title. Smith v. Yocum, 110 Ill. 142; Warren v. Warren, 105 id. 568; McDowell v. Lucas, 97 id. 489; Bohanan v. Bohanan, 96 id. 591; Langston v. Bates, 84 id. 524; Kurtz v. Hibner, 55 id. 514; Bright v. Bright, 41 id. 97; Ramsey v. Liston, 25 id. 98.
   Mr. Justice Sheldon

delivered the opinion of the Court:

The Statute of Frauds was not set up in the pleadings, which was necessary to be done in order to avail of that statute.

The proofs quite well establish that Lewis M. Dyke, in August, 1873, soon after he became twenty-one years of age, married, and lived with his parents until in the following spring, when he moved to Blue Mound, and went to farming on his own account. His father, Benjamin Dyke, and his mother, Sarah Dyke, were living on a rented farm, called the “Davis farm, ” and seem to have been both in feeble health. Benjamin Dyke proposed to his son; Lewis M., that if the latter would come back to the Davis farm, they would work together, and as soon as they got money enough they would buy a farm, and it should be Lewis’. Lewis Dyke thereupon left Blue Mound, where he had been about one year, and, together with his wife, moved back to the Davis farm, where he remained with his father and mother some four years, his wife doing the house-work, and he working on the farm. In the fall of 1878, Benjamin Dyke and Daniel Irwin purchased the two hundred acres of land described in the bill, taking a deed to themselves, jointly. The purchase price of the land was $7000, of which each was to pay one-half. They made a cash payment of $4000, including two assumed incumbrances of $900, and gave -their three promissory notes, of $1000 each, due in one, two and three years, respectively. In the spring of 1879, Daniel Irwin and Lewis Dyke took possession by moving upon the land. They made a division of the land between them, and have, from that time down to the present, continued to occupy and cultivate the lands so set apart between them, in severalty. Benjamin Dyke remained on the Davis farm, and died September 19, 1880. Of the purchase money which remained unpaid at the time of the purchase, Lewis Dyke has paid some $1200, a part thereof ($519) having been paid previous to the -death of Benjamin Dyke, and by the decree Lewis Dyke is to pay the balance of $500 remaining unpaid on the last of the three purchase money notes given by Benjamin Dyke and Daniel Irwin. After the purchase of the land, Benjamin Dyke treated the land as belonging to Lewis Dyke, often saying that he bought it for Lewis, and that it wras Lewis’ land. Although it does appear that on two occasions he expressed an intimation that he might not let Lewis have the 'land, this is of little weight against the greatly preponderating evidence of the contrary intention. Lewis Dyke made some small improvements upon the land, putting up a smoke-house about ten feet square, and a granary about five by ten feet, as one witness says, or as he says, ten by sixteen feet, and making some little fence.

On two or three occasions, Benjamin Dyke spoke of Lewis having four years’ work in the land, thereby recognizing that the purchase of the land was for Lewis in fulfillment of the agreement to buy a farm for the latter, and under which he came to live with his father and performed the services he did for him. It may be said, then, that it was on the faith of the agreement that he should have the land, that Lewis Dyke rendered the services which he did for his father, moved upon and lived on the land, making some improvements, and paid a considerable portion of the purchase money which his father agreed to pay for the land,—as much as $1200 of it. We think this brings the case within the rule of repeated decisions of this court, that where a father makes a verbal agreement with a son to convey to him a tract of land if the latter will go and live upon the same, make expenditures upon and improve it, and this is done in reliance upon the promise, a court of equity will enforce a specific performance of the agreement. Bright v. Bright, 41 Ill. 97; Kurtz v. Hibner, 55 id. 514; Langston v. Bates, 84 id. 524; Bohanan v. Bohanan, 96 id. 591; McDowell v. Lucas, 97 id. 489; Warren v. Warren, 105 id. 568; Smith v. Yocum, 110 id. 142.

The decree will be affirmed.

Mr. Justice Scott,

dissenting:

Dissenting as I do from the opinion of the majority of the court, I wish to state my views of the case at some length.

The case was before this-court at a former term, and was reported in 109 Ill. 528. A statement of the object of the bill and of the principal facts appears in the opinion then delivered. The former decree was reversed because the court granted defendant Lewis M. Dyke affirmative relief on his answer, without the filing of a cross-bill. In reference to the merits of the case it was then said: “As the decree is now to be reversed for another cause, the sufficiency of the evidence to sustain the claim of ownership put forth by Lewis M. Dyke to the entire one hundred acres of which the intestate in his lifetime held a legal title, will not now be discussed further than to say the evidence is not of the most satisfactory character. It leaves on the mind very grave doubts, if the contract between the father and son was as it is alleged in the answer to be, whether it could have been enforced against the father in his lifetime; and if it could not have been enforced against him, it certainly could not be enforced against his heirs since his death. The daughter ought not to be divested of her inheritance except upon the clearest and most satisfactory evidence.” Since then, Lewis Dyke has filed a cross-bill, in which is set forth the principal fact contained in his original answer, upon which he expects the relief that had been given to him by a former decree.

It seems to be conceded now, as it was on the former hearing, the verbal partition of the lands was fairly made, and no objection is interposed to having it confirmed as was done by the decree. Some complaint is now urged, as was done before, to the decree so far as it assumes to adjust the equities between the parties in interest as to payments made and to be made. It will not be necessary now to consider this branch of the case. The principal contention now is as to whether partition of the one hundred acres of which Benjamin Dyke died seized, shall be made between his son and daughter, who constitute his only heirs at law, or whether Lewis M. Dyke shall have a decree on his cross-bill for a deed of the land to himself, from the defendants to his bill.

The allegations of the cross-bill upon which Lewis M. Dyke claims title to one-half of the premises which are sought to be partitioned by the original bill, are, that although Benjamin Dyke held the legal title to the premises, he was not the real and equitable owner, but held such title in trust for complainant in the cross-bill, who, it is averred, is the real and equitable owner of amundivided one-half interest in the premises described in the original bill; that during a period of more than-five years, viz., from January, 1875, to February, 1879, he lived at the house of Benjamin Dyke, an'd during that time did farm work and had the care and control of his business, and also employed in the service of Benjamin Dyke several of his own horses and a large amount of farm machinery, and for such services rendered he never received any pay; that as an inducement to complainant to undertake such services, as above mentioned, Benjamin Dyke, on or about the first day of December, 1874, promised and agreed with complainant to buy a farm as soon as he was able, and that complainant should have it, and complainant avers, that, relying upon such promise and agreement of Benjamin Dyke, he went and lived with him, and worked for him, as above stated, and for no other consideration or reason whatever, and that in pursuance of such agreement, Benjamin Dyke, about the first-day of January, 1879, with Daniel Irwin, one of the complainants in the original bill, purchased the land sought to be partitioned by the original bill, and that the deed was made to them jointly; that as soon as such land was purchased, Benjamin Dyke placed complainant in possession of his share of the land, and ever since which time, viz., February 24, 1879, he has been in possession and occupancy of the same, and that Benjamin Dyke treated the land in all respects as belonging to and as the property of complainant in the cross-bill, though for some reason he neglected to make a deed to him. It is also alleged in the cross-bill, that Daniel Irwin, one of complainants in the original bill, and Lewis M. Dyke, soon after the land was purchased, made a division of it, and since then Irwin has in all respects recognized and treated complainant as the owner; but, obviously, what Irwin may have done is a matter of no consequence, as he himself had no interest in that part of the land, and no unauthorized acts of his could bar his wife’s-rights, whatever they may have been. It is also alleged, that during his occupancy complainant has made considerable improvements on the land, and paid notes given for the land to the amount of $1200, making such payments on the faith of the agreement that he was to have the land, as above set forth. The prayer of the cross-bill is, that the agreement alleged to have been made with Benjamin Dyke be declared valid, that defendants in the cross-hill may be bound by the division made of the land, and that Daniel Irwin and Narcissa Irwin be required to make complainant a deed for that part of the land claimed by him under the alleged agreement with Benjamin Dyke.

Defendants answering, deny many of the principal allegations of the cross-bill, and then pray for the same advantage of their answ'er as if they had demurred to the cross-bill.

The utmost complainant in the cross-bill can insist upon is, that the facts stated in his bill have been fully and satisfactorily proven, and the question naturally arises, are they sufficient in law to authorize the decree. This court reversed a decree in Smith v. Brithan, 98 Ill. 188, principally because the facts alleged in the bill were not sufficient to authorize the relief granted to complainant. The doctrine was distinctly declared in that case, the decree must be according to the allegations of the bill as well as proofs, and unless the bill states sufficient facts to warrant the decree, it can not stand. Much light will be shed on the subject of the present inquiry by ascertaining, as near as may be, the character of the cross-bill. It can hardly be said it is a bill strictly for the specific performance of any contract the decedent, if now living, would be bound to perform, or that his heirs, since his death, are obligated to perform. It is a significant fact the bill contains no allegation that Benjamin Dyke, by any contract, verbal or written, or for any consideration, either good or valuable, ever agreed to convey the land in question to complainant in the cross-bill. It would be a solecism to assume, where there is no contract of any kind founded upon a good or valuable consideration for a conveyance, there could be a decree for specific performance. In this case the bill does not assume to state any contract for the conveyance of the land. The bill proceeds on another theory. It is, that during a period of four years, viz., from January, lS7o, to February, 1879, complainant in the cross-bill lived at the house of Benjamin Dyke, and during that time did farm work and had the control of his business, and also employed in such service some of his own teams and his farm machinery, and for such services rendered he never received any pay; that as an inducement to complainant to undertake such services, Benjamin Dyke, on or about the first day of December, 1874, promised and agreed with complainant to buy a farm as soon as he was able, and that complainant should have it. Belying on such promise, complainant alleges he rendered services as stated. It is then alleged, that in pursuance of such agreement, on or about the first day of January, 1879, Benjamin Dyke, with Daniel Irwin, bought the land sought to be partitioned, taking the deed in the names of Benjamin Dyke and Daniel Irwin, and that immediately Benjamin Dyke placed complainant in possession of his share of the land, and thereafter treated the land as in all respects belonging to complainant. That was in March, 1879, and on September 19, 1880, Benjamin Dyke died seized of the land in controversy. The agreement, as set forth, is simply that Benjamin Dyke, more than six years before his death, promised complainant that if he would come and live with him, and render certain services, when he got able he would buy a farm, and he should have it. What is all this more than a mere promise by the father to make his son a gift when he should feel able to do so? The utmost that can be said of the agreement, as set forth in the cross-bill, is, that the father promised his son, when he got able to do so, to buy a farm, and the son should have it. That is a promise by the father to buy a farm for his son when he felt able to do it, and nothing more. Certainly no one would insist such a contract could be enforced against the father if living, or against his heirs since his death. But it is said it -was in pursuance of the agreement with the son that Benjamin Dyke bought the land sought to be partitioned among his heirs. It must not be forgotten it is nowhere alleged in the bill that Benjamin Dyke, either before or after he purchased the land, ever agreed to convey it to complainant in the cross-bill, and although he lived more than a year after he purchased the land, he never did convey it to his son, and it is not alleged that he ever agreed to or ever talked' about doing it. This view of the ease is strengthened by observing it is alleged in the bill that all the services complainant rendered were prior to the time Benjamin Dyke bought the land, and yet he took the deed in his own name. It is a most unreasonable assumption that if Benjamin Dyke bought this land for his son in consideration of past services, he would take the deed in his own name, and thereafter retain it, without any promise whatever, either written or verbal, to convey it to his son. Even if the evidence could be considered, which it can not, as aiding the allegations of the bill, it will be seen it makes no stronger case than the cross-bill itself. The extent of what is proven is, that Benjamin Dyke often said he intended the land for his son, Lewis. Of course that is simply the expression of the intention to bestow a bounty upon his son, and it certainly would not be claimed by any one that equity would compel the execution of such an intention, no matter how many equitable considerations there might be in its support. It may be that afterwards he determined not to carry out the intention he had formed to bestow upon his son a bounty, but whether he did or not is a matter of no consequence. It would be absurd to claim that what the decedent may have intended was binding either on him or his heirs.

The pretence Lewis M. Dyke paid a sum of money of over $1200, ór any sum, out of his own money, on the indebtedness of his father contracted for the land, has absolutely nothing in its support. Where did he obtain the money he paid ? It is alleged in the cross-bill that complainant had worked five years for his father, and never received anything for such services. Evidently he did not receive the money from that source,—that is, for services rendered his father. Did he have or receive money from any other source? It is not proved that he did. It appears he was married in a few days after he became of age, and that he farmed one year on a rented farm before he went back to live w'ith his father. The proof is he made nothing during the year he farmed. There is no pretence or claim that complainant borrowed the money he paid on the indebtedness of his father. It is therefore plain, from the evidence, that the money he used in making the payments was money that was realized from the farm products raised on and sold from his father’s farm, and was, in fact, his father’s money. Nothing can be plainer than that complainant had no income from any source during the time he worked for his father, and for the services he rendered his father he alleges in his bill he received nothing.

I am of opinion the decree of the circuit court should be reversed.


author: Mr. Justice Mulkey

text:
    Edward C. Kehr v. William H. Snyder.

      Filed at Mt.Vernon June 13, 1885.

    Accretions —as to lands bordering upon a river—rule of adjustment as between adjacent riparian owners. A tract of land bordering upon the Mississippi river was divided into parcels, some of which subdivisions or lots extended to the river bank, as it then was. These lots became the property of various persons. Subsequently there were accretions along the river front, and in adjusting the matter of such accretions among the several adjacent riparian owners, it was held, the proper mode was, to measure the entire river front as it was found to be when the lots were laid out, and note the aggregate number of feet frontage, as well as that of each lot; then measure a line drawn as nearly as may be with the middle thread of so much of the stream as lies opposite the shore line so measured; then divide the thread line into as many equal parts as there are lineal feet in the shore line, giving to each proprietor as many of these parts as his property measures feet on the shore line; and then complete the division by drawing lines between the points, designating the lot or parcel belonging to each proprietor both upon the shore and river lines.
    Appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    Mr. Edward C. Kehr, pro se:

    The rule for the division of accretions is, either—
    First—To apportion them between the respective riparian owners in the proportion in which the new shore line hears to the old. Deerfield v. Ames, 17 Pick. 41; Jones v. Johnson, 18 How. 150; 1 Blackf. 209; Wonson v. Wonson, 14 Allen, 71; Batchelder v. Kenison, 51 N. H. 496; Railroad Co. v. Hannon, 37 N. J. L. 276. Or,—
    Second—To extend the side lines out from their respective termini on the old shore, at right angles with the course of the river. Knight v. Wilder, 2 Cush. 199; Stone v. Boston S. and I. Co. 14 Allen, 230; Clark v. Campan, 19 Mich. 325;
      Gas Light Co. v. Industrial Works, 28 id. 122; Miller v. Hepburn, 8 Bush, 326; Wood v. Appal, 63 Pa. St. 210; Thornton v. Grant, 10 R. I. 477; Aborn v. Smith, 12 id. 355; Manchester v. Point, etc. 13 id. 355; Gould on Waters, sec. 162.
    If either of these rules is found to be the true rule of law, then the circuit court erred in refusing the declarations of law asked by the appellant, and the judgment below is erroneous. The appellant contends that the rule secondly stated is the one applicable to this case, although the one first stated is more advantageous to him in this instance. Either rule will defeat the appellee.
    The rule claimed by the appellee, and adopted by the court below, finds no support whatever in the law. Though often urged, it has uniformly been rejected by the courts. “One common principle which pervades all modes of division is, that no regard is paid to the direction of the side lines between contiguous proprietors.” Note to Hagan v. Campbell, 33 Am. Dec. 280.
    Messrs. Wilderman & Hamill, for the appellee:
    The plaintiff’s lot being bounded on the Mississippi river, his title extends to the thread or middle of the stream. See Washington Ice Co. v. Shortall, 101 Ill. 46; Warren v. Thomaston, 75 Maine, 329 ; Luce v. Carley, 24 Wend. 451.
    The thread of the stream is the middle line between the shores, irrespective of the depth of the channel or the direction of the current, taking it in the natural and ordinary stage of the water. Warren v. Thomaston, 75 Maine, 329; McCullough v. Wall, 4 Rich. (S. C. L.) 68; Trustees, etc. v. Dickenson, 9 Cush. 544; Tyler on Boundaries, 75-77; Deerfield v. Ames, 17 Pick. 41; Angell on Water-courses, (7th ed.) sec. 10, note 2.
    There is no fixed rule for the division of alluvium accrued to uplands bounded upon rivers, among the proprietors of the adjoining lots. Winnisimmet Co. v. Wyman, 14 Allen, 432.

      The rising of the sand-bar known as “Arsenal Island,” in the river, does not in the least change the middle line of the river, but that line must be surveyed as if the island were underwater. Missouri v. Kentucky, 11 Wall. 395; Tyler on Boundaries, 76, 77; Angeli on Water-courses, (7th ed.) sec. 44; Boone on Real Prop. sec. 254; People v. Canal Appraisers, 13 Wend. 355.
    A line drawn at right angles to the thread of the stream,— not the current of the water,—from the river end of the dividing line between lots 233 and 232, on the upland, shows appellant’s fence to be on appellee’s land.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is an action of ejectment, brought by William H. Snyder, the appellee, against Edward C. Kehr, the appellant, to recover a triangular piece of land situate on the eastern bank of the Mississippi river, in East St. Louis, described in the declaration as “that part of lot 233, in the third subdivision of Cahokia commons, which lies west of the right of way of the East St. Louis and Carondelet railway, and extends to the center of the Mississippi river. ”

The third subdivision of Cahokia commons was laid out and platted by the proper authorities in I860, under the provisions of the act of 1841, (see Laws of 1841, page 65,) and constitutes a part of United States survey No. 759. The western tier of lots of this subdivision is bounded on the west by the Mississippi river, and when laid off, in 1860, the eastern bank of the river marked their shore line. Of these lots appellant owns No. 232, and appellee No. 233, the latter lying immediately north of the former, and both fronting the river. Since they were laid off, in I860, a large body of land, or accretions, has formed in front of said third subdivision of Cahokia commons, so that the shore boundary of these lots is not the same as it was in I860, when laid out and platted. The strip of land in controversy is a part of these accretions, and whether it belongs to the plaintiff or to the defendant depends entirely upon what rule is to be adopted in making the division of the accretions. If the line dividing the lots of plaintiff and defendant as originally laid off, and terminating on the shore line as it then existed, is to be simply extended through the accretions to the center of the river, without any change of direction or deflection of the line, it is conceded the land in dispute belongs to the plaintiff, but not otherwise. The position is also taken in appellee’s brief, that “a line drawn at right angles to the thread of the stream,— not the current of the water,—from the river end of the dividing line between lots 233 and 232, on the upland, shows appellant’s fence to be on appellee’s land, ”—or, in other words, that the land belongs to the plaintiff. While the testimony does not distinguish as clearly between the channel or current and the middle thread-of the river as it might, yet when the whole of the evidence is considered we do not think it warrants the claim of appellee. Treating this as a material question in the ease, appellee must be held responsible for the consequences if it has been left in doubt.

As to what is the proper rule for the division of accretions in cases of this kind, is a subject that has been so often and" ably discussed by the courts of last resort in this country, that we do not deem it necessary, if, indeed, proper, to do anything more than to merely state the proper rule, as we understand it, and refer to some of the cases in which a full discussion of it will be found.

The rule as stated in appellant’s third proposition, which the court refused to hold as law, we regard as substantially correct,—that is to say, “measure the entire river front of survey 759 as it existed in 1860, when the third subdivision of Cahokia commons was first laid out, ” and note the aggregate number of feet frontage, as well as that of each parcel or lot; then measure a line drawn as near as may be with the middle thread of so much of the stream as lies opposite the shore line so measured. Having done this, divide the thread line thus measured into as many equal parts as there are lineal feet in the shore line, giving to each proprietor as many of these parts as his property measures feet on the shore line; then complete the division by drawing lines between the points, designating the lot or parcel belonging to each proprietor both upon the shore and river lines. This rule seems to be reasonable, and is well supported by authority: Gray v. Deluce, 5 Cush. 9; Thornton v. Grant, 10 R. I. 477; Aborn v. Smith, 12 id. 370; Miller v. Hepburn, 8 Bush, 326; Knight v. Wilder, 2 Cush. 199. The rule adopted by the court below is .practically without authority to support it. An examination of the cases will show that in the division of accretions the side lines between adjoining riparian owners are, as a general proposition, wholly disregarded. Thus, in Manchester v. Point Street Iron Works, 13 R. I. 355, it is said : “One common principle which pervades all modes of division is, that no regard is to be paid to the direction of the side lines between contiguous proprietors. ” (See, also, in this connection, note to Hagan v. Campbell, 33 Am. Dec. 280.) In Gould on Waters, sec. 162, it is said: “In all cases' where practicable, every proprietor is entitled to a frontage of the same width on the new shore as on the old shore, and at low water mark as well as high water mark, ivithout regard to the side lines of the upland, unless referred to as guides in particular grants, or established as boundaries by agreement or conduct of the eo-terminous proprietors, or the acts of public authorities. ”

There may be special circumstances in some cases requiring a modification of the rule here laid down; but as between the present parties, we see nothing in the record before us to take the ease out of the operation of the rule. Indeed, there may be special circumstances, as between some of the parties owning portions of this river front, that would make it inequitable, ■ as between themselves, to enforce the rule as here stated. But that is no reason, assuming such cases to exist, as is intimated, why the general rule should not be applied as between the present parties.

The judgment of the circuit court will, for the reasons indicated, be reversed, and the cause remanded for further proceedings in conformity with this opinion.

Judgment reversed.


author: Mr. Justice Scott

text:
    Asahel Gage v. John Arndt.

      Filed at Ottawa June 13, 1885.

      Appeal—transcript of record filed in wrong court. "Where an appeal was allowed to the Appellate Court upon condition of filing a bond within a given time, which was done, and the transcript of the record was filed in this court, and there was no joinder in error or appearance by the other party, so that the'cause could be treated as a writ of error, there being no appeal for this court to act on, the case was stricken from the docket.
    Appeal from the Superior Court of Cook county; the.Hon. George Gardner, Judge, presiding.
    Mr. Augustus N. Gage, for the appellant.
   Mr. Justice Scott

delivered the opinion of the Court:

The original bill in this case was filed by John Arndt, against Asahel Gage, in the Superior Court. It is alleged in an amended bill filed by leave of court, that defendant had two tax deeds on the property described in the original bill as belonging to complainant, each of which deeds it is prayed may be set aside, because of irregularities mentioned in the bill, as a cloud upon the title of the property. Defendant answered the bill, and denied all irregularities charged, and affirmed the validity of his tax deeds. On the trial the court found a certain amount was due to defendant for costs and taxes by him expended on the property, and decreed that on the payment of the sum so found due from complainant to defendant, the tax deeds be set aside and held for naught. Defendant excepted to the decision, and prayed to be allowed an appeal to the “Appellate Court within and for the First District of this State, ” which was granted to him on condition he would file an appeal bond, with surety to be approved by the court, in the penal sum of $250, together with his certificate of evidence, in thirty-five days from the date of the decree. On the 7th day of January, 1885, which was within the time limited by the order of the court, defendant filed an appeal bond, with sureties, in which it is recited he had prayed an appeal to the Supreme Court, and has since filed the transcript of the record in this court.

As the Superior Court never granted defendant an appeal to the Supreme Court, it is obvious the transcript of the record has been inadvertently filed in this court as upon an appeal. Nor has there been any joinder in error, or any appearance by complainant, so that it can not be said the cause is pending in this court on error. There is no appeal here for this court to act upon. The case will' be stricken from the docket. Chicago, Pekin and Southwestern Railroad Co. v. Town of Marseilles, 104 Ill. 91.

Stricken from docket.


author: Mr. Justice Craig

text:
    Edward P. Stoker v. The People of the State of Illinois.

      Filed at Mt. Vernon June 13, 1885.

      Larceny—failure of constable to pay over money collected on execution. A constable who collects money on an execution, and falls to pay the same to the party entitled thereto, is not liable to indictment and conviction for larceny under section 74 of the Criminal Code, but he may be fined under section 79.
    Writ of Error to the Circuit Court of Jackson county; the Hon. 0. A. Barker, Judge, presiding.
    Messrs. Allen & Harben, for the plaintiff in error:
    The indictment was under section 74 of the Criminal Code, which presupposes that the goods must have been “delivered” to the party charged, as contradistinguished from a “levy” or a “taking” under legal process,—that is, they must have been given over in trust.
    The case here falls within the provisions of section 79 of the Criminal Code. It defines the offence and fixes the punishment, thereby excluding all other punishments for this offence. Gaddis v. Richland County, 92 Ill. 119; Eldridge v. Pierce, 90 id. 474.
    The money in the hands of the officer is not the' property of tffie plaintiff in execution until paid over to him. Zschocke v. People, 62 Ill. 127; Lightner v. Steinagel, 33 id. 513.
    Mr. George Hunt, Attorney General, for the People:
    It is contended that the indictment should have been found under section 79 of the Criminal Code, and not under section 74. It is true section 79 provides for the punishment of certain offences by constables and other officers, but not for embezzlement. The qffence provided for in section 79 is a failure or refusal “to pay over money collected by him, less his proper charges, on demand by the person entitled to receive the same.” This offence is only a misdemeanor. The proof may clearly establish it, and yet by no means show the crime of embezzlement.
    An indictment for embezzlement will not lie for the offence named in section 79, against a constable, and yet a constable, as such, may be guilty of embezzlement. Therefore the provisions of this section do not preclude the right to punish such officer in any other manner than as therein provided, and the indictment could not properly have been found under section 79.
    The indictment sets forth the fiduciary character of the accused, to-wit, that he was a constable; that as such he did embezzle and convert to his own use the money, goods and chattels of another, and so committed larceny, bringing the case within the rule laid down in Kibs v. People, 81 Ill. 599.
    The statute (section 74) not only presupposes the goods must have been delivered to the party charged, but says, in terms, “fraudulently converts to his own use the money, etc., delivered to him.” The statute does not say, “delivered to him by the owner thereof, ” or “by the person entitled to the possession thereof. ” The offence is the fraudulent conversion to-his own use of money delivered to him in a fiduciary capacity.
    The payment to the officer discharged the debt to Aultman, Miller & Co., and they were then entitled to the money, —the identical money received by him for them. Any other rule would render it impossible for an officer to be convicted of larceny for an embezzlement of the money.
    But the conviction may be sustained under section 80 of the Criminal Code. There can be no dispute here that a constable comes within the list of officers enumerated in that section, and that the money in question was “in possession of such officer by virtue of his office.”

      Where the indorsement was indictment for robbery, but in the allegations it was a good indictment for larceny, the defendants were properly required to plead. Collins v. People, 89 Ill. 233.
    Messrs. McElvain & Martin, also for the People:
    It will be observed that the language used in section 74 of the Criminal Code is comprehensive in its scope, and includes all who may embezzle.
    The offences punishable under section 79 are not those prompted by a felonious intent, and under it a party could be justly prosecuted for a refusal to pay over moneys collected by him, whether he converted them to his own use, .or embezzled them, or not.
    It is not necessary that Aultman, Miller & Co. should have an absolute title or right to the specific money collected by Stoker,.in order to sustain- the verdict in this case. A general or qualified property in the goods stolen or embezzled, and the right to possession, are sufficient. Moore on Grim. Law, sec. SOI, and authorities cited; Wharton on Grim. Law, sec. 932; Barnes v. People, 18 Ill. 52.
    The general property in the money collected by Stoker was in Aultman, Miller & Co., the judgment creditor. When goods are levied upon, for the purpose of sale, by a constable, he has a special property in them, the judgment debtor retaining a general property in them until their lawful sale on execution, when the judgment creditor acquires a general property in the proceeds of the sLale, whether he receives such proceeds or not. Zschocke v. People, 62 Ill. 127; 2 Arch-bold’s Crim. Pr. and PL 358.
    It matters not whether Aultman, Miller & Co. ever had this money in possession or not. Property may be embezzled before it reaches its owner. Wharton on Grim. Law, secs. 1010, 1049.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an indictment against Edward P. Stoker, in the circuit court of Jackson county, for larceny, under section 74, chapter 38, of the Revised-Statutes of 1874, which declares: “Whoever embezzles, or fraudulently converts to his own use, or secretes with intent to embezzle or fraudulently to convert to his own use, money, goods or property delivered to him which may be the subject of larceny, or any part thereof, shall be deemed guilty of larceny. ” On a trial before a jury the defendant was found guilty, and his term of imprisonment was fixed at one year in the penitentiary.

The facts relied upon to sustain the conviction may be stated in a few words. In 1882 the defendant, Stoker, was a constable in Jackson county. Aultman, Miller & Co. obtained judgments against William Spence, Jr., upon which executions were issued, and placed in the hands of the defendant, as constable, for collection. In the month of September of that year the defendant collected on the executions $211.50, for which he gave his receipt as constable. The money collected the defendant failed to pay over.

Several questions have been discussed in the argument, but the principal point in the case is, whether, under the facts, the defendant was liable to be indicted and convicted under section 74 of the Criminal Code, heretofore set out. It will be observed that a constable is not mentioned in this section of the statute. It will also be found, upon an examination of section 79 of the same chapter of the statute, that said section in express terms includes constables. It is as follows: “If any attorney at law, justice of the peace, constable, * * * or other person authorized by law to collect money, shall fail or refuse to pay over any money collected by him, less his proper charges, on demand by the person entitled to receive the same, or his agent duly authorized, he shall be fined, ” etc. There can be no doubt in regard to the fact that the defendant was liable to be prosecuted and convicted under this section of the statute. He was a constable, and in his official capacity as such he collected money, and failed to pay it over. His case falls directly within the terms of this section of the statute. It is true that the word “whoever,” used in section 74, has a broad and comprehensive meaning; but at the same time, it is unreasonable to believe that the legislature intended that a constable should be prosecuted under both sections of the statute. Under section 74 the offence consists of fraudulently converting to his own use, etc., money or property delivered to the person charged with the offence. Here, the money wras not delivered to the defendant, within the meaning of the statute. It was collected by him, in his official capacity as constable, upon certain executions which came into his hands as an officer. It can not be said that Aultman, Miller & Co. delivered the defendant money, nor is it accurate to say that William Spence, the person against whom defendant held the executions, delivered him money. If the defendant under the executions had levied upon property, and sold and converted it into money, as a constable is required to do under the statute, it would not, under such a state of facts, be correct to say money had been delivered to him, but, on the other hand, the proceeds of the sale would be money collected by him. Nor can the fact that the money wras collected without a levy upon property, make any difference. It was still money collected.by him. If we are correct in this, the defendant did not fall within the terms of section 74, and was not liable under that provision of the statute.-

The judgment of the circuit court will be reversed and the cause remanded.

Judgment reversed.


text:
    The Union Railway and Transit Company v. Thomas Kallaher, Jr., Admr.

      Filed at Mt. Vernon June 13, 1885.

    1. Negligence—two corporations acting together—when the servants of one to be regarded as also the servants of the other. In an action to recover for the death of the plaintiff’s intestate, occasioned, as was alleged, by the wrongful act of the servants of the defendant company, a railway and transit company engaged in transferring, with its own motive power, trains of cars over the St. Louis bridge across the Mississippi liver, it appeared this service was performed under a_ private arrangement between the defendant company and another corporation—the bridge company—for a compensation paid by the latter company, the two companies thus acting together in the transportation of passengers over the bridge, and in that regard there was concert of action between them. The collector of fares for the bridge company was on the trains crossing the bridge, by the consent, and certainly with the knowledge, of the defendant company, and it permitted that servant of the bridge company to control the movements of its trains. On the occasion in question, the plaintiff’s intestate was a passenger on one of defendant’s trains, and while the train was passing over one of the approaches to the bridge it was stopped in obedience to a signal given by the collector of fares for the bridge company, and by his direction the passenger was put off the train upon a trestle, from which he fell and was killed. It was held, as affecting the question of the liability of the defendant, that the collector of fares for the bridge company, while he was the servant of that company, was to be considered, for the time being, at least, and while so engaged on the train, as the servant of the defendant also.
    2. Instruction—amendment by erasure, leaving words still legible. It was objected that in erasing a sentence from an instruction, the words were still legible. The matter intended to be stricken out was of no importance whatever, and it mattered little whether the jury could still read it or not. The words so crossed out were still legible, but not plainly so, and it was not likely any jury would consider them after they had been erased in that manner. There was nothing in the objection.
    Appeal from the Appellate Court for the Fourth District; —heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. George W. Wall, Judge, presiding.

      Messrs. G. & G. A. Koerner, for the appellant.
    Mr. Charles W. Thomas, for the appellee.
   Mr. Justice Scott

delivered the opinion of the Court:

This suit was brought in the circuit court of St. Clair county, by Thomas Kallaher, Jr., administrator of the estate of Thomas Kallaher, Sr., deceased, against the Union Railway and Transit Company, to recover damages resulting to the next of kin on account of the death of the intestate, which it is averred was caused by the wrongful conduct of defendant.

It is averred in the declaration that on the 22d day of September, 1878, defendant was operating a railroad on the Illinois and St. Louis bridge and its approaches, between the Union depot in St. Louis and the relay depot in East St. Louis, and that defendant was a common carrier, and carried passengers for hire; that the intestate, Thomas Kallaher, Sr., became a passenger on one of defendant’s trains, and that while he was such passenger, defendant’s servants unlawfully and forcibly ejected him from such train, and compelled him to leave it, in the night time, upon the approach to the bridge, at a place where the train was upon an open piece of trestlework elevated a great distance above the ground, and where it was dangerous and unsafe for a man to be afoot, and where there was no regular or usual stop^xmg place or station for taking on or putting off passengers, and that the intestate, without any fault on his part, while endeavoring to escape from such dangerous place, was precipitated to the ground and instantly killed. The declaration contains the usual averments as to the next of kin, and the appointment of plaintiff as administrator of the estate of the intestate, and that whatever damages might be recovered could be distributed under the provisions of the statute. Two amended counts were added to the declaration by leave of court, in which it was more definitely stated defendant’s servants assaulted the deceased, and carelessly and negligently ejected him from the cars in the night time, and at a place on its railroad where there is open and unguarded trestlework elevated a great distance above the ground. To the declaration averring the facts relied on to show a cause of action, defendant pleaded not guilty. It seems the case was three times submitted to a jury for trial. On the last trial the jury found the issues for plaintiff, and assessed his damages at the sum of $5000. The motion made for a new trial was overruled, and the court entered judgment on the verdict. That judgment was affirmed in the Appellate Court for the Fourth District, and defendant brings the case to this court on its further appeal.

This court is not asked to pass upon the facts of the case any further than to find whether they give countenance to the instructions complained of. With that view the testimony lias been subjected to a careful examination. Whether the evidence sustains the averments of the. declaration, is, of course, a question. not open to investigation in this court. The duty and responsibility of ascertaining that fact are devolved by law upon the trial and Appellate courts, and the judgment of the latter court on all controverted questions of fact is made conclusive on this court.

Only two instructions were given for plaintiff, to both of which defendant has saved exceptions in the usual way. It is not insisted the first instruction does not state a correct principle of law, but the objection taken is, there is not a particle of evidence deceased exercised ordinary care for his personal safety. It is true, as counsel contend, the record contains little, if any, direct testimony concerning the care the intestate observed; but it must be remembered the accident occurred in the night time, and at a point where it W'as seen by only a few persons. All the facts and circumstances connected with the casualty were proven by the best evidence obtainable, and it is thought there was enough in the ease to warrant the court in giving the instruction, as was done.

As respects the second instruction given for plaintiff, it is said there was no proof the servants of the two companies acted together in the transportation of passengers, nor was„ there any evidence the bridge company exercised any authority, or performed duties thereon, with the knowledge and permission of defendant. It is thought the testimony in the record proves more on this branch of the case than the objection taken seems to concede. There is evidence the bridge company employed defendant, and paid it a compensation for taking trains over the bridge. This, of course, was a private arrangement between the two corporations. In that way the two corporations,—defendant corporation and the bridge company,—acted together in the transportation of passengers over the bridge, and there was concert of action between them. But more than this, in fact, appears from the testimony. The special business of defendant, as is proven, was to take with its own motive power all trains arriving at and departing from St. Louis, over the bridge,—that is, from the relay depot in East St. Louis to the Union depot in St. Louis, and from the Union depot to the relay depot. It is further proven the collector of fares for the bridge company was on the train by the consent, and certainly with the knowledge, of defendant, and it permitted that servant of the bridge company to control the movements of the train. It appears the defendant stopped the train in obedience to the signal given by the servant of the bridge company, and for the time being, at least, and while so engaged on the train, he must be regarded as the servant of defendant, also. In this view the instruction states the law with sufficient accuracy.

The modification made to the first of defendant’s instructions by adding an explanatory sentence, was proper enough to be made; but complaint is made of the action of the court in striking out the last sentence of the instruction in such a manner as to be still legible. The matter stricken out in that manner was of no importance whatever, and it matters little whether the jury could still read it or not. The words so crossed out were still legible, but not plainly so, and it would seem that no jury would consider them after they had been erased in that manner. The objection has really nothing in its support.

Nor was there any error in the action of the court in cutting off the last sentence of the third instruction asked by defendant. It did not state a correct principle of law. The credibility of the several witnesses is a question for the jury, concerning which it is not the province of the court to express an opinion.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Chief Justice Scholfield

text:
    Daniel Powell v. Jane Powell et al.

      Filed at Ottawa June 13, 1885.

      ■ 1. Witness—competency—widow, on behalf of herself and the heirs— on bill to establish a trust in favor of the estate. On bill filed by the widow and heirs of a deceased person to establish a trust alleged to have existed in favor of the deceased in his lifetime, and enforce the same for the benefit of herself and the heirs, the widow is a competent witness in her own behalf, and in behalf of the heirs, as to all matters affecting the transaction of which she had personal knowledge.
    2. Same—competency of defendant in suit by widow' and heirs to establish and enforce a trust—husband and wife. On bill by the widow and heirs of a deceased person to establish and enforce a trust in real estate, the defendant is not a competent witness to testify in his own behalf to anything but matters falling within the exceptions to section 2, chapter 51, of the Revised Statutes of 1874. .Under these exceptions, where witnesses in behalf of the complainants have testified to conversations, admissions or transactions of such defendant, he is competent to testify as to the same conversations, admissions or transactions.
    3. Same—wife for the husband. But such a case is not one wherein the wife of the defendant is rendered a competent witness, by the statute, to testify in his behalf. There was no element of agency on her part in connection with the transaction.

      i. Trust—taking title to hold as an indemnity—whether a trust. A contract was made for the purchase of a lot of ground for $900, $100 of which was to be paid down, and eight, notes given for the balance, bearing six per cent interest. The purchaser being unable to make the first payment, induced his father to advance.the same, and give his individual notes for the balance, and the contract for the deed was made directly to the father as a security for the money so advanced, and to indemnify him against liability on his notes for the remaining purchase money. The son afterward repaid his father the sum so advanced, went into possession of the lot, paid the taxes, and made valuable improvements thereon, and paid the interest on the notes. It was held, that the father held the bond for the deed in trust for the son.
    5. Tender—in chancery—on bill to declare and enforce a trust. Where the object of a bill is not to redeem from a trust, but to declare and enforce the same, the defendant holding the title to land in trust to indemnify himself from liability in respect to the purchase money, there is no necessity to allege or prove a tender. It is sufficient to allege a readiness and willingness on the part of the complainant to pay the obligations on which the defendant is liable.
    6. Costs—in chancery—bill to enforce trust. A party who holds the evidence of title to a lot in trust for the real owner, as a security against the payment of notes given by him for the purchase money, and denies the trust and claims to have bought the property for himself, so as to make it necessary to file a bill against him by the heirs of the original cestui que trust, can not complain that he is adjudged to pay part of the costs, as he might properly have been required to pay all the costs.
    Appeal from the Circuit Court of Peoria county; the Hon. John Burns, Judge, presiding.
    Mr. George A. Wilson, and Messrs. Puterbaugh & Puterbaugh, for the appellant:
    Parol evidence to establish a trust is not regarded with favor, and the court will not act upon it if it be not strong and irrefragable, or if it be contradicted by other testimony. Lantry v. Lantry, 51 Ill. 460; Dwen v. Blake, 44 id. 155;
      Clarke v. Quackenbos, 27 id. 260; Sharp v. Smitherman, 85 id. 154; Hill on Trustees, 167, and eases cited in notes.
    Jane Powell, the widow of Martin Powell, was not a competent witness. Smith v. Long, 106 Ill. 485; Insurance Co. v. Foster, 90 id. 121; Mueller v. Rebhan, 94 id. 142; Pyle v. Oustatt, 92 id. 216.
    The defendant was competent to testify to the same conversations, etc., given by other witnesses against him. Penn v. Oglesby, 89 Ill. 113.
    Upon the case made out by the bill, which is, in effect, one to redeem, the complainants, in order to recover costs, must have tendered the amount due before commencing suit. Barnard v. Cushman, 35 Ill. 452;
    The court also finds in the decree that the original $100, to secure which the bond was made out in the name of the defendant, has not been paid. If this is so, there is no reason for requiring the defendant to pay costs until he has placed himself in the wrong, by refusing the amount due, upon a proper tender made.
    Mr. Daniel F. Raum, Mr. George B. Foster, and Messrs. Jack & Moore, for the appellees:
    Jane Pow'ell was a competent witness, as section 5, chapter 51, of the Be vised Statutes, has no application. Sections 1 and 5 of that act did away with the common law rule as to the competency of husband and wife to testify as to transactions and conversations occurring during marriage. Mueller v. Rebhan, 94 Ill. 142.
    The exclusion of husband or wife as a witness can only be in a case where one or the other is a party, for only under such circumstances could they testify for or against each other. The fact that the transaction or conversation occurred during marriage does not alone constitute the prohibition. The wife must be called as a witness for or against her husband. Deniston v. Hoagland, 67 Ill. 265 ; Galbraith v. McLean, 84 id. 379.

      Daniel Powell is not, however, a competent witness, except as to certain admissions or conversations to which some of the witnesses testify as made to them out of the presence of Martin Powell, (Eev. Stat. chap. 51, sec. 2,). and he being incompetent, his wife, Margaret Powell, is also incompetent.
    The transaction shows a trust or security to Daniel Powell for the money by him advanced, and as indemnity against his liability. This being shown, all the consequences attached to a trust or mortgage follow. Once a mortgage always a mortgage. Russell v. Southard, 12 How. 139; Cameron v. Irwin, 5 Hill, 280; Remsen v. Hay, 2 Edw. Ch. 535; Waters v. Randall, 6 Metc. 484; Willetts v. Burgess, 34 Ill. 494; Patterson v. Yeaton, 47 Maine, 308.
    The awarding of costs in chancery is a matter of discretion for the most part. Smith v. Cremer, 71 Ill. 185; Knowles v. Knowles, 86 id. 1.
    The fact that defendant denied the right to the relief sought, and claimed the land to be his absolutely, dispensed with the tender to him of the amount which was his due. Hanna v. Ratekin, 43 Ill. 462; Simms v. Clark, 11 id. 137; Thayer v. Meeker, 86 id. 470.
    A court of equity is not bound by any fixed rules in relation to the tender of money. When it ivould appear, from all the facts proven, that a tender would have been unavailing, and would not have prevented costs, a tender is not necessary. Webster v. French, 11 Ill. 254; Barnard v. Cushman, 35 id. 451; Dwen v. Blake, 44 id. 135.
   Mr. Chief Justice Scholfield

delivered the opinion of the Court:

The object of this bill is to declare and enforce a trust, and to that end to enjoin, etc. The substance of the principal allegation is this: Martin Powell, who has since deceased, in June, 1880, entered into a contract with Anna M. Dobbins for the purchase of a lot in the city of Peoria. The price to be paid was $900, of which $100 was to be paid down, and promissory notes of $100 each, hearing interest at the rate of six per cent per annum from date, were to be given for the payment of the remaining $800, and she was to give a title bond, obligating herself to make conveyance upon payment of these promissory notes. Martin was unable to raise the $100 with which to make the first payment, and his financial condition was very low. He entered into a contract with his father, Daniel Powell, whereby the latter agreed to advance the $100 payment, execute his individual notes for the deferred payments, and take the title bond to himself, and hold it for the benefit of Martin, and until Martin should repay him. Daniel advanced the $100, which Martin applied as a first payment on the property, gave his individual notes for the deferred payments, and took title bond to himself, as provided by the contract. Soon afterwards Martin repaid Daniel the $100, and entered into the exclusive possession of the property, and since that time he has paid the interest on the notes and all taxes and assessments upon the property. He has erected valuable improvements upon the property, a part of which he has occupied as a saloon. Martin died intestate, leaving the principal upon the notes •unpaid. The bill avers a readiness and willingness to pay the notes and accruing interest, and charges that Daniel Powell threatens to pay off the notes and take a deed to himself, in violation of his trust. The answer denies the trust, and charges that the purchase was by Daniel alone, Martin acting therein merely as his agent. On hearing, the circuit court found the facts in accordance with the allegations of the bill, and decreed allowing Daniel to make payment of the promissory notes and take title to himself, to be held in trust for the complainant until reimbursed the money advanced by him.

Some question arose during the trial as to the competency of'wdtnesses. It is quite clear that Jane Powell, widow of Martin Powell, was a competent witness. She was not called to testify in behalf of Martin Powell, but in behalf of herself, as his widow, and the other complainants, who are his children and heirs at law. Even at common .law, but for her. interest as dowress she would have been a competent witness in behalf of the children and heirs at law as to all matters coming to her knowledge through • sources other than communications of her husband. (1 Greenleaf on Evidence, sec. 338; Lockwood v. Mills et al. 39 Ill. 602.) The first section of chapter 51, of the Revised Statutes of 1874, page 488, removes the disability on' account of her interest, and so she was a competent witness as to all matters affecting the transaction of which she had personal knowledge. Deniston et al. v. Hoagland, 67 Ill. 265; Galbraith v. McLain et al. 84 id. 379; Mueller v. Rebhan, 94 id. 142. The cases cited by counsel for appellant, Pyle v. Oustatt, 92 Ill. 216, Westchester Fire Ins. Co. v. Foster, 90 id. 121, and Smith v. Long, 106 id. 485, are totally unlike the present case, and decide nothing inconsistent with this view of the law.

Daniel Powell is directly interested in the event of the suit, being the sole defendant, and the adverse parties sue as heirs at law of the deceased, Martin Powell, and he is hence incompetent to testify to anything but matters falling within the • exceptions to section 2, chapter 51, of the Revised .Statutes of 1874, supra. Under those, where witnesses on behalf of the complainant have testified to conversations, admissions or transactions of his, he is competent to testify in regard to the same'conversations, admissions or transactions. The case is not one wherein his wife, Bridget, is rendered a competent witness by the statute to testify in his behalf, and her evidence, therefore, can ntit'b'e considered. The probfs clearly show that she did not act as the agent of her husband in this transaction.

Considering the evidence that we deem competent, alone, it is impossible to say that we are satisfied the circuit court erred in rendering the decree. Anna M. Dobbins resided in Chicago when the trade was made, and she contracted through her agent, H. C. Bestor, of Peoria. There is not the slightest reason apparent for discrediting his testimony in any respect. He has no interest in the suit, and no apparent motive for caring as to the result. He is intelligent, and., has a clear recollection of the transaction. He shows that the purchase was by Martin Powell for himself, and that Daniel Powell was only a trustee. He is sustained by other witnesses, and by circumstances,—such as, the making of contracts by Martin in his own name, for the improvement of the property, and the working of Daniel Powell, in making the improvements, as a common laborer, for Martin, and his receiving wages as such. Jane Powell’s evidence is also direct, positive and full to the fact that the property was purchased by Martin for himself, and that Daniel took the title bond in trust; but we place less reliance on her evidence on account of her interest in the result of the suit.

There is much evidence directly contradictory of that on behalf of the complainant, some of which can be reconciled with it, and a considerable amount that can not be. Some witnesses who testify to declarations of Martin to the effect he admitted that the property belonged to Daniel, testify, doubtless, very candidly and very truthfully; and yet their evidence, when construed in the light of the surrounding circumstances, makes very little in favor of the defendant.

The motive for having the contract in the name of Daniel, and the bond executed to him, was to afford Daniel a certain and ample security for all advances to be made and all liabilities to be incurred by him. As between them, the ownership was to be in Daniel until he was reimbursed by Martin. -Legally the title was in Daniel; equitably it was in Martin,— and this they evidently well understood. It is quite apparent from the evidence, that when Martin was trying to obtain credit, and wished to magnify his ability to pay, he ignored his father’s legal rights, and assumed that his equity embraced every title and claim to the property; and when he was threatened with suits of creditors whom he wished to put off, he assumed that his father’s legal rights embraced everything of value in the title to the property. In neither contingency was his language wholly and unqualifiedly true. The contract, literally, was with Daniel, and Martin was not at all times as particular as entire truth required to disclose the trust in his favor.

We are not inclined to give much weight to some of the testimony of the brothers of Martin. They testify, quite evidently, under deep feelings of prejudice. It wall subserve no useful end to recapitulate and comment upon the evidence of each witness. We are content that after having carefully and dispassionately considered all the evidence, we are unable to say that the decree below is clearly wrong.

The bill is not one to redeem, but one to declare and enforce a trust, and there was, therefore, no necessity to allege or prove a tender. The defendant having denied his trust, imposed upon complainants the necessity of filing the bill, and he might, therefore, very properly have been taxed with all the costs. His complaint that he was taxed with part of the costs, is not reasonable.

No sufficient cause is perceived for disturbing the decree below. It is therefore affirmed.

Decree affirmed.