text:
    John Palmer v. David T. Douglas et al.

      Filed at Springfield June 14, 1883.

    Redemption from sale on execution—after expiration of time—where fraud was practiced. Land was sold on execution, at a grossly inadequate price, and bid in by one who was the family physician of the debtor, and regarded as an intimate friend and adviser, the debtor being an aged, illiterate person, almost wholly ignorant of his legal rights. The purchaser promised to give the debtor all the time he wanted to redeem, telling him he had fifteen months in which to redeem, and by artifice and misrepresentation lulled him into a sense of security until the time of redemption had passed, with the knowledge and participation of the assignee of the certificate of purchase, to whom a sheriff’s deed was made. It was held, that the debtor, under these circumstances, was entitled, on bill in equity, to redeem from the sale, and have the sheriff’s deed set aside as a cloud on his title.
    Appeal from the Circuit Court of Mc'Rean county; the Hon. Owen T. Reeves, Judge, presiding.
    Messrs. Weldon & McNulta, and Mr. J. M. Weakly, for $ the appellant.
    Mr. Ira J. Bloomfield, for the appellees.
   Mr. Justice Mulkey

delivered the opinion of' the Court:

The bill in this ease was brought by John Palmer, the appellant, in.the McLean circuit court, against David T. Douglas and James S. Pearson, the appellees, to redeem from an execution sale, and to remove an alleged cloud upon the title of the land in controversy.

The evidence shows that in 1877 Douglas loaned to Palmer $80, to secure which Palmer gave him a mortgage on ten acres of land, being the same now in dispute. Afterwards one Steadman obtained a judgment against Palmer, which became a lien upon the land. On the 24th of August, 1878, the land was sold at sheriff’s sale, under this judgment, for the sum of $76, to Douglas, to whom the sheriff at the time executed a certificate of purchase, which was subséquently assigned by him to Pearson, his father-in-law. The land not having been redeemed within the time prescribed by law, the sheriff executed to Pearson, as assignee of the certificate of purchase, a deed to the premises. Palmer thereupon filed the present bill, for the purposes already stated. The bill in substance charges, that Douglas, confederating with Pearson, his father-in-law, for the purpose of cheating and defrauding appellant out of his land, by sundry deceptive assurances, false promises, artifices and misrepresentations, specifically set forth in the bill, lulled appellant into security, and thereby induced him to allow the time for redemption to pass by without redeeming. On the hearing the circuit court rendered a decree dismissing the bill, and the complainant appealed to this court.

The appellant is an illiterate old man, some fifty-seven years of age, a blacksmith by trade, having followed the business ever since he was eighteen, and evidently with a very imperfect conception of his legal rights, at least so far as the subject matter of the present controversy is concerned. ■He was not on good terms with Pearson, who had not spoken to him for ten years. Appellant, however, had great confidence in Douglas, Pearson’s son-in-law, with wiiom appellant was on intimate terms. Douglas is a physician by profession, and was, prior to the time of this controversy, the family physician of Palmer.

The appellant’s account of the circumstances out of which this controversy arises, is testified to by him as follows: “I mortgaged the land to Douglas for $80. Steadman got a judgment against me for a balance on an old blacksmith shop, before a justice of the peace, took a transcript, and got a lien on the land after the mortgage. Douglas got the certificate of purchase. He said: ‘I will make it all right.’ I paid on the mortgage three different times. "When I made the last payment I wanted to know when I should pay this certificate. He (Douglas) said he would give me time. I asked him several times. He said he would give me any time. Then one day I wanted to know if he would give me time if he would let me know when the time was up. I told him I wanted to sell my hogs to pay it. He said I had better not sell now,—to hold awhile, and get better prices. I didn’t sell them for about ten days. He said then that there was no hurry,—not to hurry about it,—if he was in my place he would not sell. In ten days I sold the hogs,—on a Monday,— and was to deliver them on Thursday following. I went to him. He said the time was out in two days, then. I asked him what was to be done about it. He said to ask ’Squire Davidson to fix it,—to get an order of court to make a deed to me. I went to Davidson. He said to see Douglas, and have him sign the certificates over, and then go to Blooming-ton and get the deed. That is what I told Douglas. He said, all right,—we will fix it up all right; and still said he would do that. I found out what he had done, and asked him if he had signed to Pearson. He said he had,—that he took Pearson’s note for it. In the conversation when he told me to go to Davidson, I asked him how it was to be fixed. I told him what Davidson said. I suppose it was because he wanted to settle with me. It went a month and 'two days when I learned that Pearson had taken the deed. Then I got the money, and two or three dollars more, and gave it to Douglas, and told him I wanted him to fetch that deed to the land. He said he would see the old man, and he would fix it up all right. Me and him had a running account. He gave me his bill, and I made out my bill. It left something coming to me. He paid me a little one day. I had given him $90. He had carried it four weeks and two days. He had paid me $5 on it, and told me in a few days he would pay me the balance. One morning he said, here is the money. I thought it was the money he owed me. I saw one corner of a $20 bill. I said I didn’t want this money. He said he did, not want to carry it. He wouldn’t take it back. He gave me $2 on account. I gave him the $90 to redeem the land. I don’t know that he said anything about letting the certificate run along without taking a deed. He just said he would make it all right. I supposed it was all right. I let him have the money to make it all right. ? * * I relied upon what he said, because I placed a great deal of confidence in him. He said he didn’t want my land; that he wouldn’t give me $15 an acre for it; that it didn’t join him; that all he wanted was his money. He didn’t say anything about time not being material, only he told me I would have fifteen months, and a judgment creditor would have eighteen. I learned I would have only twelve, and I went after him to fix it up. I was misled by the representations he had made as to time. I went out and had the money ready to redeem. I could have got it when it was due, if he had let me know when. I paid off-the mortgage a year ago, at the doctor’s house. Then I asked him to look at the certificate and see when it was due. He said he hadn’t time,—lie was going away,—but he would do it, and give me plenty of time. * *' * ' I gave Douglas the $90, January 25,1880. I have been a blacksmith since I was eighteen years old. I have not much education. I can write some. I can keep a book of my business,—that is about all. I don’t write well. I am no scholar. I can’t figure much. Douglas is a practicing physician. I placed a heap of confidence in him. He was physician for myself and family. He went security for me once or twice. He was a kind of a friendly adviser. The relations between Mr. Pearson and me has been very unfriendly. He has not spoken to me for ten years. I had a law suit with him,—one in the court, and two before the justice. I beat him. * * * Douglas said I would have fifteen months to redeem, and a judgment creditor eighteen.”

This statement, in several particulars, is corroborated -by the witnesses Wilson and Davidson. It appears from the testimony of other witnesses, the land is worth from $25 .to $40 an acre. Douglas swears, in general terms, he never agreed to extend the time of redemption, but most of the specific facts and circumstances related by the former are not specifically denied or otherwise met, and Douglas himself admits that he told Palmer he would have fifteen months in which to redeem, and a judgment creditor three months longer.

There are some additional facts and circumstances, which we will not stop to detail or comment upon, which, in our judgment, tend to strengthen the hypothesis that Palmer was designedly lulled into security, and purposely thrown off his guard, through the artifice and dissimulation of Douglas, acting in concert with his father-in-law, who had an old grudge against Palmer, whereby the time of redemption was permitted to pass. When we consider the age of Palmer, and the fact that Douglas was his family physician, to whom he looked up as an intimate friend and confidential adviser, which is undisputed, and when we add to this the apparent and undisputed fact that the old man is illiterate, and was ignorant of his duties or rights with respect to the matter in controversy, there is certainly little, if any, room to doubt he has been purposely overreached and misled, and that the case made by the bill is sufficiently established to warrant the relief therein prayed. We think, from all the circumstances in the ease, many of which do not appear in the foregoing statement, and which we do not deem necessary to specifically mention, it clearly appears that Pearson had notice of appellant’s rights, so that he stands in no better position than Douglas, even if his equities could, in any contingency, be regarded as superior to Douglas, through whom he claims.

The decree of the circuit court is therefore reversed, and the cause remanded, with directions to that court to enter a decree in conformity with the prayer of the bill.

Decree reversed.

Mr. Justice Walker s I am unable to concur in the above opinion, and hold no grounds exist for granting relief.


source: Caselaw Access Project

author: Per Curiam :

license: Public Domain

text:
    Francis M. Yokem v. Andrew J. Lovell.

      Filed at Springfield June 14, 1883.

      Appeal—in forcible detainer. An appeal does not lie from a judgment in an action of forcible detainer from the trial court to this court, there being no freehold involved.
    Appeal from the Circuit Court of Pike county; the Hon. S. P. Shope, Judge, presiding.
    Mr. J. S. Irwin, for the appellant.
    Messrs. Matthews,- Wike & Higbee, for the appellee.
   Per Curiam :

Appellee entered a motion to dismiss the appeal, on the ground that a freehold was not involved. The action was forcible detainer, and the appeal taken from the circuit court directly to this court. The same question here involved arose in Kepley v. Luke, 106 Ill. 395, and we there held that the appeal would not lie. That decision is conclusive of the question.

The appeal will be dismissed. Leave will be given appellant to withdraw record, abstracts and briefs, to be filed in the Appellate Court, if he desires.

Appeal dismissed.


author: Mr: Justice Mulkey

text:
    Ellis Long et al. v. Jane Long et al.

      Filed at Springfield June 14, 1883.

    1. Contested •wild—in chancery—trial by jury—how far the finding conclusive. In contested will cases in chancery the finding of the jury is conclusive, unless clearly agiinSt the weight of evidence. In this respect such cases differ from ordinary cases in chancery, and are treated the same as cases at law.
    2. Appeal—reviewing the evidence. In such a case the finding of the Appellate Court in conformity with the verdict of the jury, is conclusive upon this court upon all controverted' questions of fact, the same as in an action at law.
    Whit of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Ketcham & Hatfield, for the plaintiffs in error.
    Messrs. Morrison, Whitlock & Lippincott, for the defendants in error.
   Mr: Justice Mulkey

delivered the opinion of the Court:

George Long departed this life September 4, 1876, at his residence in Jacksonville, Morgan county, this State, leaving a widow, but no children, or descendants of children. On the 3d of July next preceding his death he executed an instrument purporting to be his last will and testament, by which he disposed of his entire estate, the greater portion of it being given to Caroline Smith, his niece, and Carroll C. Mayhew, an intimate friend, both of whom, together with Nimrod Sharp, were subscribing witnesses to the instrument in question. He made quite a number of bequests to other parties, but they were all relatively small and insignificant. Upon the affidavits of Mayliew and Sharp, two of the subscribing witnesses, the instrument was admitted to prohate in the county court on the 11th of September, 1876. On the 2d of November following, Elias Long and others filed in the Morgan circuit court the present bill to contest the validity of the will, on the alleged ground the testator was not of sound mind at the time of making the same, and that its execution was procured through the undue influence of Mayhew and Smith. An issue at law was made up, as directed by the statute, and submitted to a jury, who found, from the evidence before them, that the instrument in question was the last will and testament of George Long, and the court thereupon entered a decree in conformity with the verdict of the jury, which, on appeal, was affirmed by the. iVppellate Court for the Third District, and the plaintiffs in error bring the case here for review.

The rule is well settled by the previous decisions of this court, that in contested will cases like the present the finding of the jury is conclusive, unless clearly against the weight of evidence, (Brownfield v. Brownfield, 43 Ill. 147, Meeker v. Meeker, 75 id. 260, Calvert v. Carpenter, 96 Ill. 63,) and in this respect they are put upon the same footing with cases at law. Such being the case, it would seem to follow—and we so hold—the finding of the Appellate Court in conformity with the verdict of the jury, is conclusive upon all questions of fact.

Ordinarily the finding of the facts by the Appellate Court, in a chancery proceeding, is not conclusive on this court; hut this class of cases, under the construction given to our statute, does not fall within the general rule, but such cases are treated in this respect, as we have already seen, as actions at law. The ordinary chancery case differs from'one of this class in this, that in the former the chancellor is not bound to submit issues of fact to a jury. He may do so or not, as he sees fit, or, having done so, he may make the decree conform to the verdict of the jury, or he may disregard it altogether, if he is of opinion the evidence, warrants it. In this class of cases, however, he has no discretion in the matter. He is hound to make an issue at law, and submit the same to a jury, by which all controverted facts are settled, and when so settled the chancellor is hound by the conclusion reached, unless the verdict is clearly against the weight of evidence,.

Some complaint is made of the rulings of the court upon the instructions, and in the admission and exclusion of testimony ; hut after a careful consideration of the points made, we are unable to say the court committed any substantial error in the respect complained of.

The judgment of the Appellate Court is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Sheldon

text:
    Francis L. Winch, Minor, etc. v. Thomas Tobin, Guardian.

      Filed at Ottawa May 10, 1883.

    1. State constitution—as a limitation of powers. A State constitution is a limitation upon the powers of the legislature, and the legislature possesses every power not delegated to some other department, or expressly denied to it by the constitution.
    2. Guardian’s sale oe land oe minor —jurisdiction of probate court —constitutionality of_ act conferring jurisdiction. It was intended by the act of 1877 establishing probate courts, that the jurisdiction of said courts should include all “probate matters,” as defined in the statute of 1874 establishing county courts, and so include proceedings by guardians for the sale of the real estate of their wards; and it was competent for the legislature to bestow such jurisdiction upon the probate courts, there being no inhibition in respect thereto in the constitution.

      3. Same—what is included in the words “all prohate matters,” as used in the constitution. The constitution, in providing for the establishment of probate courts, declares that said courts, when established, shall have original jurisdiction of “all probate matters." It may be supposed the words “all probate matters” were used in their broadest and most general sense. The General Assembly have regarded the ordering o'f guardians’ sales so germane to the subject that they have declared the exercise of this power was a “probate matter.” In the absence of any express provision in the constitution to the contrary, this legislative definition of those terms may, not improperly, be acquiesced in, and the jurisdiction of the probate courts, as conferred by statute, to order the real estate of minors to be sold at guardian’s sale, be upheld.
    • Writ op Error to the Probate Court of Cook county; the Hon. J. C. Knickerbocker, Judge, presiding.
    Mr. Jambs B. Galloway, for the plaintiff in error.
    Mr. Jesse Holdom, for the defendant in error.
    Mr. Cyrus D. Boys, for the purchaser, the Lake Shore and Michigan Southern Bailway Company.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This is a writ of error to the probate court of Cook county, to reverse an order of sale, made by that court on June 20, 1882, of certain real estate in Chicago, belonging to Francis L. Winch, a minor, upon the petition of Thomas Tobin, as guardian of said minor. The only question presented for determination is, whether the probate court had jurisdiction to order a sale of the minor’s real estate.

Section 18, article 6, of the constitution of 1870, providing for the establishment of county courts, declares as follows: “County courts shall be courts of record, and shall have original jurisdiction in all matters of probate, settlement of estates of deceased persons, appointment of guardians and conservators, and settlement of their accounts, in all matters relating to apprentices, and in all proceedings for the collection of taxes and assessments, and such other jurisdiction as maybe provided for by general law.”- Section 20, of the same article, as to probate courts, provides: “The General Assembly may provide for the- establishment of a probate court in each county having a population of over 50,000, and for the election of a 'judge thereof, etc. Said courts, when established, shall have original jurisdiction of all joróbate matters, the settlement of estates of deceased persons, the a jo jo ointment of guardians and conservators, and settlement of their accounts, in all matters relating to apjorentices, and in cases of the sales of real estate of deceased persons for the joayment of debts.” By the act of the General Assembly of 1874 establishing county courts, (Rev. Stat. 1874, p. 339,) the probate jurisdiction of county courts is given as follows: “ County courts shall have jurisdiction in all matters of probate, settlement of estates of deceased persons, appointment of guardians and conservators, and settlement of their accounts, all matters relating to apprentices, proceedings for the collection of taxes and assessments, and in proceedings by executors, administrators, guardians and conservators for the sale of real estate for the purposes authorized by law, and such other jurisdiction as is or may be provided by law,—all of which, excejDt as hereinafter provided, shall be considered as probate matters, and be cognizable at the probate terms hereinafter mentio .led. ” _

The jurisdictional clause of the act of the General Assembly establishing probate .courts, approved April 27, 1877, (Laws 1877, p. 79,) under, which the probate court of Cook county came into existence, follows the precise language used in section 20, article 6, of the constitution, as quoted above. Section 5 of the last named act provides: “As soon as such court is organized in any county, the county court of such county shall turn over to the probate court all of its probate records, and all files, books and papers of every kind relating to probate matters in such county court, and papers in matters of guardianship and conservators, * ,* * and upon receipt thereof the probate court shall proceed to finish and complete all unfinished business relating to probate, guardianship and conservatory matters, in the manner provided by law.” Section 11 provides as to the jn'oseeution of appeals from the probate court, “that they should be taken, in all matters, to the circuit courts” of their respective counties, except “on the application of executors, administrators, guardians and conservators for the sale of real estate.” And section 12 provides, that “appeals and writs of error may-be-taken and prosecuted from the final orders and decrees' of the probate court to the Supreme Court, in proceedings on the application of executors, administrators, guardians and conservators for the sale of real estate.”

It is thus most clear that the legislature intended; by the act of 1S77 establishing probate Courts, that the jurisdiction of said courts should include all probate- matters, asp defined by the legislature in the statute of 1874 establishing county courts, and so include proceedings-by guardians for the sale of the real estate of their wards. Why ié not the will of the legislature to stand ? . It should, • unless • there be in the constitution an inhibition to confer the exeicise of such power upon the probate courts. It is not necessary that there be grant of authority by the constitution to the legislature to vest sheh particular power in- probate courts. 'The authority is with the legislature, unless there be denial'of it, express or implied. “No proposition is better settled than that a-State constitution is a limitation upon the powers of the legislature, and that the legislature possesses every power not delegated to some other department, or expressly denied to it by the constitution. ” (Field v. The People, 2 Scam. 95 ; Sawyer v. City of Alton, 3 id. 127.) There is certainly no express inhibition in the constitution against conferring upon the probate court the power to order sold, at guardian’s sale, the real, estate of minors. Nor is there any provision of the constitution conferring, in terms, the exercise of that power upon any other court. There would not appear, then, to be any palpable violation of the constitution in bestowing this power upon the probate, court by legislative enactment. . Any supposed prohibition in the constitution to do this is only to be derived by implication, from its enumeration of certain, jurisdictional powers which probate courts should have, and this specific power of ordering sale of minor’s real estate not being, in terms, named in the enumeration, “all probate matters” are included in such enumeration. What, precisely, is included in those terms is indefinite. It may be more or less, as viewed by different persons.

At the time of the establishment of the probate court there was a statute in existence,—the one under which the county court had previously been established,—defining what were probate-matters, to the extent of saying that proceedings by guardians for the sale of real estate should be considered as a probate matter. In view of that law declaring that a guardian’s sale of real estate was a probate "matter, the General Assembly established the probate court, giving it the power to order sold, at guardian’s sale, the real estate of minors. The constitution declares that the probate court shall have original jurisdiction of all probate matters, the appointment of guardians, and settlement of their accounts, and in cases of the sales of real estate of deceased persons for the payment of debts. The ordering of the sale of the real estate of minors at guardian’s sale is a kindred matter. It is a pow;er, we believe, quite often lodged in courts exercising probate jurisdiction. Occasions for such sales most frequently arise in connection with the administration of estates of decedents. The court having the appointment of guardians, and the settlement of their accounts, would seem an appropriate tribunal for decreeing guardians’ sales. There hardly seems reason why- the same court that decrees sales of real estate of deceased persons for the payment of debts, might not also order sales by guardians. The latter would be the exercise of a similar and no higher power. ■ The sale of real estate to pay debts of decedents does, perhaps, in the greater number of cases, involve the selling of lands of minors. There is, then, nothing manifestly incongruous with the constitution in intrusting the power in question to the probate court.

We may suppose the terms, “all probate matters,” in the constitution, to be used in their broadest and most general sense. The General Assembly seems to have regarded the ordering of guardians’ sales so germane to the subject that they, by legislative enactment, declared that the exercise of this power was a probate matter, and that not with view to the probate court and the bestowal of jurisdiction upon it, but long previously, on the different occasion of establishing the county court. The constitution does not undertake to define all the particular powers which courts may exercise. It marks out their general jurisdiction, and if, in the bestowal by the legislature of any special power, there be not palpable incongruity with the constitution, the legislative will may be deferred to. We need not scan words with critical nicety to see whether, in strict precision of language, the legislative definition of probate matters may have been accurate. Begarding substantive matter, we think this a case where we may, not improperly, acquiesce in the determination of the law-making power on the subject, and hold, that giving to the probate court this power to order the real estate of minors to be sold at guardian’s sale, does no such violence to the constitution as requires us to pronounce the .act of the legislature to be void.

The order of sale of the probate court will be affirmed.

Judgment affirmed.

Scott, Ch. J., and Walker, J.: We are unable to concur in the doctrines of this opinion.


author: Mr. Justice Scholfield

text:
    The Village of Winnetka v. Annie E. Prouty.

      Filed at Ottawa June 16, 1883.

      1. Dedication—what essential thereto. To make a good dedication, either under the statute or at common law, there should be a definite and certain description of that which is proposed to be dedicated, and an acceptance by the public before the withdrawal or abandonment of the offer to dedicate.
    2. Same—plats of towns and milages—of the requisite certainty in description. The statute in force in' 1858 relating to plats of towns and villages, required that such plat or map should particularly describe and set forth all the streets, alley's, commons or public grounds, etc., giving the names, width, corners, boundaries and extent of all such streets and alley's; and the plat thus made out, acknowledged and recorded, as required, had the force of a conveyance, vesting the fee simple of the streets, etc., in the town or city'.
    3. A plat of a village recorded in 1858 contained lines indicating blocks, with spaces between them, probably' intended for .streets, but no streets were named, and no length or width of the spaces between the blocks, or any scale, was given by which the streets could be ascertained and located: Held, that where the owner of adjoining blocks had fenced the same, including the unknown space between, and such inclosure had been maintained for over twenty' y'ears without complaint, the village authorities were property enjoined from opening the supposed street through such inclosure, as no surveyor could, from the plat, find the limits of the street.
    4. Same—presumed to the extent used. Where the public have taken' possession of a street, and improved and used it to a particular width, a dedication, (the other requisites thereto existing,) it seems, will be presumed coextensive with the improvement and use.
    5. Same—abandonment. Where a village was laid out, iu 1855, into blocks and streets, but the plat failing to give the length or width of the streets, and the owner of two adjacent blocks, in 1861, fenced them, including the space designed for a street between them, and the public authorities acquiesced in such inclosure of the street for twenty years, built sidewalks, and dug a ditch across the street near where it was inclosed, the court was inclined to the belief that even if the plat had been free from objection, there was such an abandonment by the public as would preclude the opening of the street. f

      Appeal from the Circuit Court of Cook county; the Hon. T. A. Moran, Judge, presiding.
    Messrs. Windes & Sullivan, and Mr. Edward Eoby, for the appellant:
    The making, acknowledging and recording of. the two plats conveyed the fee of all the streets appearing thereon. Trustees v. Haven, 11 Ill. 554; Gebhart v. Reeves, 75 id. 303; St. John v. Quitzow, 72 id. 336.
    ■ The sale and conveyance of blocks with reference to Peck’s plat were a recognition of the plat, and amounted to a dedication of the whole of the streets at common law, which was irrevocable. Angell on Highways, sec. 149; Washburn on Easements, (3d ed.) 195, 204, 206; Rowan’s Exrs. v. Portland, 8 B. Mon. 232; Augusta v. Perkins, id. 207; Stone v. Brooks, 35 Cal. 489; Schenley v. Commonwealth, 36 Pa. St. 62; Carter v. City of Portland, 4 Oregon, 339; Winona v. Huff, 11 Minn. 119; Huber v. Gazley, 18 Ohio, 18; Logansport v. Dunn, 8 Ind. 378; Abbott v. Mills, 3 Vt. 526; United States v. Chicago, 7 How. 185; Zearing v. Raber, 74 Ill. 409; Proctor v. Town of Lewiston, 25 id. 153 ; Gridley v. Hopkins, 84 id. 530 ; Field v. Carr, 59 id. 198 ; Trustees v. Walsh, 57 id. 367; Smith v. Town of Flora, 64 id. 93 ; Den v. Dummer, 20 N. J. L. 86; Trustees, etc. v. Hoboken, 33 id. 13; Wyman v. Mayor, 11 Wend. 487; Matter of Thirty-second Street, 19 id. 130; City of Dubuque v. Maloney, 9 Iowa, 455; Vick v. Mayor, etc. of Vicksburg, 1 How. (Miss.) 432; Trustees of Watertown v. Cowen, 4 Paige, 512; Village of Mankato v. Willard, 13 Minn. 18; Haynes v. Thomas, 7 Ind. 43; West Covington v. Freking, 8 Bush, 127.
    An acceptance of a part is an acceptance of the whole. Comyn’s Digest, “Seizin;” 3 Washburn on Eeal Prop. *485 ; Dills v. Hubbard, 21 Ill. 328; Davis v. Easly, 13 id. 200; Turney v. Chamberlain, 15 id. 273; Mayor v. Morris Canal, 1 Beasley, 547; Henshaw v. Hunting, 1 Gray, 203; Town of Derby v. Alling, 40 Conn. 431.
    Acceptance may be at any time before a proffered dedication is withdrawn. Smith v. Town of Flora, 64 Ill. 96 ; Simmons v. Cornell, 1 R. I. 519; Carter v. City of Portland, 4 Oregon, 348; Trustees, etc. v. Hoboken, 33 N. J. L. 13; Mayor v. Morris Canal, 1 Beasley, 553; Barclay v. Howell’s Lessees, 6 Pet. 506.
    A mere non-user will not prevent the people from asserting their rights. Laches does not estop, nor the Statute of Limitations run against, the people. Galbraith v. Littiech, 73 Ill. 212.
    A substantial compliance with the statute is sufficient. Thomas v. Eckard, 88 Ill. 593; Chiniqui v. Catholic Bishop), 41 id. 152; Stuart v. Dutton, 39 id. 93; Louisville v. Pearson, 39 id. 447; Delaney v. Burnett, 4 Gilm. 489.
    Mr. Frank J. Smith, and Mr. F. A. Helmer, for the appellee:
    A complete non-user for twenty years, and a use inconsistent with its use as'a- street, work an abandonment. City of Peoria, v. Johnston, 56 Ill. 45; 3 Kent’s Com. 448; Corning v. Gould, 16 Wend. 531; Knight v. Heaton, 22 Vt. 480; Yeacle v. Nace, 2 Whart. 22.
    The plat conveyed no fee to the public. Village of Fulton v. Mehrenfeld, 8 Ohio St. 444; Trustees v. Walsh, 57 Ill. 370.
    A dedication remains inchoate until accepted. Village of Fulton v. Mehrenfeld, 8 Ohio St. 444; Angell on Highways, 173, 179; David et al. v. Municipality No. 2, 14 La. Ann. 887; Gentleman v. Soule, 32 Ill. 279; Trustees v. Walsh, 57 id. 371; Wragg v. Penn Township, 94 id. 25; Rees v. Chicago, 38 id. 336; Hiner v. Jeanpert, 65 id. 430; Marcy v. Taylor, 19 id. 637.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was a bill in chancery, by Annie E. Prouty, against the village of Winnetka, to enjoin the entering of a certain inclosure for the purpose of opening a street. The decree was in accordance with the prayer of the bill. This appeal is from that decision.

The right to enter the inclosure and open the street is claimed by the village by virtue of a dedication by a plat made by Charles E. Peck in 1855, and acknowledged by him and recorded in the proper office on the 1st day of March, 1858. The plat in evidence, and by virtue of which the dedication is claimed, is headed “Plan of Winnetka, Cook county, Illinois, ” and then follow lines indicating blocks, with spaces between them, probably intended to represent streets; but no streets are named or mentioned, and no length or width of the spaces between the blocks is given, nor have we been able to find any other measurements or scale from which they could be ascertained. It is true in a few instances the figures “66” are written at the head of and in the vacant spaces between the blocks, but nothing is annexed to indicate what the “66” stands for, and even this is omitted in the vacant space between the blocks swned by complainant, and which is supposed to represent the street or strip of ground here in controversy. In each of the vacant spaces between the blocks there are three lines, two in black ink and one in red, the red line being in the center. The quantity, in acres, of each block is given in figures written in red ink on the face of the block, and the lengths of the lines given in figures seem to be of the red lines only. So the quantities, we must assume, include all within the red lines, thus leaving no intervening space for streets. The following is, substantially, a copy of so much of the plat in question as is material to the present case:

There is no stale of the measurements represented, or claimed to be represented, by the plat, nor any explanations accompanying it, other than sneh as here appear upon the face of the plat. The certificate of the surveyor is simply that he surveyed and subdivided a tract of land, described specifically, “into seventy-one blocks and streets, as represented on the above plat,” without further explanation.

On the 16th of March, 1859, Charles E. Peek conveyed blocks 21 and 25, as thus represented, to D. M. P. Davis. The evidence sufficiently shows, as we think, that Davis, in 1861, inclosed these blocks by a fence extending around both, and including with the-blocks any intermediate territory, if there was such, in a common' inclosure. There is a conflict in the evidence in regard to when this fence was built, but we think the witnesses less likely to be mistaken sustain the view we have expressed. We do not, however, consider this conflict, in the view we take of the case, of much importance. All the witnesses agree that the blocks and intermediate territory, if there was such, were thus inclosed as early as 1865, that the inclosure has thus remained ever since, and that there was no attempt to open or improve the street prior to that time. Fruit and ornamental trees were planted in the supposed street or strip between the blocks, which have grown to a large size, and the village authorities have erected and maintained sidewalks continuously across the north and south ends of these blocks, and any intervening strip or street there may be between them, and have also dug and maintained a ditch at the side of the street which lies at the north end of the blocks, parallel with the sidewalk, and the sidewralk and ditch effectually obstruct passage from the street to the supposed strip or street between the blocks. Complainant has title through a series of mesne conveyances from Davis to these blocks, except the north 211 feet, and Edward R. Blake has title to that; and Peek has also quitclaimed to appellant any interest he may have in the strip or street between so much of the blocks as is owned by appellant, by deed dated October 20, 1881. , The inclosure has remained, as before described, continuously for more than twenty-one years,— assuming the fence to have been built in 1861,—and at no time has the village had, or assumed to take, possession of any territory between the blocks.

To make a good dedication, either under the statute or at the common law, requires a definite and certain description of that which is proposed to be dedicated, and an acceptance by the public before the withdrawal or abandonment of the offer to dedicate. (Littler v. City of Lincoln, 106 Ill. 353; Trustees, etc. v. Walsh, 57 id. 370.) The statute in. force when this plat was made and acknowledged, provided that “the plat or map shall particularly describe and set forth all the streets, alleys, commons or public grounds, and all in and out-lots, or fractional lots, within, adjoining or adjacent to said town, giving the names, widths, corners, boundaries and extent of all such streets and alleys.” (1 Purple’s Stat. pp. 175, 176, sec. 17.) And it is the plat or map thus made out, and acknowledged and recorded as required by the act, that shall constitute a conveyance vesting the fee simple of the streets, alleys, etc., in the town or city, etc. Id. sec. 21.

An instrument of conveyance ought, upon its face, to show at least enough to enable a competed! surveyor to find, with absolute certainty, that which is assumed to be conveyed. But how can a surveyor tell where the limits of streets are unless he knows their width, or has before him data from which he can ascertain it? It is not shown by anything upon or connected with this plat, that we have been able to discover, what is the width of any of the streets proposed to be laid out, much less whether it is intended all the streets shall be of the same width, or what width was proposed to be given to the particular street in controversy. Some general inference, it is possible, might be drawn from the width of streets in general, or from the width of other streets known and established in the village, but this is manifestly not sufficient. The width of the streets of all villages, towns or cities is not necessarily the same; nor are all of the streets in the same village, town or city necessarily of the same width. It may be conceded, where the public have taken possession of a street and improved and used it to a particular width, a dedication (other requisites thereto existing) will be presumed coextensive with the improvement and use ; but that can have no application here, where there has been no improvement or use.

There is proof of admissions of those in possession of this strip or street that there was a street there, but in none of them are any limits given from which it could be, with precision, defined and laid out. In no view, however, could they be regarded as curing the omission in the plat. They referred only to a supposed existing state of facts. In no instance was language proved purporting to dedicate anew.

There was, therefore, as we understand this record, no definite statutory dedication of any particular quantity of ground for this street, and the proof fails to show a sufficient offer to dedicate any definite quantity, or such an acceptance of any offer in that regard as is necessary to constitute a common law dedication. Indeed, we are inclined to the belief that if the proof in respect of the plat were free of objection, the evidence shows such an abandonment by the public as would now preclude the opening of the street. See Peoria v. Johnston, 56 Ill. 51; Champlin v. Morgan, 20 id. 182; Town of Lewiston v. Proctor, 27 id. 418; Littler v. City of Lincoln, 106 id. 353.

An objection was urged against the plat on the ground that it was acknowledged improperly. If we have correctly understood the plat, and it is as we have stated, that question is immaterial, and we therefore forbear the expression of any opinion upon it.

It may be that there are block owners on other parts of this street who, as against Peck or his assignees, are entitled to have the street adjacent to their blocks kept open,—that Peck and his assignees are estopped to deny the existence of the street as respects their property. But we have held that the only property right which owners have in streets, as distinct from the public rights, is the right of access. (Chicago v. Union Building Association, 102 Ill. 379.) No such right is here affected, for the whole of these blocks were fenced in the first instance, and notwithstanding the change of ownership, the inclosure, as then made, has continued ever since. Blake, the owner of the north 211 feet, claims, as he shows in his testimony, the. ownership of any strip or street that there may be between that part of the blocks, and it is not shown, and it can not be presumed, that the owners of blocks in other parts of the street are or can be affected in their access to their property by the failure to open! this part of the street. In any event, however, for an injury to a purely private right the private party is alone entitled to sue. The village is only entitled to represent the public. Village of Fulton v. Mehrenfeld, 8 Ohio St. 446; Badeau v. Mead, 14 Barb. 339.

The judgment is affirmed.

Judgment affirmed.

Mr. Chief Justice Sheldon, dissenting.


author: Mr. Justice Dickey

text:
    Pennsylvania Coal Company v. Thomas Ryan.

      Filed at Ottawa June 16, 1883.

    1. Conteact—damages for non-performance—party seeking recovery must not be in default. Before a party can enforce a contract by tbe recovery of damages for non-performance, he must show a performance, or its equivalent, of all conditions precedent or concurrent to be done by him. If he is himself in default of payment, and his default has not been waived, he can have no compensation for loss of profits he might have made had the contract been fully performed.
    2. Same—waiver of right to demand concurrent payment by,not declaring forfeitwre. A coal company agreed with a party to furnish him with 3000 tons of coal of different qualities, to be all taken away by a given time, to be paid for at different prices. The purchaser was to pay currently, as he received the coal from time to time, so as to keep his account down to $200 or under, and to pay in full for all coal received during any given month before the 10th of the succeeding month. For non-pérformance on the part of the purchaser the seller had the right to cancel the contract and forfeit the security given, which was a note of $1000, secured by mortgage. No definite time was fixed for the delivery of the coal, but the fair inference was that it was to be called for and tajeen in such reasonable installments, from time to time, as would take all the coal before May 1, 1881. The purchaser allowed his account to reach over $600, when he gave a note for $800, secured by chattel mortgage on his personal property, to save the same from being taken by his creditors, which was accepted by the seller as a further security for the sum then due. It was then agreed that the purchaser was to pay the sum due from time to time, and that no coal should be taken in excess of that sum, and on reducing this sum the purchaser was not to increase the same until he had brought his indebtedness down to $200. After this he was allowed to take coal without complying with the new agreement. At times he was not furnished with coal when he called for it, and he still neglected to reduce his account to $200: Held, that the seller did not waive his right to demand the payment of money concurrently with the application for coal because it never declared the .contract cancelled, and did not place its refusal to deliver coal on account of the purchaser’s default in paj'ment; and that the fact that the seller sometimes let the purchaser have coal without payment therefor at the time, did not render the former liable for damages when it failed to deliver.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    This was a suit in chancery, instituted by Ryan, the appellee, against the appellant, for an accounting and adjustment of damages claimed by complainant, alleged to have arisen from the non-performance, on the part of appellant, of' a contract for the sale and delivery of a quantity of coal to appellee. The details of the transaction are set forth in the opinion of the court, and also the substance of the decree rendered in favor of the appellee.
    Mr. David Fales, and Mr. C. B. Lawrence, for the appellant :
    The original agreement was modified by the agreement of December 31, 1880, and for purchases of coal thereafter cash payments w.ere necessary. As appellee made no tender of cash, and showed no readiness or ability to pay cash, the appellant was justified in refusing him coal.
    The rule is well* established that where delivery and payment are to be concurrent acts, neither party can put the other in default without performing or offering to perform. Lyon v. Culbertson, 83 Ill. 33 ; 1 Parsons on Contracts, 537; 2 Kent, 665.
    Where parties are mutually bound, one to deliver, and the other, to p-ay, neither can sue until the property is delivered, or until the price therefor is ready and offered to be paid on a reasonable demand. (Hungate v. Rankin, 20 Ill. 639.) And there must be evidence of being ready and willing to pay. Fink v. Hough, 29 Ill. 145.
    The purchaser must aver that he was ready and able to pay, and must also prove such readiness and ability to pay. Cummings v. Tilton, 44 Ill. 172; Toppmey v. Root, 5 Cow. 404; Hough v. Ramsey, 17 Ill. 588.
    Messrs. Kent & Black, and Mr. E. L. Tatham, for the appellee:
    That the court adopted in the decree the proper measure of damages is fully established by the following authorities: Van Arsdale v. Rundel, 82 Ill. 63; Kritzinger v. Sanborn, 70 id. 146; Sedgwick on Damages, 75 ; Fox v. Harding, 7 Cush. 516; Cook v. Commissioners, 6 McLean, 612; Shepard v. Milwaukee Gas Co. 15 Wis. 318; Thompson v. Jackson, 14 B. Mon. 114.
    The refusal to deliver the coal was not put on the ground that appellee did not pay, but because appellant itself was unable to comply with its contract. In such case the company had no right to claim a tender. Smith v. Lamb, 26 Ill. 396; Risinger v. Cheney, 2 Gilm. 84; Stoolfire v. Royse, 71 Ill. 223; Chamber of Commerce v. Sollitt, 43 id. 519; Lee v. Pennington, 7 Bradw. 248; 2 Parsons on Contracts, 675; Pomeroy on Contracts, sec. 361, and eases cited.

      But another thing is to be borne in mind, and we invoke another rule of law, viz., that where acts are, under a contract, to be concurrently performed, and therefore before one party can be put in default the other must tender performance, such tender of performance will not be required if the other party, by its own conduct, has put it out of the power of the injured party to perform. Risinger v. Cheney, 2 Gilm. 84; Chitty on Contracts, (10th Am. ed.) 811.
   Mr. Justice Dickey

delivered the opinion of the Court:

By a written agreement of May 26, 1880, appellant agreed to sell and dock for appellee 3000 tons of coal, to be hauled before May 1, 1881,—two-fifths to be stove coal, two-fifths chestnut coal, and one-fifth egg and grate coal. The price of the stove and'chestnut coal was to be $5.25 a ton, and the price of egg coal was to be $5 per ton, and, in addition, on each kind of coal appellee was to pay (as for storage) five cents a ton per month, from July 1, 1880, until the coal was taken away by appellee. This last charge was to be paid in advance. Appellee was to pay currently, as he received coal from time to time, so as to keep his account down to $200 or under, and to pay in full for all coal received during any given month before the 10th of the succeeding month. Appellee was to haul the coal for his own trade, and not sell to other dealers. For any non-fulfillment of any of the terms of the contract on the part of appellee, appellant had the right to cancel the contract and forfeit the security. Appellee was to give, as security for the fulfillment of the contract, his note for $1000', without interest, to run to November 1, 1880, secured by mortgage on certain land in Michigan, and might, at any time, take up the note by paying $1000. This note was not to apply in payment upon the current account, but payment of the note, if made, was to apply in payment of the last coal to he hauled under the contract. The note, and mortgage on the Michigan land, were given when the contract was signed. No definite time was expressly fixed by the words of the contract for the delivery of any part of this coal. The fair inference from the whole contract is, that it was to be called for and taken in such reasonable installments, from time to time, as would take all the coal before May 1, 1881. If taken in proportion to the time, it would require about 265 tons each month, to be taken and paid for by the 10th day of the succeeding month. The business of the appellant at Chicago was in charge of Henry S. Van Ingen. It had one dock at the corner of Indiana street and Kingsbury street, one at the corner of Sixteenth and Grove streets, and a place of delivery, part of the time, on Canal street near Kinzie street, and it had a main office in the city, where orders for coal were received and wffiere money was paid upon such orders. When any one was entitled to receive coal, the operators at the docks, or places of delivery, were directed by telephone from the main office to deliver coal. This mode of transacting the business was evidently known to appellee. What money he paid under this contract was always paid at the main office. Appellee began to haul coal soon after the contract was made, and continued, from time to time, in each month, to receive coal until April 30, 1881, and according to his own testimony he “got as much as he wanted up to February 5, 1881,” and “got 105 tons in the first five days of February, 1881,” and during the residue of February and the month of March he received tons, and 168 J-|- tons in April,—in all, he received 1912-l-Z- tons, being 1580J%tons of stove and chestnut coal, and 332 tons of egg and grate coal.

The complaint of appellee is, that at divers times in the months of February and March, and a part of April, 1881, appellant failed to deliver to him coal when called for, and for that reason, he says, that of the 2400 bushels of stove and nut coal mentioned in the contract he failed to receive 819-2% tons, and of the 600 tons of egg coal mentioned in the contract he failed to receive 268 tons. The decree of the circuit court recognized this claim as well founded, and in stating the account allowed him as damages for the supposed default of appellant, the sum of about $2880.96, of which about $710 was allowed for supposed defaults in not delivering egg coal, and about $2170.76 for failures to deliver stove and chestnut coal. After deducting $389.64, an unpaid balance upon coal actually received, a decree was entered against appellant for $2491.33. This decree was affirmed in the Appellate Court, and the case comes here for review.

The record does not seem, in any view, to furnish any ground for the allowance of this $710 for supposed failures to furnish egg coal. Appellee testifies that during the times of the alleged failures to furnish coal, -there was, at the coal yard of appellant, “a pile of large egg coal, * * * and that coal was there for me. * * * 'They nevgr refused me that coal,—that was large egg. ” As to the allowance of damages for the failures to deliver stove and nut coal we must look further into the record.

Appellee, soon after he began to haul under the contract, began paying, and paid currently from time to time, so as to keep his debit account down to a point not exceeding $200, until in the month of September, 1880. At the end of that month his debit balance for coal already taken was $455.50. At the end of October it was $561.18, and at the end of November $559.55, and in December his debit balance reached $613.23, and so remained to the end of that month. In the latter part of December, 1880, upon the suggestion of appellee that his teams, scales and office furniture were liable to seizure by a creditor, he gave to Mr. Yan Ingen his note for $S00, payable June 1, 1881, with interest, and secured the same by a chattel mortgage, duly recorded, upon the personal property mentioned, which was accepted. Appellee testifies that he proposed to appellant’s manager to give the chattel mortgage “as additional security” for “the amount of money that was standing out,” and that the manager accepted the same “as'security.” Again he testifies: “The note and chattel mortgage were executed as security for the amount I owed the company.” Again: “He,” the manager, “demanded payment of the $613 balance. The agreement was * * * I should pay this" $613 from time to time, as gradually as I could pay it. * * * I was to pay something on this $613, and get it down right along, currently. - He said I would have to have it all paid by May 1; he said I would have to pay it all up, and pay on it just as I pleased. ” Being asked as to the coal he should get in the meantime,—whether' he was to pay cash for that,—he answered: “I considered I always paid cash.” A direct answer being demanded, he said: “No, sir, that was not the arrangement anything outside what I had been doing before. The arrangement was not that I was to pay cash for coal as I got it, and bring down this $613. I said I did not want to pay that until it expired. He said I could go ahead and pay part of it as I went along, and I agreed to that, and I agreed that at no time should any coal be sold to me in excess of that sum,—in excess, of this $613.” In an earlier part of his testimony, speaking of the chattel mortgage, he said: “There was no modification of the contract made when that mortgage was given.” The witnesses for appellant give a version of this transaction somewhat different from that given by appellee, the only material difference being that they understood appellee’s engagement in the original contract to keep his debit balance down to $200, was not affected by this new arrangement, 'and hence the company was not bound to let him have coal on a credit at all until the debit balance was brought' down to that sum, whereas appellee evidently inferred from what • was said that he was not to be allowed to buy any more coal on a credit, so as to increase his debit balance beyond the $613, and perhaps so as not to increase from any point to which it should be reduced, so long as it was not reduced below the $200. Rejecting all other testimony on the subject, and taking all of the testimony of appellee into consideration, the most favorable inference to appellee that can reasonably be indulged is, that he was to have no right to receive any more coal on a credit so long as his debit balance remained as high as $613, and that he should so pay, from time to time, as gradually to reduce that debit balance. And it would seem, too, that after being partially reduced, he was not to be allowed again to increase his debit from the point to which it had been reduced, until it ■should fall below the sum of $200.

After this arrangement was made appellee continued to haul coal, and pay from time to time, but he did not reduce his debit balance below $613 until the last of March. The sheet of aggregate bills, given in evidence by appellee, shows that at the end of the next succeeding month (January, 1881,) his debit had increased to the sum of $762.08, and without further payments, so far as the proofs show, in the five days of February, 1881, he had been permitted to take and haul away 105 more tons of coal. Thus far he makes no complaint of his treatment by appellant. But some-time in the succeeding week (whether before, on, or after the 10th of the month is not shown,) he complains that his teams were sent to one of the yards or docks of appellant for coal, and appellant’s operatives there failed to furnish them coal, and that while he received coal from time to time until April 30, 1881, still it occurred that he applied often for coal when it was not furnished. His.debit balance at the end of February, 1881, was $660.65, and at the end of March it was $389.87, and at the end of April it was $389.64. It is not claimed that his debit balance was, after September, 1880, ever reduced as low as $200. There is no proof in the record tending to show that he ever, at any time, failed to get coal when he offered to pay cash for it. The proof does tend to show that often when his teams came for coal appellant had no stove or chestnut coal on hand, and that he waited until it came in on the cars. Sometimes this • delay was a day or two. During all this time he was from day to day urged to make payments on his account, and from time to time did so, and on the other hand he was daily applying for coal, and getting it at some times, and at others failing to get it.

- It is insisted by appellee that appellant waived the right to insist on payment of money concurrently with the application for coal, because the contract was never declared can-celled for appellee’s default, and because the failures to deliver coal were not placed, at the time, upon the ground that he was in default in payment, but upon the ground that appellant’s stock of coal was, for the time, exhausted. We do not see that the failure ■ to cancel the contract by appellant can be held to be a waiver of performance of its requirements on the part of appellee. Not having cancelled the contract, the appellant simply occupies the same position it would occupy had the cancellation clause been omitted. As to the failure to demand money in advance, or concurrently, it does not seem to us to constitute such a waiver. Had the market price been lower than the contract price, and had appellant sued appellee for a failure to take the coal at times when it was not applied for, as well might appellant have claimed success without proving an offer to deliver and a demand of the money, and this upon the ground that such offer was waived by the fact that appellee did not have the money. Appellee, while his debit balance was over $613.23, had clearly no legal right, under the contract, to receive coal without concurrent full payment. The mere fact that appellant sometimes indulged him, and permitted him to do so, did not render appellant liable to further do so at times when it failed to so furnish it. It is appellee who is seeking to enforce this contract. Before he can do so he must show performance, or its equivalent, of all conditions precedent or' concurrent to be done by him. By the terms of the contract that part of the price for each ton of coal to be paid as for storage, was to be paid in advance. There is no pretence that this wras ever offered to be done, or that this was ever waived. Appellant seems to have been willing to deliver coal when it was on hand, and appellee seems to have been willing to have paid for coal when he had the money on hand. Appellant at times was out of coal, and appellee was out of money. Appellant constantly dunned appellee for what was over due, and appellee importuned appellant for coal. Neither responded to the other’s demand,—appellant for want of coal, and appellee for want of money. Each seems to have acquiesced, for the time, in the want of performance of the other, and neither can complain that the entire contract was not performed.

After a most careful consideration of all the proofs in this case, we find no just ground upon which appellee can properly have a decree for compensation for the loss of profits he might have made had he had money to fulfill his contract, and appellant had had all the coal he needed.

The judgment of the Appellate Court in this case is therefore reversed, and the cause remanded, with directions to reverse the decree and dismiss the bill.

Judgment reversed.


author: Mr. Justice Walker

text:
    Henry B. Lockwood v. John W. Doane et al.

      Filed at Ottawa May 10, 1883

      Rehearing denied September Term, 1883.

    1. Partnership-—whether it exists—presumption. Where parties agree to share iu the profits of a business, the law will infer a partnership between them in the business to which the agreement relates. This presumption will control until rebutted by proof to the contrary.
    2. Amendment—making new parties plaintiff. In an action on the case for fraud and deceit in the purchase of goods, where the evidence shows that other persons than.those already made parties had an interest in the profits of the goods sold by the plaintiff, an amendment making such persons co-plaintiffs is properly allowed on the trial.
    3. Same—omission to make amendment which has been allowed—cured by verdict. Where an amendment of the,papers and proceedings in a case is allowed, making other persons co-plaintiffs in the suit, a failure to make the change in the papers, etc., by interlineation, is nothing more than a technical omission, and is, after verdict, cured by the statute of amendments and jeofails.-

      i. Appeal—reviewing controverted questions of fact. In an action on the case for fraud and deceit in the purchase of goods, where the judgment is affirmed by the Appellate Court, this court is prohibited from considering the evidence on controverted questions of fact, further than to determine whether the instructions are supported by it'.
    5. Evidence—to show fraud in sale or purchase. To prove a sale of goods fraudulent as to creditors, and the intent of the seller, it is' competent to show the manner in which he recently obtained goods from his creditors, as well as the manner in which he disposed of them; and the Same rule, must apply where a person is charged with fraudulently purchasing goods, knowing his insolvency and inability to .pay for them.
    6. Erbor will not always reverse—as to improper instructions, This court will not reverse a judgment for merely technical errors in instructions given, unless it can see that they did or were calculated to mislead the jury. When the instructions, as a series, clearly announce the law of the ease, and as favorably as a party has a light to ask, the judgment will not be reversed at his instance.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. E. S. Williamson, Judge, presiding.
    Messrs. Dent & Black, for the plaintiff in error:
    The declaration is in behalf of one plaintiff only, and excludes the right of either of the others in whose behalf judgment was recovered. On the trial, after the plaintiff had offered his testimony in chief, the court, on motion of plaintiff, ordered that all the papers, etc., be and are hereby amended, by making John E. Adams and Henry J. Sawdy co-plaintiffs. The papers in fact were never amended. This grew out of the fact that it appeared, on the trial, that both Adams and Sawdy were employés of Mr. Doane, having a percentage in the profits of the business, but no capital invested. For this.'error the judgment‘should be‘reversed. Commercial Ins. Co. v. Treasury Bank, 61 Ill. 482; Phillips & Colby Cons. Co. v. Seymour, 91 U. S. 646.
    In such an action as this the quo animo of the transaction is the fact to be arrived at, and it is competent to show that the party accused was engaged in other similar frauds at or about the same time. The transactions must be so connected in point of time, and so similar in their other relations, that the same motive may reasonably be imputed to them all. Hall v. Naylor, 18 N. Y. 588; Lincoln v. Claflin, 7 Wall. 132.
    Similar representations to those complained of as false and fraudulent, made at a prior time to third parties, are not competent ■ in an action for fraudulent representations. Johnson v. Beeney, 5 Bradw. 601. See, also, Simpkins v. Berggren, 2 Bradw. 101; Murphy v. Brace, 23 Barb. 561.
    Messrs. Flower, Remy & Gregory, for the defendants in error:
    It is contended that the court erred in admitting evidence to show false representations made by Lockwood to other creditors, for the purpose of obtaining credit, at or about the same time he made similar representations to the defendants in error. If a vendee obtains goods upon credit, with a preconceived design not to pay for them, such act is fraudulent. Henneguin v. Naylor, 24 N. Y. 129.
    There is a long line of authorities holding this evidence competent, and demonstrating that its competency depends upon its tendency to show a fraudulent intent not to pay for the goods. McKenney v. Dingley, 4 Greenlf. 172; Carey v. Hotaling, 1 Hill, 311; Gray v. St. John, 35 Ill. 138; Miller v. Barber, 66 N. Y. 558; Irving v. Motley, 5 M. & P. 380; Hersey v. Benedict, 15 Hun, 282; Cragin v. Tarr, 32 Maine, 55; French v. White, 5 Duer, 254; Lincoln v. Claflin, 7 Wall. 132. And similar statements made to a plaintiff after the transaction, have been held admissible, in a well-reasoned ease, where Chief Justice Gibson, of Pennsylvania, delivered the opinion of the court. Cummings v. Cummings, 5 W. & S. 553.
    Similar principles have been laid down in analogous actions for deceit. Beal v. Thatcher, 3 Esp. 194; Lovell v. Briggs, 2 N. H. 218; Allison v. Matthiew, 3 Johns. 235; Rankin v. Blackwell, 2 Johns. Cases, 198. And in two other cases decided by the Court of Appeals of New York, the principles contended for have been fully sustained and ably expounded. Johnson v. Monell, 2 Keyes, 655; Devoe et al. v. Brandt, 53 N. Y. 462.
    Persons who agree to share profits are priina facie partners. Ewell’s Lindley, 22, 649, 650; Kuhn v. Newman, 49 Iowa, 424.
    The evidence discloses that Adams and Sawdy participated in the profits, and Sawdy speaks of them as members of the firm. The presumption from this is that they were partners interested in the partnership property, and as such entitled to sue for its recovery or its value. Parker v. Canfield, 37 Conn. 250; Niehoff et al. v. Dudley et al. 40 Ill. 406.
   Mr. Justice Walker

delivered the opinion of the Court:

This was an action on the case, for deceit in the purchase of goods by plaintiff in error from defendants in error. A trial was had, resulting in a verdict and judgment in favor of plaintiff. The case was removed to the Appellate Court for the First District, and on a trial in that court the judgment of the Superior Court was affirmed, and the record is brought to this court on error.

The record shows that on the trial the evidence disclosed that other parties than the plaintiff who brought the suit were interested as partners in the transaction out of which the suit originated. On the application of plaintiff the court ordered “that all .papers and proceedings in the case be and are hereby amended by making John E. Adams and Henry J. Sawdy co-plaintiffs, ” but as a matter of fact there were no interlineations of their names in the declaration, papers and proceedings, ever made, and it is insisted that it was error to render judgment in their favor with their co-plaintiff, Doane. The evidence shows that Adams and Sawdy were to share in the profits of the firm of Doane & Co. Where parties agree to share in the profits of a business, the law will infer a partnership between them in the business to which the agreement refers; but this presumption may be disproved. It is prima facie evidence, and will control until rebutted. (Niehoff v. Dudley, 40 Ill. 406.) That tliere was such an agreement in this case is proved and uncontradicted. The evidence, then, was sufficient • to - authorize the allowance of the amendment. Nor was the fact that°the papers and the proceedings in the case were not changed by interlineation, more than a mere technical omission, that was cured by the statute of “Amendments and Jeofails, ” which was adopted to cure just such clerical omissions. The sixth section of that act provides for this character of defects, and supplies such omissions.

We are prohibited from considering the evidence on controverted questions of fact, further than to determine whether the instructions are supported by it. For this reason it was useless for plaintiff in error to devote the last fourteen pages of his argument to the weight of the evidence. That was determined by the Appellate Court, and that, under the statute, precludes our looking into it to determine whether it supports the vefclict.’

.. It is urged that the court admitted improper evidence, for Which the judgment should be reversed. In this character of cases the rule of evidence is anomalous, but too firmly established to be departed from or changed. It has been held, in a case where it is claimed a sale has been made for the purpose of hindering and delaying creditors, that to prove the intent of the seller in malting the sale, the manner in which he then recently obtained goods from his creditors was admissible, as well as the manner in which he disposed of them. (Gray v. St. John, 35 Ill. 222.) And, of necessity, the same rule must be applied where a person is charged with fraudulently purchasing goods. No reasonable distinction can be taken. We therefore regard that case as decisive of this question. Under the rule of that ease there was no error in the evidence as it went to the jury. All that was exceptionable was excluded, and the proper evidence -was fairly-limited to the purpose-of .its admission by instructions given to the jury. We perceive no error in the admission of evidence.

• It is insisted that the court erred in giving plaintiff’s instructions, and in modifying defendants’ instructions. It is urged that some instructions of defendants in error are not properly limited, and are calculated to mislead. If this be so, the defect is cured by others in the series. Nor do we perceive any error in the modification of those given for plaintiff in error. Looking at all the instructions together, we are not able to see that they could have misled the jury. As a series they clearly announce the law of the case, and certainly as favorably for plaintiff in error as he was entitled to have it announced. Where mere technical errors exist in instructions given, unless we can see that they did or were calculated to mislead the jury, to the injury of the party, against whom they are given, we will not reverse. We are unable to see that such was the case here.

Perceiving no error in this record the judgment of the Appellate Court must be affirmed.

Judgment affirmed.


text:
    Alexander P. Moore v. William B. Topliff et al.

      Filed at Ottawa May 10, 1883

      Rehearing denied September Term, 1883.

    1. Surety—when that relation exists. Three partners, A, B and 0, executed their firm notes to C, who indorsed the same, and the firm paid interest thereon until A withdrew from the firm, B and G taking all the assets and assuming all liabilities. It was held, that, as between themselves, upon this state of facts B and 0 became principal debtors, and A surety, upon the notes.
    2. Same—right to subrogation. It is a settled principle in equity, that a surety, upon paying the debt of the principal, is entitled to be substituted in the place of the creditor as to all securities held by the latter, and have the same benefit that he would have therein.
    '3. Same—whether a mortgage security to the creditor is extinguished, so as to defeat the surety’s right to subrogation—discharge of principals, in bankruptcy. Notes were given by a partnership firm, composed of A, B and 0, and indorsed to third parties, which notes were secured by a mortgage to the creditors, from 0, on real estate. A afterward sold out all his interest in the firm to B and 0, who assumed all the firm indebtedness, and formed a new partnership, the new firm paying interest on the notes until their bankruptcy, in which proceeding in bankruptcy the creditors proved their debts, and received forty-two per cent as a composition, in full discharge of the personal liability of B and C: Held, that as A was still personally liable on the notes as surety for B and 0, the mortgage was not extinguished, and that A’s existing equity, as surety, to have the mortgage security surrendered by the creditors to him upon his payment of the balance of the debt, was unaffected by the bankruptcy discharge.
    ■ 4. Same—rights of the surety, before paying the debt, to secure indemnity. A surety, after the debt has become due, may, without having made payment himself, come into a court of equity and compel the principal to pay the debt, making the creditor a party, that he may be at hand to receive the money. The surety stands in the position of an equitable assignee, and may use the remedies of the creditor, at his own risk and cost.
    5. 'Where a judgment was recovered against a surety alone, and its collection pressed, it was held, that he had a right, before paj’ing the debt, to file his bill in equity against the creditors and his principal, to be substituted to a mortgage security given by the principal to the creditors, in order to guard against injury from a release or transfer of the security, and to save circuity of action and the multiplying of suits.

      6. Chancery—may grant relief dependent upon the performance of some duty in the future. In the ease of mutual rights and duties, it is common for courts of chancery, by their decrees, to prescribe the rights of parties upon the performance of some duty in the future,—as, in bills for redemption, or for specific performance, in which the complainant must offer to do equity, and pay what may be found proper to be paid; and this rule applies between a surety and creditor. The right of the creditor to his money, and the right of the surety to the securities held by the creditor, are reciprocal and concurrent.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    On October 26, 1871, the firm of Bliss, Moore & Co., composed of Samuel Bliss, Alexander P. Moore and William B. Topliff, executed its three promissory notes of that date, two for $1650 each, and one for $1700, payable to the order of William B. Topliff, falling due five years after the date, and bearing interest at the rate of ten per cent per annum. Topliff sold, indorsed and delivered the notes, one to each of his- sisters, Sarah J. Houghton, Eliza M. Stanwood and Mary M. Topliff, the one delivered to Sarah J. Houghton being for $1700. At the same time that Topliff delivered these notes he executed and delivered to Sarah J. Houghton a mortgage or trust deed to secure the note held by her, and the one held by Eliza M. Stanwood, of certain real estate situate in Chicago, which mortgage was filed for record November 18, 1871. Moore, Bliss and Topliff continued in partnership under the firm name of Bliss, Moore & Co. until about January 1, 1875, when they dissolved partnership, Moore going out, and Bliss and Topliff continuing the business, under the firm name of Samuel Bliss & Co. The firm of Samuel Bliss & Co. bought out the interest of Moore in all the assets of the firm of Bliss, Moore & Co. The liabilities of Bliss, Moore & Co. were at that time over $233,000, all of whiek were paid by Samuel Bliss & Co., except the three notes so belonging to Topliff’s sisters. From the time of the dissolution up to December, 1877, Samuel Bliss & Co. paid all the interest upon said notes. Bliss and Topliff -went into bankruptcy in January, 1878, and the firm of Samuel Bliss & Co. entered into a composition with the firm’s creditors, (but not with their individual creditors,) under the United States bankrupt law, and among others who compounded their claims with the firm were the holders of these three notes, the three sisters of Topliff. By this composition forty-two and one-half cents on the dollar was paid upon these notes by Samuel Bliss & Co. The notes were then transferred to Thaddeus P. Stanwood for collection, and to enable him to sue upon all of them in one suit. He brought suit upon the notes in July, 1878, in the Superior Court of Cook county, against Moore, Bliss and Topliff, the makers of the notes, under the firm name of Bliss, Moore & Co. Only Moore was served with process. Judgment was obtained against Moore alone, and execution v?as issued, put in the hands of the sheriff, and demand made upon Moore to pay the same. Thereupon Moore filed his bill in equity to be subrogated to the mortgage so given by Topliff, and offered to pay the amount due upon the judgment upon the assignment to him of the mortgage, and also prayed that the mortgaged premises be subjected to the payment of the amount due upon the mortgage, and for general relief. Bliss, Topliff and Stanwood answ'ered denying the right to the relief prayed for. Sarah J. Houghton, Eliza M. Stanwood and Mary M. Topliff, the sisters of William B. Topliff, who are non-residents, and brought in by publication of notice, did not ansv’er. On final hearing, upon proofs taken, the Superior Court dismissed the bill. On appeal to the Appellate Court for the First District the decree was affirmed, and an appeal taken to this court.

      Messrs. Rosenthal & Pence, for the appellant:
    If the creditor refuses to transfer the security he holds to the surety, upon offer to pay the judgment, then the surety may file a hill to compel the transfer, upon offering to pay the judgment, and the court will decree the payment of the judgment only in case the creditor makes the transfer. Warner v. Beardsley, 8 Wend. 200; Clason v. Morris, 10 Johns. 539; 1 Story’s Eq. Jur. secs. 327, 499; Lewis v. Palmer, 28 N. Y. 275; Keokuk v. Low, 31 Iowa, 119.
    The power of courts of equity is not limited to settling the rights of parties upon what has been done in the past, but it reaches forth and declares their duties and rights for the future. Courts of chancery constantly, by their decrees, prescribe the rights of parties upon the performance of some duty in the future,—as, on bills to foreclose, bills for redemption, and on bills for specific performance.
    Courts of equity do not require that a legal tender of the money shall be made, or that it shall be brought into court, but all that is required in a ease of mutual duties and rights is, that the complainant should offer to do equity, and to pay the money upon receiving the property or securities to which he is by law entitled, upon payment of the debt. Webster v. French, 11 Ill. 275; Snyder v. Sparling, 57 id. 488; Barnard v. Cushman, 35 id. 452; Dwen v. Blake, 44 id. 140.
    A surety against whom judgment has been rendered may, without making payment himself, proceed in equity against his principal, to. subject the estate of the latter to the payment of the debt. Hale v. Wetmore, 4 Ohio St. 600; Tankersley v. Anderson, 4 Dessau. 47; Marsh v. Pike, 1 Sandf. Ch. 210; Same v. Same, 10 Paige, 595; Woolridge v. Norris, L. R. 6 Eq. 410; King v. Baldwin, 17 Johns. 384; Same v. Same, 2 id. 554; Warner v. Beardsley, 8 Wend. 200; Morton v. Roberts, 4 T. B. Mon. 492; Croughton v. Duvall, 3 Call, 72; Nisbitt v. Smith, 2 Brown’s Ch. 582; Hayes v. Ward, 4 Johns. Oh. 123; 2 American Leading Cases, 412; 1 Story’s Eq. Jur. secs. 327, 499.
    Upon the dissolution of the co-partnership, Bliss and Topliff took all the partnership assets, and after deducting all the liabilities of the firm from such assets, paid Moore for his interest in the firm, and assumed to pay the liabilities. Such being the case, Moore, the retiring partner, as between the members of the old firm, became the surety, and Bliss and Topliff became the principal debtors. Conwell v. McCowan, 81 Ill. 285; Kellogg v. Moore, 97 id. 282.
    Messrs. Bich, Noble & Stone, for the appellees:
    The bill seeks three things: First, that the value of the property released March 23, 1873, be credited on the judgment against Moore; second, that Moore be subrogated to the rights of Stanwood in the unreleased Topliff mortgage; third, that the mortgage be foreclosed, and the proceeds be applied upon the judgment against Moore.
    As to the first, it is sufficient to say that a valuable consideration was paid for the release, and the proof shows that at the date of the release the debt was the debt of the firm, and not of Topliff individually; that the payment was by the firm, and therefore Moore was not affected by the release in any way.
    Moore never having been surety, as between himself and the creditors, he can not complain of, or get any benefit from, such release. James v. Day et al. 37 Iowa, 165; Moore v. Stanwood, 98 Ill. 605.
    The right of a surety to be subrogated to the securities held by a creditor is distinguished from the surety’s right to enforce payment by the debtor.
    The great weight of authority in the United States is, that a person not a surety, in relation to the creditor, must pay before he can claim any interest in the security given the creditor. His duty is to pay, and he has no legal or equitaMe right to require the creditor to stand by while he seeks indemnity for himself. Darst v. Bates, 51 Ill. 439; Conwell y. McCowan, 53 id. 363; Same v. Same, 81 id. 285; Fogarty v. Ream, 100 id. 379.
    As a surety can have no right except through a creditor, and as these creditors have no longer any enforcible claim against Topliff, Moore, as surety, can have none.
    Proving his whole claim in bankruptcy .by the creditor, without reference to his security, is a waiver of it. Stewart v. Isidore, 1 Banker’s Reg. 485; In re Bloss, 4 id. 147 ; In re Stansell, 6 id. 183; In re Granger & Sabin, 8 id. 30; In re Jacox & Green, id. 241.
    The mortgage was then extinguished, and with it died all Moore’s rights, either to compel the creditors to sue Topliff, or to foreclose the mortgage, or to maintain a suit, on his own part, to compel Topliff to pay quia timet.

   Mr. Justice Sheldon

delivered the opinion of the Court:

The vital question of fact upon which, as we conceive, the decision must turn, is, whether upon the dissolution of the firm of Bliss, Moore & Co., on January 1, 1875, and the formation of the new firm of Samuel Bliss & Co., the latter firm assumed the debts of the former firm. Upon this the parties are not agreed. Moore testifies there was such an assumption,—Bliss and Topliff testify there was not.

The question as to what the contract between Moore, Bliss and Topliff was, upon their dissolution, arose before this court on a former occasion, in the case of Kellogg v. Moore, 97 Ill. 282. The assets of Samuel Bliss & Co. had been transferred to Kellogg by the bankrupt court, and Kellogg brought suit against Moore for an accounting in regard to the affairs of Bliss, Moore & Co. Bliss and Topliff both gave testimony in that former case, and the same letters forming the basis of the dissolution were in evidence in that case as in this. We were then of opinion that the weight of evidence showed there was a final accounting and settlement between the parties about the first of January, 1875, upon a basis which had already been agreed upon through their written correspondence, and that at that time Moore made a complete sale and transfer to Bliss and Topliff, forming the new firm of Samuel Bliss & Co., of his entire interest in the partnership effects and business of Bliss, Moore & Co., including the notes and accounts, and that under said settlement these notes now in question should have been paid by Bliss and Topliff. As respects the additional testimony which has been brought into the present case, we think it materially strengthens our former view. In the former ease Moore did not testify. In the present case he does testify, and states that Bliss and Topliff agreed to assume and pay the debts of Bliss, Moore & Co. And there is the further additional evidence in the present case of the sworn admissions of Bliss and Topliff, made by them in their bankruptcy proceedings, that the notes in question should be paid by the firm of Samuel Bliss & Co., it being so expressly stated in their partnership schedule of the creditors of the firm of Samuel Bliss & Co., filed with their petition in bankruptcy, and the holders of these notes were scheduled as creditors of that firm. Bliss and Topliff also, each of them, filed'with their petition their individual schedules of assets and liabilities, and names of parties to whom they owed individual debts; but in the individual schedule of William B. Topliff there is no mention of any indebtedness due by him upon said notes, except as contingent liability thereon as indorser, he stating in such schedule that the debt was the debt of Samuel Bliss & Co. These three sisters proved their notes in bankruptcy against the estate of Samuel Bliss & Co., and received their dividends out of the assets of that estate, and they also state, in their proofs then made, that Samuel Bliss & Co. had assumed and agreed to pay said notes.

Without further discussion of the testimony, we will say that the evidence in the present record not only leads us to the same conclusion we arrived at before, but it strengthens our belief in the correctness of that conclusion, that the firm, of Samuel Bliss & Co. assumed the debts of the firm of Bliss, Moore & Co. We take this, then, to be an established fact in the case. Upon that state of fact the relation of Moore,' and Bliss, and Topliff, as between themselves, with respect to these notes, would be, that Bliss and Topliff became the principal debtors, and Moore but a surety.

It is a well settled principle in equity, that a surety, upon paying the debt to the principal, is entitled to be substituted in the place of the creditor as to all securities held by the latter for the debt, and to have the same benefit that he would have therein. (1 Story’s Eq. Jur. sec. 327; Warner v. Beardsley, 8 Wend. 199; Lewis v. Palmer, 28 N. Y. 275; Marsh v. Pike, 1 Sandf. Ch. 210, S. C; 10 Paige, 595.) Not denying this rule, appellees’ counsel insists that the right to bring a bill for subrogation does not exist until the creditor has been paid by the surety. It has been held that where a mortgage has been given as an indemnity to the surety, the mortgage could not be foreclosed and the money received by the surety until the creditor had been paid, as in Darst v. Bates, 51 Ill. 439, and Conwell v. McCowan, 53 id. 363, cited by appellees’ counsel. But the question here is different, and is, whether a bill will lie to be subrogated to the security upon payment of the money to the creditor.

The right of the creditor to his money, and the right of the surety to the securities held by the creditor, are reciprocal and concurrent. In the case of such mutual rights and duties it is common for courts of chancery, by their decrees, to prescribe the rights of parties upon the performance of some duty in the future. As in ease of bills for redemption, it is not required that the redemption money shall be paid before the bill can be filed, but the mortgagor offers to pay the amount which may be found due, and the decree provides that in case of payment of such amount within a time limited, then the mortgage shall be null and void. (Dwen v. Blake, 44 Ill. 140.) So in case of bills for specific performance, the court does not require that the purchase money shall be paid before a bill can be filed to enforce the execution of a deed, but all that is required is, that the complainant should offer to do equity, and to pay the money upon receiving the property to which he is by law entitled upon payment of the debt. Webster v. French, 11 Ill. 275; Barnard v. Cushman, 35 id. 452 ; Snyder v. Spaulding, 57 id. 488.

A surety, after the debt has become due, may, without making payment himself, come into a court of equity and compel the principal to pay the debt. (Hale v. Wetmore, 4 Ohio St. 600; Tankersley v. Anderson, 4 Dessau. Eq. 44; City of Keokuk v. Love, 31 Iowa, 199.) In 2 American Lead. Cases, 412, the rule is stated thus: “The surety stands in the position of an -equitable assignee, and may use the remedies of the creditor, at his own risk and cost. He may accordingly file a bill against the principal to compel him to pay the debt at maturity, and make the creditor a party, because his interests are at stake, and in order that he may be at hand to receive the money.”

As between themselves, here, Topliff is the principal debtor, and Moore the surety. Judgment has been obtained by the creditor against Moore, the surety, and its collection by execution is being proceeded with. As between themselves, Topliff ought to pay the debt, and ■ not Moore, it being Topliff’s own debt. Topliff has given a mortgage on his property to the creditor to secure the payment of the debt. Moore asks but to have this property, which Topliff has pledged for the payment of this debt, to be so applied. He is not seeking to appropriate to himself this property without payment of the debt, but only asks that upon payment by himself of the debt he shall have the benefit of this mortgage security, and in order that there may be complete relief in the same case, and because all the parties in interest are before the court, he asks that the mortgaged premises be sold, and he be indemnified out of the proceeds for the payment made to the creditors. Such relief would save circuity of action, and avoid multiplying suits. As between Topliff and Moore, the equity of the relief asked seems plain. It would be but requiring, on the part of Topliff, performance of his promise to pay the debt, and the appropriation therefor of property which he had pledged for the purpose. As respects the creditors, there could be no prejudice to any rights of theirs. It is not sought to delay them in any way, but they may proceed without hindrance in the collection of their judgment. All that is asked as respects them is, .that-upon, payment of the judgment to them they shall transfer the mortgage security they hold. Be.ing in chancery, where costs are, by the statute, in the discretion of the court, costs upon the creditors need not follow the decree. In order to have the full benefit of the right of subrogation, such a bill might be necessary to guard against the danger of injury from a release or transfer of the security.

The point is made by appellees’ coimsel that the debt for which the mortgage was given has been extinguished, so far as Bliss and Topliff are concerned, by their discharge in bankruptcy, and the mortgage with the debt, and that the creditors proving in the bankruptcy proceeding their whole claims, without reference to the mortgage security, and accepting the composition on the whole amount, was a waiver and extinguishment of the mortgage. The notes of Bliss, Moore & Co., the payment of which the mortgage of Topliff was given to secure, were the joint and several obligations of Bliss, Moore and Topliff. The bankruptcy discharge of Bliss and Topliff discharged them from their personal liability upon the notes, but did not discharge the mortgage debt. That still remained owing by. Moore, and the mortgage, as an incident to it, continued operative, and Moore’s existing equity, as surety, to have the mortgage .security surrendered up by the creditors to him upon his payment of the debt, would be unaffected by the bankruptcy discharge.

We are of opinion the case makes an equitable title for relief, and the decree will be reversed, and the cause remanded for further proceedings conformable to this opinion.

Decree reversed.