author: Mr. Justice Scholfield

text:
    Archibald M. Rogers v. The Chicago, Burlington and Quincy Railroad Company.

      Filed at Ottawa May 15, 1886.

    1. Appeal—finding of facts by Appellate Court—the statute construed. The finding of fact contemplated by section 87 of the Practice act, is the finding of the ultimate fact or facts upon the existence or non-existence of which, as set up in the pleadings, the rights of the parties depend. It does not mean that the Appellate Court shall find what was the evidence of these facts, or shall find those merely subordinate or evidentiary facts which, when shown, contribute to the establishment of the ultimate fact or facts essential to sustain the alleged cause of action.
    2. Same—Appellate Court reversing on the facts alone. "Where the Appellate Court, without considering the errors of law assigned, finds the facts are such as will not authorize the finding and judgment of the trial court, and reverses the judgment, and an appeal is prosecuted from its judgment of reversal to this court, the record not presenting any question of law, the judgment of the Appellate Court will be affirmed.

      Appeal from the Appellate Court for the Second'District;— heard in that court on appeal from the Circuit Court of Mercer county; the Hon. Arthur A. Smith, Judge, presiding.
    Mr. B. C. Taliaferro, and Messrs. Connell & Morgan, for the appellant. •
    Mr. H. Bigelow, for the appellee.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was an action on the case, by appellant, against appellee, for negligence. The declaration alleged that appellant was injured, whilst in the exercise of ordinary- care, by reason of the negligence of the defendant. I-t was therefore incumbent on the appellant to establish this allegation by proof, in order that he should be entitled to recover. (Calumet Iron and Steel Co. v. Martin, 115 Ill. 358, and eases there cited.) In the trial court the jury rendered a verdict in favor of appellant for $1000, and the court, after overruling a motion for a new trial, entered judgment upon that verdict, and afterwards overruled a motion in arrest of judgment. The case was taken to the Appellate Court for the Second District by the appeal of the present appellee, where numerous errors of law and fact in the "rulings in the trial court were assigned; but that court, disregarding the errors of law assigned, found, and recited in the record, that there was error in the record of the judgment in the circuit court, because the appellee in that court (the appellant in this,) did not use ordinary care to avoid the injury complained of in the declaration, and the appellant in that court (the appellee in this,) was not guilty of wanton or willful injury, and for that error adjudged that the judgment of the circuit court be reversed. The case is now before this court by the appeal of the plaintiff in the circuit court from this judgment of the Appellate Court. No question of law is presented for our consideration, for the Appellate Court decided no question of law adversely to the appellant.

It is provided in the 87th section of the Practice act, (2 Starr & Curtiss, 1842,) that “if any final determination of any cause, as specified in the preceding sections, shall be made by the Appellate Court, as the result, wholly or in part, of the finding of the facts concerning the matter in controversy different from the finding of the court from which such cause was brought by appeal or writ of error, it shall be the duty of such Appellate Court to recite in its final order, judgment or decree the facts as found, and the judgment of tlie Appellate Court shall be final and conclusive as to all matters of fact in controversy in such case.” We held in Brown v. City of Aurora, 109 Ill.165, that the “finding of facts” contemplated in that section, is the finding of the ultimate fact or facts upon the existence or non-existence of - which, as set up in the pleadings in the cause, the rights of the parties depend,— that it does not mean that the Appellate Court shall find what was the evidence of those facts, or that it shall find those merely subordinate or evidentiary, facts which, when established, contribute to the establishment of the ultimate fact which must exist in order tó sustain the alleged cause of action. That case, in principle, is-precisely analogous to this.

The judgment is affirmed.

Judgment affirmed,.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    Theresa R. Corcoran v. Nathan S. White et al.

      Filed at Ottawa May 15, 1886.

      1. . Contkact—conditional acceptance of an offer to sell. To constitute a contract of sale of land by the acceptance of an offer to sell, the acceptance must be unconditional. No contract will result from a letter in reply, that the party will accept the offer “provided the title is perfect.” At any time before an unconditional acceptance of an offer and compliance with its terms it may be withdrawn.
    2. Same—receipt of a deposit, whether a contract of sale. The agents for the owner or party having the power to sell a lot, gave to a party desirous of purchasing the same, a receipt as follows: “Received of J. H. W., attorney for T. R. 0., his check for $500, as deposit on account of proposed purchase of sub-lot- 2, etc., said sum of $500, when paid, to apply on said purchase of said lot at $8000 cash, or to be returned to him in case said sale can not be perfected, say within sixty days from this date, or in case the title should prove defective, it being understood that we are to forward-a deed to the owner of said lot and recommend its execution.—Lyman & G-iddings:” Held, not the evidence of a contract of sale, but only a proposed purchase and agreement of the agents to forward a deed and recommend its execution.
    Appeal from the Circuit Court of Cook county; the Hon. T. A. Moban, Judge, presiding.
    Mr. B. M. Shaffneb, for the appellant.
    Mr. Daniel L. Shobet, for the0 appellees.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a bill in equity, filed by Theresa B. Corcoran, against Nathan S. White and others, to compel the specific performance of an alleged agreement to sell to the complainant sub-lot 2 of lot 1, in' block 3, in the original town of Chicago: On final hearing upon bill, answers, replications, and proofs adduced, the bill was dismissed, and the complainant appealed to this court.

The facts relied upon as establishing a case for the complainant, are. as follows: The lot in question belonged to Christine Cordell, of West Virginia, deceased, who died leaving four -children surviving her, and a will which contained this provision:

“Fifth—I give and devise all my real estate to be sold by my executor, and do hereby authorize him to do so as soon as it can be done without prejudice to my children, and after first consulting them about the sale; and after deducting from the sale of my Chicago lot the legacies herein given for the benefit of my grand-son and grand-daughter, and also the other legacy herein given, I give a,nd bequeath all the rest and residue of the sales of my real estate, and all other property, to my four children.”

Nathan S. White was appointed executor. On July 3,1880, Thomas Lyman, who was authorized by the will to lease the property until it was sold, and the heirs at law of the testatrix, executed a lease of the premises to one Samuel Thomas, from August 1, 1880, to August 1, 1885, which was subsequently, February 3, 1883, assigned to Michael J. Corcoran, the husband of appellant. At the time of the assignment there was a one-story and basement brick building, valued at $4000, standing on the premises, which. building appellant- had purchased. After this assignment, improvements amounting to $600 were made on the building by appellant. About March 19, 1883, appellant, desiring to purchase the ground, caused her attorney, James H. .Ward, to write letters to White, the executor, and to some of the heirs at law',- asking whether tlie premises were for sale. The following answer was received from White:

“Charleston, W. Va., March 24, 1883.
“J. H. Ward, Esq.:
“Dear Sir—In response to your letter of the 19th, addressed to Dr. Cordell, of Baltimore, and forwarded to me by him, I would state that, as the personal representative of the estate of Mr. Cordell, I have authorized Thomas Lyman, of your city, to- sell the property you refer to, and will be glad to have you call on him at 101 Washington street, your city. I will write to Mr. Lyman at once, and inform him of your wishes.
Very respectfully, N. S. White.”

Ward called upon Lyman, learned from him the property was for sale, and afterward, about April 13, 1883, received the following postal card from Lyman:

“April 18, 1883.
“Deab Sib—I can sell the lot you wanted at $7000. Please let me know at once what your parties say.
Yours, T. Lyman. ”

April 14, -1883, Ward wrote the following:

“April 14, 1883.
“Thomas Lyman, Esq., 101 Washington street, city:
“Deab Sib—Yours of the 13th inst. at hand, and replying to the same will say that my client will accept your proposition for the premises 15 North Clark street, and will pay $7000 for the same, provided the title is perfect. I will call at your office again on Monday, at ten o’clock, at which time I can get the abstract and have it examined. I called to-day with my client, but you had left your office.
Respectfully, James H. Ward.”

Mr. Ward testifies that they called on Lyman, Monday, told him they would call the next day, as Mr. Corcoran was unable to call that day; that he and Corcoran went and saw Lyman, and he said the property was not for sale; that they asked for the abstract, and were ready to make a deposit on the property, but they were informed by Lyman the property was not for sale at that price. Some time in May, 1883, Ward again called on Lyman, when the latter informed him that the premises could be purchased for $8000. Appellant agreed to pay the additional $1000. Lyman stated he was going Bast. On his return he executed and delivered the following:

“July 18, 1883.
“Received of James H. Ward,, attorney for Theresa R. Corcoran, his check for $500, as deposit on account of proposed purchase of sub-lot 2, in lot 1, in block 3, in original town of Chicago, said sum of $500, when paid, to apply on said purchase of said lot at $8000 cash, or to be returned to him in case said sale can not be perfected, say within sixty days from this date, or in case the title should prove defective, it being understood that we are to forward a deed to the owner of said lot and recommend its execution.
Lyman & Biddings.” ,

The deed was forwarded accordingly, but never executed, Mr. White being unwilling to sign the deed until the heirs had done so, and one of them seems to have refused. Repeated demands were made on Lyman for the deed, appellant saying she was ready to pay the remaining $7500, and that she would accept a deed from White without the heirs joining, or with as many as would join. After the giving of the receipt of July 18, 1883, appellant expended some $600 on the building.

In respect to the alleged offer of sale for $7000, by his postal card of April 13, 1883, Lyman testifies, without contradiction : “In relation to that card I would say that Mr; Ward came over and said his-parties would take the property, and arranged to come in the next morning and deposit $500. He came in two days after and brought in a check for $200, not certified, which I refused to take. The next morning I discovered the record of the great sale opposite where the Sibley building now stands, and as a truste'e under the will I felt it my duty to decline to carry out the $7000 sale.” He also testified that he offered back the $500 deposit, which was refused.

It is impossible from the foregoing to make out any contract of sale. Assuming, as is contended, that under the will the executor, White, had an estate in the lot, and not a mere power to sell, and that his letter of March 21, 1883, shows sufficiently that Lyman had from him authority, in writing, to make sale of the lot, and conceding that Lymaffis postal card of April 13, 1883, was an offer to sell, and not mere information of authority to sell, yet, under that postal card, and Ward’s letter in reply, of April 14, 1883, there did not arise a contract of sale. In order to that result there should have been an unconditional acceptance of Lyman’s offer. There was here but a conditional acceptance,—one upon the condition that the title was perfect. Again, there was no compliance with the offer before it was retracted. The proposition was that Lyman could sell the lot for $7000. There was neither a payment nor tender of payment of the $7000. As Lyman testifies, without contradiction, there was a promise made to come in the next morning and deposit $500. Appellant’s agent came in two days after, and brought in a check for $200, not certified, which-Lyman refused to take. The next morning he discovered the record of an important sale of property in the vicinity, which he considered made it his duty to decline to carry out the $7000 sale. The offer had not then been met by compliance with its terms, and there was the right to retract it. The receipt of July 18, 1883, obviously, does not evidence a contract of sale. It shows but a proposed purchase of the lot, and that the agents were to forward a deed to the owners and recommend its execution. We are of opinion the circuit court did right in dismissing the bill, and the decree- is affirmed. •

Decree affirmed.


author: Mr. Chief Justice Mulkey

text:
    Elizabeth Wallahan et al. v. Eta Ingersoll.

      Filed at Ottawa May 15, 1886.

    1. Tax title—notice by the purchaser—its requisites. "Where the affidavit of the service of notice of a tax purchase fails to state the particular facts relied on as showing a compliance with sections 216 and 217 of the Bevenue act, as amended by the act of 1879, the sale being in 1881, for the taxes of 1880, it will not authorize the making of a deed by the county clerk, and if made, it will be void.
    2. Escheats—of the proceedings to establish an escheat. Under the law of 1845, where the owner of real estate died intestate, without heirs capable of inheriting it, the title thereof devolved, by operation of law, upon the State. But to make the title available to the State, it had to be first established by a judicial proceeding in the nature of an inquest of office; and the record of it is the only competent evidence by which a title by escheat can be established.
    3. Although general power is confeired by statute upon the court to adjudicate in respect to escheats, yet it must be put into motion by the filing of an information conforming substantially to the requirements of the act governing such proceedings, otherwise jurisdiction as to the subject matter will not attach.
    4. The first step under the act of 1845 to establish an escheat, was the filing by the Attorney General or circuit attorney of an information in the circuit court of the county in which the land was situated, giving its description, the name of the person last lawfully seized, the names of the ierre tenants, and persons claiming such estate, if known, and the facts and circumstances in consequence of which such estate is claimed to have escheated, and alleging that by reason thereof the State hath right, by law, to such estate.
    5. Same—of the process—when it may properly issue—and its requisites. On the filing of such information it was made the duty of the court to award and issue a scire facias against such person or persons, bodies politic or corporate, as shall be alleged in the information to hold, possess or claim such estate, requiring them to appear and show cause why such estate should not be vested in the State.
    6. Where the information fails to give the name's of the ierre tenants, no scire facias can properly issue against them to make them parties; and the issue and service of such process on part, only, of such tenants not named in the information, will fail to give the court jurisdiction over the person of any one claiming adversely, and its judgment will be void.

      7. A scire facias issued in 1849 upon an information to adjudge a tract of land as escheated to the State, requiring the ierre tenants and claimants to appear and show cause why the land should not be vested in the State, is void if it does not run in the name of the People of the State, and being void, its service is a nullity.
    8. Same—of the notice to others interested. It is also made the duty of the court to make an order setting forth briefly the contents qf the information, and requiring all persons interested in the estate to appear and show cause, at the next term, why the land should not be vested in the State. This order was required to be published for six weeks successively, in some newspaper, the last insertion to be at least two weeks before the term to which they were required to appear.
    9. The court can only acquire jurisdiction, under the law of 1845, over persons interested, other than those named as tenants and claimants, by making an order setting forth the contents of the information, and requiring all persons interested in the estate to appear, and causing such order to be published six weeks successively, the last insertion to be at least two weeks before the next term. When it appears that the last insertion was less than two weeks, the court will acquire no jurisdiction.
    10. Same—effect of finding of due service. And if the record shows a certificate of the publication of notice not such as the law required to give jurisdiction, a recital in the orders and judgment that notice was properly given, will not avail to sustain the judgment.
    Appeal from the Circuit Court of Woodford county; the Hon. David McCulloch, Judge, presiding.
    Messrs. Hopkins & Hammond, for the appellants.
    Mr. C. H. Chitty, for the appellee.
   Mr. Chief Justice Mulkey

delivered the opinion of the Court:

On the 4th of November, 1884,'Eva Ingersoll commenced an action of ejectment in the Woodford circuit court, against Elizabeth Wallahan and others, for the recovery of the east half of the north-east quarter of section 15, and the northeast quarter of the south-east quarter of section 29, township 27 north, range 2 west. The cause was subsequently tried upon the merits, resulting in a judgment for the plaintiff, to reverse which this appeal-is brought.

That the plaintiff established a prima facie right of recovery in the first instance, is not seriously controverted. The questions, therefore, to be determined, relate to the sufficiency of the defence to overcome the prima facie case made by the plaintiff.

The defendant sought to establish, on the trial, an outstanding title in the State, by escheat, to the whole of the property, and a valid tax title, as to the eighty-acre tract, in Mrs. Wallahan, founded upon a tax sale in 1881, for the taxes of 1880 and prior years. Not stopping to remark upon the inconsistency of these defences, the latter may be disposed of in a few words. The affidavit upon which the tax deed was issued is wholly insufficient. It does not state the particular facts relied on as showing a compliance with the requirements of the 216th and 217th sections of the ¡Revenue act, as amended by the act of 1879. Indeed, there is no attempt to do so. Such being the ease, there was no authority in the county clerk to issue the tax deed, and it is consequently void. Price v. England, 109 111. 394.

Having reached this conclusion,, it is unnecessary to notice the other objections urged against the tax proceeding.

The evidence relied on to establish title in the State is anything but satisfactory. It consists mainly of certain papers found in the office of the clerk of the circuit court of Wood-ford county, and though none of them, except perhaps one, bear the file marks of the clerk, yet, all the circumstances considered, we think it sufficiently appears that they constitute the files of an escheat proceeding, commenced in the name of the People in 1849, for the purpose of establishing title in the State, by escheat, to the land in controversy.

Before calling attention to the statutory provisions on the subject, with a view of determining whether they were complied with in that particular case, it is, perhaps, proper to call attention to the general, common law principles relating to the subject of escheats. When the owner of real property dies intestate, without heirs capable of inheriting it, the title thereof devolves, by operation of law, upon the State. Yet when thus acquired, the State can not make its title available without first establishing it in the manner prescribed by law. This.is done by the institution of a judicial proceeding in the proper court, in the name of the People, for the purpose of proving and establishing, by a judicial determination, title in the State. The facts essential to the existence of the State’s title are specifically set forth in the statute, and must be clearly proven on the hearing.. The proceeding is in the nature of an inquest of office, and the record of it is the only competent evidence by which a title by escheat can be established. Dow v. O’Hanlon, 1 N. J. 582; Crane v. Reeder, 21 Mich. 8; Commonwealth v. Hite, 6 Leigh, 588; The People v. Cutting, 3 Johns. 1.

The proceeding, the record of which is relied on as showing title in this case, was had under the act of 1845, entitled “Escheats, ” (Eev. Stat. 1845, p. 225,) which is in most respects like the present act, the material difference being that estates now escheat to the county in which the property, or the greater portion of it, is situated, instead of to the State. By the second section of the act of 1845 it is made the duty of the Attorney General, or the circuit attorney of the proper county, when he is informed, or has reason to believe, that any real estate within his district has escheated to the State, to file an information in the circuit court of the county in which such estate is situated, “setting forth a description of the estate, the name of the person last lawfully seized, the names of the terre tenants and persons claiming such estate, if known, and the facts and circumstances in consequence of which such estate is claimed to have escheated, and alleging that by reason thereof the State of Illinois hath right, by law, to such estate.” Upon the filing of such information it is made the duty of the court “to award and issue a scire facias against such person or persons, bodies politic or corporate, as shall be alleged in such information to hold, possess or claim such estate, requiring them to appear and show cause why such estate should not be vested in the State, ” etc. It is also made the duty of the court to make an order setting forth briefly the" contents of the information, and requiring all persons interested • in the estate to appear and show cause, if any they have, at the next term of the court, why the same should not be vested in the State. This order is required to be published for six weeks successively, in some newspaper in or nearest to the county in which such proceeding is had, the last insertion to be at least two weeks before the commencement of the term at which the parties are required to appear.

Such are the plain and express provisions of the statute with respect to the preliminary steps to be taken before there can be any valid adjudication in an escheat proceeding. In -this, as in all other judicial proceedings, it is essential to the validity of the adjudication and final decision therein, that the court rendering it shall have jurisdiction of the subject matter of the suit, as well as of the persons to be affected by it. General power over the subject matter, in cases of this kind, is of course given by the statute. Nevertheless, the court must be put in motion by the filing of an information which conforms substantially to the requirements of the acts governing the proceeding, otherwise jurisdiction as to the subject matt'er will not attach.

Although quite a number of exceptions are taken to the information, we are of opinion that with one exception they are not well founded. The only substantial objection to it is, that it fails to name as defendants the occupants or terre tenants of the land, although it affirmatively appears from other parts of the"record that two persons, namely, one Painter, and Abram Dressier, were in possession of the land at the time the information was filed. By a so-called scire facias, some one not named,—presumably the officer to whom it might happen to be delivered,—is commanded to .summon these parties, and there is a return by the sheriff off the county show-" ing service on Painter, but no return as to Dressier. The importance of the information setting forth the names of all persons in possession or claiming an interest in the premises, is shown by the fact that the scire'facias is required to issue only against such “as shall be alleged in such information to hold, possess or claim such estate. ” The issuing of the-scire facias against or service of it upon any others, would manifestly be a superfluous, idle act, and available for no purpose whatever. It would be just like any other case of serving one with process who is not made a party to the suit. Had no one been in possession or claimed an interest in the land, the information should simply have stated that fact. In that case the issuing of a scire facias would not have been proper, for the reason there would have been no one to issue it against.

For the reasons already stated, and other's yet to be mentioned, we are of opinion the court failed to obtain jurisdiction over the persons of any one claiming -adversely to the State. The persons to be affected by the adjudication were of two classes: First, those in possession of the premises, and - such as were known to claim an interest therein; and second, all other persons not embraced in the first class. As to the first class,, the statute requires, as we have just seen, their names to be set forth in the -information, and a scire facias is to be issued against and personally served upon them. As to' the second class, or persons generally, jurisdiction can only be obtained by means of constructive service, as provided in the second section of the act, which, it will be remembered, is obtained by the court making an order setting forth the contents of the information, and requiring all persons interested in the estate to appear, etc., and causing such order to be published six weeks successively in the proper newspaper, the last insertion to be at least two weeks before the commencement of the term at which the parties are required to appear. We are clearly of opinion the service is fatally defective as to both classes provided for in the statute.

As to the so-called personal service, there are several fatal objections to that. First, there was no authority to issue the writ at all, because no one is “alleged in the information to hold, possess or claim the estate. ” Second, assuming the writ might properly have issued against the occupants of the land in the absence of such a charge in the information, then the service was not good, because the return shows there was service upon but one of the occupants and no return as to the other. As well might a court' proceed in a partition case where there is service on a part of the defendants only, with the hope of making a valid partition, as for it to have proceeded in that case, where only a part of the terre tenants had been personally served. Third, outside of all these objections, the scire facias was and is absolutely void upon its face, because it does not run in the name of the People. There are other minor objections to it, which we will not stop to notice.

The constructive service relied on is equally bad. Waiving all objections to the form of the order, the printer’s certificate which is offered in evidence in this cause shows upon its' face that the last insertion of the order in the newspaper was less than two weeks before the commencement of the term at which the parties were required to appear. This objection is fatal to the notice, notwithstanding the recital in the record to the effect that notice was properly given.

No question of innocent purchaser for value is involved in this case, hence those decisions sustaining titles in the interest of innocent purchasers upon such recitals, have no application. The question here is, whether one having no title can avail himself of such a recital to show an outstanding title in a stranger, for the purpose of defeating a plaintiff’s action who otherwise appears to have a good title, when, as is the case here, it is clear from the proof of notice itself, which is a pari of the same record, that the recital is untrue. In such case we have no hesitancy in holding the recital is not available for such a purpose.

As we regard the jurisdiction of the court fatally defective-in the escheat proceeding on the grounds stated, it follows the judgment and orders in the case were without authority of law, and consequently afford no defence to the present action. Having reached this conclusion, it is not necessary to discuss, the other objections taken to the proceedings in that case.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Magruber

text:
    Daniel H. Horne v. John Walton.

      Filed at Ottawa May 15, 1886.

      1. Fraud and deceit—loan of money procured thereby—tender of securities back to the agent through whom the fraud ivas committed. An attorney procured a loan of money to be made to a person residing in another State, upon the false and fraudulent representation that such person was very wealthy, and ivas the owner of valuable real estate in this State, which he-offered to mortgage to secure the loan, the attorney knowing the falsity of' his representations. The attorney gave the lender the note of such person, with a mortgage upon property to which the mortgagor had no title. The-attorney testified that he was agent for the person giving the note and mortgage, and the lender tendered back the note and mortgage to the attorney, and brought his action against him to recover damages for the fraud and deceit practiced by him: Held, that the offer to surrender the note and mortgage to the defendant was sufficient to authorize the action, and that it was-not necessary for the plaintiff to seek the maker of the note and mortgage, or his personal representatives, he being dead, and surrender the same to them.
    2. Measure oe damages—money borrowed upon fraudulent security ■—distinguished from a fraudulent sale of land. Where a sale of land is-made by false and fraudulent representations as to its value, quality or condition, the measure of damages in an action by' the purchaser, is the difference between the actual value of the land and its value aspt was represented to be at the time of the sale. But this rule has no application to a loan of money made in reliance upon fraudulent and "false representations as to the title and value of the land given as a security for the repayment of the loan.
    3. So in an action on the case against a party procuring a loan of money through fraud and deceit, upon representations that the security offered was good, when, as a matter of fact, it was known by the defendant to be worthless, and this was not known to the plaintiff, it was held, the true measure of damages was the amount of money thus obtained, with interest thereon from the time it was received.
    4. Practice—time to object—for variance between the pleadings and the proof. In case of a variance between the averments of the declaration and the proofs, in an action on the case to recover for money obtained through fraud and deceit practiced by the defendant, it should he pointed out on the trial, to give an opportunity to obviate the same by amendment. It is too late to make the objection for the first time on appeal or error.
    5. Instbuction—referring to the evidence as the basis of belief. An instruction is defective in form, if it requires the jury to believe, without requiring the belief to be from the evidence, and its refusal will not be error, especially when its substance is embraced in one given.
    6. Same—singling out particular portions of the evidence. There is no-error in refusing an instruction which selects conversations testified to by the party asking it, and attempts to lay down certain conditions upon which, alone, such conversations can be regarded as proved by a preponderance of the evidence, especially when the duty of the other party to establish his case by a preponderance of evidence, is stated in another -instruction which was given.
    7. Same—at variance with the evidence. In an action against a party for fraud and deceit in obtaining a loan of money to one whom he fraudulently represented to be a -wealthy man, the defendant asked the court to instruct the jury to find for him, unless they found, from the evidence, that the person to whom the loan was made was insolvent at the time of the commencement of the suit, which was refused. The evidence clearly showed that such person had been dead some two years before the suit was brought: Held, no error in refusing the instruction.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Kiek Hawes, Judge, presiding.
    Mr. L. D. Condes, for the appellant:
    The foundation of this action is fraud and deceit. Bouvier defines fraud to be “unlawfully, designedly and knowingly to appropriate the property of another without a criminal intent, ” and deceit “to be fraudulent misrepresentation or contrivance by which one man deceives another who has no means of detecting the fraud, to the injury and damage of the latter.”
    False representations as to the condition, situation, title and value of real estate are not actionable, unless the purchaser, has been fraudulently induced to forbear inquiry, and then the means used must be set out in the declaration. Brown v. Bledsor, 1 Idaho, (N. S.) 76; Grown v. Carriger, 66 Ala. 590; Paisley v. Freeman, 2 Smith’s L. C. 142.
    An averment that defendant well knew his representations to be false, is not maintained by proof that they were false, and that he made them ignorantly, (Lord v. Goddard, 13 How. 198,) nor by proof that defendant had reasonable cause to believe they were untrue. Peanson v. Howe, 1 Allen, 207.
    The party making the false representations must know them to be such, and the person seeking to recover must have relied on -them as true, and have been induced to act upon-the statement. Wheeler v. Randall, 48 Ill. 182; Hiner v. Richter, 51 id. 299; Merwin v. Arbuckle, 81 id. 502.
    The rule of law is caveat emptor if the purchaser has equal means of-information, and it is not contended but that appellee had an equal opportunity with appellant to examine the records of real estate transfers, and determine for himself the validity of the title to the lots described in the mortgage from Carpenter to Walton. Hill v. Bush, 19 Ark. 522.
    When a purchaser with full means of knowledge within his reach, fails to avail himself of such information, he can not recover. Post v. Williams, 6 Ind. 219; Veasy v. Dotin, 3 Allen, 380.
    The court erred iti refusing defendant’s instruction as to the measure of damages, which announced the correct rule. Sedgwick on Measure of Damages, 708; Drew v. Beall, 62 Ill. 168.
    As to defendant’s second instruction, see State v. Gates, 20 Mo. 400.

      Mr. J oseph Wright, for the appellee:
    The ease of Paisley v. Freeman, cited, does not apply to the case of one lending his money to a friend who promises good real estate security.
    An objection that the proof does not sustain the allegations, ór that there is a variance, must be made on the trial, so that the declaration can be amended. City of Elgin v. Kimball, 90 Ill. 356; Thompson v. Hoagland, 65 id. 310; Benevolent Society v. Feltsam 97 id. 474; Driggers v. Bell, 94 id. 223; Schill v. Reisdorf 88 id. 411.
    The ease of Drew v. Beall, 62 111. 168, is good law as to the measure of damages in suits for deceit on a sale of land, or for deceit in relation to its quality or condition, and also where the plaintiff actually gets 'the title to the land. But here no title passed. As to damages, see 2 Sutherland on Damages, 257; Frazer v. Peoria County, 74 Ill. 282.
   Mr. Justice Magruber

delivered the opinion of the Court ;■

This is an action on the case, brought by appellee in the circuit court of Cook county, to recover damages of appellant for obtaining $2000 of appellee by deceit and false and fraudulent representations. The case was tried before a jury, who returned a verdict in favor of appellee for $2900, being the sum of $2000 and interest thereon. The judgment upon this •verdict was affirmed by the Appellate Court, and the case is brought to this court by appeal from the Appellate Court.

The declaration alleges, that appellee worked on the farm of one Bowen, and had $2000 deposited in the Illinois Trust and Savings Bank of Chicago; that appellant (an attorney) came to Bowen’s place in August, 1877, and represented to appellee, that the bank was unsafe, and it would be better to invest the money in real estate security; that appellant stated, that he had been agent for fourteen years for one Carpenter, of Cincinnati, who was worth over $100,000, and owned some lots in Chicago, worth $5000; that Carpenter wanted $2000 to pay off the taxes upon these lots, and would pay double the interest, paid by the bank; that the title to the lots was good, and appellant knew it to be good; that appellant induced appellee to surrender up the $2000, and gave to appellee, as security, Carpenter’s note for that amount, due in six months, drawing eight per cent interest, and a mortgage, executed by Carpenter, on the lots in question; that appellant represented that the investment was safe, and that the money would be used in paying the accumulated taxes upon said lots; that the representations, so made, were false, and known to be false by 'appellant, and were made for the purpose of deceiving and defrauding appellee; that, upon the maturity of the note, appellee demanded his money of appellant, but was told that Carpenter had died, and nothing could be done, until the estate was settled; that the money was promised to be forthcoming in a few weeks from Carpenter’s father-in-law, but has never been paid; that appellant declined to furnish an abstract of title; that the title was not good in Carpenter; that the money was not used to pay taxes on the lots; that the taxes had been paid on the lots for years prior to 1877, by Mary Kenyon; that Mary Kenyon was the owner in fee of the lots, etc.

The appellant,complains, that the circuit court erroneously refused to give an instruction, asked by him, which told the jury that, if they should find the issues for the plaintiff, “the true measure of damages would be the difference in value between the value of the property, at the time the transaction was had, and what it would have been worth at said time, had it been, as the jury believe from the evidence, said defendant represented it to said plaintiff, and said plaintiff believed it to be from said representations.” This instruction was properly refused, as being inapplicable to the facts of the case. Where there has been a sale of land, and fraudulent representations have been made as to its value or quality or condition, the measure of damages is, undoubtedly, the difference between the actual value of the land and the value of it, as it was represented to be at the time of the-sale. In this case, there was no sale, but a loan. Appellee is alleged to have parted with his money, as a loan, upon representations, that a certain security offered him, was good, 'when, as matter of fact, it was known to be worthless. The evidence tends to show, that Carpenter was worth nothing pecuniarily, and had no title to the lots mortgaged, and that appellee never saw"Carpenter and knew nothing about him or his title to the lots, except what he learned from appellant. He did not buy after an examination of the record title and in. reliance upon such examination. He was not furnished by the borrower •with an abstract of title, as is-customary in such cases. He relied solely upon the statements of appellant, who was a lawyer, as to the validity of the title. The evidence, also, tends to show, that, before suit brought, the note and mortgage were tendered back by appellee to appellant. The actual loss of •■appellee was the money he parted with, and interest thereon, while he was kept out of the possession of it. We think the ■correct measure of damages, in this case, was the amount of .such loss, to-wit: the $2000, and interest.

It is not perceived, why the same rule does not apply here, as is laid down in cases, where there is a breach of the covenant of seizin. “For a total breach of the'covenant of seizin or good right to convey, where nothing passes by the conveyance, the measure of damages is the amount of consideration paid, and interest.” (2 Sutherland on Damages, p; 257.) To the same effect is the case of Frazer v. Supervisors of Peoria County, 74 Ill. 282. Under the instructions given, the jury estimated the damages in accordance with this rule.

The refusal of appellant’s second refused instruction is ■claimed to have been erroneous. The instruction was defective in form, in requiring the jury to “believe,” and in not requiring them to “believe from the evidence.” While this formal defect may not have been sufficient, of itself, to have misled the jury, yet we think, that the substance of this instruction .was embraced in the third instruction, which was given for appellant. .The second instruction refused, singling out the conversations testified to by appellee, attempted to lay down certain conditions, upon which alone those conversations could be regarded, as proved by a preponderance of evidence. The duty of appellee to establish his case by a preponderance of evidence was stated with sufficient fairness to appellant, in the third instruction, given for him, which was in the following words :

“The jury are instructed that the burden of proof in this class of cases is upon the party holding the affirmative; and if the jury find that the evidence bearing upon the plaintiff’s case is evenly balanced, or that it preponderates in favor of the defendant, then the- plaintiff can not recover, and the jury should find for the defendant.”,

This third instruction also embraces substantially all, that is material or pertinent to the issue in appellant’s fifth refused instruction.

Appellant’s ninth refused instruction was properly refused. It required the jury to find, that appellee had offered to surrender the “notes” to the said Carpenter"or his legal representatives. There was only one note, and the evidence tends to show, that this note, indorsed by appellee, and the mortgage, securing it, accompanied by an assignment thereof, duly executed by appellee,' were tendered to, appellant before suit brought. Appellee, who was a poor gardener, working as a laborer upon a gentleman’s country place, was not required, under the circumstances of this case, to go to Cincinnati and look up the legal representatives of Carpenter. Appellant, not Carpenter, gave him the note and mortgage. Appellant swears, that he was Carpenter’s agent and had been for fourteen years. It was sufficient, therefore, that the offer to surrender the securities was made to appellant.

As to appellant’s tenth refused instruction, which required the jury to find for appellant, unless they found from the evidence, “that said Carpenter was insolvent * * * at the time of the commencement of this suit,” it is sufficient to say, that, by the undisputed evidence in the case, Carpenter had been dead some two years before “the commencement of this suit.”'

It is objected, that there was, in some particulars, a variance between the averments in the declaration and the proof, as introduced. No such variance was pointed out -in the trial court. If it existed, an objection pointing it out, should have been made on the trial, so that the declaration could be amended to conform to the proofs. It is too late to make such an objection here. City of Elgin v. Kimball, 90 Ill. 356.

Whether or not appellant’s representations were false, and whether or not he knew them to be false, when he made them, are questions of fact, in reference to which the judgment of the Appellate Court, affirming that of the circuit court, is final.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    John Farson et al. v. Charles T. Gorham.

      Filed at Ottawa May 15, 1886.
    1. Appeaii—only from final'decrees, etc.—and what is a final decree. An appeal or writ of error lies to review only final orders, judgments or decrees, and not to those which are merely interlocutory. A case can not be heard in a reviewing court by piecemeal.
    2. A decree appointing a receiver on a-bill to foreclose a mortgage or deed of trust, or removing him, is nota final decree, but is only interlocutory, and for that reason a writ of error does not lie to review the same.

      3. Chancery—property in hands of receiver turned over to a purchaser —subject to further order of the court. Where an order appointing a receiver, on bill to foreclose a trust deed, is vacated, and the property is turned over to a party claiming as purchaser of the equity of redemption, upon his giving bond, with security, to hold the property subject to the. order of the court, all moneys which may come into the hands of such purchaser will be subject to the final decree entered in the cause. After final decree the case may be reviewed, and any error therein be corrected.
    Writ of Error to the Appellate Court for the First District ;—heard -in the court on writ of error to the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Mr. Morton Culver, for the plaintiffs in error.
    Messrs. Abbott & Johnson, and Mr. E. A. Crane, for the defendant in error.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by John Farson, trustee, against Gilbert A. Colby and others, to foreclose a certain ■trust deed which was executed on the first day of October, 1881, by Colby, to Farson, on certain property in Chicago, to ■secure $19,500 due and owing Preston, Kean & Co. The bill alleged that Colby was insolvent, and prayed that a receiver he appointed to take possession of the premises and collect the rents, as provided in the deed of trust. On the 14th day of May, 1884, the court appointed William D. Preston receiver, who went into the possession of the property. Charles T. Gorham, the defendant in error, was made a party to the hill, but no service was had as to him when the receiver was appointed. On the 3d day of June, 1884, his appearance was entered, and on the 14th of June he filed an answer to the bill. In the answer the defendant in error set up that he had previously obtained a judgment against Colby, upon which his equity of redemption in the mortgaged premises had been sold, and that he had received a sheriff’s deed on the 20th of May, 1884. He denied that Colby was insolvent; denied that -there was any cause for the appointment of a receiver. He also set up that the mortgaged premises were worth §30,000,—much more than the mortgage debt. After the «filing of the answer, the defendant in error entered a motion to vacate the order appointing the receiver, and that the possession of the property be turned over to_ him. The court heard the evidence on the motion, and entered an order that Gorham," upon entering into a good and sufficient bond within twenty days, in the sum of §5000, the receiver and his lessees immediately surrender the possession of the property and premises to Charles T. Gorham, to which Augustus D. Lamb, John Farson" and Frederick W. Hayes excepted, and prayed an appeal, which was denied. After the appeal was ■denied, the complainant in the bill sued out a writ of error from the Appellate Court to reverse the order, but on motion in the Appellate Court, the writ of error was dismissed, and this writ of error was brought to reverse the judgment of the Appellate Court.

Section 68 of the Practice act provides: “Appeals from and writs of error to all circuit courts, the Superior Court of ■Cook county, and city courts, and from other courts from which such appeals and writs of error may be allowed by law, may be taken to the Appellate Courts from all final judgments, orders and decrees, except as herein stated.” The ■question presented is, whether the order entered by the court was a final judgment, within the meaning of the statute.

The original hill to foreclose the deed of trust or mortgage, which must, in the end, finally settle the rights of the parties as to the pfoperty involved, is still pending and undetermined in the Superior Court. There are various orders made by a circuit court, in the progress of a cause, which may, for the time, more or less affect the rights of the parties, from which no appeal will lie, nor can a writ of error be prosecuted to reverse such orders, for the reason that such orders are not final, within the meaning of the statute, but merely interlocutory. We regard the order in question of that character. When this case 'is heard on its merits, the order that has been entered may be vacated by the Superior Court in the final decree, and hence no necessity exists for reviewing that order until the final decree is rendered in the cause. This court has often decided that a case can not be heard here by piecemeal. In Coates v. Cunningham, 80 111. 467, we held -that a decree appointing a receiver is interlocutory, and a writ of error will not lie to reverse a decree removing a receiver, as was done by the decree here. It is true, the decree or order entered in this case gave the defendant in error the possession of the property, but that can not in any manner impair the rights of the complainant, as the defendant in error was required to give bond and security, and all moneys which may come into his hands under the order will be subject to the final decree which the court may ultimately render in the cause. When the original bill is heard on its merits, and a final decree rendered which will definitely settle the rights of all the parties to the cause, it will then be.ample time, if the decree is erroneous, for either party to appeal or sue out a writ of error. Then the entire record can be brought before the court for examination, and any error that may have intervened may be corrected.

Blake v. Blake, 80 Ill. 524, has been cited as an authority by plaintiff in error, but that case has no bearing here. The decree appealed from there was one for the payment .of money, against a husband, in a bill for divorce. The decree was one upon which an execution might issue. It was, in effect, an absolute money judgment, and was in no manner connected with, nor did it depend upon, the final decree which might afterwards be rendered in the cause.

The. decision of the Appellate Court dismissing the writ of error will be affirmed.

Decree affirmed.


author: Mr.. Chief Justice Mulket

text:
    Daniel H. Horne v. Sarah A. Walton.

      Filed at Ottawa May 15, 1886.

    1. Fraud and deceit—measure of damages. The true measure of damages in an action for fraud and deceit, by which the defendant induced the plaintiff to part with his money, is the amount of money obtained by the false and fraudulent representations, and interest thereon.
    2. Where a defendant induces the plaintiff to loan money on the note and mortgage of a third person, on his false and fraudulent representations of the solvency of the maker of the note and the title of the mortgagor to the mortgaged property, knowing the note and security to be worthless, he, the defendant, will be liable to the plaintiff for the amount of money thus obtained, with interest. In such case the measure of damages is- not the difference in value of the property included in the mortgage at the time of the representations, and its value if the representations had been true.
    Appeal from the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    Mr. L. D. Condee, for the appellant:
    Bouvier defines fraud to be “unlawfully, designedly and knowingly to appropriate the property of another without a criminal intent.” He defines deceit to be “fraudulent misrepresentation or contrivance, by which one man deceives another who has no means of detecting the fraud. ”
    False representations as to the condition, situation, title and value of real estate are not actionable, unless the purchaser has been fraudulently induced to forbear inquiry, and then the means used must be set out in the declaration. Brown v. Bledsor, 1 Idaho, (N. S.) 76; Crown v. Carrigar, 66 Ala. 590; Paisley v. Freeman, 2 Smith’s L. C. 142.
    An averment that defendant well knew his representations to be false, is not maintained by proof that they were false, and that he made them ignorantly. Lord v. Goddard, 13 How. 198.

      An averment that thé representations made by the defendant were well known by him to be untrue, is not supported by proof that the defendant had reasonable cause to believe that they were untrue. Pearson v. Howe, 1 Allen, (Mass.) 207.
    In an action for fraudulent representations which defendant is alleged to have known to be false, such knowledge is an essential ingredient, and must be proved; the statement must be untrue; the party making it must know that it is false, and the person seeking to recover must have relied on the statement as true, and have been induced to act upon the statement. Wheeler v. Randall, 48 Ill. 182; Hiner v. Richter 51 id. 299; Merwin v. Arbuckle, 81 id. 502.
    The rule of law is caveat emptor if the purchaser has equal means of information; and it is not contended but what the appellee had an equal opportunity with appellant to examine the records of real estate transfers in the recorder’s office of Cook county, and determine for himself as to the validity of the title to the lots described in the mortgage from Carpenter to Walton. Hill v. Bush, 19 Ark. 522.
    ' When a purchaser, with full means of knowledge "within his reach, fails to avail himself of such information, he can not recover. Post v. Williams, 6 Ind. 219; Veasy v. Dotin, 3 Allen, 3S0.
    The court erred in refusing to give defendant’s instruction as to the measure of damages. Sedgwick on Measure of Damages, 702; Drew v. Beall, 62 Ill. 168.
    Mr. Joseph Wright, for the appellee:
    An objection to evidence for variance comes too late in this court. City of Elgin v. Kimball, 90 Ill. 356; Thompson v. Hoagland, 65 id. 310; Driggers v. Bell, 94 id. 223; Schill v. Reisdorf, 88 id. 411.
    It was not necessary to a recovery that defendant should have profited by the transaction. Paisley v. Freeman, 2 Smith’s L. C. 142.

      The rule announced in Drew v. Beall, 62 Ill. 168, is good law in respect to the measure of damages in suits for deceit on a sale of land, or for deceit in relation to its quality or-condition; also when the plaintiff actually gets the title to. the land. But the rule there stated is not the law of this case, as, here, no title passed. '
    The proper measure of damages on the sale of land when, the owner has no title to convey, is the consideration paid,, with interest, and not the value of the land. 2 Sutherland, on Damages, 257; Frazer v„ Peoria County, 74-Ill. 282.
   Mr.. Chief Justice Mulket

delivered the opinion of the-Court:

Sarah A. Walton recovered a judgment in the circuit court, of Cook county, against Daniel H. Horne,, at its February term, 1885, in an action on the case for deceit, for the sum of" $1015, which, on appeal, was affirmed by the Appellate Court, for the First District. The matter to be considered and determined here is, whether the record before us discloses any error of law for which the Appellate Court should have re-, versed the judgment of the trial court.

The evidence tends to show that in the summer of 1877" appellee was residing with her husband near Riverdale, this. .State, both being in the employ of a Mr. Bowen, the husband as a laborer on his farm, and the wife as his housekeeper; that the defendant was an acquaintance of theirs, and knew that plaintiff had saved out of her earnings a small sum of" money; that'the defendant called at their house, and inquired of her where she kept her money; that on being informed she kept it “in the savings bank, ” he told her it was not safe to keep it there; that most of the banks were breaking, and he would advise her as a friend to take the money out of the. bank at once; that he knew where she could let it out on. better terms than she was getting at the bank, secured by-mortgage on certain lots, the title to which he assured her was perfectly good, with the exception of some back taxes due on them, and that the money he proposed to get of her was wanted to pay off the taxes in question; that the lots belonged to a Mr. Carpenter and one Gibbons, who were “worth $100,000, and just as good as the bank of England. ” The evidence also tends to show that the above representations were false, and made with the intent and for the purpose of deceiving and defrauding appellee, and that by means thereof the defendant finally induced the plaintiff to let him have $700 cash, receiving from him in exchange a note for that amount, purporting to be executed by Daniel H. Carpenter of Cincinnati, secured by a mortgage on the lots referred to by the defendant, which would have been ample security for the money if the title had been good. It is conceded, however, Carpenter had no title whatever to the lots, and the evidence tends to prove that the defendant well knew it at the time of making such representations.

As it most generally happens in cases of this character, there is a conflict in the testimony, but with this we are not concerned. Tlie only alleged error complained of in the argument of appellant worthy of noti.ce, is the court’s refusal to give to the jury the following instruction:

“The court instructs the jury that if they find the issues for the plaintiff, then the true measure of damages is the' difference in value between the value of the property alleged as having been offered and included in the mortgage given as security at the time the transaction was had, and what it would have been worth at that time had it been, as the jury believe from the evidence, said defendant represented it to said plaintiff, and said plaintiff believed it to be from said representations. The court further instructs the jury, that in the absence of any such testimony as to such valuation, and if the jury should find that no such evidence has been given herein, then you should find for the defendant. ”

This instruction seems to he based upon a total misapprehension of the true character of the action and the grounds upon which the plaintiff is entitled, if at all, to recover. The gravamen of the complaint, as we understand it, is the alleged fraud and deceit of the defendant, by means of which the plaintiff was "induced to part with her money. The actual loss she sustained was the amount of money she was induced to part with by means of the-false and fraudulent representations made to her. by the defendant.

What is here said is equally applicable to appellant’s suggestions in respect to the measure of damages.

The present case is in all it essential features like the case of Horne v. Walton, ante, 130, wherein we reached the same conclusion we have in this case.

Perceiving no error in the record, the judgment will be affirmed.

Judgment affirmed.


text:
    Elezar Devine v. Elizabeth M. Harkness et al.

      Filed at Ottawa May 15, 1886.

      1. Judicial sale—preventing competition. An agreement made by the purchaser of land at a guardian’s sale, whereby he prevents another person from bidding at the sale who otherwise would have bid a greater sum for the property, affords sufficient ground for a court of equity to set the sale aside.
    2. Subrogation—in favor of fraudulent purchaser. Where a purchaser of land at guardian’s sale is guilty of fraud in making a corrupt agreemeñt, whereby he prevented competition and obtained the land at less than its value, and as a part of the price paid off a mortgage on the premises, in which interest was reserved at the rate of ten per cent, there will be no error in allowing him only six per cent interest on the money paid by him. His payment being one made in wrong, in the carrying out of a wrongful purchase, presents no case for the application of the equitable doctrine of subrogation.

      Appeal from the Circuit Court of DeKalb county; the Hon. Charles Kelluh, Judge, presiding.
    Mr. E. N. Botsford, and Mr. A. B. Coon, for the appellant:
    While we recognize the general rulé that a purchaser at a public sale will not be allowed to profit by his own misconduct, yet there is another rule, equally well sustained, that it is the policy of the law to uphold judicial sales; and a court of equity will not permit a judicial sale to be set aside without clear and satisfactory proof that some wrong will be done or some injury suffered by allowing the sale to stand. Wilson v. Kellogg, 77 Ill. 47; Williams v. Rhodes, 81 id. 571; Conover v. Musgrove, 68 id. 58; Milford v. Stalzenbach, 46 id. 303.
    It was error to state the account on the basis of six percent interest on the mortgage debt paid by appellant. That was drawing ten per cent, and appellant purchased the farm subject to the mortgage. By paying the mortgage debt he was entitled to be subrogated to the rights of the mortgagee. Harper v. Ely, 70 Ill. 581; Simpson v. Gardner, 97 id. 237.
    The account as stated by the master does appellant injustice, in that it charges him the maximum price fixed by any reliable witness for the rent of the property, and credits him with the minimum figures placed by witnesses on the improvements put on the premises, and with only six per cent on the mortgage indebtedness paid by him.
    Messrs. Hopkins & Aldrich, and Mr. G. W. Dunton, for the appellees:
    Any agreement made to prevent competition at judicial sale is fraudulent, and when competition is thereby prevented the mode is immaterial, and the sale will be set aside against the guilty party. 1 Story’s Eq. Jur. sec. 293; Freeman on Executions, sec. 297,- Freeman’s Void Judicial Sales, sec. 38.
    Such an agreement should vitiate the sale. It is" designed and calculated to stifle competition. It is a fraud upon the law and against public policy, and will avoid the sale even-at law, so that a deed issued in consequence of it will convey no title. Lloyd v. Malone, 23 Ill. 48; Longwith v. Butler, 3 Gilm. 42; Garrett v. Moss, 20 Ill. 552; Doolin v. Ward, 6 Johns. 194; Wilber v. Howe, 8 id. 444; Wicker v. Hoppock, 6 Wall. 94; Cox v. Izard, 7 id. 560.
    Devine became primarily liable for' the mortgage debt as a part of the purchase money, and therefore the doctrine of subrogation does not apply. He was only paying his own debt. 1 Jones on Mortgages, sec. 876.
    No case can be found where a person becomes entitled to subrogation by reason of his own fraud. Bump on Fraud. Con. 595.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a bill in chancery, filed by the appellees, the widow and minor children and heirs of John B. Harkness, deceased, to set aside a guardian’s sale of the real estate belonging to said children. The court below decreed in favor of the complainants, and the defendant appealed.

It appears that John B. Harkness died March 18, 1878, intestate, seized of the premises in question, an improved farm of two hundred and ten acres, in Dellalb county. The widow was appointed guardian of the children, and was also administratrix of the estate of her husband. During the fall of 1879, Mrs. Harkness was endeavoring to get a purchaser for the farm, and met the appellant, Devine, when an arrangement was made that the farm should be sold at public auction as soon as an order of court could be obtained for the purpose; that Devine would bid at the sale $35 per acre for the land, and in the meantime should go into possession of the premises. In pursuance of this arrangement, Devine, in October, 1879, took possession, and did' from eighty to one hundred acres of fall plowing, with the understanding that if he did not secure the land, he was to be paid for the plowing at the rate of one dollar- per acre. On February 2,1880, the guardian filed, in the county court of DeKalb county, her petition for the sale of the land. It was subject to a mortgage for $5000, bearing ten per cent interest, and to a judgment for $262.40. On February 12, 1880, the county court granted an order of sale, authorizing the sale at not less than $35 per acre, and out' of the proceeds providing for paying off said mortgage and judgment, and the dower right of the widow. The guardian’s sale was had under the order March 10,1880. Devine bid at the sale $35 per acre, and fifty-four cents per acre-in addition for interest from January 1, 1880, and the land was sold to him for that price. The widow made to him a quitclaim deed of her interest, and he received a guardian’s deed, and paid off the mortgage and judgment. This bill to set aside the sale was filed April 20, 1880.

The ground alleged for setting aside the sale is, that one Yarty was present at the sale, intending to bid for the land, and Devine made an agreement with Yarty, to the effect that if the latter would refrain from bidding, he (Devine) would get the. land at the bid he had agreed to make, and would then convey the same to Yarty for $31.50 per acre, and. that in pursuance of said arrangement Yarty refrained from bidding, when, but for the arrangement, he would have bid as high as $40 per acre in order to get the land.

No question is made upon the legal effect of such an agreement as affording sufficient ground for setting aside the sale, but it is denied that there was such an agrément made, and it is insisted the decree is not sustained by the evidence. There is a direct conflict in the testimony of Yarty and Devine upon the subject. Yarty testifies that some time before the sale,—about two months,—he had a conversation with Devine; that he told Devine he would like to buy the place; that Devine Said he had paid out considerable money looking up the title, and if he, Yarty,. or any one else, bought the place at the sale, he would lose what he had paid out, but said he did not need the place, but that Mrs. Harkness wanted him to make a bid on it, and that if Varty would let him have it he would let Varty have the place by paying what trouble and expense he had been to; that he (Varty) was present at the sale; that he came to bid on the place if he could not make the arrangement with Devine, previously talked of. He says: “On the day of the sale I saw Devine, and asked him if he got the place on his bid. of $35 per acre, what he would let me have the place for; he asked what I would give; I told him $37.50 per acre, and he said I should have it for that. I also told him if I could not make arrangements with him as to what I was to have it for, I should bid at the sale. This was prior to fixing • the price at which I was to have the place. * * * I intended to bid at the sale, and had made up my mind to bid as high as $40 per acre.”- All this is contradicted by Devine, as respects the transaction with him. There was some corroborative evidence as to Varty, which we n£ed not ¡particularly advert to. There appears a preponderance of evidence in favor of the alleged agreement, and we can not say that the decree, in the respect of setting aside the sale, is not sustained by the evidence.

Exceptions are taken to the account as stated by the master. It is claimed there was error in allowing appellant only six per cent interest on the amount of the mortgage indebtedness he paid off, the mortgage debt bearing ten per cent interest; that having paid the mortgage on the land bearing ten per cent interest, he should be subrogated to the rights of the holder of the mortgage; that the setting aside of the sale leaves appellant in the position of a purchaser of the mortgage debt and security. Paying the mortgage debt to the mortgagee was no more than paying the amount of it to the guardian, and was but paying appellant’s bid for the land.. The payment was one made in wrong, in the carrying out of a wrongful purchase, and presents no case for the application of the equitable doctrine of subrogation.

The master allowed against the appellant $3.25 per acre as the yearly rental value of the land for six years. In this we think there was error. Upon the evidence appearing in this record, we are of opinion that at the utmost $3 per acre should have been the extent of the allowance for rent.

For this error the decree will be reversed, in respect of the amount adjudged to be paid to the appellant, hut in all other respects affirmed, and the cause will be remanded for further . proceedings not inconsistent with this opinion.

Decree reversed in fart and in fart affirmed.


author: Mr. Justice Scott

text:
    Gustav Baxtrom v. The Chicago and Northwestern Railway Company.
    Filed at Ottawa May 15, 1886.

      Appeal—as to amount involved—in cases sounding in damages—judgment for defendant. Where a judgment for the defendant, in an action on the case to recover damages for a personal injtn-y claimed to have been caused by the negligence of the defendant’s servants, is affirmed by the Appellate Court, the judgment being for “less than $1000, exclusive of costs,” no appeal or writ of error lies to review the judgment of the Appellate Court, unless a majority of the judges of that court shall certify the case under the statute.
    Writ of Error to the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Bollin S. Williamson, Judge, presiding.
    Mr. H. 0. McDaid, for the plaintiff in error.
    Mr. B. G. Cook, for the defendant in error.
   Mr. Justice Scott

delivered the opinion of the Court:

• This action was brought by Gustav Baxtrom, in the Superior Court of Cook county, against the Chicago and Northwestern Bailway Company, and was to recover for personal injuries to plaintiff, alleged to have been caused by the negligent conduct of defendant in the management of one of its engines by the servants in charge. On the trial the coui't instructed the jury, as a matter of law, “there was not sufficient evidence to warrant a verdict for plaintiff, ” and directed the jury to find “defendant not guilty, ” which they did. The judgment rendered on the verdict for defendant, and against plaintiff, was afterwards affirmed in the Appellate Court for the First District, and plaintiff brings the case to this court on error.

It is obvious no writ of error will lie from this court to the Appellate Court in this case. The action is one sounding in damages, and the statute, (section 25 of the Appellate Court act,) provides that “in all cases sounding in damages, wherein the judgment of the court below is less than one thousand dollars ($1000) exclusive of costs, and the judgment is affirmed or otherwise finally disposed of in the Appellate Court, the judgment * * * of the Appellate Court shall be final, and no appeal shall lie or writ of error be prosecuted therefrom,” unless where, in'such cases, a majority of the judges of the Appellate Court shall be of opinion, and so certify, the case decided by them “involves questions of law of such importance, either on account of principal or collateral interests, as that it should be passed upon by the Supreme Court.”

The judgment in this case is less than $1000, exclusive of costs, and as no majority of the judges of the Appellate Court have made any certificate that would give this court jurisdiction, under the statute, to hear and determine the cause, the writ of error must be dismissed, which is done.

Writ dismissed.


author: Mr. Justice Magbudeb

text:
    Almerin H. Winslow v. The People, for use of Ida G. Walrath.

      Filed at Ottawa May 15, 1886.

      ' 1. Guardian and ward—in case of several wards, and only one bond ■—several liability to the wards. Where one is appointed guardian for three wards and gives but one bond, he will be the separate guardian of each ward, and the death of one will not relieve the guardian from responsibility as guardian of the survivors; and an action may be maintained on his bond, in the name of the People, for the use of the surviving wards.
    2. Same—grounds of liability on guardian’s bond—whether a devastavit must first be established. An action lies upon a guardian’s bond, given prior to the act of 1874, without first establishing a devastavit. A declaration on,such a bond contained two breaches: First, that on April 17, 1877, the county court ordered the guardian to render a full account of his guardianship, and that he failed to do so; and second, that one of the wards was, on July 16, 1877, (the day she became of age,) entitled to receive a certain sum from the guardian, and that he converted such sum to his own use, and failed to pay it over to her: Held, sufficient, if proved, to authorize a judgment against the surety on the bond.
    3. It is no defence to an action on a.guardian’s bond to allege and show that “no adjustment was ever had of the accounts of the guardian by the probate court. ” It is not necessary that the liability of the principal be first established by obtaining judgment against him alone, before the surety can be held liable. Section 13, chapter 103, of the Eevised Statutes of 1874, dispensing with the necessity of establishing a devastavit, applies in the case of a suit upon a guardian’s bond executed before it took effect.
    4. Same—loaning money of the ward without approval of the court. A loan of money of the ward, by the guardian, upon real estate security without the approval of the county court, is made at the peril of the guardian, and if a loss occurs, the guardian can not exonerate himself by showing that he acted in good faith, or that the security was good when taken.
    5. Same—ratification by the. ward. The fact that a ward, after reaching her majority, lived with her father, in his house, upon property mortgaged by him to secure a loan from her guardian, is not sufficient^ to show that she ratified or approved of the act of the guardian in making such loan to her father.
    6. Same—interest—when recoverable in action on guardian’s bond. In an action on a guardian’s bond, the evidence showed that prior to the institution of the suit the guardian made a report to the county court, showing a certain sum in his hands on January 1, 1877, belonging to his ward, which he never paid; that he failed to make a full accounting when ordered to do so by the county 'court, and that he loaned Ms ward’s money on real estate securities without the approval of the county court: Held, that for these violations of duty he was clearly chargeable with -interest. It was not necessary to show a demand for the money before interest could be charged.
    7. Statute—affecting the remedy—retrospective operation. Where an act merely changes the remedy or the rule of procedure, all rights of action will be enforcible under the now procedure, without regard to whether they accrued before or after such change in the law.
    8. A statute providing that it shall not be necessary to a recovery upon an official bond, that a devastavit shall have been previously established against the principal, is one which has reference only to the mode of procedure. ■
    9. Bemittitur—to obviate error in excessive damages. If the plaintiff takes judgment for more damages than are alleged in the declaration, he may cure the error by a remittitur of.the excess, in the court of review.
    10. Error will not always reverse—receiving evidence not necessary. The fact that a court trying a cause without a jury may have received in evidence papers and proceedings more than were necessary or material to be shown, affords no ground for reversal:
    Appeal from the Appellate Court for the First District;— heard in that court on writ of error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. George W. Smith, and Mr. John M. Gartside, for the appellant:
    ■ The bond in this case was given for the performance of the duty of Bowen as guardian of three minors, or of their estate. One of these minors died in 1871, and thereby the appointment ceased. Although he continued thereafter to act as guardian of Ida and Daniel, separately, the condition of the bond did not cover his conduct in that capacity. Scheel v. Eidman, 68 Ill. 193.
    At the time the bond was given, in 1867, it was required that before a suit could be brought on the bond, a devastavit must be established. The statute allowing a suit against a guardian without the establishment of a devastavit, was not passed till 1874.

      In Mclntrye v. People, 103 Ill. 142, the point does not seem to have been raised. The jurisdiction is equitable, and a surety should not be driven to a court of equity. Branclon v. Brandon, 106 Ill. 519.
    Interest was not chargeable against the sureties. Proof of a demand and refusal is necessary to a recovery. Price v. Farrar, 5 Bradw. 536.
    The remittitiir cured the error in taking judgment for too much, but costs should have been allowed.
    The $3000 loaned to Hamilton W. Walrath upon the homestead, was an investment. Even if the loan was not originally authorized, she has approved of the investment since.
    The reproduced orders and accounts were not evidence against Winslow.
    Mr. John H. Hamline-, for the appellee:
    As a matter of law Winslow is bound by the approval of Bowen’s account by the court. Ream v. Lynch, 7 Bradw. 168.
    The remittitur filed in the Appellate Court cured the error in taking judgment in excess of the ad damnum.

    Bowen was the guardian of each of the three wards,—not their guardian jointly. The statute makes the bond several as to each ward. Rev. Stat. 1845, chap. 47, sec. 5, p. 266, and see. 15.
    The point that a devastavit should first be established before suit could be brought on the bond, is disposed- of by McIntyre v. People, 103 Ill. 142; Benham v. People, 102 id. 434; Rev. Stat. 1874, chap. 103, sec. 13.
    Under an act which simply changes the remedy or the law of procedure, all rights of action will be enforeible under the new procedure, without regard to whether they accrue before or after such changes in the law. Dobbins v. First National Bank, 112 Ill. 562.
    Bowen charged himself with interest received every year. As his investments .were made without the approval of the court, and in violation of the statute, he thereby became liable for compound interest. Hughes v. People, 111 Ill. 461.
    Not having discharged his duties faithfully, he was entitled to no compensation. Bond v. Lockwood, 33 Ill. 216.
    Proof of demand of payment and refusal was not necessary. The bringing of the suit was a demand. Byrne v. Insurance Co. 56 Ill. 326.
    Bowen’s loan to Walrath was made long before Ida became of age, and not having the approval of the court, is void. (McIntyre v. People, 103 Ill. 142; Hughes v. People, Ill id. 461.) There'is no proof of a ratification of this loan.
   Mr. Justice Magbudeb

delivered the opinion of the Court:

This is an action of debt, brought by the People of the State of Illinois for the use of Ida G. Walrath, against Chauncey T. Bowen, George S. Bowen and Almerin H. Winslow, upon a guardian’s bond, dated December 10, 1867, and executed by Chauncey T. Bowen, as guardian of Ida G. Walrath, May N. Walrath and Daniel E. Walrath, and by George S. Bowen and Almerin H. Winslow, as sureties thereon. The bond was approved by the county court of Cook county on the day of its date. George S. Bowen filed a plea of discharge in bankruptcy, the issue upon which was found in his favor. Wins-low pleaded non est factum and nil debet. Trial was had without a jury, before one of the judges of the Superior Court of Cook county. The issues were found for the plaintiff below, and the debt assessed at $20,000, the penalty of the bond, and the damages at $3794.39,—upon which finding judgment was entered. The case was taken to the Appellate Court for the First District by writ of error, issued therefrom, and the judgment of the Superior Court was there affirmed. The case is brought to this court by appeal from said Appellate Court.

The first point, made by appellant, is, that Chauncey T. Bowen was appointed guardian of three minors and gave .bond for the performance of his duties, as such guardian; that one of his wards, May N. Walrath, died on November 17, 1871, and thereby his appointment, as guardian of the three, ceased; that, although he continued .thereafter to act, as guardian of Ida and Daniel, the two survivors, separately, the condition of the bond did not cover his conduct in the latter capacity. This position is wholly untenable. The obligee in the bond is “the People of the State of Illinois, for the use of Ida Gazelle Walrath, May N. Walrath and Daniel Eddy Walrath, minors.” The condition of the bond is as follows: “If the above bounden Chauncey. T. Bowen, who has been appointed guardian of Ida Gazelle Walrath, May N. Walrath and Daniel Eddy Walrath, shall faithfully discharge the office and trust of such guardian according to law, and shall render a fair and just account of his said guardianship to the county court of Cook county from time to time, as he shall be thereto required by said court, and to comply with all the orders of said county court, lawfully made, relative to the goods, chattels and moneys of such-minors, and render and .pay to such minors all moneys, goods and chattels, titles, papers and effects, which may come to the hands or possession of said guardian, belonging to such minors, wdien such minors shall be thereto entitled, or to any subsequent guardian, should such court so direct, then this obligation shall be void,” etc. To hold,that suit could only be brought upon such a bond in the name of the People, for the use of the three minors, and not for the use of either or any one of them, who may have -been wronged, would be to hold, that a guardian could squander the estate of one ward, without imposing any liability upon his sureties, provided he kept the estates of the others intact.

Chapter 47 of the Revised Statutes of 1845, entitled “Guardian and Ward, ” provided (section 15), that, “in all cases of any person being appointed guardian for more than one ward at one time, the judge of probate shall include all in one bond, ” and, also, provided, (section 5) that such “bond shall be taken to the People, etc., for the use of the minor, but may be put in suit from time to time, in the name and to the use and benefit of any person entitled, by a breach thereof, until the whole penalty shall be recovered thereon. ” The law of 1845 was in force, when the bond, sued on in this case, was executed. The act of 1872 upon the same subject, in force when this suit was brought, provides, that “when any person shall at the same time be • appointed guardian for several minors, the court may, if the estate shall be so situated, as to make it more convenient or advantageous to the interest of the ward, include all in • one bond, ” (section 10,) and, also, that “bonds may be put in suit, in the name of the People, etc., to the use of any person, entitled to recover on a breach thereof. ” (Section 11.)

The language of these statutes clearly authorizes a suit for the use of one ward, who may be entitled to recover, although the bond may be» that of the guardian of several wards. He is not merely the joint guardian of all, but the separate guardian of each. The death of one ward does not relieve him of responsibility, as the guardian of each of the survivors.

It is next objected, that, before suit could be brought on this bond, a devastavit should have been established. We do not think that this was required. The first breach, assigned in the declaration, is, that on April 17,1877, the county court ordered the guardian to render a full account of his guardianship, and that he did not do so. The second breach is, that the said Ida was entitled to receive a certain sum .from her guardian on July 16, 1877, when she became of age, and that he converted such sum to his own use and failed to pay it over to her. If' these breaches were established by the evidence, upon which question the judgment of the Appellate Court is final, a recovery against the surety was authorized.

We have held, that it is no defence to such a declaration to say, that “no adjustment was ever had of the accounts of the guardian by the probate court.” It is not necessary, that the liability of the principal be first established by obtaining judgment against him alone, before the surety can be held liable. Section 13 of chapter 103 of the Revised Statutes of 1874 upon the subject of “Official Bonds,” provides, that, in suits upon the 'bonds of guardians, “it shall not be necessary to a recovery, that a devastavit shall have previously been established against the principal.” (Bonham v. The People, 102 Ill. 434; McIntyre v. The People, 103 id. 142.) In both of these cases, the bonds sued upon, were executed before the passage of the act of 1874, here referred to.

It is said, that inasmuch as Bowen’s bond, as guardian, was made in 1867, this suit upon it can not be governed by the provisions of the act of 1874, which went into effect long after the execution of the bond. But the requirement, that a devastavit need not be previously established in cases of this kind, is one, which has reference only to the rule of procedure and the mode of proof. Appellee had no vested right to have this case tried under the laws, affecting practice and evidence, which were in force in 1867. Where an act merely changes the remedy or the law of procedure, “all rights of action will be enforcible under the new procedure, without regard to whether they accrued before or after such change in the law.” (Dobbins et al. v. First National Bank, 112 Ill. 553.) Therefore, the provision of the" act of 1874, contained in section 13,- and above quoted, was applicable in the case at bar.

The next point, made by appellant, is that the guardian should not have been charged with interest. The evidence tends to show, that Bowen made a report to the county court, in which he admitted, that he had in his hands on January 1, 1877, $2584.05, belonging to Ida G. Walrath, which he has never paid; that, on April 17, 1877, he was ordered by the county court to present a full account of his loans, investments, receipts and expenditures in ten days, which he never did; that he invested his ward’s money in real estate securities without the approval of the county court. For these violations of duty, he ivas clearly chargeable with interest. (Hughes v. The People, 111 Ill. 457.) It was not necessary to show, that demand was made upon him for the money. Byrne v. Ǽtna Ins. Co. 56 Ill. 326.

It is again objected, that an investment by the guardian of $3000, in a note, secured by a mortgage upon property in Evanston, .has been approved by Ida G. Walrath, since she became of age, and that she is, therefore, estopped from refusing a credit for that amount to her guardian. On July 1, 1873, Bowen loaned $3000 of money, belonging to the two wards then surviving, Ida and Daniel, to Hamilton M. Walrath, their father, and took from him his note for that amount, payable in one year, and a mortgage, securing the same, upon his homestead lot in Evanston. The "whereabouts of this note are unknown. It has never been paid nor presented for payment. Ida Walrath has never received any of the money, represented by it. The investment in it was never approved by the county court. “A loan upon real estate security, without such approval, is made at the peril of the guardian, and, * * * in such case, if a loss occurs, the guardian can not exonerate himself by showing he acted in good faith, or that the security was good, when taken.” (Hughes v. The People, supra.) The only ground for claiming, that Ida Walrath approved of this loan, is the fact, that, after she reached her majority, she lived with her father in his home upon this property. Such fact does not amount to the ratification, contended for. Neither the loan to Hamilton Walrath, nor any of the facts, connected with it, constitute a defence to this action.

The bond of the guardian and all the papers, connected with his appointment and with .his accountings in the county court, were destroyed in the great fire of October 9, 1871. After the fire, however, the files wrere restored, and copies of the original papers and proceedings were refiled and approved by the court. The restored copy of the bond was acknowledged under oath to be correct, by both the sureties thereon. The fact, that, besides the bond, a few more of the restored papers in the guardianship proceedings, .than were necessary or material, may have been received in evidence by the court, trying the case without a jury, affords no ground for reversal. Lake Erie and Western Railway Co. v. Zoffinger, 107 Ill. 199. The judgment in the trial court was for $3794.39, while the ad damnum in the declaration was only $3000. This was, however, cured by the remittitur, which appellee filed in the Appellate Court, remitting all of the judgment in excess of $3000. (Pixley v. Boynton, 79 Ill. 351.) The evidence tends to"show; that at least $3000.was due from the guardian for-principal and interest, after giving him all the credits, to which he was rightfully entitled.

We find no error in the record. The judgment of the Appellate Court is affirmed.

Judgment -affirmed.-