text:
    John L. Noble v. The Illinois Central Railroad Company.

      Filed at Springfield September 27, 1884.

    1. Reservation in deed — as to right of way — whether title passes as to part excepted. A conveyance of land by a railway company, with this reservation, “excepting a strip of land running through the whole length of said premises, two hundred feet wide, used as a right of way, containing twelve acres,” is held not to pass any title or other interest in the portion excepted for a right of way.
    2. Same — reservation of right to take and remove,gravel for railroad ballasting — extent and character• of the right. A railway company purchased a tract of land for the purpose of obtaining a right of way over the same, and the right of taking gravel therefrom for ballasting its road, and having no other use for the land, conveyed it to one owning adjoining land, reserving forever all the gravel on and in the same, and also the right to dig for gravel on any part of said land, with a view of opening one or more gravel pits, and to remove the deposit from the same, and to build one or more railroad tracks to any gravel pit or pits, etc.: Held, that the reservation should be so construed as to give a practical right, and that the grantor had no right to remove sand alone, or take from sand banks proper, but might take gravel from the gravel pits, notwithstanding there was a mixture of sand in it.
    3. Such a reservation is broad enough to include the right to remove all gravel deposits from the land, or deposits of which the greater part is gravel, or such as are known as “gravel” according to the common acceptation of that word, or such as is usually employed by railroad companies for ballasting. Under it, the company, before removing gravel, is not bound to sift the sand from it, or separate small veins and pockets of sand found in gravel pits, from the same.
    4. Same — acquiescence in the taking of sand as well as gravel — license implied. Under a reservation in a deed of a right to enter the granted premises and take and remove therefrom all gravel found thereon, if the owner of the land is present when pits are being opened and gravel removed, and assists in the work himself, and with his teams and hands, and makes no objection that sand in the same is also taken, his acquiescence in the rightfulness of the acts being done, is, by implication, a license, sufficient to prevent him from recovering damages therefor.

      Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.
    . This was an action on the case, in the McLean circuit court, brought by the appellant, against the appellee, to recover the value of a quantity of sand of the plaintiff taken and converted by the defendant to its use, and also to recover for damages done by the defendant to lands described in the declaration, in which lands the plaintiff had an estate in vested remainder. The defendant pleaded the general issue, the license of plaintiff for. doing the acts complained of, and several other special pleas, upon which issues were joined.
    The land in question was on September 19, 1866, conveyed by the Illinois Central Bailroad Company to Harrison Noble, since deceased, (the ancestor of the plaintiff,) by warranty deed, which contained the following reservations, namely: “Excepting a strip of land running through the whole length of said premises, two hundred feet wide, used as a right of way, containing twelve acres; and reserving also, forever, to the said Illinois Central Bailroad Company, all the gravel on and in said tract of land and premises, and reserving also the right to dig for gravel on any part of said lands herein before described, with a view of opening gravel pits, one or more; and reserving also to said company all the gravel on said premises, and the right to remove the same; also, the right of way, forever, over said lands and premises,- upon which to build one or more railroad tracks to any gravel pit or pits on said premises, and to and from any gravel which may hereafter be discovered thereon, and the right to construct, maintain and operate said railroad tracks with engines and cars thereon, to said gravel pits, for the purpose of removing gravel from said pits, or any of them, over and from said land and premises.” Harrison Noble died seized of the land, by his will giving to his widow a life estate therein, and the remainder to his son, the plaintiff.
    That part of" the premises to which this suit relates is underlaid with sand and gravel. In places the sand and gravel are intermixed in the proportion of one-third sand to two-thirds gravel. In other ■ places the sand lies in strata, and the gravel likewise in strata, the gravel in places being between strata of sand. The strata of sand extend nearly east and west, and are from four inches to two and a half feet in thickness, and in width from ten to fifty feet. In some places there are large quantities of sand in pockets, or beds, of various dimensions.
    The court, at the request of the plaintiff, instructed the jury as follows:
    “1. The court instructs the jury, that if they believe, from the evidence, that the defendant conveyed the premises in question to Harrison Noble, reserving the gravel therein, and the right to remove the same, and that Harrison Noble after-wards, by will, gave a life estate in the premises to Mrs. Jane Noble, and the remainder therein to the plaintiff, and that said Harrison Noble is now deceased, then the plaintiff has the right to recover the value of all the sand which may have been shown by the evidence to have been wrongfully removed from said premises by the defendant.
    “2. And the court instructs the jury, that if the evidence shows that the defendant did remove any considerable quantity of sand from said premises which could have been separated from the gravel by ordinary methods, then, as to such sand, the jury should find for the plaintiff to the extent of its value.
    “3. And the court further instructs the jury, that the duty of the defendant to separate the sand from the gravel before removing the gravel from the premises, does not depend upon the question of there being a market for all the sand that could be separated from the gravel, but that the fact of ownership of the sand by the plaintiff, if shown by the evidence, gave him the legal right to have the sand left upon the premises, so far as it may have been shown by the evidence to have been practicable to separate and remove the gravel without removing the sand with the gravel.
    “4. The court instructs the jury, for the plaintiff, that if they believe, from the evidence, that the defendant took from the plaintiff’s property, sand, which could have been easily and practically, by the exercise of ordinary care and prudence, separated from the gravel, then, in such ease, the defendant had no right to take such sand, and in such case the plaintiff is entitled to recover for the sand so taken, what the same was worth on the market at the pit.
    “5. The court instructs the jury, in behalf of the plaintiff, that if they believe, from the evidence, that the plaintiff assisted in plowing up the gravel, and that in rendering such assistance he did no more4han the defendant had a right to do under the terms of the deed from the defendant to plaintiff’s father, — that is, to remove the gravel, — then, in such case, the plaintiff is not prevented from recovering damages on that account,”
    The plaintiff asked the following instructions, which the court refused:
    “6. The court instructs the jury, that under the deed offered in evidence in this case, the defendant reserved no right to remove any sand from the premises when the sand existed separate and apart from the gravel; and if the evidence shows that any such sand was removed by the defendant from the premises, and converted to its own use, without the license of the plaintiff, the jury should, in such case, find for the plaintiff to the extent of the value of such sand.
    “7, If the jury believe, from the evidence, that the defendant hired the plaintiff to work for it in and about plowing up the gravel and sand in question, that it did not ask his opinion as to its rights or his consent to its acts, and that it was entirely uninfluenced by the fact that he hired to it to do the work aforesaid, then no license to remove the sand can be implied from such hiring and work, and so far as this is concerned, in su'ch case such conduct constitutes no obstacle to a recovery in this case by the plaintiff.
    “8. Upon the question of the practicability of separating the sand from the gravel, the court instructs the jury that if the sand and gravel could be separated without resorting to extraordinary and expensive methods, then it was practicable to separate the sand from the gravel; and in such case it was the duty of the defendant to separate the sand from the gravel, and leave the sand upon the premises.
    “9. The court instructs the jury, that under the deed offered in evidence in this case, the defendant reserved no property right or title in or to the sand intermixed with the gravel in the premises in question, and that the only right it has in respect to such sand arises from necessity, when in fact it is impracticable to remove the gravel without removing it with the sand, and that such right is limited by the necessity which gives rise to it; and if the jury believe, from the evidence, that it was practicable to separate the sand from the gravel before removing the gravel from the premises, then the defendant was bound to so separate it; and if the jury believe, from the evidence, that the defendant removed any sand from said premises without separating it from the gravel, and converted the sand to its own use, and if the jury believe, from the evidence, that it was practicable to have separated such sand from the gravel before removing the same from the premises, then the jury should find for the plaintiff to the extent of the value of such sand so removed.”
    And the court, at the instance of the defendant, instructed the jury as follows;

      “1. The court instructs the jury, for the defendant, that under the deed given in evidence by the plaintiff, from the Illinois Central Eailroad Company to Dr. Harrison Noble, under whom the plaintiff claims, the defendant had the right to remove from said land all the gravel thereon suitable for railroad purposes, provided the same was done ima reasonably careful and prudent manner; and in removing said gravel, if sand or other things were so mixed or intermingled with the said gravel that it could not practically be separated therefrom, then defendant, in removing said gravel, had a right to take with it all such sand or other substances as could not be practically separated from the gravel; and if you believe, from the evidence, that the defendant removed said gravel in a reasonably prudent manner, and did not remove from said land any sand that could have been practically separated from said gravel, you will find for the defendant.
    “2. The law presumes that the Illinois Central Eailroad Company, by the reservation in the deed given in evidence by the plaintiff in this case, intended to reserve a valuable right, and all reasonable intendments must be given to this reservation to render such right valuable; and even if the jury believe, from the evidence, that there were some pockets, or veins, or strata, of sand in the pit -in controversy, which were removed by the defendant, yet if you further believe, from the evidence, that to separate this from the gravel in the pit would have been so expensive and difficult, as to render the said reservation valueless as to all such sand, you will find the defendant not guilty.
    “3. If you believe, from the evidence, that the railroad company did employ the usual and ordinary means of excavating its gravel and loading it upon its cars, and that it was impracticable and unreasonably expensive for it, in so doing, to save and separate the sand, or any part thereof, from the gravel, you will find the defendant not guilty.

      “4. If the jury believe, from the evidence, that the plaintiff, knowingly, either by himself or servants, assisted in removing and carrying away the sand which he seeks in this suit to recover for, then he can not recover.
    “5. The railroad company had the right to run in trains and load the gravel upon cars, and was not bound to use wagons or wheelbarrows; and if the sand in controversy could only have been practically saved and separated by the defendant’s removing the gravel by wagons, or other vehicles than trains of cars, then the defendant was not bound to separate and save the sand.”
    The plaintiff excepted to the refusal of the court to give the instructions asked by him, from No. 6 to 9, inclusive, and to the giving of each of the instructions for the defendant.
    The jury returned a verdict of not guilty, and the plaintiff moved the court to grant a new trial, which motion the court overruled, and entered judgment for the defendant upon the verdict, to which ruling the plaintiff excepted, and prayed an appeal to the Appellate Court, which was granted and perfected. The Appellate Court affirmed the judgment of the circuit court, and the plaintiff, by his further appeal, brings the ease to this court.
    Mr. John E. Pollock, and Mr. Aabon Gr. Ears, for the appellant: ■
    It is a rule of construction that where there is a doubt as to the construction of a deed, it shall be taken most favorably to the grantee. City of Alton v. Illinois Trans. Co. 12 Ill. 58; Sharp v. Thompson, 100 id. 450; 3 Washburn on Real Prop. (4th ed.) 397, 398.
    The same rule applies to exceptions in deeds. If there is a doubt as to its construction, it shall be taken most favorably to the grantee. Duryea v. Mayor, 62 N. Y. 592.

      An exception must not be repugnant to the grant. If it is, it is void. 3 Washburn on Real Prop. (4th ed.) 434; Cutler v. Tufts, 3 Pick. 272; Schoenberger v. Lyon, 7 W. & S. 194.
    An exception must be of something that can be severed from what is granted. 3 Washburn on Real Prop. (4th ed.) 434; Borst v. Empie, 1 Seld. 38; Maynard v. Maynard, 4 Edw. Ch. 714; New Jersey Zinc Co. v. Boston Franklinite Co. 2 McCart. Ch. 461.
    The deed from the Illinois Central Eailroad Company to Harrison Noble passed everything in the lands to him except the gravel, and if this can not be separated, it is also passed by the deed. It was the duty of the defendant to separate the sand from the gravel, or let it alone, and not remove it at all. Brown v. Brown, 8 Metc. 573; New Jersey Zinc Co. v. Boston Franklinite Co. 2 McCart. Ch. 461.
    In order to create an estoppel, the party estopped must have induced the other party to occupy a position which he would not have occupied but for such acts and declarations. The conduct must be such as would ordinarily lead to the results complained of. A party can not rely upon an estoppel from acts and representations, upon which he was not induced to act otherwise than he would; and the acts must influence the conduct of another. Ball v. Hooten, 85 Ill. 161; Heffner v. Vandolah, 57 id. 524; St. Joseph Manf. Co. v. Daggett, 84 id. 557; Straus v. Minzesheimer, 78 id. 493.
    There is no rule of law that requires a property owner, in order to save his rights, to enter into an argument with a willful trespasser, or to forbid him to commit the trespass. He is under no obligation of any kind to utter a word of remonstrance or objection, but may rely upon the law of the land for his redress. His mere silence in the presence of the trespass waives nothing and consents to nothing. Lesber v. Railway Co. 29 Minn. 260.

      Messrs. Williams, Burr & Capen, for the appellee:
    Like every other contract, if the intention of the parties to a deed in using certain language in it can be ascertained, such intention must be carried out; and if that intention can be ascertained as well from the attendant circumstances, the situation of the parties, and the state of the thing granted, as from the language employed in the deed, effect must be given to it. Batavia Wagon Co. v. Newton Wagon Co. 91 Ill. 239; Hadden v. Shoutz, 15 id. 581; Wilcoxen v. McGhee, 12 id. 381; Hoole v. Blakey, 53 id. 502; City of Peoria v. Darst, 101 id. 609; Whitaker v. Brown, 46 Pa. St. 197; Howard v. Lincoln, 13 Maine, 122; United States v. Appleton, 1 Sum. 492; Wiler v. Siddons, 41 Iowa, 224; Mather v. Chapman, 40 Conn. 382; 2 Kent’s Com. 556; Sheppard’s Touchstone, 89, 100; Dand v. Kingcote, 6 M. & W. 174; Hinchcliffe v. Earl of Kennoul, 5 Bing. 9.
    Thus, where a man sells a close to which there is no access except over his other lands. Howton v. Frecusson, 8 T. R. 50; Holmes v. Goring, 2 Bing. 56; Nickols v. Luce, 24 Pick. 102; Collins v. Prentice, 15 Conn. 39; 3 Kent’s Com. 422; French v. Carhart, 1 N. Y. 96; Hodgson v. Field, 7 East, 613.
    A right reserved to a grantor to go “across” land, means by the route most convenient for him, — not necessarily transversely. Brown v. Meady, 10 Maine, 91.
    A reservation of standing trees reserves also so much of the soil as is necessary to sustain them, and right of access to remove them. Cromwell v. Sheldon, 3 N. Y. 255; Ashley v. Pease, 18 Pick. 268; Bigelow v. Battel, 15 Mass. 313; Johnson v. Rand, 6 N. H. 22.
    A title or right acquired by the grantor by reservation in a deed poll, stands upon the same footing as that which is acquired by direct grant or conveyance. Stockbridge Iron Co. v. Hudson Iron Co. 107 Mass. 290.

      The same rules of construction apply to the reservation in a deed as to any other contract. . See cases above, and French v. Carhart, 1 N. Y. 96; State v. Wilson, 42 Maine, 9.
    A grantor, in making a reservation in a deed, is to be presumed to intend to reserve something valuable. See cases above. Volenti non Jit injuria.

   Mr. Justice Dickey

delivered the opinion of the Court:

In this case no question is made in respect to the construction or effect of the exception of the two hundred feet strip ft for a right of way. As to that; no title or other interest ever passed by the deed; but the controversy relates to the meaning and effect of the reservation of “all the gravel on and in said land and premises,” and “the right to dig for gravel on any part of said lands, * * * with a view of opening gravel pits, one or more, ” and the right to remove such gravel. If the plaintiff’s ancestor had expressly granted the rights and privileges intended to be reserved by the railroad company, there would be but little difficulty in determining the rights of defendant; and no reason is perceived why this reservation should not be construed like a grant, in the light of the facts and circumstances under which the parties acted.

It appears from the evidence that many years ago the defendant discovered a bed of gravel upon the land described in the declaration, and by digging “wells,” as the witnesses call them, in different places, found a large quantity of gravel on the land. To obtain a right of way, and control of the gravel for ballasting on its road bed, the railway company purchased the premises, but having no other use for the land, in 1866 conveyed the same, with the exceptions and reservations in the deed, to Harrison Noble, who then owned the adjoining lands. The greater part of this tract was agricultural or pasture land, without any gravel, the gravel being in the main on one side of the same. The gravel is found six or eight feet beneath the surface of the earth, and is mixed, more or less, 'with sand, capable of being separated by sifting; but to so separate them would render the right to remove the gravel entirely worthless. There was alijo evidence that in central Illinois, where this land lies,-there is a well recognized distinction between a sand bank and a gravel pit, and that there are no deposits in this part of the State of pure sand or pure gravel, and that when the sand predominates, so that the gravel can readily be screened from it, the place of deposit is called a sand bank; and when the greater part of the mass is too coarse for mortar or building purposes, it is called a gravel bed.

Under these circumstances, the right to take and remove this gravel from the land for the use of the road, whether derived by grant or reservation, was a valuable privilege to the railroad company, and judging from the language of the reservation in the deed, in the light of the attendant facts and circumstances, it will be presumed that the company intended not to part with this privilege, but to retain its rights in this respect as they existed at the time of making the conveyance. The intention is manifest that the company thereafter was to have the same right it before that time had to enter upon the premises, and remove therefrom the gravel found in gravel pits, doing no unnecessary damage to the land. Under this reservation the company had no right to remove sand alone, or take from sand banks proper, but might take gravel from gravel pits, notwithstanding there was a mixture of sand in it. The reservation must be so construed as to give a practical right, and not so as to render it worthless or unavailing. The reservation is broad enough to include the right to remove all gravel deposits from the land, or deposits of which the greater part is gravel, or such as are known as “gravel” according to the common acceptation of that word, or'such as is usually employed by railroad companies for ballasting; and the company, before removing such gravel, is not required to sift the sand from it, or separate small veins and pockets of sand found in gravel pits, from the same.

It is urged that the circuit court erred in giving instructions for the defendant, and in refusing instructions for the plaintiff.

The fourth of defendant’s instructions told the jury that if the plaintiff, knowingly, either by himself or servants, assisted in removing and carrying away the sand, he can not recover. The seventh instruction for the plaintiff, which was refused, told the jury that if the defendant hired the plaintiff to work for it in and about plowing up the gravel and sand in question, that it did not ask his opinion as to its rights or his consent to its acts, and that it was entirely uninfluenced by the fact that he hired to it, then no license could be implied from such hiring and work.

There was evidence on the trial that the plaintiff furnished the defendant part of the time with two teams, and afterwards with one team, and hands, to use the same about the gravel pit, which were used in plowing and scraping off the earth to reach the gravel, and also in plowing in the gravel. His teams also plowed into the sand in the gravel pit, and Liscomb testified that he saw the plaintiff driving his team there once, and that he plowed up sand and gravel together. John O’Connor testified: “We were not forbidden to take what little sand was mixed up with the gravel. When Noble was working himself, he was working in the service of the company. I think he was, all the time I was there, scraping the surface off. ” Tucker, who controlled the men and kept their time, testified: “Noble’s teams worked there, and Noble himself one-half day. He was scraping off the top of the gravel. * * * Noble saw how we were doing the work, and never made any objections, or asked me to save the sand, or told me what to do with it, or pointed out any place where the sand was that he claimed. We did not talk much. ” This evidence was sufficient to authorize the court in giving the defendant’s fourth instruction.

The seventh instruction asked by the plaintiff is objectionable in making the question of an implied license of the plaintiff depend upon the fact that the company, in taking and removing the sand with the gravel, was uninfluenced by the fact that plaintiff hired his teams and hands to it, to work for it. Plaintiff’s acts, such as, his failure to make any objection to the work being done and about to be done, or to point out any sand he wished saved, were more likely to influence the defendant than the employment of the plaintiff. By these acts the parties in interest gave construction to the contract. If appellant intended to resist the claim of the defendant, it was his duty to have objected, then and there. His silence, under the circumstances, was a recognition of the rightfulness of defendant’s construction of the provisions of the deed. By acquiescing in the removal of the gravel from his land, and assisting therein, he, at least' by necessary implication, licensed what was done, with his consent. If the defendant was taking deposits containing too much sand, in his judgment, he should have made his objection at the time. Not having done so, his conduct was such as to assure the defendant and its servants that it was proceeding rightfully, or at least with his consent.

We fail to discover any substantial error in the giving or refusing of instructions. The court instructed the jury as favorably for the plaintiff as he had any right to require.

The judgment will have to be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mj:. Chief Justice Scholfield

license: Public Domain

text:
    Jonas P. Magnusson v. E. P. Williams et al.

      Filed at Ottawa November 17, 1884.

    1. Time — rule for computing. Where thirty days’ notice, or any other given time of notice, of a sale is required to be published previous to the day of sale, the rule is, to exclude the day of publication and include the day of sale. But the day of sale must not fall on a Sunday.
    2. Sale under trust deed — publication of notice — sufficiency as to time. Where a deed of trust authorized a sale of the land named therein, for a default of payment, upon first giving thirty days’ notice thereof by publication in a newspaper, etc., it was held, that a publication on August 23, of a sale which was made on September 22 following, was sufficient, "the last day named not being a Sunday. Such an instrument does not require there shall be thirty working days between the publication and sale.
    3. Same — declaring the whole debt due for non-payment of installment of interest. A debtor gave a promissory note for the principal debt, and his four coupon notes for the annual interest. The principal note provided, that “if default in the payment of any interest note, or any portion thereof, for the space of sixty days after the same becomes due and payable, then all said principal and interest notes shall, at the option of” the payee, his executors, etc., become at once due and payable, without further notice. The trust deed securing the notes contained a similar provision. One of the interest notes not having been paid sixty days after its maturity, the assignee of the notes ordered a sale of the land for the entire debt: Held, that it was competent, under the language of the principal note and trust deed, for the assignee to declare the principal note due for the non-payment of the first coupon note for the space of sixty days after its maturity.

      i. Where a debtor gives five notes, secured by a trust deed, the first note for the principal debt, payable about four years after date, and the others for the several years’ interest on the first, each maturing annually, and the principal note and trust deed provided that the holder of such notes may declare the entire indebtedness due for default in the payment of any interest note sixty days after such default, a declaration of a forfeiture of the credit for the cause named, and declaring the entire debt due, will not invalidate a sale properly made by the party named in the trust deed, and such sale will not be set aside on the ground of a forfeiture or penalty, where it does not appear that any of the interest notes have been paid.
    5. Where the principal note and certain interest notes are declared due before their maturity, on their face, for a default of the maker in paying the first interest note for sixty days after due, it would seem that the maker of the notes might prevent a sale of his land under a trust deed, by paying the principal debt and the interest due on it up to that time, without paying the notes given for unearned interest. And the same may be said of a tender.
    6. Same — offer by the debtor to buy the notes secured — effect upon subsequent sale by trustee. A mere offer by the debtor to buy the notes and deed of trust given by him to secure a debt, before a sale by the trustee, will afford no equitable ground for setting aside the sale and allowing a redemption. The most the debtor may require is, that the holder of the debt accept the amount due, and enter satisfaction of the trust deed.
    7. Same — inadequacy of price to impeach sale. To justify a court of equity in setting aside a sale of land by a trustee under a power, on the sole ground of inadequacy of price, the inadequacy must be such as to amount to evidence of fraud upon the debtor’s rights.
    Writ of Error to the Appellate Court for the Second District ; — heard in that court on writ of error to the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding.
    Mr. William Davis, for the plaintiff in error:
    The refusal of the holder of the notes to transfer them without recourse, on an offer to pay the sum due before the sale, made it unnecessary to raise the money.
    Williams was trustee for Magniisson, as well as for Craig. Lewin on Trusts, 422, 423; Webber v. Curtis, 104 Ill. 315.
    Omission of a trustee to do his duty, whether willful or not, is a breach of trust, from which equity will relieve. Moore v. School Trustees, 19 Ill. 83; Thomas v. Sloo, 15 id. 66; Trustees of Schools v. Kirwin, 25 id. 73; Story’s Eq. Jur. secs. 331, 994.
    It being the trustee’s duty to have the property bring its value, he should have adjourned the sale when he found a tender had been made, and that there was no competition. Ex parte Bennett, 10 Ves. 393; Hart v. Ten Eyck, 2 Johns. Ch. 62; Thornton v. Boyden, 31 Ill. 200; Griffin v. Chicago, 52 id. 141; Richards v. Holmes, 18 How. 147; Story on Sales, 461; Hill on Trustees, 479; Lewin on Trusts, 414.
    The clause in the principal note and trust deed, that a failure to pay any of the notes should make the whole debt due, is in the nature of a penalty, against which equity will relieve, upon adequate compensation. Tiernan v. Hinman, 16 Ill. 400; 2 Hilliard on Mortgages, 190; 2 Com. Dig. 166 ; Willard’s Eq. Jur. 56; Williamson v. Railroad Co. cited in 2 Redf. on Ry. 539; Holden v. Gilbert, 7 Paige, 208; Mix v. Beach, 46 Ill. 311; Voris v. Renshaw, 49 id. 425; Bane v. Gridley, 67 id. 388; Home Life Ins. Co. v. Pierce, 75 id. 426; Morris v. Tilson, 81 id. 621; Vail v. Drexel, 9 Bradw. 439.
    A tender of the debt after the day of payment, removes the lien of the mortgage. 1 Hilliard on Mortgages, 516 ; Flower v. Elwood, 66 Ill. 438; Insurance Co. v. Palmer, 81 id. 88.
    The first day of publication can not be reckoned as one of the thirty days. 1 Coke on Littleton, 46 b; 4 Kent’s Com. 102, 103; 2 Burrill’s Law. Dic. 529; Bigelow v. Wilson, 1 Pick. 485; 7 J. J. Marsh. 202; 1 Blackf. 292; 4 N. H. 267; 3 Pa. 200.
    If time is to be computed from any act done, the day on which the act is done is to be excluded in the computation whenever such exclusion will prevent an estoppel or save a forfeiture. Taylor on Landlord and Tenant, sec. 78; Wiggins v. Peters, 1 Metc. 127; Ewing v. Bailey, 4 Scam. 420; Windsor v. China, 4 Green, 298; Cornell v. Moulton, 3 Denio, 12; Farwell v. Rogers, 4 Cush. 160; Blomshard v. Hilliard, 11 Mass. 85; Wilson v. Gastone, 9 Q. B. 137; Waterman v. Jones, 28 Ill. 55; Varin v. Edmunson, 5 Gilm. 270; Walter v. Kirk, 14 Ill. 55; People v. Hatch, 33 id. 9; Bowman v. Wood, 41 id. 203; Higgins v. Halligan, 46 id. 173; Forsyth v. Warren, 62 id. 68; Roan v. Rohrer, 72 id. 582; Weld v. Rees, 48 id. 428; Harper v. Ely, 56 id. 179; Cushman v. Stone, 69 id. 516.
    When the time expires on a Sunday, the time is extended throughout the Monday following, Sunday being excluded. Salter v. Burt, 20 Wend. 205; Borst v. Griffin, 5 id. 84; 4 Kent’s Com. 102, note b; 3 Chitty’s Gen. Pr. 702; 2 Burrill’s Law Dic. 496 ; Angel v. Westcomb, 1 M. & C. 48; Mil-

      burn v. Lester, 5 Sim. 565; Scammon v. Chicago, 40 Ill. 146; Chicago v. Vulcan Iron Works, 93 id. 222; Rev. Stat. 1877, p. 685, sec. 6.
    Messrs. Williams, Douglas & Lawbence, for the defendants in error:
    When thirty days’ notice is required by a deed of trust, Sundays are counted in the computation of time, in the same manner as other days. Weld v. Rees, 48 Ill. 428; Cushman v. Stone, 69 id. 516.
    Where an act is to be performed within or from a day named, the rule in this State is, to exclude the day from which the time commences to run and include the day on which the act is to be performed. Waterman v. Jones, 28 Ill. 54; Bowman v. Wood, 41 id. 203; Roan v. Rohrer, 72 id. 582; Forsyth v. Warren, 62 id. 68; Higgins v. Halligan, 46 id. 173; Ewing v. Bailey, 2 Scam. 420.
    The whole debt being due, a tender of a part could not stop the sale.
    No sufficient reason for postponing the sale has been shown. Mere inadequacy of price, unless so gross as to amount to a fraud, is no ground for setting aside the sale. Weld v. Rees, 48 Ill. 434.
    Contracts which require the principal debt to become due on the failure to pay interest, have often been considered by this court, and always sustained. Harper v. Ely, 56 Ill. 179; Princeton Loan and Trust Co. v. Munson, 60 id. 371.
   Mj:. Chief Justice Scholfield

delivered the opinion of the Court:

This was a bill in equity, to set aside the sale of certain lands under a deed of trust, and to redeem.

On the 24th of June, 1872, Magnusson gave Davidson his promissory note for the principal sum of $974, due February 15, 1876, and also his four coupon notes for interest on that principal sum, at the rate of ten per cent per annum, due, respectively, June 15, 1873, June 15, 1874, June 15, 1875, and February 15, 1876. All the notes were .payable at the First National Bank of Galesburg. The principal note contained this clause: “If default in the payment of any interest note, or any portion thereof, for the space of sixty days after the same becomes due and payable, then all said principal and interest notes shall, at the option of the said Elliot C. D.avidson, executors, administrators or assigns, become at once due and payable, without further notice. ” To secure the payment of these notes, Magnusson, at the time they were given, also executed and delivered to Williams, as trustee, a deed of trust on two tracts of land, — one a quarter section, and thq other a half quarter section, — therein particularly described. The deed contained, this proviso: that “in default in the payment of the said notes, or either .of them, or any part thereof, according to the tenor- and effect of said notes, then, on the application of the legal holder of the said notes, or any or either of them, it shall and may be lawful for the said party of the second part, his, etc., to sell and dispose of said premises, and all the right, title, benefit and equity of redemption of the said party of the first part, his, etc., therein, at public auction, at the south door of the First National Bank, in the city of Galesburg, in the State of Illinois, for the highest and best price the same will bring in cash, thirty days’, notice having been previously given of the time of such sale, by advertisement in one of the newspapers at that time published in the city of Galesburg, and to make, execute and deliver to the purchaser or purchasers at such sale, good and sufficient deed or deeds, ” etc. Soon after the making of the notes and the execution of the deed of trust, Davidson sold the notes, and assigned them to Craig, and delivered the same and the deed of trust to him. When the first interest note became due, it was left for sixty days at the First National Bank of Galesburg, for payment, and not being paid during that time, the trustee was directed by Craig to sell the lands for the amount due on the notes. The trustee thereupon, on the 23d day of August, published a notice that the lands would be sold on the 22d of September then next. On that day, — i. e., the 22d day of September, 1873, — the lands were sold by the trustee, pursuant to such notice, to Craig.

The grounds upon which the sale is sought to be set aside are: First, the insufficiency of the notice of the sale; second, the proviso in the principal note and the trust deed, authorizing the whole sum to be declared due in case of a failure to pay either of the notes, is in.the nature of a penalty or forfeiture, against which a court of equity will relieve; third, there was a tender of the amount due on the first note; and fourth, there was an offer to pay the whole amount due, before the day of sale. These grounds will be considered in the order stated.

First — The notice was clearly published the requisite length of time. The deed required a publication of thirty days. Publication was made on the 23d day of August, and the sale was on the. 22d day of September. The rule in such cases is, to exclude the day on which publication was made and include the day of sale. When this is done, there are, here, thirty days. The rule does not require, as counsel for plaintiff in error seem to suppose, that there shall be thirty working days, but only that the notice be given for thirty days’ length of time. The last day (the day of sale) must not, of course, and here did not, fall-on Sunday. Waterman et al. v. Jones, 28 Ill. 54; Bowman v. Wood, 41 id. 203; Roan v. Rohrer, 72 id. 582; Forsyth v. Warren, 62 id. 68; Higgins v. Halligan, 46 id. 173; Weld v. Rees, 48 id. 428; Cushman v. Stone, 69 id. 516; Harper v. Ely, 56 id. 179.

Second — The question, here, is simply whether it was competent for Craig, as the assignee of Davidson, on the failure of Magnusson, for sixty days, to pay the first coupon note, to declare the debt secured due, and request the trustee to sell, and whether, the trustee having so sold, the sale is illegal, and should be set aside. Since there was no tender of the principal debt, it is unnecessary to go farther, and inquire whether, to make the tender good, it was also necessary to have tendered the amount of the coupon notes not then due. That it was competent, under the language of the principal note and that of the trust deed, to declare the principal note due on the non-payment of the first coupon note for sixty days after its maturity, is well settled by previous decisions of this court. Ottawa Plank Road Co. v. Murray, 15 Ill. 337; Harper v. Ely, 56 id. 179; P. L. and. T. Co. v. Munson, 60 id. 371. The case of Tiernan v. Hinman, 16 Ill. 400, cited and relied upon by plaintiff in error, seems to go to the extent of holding that in a case like the present, in order to redeem, it would not be necessary to tender the amount of the coupon notes not yet due, — that as those notes are given for interest not yet earned, and which, -by the election to treat the principal debt as now due, never can be earned, to enforce their collection would be to enforce a penalty or forfeiture, against which a court of equity will always relieve. But since no tender was here made of the amount of the principal note, and of the coupon note actually due, and there is no pretence that any of the notes have been paid, that ruling can have no application. The principal note was, as we have seen, declared due strictly in accordance with the terms of that note, because of the non-payment, for sixty days after maturity, of the first coupon note, and by virtue of that declaration the principal note then became due, and the deed of trust then authorized the sale of the property by the trustee for the amount then due, upon the request of the holder of the principal and coupon notes. No penalty or forfeiture, strictly speaking, was enforced. The agreement of the party that a debt should become due on a given contingency sooner than it would otherwise have become due, is all that was enforced.

Third — There never was, as we have before observed, any tender of the amount due on the principal note. There was an offer, merely, to buy the notes -and deed of trust, but it was optional whether the holder should sell or not. • The most that could have been required was, that the holder accept the amount of the notes, and enter satisfaction of the deed of trust. Handly v. Munsell et al. 109 Ill. 362.

An objection is also urged that the amount bid was inadequate, and that the sale should therefore have been postponed. The difference between the amount bid and the value of the property, as fixed by the judgment of witnesses, is not great, —certainly is not sufficient to amount to evidence of a fraud upon Magnusson, — -and can not, therefore, justify setting aside the sale on that ground alone. (Weld v. Rees, 48 Ill. 434.) There are no facts shown, otherwise,- from which we can see Magnusson’s interests would certainly have been promoted by postponing the sale.

The decree is affirmed.

Decree affirmed.

Mr. Justice Ceaig was not present at the discussion of this case, and took no part in its decision.


author: Mr. Justice Mulket

text:
    William E. Hughes et al. v. The People, for use of T. C. Kerrick.

      Filed at Ottawa January 22, 1885.

    1. Guardian and ward — security for money loaned — approval by the county court — liability of guardian without such approval. The statute requiring a guardian to keep his ward’s money at interest, upon good security, to be approved by the county court, is mandatory, and a loan upon real estate security without such approval is made at the peril of the guardian, and if loss occurs, the guardian can not exonerate himself by showing he acted in good faith, or that the security was good when taken, but afterwards became insufficient from a general shrinkage of values. This statutory provision is intended as a further protection to the estates of wards.
    2. Same — liability of guardian for compound interest in case of loss. Where a guardian, in violation of the statute, loans his ward’s money upon real estate security without the direction or sanction of the county court, it will be regarded as a willful violation of duty, and he will be charged with compound interest upon any loss to the ward’s estate growing out of the insufficiency of the security.
    3. Compound interest — when trustee chargeable therewith. When a trustee willfully violates his duty in respect to the trust estate, resulting in loss, he may properly be charged with compound interest.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Livingston county; the Hbn. Fbanklin Blades, Judge, presiding.
    Messrs. Stevenson & Ewing, and Messrs. Fifeb & Phillips, for the appellants:
    A guardian is a trustee, and the géneral principles relating to trustees are applied to him. 2 Kent’s Com. 230, 231, and notes; Newman v. Reed, 50 Ala. 297.
    If a trustee acts with due diligence in the discharge of his duty, he is not to be held liable for injury and loss accruing to the beneficiary. Newman v. Reed, 50 Ala. 297; Gould v. Hayes, 19 id. 438; Henderson v. Summers, 33 id. 438; Ivey v. Coleman, 42 id. 409.
    This is the proper rule to apply to guardians. 4 Bacon’s Abr. 561.
    A guardian is not liable for an error in judgment in making investments, where he acts in good faith, and is reasonably prudent under the circumstances. Lowell v. Minott, 20 Pick. 116; Covington v. Leak & Wall, 65 N. C. 594; State ex rel. v. Munson, 68 id. 162.
    One holding trust funds must put them out at interest. Newman v. Reed, 50 Ala. 297.

      A guardian acting in good faith is not chargeable with loss, even where he fails to exercise the highest diligence. Love v. Logan, 69 N. C. 70.
    The guardian may change personal property into realty, or realty into personal property, without making himself responsible, though the change subsequently proved injurious. Bonsall’s case, 1 Rawle, 266; Gelbach’s appeal, 3 S. & R. 205; Boggs v. Adger, 4 Rich. Eq. 408; Lovell v. Minott, 20 Pick. 116; State ex rel. v. Munson, 68 N. C. 162.
    If the guardian or trustee does an act without applying to the court, which, if asked, would have been given, being for the benefit of all concerned, it will be ratified and affirmed, or held of the same validity as if previously ordered by the court. Gay v. Lynch, 8 Gill, 404.
    Previous approval is not always necessary. Janett v. Andrews, 7 Bush, 311.
    The county court having refused or neglected to examine and approve of the securities," ought' not to prejudice the honest and faithful conduct of the guardian.
    Compound interest was at times charged by the English courts to guardians, like other trustees, but only in eases of willful and corrupt misappropriation of the trust fund.
    Interest was not allowed at common law unless there was an express contract to pay interest. Madison County v. Bartlett, 1 Scam. 69; Sammes v. Clark, 13 Ill. 544; Hitt v. Allen, id. 592.
    Messrs. Herrick, Lucas & Spencer, for the appellee:
    The statute made it the guardian’s duty to invest his ward’s money in real estate security, to be approved by the county court; and this is mandatory, as a further protection to the funds of wards. Having failed to observe this duty, the guardian loaned at his peril. Not having discharged his duties faithfully, he was entitled to no compensation. Bond v. Lockwood, 33 Ill. 216.
   Mr. Justice Mulket

delivered the opinion of the Court:

At the June term, 1874, of the county court of McLean county, William E. Hughes was appointed guardian of Ellen Murray, and entered into bond as such, with John F. Humphreys and others as his sureties. While acting as guardian, there came to his hands the sum of $8100 belonging to his ward, a considerable portion of which he appears to have loaned to different parties upon real estate security, without the approval of the county court, and the security thus taken as to some of the loans has since turned out to be insufficient, whereby a loss has occurred. In July, 1878, T. C. Kerrick succeeded Hughes as guardian, whereupon the latter turned over to him a part of the fund, and also tendered him the balance in notes and mortgages of the character just stated, hut Kerrick declined to receive them, on the ground they were not available, and that the loans had been made without the authority of the county court. Hughes insisting on his right to turn over these securities in discharge of his liability as guardian, Kerrick brought an action in the McLean circuit ■court, against him and his sureties on his guardian’s bond. The cause was subsequently removed from McLean to Livingston county, where a trial was had, Resulting in a verdict in favor of plaintiff for $3337.79, which, on appeal, was affirmed by the Appellate Court for the Second District, and the cause, by further appeal, is brought to this court.

The errors of law complained of, arise on the rulings of the trial court. • That court, in effect, held that the statute requiring a guardian to keep his ward’s money at interest, upon good security, to he approved by the county court, is mandatory, and that a loan upon real estate security without such approval is made at the peril of the guardian, and that 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, but subsequently became insufficient in consequence of a general shrinkage of values. The court in thus holding but followed the express rulings of this court in McIntyre v. The People, use, etc. 103 Ill. 142. The decision in that case was reached after a very careful consideration of our statute, in connection with the common law doctrines relating to the same subject, and we have no disposition to depart from or in any manner qualify the rule as there laid down. The legislature, in adopting our statute requiring the approval of the county court to loans made by guardians on real estate security, was evidently intending to give additional protection to the estates of infants, and this intention on the part of the legislature can only be given effect by holding as we did in the McIntyre case, and do now, that the act is mandatory. To hold otherwise would leave the law. practically as it was before. The guardian, under such a construction, might obtain the approval of the county court of such loans, or not, just as he saw fit, which would make the statute practically a dead letter.

It is also objected the guardian should only be charged with simple interest. We do not think so. By putting out the money in the manner he did, in violation of an express provision of the statute, he placed it beyond his power to make it bring compound interest, as it otherwise would have done if properly loaned. This violation of the statute was knowingly done, and therefore willfully done; and the law is well settled that where a trustee willfully violates a duty in respect to the trust estate, resulting in loss, he may properly be charged with compound interest.

We perceive no cause to disturb the judgment of the court below, and it is therefore affirmed.

Judgment affirmed.

Mr. Justice Walkeb : I am unable to concur in all the doctrines of this case. I think it is in some respects opposed to the case of Bond v. Lockwood, 33 Ill. 212.


author: Mr. Justice Sheldon

text:
    Robert E. Jenkins, Assignee, v. The International Bank et al.

      Filed at Ottawa November 17, 1884.

      1. Former adjudication — identity of issues — necessity therefor — and whether such identity exists. Where precisely the same issues are tendered in two different suits, and litigated, a finding as to any such issue in one suit must be regarded as final in the other, and such issue can not be re-tried.
    2. So where a party has had a full accounting as to the state'of his account with another, although in a suit involving the rights of others as well as his own, and a balance is struck, this may be set up by the complainant, in another suit by a supplemental bill, as a bar to a cross-bill seeking another statement of the same account.
    3. Same — in the particular case. A bank brought suit to foreclose a mortgage given to secure a $10,000 note which W. had pledged to the bank as a collateral security for a particular loan, but under a special agreement that all collaterals, after payment of the particular loans, should stand as security for any other indebtedness of W. to the bank, and a subsequent purchaser of 'the premises mortgaged to secure the $10,000, set up that the note of $10,000 had been paid before he bought, and the question then arose as to how much W. owed the bank on general account, for which this note stood pledged at the time of the purchase, W. being a party, and the court found there was due the bank from W. $10,000: Held, that in a subsequent suit between the bank and W., or his assignee, the decree in the prior suit was not conclusive on the bank that W. owed it only such sum.
    4. Same — effect of certain stipulations as waiving the right to rely upon a prior adjudication. During the progress of litigation between a bank and one of its customers and its debtor, several stipulations were made as to charges to be made against the bank on account of collaterals taken for the surrender of certain principal notes, providing that neither party should thereby concede any rights: Held, such stipulations did not preclude the bank from setting up in defence to a cross-bill for an account, a former decree stating the account between the parties.
    5. Same — error in prior decree — its effect. The rule of res judicata or estoppel by a judgment upon the same point, when there is no want of jurisdiction, operates equally whether the judgment be erroneous or not. A decree complete in itself, without any omission to be supplied to make it effectual, however erroneous, may be set up in bar of a bill seeking to re-litigate the matters therein decided.

      6. Same — limitation—as to suit in which an assignee in baniiruptcy is a party — effect as to conclusiveness of prior decree. Section 5057 of the Revised Statutes of the United States, providing that “no suit, either at law or in equity, shall be maintainable in any court between an assignee in- bankruptcy and a person claiming an adverse interest touching any property or rights of property transferable to or vested in such assignee, unless brought within two years from the time when the cause of action accrued for or against such assignee,” does not prevent a party from setting up a former decree between him and the bankrupt in bar of a cross-bill seeking an account of the same identical matters, even after the lapse of five years from the adjudication in bankruptcy; and when such defence has ripened after bill filed, and cross-bill and answers thereto, the complainant may set up such defence by a supplemental bill.
    7. , Pledge — whether affected by change in form, or evidence of debt. Where collaterals are pledged as security for the payment of the pledgor’s notes, they may be held until the indebtedness secured is paid. If the notes are merged in a judgment or decree, the collaterals will stand security for the paj'ment of the judgment or decree, the same as for. the notes.
    8. Accounting — of a re-adjustment after a decree settling an account — ■ basis of a new accounting. After a decree finding the state of accounts between a bank and a defendant,' rendered in a suit to which they were parties, on another bill between the bank and defendant, involving other rights and affecting other parties, a stipulation was entered into by the defendant’s assignee in bankruptcy and the bank and three other persons, that the assignee should surrender to the bank and the other three persons the collaterals held by him to secure the payment of six principal notes of his assignor, only one of which was owned by the bank, and the other five were held by the other parties, and it was agreed that these collaterals should be taken in satisfaction of the six principal notes, and their surrender treated as enforced payment of the latter notes. In stating the account subsequent to the date of the prior decree, the bank was charged with but one of these six notes: Held, no error not to charge the bank with all, as it did not appear that they were all included in the former stated account.
    9. Same — sale on foreclosure — subsequent reversal of the decree — subsequent accounting between the debtor and one of several creditors for whose benefit the sale was made. Where real estate is bid in at a foreclosure sale by one for the benefit of the several creditors in interest, and the decree under -which the sale was made is afterward reversed, and it further appears that no title passed or could pass by such sale, on a subsequent accounting by one of the creditors for whom the purchase was made and the debtor owing the debt in the decree, there is no error in refusing to charge such creditor with'his share of the price at which the property was sold.
    10. Cross-bill — whether necessary — as to matters arising after issues formed. In respect to a matter of defence which arises after the cause is at issue, it is laid down that the defendant can not avail himself of the defence by plea or answer, but must make the same the subject of a cross-bill. And so when the complainant would assert such matter of defence to a cross-bill, the proper mode of presenting the same is by supplemental bill.
    11. Injunction — effect of appeal or writ of error, as to a continuation of an injunction. Where an injunction has been dissolved on final hearing, an appeal or writ of error does not continue the injunction in force unless so ordered.
    12. Trust deed — sale of collaterals — omission of creditor to purchase— effect on trustee's poiber to sell. Where a debtor pledges as collateral security certain notes of his, secured by deeds of trust, to secure his own debt to the pledgee, the latter or his assignee may have a foreclosure of the trust deed without first purchasing such collaterals at a sale made of them. The source of the trustee’s power to sell is the trust deeds, and does not depend upon a sale of the notes secured after they are pledged.
    13. Same — concurrent remedies by creditor in respect to the collaterals secu/red by trust deed. A creditor holding other notes as collateral security for the payment of his note has three remedies. He may file his bill to have the collaterals sold for the payment of the principal indebtedness, or he may bring suit upon the collaterals themselves, or collect the same by a sale of property conveyed in trust to secure them; and the pursuit of either of these remedies is no bar to another.
    14. Same — sale under trust deed pending suit to ascertain indebtedness. Where a creditor has notes of his debtor pledged as,collateral security, which are secured by trust deed upon real estate, he may, after his debt matures and the collaterals fall due, have the trust property in the trust deed sold, notwithstanding the pendency of a suit between him and his debtor to determine whether the indebtedness had not been paid. But the trustee’s sale, pending such litigation, is subject to whatever decree maybe rendered therein. If it should be found there was nothing due of the principal indebtedness for which the collaterals were pledged, the trustee’s sale would be invalid.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    A bill in chancery was filed February 17, 1875, in the Cook county circuit court, by the International Bank, against Samuel J. Walker and other persons, to foreclose and sell certain collateral securities which had been pledged by Walker to the bank to secure the payment of principal notes of various dates made by Walker to the bank, some twenty-two of which were still held by it, and about ten others transferred to the other parties to the suit. The prayer of the bill was, that a decree might be entered fixing and establishing the amount of indebtedness due the bank from Walker, and for a sale of the collaterals so pledged, and the application of the proceeds to the payment of such indebtedness. Walker answered, alleging that a large amount of usurious interest entered into and formed a part of the alleged indebtedness, and insisting'tliat an account be taken between the parties, and that such usurious interest be applied toward the satisfaction of such indebtedness, and that the collaterals be surrendered. Walker also filed a cross-bill making the same allegations, and praying for an account, and the application of such usurious interest, and for a surrender of the collaterals.
    July 6, 1877, the circuit court made an interlocutory decree in the cause, which denied the right to interpose the defence of usury, and directed an account- to be taken of what was due on the principal notes held by the bank, excluding the defence of usury and of usurious payments of interest. .In pursuance of an account taken as thus directed, dated January 15, 1878, a final decree was entered on April 25, 1878, finding the amount due the bank from Walker on the notes held by it to be, on January 15, 1878, $172,474, and directing a Sale of the collaterals held by the bank to satisfy it. April 26, 1878, Walker went into bankruptcy, and July 31, 1878, Jenkins, the appellant, received the deed as his assignee in bankruptcy. The decree of April 25, 1878, was by this court, at its March term, 1881, in Jenkins v. International Bank et al. 97 Ill. 568, reversed, on the ground that the direction to the master, in the order of reference, not to consider the question of usurious payments of interest upon any of the notes, was erroneous. The collaterals so sought to be sold had been specifically pledged by Walker to the bank,— each to secure a particular note. The bank also held an agreement from Walker that each of the collaterals, though specifically pledged as security for a specific principal note, should also, after the satisfaction of such principal note, be held as security for Walker’s entire indebtedness to the bank, if any surplus remained which could be so applied after the satisfaction of such particular note.
    On March 11, 1874, George Wilshire and others filed their bill of complaint against the International Bank, David Frey, Samuel J. Walker, and others, alleging that they had purchased of Walker certain premises, and setting out that Frey claimed to own a certain mortgage upon the same, executed by Walker prior to their purchase, which Frey obtained from the bank, but that there was nothing due upon it, and praying that the same might be surrendered and cancelled. Frey filed a cross-bill, setting up his principal note and the collateral note and security so executed by Walker to the bank, alleging that he had bought said principal note of the bank for full value, and praying for the foreclosure of the mortgage and sale of the premises. The bank also filed its cross-bill against Wilshire, Frey, Walker, and others, setting up its general collateral agreement above referred to, alleging its right, by virtue thereof, to any surplus that might remain after the satisfaction of the indebtedness so due to Frey on said principal note which had been sold by it to Frey, not exceeding the amount due on the collateral note. The said general collateral agreement provided that the bank should have the benefit of said surplus, though it had sold such principal note to a third party. The bank, in its cross-bill, set up its entire indebtedness so due to it from Walker in the same way and with the same particularity that it had set up the same in the bill in this cause now under consideration, alleging that the notes were due and payable, and asking that it might have any surplus applied to the payment of such indebtedness after the satisfaction of the amount due to Frey. Walker answered that cross-bill in the same way, and alleging the same facts that he had alleged in answer to the bill in this cause. He also filed a cross-bill therein, setting up the same facts that he had set up in the cross-bill filed in this cause, and prayed for an account between himself and the bank, and for the application of all usurious interest in satisfaction of his indebtedness to the bank, and for a return of the bank’s collaterals, just as he had done in this case by his cross-bill.
    On February 28, 1878, a decree was entered in the Wilshire suit, finding the amount due from Walker to the bank to be the sum of $172,474. That decree stands in full force and effect, and over five years have elapsed since the entry of the same. The case at bar having been redocketed in the circuit court after the reversal of the first decree, on November 26, 1883, by leave of court the complainant, the International Bank, filed a supplemental bill, setting up the said proceedings, pleadings and decree in the Wilshire suit as a former adjudication, and in bar to any further proceedings by Jenkins, assignee, for an account under his cross-bill herein, and as a conclusive adjudication of the amount due the bank upon the evidence of indebtedness set out in its original bill herein. The circuit court held the said former adjudication in the Wilshire suit a bar to any further account as to what was then due, and found the amount due upon the principal notes set out in the bill and offered in evidence, to be the sum of $172,474 on January 15,1878, as determined by the decree in the Wilshire suit. After the allowance of subsequent collections, the court found the amount due at the time of the decree to be $143,630.22, and rendered a decree for a sale of the collateral securities to satisfy said sum. This decree was affirmed by the Appellate Court for the First District, and the assignee appeals to this court.
    Mr. W. T. Burgess, for the appellant.
    Messrs. Rosenthal & Pence, for the appellees.
   Mr. Justice Sheldon

delivered the opinion of the Court:

It is insisted the circuit court erred in holding the former adjudication in the Wilshire suit a bar to any further account as to what was in issue therein. The issues tendered by the bank to Walker, and by Walker to the bank, were precisely the same in that suit brought by Wilshire as they are in the case at bar. The main object in each suit was and is to ascertain the amount due from Walker to the bank. That was litigated and determined in the Wilshire suit, and we think the sum there found to be due must stand, and be taken as the amount then due, without being subject to be overhauled in this present suit. As was said in Briscoe v. Lloyd, 64 Ill. 33, litigation must have a termination, and when a matter has been in issue and the parties before the court, and an opportunity afforded to assert their rights, they must be held concluded from afterwards litigating them in another proceeding. We do not understand appellant’s counsel as making question that the decree in the Wilshire suit would not, under the general rule, be a bar to any further accounting, or be binding as to the amount due, upon the principle of res judicata, but he seeks to avoid the effect of such former adjudication by the United States Statute of Limitations, and by the fact that the decree in the Wilshire suit is erroneous, and, as alleged, unjust and inequitable.

Section 5057 of the Revised Statutes of the United States provides, that “no suit, either at law or in equity, shall be maintainable in any court between an assignee in bankruptcy and a person claiming an adverse interest touching any property or rights of property transferable to or vested in such assignee, unless brought within two years from the time when the cause of action accrued for or against such assignee.” To make that statute applicable this view is presented: that as the supplemental bill filed in this cause by the bank on November 26, 1883, setting up the decree in the Wilshire suit, prayed that it might be taken as a bar to any further proceeding by Jenkins under his cross-bill herein, and also that it might .be taken as a sufficient adjudication of the amount due the bank, upon the evidence of indebtedness set out in the original bill, the decree was used in the court below for a two-fold purpose: First, as a plea in bar of the accounting; and second, as the cause of action in a supplemental bill taking the place of the cause of action set out in the original bill. It is this latter purpose, and the relief the party prays under it, which it is claimed entitles the assignee to set up in bar of that relief the statute. The decree in the Wilshire case having been rendered February 28, 1878, the deed to the assignee in bankruptcy made July 31, 1878, and the said supplemental bill having been filed November 26, 1883, it was more than two years thereafter.

We do not appreciate the distinction which would thus be taken in respect of a double purpose of the supplemental bill, — one purpose, as a plea in bar of the accounting, in which regard appellant’s counsel says he does not apply the .statute to the decree as ras judicata, but that to its other purpose, as a substantive cause of action, as it is claimed to be, for the amount found due by the Wilshire decree, the Statute of Limitations does apply. Although the supplemental bill does in form set up the decree in the Wilshire suit in a double aspect, — first, as in bar of the cross-bill of Walker, and any further proceedings under it, and second, that such decree may be declared a sufficient adjudication of the amount due from Walker to the bank, — there was no ground for any such distinction. The bill of the bank prayed for establishing the amount of indebtedness due the bank from Walker, and an account would have had to have been taken under that, and Walker’s answer setting up the payment of usurious interest. Walker’s cross-bill did pray for an accounting, but the cross-bill was not needed for that, — its only necessity was to obtain the affirmative relief of having surrender of the collaterals made to him. The barring of any further accounting would necessarily he to take the sum found by the Wilshire decree to be the amount due; and taking the Wilshire decree as fixing the amount due, would necessarily bar any further accounting previous thereto. We do not see any substantial distinction between the debarring of any further accounting and the taking of the Wilshire decree as conclusive of the amount due. We see no two-fold purpose in reality of the supplemental bill, but view it as having the single object of setting up the Wilshire decree as a former adjudication of the subject matter of the present suit. We regard the supplemental bill as essentially in the nature of a plea in bar to any further accounting in this suit, — that a party can not be called upon to account twice. It is analogous in operation to the plea of a former adjudication in bar of a pending suit upon the same subject. With respect to a matter of defence which arises after the cause is at issue, it is laid down that the defendant can not avail himself of the defence by plea or answer, but must make the same the subject of a cross-bill. (Story’s Equity Pleading, sec. 393.) And so when the. complainant in a bill would assert such matter of defence to a cross-hill, the proper mode we take to be by a supplemental bill.

The notes of Walker to the bank were introduced in evidence here, and there was no necessity of resort to the Wilshire decree as fixing the amount due the bank, the Wilshire decree being for just the amount of the notes. But it is said the notes were merged in the Wilshire decree, and no longer existed as a cause of action, — that the only cause of action afterward was upon the decree, and all right had to be asserted upon it as the cause of action, and hence the necessity of the supplemental bill making the decree the cause of action, and that against that, as the cause of action, the statute has run. We do not consider the supplemental bill as introducing a new cause of action. The indebtedness is the same. The evidence of it at the time of filing the original bill in this case consisted in notes from Walker to the bank. The notes have since, as said, become merged in the Wilshire decree. There has been, then, a change in the evidence of the indebtedness, — from notes to a decree upon them; that is all. The collaterals sought to be foreclosed by sale of them were pledged for the payment of the indebtedness. A decree upon the notes, and the running of the Statute of Limitations against the decree, is not any payment of the indebtedness. The simple effect is, that the statute is a bar to a suit upon the decree. The collaterals may be held until the indebtedness is paid according to the terms of the pledge. We do not consider that there has been any new suit brought upon the decree, but that there is, under the supplemental bill, but assertion of the right to claim the benefit of the Wilshire decree as res judicata, and that the Statute of Limitations set up is not a bar to that right.

It is next asserted that the Wilshire decree is erroneous, inequitable and unjust on its face, and under the circumstances of the case one to which the circuit court should not have given effect. There was error in the Wilshire decree. There was the same erroneous order of reference in that case directing the master not to consider the question of payments of usurious interest that there had been in this case, and for the same error on account of which the first final decree in this case, of April 25, 1878, was reversed by this court, the decree in the Wilshire case was subject.to be reversed; but it never was reversed. The rule of res judicata or estoppel by a judgment -upon the same point, where there is no want of jurisdiction, has operation whether the judgment be erroneous or not. Graceland Cemetery Co. v. The People, 92 Ill. 619; Case v. Beauregard, 101 U. S. 692.

It is insisted that the principle which was applied in the cases of Wadhams v. Gay, 73 Ill. 415, and Gay v. Parpart, 106 U. S. 699, as to a court of equity declining to interfere to supply aid for the enforcement of an unjust and inequitable decree, should obtain here in appellant’s favor. The principle there acted on was, that where there was an incomplete decree, which was ineffective for want of the provision of'any means for its execution, and a court of equity was called upon by an original bill to supply the omission, so as to render the decree effective, the court might well remain passive, and refuse its interposition where the decree was unjust and inequitable. Here the Wilsliire decree is complete of itself,— entirely capable of full execution. Nothing is sought with respect to it except to show its existence as a decree, and insist upon the legal effect which attaches to its existence as a decree. We do not regard the case as at all coming within the principle referred to.

There w'ere pending at the same time some nine of these so-called Walker suits, including the present and the Wilshire suit, — some brought by the International Bank; and in those brought by others the bank filed cross-bills, in which, as between Samuel J. Walker, — he being a party defendant in all of the suits to the bills or cross-bills of the bank,— and the International Bank, (a complainant in bills or cross-bills in all of them,) where precisely the same questions were involved, touching the same identical notes given in the course and springing out of the moneyed dealings between them, and where the principal question in each of them was, did Walker, by reason of these moneyed dealings, owe the bank anything, and if so, how much ? — usury in these dealings being the defence set up by Walker in all the suits. In one of said suits, called the Brennock suit, there was a decree which, if he be overruled with respect to the Wii shire decree,, appellant’s counsel claims in favor of appellant, as having determined the amount due to the bank from Walker on the notes to be $10,000, and no more; and as this decree was the last -finding upon the matters in controversy, it is insisted upon, on behalf of appellant, as being conclusive of the amount due from Walker to the bank. That bill in the Brennock case was filed by the International Bank, against John Brennock and others, the bill alleging that Walker owed the"bank on a promissory note for $7500, bearing date September 26, IS70, which was renewed by another note for the same amount, dated March 14, 1873; that to secure such indebtedness, Walker, on September 26, 1870, pledged a note of $ 10,000, which was secured by a trust deed on block 15, etc.; that the bank, after the payment of the principal note, was entitled to the surplus, not exceeding the amount due upon such collateral note, and to have it applied on the other indebtedness due the bank from Walker, under its general collateral agreement, and alleged that Walker was indebted to the bank in an amount far exceeding the amount due upop said $10,000 collateral note; but the bill did not state the exact amount, or set out the evidence of the other indebtedness due from Walker to the bank. The bill also alleged that Brennock claimed title to said block 15, but that his interest was acquired subsequent to the pledge to the bank. Brennock’s answer showed that he acquired title January 1, 1872, to said land, and claimed that the security held by the bank would not be effectual for any indebtedness of Walker to the bank which was created subsequent to Brennock’s purchase. Walker filed a cross-bill, asking for an account. On the hearing, Walker’s cross-bill was dismissed for want of equity, and the court confirmed the report of the master, which report showed that on January 15, 1878, Walker owed the bank $172,474, which is the same that the Wilshire decree found; and then the decree makes the special finding, “that there was due the bank on January 1, 1872, and has been due it ever since, from Samuel J. Walker, an amount of money exceeding the amount of $10,000, and that of the same identical indebtedness existing on January 1, 1872, for -which the security aforesaid was pledged, there is now due the sum of $8532, and that complainant is entitled to have said premises above described sold, and the proceeds applied in satisfaction of said indebtedness so due unto it on January 1, 1872."

It will thus be seen that the entire indebtedness of Walker to the bank was not in issue in that case. It was neither alleged in the bill nor sought by the bill to be established, nor did the decree assume to fix the entire indebtedness. The object sought was only to have established an amount of indebtedness sufficient to absorb the collateral of $10,000, and that existing at a particular time, — January 1, 1872; and so the bill only alleges an indebtedness in excess of $10,000, and the decree finds only an indebtedness to an amount exceeding $10,000 on January 1, 1872. To take that decree as establishing conclusively the amount of the entire indebtedness of Walker to the bank, and that amount $10,000, as appellant’s counsel would construe it, would be, as appears to us, a manifest perversion of the character of the decree. Had the court undertaken to determine the question of the whole indebtedness, we may suppose it would have found it to have been '$172,474 on January 15, 1878, as the master’s report found it to be, and which report the'court had confirmed.

Various objections are made by appellant’s counsel to the statement of account made by the court subsequent to January 25, 1878, — the date of the Wilshire decree. Pending this suit, the assignee and the adverse parties in interest came to an agreement that the assignee should sell and they buy several of these collateral securities, and the consideration was that such sale should be in full satisfaction of the principal notes so held by the bank and others. The items of the account, and the amounts thereof, since January 15, 1878, claimed by either side, were agreed upon by them or proved, and they waived a reference to the master to state such account, and submitted, respectively, to the court a statement of account, each excepting to several items presented by the other. Three certain stipulations as to the charges to be made against the bank on account of eollaterais taken for the surrender of certain principal notes, were introduced in evidence. A point is made on them, that they contemplate a new account should be taken, and the bank should thereby be precluded from insisting upon the finding in the Wilshire decree. We do not think this point should be sustained, especially in view of the statement in the stipulation, “neither party intending hereby to concede any matter other than that by the surrender of the claim to the securities the said notes are paid. ”

Question is made as to the effect to he given to these stipulations. The first stipulation is in the Bauer suit, of date January 12, 1883, and respects six principal notes and their collaterals. One of these principal notes belonged to the bank, and the other five to Miller & Liebenstein, and Loebnitz. The stipulation was between all these named persons, the bank, and the assignee, and by it the bank, Miller, Liebenstein and Loebnitz accepted, in satisfaction of the six principal notes, the surrender from the assignee of the collateral securities accompanying the notes. In the account the bank is charged only with the one principal note which belonged to it, whereas it is insisted the bank should have been charged with the whole six notes. We can not see how this should be, unless all these six notes entered into and formed part of the Wilshire decree. But we do not understand that they did. The Wilshire decree fixed the amount of the indebtedness from Walker to the bank on January 15, 1878. These notes were made and due in 1873, and as only one of them belonged to the bank, it having sold the other five to the persons named, we suppose that decree to have embraced only that one of the notes which belonged to and was due the bank. We must suppose the other persons who held the other five notes, cancelled and surrendered them to the assignee when he gave up to them the collaterals. Stress is laid upon particular words which are used in other parts of the stipulation, as, that the surrender of the collaterals should be “taken as if enforced cash payments of the face amounts of said notes had been made of each of them by Samuel J. Walker, ” and that in the taking of the account between “Walker and the bank” in any suit or suits, the face amounts should be charged, if otherwise proper to be allowed and charged. But there is the qualification, “neither party intending hereby to concede any matter other than that by the surrender of the claim to the securities the said notes are paid, as above provided for, ” so that it seems to amount to no more than that the surrender of the collaterals paid the notes.

The stipulation dated December 19, 18S3, only deals with two principal notes which belonged to Bauer, and he takes the collateral securities accompanying them, in satisfaction of the notes. It is objected that the bank should have been charged with these two notes. The same remarks are applicable to this as to the preceding objection.

In one of these several Walker cases before spoken of,— that of Bauer v. Walker et al., wherein the bank was a party, —there was a decree in favor of the complainant, and a sale, had under it, under a security given by Walker, of lots 21 to 36, in block 10, Walker’s dock addition, and the property was bought in at the master’s sale by one Rosenberg, for the use of the parties in interest, under the decree, for $54,500, the bank’s pro rata share of which was $21,232.82. The decree was afterwards reversed. Appellant’s counsel insists the bank should have been charged in the account with this suni of $21,232.82; that the reversal of the decree did not make void the sale which had been made under it, but that the sale was only voidable at the election of the defendant; and that further, the assignee had filed a bill to set aside that sale, and the court refused to do so, so that appellant is entitled to demand that the bank should account for what it realized by that sale. It does appear that on June 27, 1881, after the reversal of the decree in the Bauer case, a supplemental cross-bill was filed in the cause by the assignee, to, among other things, set aside the sales made under the decree, including that of lots 21 to 36, in block 10, Walker’s dock addition, and to set aside the deed made by Eli Kinney and wife, vesting the title, through mesne conveyances, in Loewenthal, and to have the deed from Walker and wife to Kinney, of said lots, declared a mortgage, and that the court, upon answers filed by the bank and others, and the trial of the issues thereby made, entered a decree on July 11,1882, finding that Walker, being seized in fee of the lots, conveyed them to Eli Kinney; that the assignee claimed that the deeds, though absolute in form, were intended as a mortgage security, as to which the court made no finding; that the property, through sundry mesne conveyances, came from Kinney to Louis Kuhn; that Kuhn, on November 16, 1SS0, by deed duly recorded, conveyed the lots to Berthold Loewenthal; that the title so acquired by him was vested in him in trust, for himself, and the bank, Schoelkopf and Bauer; that they were innocent jiurcliasers for value, without notice; that the assignee did not commence suit within two years from the time when the cause of action accrued to him; that he was put upon inquiry of the adverse claim of Kinney more than two years before commencing the suit; that he had been guilty of negligence in bringing the suit, and that he is now barred of any suit by virtue of the statute of the United States in such case made and provided, — and the supplemental cross-bill was dismissed for want of equity, nothing being said as to the sale under the reversed decree. This decree would seem to be an adjudication that Walker had no title to the property at the time of the sale under the Bauer reversed decree, and if not, the bank got nothing by its purchase at the sale, and there would be no equity in charging it in account with the amount of that sale. But appellees’ counsel,insist upon nothing more than that, the decree being reversed, the sale became void, and that the security has never been foreclosed, but that the suit is still pending for that purpose, and when the security is collected the bank will be charged. The filing of the supplemental cross-bill by the assignee was an election to avoid the sale. We are unable to say there was error in disallowing this item of account.

As regards the other objections to the account stated, it appears that prior to a writ of error being sued out and served in this case, all of the collaterals described in the objections were sold to the complainant, the bank. On June 28, 1881, the assignee filed a supplemental cross-bill, in which he set up the reversal of the decree, elected to have the sales set aside, and asked for a decree of the court to that effect, and for a surrender of the collaterals to him after satisfaction of the indebtedness due the bank, on accounting. On January 12, 1884, the assignee, by leave of court, dismissed without prejudice his supplemental cross-bill filed in 1881, as to all the items of sale except the Kohn notes. Two principal notes, each for $6000, made by Walker to the bank, were sold by the bank to H. A. Kohn & Bros., at the time of their execution. Walker also pledged as collateral security two other notes, of $12,500 each, executed by himself, for security of ■which, and of two other collateral notes made by him, of $12,500 each, (there being four collateral notes in all,) Walker executed his trust deed to Bogers, trustee, conveying blocks 84, 85, and the north half of blocks 91 and 92, in Canalport. The two collateral notes securing the two principal notes of $6000 each, sold to Kohn, were delivered to Kohn by the bank. The other two collateral notes were pledged with the bank as a general collateral for any and all indebtedness due or to become due the bank from Walker, — which latter col-laterals were sought to be sold under the bill in this case. The principal notes held by Kohn being due and not paid, he caused advertisement to be made by the trustee, Bogers, for the foreclosure and sale of the premises in the trust deed described. Therefore, in 1875, Walker filed his supplemental cross-bill, and obtained an injunction stopping that sale. Upon the hearing, in 1878, Walker’s cross-bill and supplemental cross-bill were dismissed for want of equity, and the temporary injunction which had been granted was dissolved. The writ of error was sued out by Walker from the Appellate Court to that decree on June 18, 1878, but there is nothing in this record showing when such writ of error was served. An appeal or writ of error does not continue an injunction in force, unless so ordered. (Bev. Stat. 1874, p. 581, sec. 21.) It was not so ordered here, and the injunction was not continued in force. The decree of the circuit court was affirmed by the Appellate Court, and a writ of error was not sued out of the Supreme Court, in this case, until long after September 19, 1878.

On September 19, 1878, Rogers, the trustee, at the request of Kohn and the bank, again advertised said blocks 84, 85, and the north half of blocks 91 and 92, for sale, and sold the same to Kohn for $14,786.50, under the powers in said trust deed. The Kohns and the bank being both interested in said security, it was bought in by Kohn for the benefit of both, and Kohn and the bank were each charged with one-half of said bid at the sale. In this account, here, the bank is charged with its half, — $7393.25. The assignee objected to this, and called for an accounting of what the collaterals were held as security for, or that those collaterals should be excepted and the bank not be charged therewith; and the claim is, that the assignee has a right to take the property so foreclosed and bought in under the trust deed, upon payment of the notes secured, — that the foreclosure by sale of the trustee, while this suit was pending, was illegal and void. Although the effect of the sale of the collaterals under the-decree which has been reversed, — whether the sale thereby became void or only voidable, and whether or not it has been disaffirmed by the assignee, — has been much discussed in the argument, we do not regard that a practical question here, which need be considered, inasmuch as it is not the sum which the collaterals sold for at the trustee’s sale under the decree, which either party seeks to have brought into the account, and the bank charges itself, and is charged in the account, with the amount of the bid at the trustee’s sale. The right to sell under the trust deed was not at all dependent upon any purchase of the collaterals upon a sale made of them. That was not the source of the trustee’s power to sell. His power came from Walker himself, in his trust deed. In making the sale under the trust deed, the trustee was but exercising the precise authority which Walker had given him to make the sale; and the right of the Iiohns .and the bank to direct the trustee to make the sale, did not depend upon any purchase by them of the collaterals, but it came from the pledge of the collaterals by Walker with the bank. He pledged them for the payment of his indebtedness to the bank, and the bank had the right to enforce their collection for the payment of such indebtedness.

There being no injunction against the sale by the trustee, and no irregularity in the making of it being complained of, and the principal indebtedness being established, we do not see why the trustee’s sale should not stand. The only objection to it is, that it was made while this suit was pending. This suit sought to have the collaterals sold for the payment of the principal indebtedness. The trustee’s sale- was a proceeding to collect the collaterals, by selling under a trust deed property conveyed to secure payment of the collaterals. These were two independent remedies for enforcing payment of the principal indebtedness. There was still another remedy which was open, — to bring suit upon the collaterals to enforce their collection. These were but different remedies, and it is not perceived why the pursuing of either one should be a bar to the pursuit of the others. There is a propriety that such a suit as this, for a sale of the collaterals, should not be held to stay the collecting of them, as through delay of their collection until the end of the suit the collaterals might become impaired or worthless. The trustee’s sale during the pendency of the suit was, of course, subject to whatever decree might be rendered therein. Had the decree found that there was nothing due of the principal indebtedness for which the collaterals were pledged, then the trustee’s sale would have been invalid, and have gone for naught; but the whole principal indebtedness being established by the decree to be due and unpaid, we do not regard the pendency of this suit as affecting the trustee’s sale.

A consideration of the many exceptions to the account, and all that has been urged in their support, has not made it - satisfactorily appear to us that there is any error in the account.

The judgment of the Appellate Court must be affirmed.

Judgment affirmed.