text:
    Jane Kelley et al. v. Titus W. Vigas et al.

      Filed at Springfield September 27, 1884.

    1. Will—whether devisees take per stirpes or per capita—of a devise, “equal among my heirs at law." A testator devised all his estate to his wife during her life, and after her death directed that $1000 be paid to his daughter, and gave to his daughter-in-law, (the widow of hie deceased son,) a lot, and then directed, “the remainder of my estate to be divided equal among my heirs at law. ” The widow was dead when a partition was asked, and it appeared that the testator had but two children, a daughter still living, and a son who died before the testator, leaving children: Held, that his heirs took per stirpes, and not per capita, in the remainder of the estate, so that the daughter took one-half and the heirs of the son the balance.
    2. Where a devise is made to a class of persons not named, as “heirs at law” of the testator, so that reference has to be made to the statute to ascertain the persons who constitute his heirs, the provisions of the statute as to the quantity each shall take must also govern. In such case the estate devised will be divided among his heirs, as in cases of intestacy.
    Appeal from the Circuit Court of Greene county; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Morrison, Whitlock & Lippincott, for the appellants :
    A devise of an estate, “to be divided equal among my heirs at law, ” not naming them, has reference to the Statute of Descent, and heirs will take per stirpes, as in ease of intestacy. 2 Jarman on Wills, 34; Daggett v. Slack, 8 Metc. 450; Tillinghast v. Cook, 9 id. 146; 2 Story’s Eq. Jur. 298, note 6; Bassett v. Granger, 100 Mass. 348; Fisher v. Skillman, 3 E. C. Green, 229; Lyon v. Acre, 33 Conn. 222; Rusk’s appeal, 52 Pa. St. 269; Holbrook v. Harrington, 16 Gray, 102; Balcom v. Haynes, 14 Allen, 205; Richards v. Miller, 62 Ill. 417; Rawson v. Rawson, 52 id. 62.

      There is a difference in designation as children or heirs of one. If the gift is to the children of A and of B, they take per capita. 2 Jarman on Wills, 80-82; Lady Lincoln v. Pelham, 10 Wis. 166; Barnes v. Patch, 8 Ves. 604; Walker v. Moore, 1 Beav. 607.
    Devises to a class are held to pass the estate per stirpes, and not per capita. Walker v. Griffin, 11 Wheat. 375; Ricks v. Williams, 1 Dev. Eq. 3; Boot et ux. v. Mix, 17 Wend. 119; Jackson v. Luquer, 5 Cow. 221; Lyon v. Acre, 33 Conn. 222.
    Mr. James R. Ward, for the appellees:
    The words “equal,” and “to be equally divided,” where used in a will, mean a division per capita. Richards v. Miller, 62 Ill. 425; Brown v. Pitney, 44 id. 363; Rawson v. Rawson, 52 id. 62; Gauch v. Insurance Co. 88 id. 253; Daggett v. Slack, 8 Metc. 453; Jarman on Wills, *194, 197.
    I call the attention of the court to Bassett v. Granger, 100 Mass. 349; Lyon v. Acre, 33 Conn. 224; Rusk’s appeal, 52 Pa. St. 271; Balcom r. Haynes, 14 Allen, 205; Holbrook v. Harrington, 16 Gray, 103; Barnes v. Patch, 8 Ves. 605; Fisher v. Skillman, 3 E. C. Green, (N. J. Eq.) 229, and the authorities there discussed.
   Mr. Justice Scott

delivered the opinion of the Court:

The bill in this .case was brought by a part of the heirs at law of Titus,W. Vigas, deceased, against his other heirs, for a partition of the real estate of which the testator died seized. Surviving the death of the testator, were his widow, (since deceased,) his daughter, Jane, (intermarried with Milton F, Kelley,) and his grand-children, William Vigas, Titus Vigas, Hattie Vigas, and Josephine Vigas, (intermarried with Christopher Doyle,) children of his son, James Vigas, who departed this life before the death of the testator. Since the death of the testator, his grand-son William Vigas has died without issue, leaving as his only heirs at law, his mother, Sarah F. Vigas, and his brothers and sisters, as above stated. It is alleged in the bill, that by the terms of the testator’s will Jane Kelley, his only surviving child, would take but one-fifth of the “remainder” of the estate, and that the heirs at law of his deceased' son would take the other four-fifths, and the circuit" court' so' decreed.’ Jane Kelley, her husband joining with her, brings the case to this court, and assigns for error that decision of the circuit court.

The second clause of the will of Titus "W. Vigas, deceased, which was duly admitted to probate in the county where he had resided, is as follows:

“Second-^-1 give, devise and bequeath unto my beloved wife, Margaret T. Vigas^ all my estate, both real and personal property, Of -whatsoever kind, during her natural life, and at her death, all the. property' aforesaid to her .bequeathed, to my daughter,.-Jane Kelley, the.sum of $1000, and to my daughter-in-law, Sarah L. Vigas, wife of James Vigas, deceased, lot No. 258, in Carlin’s addition to the town of Carrollton, in the .county and State aforesaid,—the remainder of my estate to be divided equal among my heirs at law.”

The widow, to whom a life estate was given by this provision of the will, has since died, and the question is, how shall the “remainder”- of his estate be divided among the “heirs at law” of the testator. After making special devises and bequests, it will be observed the testator then provides, “the remainder of my 'estate to be divided equal among my heirs at law.” The proof is, the testator left one daughter and four grand-children his only “heirs at law,” and the question is, how do they take the “remainder” of his estate,—whether per stirpes or per capita. Although the will, in this respect, is by no means free from ambiguity, the court is of opinion the heirs take the “remainder” of the testator’s estate per stirpes. That would give one-half of the “remainder” of the estate to his daughter, Jane, and to the heirs at law of James Vigas, deceased, the other half. It will be observed the devise of the remainder- of the estate, after the determination of the life estate first created, is to a class of persons,—that is, to the “heirs at law” of the testator. To ascertain who are included in the class designated as “heirs at law, ” reference must be had to the statute of this State regulating descents and distribution of estates. The rule established by the decision of this court in Richards v. Miller, 62 Ill. 417, is, when the statute is invoked to ascertain the persons who take a devise or bequest by a general description, its provisions as to the quantity each shall take must also be observed. The same doctrine had previously been declared in Doggett v. Stock, 8 Metc. 450, and in Tillingast v. Cook; 9 id. 143. It will be seen the testator, by his will, disposed of the remainder of his estate to his “heirs at law, ” but made no devise of it to any one by name, other than designating them as a class. The word “heir, ” it is said, when uncontrolled by the context, designates the person appointed by law to succeed to the estate in question, as in case of intestacy, and so the authorities seem to hold. Who are heirs of a deceased person is determined and declared by statute, and the quantity each shall take, as heir, is also fixed. Observing these rules of construction, it would seem the residue of the estate of the testator should be divided in accordance with the provisions of the statute, as in cases of intestacy. That being so, the heirs at law in this case, under the statute, would take the remainder of the testator’s property per stirpes, and not per capita. This construction accords with what seems to have been the plain intention of the testator. The only doubt as to its correctness arises out of the use of the words, “equal among, ” in the will. It is understood the words, “equal among,” or “equally,” or “share and share alike,” when used in a will, mean a division of the estate per'capita; but this meaning of these words may be controlled by the context, and is often so done. That is the case here, The testator, by making a bequest. of money to his own daughter and a devise of land to his daughter-in-law, evidently intended to make an equal division of his estate between his daughter’ and the family of his deceased son, and it is not unreasonable to believe that was all he meant by the use of the words, “equal among. ” This most just intention ought not to be defeated by giving to the words employed in the will an arbitrary and technical meaning never understood, or perhaps thought of, by the testator when he used them. This construction of the will not only conforms to'what is believed to have been the evident intention of the testator, as manifested by the context, but it finds strong support in the previous decisions of this and other courts. Richards v. Miller, 62 Ill. 417; Basset v. Granger, 100 Mass. 348; Boskin’s Appeal, S Pa. St. 304.

This case may be readily distinguished from Pitney v. Brown, 44 Ill. 363. In that case the devise of the residue of the estate was to devisees by name. Here the devise is to a class of persons designated as “heirs at law.” In the former case, the persons to take the estate were specifically named, as well as the quantity each should take. But in the case being considered, reference must be had to the statute to ascertain who are the “heirs at law” of the testator, and when that is done, the rule seems to be that the statute also determines the quantity each heir shall take,—as, for instance, in Richards v. Miller, supra, the devise was to the “heirs at law” of the testatrix, and by the statute it was ascertained her husband was one of her heirs at law, and by the same statute he took one-half of 'the estate, to the exclusion of the collateral heirs, as in case of intestacy, and it was so decreed.

The decree of the circuit court will be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Decree reversed.


source: Caselaw Access Project

author: Mr. Justice Dickey

license: Public Domain

text:
    William H. Herron v. Samuel L. Gill.

      Filed at Ottawa September 27, 1884.

    1. Landlord and tenant—extent of landlord’s lien. A lien is given by the statute to a landlord upon crops growing and grown upon demised premises in any year, for the rent that shall accrue during such year; but no specific lien is created or given as to any other property of the tenant.
    2. Same—statute of Anne, giving lien, not in force in this State. The statute of 8th Anne, C. 14, giving a landlord a lien on the goods and chattels of his tenant, generally, is not in force in this State, being of a date later than the fourth year of James I. If ever in force here as a part of the laws of Virginia, it has been repealed by implication, or superseded by subsequent acts of our legislature intended as revisions of the whole subject.
    3. Same—distress subject to prior liens. A distress warrant issued and placed in the hands of a sheriff after his receipt and levy of executions upon the goods and chattels of the tenant, not crops grown or growing upon the demised premises, does not take precedence of the executions, and a levy of the distress warrant will be subject to the prior liens of the executions.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the County Court of Peoria county; the Hon. L. W. James, Judge, presiding.
    This was a motion by William A. Herron, for a rule on Samuel L. Gill, late sheriff of Peoria county, to pay appellant the sum due him for rent from Marvin A. Breed, out of the proceeds of assets of said Breed in his (Gill’s) hands, as sheriff, for distribution to execution creditors of Breed. The motion was overruled, and Herron appealed to the Appellate Court for the Second District, where the judgment of the county court was affirmed, and the case comes to this court on Herron’s further appeal.
    "The stipulation relating to the facts, filed with the motion, shows that Breed was for many years a tenant of Herron, doing a general merchandise business, and owning a stock of goods, with which he occupied a store-room of Herron. On July 14, 1882, there was due Herron, for rent, $1364.83, and on that day Herron issued a distress warrant, directed to said Gill, and delivered the' same to him, to execute, at thro’clock P. M., and Gill, as sheriff, returned that he had levied the same on the stock of goods belonging to Breed, in the said store. t On July 15, 1882, a copy of the distress warrant, with the indorsement thereon, was filed in the circuit court of Peoria county, and such proceedings were had that at the next succeeding term judgment was rendered against Breed-for said amount. On the 13th of July, (the day prior to the issue and levy of the distress warrant,) judgments by confession were obtained in the county court of Peoria county against Breed, in favor of the following parties: First National Bank of Peoria, two judgments,—one for $906.64, and one for $526.50; John C. Tates, for $328; Hattie A. Breed, for $1000; and Stevens & Lee, for $75,—on each of which judgments execution issued forthwith, and came to the hands of Gill, as sheriff, on the 13th of July, all before noon. On the following day, (July 14,) and before the issue and delivery of the distress warrant, judgments by confession were rendered in the county court against Breed, in favor of other parties, upon which executions were issued on the same day, and placed in the sheriff’s hands before the distress warrant, and were levied upon all the goods afterwards levied upon by the distress warrant. The sheriff, in pursuance of the levies under the executions, took possession of all of said goods, and still had possession thereof when the distress warrant came to his hands. Afterwards, by agreement of the execution creditors and Herron, the sheriff surrendered-the goods to the assignee of Breed, and an order was entered in the county court authorizing the assignee to sell the same at public or private sale, and hold the proceeds as custodian for the sheriff, and subject to the rights and priorities therein of each of said parties, and directing him to return to said sheriff enough of said proceeds to answer all said writs. The net proceeds of the goods were admitted to be insufficient to pay said executions and the claim for rent. The appellant, Herron, claims that he has a lien upon the goods for one year’s rent, and this is the real point presented by the record.
    Messrs. Jack & Moore, for the appellant:
    The lien of a landlord is prior to the lien of executions, although they be levied before a distress warrant issues. O'Hara v. Jones, 46 Ill. 288; Hadden v. Knickerbocker, 70 id. 678.
    The following authorities hold that the landlord had nó lien at common law before the adoption of the statute of Anne, but a mere right to distrain: Grant v. Whitwell, 9 Iowa, 156; Doane v. Garretson, 24 id. 351; Craddock v. Riddlesbarger, 2 Dana, 208; Ege v. Ege, 5 Watts, 139; Woodfall on Landlord and Tenant, 563.
    The force of the statute of Anne, here, has been recognized by this court in Hadden v. Knickerbocker, supra, in which this court cites Taylor on Landlord and Tenant, sec. 576; Martin v. Block, 7 Paige, 641; Coles v. Marquan, 2 Hill, 447.
    Whatever was common law in- Virginia in 1784, became the law in Illinois, and is such yet, except where it is.repugnant to our system of government, or where it has been changed by statute. Penny v. Little, 3 Scam. 301; Lavalle v. Strobel, 89 Ill. 380; Johnson v. McIntosh, 8 Wheat. 543.
    The statute of 8th Anne was part of the Virginia law in 1784. Byrd v. Cockle, 1 Wash. 232.
    The same act is referred to in later cases in Kentucky and Virginia as the “Virginia act of 1784,” still in force in Kentucky in 1815 and 1830, and therefore continuing in force in Virginia in 1784. Mitchell v. Franklin, 3 J. J. Marsh. 480; Ferguson v. Moore, 2 Wash. 54; Rector v. Gale, Hardin, 78.

      That law has not been changed by our legislation. Repeal by implication is not favored. Tyson v. Postlewaite, 13 Ill. 734; Boon v. Juliet, 1 Scam. 258.
    The statute of Anne, or a copy thereof, is in force in the States in which the following cases were decided, by statutes passed since the revolution, showing that, as a matter of policy, its propriety is generally recognized: Central Bank v. Peterson, 24 N. J. 568; Russell v. Doty, 4 Cow. 578; City of New Orleans v. Vaught, 12 La. Ann. 339; Doane v. Garretson, 24 Iowa, 351; Denham v. Harris, 13 Ala. 465; Forman v. Proctor, 9 B. Mon. 124.
    The same law is held to be in force in Pennsylvania and South Carolina, by virtue of their colonial statutes adopting the statute of Anne. Mitchell v. Stewart, 13 S. & R. 297; Watson v. Hudson, 3 Brev. 60.
    Messrs. Stevens, Lee & Horton, for the appellee:
    The ordinance of 1787 made such provision for the government and laws of the territory, as to prevent further recognition of the statutes of Virginia previously in force there. Penny v. Little, 3 Scam. 301.
    The statute of 8th Anne, C. 14, being of a date later than the fourth year of James I, and its provisions being in force in Virginia only by virtue of express enactment by the colonial legislature, was a part of its statutory law, and hence was not continued in the territory. 1 Kent’s Com. 473, note a; United States v. Mundel, 6 Call, 262; Commonwealth v. Knowlton, 2 Mass. 534; Sackett v. Sackett, 8 Pick. 317; People v. Folsom, 5 Cal. 374; Penny v. Little, 3 Scam. 301; Fisher V. Deering, 60 Ill. 114.
    If the statute of 8th Anne, C. 14, was ever in force in this State, it was repealed or superseded by the act approved February 23, 1819, that being intended as a revision of the whole matter, and in many respects, particularly in the section on which plaintiff bases his right, is repugnant to the former. Andrew v. People, 75 Ill. 605; Culver v. Third Nat. Bank, 64 id. 528; Board of Trustees v. Chicago, 14 id. 334; Bartlett v. King, 12 Mass. 537; Mason v. Waite, 1 Pick. 452; Colley v. Merrill, 6 Maine, 42; Commonwealth v. Kelliher, 12 Allen, 480; Curtis v. Gill, 34 Conn. 49; Wakefield v. Phelps, 37 N. H. 295; Farr v. Brackett, 30 Vt. 294.
    The language of our decisions clearly shows that the courts of Illinois will allow the landlord no greater right than he had at common law, except in case of growing crops. Hadden v. Knickerbocker, 70 Ill. 677; Prettyman v. Unland, 77 id. 211; Eames v. Mayo, 6 Bradw. 339; Hunter v. Whitfield, 89 Ill. 229.
    At common law an execution levied on goods of the tenant, even when rent was due, took precedence of a distress warrant subsequently issued, and the officer had a reasonable time in which to remove them. Cooley’s Blackstone, book 3, page 7, note 7; Pierce v. Scott, 4 W. & S. 344; Hamilton v. Reedy, 3 McCord, 38.
   Mr. Justice Dickey

delivered the opinion of the Court:

A lien is given by the statute to a landlord upon crops growing or grown upon demised premises in any year, for the rent that shall accrue during such year, (Rev. Stat. 1874, chap. 80, sec. 31,) but no specific lien is created or given as to any other property of the tenant. (Hadden et al. v. Knickerbocker, 70 Ill. 677.) At common law, before the adoption of the statute of 8th Anne, G. 14, the landlord had no lien of any kind, but only a right to distrain. Grant v. Whitwell, 9 Iowa, 156; Doane v. Garretson, 24 id. 351; Craddock v. Riddlesbarger, 2 Dana, 208; Eye v. Eye, 5 Watts, 139.

This court has held that when personal property has been sold by the tenant in payment of a preexisting debt, in good faith, and the purchaser has removed the same from the demised premises, such property is not liable to distress for ¡vent, either at common law or by any provision of our statute, even though the purchaser knew there was rent due. Hadden et al. v. Knickerbocker, supra. See, also, Martin v. Black, 9 Paige, 641; Coles v. Marquan, 2 Hill, 447; Hastings v. Belknap, 1 Denio, 190.

At common law, an execution levied on goods of the tenant, even where rent was due, took precedence of a distress warrant subsequently issued, and the officer had a reasonable time in which to remove them. 3 Cooley’s Black. 7; Pierce v. Scott, 4 W. & S. 344; Hamilton v. Reedy, 3 McCord, 38.

The .statute of Anne, giving a landlord such a lien, is not in force in this State, being .of a date later than the fourth year of James I. If ever in force here as a part of the laws of "Virginia, it has been repealed by implication, or superseded by subsequent acts of our legislature intended as revisions of the whole subject; and the present statute, by giving the landlord a lien only upon crops growing or grown, by implication excludes the idea of a lien on any other property of the tenant. All the executions, here, came to the hands of the appellee, Gill, as sheriff of Peoria county, and were levied upon the goods of Breed, the tenant, before the distress warrant was issued and placed in his hands. When it came to his hands the lien of the various executions had attached, and any levy of the distress warrant was subject to such prior lien.

Perceiving no error, the judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    Matthew Laflin v. Frederick A. Howe.

      Filed at Ottawa January 22, 1885.

    1. Action—for money had and received—when it will lie. Indebitatus assumpsit for money had and received, is an equitable action, and lies where one party has obtained money which in equity and good conscience he ought not to be permitted to retain.
    2. A person purchased by written contract certain city lots, at a certain price per front foot, and at the same time bought of the vendor the buildings on the property claimed to be owned by him, their value and price to be afterward fixed by appraisement, which was done, and the purchaser paid for the whole, and received a deed for the lots. It turned out that one of the buildings, for which $1000 had been paid, did not belong to the vendor, so that no title passed as to it. It was held, that the purchaser could recover the price paid by him for such building, in an action for money had and received.
    3. Merger of contract—as to the merger of 'an original contract in an instrument made in furtherance of its execution—as, in case of a contract of sale of land, and subsequent conveyance. Where a party, after the execution of a contract for the sale of real estate, makes and delivers a conveyance, in pursuance of the agreement, embracing the entire subject matter thereof, the original contract is extinguished, or merged in the conveyance, and no action will lie on such' original contract against the vendor; but when the contract is not only for the sale and conveyance of the land at a given price, but also for the sale of buildings thereon, the price of which is left open for future adjustment'by appraisement, a conveyance of the real estate-will not operate as a merger or extinguishment of the contract as to the- buildings, and in an action to recover for the sum paid for one of the buildings to which the vendor had no title,.the original contract was admissible in evidence in favor of the purchaser.
    4. An executory agreement, verbal or written, for the performance of distinct and separate provisions, is not merged or superseded by a subsequent deed in execution of a part, only, of such provisions. In such case the prior contract is superseded "only as to such of its provisions as are covered by the conveyance made pursuant to its terms, and remains in full force as to all other provisions.
    5. Divisibility of contract—as to its separate elements. Where a party executed a contract for the sale of lots at $400 per front foot, to be paid by a given time, which was expressed not to cover or transfer any buildings upon the lots not owned by the vendor, and further provided that the purchaser was to pay the vendor the appraised value of all buildings owned by him situated on the premises, the mode of appraisal and the time of payment for the buildings not being fixed, it was held, that the contract embraced two separate and distinct subjects,—the one relating to the sale of the lots, and the other to a sale of the buildings on a part of the lots,—and that a performance as to one of the subjects did not supersede the agreement as to the other.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Mr. Van H. Higgins, and Mr. A. W. Green, for the appellant :
    Where money has been paid, under an executory contract, for a deed, and the deed has been made and executed and delivered in pursuance of the contract, an action for money had and received will not lie by the party paying the money, to recover it back. The contract is then an executed one. An action never lies for money had and received, when the plaintiff has received some consideration for his money. Howes v. Barker, 3 Johns. 506; 94 U. S. 278; 97 id. 319; Stuart v. Simpson, 1 Wend. 376.
    The delivery and acceptance of a deed cancels and extinguishes a prior executory agreement. Wilbeck v. Waine, 16 N. Y. 352; Jones v. Wood, 16 Pa. St. 25; Bull v. Willard, 9 Barb. 641; Thompson v. Christian, 28 Ala. 399; Williams v. Hathaway, 19 Pick. 387.
    Where a conveyance is made of land, in pursuance of an executory agreement, no action thereafter can be brought on the original agreement; and it is not even evidence. Wilson v. Burgess, 34 Ill. 499; Whitlock v. Denlinger, 59 id. 96; Laforge v. Matthews, 68 id. 328; Martin v. Chambers, 84 id. 579.
    The count for money had and received does not lie if the contract has been in part performed, and the plaintiff has derived some benefit, and by recovering the verdict the parties can not be in statu quo. Beed v. Blandford, 2 Y. & J. 278; Hunt v. Silk, 5 East, 249; Reed v. McGrew, 5 Ohio, 375; Insurance Co. v. Baker, 85 Ill. 410; Besley v. Dumas, 6 Bradw. 291; Smith v. Brittenham, 58 Ill. 197; Harzfeld v. Converse, 105 id. 534; Martin v. Chambers, 84 id. 579; Brooks v. Gates, 8 Bradw. 197.
    Messrs. Dexter, Herrick & Allen, for the appellee:
    This action does not seek to rescind any contract or part of a contract. When it was shown the building was not in fact owned by Laflin, it appeared it was not one of the buildings Howe had agreed to pay for.
    The action for money had and received is an equitable one, and lies wherever one party obtains money of the other which in equity and good conscience he ought not to retain. Barnes v. Johnson, 84 Ill. 95; Taylor v. Taylor, 20 id. 650.
    That an action for money had and received will lie to recover money obtained by misrepresentation, necessarily follows from the principle that the action will lie wherever a party has obtained money which in equity and good conscience he ought not to be permitted to retain. See 2 Chitty on Contracts, (11th Am. ed.) 936, sustaining this form of action as the appropriate remedy. See, also, 2 Wharton on Contracts, sec. 730, and authorities cited.
    But if there was no misrepresentation, it is'clear that the money was paid on a mistake of facts, which makes it inequitable that appellant should retain it, and it is well settled that under such circumstances the action will lie.
    “Where money, ” says Lord Mansfield, “is paid .under a mistake, which there is no ground to claim in conscience, the party may recover it back again.” Bize v. Dickison, 1 T. R. 285; 2 Wharton on Contracts, sec. 752, and eases cited; 2 Chitty on Contracts, (11th Am. ed.) 928, and cases cited. And the party may recover, even though the mistake of fact was negligently made.

      The right of action on this ground is directly sustained by Devine v. Edwards, 87 Ill. 177, and Stemple v. Thomas, 89 id. 146.
    Where there has been a total failure of consideration, an action lies for money had and received, to recover back any money paid. 2 Wharton on Contracts, secs. 742, 745; 2 Chitty on Contracts, 920.
    It is conceded by counsel that a deed merges a prior contract only so far as the deed is given in performance of it. Selden v. Williams, 9 Watts, 9; Wilbeck v. Waine, 16 N. Y. 532; Colvin v. Schell, 1 Grant, (Pa.) 226; Cox v. Henry, 32 Pa. St. 18.
    In Selden v. Williams, supra, the court say: “The deed is in many cases to be considered, not as a merger of the con-, tract, but as a part performance of it. ” See, also, Ludeke v. Sutherland, 87 Ill. 482; Bradshaw v. Couts, 102 id. 428.
    When a "consideration is divisible and the price can be apportioned, then, if a distinct, divisible portion of the consideration fails, that part paid for may be recovered back. 2 Wharton on Contracts, sec. 748; 2 Chitty on Contracts, 922; Hill v. Reeves, 11 Metc. 268; Cushing v. Rice, 46 Me. 302; Young v. Wakefield, 121 Mass. 91.
    A building built by a person on the land of another, under an agreement it shall remain his property, retains the character of personal property, by force of the agreement. Smith v. Benson, 3 Hill, 176; Taft v. Stetson, 117 Mass. 471; Haines v. Ament, 43 Mo. 298; Township v. Morehead, 43 Iowa, 468; Priestly v. Johnson, 67 Mo. 632; Brearly v. Cox, 4 Zabr. 287; Dame v. Dame, 38 N. H. 280; Weatherby v. Weatherby, 42 Miss. 732.
    The agreement may be' express or implied. Howard v. Fessenden, 14 Allen, 128; Morris v. French, 106 Mass. 326; Ewell on Fixtures, 71.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action of assumpsit, brought by Frederick A. Howe, against Matthew Laflin, to recover, as claimed in the declaration, for money paid and money had and received.

The facts which gave rise to the litigation are substantially as follows: On the first day of November, 1881, Howe purchased of Laflin certain specified lots in the city of Chicago. The contract under which the purchase was made was reduced to writing, and executed by the parties. Howe agreed to pay for the premises $400 per front foot,—$25,000 cash down, and the balance in five months, with seven per cent interest. At the time of the purchase there were buildings on the lots, some of which belonged to Howe, while others belonged to lessees who occupied under ground leases. As to the buildings, the contract provided: “Said first party

sells, however, subject to any existing leases on said above described property, and this conveyance shall not cover or transfer or convey any interest in the buildings on said lots which are not owned by said Laflin; and the said Laflin reserves any and all liens on the buildings not owned by him, and the debts secured by such liens, and reserves the right to collect such debts, and all rents in arrears on said property, up to the first of November, 1881. Said second party also agrees to pay'said first party the appraised value of all buildings owned by him situated in above described premises, the mode of obtaining such appraisal to be hereafter agreed upon by the parties hereto. ” Under this clause of the contract, the parties agreed that Howe, and Laflin’s son, George H. Laflin, should appraise the buildings owned by Laflin, and on December 14, 1881, the appraisement was made. Before they commenced, however, Laflin gave Howe a memorandum of the buildings owned by him, and those against which he had claims, as follows:

“Buildings owned by Mr. Laflin stand us in—
1208, Poppe building, - $1238.65
F. C. Vierling & Co., M. L., $800, - 2016.36
1224, Frazer building, - 990.36
1226 to 1230, Canuo building, - - 889.40
$6034.77
“Have claims against—
1210, Mrs. McLain, - ‘ - - - 355.56
1212-1214, Charles Van Cleave, - - 628.00
$983.56
“1220 Oppenheimer owns, and has lease to May 1,1884.”

All the buildings were appraised at $5400. The one marked “Frazer building, ” was appraised at $1000. After the appraisement, Laflin urged Howe to purchase two claims which he had .in certain buildings, which he finally consented to do. He then paid Laflin $25,000, and the following indorsement was made on the contract:

“December 14, 1881.
“¡Received this day of F. A. Howe, the sum of $25,000, the amount of the first payment called for in the foregoing contract.
“The parties to said contract have this day agreed upon the valuation of the buildings situated upon said premises, at $5400, and also the amount of the liens and claims (referred to in said contract) of said Laflin against buildings upon and occupants of any part of said premises, for back rents, taxes, etc., (which liens, as claimed, are to be assigned to said Howe,) at the sum of $983.56,—in all, the sum of $6383.56.
“The payment now made of $25,000 covers the last named sum of $6383.56, and the balance of $18,616.44 is to apply on the purchase money of the lots described in said contract.
Matthew Laflin,
Frederick A. Howe.”

Subsequently another payment was made, and indorsed on the contract:

“Received, Chicago, April 3, 1882, of F. A. Howe, four thousand and seven hundred and fifty and twenty-two one-hundredths dollars on within contract, leaving balance of sixty thousand dollars unpaid, which, by mutual agreement, is extended until August 1, 1882, with interest at seven percent.
Matthew Laflin,
(By Geo. H. Laflin.)
Frederick A. Howe.”

On August 2, 1882, the last payment was made, and indorsed on the contract as follows:

“Chicago, August 2, 1882.
“Received of'F. A. Howe the principal sum of sixty thousand dollars aboved referred to; also, the sum of fourteen hundred and eleven and seventy-five one-hundredths dollars interest.
Matthew Laflin,
(Per Geo. H. Laflin.)

When the last payment was made, Laflin executed and delivered to Howe a general warranty deed, conveying to him the lots named in the contract. This deed contained no reservation or exception in reference to buildings or anything else, but it was absolute on its face. After receiving the deed, Howe learned that Laflin never owned the Frazer building—that it was* owned by another party, who held a ground lease of the lot upon which the building had been erected. After learning this fact, Howe demanded of Laflin the amount of money ($1000) which he had paid for the building, and upon Laflin’s refusal to pay, this action was brought to recover the money.

After the plaintiff had introduced all his evidence and rested his case, the defendant moved the court to instruct the jury for the defendant, on the ground that no case had been made under the pleadings. The court overruled the motion, and defendant excepted to the decision of the court. This motion was predicated upon the ground that where money has been paid, under an executory agreement, for a deed, and a deed has been executed and delivered in pursuance of the agreement, an action for money had and received will not lie by the party paying the money, to recover it back. The cases mainly relied upon by the defendant in support of his position, are, Howes v. Barker, 3 Johns. 506, and Williams v. Hathaway, 19 Pick. 387. We do not controvert or question the law as declared in the two cases cited. In Hoioes v. Barker a contract had been executed by the parties, by the term's of which defendant sold plaintiff, for nine pounds per acre, a certain tract of land. The money was to be paid and a deed made on the first of the following April. At the time specified the deed was made, and the premises were therein described as containing two hundred and seventy-five acres. The purchase money—nine pounds per acre—was paid. Afterwards, in measurement, the tract of land was found to contain only two hundred and sixty-three acres, and the action was brought to recover back the money paid for the twelve acres. The court held that the contract between the parties was executory, and having been executed and consummated by the deed subsequently executed and delivered, the original agreement became void, and of no further effect. Williams v. Hathaway was a similar case. The action was brought to recover for money overpaid in the purchase of a tract of land. The land, when sold, was represented to contain fifteen acres, and was sold at a certain price per acre. A deed was subsequently given, in which the land was conveyed for $75.75, but the land, in measurement, did not hold out. The plaintiff was, however, defeated, the court holding that all prior statements and proposals were merged in the deed.

It will be observed that in both the cases cited the contracts preceding the deeds contained no subject whatever not incorporated in the deeds,—in other words, the deed made in pursuance of the contract embraced and contained all the subjects contained in the executory contract, and when such is the case, the prior agreement merges in the deed, and can no longer be resorted to for the purpose of evidence between the parties. These cases were both cited and approved in Wilbeck v. Waine, 16 N. Y. 532, but it was there expressly held that an executory agreement, verbal or written, for the performance of distinct and separate provisions, is not merged or superseded by a subsequent deed in execution of a part, only, of such provisions.' In the decision of the case, Denio, J., said: “Where one contracts, for a specified consideration, to convey land at a future time, and to do, at a still later period, other acts for the benefit of the other contracting party, or where the contract is for a series of acts, to be performed at successive periods, it is plain that the prior contract is superseded only as to such of its provisions as are covered by the conveyance made pursuant to its terms. The agreement remains in full force as to all other provisions.” In Ludeke v. Sutherland, 87 Ill. 481, the same rule was announced.

The contract in the case under consideration embraced two subjects which may be regarded as separate and distinct,— one relating to the sale of the lots, while the other had reference to a sale of such buildings on a part of the lots as were owned by the defendant. The price to be paid for the land was agreed upon and determined, and specified in the contract, while the price to be paid for the buildings was left to be determined in the future by the parties, by appraisement. The time when the land itself should be paid for was specified in the contract, while as to the buildings, no time was agreed upon by the parties. Suppose the appraisement of the buildings had not been made when the deed conveying the premises was executed and delivered, would that instrument cut defendant off from any recovery for the buildings ? Such will not be pretended, and yet such would be the effect if the entire contract merged upon the execution of the deed.

We think it is plain that the only reasonable construction to be placed on the contract is, that the sale of the buildings on the lots was a separate and distinct matter from the sale of the land,—so understood, so agreed upon and so treated by the two contracting parties,—and the execution and delivery of the deed merged onlyt that part of the contract relating to the sale of the land, leaving in full force and effect that portion of the contract relating to the sale of the buildings; and on the trial, while this action was not based upon that agreement, the plaintiff had a right to use it in evidence upon any branch of his case whereon it had any bearing. Selden v. Williams, 9 Wall. 9, Colvin v. Schell, 1 Grant, (Pa.) 226, and Cox v. Henry, 32 Pa. 18, will, be found to sustain the views here expressed. The fact that the consideration named in the deed did not include the money paid for the buildings, but only the amount paid for the lots, is another strong circumstance tending to establish that the lots and the buildings were regarded by the parties as separate and distinct matters, and that the execution of the deed was a mere performance of that portion of the contract relating to the sale of the lots.

If we are correct in our view of the law on this question, it is plain that Howe was entitled to recover the money paid for the Frazer building. The finding of the jury, and the judgment of the Appellate Court approving of that finding, are conclusive on the question of fact that defendant sold the building to plaintiff when it belonged to another party, and that no title passed. As to the form of action, we think an action for money had and received quite appropriate. It is an equitable action, and lies where one party has obtained money which in equity and good conscience he ought not to be permitted to retain. (1 Chitty’s Pleadings, 355; Barnes v. Johnson, 84 Ill. 95.) Here the money was paid to the defendant on the representation and in the belief that he owned the Frazer building, and when it turned out that he was not the owner, he held in his hands money which in equity and good conscience he ought not to retain.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Walker

text:
    John H. Tedens et al. v. J. B. Schumers.

      Filed at Ottawa November 17, 1884.

      1. Evidence—in support of general character of witness for truth and veracity—whether admissible. A party can not call and examine witnesses to support the general character of another witness, or himself, as a witness, for truth and veracity, until the character of the witness .thus sought to be supported has been directly assailed. Mere contradictions or different versions by witnesses do not justify the application of the rule that evidence may be given favorable to a witness’ character for truth. It is only when witnesses are called who testify that his general character for truth is bad, that witnesses may be introduced in support of his general character.
    2. Same—due bill in possession of the maker—degree of evidence to overcome presumption of payment. The fact that a due bill is found in the hands of the maker, is prima facie evidence of its payment, and the payee suing on the same is required to overcome the presumption by a preponderance of evidence, before he can recover. In a suit to recover an alleged indebtedness, the plaintiff must prove the defendant owes him, by a preponderance of evidence.
    3. And if the plaintiff shows, by a preponderance of evidence, that the defendant owes him on a due bill, notwithstanding its surrender to the latter, then the defendant must overcome that evidence by a preponderance, to defeat a recovery.
    4. So it is error to refuse an instruction, in a suit to recover a debt which is denied by the pleadings, that the plaintiff must make and establish his ease by a preponderance of the evidence, and unless lie has done so the jury should find for the defendant.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.
    Mr. Edward F. Comstock, and Mr. J. Edwards Fay, for the appellants:
    As a general rule it is not competent to give evidence of the general character of a witness for truth and veracity, unless an attempt has been made to impeach him. A mere contradiction in the testimony of witnesses does not necessarily involve their moral character, and does not, alone, authorize the admission of evidence in support of their general reputation for truth. Verner v. Tucker, 30 Md. 456; Russell v. Coffin, 8 Pick. 143; People v. Halse, 3 Hill, 309; Harks v. People, 5 Denio, 103; Railroad Co. v. Williams, 54 Ala. 168; Werts v. May, 21 Pa. St. 274; Bruddie v. Brownfield, 9 Watts, 124; Rogers v. Moore, 10 Conn. 13; Johnson v. State, 21 Ind. 329; People v. Gay, 7 N. Y. 378; People v. Rector, 19 Wend. 569; Haines v. People, 82 Ill. 430; Crose v. Rutledge, 81 id. 266; Brann v. Campbell, 86 Ind. 516; State v. Cooper, 71 Mo. 436; Stillwell v. Carpenter, 2 Abb. 238; Moody v. Pell, id. 274; Kitteringhamv. Dance, 58 Iowa, 632; Greenleaf on Evidence, (14th ed.) sec. 55.
    The court erred in the giving of the instruction asked by the appellee, and in refusing those asked by the appellants.
    Mr. W. C. Minard, and Mr. W. H. Skelly, for the appellee:
    After the defendants had assailed the character of the plaintiff by an effort to prove that he was a thief, and attempted to impeach him by proof that he had made contradictory statements out of court to his testimony, the admission of evidence of his good character was proper. Craig v. Rohrer, 63 Ill. 335.
    Whenever the character of a witness for truth is attacked in any way, it is competent for the party calling him to give general evidence in support of his good character. Paine v. Tilden, 20 Vt. 554; Carter v. People, 2 Hill, 317; People v. Ah Fat, 48 Cal. 61; People v. Amanagus, 50 id. 233.
    But even if such evidence was improper, its admission was harmless.
   Mr. Justice Walker

delivered the opinion of the Court:

This was an action of assumpsit, brought by Schumers, in the circuit court of Cook county, against J. H. Tedens and J. Thormahlm. There was filed the general issue, under which a trial was had, resulting in a verdict and judgment against defendants for $1379. The verdict, as returned by the jury, was for $2758, but to avoid a new trial plaintiff remitted one-half, and took judgment for the balance. On an appeal to the Appellate Court for the First District the-judgment was affirmed, and defendants bring the record to this court, and ask a reversal.

It appears from the evidence that appellants owned a general store, which was kept by them in Lemont, in Cook county. Appellee, after being in their employment for thirteen or fourteen years, commenced business on his own account, but it proving unsuccessful, he soon abandoned it, and returned to the employment of appellants, and he so remained until on the 1st of June, 1879, when, on a settlement, they were found to be indebted to him in the sum of $2100, to evidence which they drew and gave to him a due bill, drawing eight per cent interest. • Appellee continued in their employment until in March, 1880, when defendants claimed to have discovered that appellee was secretly removing goods from the store without either paying for or charging them to himself. They also claimed that he confessed that he had so acted for near four years past. They claimed the amount so taken aggregated $4000, and, after several interviews, they claim that it was arranged that to satisfy their demand he surrendered the due bill, and they cancelled it, and have since held it. Appellee insists that he did not surrender the due bill as a satisfaction of such-claim on the part of appellants, but that it was agreed that they should hold it. until they could examine and ascertain the amount he owed them for goods thus taken, credit the amount on the due bill, and pay him the balance, if any, which they have never done.

On the trial, appellee testified to his theory of the case. Appellants, on the stand, contradicted him, and testified to their version of the matter. In some portions of their evidence they are corroborated by other witnesses. Appellee, to support his testimony, called a number of witnesses to prove his general character for truth and veracity, to which appellants objected, but the court admitted the evidence, and they excepted, and urge its admission as error. Appellee claims this evidence was admissible, on the ground that his character for truth and veracity was attacked by being contradicted by other witnesses. This is, we think, a misconception of the rule. As we understand the rules of evidence, a witness can not call witnesses to support his general character for truth and veracity until it is assailed. Mere contradictions, or different versions by witnesses, do not justify the application of the’rule that he may call witnesses to support his character for truth. When witnesses are called who say his general character is bad, then he may call witnesses in support of his general character. Before he can do so his general character must be attacked. If the practice sanctioned the calling of witnesses to prove general character whenever a witness is contradicted, it would render trials interminable. The greater portion of the time of courts would be liable to be engaged in the attack and support of the characters of witnesses. If permitted, each of the contradicting witnesses would have the same right, and not only so, but all of the supporting witnesses on each side contradicting each other would be entitled to the same privilege. It is thus seen that the rule must he limited to cases where witnesses are called to impeach the general character of a witness, otherwise it, instead of reaching truth by the verdict, would tend to stifle it under a large number of side issues, calculated to obscure and not to elucidate them. It may be that some courts have made exceptions to the rule, but we are not inclined to adopt them as the rule. Many cases referred to were where the witness was charged with crime by other witnesses, when it was held he might call witnesses to support his character for honesty.

It has never been the practice in this State to permit a witness, in support of his character for veracity, to prove that he has been honest in his dealings, or moral and free from vice. It does not follow that because a man deals • honestly, and is otherwise moral, he is therefore truthful. Nor is it believed that because a man is not fair in his dealings, or is immoral, he is therefore untruthful. We are aware that some courts have reached and "announced conclusions that immorality and unfair dealing establish a want of credibility for truth, and that morality and fairness in his dealings establish his character for veracity. We presume no one would contend that evidence of general good character for truth and veracity would be admissible to disprove a charge of murder, robbery or larceny. In the charge of murder, proof that the accused had borne a good character as a peaceable, orderly and quiet citizen, in a doubtful case might have a strong tendency to exculpate the accused from the charge, and such evidence is admissible in such cases. So in eases on the charge of robbery or larceny, evidence of general character for honesty and uprightness is admissible in doubtful cases, but not good character for truth and veracity, or even other traits of character. This evidence was only calculated to confuse the issue and mislead the jury in their finding, and should not have been introduced.

Complaint is made of the second of the instructions given for appellee. The instruction is not accurate. The fact that the due bill was in the hands of appellants, afforded strong prima facie evidence that it had been paid, and appellee was required, by a preponderance of evidence, to overcome that presumption before he could recover. The jury should have been so informed, but neither this nor any other instruction. announces that proposition. Having sued, appellee was required to prove that appellants owed him, by a preponderance of evidence, to recover. The burthen of proof was on him. Until he established that fact appellants were not required to prove anything, by a preponderance or otherwise. But if appellee’s evidence preponderated to prove that appellants were indebted to him, notwithstanding he had surrendered the due bill and it was in the possession of appellants, then they were required to overcome that evidence by a preponderance, to defeat a recovery. The jury should have been, but were not, so instructed. This instruction should have been so limited. As given, it was calculated to mislead, and was erroneous-.

Appellants complain that the court erred in refusing to give their instruction No. 4, of those asked by them, but refused. It is this:

“The court instructs the jury that it is a requirement of the law that the plaintiff make and establish his case by a preponderance of the evidence, and unless he has done so in this case, then your verdict should be for the defendants, and against the plaintiff.”

There is no proposition of law that is more elementary, better recognized, and more uniformly applied, than that a-plaintiff can never recover unless a preponderance of the evidence establishes the liability of the defendant. The rule is one of the maxims of the law. We are not aware that it has ever been questioned, doubted, limited or qualified. It lies at the very foundation of the administration of justice, and is indispensable to its attainment. Appellee was plaintiff. He had averred that appellants were indebted to him, and he. was required to prove the averment by at least a preponderance of evidence before he could recover. The court erred in refusing to give this instruction.

For the errors indicated, the judgment of the Appellate Court is reversed, and the cause remanded.

Judgment reversed.

Scholfield, Ch. J., and Dickey and Mulkey, JJ., dissenting.


text:
    Asahel Gage v. John H. Nichols.

      Filed at Ottawa September 27, 1884.

    Cloud upon title—setting aside tax sale—upon terms. The maxim, he that seeks equity must do equity, requires that a party seeking to have a tax sale set aside as a cloud upon his title to real estate, must offer to reimburse the purchaser the amount bid by him for the property at the tax sale, with six per cent interest; and it is error to set aside a tax sale for mere irregularities not affecting the substantial justice of the tax, without requiring such payment.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    This is a bill in equity, originally brought by George Rose, against Asahel Gage, to set aside a sale for taxes of lots 1 to 23, in block 1, and lots 1 to 43, in block 2, of Nichols’ subdivision of - block 6, of Lee’s subdivision of the south-west quarter of section 12, town 39, range 13, in Cook county, and enjoin said Gage from taking a tax deed to said lots on such sale. On September 18, 1873, these lots were sold for the State and other taxes of 1872, for $623.76, to appellant. On September 17, 1875, one day before the time, of redemption from the sale had expired, this bill was filed. John H. Nichols, the present appellee, was subsequently substituted as complainant in the cause, he having succeeded to the claim of Bose, and he filed an amended and a supplemental bill, by leave of court. The bill sought to set aside the tax title, first, on the ground of a burnt records proceeding; and second, because of an irregularity concerning some of the items entering into the taxes for which the property was sold. The appellee had not paid any of these taxes, and they were unpaid at the time of the sale. The answer denied both charges or grounds of relief. On the hearing the court decreed that the tax sale be set aside; that appellant be enjoined from receiving a deed;-that the costs be taxed against appellant, and that execution issue therefor. The relief was granted without requiring the appellee to refund the taxes, and not upon any terms whatever. In the bill there was an offer to pay the amount justly due as taxes on the premises, and legal interest thereon from the day of the sale, and all legal and just costs, expenses and charges, when ascertained.
    Mr. Augustus N. Gage, for the appellant.
    Mr. Robert L. Lyons, and Mr. E. J. Whitehead, for the appellee.
   Mr. Justice Dickey

delivered the opinion of the Court:

This was a suit in chancery to set aside a tax sale of certain lots, made September 18,1873, for the taxes of 1872, as a cloud upon the complainant’s title. The right to relief is predicated upon the fact that the assessor of the town did not return his assessment book until August 30, 1872, while the law required its return on or before July 1,1872, and the town tax was objected to as not having been levied by the proper persons, and because it was not certified to the county clerk in the time required or in the manner prescribed by law. The objections urged do not go to the substantial justice of the taxes, but are aimed at certain alleged irregularities.

One point raised is all that need be considered to show fatal error in the decree. The court clearly erred in granting the relief by setting aside the sale without requiring the complainant to pay the defendant the money paid by him in his purchase, and interest thereon. The maxim, he that seeks equity must do equity, requires that a party seeking to have a tax sale set aside as a cloud upon his title to real estate, must offer to reimburse the purchaser the amount paid by him for the lots at the tax sale. This is well settled law in this State. (Farwell et al. v. Harding, 96 Ill. 32; Phelps et al. v. Harding, 87 id. 442; Barnett v. Cline, 60 id. 205.) In recognition of this rule the complainant in his bill stated: “Tour orator is now, and always has been, ready and willing to pay the amount due as taxes on said premises, and hereby offers to pay the same, and to do equity in the premises.” With this offer it seems strange that the relief was granted unconditionally, and without requiring the complainant to pay the defendant the amount of taxes and costs he paid for the property, with six per cent interest. The court should not have given the complainant more than he asked.

For this error the judgment of the Appellate Court is reversed, and the cause remanded to that court for further proceedings.

Judgment reversed.


author: Mr. Chief Justice Scholfield

text:
    The People, for use of Christian County, v. Henry Davis.

      Filed at Springfield September 27, 1884.

    1. Action—remedy to collect tax by action of debt. The right to recover a tax upon moneys and credits by an action of debt, depends upon the fact whether a valid tax is delinquent, and not upon the question of the regularity of the steps to enforce its payment through forfeiture and sale of property. The remedy in debt is cumulative, and is only barred by a prior judgment when it. is shown to have been satisfied.
    2. Pleading—of the declaration in suit to collect taxes. Whether property is taxable at a particular place is a question of law, and not of fact;, and the pleader seeking to charge one with liability, upon the ground his property is taxable at a particular place, must, therefore, state the facts from which such liability results, as a conclusion of law. An averment in a declaration that credits are liable to taxation at a certain place, is simply the statement of a legal conclusion.
    3. Taxation—moneys and credits—as to resident and non-resident owners. By the statute, moneys, credits, etc., and other personal property held, owned or controlled by persons residing in this State, are taxable. If the owner resides in this State, they are taxable at his place of residence. If he is a non-resident, and the moneys, credits, etc., and other personal property, are under the control of an agent or attorney, they shall be listed in the place where the agent or attorney is required to list his own moneys and credits and other personal property.
    4. Before a non-resident owner can be taxed in this State, it must be shown that his property is actually at the place where it is assessed; and it is not enough to show, merely, that an indebtedness to him, evidenced by a promissory note which may be in his hands, was negotiated through an agent residing at- that place. In order to the proper taxation of the moneys and credits of a non-resident at a particular place in this State, they must be under the control of an agent or attorney residing there, and such control must be an actual control at that place.
    Writ of Error to the Circuit Court of Christian county; the Hon. Jesse J. Phillips, Judge, presiding.

      This was an action of debt, for the recovery of delinquent taxes. The declaration contains two counts, which are as follows: :
    “The People of the State of Illinois, by John B. Jones, their attorney, and John Gr. Brennan, State’s attorney for said county, complain of Henry Davis, the defendant, of a plea of debt,—for that the defendant, on the first day of May, A. D. 1875, and afterward, was the owner of a large amount of personal property, consisting of moneys, moneys loaned and invested, notes, mortgages, bonds and credits,— which said personal property, moneys and credits were controlled by Henry D. Davis, as agent for said defendant; that at said time said Henry D. Davis resided in and had his office and place of business in school district No. 2, in the town of Taylorville, in the county of Christian, State of Illinois; that on, to-wit, the second day of May, A. D. 1875, the assessor of the township of Taylorville, in said county, applied to said Henry D. Davis, and requested him to make a statement of the personal property of said defendant controlled by said Henry D. Davis, as his agent, for the purpose of taxation, as provided by law; that said Henry D. Davis refused to make any list or statement of such personal property, and thereupon the said assessor ascertained the amount and value thereof, and assessed the same at the sum of $142,707; that said sum was the fair amount and value of said property ; and that for the year A. D. 1875 a personal property tax was levied against defendant, upon said assessment, to the aggregate amount of $2554.67, being $421.10 State tax due to the State of Illinois, the sum of $332.16 county tax due said Christian county as a county tax, and $63.69 as a county railroad tax, $50.45 town tax due the town of Taylorville, in said county, as a town tax, and $203.79 due said town as town railroad tax, and $1451.90 district school tax, • due school district No. 2, in township 13, north, range 2, west of the third principal meridian, in said town of Taylorville, and county aforesaid; that said State, county, county railroad, town, town railroad and district school tax were, by the county clerk of said county, duly extended upon the tax collector’s book of said town of Taylorville,- as the law requires; that said tax collector’s book, with the said taxes extended thereon, was duly delivered to the collector of said town for the year A. D. 1875, with a proper warrant thereto attached, as the law requires, commanding said collector to collect from defendant and the several other persons named on said book against whom taxes were levied and specified in the several columns opposite their names; that the said town collector, while he had said collection book in his hands, with said warrant thereto attached, duly demanded from said defendant the said taxes so levied and extended on said collector’s book against defendant; that said defendant failed and refused to pay the same; that said town collector used due diligence to collect the said taxes; that no personal property of defendant could at that time be found in said town, nor in said county, out of which said taxes could be made; that said town collector duly returned said taxes to the county collector, at the time he returned the said hook, as delinquent, with a written statement, under oath, that he had used due diligence to collect the same, and that no property could be found out of which to make said taxes; that defendant was then, and had been for a long time prior thereto, the owner in fee of the following described land situated in Christian county, Illinois, to-wit: the south-east quarter of section 20, in town 15, north, range 1, west of the third principal meridian; that in order to collect the said tax it became necessary to charge the same upon real property of defendant situated in said county; that the county collector of said county did select the above tract of land as the land of defendant, out of which to make the said taxes, and attached the said personal property tax to said land; that said county collector duly advertised said land, as delinquent, and advertised that he would apply for a judgment against said land at the June term of said county court, A. D. 1876, and that he would offer said land for sale on the 19th day of June, A. D. 1876, and designated the said tract in said advertisement as the tract against which said personal property tax was charged; that said county collector showed the fact that said personal property tax was charged against said land, in his list of delinquent lands filed for judgment at the June term, A. D. 1876, of said county court, as the law requires; that at said June term, A. D. 1876, of said county court, judgment was duly rendered against said land for said taxes and costs; that on the 19th day of June, 1876, said county collector offered said land for sale at public sale, in pursuance of such notice; that at said sale said collector received no bid for said land, and the said land was then and there forfeited to the State of Illinois; that defendant has never paid the said taxes, nor any part thereof, and plaintiff avers that the said personal property tax so attached to said land was, by the county clerk of said county, carried forward, with the interest thereon proided by law in case of back taxes, and extended on the collector’s -book in the town of Mosquito, where said land is situated, each year thereafter; that said collector’s book, with the taxes so extended thereon, has been duly delivered to the collector of said town of Mosquito each year since the said year 1876, with a proper warrant thereto attached, as required by law; that said defendant was not at any time a resident of said town of Mosquito, and had no personal property in said county during nor since the year 1876 out of which the said taxes could be made; that the said town collector, for each of said years since 1876, returned said taxes to the county collector, uncollected, with a statement in writing, under oath, that he had used due diligence, and that said taxes could not be collected; that the county collector of said county, for each.year since 1876, reported said taxes to the county court of said county as delinquent, and specified the same, as required by law, each year, on the delinquent list filed by him to obtain judgment against said land for said taxes, and that judgment was rendered against said land each year for said taxes by said county court; that said land was, after being duly advertised by the said county collector, offered for sale each year, and each year said land was forfeited to the State for want of bidders; and plaintiff avers that the county clerk of said county extended the said taxes forward, as back taxes, upon the collector’s book for said town of Mosquito, for the year A. D. 1879, containing the taxes of 1879, in separate columns, as required by law; that the total amount of said taxes, with the interest thereon, and taxes as provided by law, extended upon said book, was the sum of $3804.50; that said tax book, with said taxes for said year 1879, was duly delivered to the collector of said town of Mosquito, with a proper warrant thereto attached; that said collector returned said tax, uncollected, to the county collector of said county when he returned the said book, with a statement in writing, under oath, that he had used due diligence to .collect the said taxes, and that the same could not be collected; that the said county collector duly advertised said land for judgment, on the second Monday of June, A. D. 1880, in said county court, and advertised the same for sale on the 19th day of June, A. D. 1880; that said county collector placed said land on the delinquent list filed by him, as required by law, prior to the said second Monday of June, A. D. 1880, to obtain judgment against said land for said taxes; that judgment was duly rendered against said land by the said county court for the said sum of $3804.50, the amount of said taxes, interest and costs; that said land was by said county collector duly offered for sale, at public sale, on the 19th day of June, A. D. 1880, after due notice having been given, according to law; that at said sale said collector received no bid for said land, or any part thereof, and the said land was then and there forfeited to the State of Illinois; that defendant has never paid said taxes, nor any part thereof, and the said defendant was then and there requested to pay the said taxes by the town collector of said town of Taylor-ville, but the said defendant did not nor would not pay the said amount, nor any part thereof, but refused so to do, by means whereof the defendant became liable to pay the plaintiff, on request, the said amount of the said taxes, interest and costs, and being so liable, the defendant, in consideration thereof, then and there agreed to pay said amount to the plaintiff, on request.
    “And for that, whereas the defendant heretofore, to-wit, on the first day of May, A. D. 1875, was the owner of a large amount of moneys, credits, goods and chattels, situated and liable to taxation in the town of Taylorville, in the county of Christian, in the State of Illinois, and being so liable to taxation, the assessor of said town of Taylorville for the year 1875, did assess the said goods and chattels, moneys and credits of defendant at the sum of $142,707, and that for the year A. D. 1875 a personal property tax was levied against defendant, upon his said assessment, to the aggregate amount of $2554.67, (specifying the different kinds of taxes, and amounts;) that said taxes were, by the county clerk of said county, duly extended upon the tax collector’s book of said town of Taylorville, for the taxes due for the year A. D. 1875, in separate columns, as the law requires; that said collector’s book, with warrant attached, was duly delivered to the collector of said town; that said collector then demanded payment from the defendant, of said taxes; that defendant refused to pay same; that said collector used due diligence to collect said taxes; that no personal property of defendant could then, or since then, be found in said town of Taylorville, nor in said county, out of which said taxes could be made; that defendant was then and there the owner in fee of real estate situated in the town of Mosquito, in said county, to-wit: the southeast quarter of section 20, in town 15, north, range 1, west of the third principal meridian; that said county collector, in order to collect the said taxes, did charge the same against said real estate; that said county collector for the year 1875 returned said personal property tax as delinquent; that defendant has never paid said tax, nor any part thereof; that for the years A. D. 1876, 1877, 1878, 1879 and 1880, respectively, the county clerk of said county did extend the said taxes in separate columns, with interest computed thereon, as back taxes, as required by the statute, against said real estate of defendant, upon the tax book of said town of Mosquito; that judgment was, for each of said last mentioned years, rendered by the county court against said land for said taxes; that for the year 1880 the said tax and interest thereon, so extended, amounted to $3804.50; that defendant refused to pay said taxes, interest and costs, or any part thereof, by means whereof defendant became liable to pay plaintiff, on request, the said amount of taxes, interest and costs, and in consideration thereof then and there agreed to pay the same to plaintiff, on request, yet, though requested, the defendant has not paid to plaintiff the amount of said taxes, interest and costs, or any part thereof, together amounting to $3804.50, but refuses so to do, to the damage of plaintiff of the sum of $3804.50; and therefore they bring suit, etc.”
    The defendant demurred, generally, to each count of the declaration, and the court sustained the demurrer, and rendered judgment therein for the defendant. This writ of error is prosecuted to reverse that judgment.
    Mr. John G. Drennan, State’s Attorney, and Mr. W. M. Provine, for the plaintiffs in error:
    The judgment and forfeiture in the county court are not a bar. “Said additions and sales shall be continued from year to year until the taxes on said property are paid, by sale or otherwise.” Rev. Stat. sec. 229; People v. Smith, 94 Ill. 228.

      The defendant can not, by paying the tax assessed on the land, avoid its liability to sale or forfeiture'for the personal property tax charged against it. Biggins v. People, 106 Ill. 280.
    The judgment in the county court was in rem against the land, there being no defence, and is not conclusive against the defendant, and no bar to this suit. Belleville Nail Co. v. People, 98 Ill. 405; Gage v. Bailey, 102 id. 14; Graceland Cemetery Co. v. People, 92 id. 622.
    The forfeiture is not a satisfaction of the tax, and hence no bar. Action of debt is a cumulative remedy. People v. Stahl, 101 Ill. 349.
    The forfeiture, even if strictly legal in every particular, would not be a satisfaction of the debt, nor bar the prosecution of this action. People v. Smith, 94 Ill. 228; Belleville Nail Co. v. People, 98 id. 405.
    The second count avers all necessary facts to establish defendant’s liability to pay said personal property tax, and is authorized by section 230, as amended July 1, 1881. This act applies to taxes levied prior, as well as subsequent, to its passage. It is competent for the legislature to change the remedy, if thereby the right is not affected. The purpose of the law is not to release men from their liability to pay taxes, but to render the assessment and collection more just, certain and convenient. Hosmer v. People, 96 Ill. 61; Biggins v. People, 106 id. 280,
    Mr. Anthony Thornton, for the defendant in error :
    The declaration is defective in not making a general reference to the statute, and in not concluding against the form of the same. 1 Chitty’s .Pleading, (7th Am. ed.) 405. See, also, Winkleman v. People, 95 Ill. 417.
    The first count is radically defective in not averring either that defendant resided at the place of assessment, or that the property was there.

      Statutes imposing heavy penalties are to be strictly pursued. People v. Peacock, 98 Ill. 176; Cooley on Taxation, 317.
    This case is not, as supposed by counsel, for the purpose of enforcing a personal liability. It is a proceeding to enforce a forfeiture under special provisions of the statute. It is not an action of debt, arising out of .a common law liability to pay taxes, according to earlier decisions of this court. Ryan v. Gallatin County, 14 Ill. 83; Dunlap v. Gallatin County, 15 id. 9.
    The averments in the declaration would not justify an action of debt at common law. The omission to aver the residence of the defendant and facts which would create a legal liability, forbids such action. Taxes are not debts, in the ordinary sense of that term. They are not contracts between the State and the citizen. Cooley on Taxation, 13.
    Back taxes and forfeitures can only be extended in conjunction with the taxes of the current year. Stampofski v. Stanley, 109 Ill. 210.
    In an action under this statute, common certainty requires that the declaration should state the year for which the supposed tax was levied, and should also state the defendant was the owner of the property on the first day of May in that year. Biggins v. People, 96 Ill. 385.
    The fact of ownership at a particular time is an essential averment. It should be positive, and not left to inference. Even when a court of general jurisdiction exercises a special statutory power, it stands upon the same ground as courts of limited jurisdiction. In such case, nothing shall be intended to be within the jurisdiction but that which is expressly averred. Haywood v. Collins, 60 Ill. 333.
   Mr. Chief Justice Scholfield

delivered the opinion of the Court:

We see no cause to disturb this judgment. By section 1, chapter 120, of the Revised Statutes of 1874, entitled “Revenue,” moneys, credits, etc., and other personal property held, owned or controlled by persons residing in this State, are taxable. If the owner resides in the State, they are taxable at the residence of the owner. (Ibid. sec. 7.) If the owner is a non-resident, and the moneys, credits, etc., and other personal property, are under the control of an agent or attorney, they shall be listed in the same place where such agent or attorney is required to list his own moneys and credits, and other personal property. (Secs. 6, 19.) But where the owner is a non-resident, before he can be taxed here it must be shown that his property is actually at the place where it is assessed; and it is not enough to show, merely, that an indebtedness to him, evidenced by a promissory note which may be in his hands, was negotiated through an agent at that place. Goldgart v. People ex rel. 106 Ill. 25.

The primary liability of the defendant, here, rests upon the fact that at the date at which his liability is claimed to commence, he was the owner of moneys, credits or other personal property, and resided there, or such moneys, credits or other personal property were under the control of an agent or attorney residing there; and such control must be an actual control at that place. (Goldgart v. People, supra.) Whether property is legally taxable at a particular place, is a question of law, and not' of fact; and the pleader seeking to charge one with liability because his property is taxable at a particular place, must, therefore, state the facts from which such liability results, as a conclusion of law. This is elementary, and has been often decided by this court.

There is no averment in the first count that the defendant resided at the place where the property was assessed, at the date of the assessment, nor is there any averment therein that the property was, at that date, under the actual control of an agent or attorney at that place. For aught that appears therein, the evidences of indebtedness, and other personal property, may, at that time, actually have been elsewhere. There is no averment in the second count either that the defendant resided at the place where the property was assessed, at the date of the assessment, or that it was, at that time, in the actual coiitrol of an agent or attorney at that place. The' averment that the property was liable to taxation at that place, is simply the statement of a legal conclusion. The facts from which that conclusion is claimed to result, should have been stated.

To avoid misapprehension hereafter, we may state this is not a suit to recover a forfeiture. The action is to recover a tax due, which has been unavailingly attempted to be col-' leeted by forfeiture and sale of property. The right to recover depends upon the fact that a valid tax is delinquent, and not upon the regularity of the steps to enforce its payment through forfeiture and sale. The remedy is cumulative, and is only barred by a prior judgment when it is shown to have been satisfied.

The judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Sheldon

text:
    Charles H. Rosenstiel v. William S. Gray et al.

      Filed at Ottawa September 27, 1884.

    1. Partnership—accounting between partners—overdraft by one partner—how adjusted. On bill for an accounting between partners, it is not proper to render a personal decree against one partner for the excess of his receipts over his disbursements, until his interest in the firm assets has first been exhausted, to make good the deficiency.
    2. A partner had overdrawn his private bank account for a considerable sum, the checks having been applied to the benefit of the firm, for which he received credit on the firm’s cash book. The firm then drew a draft on him for such amount in favor of the bank, which he accepted, and the amount was credited on his bank account. He afterward paid a portion of the amount of the draft out of his own money, and the note of the firm was given for the balance: Held, that he was not entitled to have the part of the draft paid by him credited in his favor in the partnership account, as he had already received credits for the same on the firm books.
    3. Same—in case of a new partner—adjustment as to amount due Mm from the firm. Where a person acquired an interest in a partnership and its property prior to the dissolution of the firm, and was recognized as a partner, it was held, that he was a proper party to a bill for an adjustment of the partnership and for the statement of an account, and there was no error in decreeing that the defendant partner pay him a sum found to be due him, even though the defendant had not consented to his becoming a partner.

      4. Same—sale by one partner—what passes thereby. The sale by one of three partners of all his interest in the partnership property, including debts due the firm, will pass only his share of what would remain after the payment of all the debts of the firm, including a debt due from the firm to another partner for advances. A purchaser of a partner’s interest in the partnership property acquires only such interest as the vendor had, and that is, his share of the residue after the affairs of the partnership are wound up and the debts paid, including the balance due one partner from the others on the partnership account.
    5. Same—contract of sale of one partner’s interest—construed, as to the extent of the interest sold. A contract for the sale of a partner’s interest in all the assets of a firm, including the real and personal property and the notes and accounts due the firm, the purchaser to assume the vendor’s pro rata share of the indebtedness of the firm, contained a clause that the purchaser should acquire no right in any claim the vendor might have against his former partners, and was to assume no liability for any claims or unsettled accounts of the vendor to his former partners. It was held, this would not affect any accounts due to or from the firm by or to the vendor; but such individual accounts of the partners would be left to be settled between themselves.
    6. Same—new partner—acquiescence by the other partners. Where a person purchased an interest in a partnership and its property and effects, from two of three partners, and the name of the firm was changed accordingly, and the business carried on in the name of the new firm without objection, until the other partner, several months. afterwards, sold his interest, it was held, that an acquiescence might be inferred in the purchaser becoming a member of the firm, without any direct evidence of consent.
    7. Parties—to bill for an accounting between partners. After the sale by one of three partners of all his interest in the firm property and assets, a bill was filed by the other two partners against him, for an account, and he was charged with one-third of an advance made by one of the other partners, to which an exception was taken and disallowed: Held, that the purchasers in such case were necessary parties to protect their rights, the court, however, expressing an opinion that the exception should have been allowed.

      8. Record in Supreme Court—whether certain matters copied into the transcript are a part of the record. In a chancery suit, there was no certificate preserving any evidence, all the testimony being in depositions taken by the master, and returned with his report. One witness testified, in his deposition, to the making of an invoice of partnership property and debts due the firm. An invoice and account were copied into the transcript of the record, which were not referred to in any deposition further than above stated: Held, that the invoice and account could not be considered as a part of the record.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Stephenson county; the Hon. William Brown, Judge, presiding.
    Mr. J. L. High, for the appellant:
    The account was taken on an erroneous basis, by which the gains or profits were excluded. Richardson v. Bank of England, 4 M. & C. 165; Crawshay v. Collins, 2 Russ. 347; Foster v. Donald, 1 J. & W. 252; Buckingham v. Ludlam, 29 N. J. Eq. 345; Moore v. Wheeler, 10 W. Va. 35.
    The real interest of a partner in the partnership stock, etc., is the balance found due to him after the payment of all the partnership debts and the adj ustment of the partnership account between the partners. Bopp v. Fox, 63 Ill. 540; Remick v. Emig, 42 id. 342.
    The purchaser or assignee of the interest of a partner takes no more than the partner’s interest. Taylor v. Field, 4 Ves. 395; Chandler v. Lincoln, 52 Ill. 74; Rainey v. Nance, 54 id. 29.
    The master erred in going behind the account stated on January 29, 1873.
    The court erred in decreeing in favor of Robey, who was not a partner, and in disallowing Rosenstiel’s payment on overdraft to the bank.
    Mr. Charles H. Rosenstiel, pro se.

      Mr. U. D. Meacham, also, for the appellant.
    Mr. R. H. Niles, for the appellees:
    The invoice and account of January, 1873, are not a part of the record, not being preserved in the bill of exceptions, and can not be considered. Corey v. Russell, 3 Gilm. 366; Brockenbrough v. Dresser, 67 Ill. 225; McIntosh v. Saunders, 68 id. 128.
    Counsel also made answer to the several points made by appellant, and discussed the evidence applicable to each.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This is an appeal from a judgment of the Appellate Court for the Second District, affirming a decree of the circuit court of Stephenson county, upon a bill for the settlement of partnership accounts. The bill was filed by the appellees, William S. Gray,- David H. Sunderland and William W. Robey, against the appellant, Charles H. Rosenstiel, averring that on February 23, 1865, Gray, Rosenstiel and one Henderson entered into written articles of co-partnership, whereby they were to contribute equally to the capital and share equally in the profits and losses of the business of manufacturing and selling woolen goods; that they purchased land and water powers, erected a woolen manufactory, and prosecuted the business until July, 1865, when Henderson sold to the complainant Sunderland, by consent of his co-partners, all his interest in the business, whereupon Sunderland, by the consent of Rosenstiel and Gray, became a member of the firm, under the name of C. H. Rosenstiel & Company, and that the business was so continued until March 4, 1873; that about the last named date, Gray and Sunderland sold to Robey an undivided one-third of their interest in the business, whereby Robey became equally interested with Gray and Sunderland; that the business was continued until June 14, 1873, when Rosenstiel sold to George Thompson and Charles D. Blanchard all his interest in the firm, being an undivided one-third. The bill prayed an accounting of all the co-partnership business from the time of its commencement up to the time of the termination of the same by the sale by Rosenstiel of all his interest therein to Thompson and Blanchard. The answer was a general denial. The cause was referred to a master, with direction to take'and state an account between the parties, and report his findings to the court. The master’s report found that the three partners, Rosenstiel, Sunder-land and Gray, had each put into the business $7000; that $4332.84 was the amount owing from Rosenstiel to the firm; and stated the accounts of the parties with each other, as follows: Due from Rosenstiel to Gray, $2545.42; due from Sunderland to Gray, $1254.62; due from Robey to Gray, $1058.57; due from Sunderland to Robey, $196.05; due from Rosenstiel to Sunderland, $660.53; due from Rosenstiel to Robey, $954.61.

Various exceptions were filed by Rosenstiel to the report of the master, all which the court overruled, and entered a decree approving the report, and decreeing the payment of the sums as therein found. One of the exceptions was that the theory of the accounting was erroneous. There was no account taken of the partnership assets or profits, but the accounting was limited to the basis of receipts and expenditures by the partners. The aggregate of Rosenstiel’s cash receipts over expenditures was the amount which the master found to be owing from him to the firm. No doubt the general rule is, as stated by appellant’s counsel, that whatever sums may have been advanced by one partner or received by another during the continuance of the co-partnership, only constitute items in the account when finally taken, and are in no sense personal credits or personal liabilities to be enforced by a personal decree, and that there can be no personal decree against a partner on account of an excess of his receipts over his disbursements, until his interest in the firm assets has been first exhausted, to make good such deficiency. The master’s justification, made by him, of the mode of taking the account, was in the terms of the contract of sale from Bosenstiel to Thompson and Blanchard, because, as the master considered, Bosenstiel sold out to them in such a way as to pass to them his one-third in the property and effects of the firm, leaving the individual accounts of the partners to be settled between themselves. We think the master was correct to the extent of any accounts due to or from Bosenstiel. In respect to any such accounts, the contract seems to express that the interest sold to Thompson and Blanchard was to be unaffected thereby, and that such individual accounts of the partners were left to be settled between themselves. That contract of sale was as follows:

“Freeport, June 5, 1873.
“We, the undersigned, do hereby mutually agree with each other as follows, to-wit: C. H. Bosenstiel agrees to sell to Charles D. Blanchard and George Thompson the undivided one-third, interest in the property known as the Freeport Woolen Mill, to-wit: one-third of the real estate, one-third of the buildings and machinery, one-third of the manufactured goods and raw material now on hand, one-third of the notes and accounts due said firm,—said property, real and personal, being now jointly owned by said C. H. Bosenstiel, D. H. Sunderland, W. S. Gray and W. W. Robey,—C. H. Bosenstiel hereby agreeing to make a good and sufficient deed and conveyance for the same, and C. D. Blanchard and George Thompson agreeing to pay for the said property the'total sum of $6500, payable as follows: $3500 cash on making and delivery of deed, $1000 in three (3) years, $1000 in four (4) years, $1000 in five (5) years, with interest at ten per cent per annum received on the premises sold, interest payable annually; and said G. D. Blanchard and George Thompson to assume their pro rata share of the indebtedness now due by the firm of which 0. H. Bosenstiel is now a member, engaged in said milling business. It is also fully understood and expressly agreed that said G. D. Blanchard and George Thompson acquire no right in any claim said C. H. Bosenstiel has or may have against his former partners, W. S. Gray and D. H. Sunderland, and they assume no responsibility or liability for any claim or .unsettled accounts due by said C. H. Bosenstiel to his former partners, but said G. H. Bosenstiel is to settle and arrange all accounts and claims with his said firm partners; and C. H. Bosenstiel acknowledges the receipt of $100 cash, paid by George Thompson.
C. H. Rosenstiel,
Geo. Thompson. ”

Another exception to the master’s report is, that the master debits Rosenstiel with one-third of $5278.32, claimed to have been advanced by Gray of his own money during the period of time he had the management of the business of the firm. We are inclined to think this exception to the report should have been sustained. The indebtedness for these advances was not on the part of Rosenstiel, but of the company. What Rosenstiel sold to Thompson and Blanchard was his one-third interest in the partnership property. This interest was something, only, which would be remaining after the payment of this firm’s liability for these advances and other partnership debts, the rule being, that the purchaser of an interest of one of the co-partners in partnership property acquires only such interest as the vendor had, and that is, his share of the residue after the affairs of the partnership are wound up and the debts paid, including the balance due one partner from the other on the partnership account. (Bopp v. Fox, 63 Ill. 540; Rainey v. Nance, 54 id. 36.) To qualify such a sale of a partner’s interest, and hold it to pass exempt from the deduction of any partnership liability, would require an intent to that effect clearly to appear. We discover here no such intention to be shown as respects these advances by Gray.' It is expressed that Blanchard and Thompson acquire no right in any claim Rosenstiel has against his former partners, and that they assume no liability for any claim due from Rosenstiel to his former partners, and this is all, being claims due to and from Rosenstiel. Nothing is said with respect to anything due to Gray. No intimation is expressed that there was to be any liability of Rosenstiel in respect to that, or that it was not to enter into the accounting and be adjusted from the partnership assets before there would be the ascertainment and determination “of what was the interest which passed by Rosenstiel’s sale.” The provision, it is true, ends with saying, “but said C. H. Rosenstiel is to settle and arrange all accounts and claims with his said firm partners.” This we understand to have reference to such accounts and claims as had been immediately before spoken of, to-wit, such as were due to and from Rosenstiel himself. We are sufficiently inclined to this view to say that this exception should have been sustained, without the expression of a definite opinion, in the absence of Thompson and Blanchard, whose interests are directly involved in the matter, and who should be made parties, in order that they may have an opportunity to be heard in support of their rights.

It is insisted that the master erred in going behind an alleged account stated by Gray and Sunderland on the 29th of January, 1873. It is stated by appellant’s counsel that upon that date, Gray, Sunderland, and one H. P. Carey, representing Rosenstiel, made an invoice of the goods and merchandise, including the individual accounts of each partner with the firm, which showed Rosenstiel’s indebtedness, to the firm to be only $1704.40, and Gray’s indebtedness to be $715.04; that this appeared in the books of the company, entered in Gray’s own handwriting. All that we discover in the record touching this alleged invoice and account stated, is the statement of Gray, in his testimony before the master, that in the winter of 1872-3 he and Sunderland made an invoice of the stock in hand, which included a statement of the debts and obligations due the firm. There appears copied in the transcript of the record, an invoice of the date 29th January, 1873, which shows a statement of Rosenstiel’s and Gray’s indebtedness to the firm to be, respectively, $1704.40 and $715.04, as above named; but it does not appear from the testimony of any witness or any statement of the master, to be identified as made by any one, or as taken from the books of the firm. There was no certificate of evidence preserving any testimony, but all the testimony was in the shape of depositions returned by the master in connection with his report. But we do not find this invoice and account stated, which appears in the transcript, to be in anywise referred to in any deposition, further than as above mentioned in the testimony of Gray. We do not consider, then, this alleged invoice and account stated as being a part of the record, and can not notice it as such.

An exception was taken to the disallowance of appellant’s payment of $2375 on overdraft of $4458. On September 29, 1866, the individual account of Rosenstiel at the First National Bank was overdrawn to the amount, with interest, of $4458, which had been checked out by Rosenstiel for the benefit of the firm. On that date the firm drew a sight draft upon Rosenstiel for this amount, which he accepted, and which the bank credited to Rosenstiel’s account, to make good the overdrafts for the benefit of the firm. Between this date and January 5, 1867, Rosenstiel deposited in the bank, of his individual funds, the sum of $2375. On the last named day the draft in favor of the bank was paid by the application of this individual deposit of Rosenstiel of $2375, and by the note of the firm for the balance of $2160.20. Thus, it is said, Rosenstiel’s individual funds were used to the extent of $2375 to pay the indebtedness of the firm, evidenced by the draft of $4458, and that the master erred in refusing to credit him with this $2375. We understand, from Rosenstiel’s testimony, that whatever part of the $4458 was drawn from the bank for the use of the company, was credited to Rosenstiel on the company’s cash book as fast as drawn, and the company having been once charged with these sums in its account with Rosenstiel, should not again be called on to pay to Rosenstiel an amount equal to the aggregate. To give the credit claimed would, as we view it, be the allowance of a double credit to Rosenstiel, and we think the master was right in the disallowance of the payment.

It is urged that there was error in finding and decreeing payment to Robey, because Rosenstiel never consented that the latter should become a member of the firm. It appears that Robey acquired an interest in the firm in March, 1873, by purchase from Sunderland and Gray, and that the firm name was then changed to Gray, Robey & Co. All this, it is said, was done without the knowledge or consent of Rosenstiel. Although there be no direct evidence of any actual knowledge of or consent to the admission of Robey to the firm on the part of Rosenstiel, yet, from the length of time which elapsed from Robey’s purchase into the firm, and change of the firm name, until the sale of Rosenstiel’s interest in June, 1873, with no objection appearing on the part of Rosenstiel, there would be ground of inference of an implied acquiescence by Rosenstiel in Robey’s becoming a member of the firm. But supposing Robey was not a partner with the consent of Rosenstiel, he was a joint owner with Gray, Sunderland and Rosenstiel at the time Rosenstiel went out of the firm, and as such was a necessary party to any suit for a distribution of the assets, and might, we think, not improperly, have a decree for any sum that might be found due him on account of the firm property, and even against Rosenstiel. It caused no increase of the amount found due from Rosenstiel, and we do not perceive that it made with him any essential difference, or afforded any substantial cause of complaint, that he was decreed to pay a portion of such amount to Eobey, who was entitled thereto, instead of the whole amount to the two other partners.

For the error which has before been indicated, the judgment will be reversed, and the cause remanded for further proceedings, with leave to amend the bill, and add parties, and take further proofs, as the parties may desire.

Judgment reversed,.

Mr. Justice Walker : I hold that Rosenstiel sold a third of the debts owing by the partners to the firm, precisely as he did debts owing by others to the firm, and he has therefore no claim to be allowed for the claims of the firm against the partners thus sold.