text:
    Elizabeth Kell v. John C. Worden.

      Filed at Mt. Vernon June 13, 1884.

      1. Bight of bedemption from execution sale—whether subject to levy and sale. The law is well settled that the right of redemption of a judgment debtor during the twelve months after his lands have been sold on execution, is not subject to levy and sale on another execution.
    2. Bedemption by judgment creditor—irregularity—waiver by accepting redemption money. Where a junior execution is levied upon the land of the debtor within one year after its' sale on a prior execution, but no redemption is made by the junior judgment creditor until after the year expires, if the holder of the certificate of purchase accepts the redemption money he will waive the irregularity in making the levy under the junior execution within twelve months from the prior sale.
    3. Execution sale—agreement as to extent of interest to be acquired by purchaser. A, B and 0 owned a certain tract of land, each an undivided one-third. A’s interest was passed by a sale under a deed of trust given by him, and D became the owner of such interest, subject to a judgment against A and B, which was a prior lien to that of the trust deed. D became the purchaser at the sale under execution on this judgment, E having the later judgment against A, and B, after the expiration of twelve months, redeemed from the first execution sale and levied upon the land, and to keep D from bidding at the sale, by an arrangement with B and D, agreed to bid off the land on his execution, and that the sale should in no manner affect the title held by D to the undivided one-third of the land, or the interest of A, he had bought under his deed of trust: Held, that the contract was a valid and binding one, and that E, by his purchase at the sheriff’s sale, acquired only B’s undivided one-third of the land.
    Appeal from the Circuit Court of Madison county; the Hon. William H. Snyder, Judge, presiding.
    Messrs. Happy & Travous, for the appellant:
    The party entitled to redeem from a sale must avail himself of the right within the time prescribed by law. Ross v. Mead et al. 5 Gilm. 171.

      A purchaser of mortgaged premises is not a creditor, and has only twelve months in which to redeem. Dun v. Rogers, 43 Ill. 261.
    A redemption hy a judgment creditor is never of the defendant’s present estate, nor is the sale under the previous judgment of the defendant’s interest. The judgment creditor can never redeem until the judgment debtor’s rights are entirely gone, by the expiration of the twelve months within which he might have redeemed. Sweezy v. Chandler et al. 11 Ill. 451.
    A redemption may be made under a judgment that was not a lien against property that had been conveyed by the judgment debtor before the lien could attach. McLagan v. Brown et al. 11 Ill. 519.
    When real estate is sold on execution or decree of foreclosure, the taking of an assignment of the certificate of purchase, although to the party entitled to redeem, is not a redemption, and not being recorded, and affording no notice, will not prevent a judgment creditor from redeeming. Moore v. Hopkins, 93 Ill. 505; McRoberts v. Conover, 71 id. 524; Lloyd v. Karnes, 45 id. 62.
    If the purchaser at the former sale accepts the redemption money, this will be a waiver of any irregularities intervening. Blair et al. v. Chamblin et al. 39 Ill. 522.
    Messrs. Metcalfe & Bradshaw, for the appellee :
    A judgment creditor in exercising the right of redemption must redeem in the manner prescribed by statute, or the redemption will be void. Durley v. Davis, 69 Ill. 133; Stone et al. v. Gardner et al. 20 id. 304.
    No step towards a redemption can be taken until after the expiration of twelve months from the first sale. After the levy is indorsed, follow the other -steps necessary to consummate the redemption. A debtor’s right of redemption during the twelve months is not subject to levy and sale. Merry v. Bostwick, 13 Ill. 398; Watson v. Reissig, 24 id. 281.
    That which is not subject to levy is not subject to sale under the levy. If not subject to levy, the levy would be void, and the sale would be made as if no levy had been made. Cook v. Chicago et al. 57 Ill. 268.
    By the arrangement at the sale, and by which Worden was induced not to bid, the sale was not to affect his one-third interest he derived under his mortgage, and this being honestly made, should be carried into effect.
    By the acts, declarations and representations of appellant through her agents, Bond and Kell, the father and husband, who were acting for her, Worden was induced to occupy a position he would not otherwise have done. She is therefore estopped from disputing his rights. Ball et al. v. Hooten, 85 Ill. 159; Noble v. Chrisman, 88 id.186.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by John C. Worden, for partition of certain lands in Madison county, the petitioner claiming an undivided third. It was also alleged in the bill that Emma E. Kell and Silas W. Kell each owned an undivided one-third of the lands described in the petition, subject to the homestead and dower rights of Nancy Kell. After the filing of the bill, Elizabeth Kell appeared in the cause and filed her interpleader, in which she set up title to an undivided two-thirds of the land, and she also denied that the complainant held the title set up by him in the bill.

It appears from the evidence introduced on the hearing, that the lands in controversy belonged originally to James ■ Kell, who died intestate, and seized of the lands; that at the time of his death James Kell left surviving him Nancy Kell, his widow, and the following children: William F., Silas W., and Emma E. Kell, his only heirs. Thus far there is no controversy in regard to the title, it being conceded on all hands that each of said children of James Kell, deceased, owned an undivided one-third of the lands. Worden, the complainant, claims to have procured the title to the undivided third held by William F. Kell, while appellant, Elizabeth Kell, claims to have procured the title to the undivided two-thirds held by both William F. and Silas W. Kell.

It appears from the evidence that on the 30th day of September, 1878, William F. Kell and wife executed and delivered to Worden a trust deed on their interest in the land, to secure the payment of a promissory note of §1500, which was duly recorded in the recorder’s office. On default of payment of the note secured by the trust deed, the land was sold, under the powder of sale contained therein, on the 10th day of November, 1879, and purchased by Worden,—and this is the title upon which he relies. Prior to the execution of the trust deed, however, and on August 16, 1878, one Wesley Bert obtained a judgment against William F. and Silas W. Kell, in the county court of Madison county, for $236.37, and costs. On the 13th day of September, 1878, execution was issued on the judgment, and levied on the interest of said defendants in the land, and on January 4, 1879, the land was sold, and bid off by Worden for $347.75. It also appears that on the 24th day of October, 1878, one Henry Breed recovered a judgment in the circuit court of Madison county against William F. and Silas W. Kell, for the sum of $207.38, and costs, upon which an execution issued on December 31, 1878, which on March 19, 1879, was levied on the same lands which had been sold on the former judgment. The lands not having been redeemed from the prior sale, within one year, on April 3, 1880, Breed deposited with the sheriff $438,—the amount required to redeem from the sale made in satisfaction of the Bert judgment. The sheriff issued a certificate of redemption, and on July 2, 1880, sold the lands, and Henry Breed became the purchaser for the amount of the redemption money, and the sheriff executed a deed to him. On the 19th day of August, 1880, Breed conveyed the lands to Elizabeth Kell, wife of Silas W. Kell,—and this is the title relied upon by her for the undivided two-thirds of the land. ■ If the sale made by Breed, as a judgment creditor, conformed in all respects to the law, it would seem plain that appellant obtained the title to the undivided two-thirds of the land. But appellee contends, first, that the redemption proceedings were irregular, and the irregularity vitiated the sale; and second, on account of an agreement entered into by the parties on the day of sale, that the interest of William F. Kell did not pass by virtue of the sale.

B will be observed that the execution under which the redemption and sale were made, was issued and levied on the lands before the expiration of the year allowed the defendants to redeem,—and this is the irregularity relied upon to defeat the sale. The law is well settled that the right of redemption of a judgment debtor during the twelve months after his lands have been sold on execution, is not subject to levy and sale. Merry v. Bostwick, 13 Ill. 398, and Watson v. Reissig, 24 id. 281, clearly establish this rule. But in this case no effort was made to sell during the year. The levy Avas made and the execution Avas held by the sheriff until the twelve months had expired in Avhieh the defendants had to redeem, and then the money necessary to make the redemption was placed in the hands of the sheriff, and the redemption effected. Now, while the levy before the year expired may be regarded as irregular, the irregularity was waived by Worden, who held the certificate of purchase, and who, alone, is contesting the redemption, by his act in accepting the redemption money,—as held in Blair v. Chamblin, 39 Ill. 522. Worden, the purchaser at the former sale, having accepted the redemption money and made no objection, it will be presumed that he acquiesced in the redemption, and waived such irregularities as had occurred.

We now come to the other question. It will be remembered that Worden had purchased the interest of William F. Kell at the sale under the deed of trust, but the title was subject to the sale under the Bert judgment, which was a prior lien. When, therefore, a redemption had been made from the sale under the Bert judgment by Breed, it became necessary for Worden to protect his interest, which he might do by attending the sale and bidding in the property, which was, as appears, worth much more than the liens existing against it. The evidence shows that Worden appeared on the day the property was sold, and when it was learned he and others intended to bid at the sale, an arrangement was made between Worden and Breed, who held the judgment, and Silas W. Kell, the husband of appellant, who were the parties in interest, that the land should be struck off to Breed for the amount of the redemption money, for the benefit of Silas W. Kell, who agreed to pay a certain sum of money to Breed, and Breed agreed to convey to Kell or his assigns, but the sale was not in any manner to affect Worden’s interest. This was, substantially, the agreement made by the parties, under which the land was sold and struck off to Breed, who subsequently, in pursuance of the arrangement, conveyed to appellant. We entertain no'doubt that the parties interested had the right to agree that the title held by Silas W. Kell might alone be sold in satisfaction of the judgment under which the redemption was made and the land sold,—and this was, in substance, the arrangement agreed upon by the parties. Worden had acquired the title of William F. Kell, under the trustee’s sale, and stood in his shoes so far as his one-third interest in the land was concerned. He also held the certificate of purchase under the former judgment sale. Silas W. Kell was the owner of the other third interest in the land, and was interested, of course, in ju’otecting his interest. Breed was the redeeming judgment creditor. The three parties were the only persons interested as to the title to the two-tliirds of the land, and the judgment and liens upon it. Had the sale proceeded without any agreement, the title to the two undivided thirds would no doubt have passed to the purchaser; but the parties in interest saw proper to enter into a contract that the sale should in no manner affect the title held by Worden to the undivided one-third of the land,, and we perceive no reason why they should not be bound by the contract. This was the view entertained by the circuit court, and we think it was correct.

The judgment of the circuit court will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    August Thebus v. Mary Smiley.

      Filed at Mt. Vernon June 13, 1884.

    1. Stockholder's individual liability—set-off of debt to him from corporation. In an action by a creditor of a corporation against a stockholder to enforce his individual liability to creditors for an amount equal to his stock in the corporation, the stockholder will not be allowed to set off against his liability an indebtedness of the corporation to him.
    2. Same—preference to creditors who are most diligent. The creditor of the corporation first suing a stockholder in respect to his individual liability acquires by his suit a preference over other creditors, which neither they nor the stockholder can defeat, unless possibly by bringing a bill for a general closing up of the affairs of the corporation. Such action is in the nature of an equitable attachment of the stockholder’s liability to the extent of the plaintiff creditor’s claim. The stockholder, after notice of such a suit against him, can not defeat the action by paying other creditors to the extent of his liability.
    3. Same—limit, when reached, discharge of stock from further liability —rights and liability of purchaser. Where a judgment is recovered'against a stockholder by a creditor of the corporation, under a statute making the former liable personally to creditors for an amount equal to the stock held by him, which he pays, his stock thereafter will be free from liability, and he may sell and transfer the same, and his assignee will take such stock without any liability on his part in consequence of his ownership of the same.

      4. There can be but one amount for which there is liability on account of the same share of stock, where that liability equals or exceeds the amount of such share, and for that amount both the assignor and assignee may be liable,—the former in case the debt was incurred by the corporation within three months after the date of the assignment of the stock, where that is the limit of time during which the liability of the assignor shall continue, and the assignee in case it was incurred after he became the holder of the stock; but there can be but one satisfaction. If the assignor is compelled to pay on account of debts of the corporation made within three months after his transfer of stock, he may have his action against the person owning such stock when the debt was created, and recover the sum so paid by him.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. George W. Wall, Judge, presiding.
    Messrs. Hay & Knispel, for the appellant:
    The payment of the judgment in favor of Mrs. Thomas is a discharge of appellant’s liability as a stockholder pro tanto.

    It is not a defence for a stockholder, when he is sued, to show that other creditors had moved against him before the plaintiff, thus laying a foundation for his liability to them, since the claims of such creditors may never be ¡prosecuted to final judgment. Nor is it enough to show that suits have been instituted and are, pending on such prior claims, for those suits may not be sustained, or may be abandoned. The liability must be legally established and fixed to an amount which exhausts it, and this must be bona fide, and not colorable or fraudulent. Thompson on Liability of Stockholders, secs. 425, 426, 399; Ingalls v. Cole, 47 Maine, 530; State Savings Association v. Kellogg, 63 Mo. 540.
    The recovery of a judgment by a creditor against the stockholder for an amount equal to the amount of stock held by him, will extinguish his liability, and a voluntary payment will equally extinguish it. Buchanan v. Meisser, 105 Ill. 638; Thompson on Liability qf Stockholders, 380.

      Joseph and Herman were liable, as stockholders, upon the ten shares bought by Thebus from them, at the time Mrs. Smiley deposited her money in the bank, and also when the bank failed, and therefore Thebus could not be liable upon the same shares; and judgments having been previously recovered against said Joseph and Herman, and paid by them, this discharges the liability of Thebus upon the same shares. Thompson on Liability of Stockholders, 4, 217, 222.
    Appellant should be permitted to discharge his liability on the ten after-acquired shares, by the surrender and cancellation of his two certificates of deposit, for money actually deposited by him in the bank prior to the purchase of said shares, to an amount equal to said deposits.
    Mr. Marshall W. Weir, for the appellee :
    In an action at law by a creditor of the corporation against a stockholder, under section 9 of the bank’s charter, the stockholder can not plead "as a set-off an indebtedness of the bank to himself. Buchanan v. Meisser, 105 Ill. 638; Meisser v. Thompson, 9 Bradw. 368; Gauch v. Harrison, 12 id. 457.
    Where separate actions are tolerated, the creditor of the corporation first suing a stockholder, in respect of his individual liability, acquires by the bringing of suit a preference over other creditors which neither they nor the stockholders can defeat, unless, possibly, by bringing a general winding-up bill. Such a suit may be said to be an equitable attachment of the stockholder’s liability to the extent of the plaintiff creditor’s claim. It follows that the stockholder can not, after notice of such a suit, defeat the suing creditor by paying the claims of other creditors as far as to exhaust his liability. If such a power existed, the stockholder could use it as a weapon to defeat creditors altogether. Thompson on Liability of Stockholders, sec. 424.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This action is by a depositor, and against a stockholder of the People’s Bank of Belleville, under the 9th section of the charter of the bank, which makes the stockholders individually responsible when default is made in the payment of any debt or liability contracted by the corporation, for an amount equal to the amount of stock held by them, respectively.

Three questions arising upon the record are discussed in the printed arguments before us: First, may an indebtedness of the bank to the stockholder be set off against his liability under this section pro tanto ? second, when judgment is recovered against a stockholder, under this section, for an amount equal to the amount of stock held by him, which he pays, and- he thereafter sells and transfers his stock, does the assignee of the stock take it free of any future liability for debts of the corporation?—or, stated differently, in case of successive sales and transfer of the same stock, is each subsequent holder liable for all the debts contracted by the corporation during the time he is stockholder, and for three months afterwards, notwithstanding judgment is obtained against the first holder for the full amount thereof, and is paid by him ? and third, is the creditor first suing, who is guilty of no laches in prosecuting, his suit, entitled to priority over a creditor suing subsequently, but who obtains judgment first ?

The first question must be answered in the negative, on the authority of Thompson v. Meisser, 108 Ill. 359. The third question must be answered in the affirmative, otherwise it would be within the power of the stockholder, on being sued, to enforce his own terms with the creditor, or to entirely defeat his recovery by hunting up some other creditor with whom he could make satisfactory terms, and confess judgment in his favor. The doctrine applicable is thus stated in Thompson on Liability of Stockholders, sec. 424: “Where separate actions are tolerated, the creditor of the corporation first suing a stockholder in respect of his individual liability'-, acquires, by the bringing of suit, a preference over other creditors, which neither they nor the stockholder can defeat, unless, possibly, by bringing a general winding-up bill. Such a suit may be said to be an equitable attachment of the stockholder’s liability to the extent of the plaintiff creditor’s claim. It follows that the stockholder can not, after notice of such a suit, defeat the suing creditor by paying the claim of other creditors as far as to exhaust his liability. If such a power existed, the stockholder could use it as a weapon to defeat creditors altogether. ” And to the same effect was the ruling in Jones v. Wiltberger, 42 Ga. 575. The case cited by counsel for appellant as holding to the contrary, (City of Chicago et al. v. Hall et al. 103 Ill. 342,) was a bill in equity to wind up the affairs of the corporation, and compel contribution by the stockholders,—or, as called in the quotation from Thompson on Liability, of Stockholders, supra, a “general winding-up bill, ”—and petition for leave to interplead therein; and so what was there said can not be pertinent here. In such ease a court of equity marshals all the assets to which the creditors have a right to resort, equalizes the burdens upon the stockholders, and makes .an equitable distribution among the creditors. The merely legal, as contra-distinguished from the equitable, rights of the parties, are not, necessarily, of controlling consideration.

The second-question presents more difficulty; but our conclusion is, that there can be but one amount for which there is liability on account of the same share of stock, where that liability equals or exceeds the amount of such share. For that amount both the assignor and the assignee may be liable,—the assignor because the debt was incurred by the corporation within three months after the date of the assignment of the stock, and the assignee because it was incurred after he became the holder of the stock; but there can be but one satisfaction. It has been decided, where the assignor is held liable on account of such stock after he has sold and transferred it to another, that he is entitled to recover the amount from the holder, into whosesoever hands it may have passed, upon the ground, as expressed, that “each successive owner stands in his shoes as respects the stock and the liabilities growing out of it.” “This,” say the courts, “arises out of the nature of the property, and the relations of the parties to it and to creditors, in connection with the equitable principle that he who derives all the advantages ought to bear the burdens.” (Brown v. Hitchcock, 36 Ohio St. 680; Johnson v. Underhill et al. 52 N. Y. 203.) And this court applied the same doctrine to a case where, for lack of some legal formality, the equitable title only to the stock passed by a sale and attempted transfer,—Kellogg v. Stockwell et al. 75 Ill. 68. These cases proceed upon the hypothesis that the stock has attached to it a liability, equal in amount, on account of debts incurred by the corporation, to be discharged by whomsoever is, at the time such debts are incurred and for three months afterwards, its legal holder, and not upon that of the successive personal liability of each holder to the amount of the stock for debts contracted while he is holder. If each successive holder of stock may be charged with debts to the amount of the stock, as a personal liability, because of being holder, it would- seem quite plain the assignee ought not to be liable to reimburse his assignor on account of a,liability incurred by him, for in that event a double liability might, in many instances, be imposed on the assignee. If the liability is purely personal, then the person upon whom it is east should bear it. Moreover, if each successive owner simply stands in the shoes of the first owner, and is only required to do what that owner would have had to do had he remained owner, then, since one payment of a liability equal to the amount of the stock would have relieved him of future liability, it must relieve them. The burden attaches to and goes with the stock, as- an incident, until discharged, and should be discharged by him who, at the time it attaches, is owner.

But again, we have held that stockholders are entitled to have contribution on account of the payment of liabilities of this character, as between each other. (Wincock v. Turpin, 96 Ill. 135, and Buchanan v. Meisser, 105 id. 638.) If each successive assignee of stock may be held to a new and independent liability, this would be practically impossible. Contribution would have, of course, to be made only between those who are co-stockholders; but some of the shares might be often assigned, while others would remain until the last in the hands of the original subscribers. It could never be known with certainty, unless the corporation were wound up, what measure of liability would apply in a given case.

Counsel apprehend, if successive assignees are not held liable, as on an original and independent undertaking, the stock might eventually pass into new hands, freed of all individual liability. _ That is undoubtedly true; but may not the same thing happen, in precisely the same way, and the stock all remain in the hands of the original holders? If each stockholder shall discharge his obligation by paying an amount equal to the amount of the stock held by him, to a creditor of the corporation, he will thereafter hold his stock freed from further individual liability. We perceive no reason why greater danger is to be apprehended' if the stock shall be assigned to new parties than if retained by the original parties.

The language employed, we are aware, is broad and comprehensive in its terms, “the stockholders, ” and strictly speaking, is descriptive of every person who may become the owner of stock. But when the object in view is taken into consideration, we think it was intended merely to describe those who were holders of stock at the time of the organization of the corporation, and fix a liability upon them on account of their ownership of the stock. But inasmuch as the stock was transferable, the liability should, until discharged, pass with the stock,—they that should become its owners should take it with its burdens. We can not believe that it was ever contemplated that the holder of stock who to-day holds it free of liability, having yesterday discharged all liability on account of it, can not transfer it to another as free of liability as it was in his own hands. We do not believe that it was contemplated the act of transfer should itself create a new and independent liability upon the assignee which the assignor was not under, previous to the transfer.

The court below ruled otherwise, and for that error the judgment is reversed and the cause remanded.

Judgment reversed.

Mr. Justice Scott, dissenting.


author: Mr. Chief Justice Sheldon

text:
    William P. Bradshaw, Admr. v. Amos Atkins.

      Filed at Mt. Vernon June 13, 1884.

    1. Mistake—in the description of land in a lease—may be corrected in equity. Where a mistake is made in the description of land leased, in drawing the lease, and it is clear what property was in fact leased, the lessee will have a clear right against the lessor to have the mistake corrected; and so will one succeeding to his rights by purchase of the leasehold property under execution against the lessee.
    2. Same—correction of misdescription of land in sheriff’s deed, and in the levy, etc. While it is true that a court of equity may have no jurisdiction to correct a mistake in the description of land in a levy indorsed upon an execution and in the certificate of sale, for the reason there is a remedy at law by motion, yet when the same mistake occurs in the sheriff’s deed to the purchaser, and in the deed o£ the premises to the judgment debtor, a court of equity will have jurisdiction, and may correct such mistake in not only the deeds, but also in'the levy, etc.
    3. SAME'—reforming deed of married woman for mistake—since the act of 1869. Prior to March 27, 1869, a mistake in a deed or conveyance of land by a married woman could not be corrected, nor could her contracts respecting her lands be specifically enforced in equity; but since the passage of the act of that date the deeds, contracts and other writings of married women, their husbands joining, and they being above the age of eighteen years, are placed on the same footing as those of femes sole, and they may be reformed for mistakes therein.
    4. Deeds of married women—of their execution, acknowledgment and proof—since the act of 1869. Prior to March 27,1869, it was only by the husband joining in the execution of the deed, and by a certificate showing an 'acknowledgment in compliance with the statutory requirement, that the wife could convey real estate. It was the acknowledgment in legal form which passed the title. But the act of that date has worked a marked change, and since its passage the acknowledgment has ceased to be the effective means to work a transfer, and the certificate of acknowledgment may be the same as that required in the case of a feme sole, and without any acknowledgment the execution of her deed may be proved as at common law, and her deeds and contracts respecting her lands, made with her husband, may be enforced, or reformed for mistake, the same as those of a feme sole.

    5. Reversal and remandment—effect of failing to file remanding order within two years. Under section 84, chapter 110, of the Revised Statutes, the only effect of not filing in the court below a transcript of the remanding order of. the Supreme Court within two years after the reversal of a judgment, is an abandonment of that particular suit, and it is not a bar or abandonment of the cause of action or rights involved in the case which may he asserted in a new suit.
    6. Evidence—opinion as to value of orchard crops. On a question of the rents and profits derived from the use of an orchard by a defendant, farmers owning and having charge of other orchards in the immediate vicinity, and who are well acquainted with the orchard in question, may testify to what their own orchards produced, and give their opinions from that, and their knowledge of the orchard occupied by the defendant, what it should have produced, and such opinions may be received and considered.
    Appeal from the Appellate Court for the Fourth District;—. heard in that court on writ of error to the Circuit Court of Madison county; the Hon. William H. Snyder, Judge, presiding.

      Mr. A. W. Metcalfe, and Messrs. Irwin & Springer, for the appellant:
    Whatever interest William Stallings had in the leasehold estate in controversy terminated when his wife obtained a divorce from him. Atkins could derive no valid claim under him. Rev. Stat. chap. 41, sec. 14; Emmert v. Hays, 89 Ill. 19.
    After divorce, the wife may recover her lands against the conveyance of her husband, made during coverture. 2 Bishop on Marriage and Divorce, sec. 712; Krieger v. Day, 2 Pick. 316.
    This court has uniformly declined to correct the mistakes of married women in conveyances, or to hold them to the performance of covenants made by them, or to aid the defective acknowledgment of their deeds, and has held deeds made by them, without joinder of their husbands, null and void. Moulton v. Hurd, 20 Ill. 137; Russell v. Rumsey, 35 id. 362; Rogers v. Higgins, 48 id. 212; Hutchins v. Hugguins, 59 Ill. 29; Morrison v. Brown, 83 id. 562; Trustees v. Davidson, 65 id. 125; Bressler v. Kent, 61 id. 427.
    A court of equity has not jurisdiction to correct the mistake in the levy and sale. The lease is not the foundation of Atkins’ rights, but the levy. We are not amenable to a court of equity on account of the mistake of the sheriff or plaintiff in the execution. For a mistake in a levy or sheriff’s deed the remedy is at law. Puterbaugh v. Elliott, 22 Ill. 157.
    Purchasers at execution sale take caveat envptor, and if they purchase under a void levy, take nothing.
    Messrs. Happy & Travous, for the appellee :
    Since the passage of the act of March 27, 1869, the acknowledgment of the married woman of her deed with her husband ceased to be the effective means to work the transfer of title. By that act her execution and acknowledgment of deeds were placed the same as though she were sole. So, also, from that time forth, her contract in writing, made jointly with her husband for the disposition of her lands, became binding upon her, and might have been enforced in a court of chancery, and she held to a specific performance of the same. Hogan v. Hogan, 89 Ill. 427; Stiles v. Probst, 69 id. 382; Terry v. Eureka College, 70 id. 236.
    That the mistake in the deed of a married woman may be corrected, since the act of 1869, before referred to, and her contracts relative to her separate property be specifically enforced in equity, has been decided in the cases of Knox v. Brady, 74 Ill. 476, Edwards v. Schoeneman, 104 id. 278, and Hogan v. Hogan, 89 id. 427.
    The levy and sale by the sheriff were sufficient to convey to Atkins the legal and equitable rights of Allen Stallings in the leasehold estate. Atkins purchased whatever rights Allen Stallings had in the premises. If the latter could have invoked the aid of a court of chancery to correct the mistake before Atkins purchased, the former may do so now. Foster et al. v. Clark, 79 Ill. 225; De Revier v. Cantillon, 4 Johns. Ch. 85; Bartlett v. Judd, 23 Barb. 262.
    The neglect to file the remanding order within two years after the reversal was only an abandonment of that particular action, and not a bar to or abandonment of all rights involved in the case.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

The bill in chancery in this case, filed on the 9th day of March, 1876, alleges that Rebecca Stallings, on the 2d day of August, 1870, was the owner of certain described real estate, situate in Madison county, in this State, and on that day she, together with her husband, William Stallings, leased said real estate to Allen Stallings, for ten years, from March 1, 1871, at a certain rent; that there was a mistake in the description of the land in the lease; that the lessee took possession of the land under the lease; that on the 9th day of January, 1872, Bebecca Stallings died, leaving a will, whereby she devised the land to William T. Emmert, and appointed Charles Harward her executor; that" immediately after her death William T. Emmert, who was then a minor, together with his father, William Emmert, and said Harward, took possession of said real estate by force, and tore down and carried away a building thereon that Allen Stallings was in possession of under the lease, and have had possession of such real estate ever since; that on the 18th of March, 1872, William Stallings assigned to the complainant, Amos Atkins, all his (William Stallings’) interest in the rents accruing to him by virtue of the lease; that at the May term, 1870, of the Madison county circuit court, the complainant recovered a judgment against William Stallings and Allen Stallings for $1671.72, and costs, and that their interest in said leasehold estate was sold, under an execution issued on said judgment, to the complainant, and that on the 6th day of December, 1875, he received a sheriff’s deed therefor; that in making the levy, sale and deed, the same mistake as to description was made as in the lease; that by virtue of the premises the complainant has become the owner of the interest of William Stallings in the rents, and of all the rights which Allen Stallings had in the property. The bill prays for a correction of the mistake, an accounting for the rents and profits, and that complainant may recover his interest and be put in possession thereof as assignee of Allen Stallings. Answer was filed denying the allegations of the bill, proofs taken, and upon final hearing the circuit court decreed in complainant’s favor a correction of tjie mistake in the lease, levy, advertisement of sale, and sheriff’s deed, and a recovery of $1640 for rents and profits. On appeal to the Appellate Court for the Fourth District the decree was affirmed, and William P. Bradshaw, the administrator of William T. Emmert, deceased, appealed to this court.

It is contended that a court of equity has no jurisdiction to correct a mistake in a sheriff’s levy, certificate of sale and deed, and Puterbaugh v. Elliott et al. 22 Ill. 157, is referred to as in support of the position. That was the case of a bill filed to correct a mistake made by a sheriff in the description of premises in the indorsement of the levy on the execution and in the certificate of sale, and it was held that there was an adequate remedy at law; that the relief asked could have been obtained, on motion, in the court from which the execution issued, for an amendment of the levy indorsed, and of the certificate of sale, and that a court of equity would not take jurisdiction. But in Foster et al. v. Clark, 79 Ill. 225, where, on the sale of land under a decree of foreclosure of a mortgage, there was a mistake in the certificate of sale and deed made by the master in chancery, it was decided that a court of chancery had power to correct the mistake upon a bill filed by the purchaser for that purpose, and that such correction should be made, citing in support of the decision De Revier v. Cantillon, 4 Johns. Ch. 85; Bartlett v. Judd, 23 Barb. 262.

Puterbaugh v. Elliott was distinguished in its being for the correction of mistake only in the indorsement of levy and the certificate of sale,—that case of Foster v. Clark was for the correction of a mistake in the levy, certificate of sale, and also in the deed which the master in chancery had made, and it was held that although the mistake in the certificate of sale before a deed was made might have been corrected on motion, that would not have been the proper mode for the reformation of the deed. The indorsement of levy on the execution in the present case is not that the land described, merely, or the debtor’s interest in it, was levied upon, but it was “'‘levied on the leasehold interest of Allen Stallings, one of the defendants in and to the following described property heretofore leased to the said Allen Stallings by Bebecca Stallings and William Stallings, her husband.” This same description appears in the notice of sale and certificate of sale, and it is the leasehold of the property which the deed mentions as being, conveyed. What was levied on and sold, then, was the leasehold interest of Allen Stallings, under a lease from Rebecca Stallings and William Stallings to him. What that leasehold interest was, was entirely clear and certain. If in drawing the lease there was a mistake made in describing the property, the lessee would have a clear equity against the lessors to have the mistake corrected, and the complainant, as the purchaser under execution of the lessee’s interest, became entitled to all the latter’s rights in the land, legal and equitable, and had the same equity against the lessors to have the mistake corrected that the lessee himself had before the sale; and it being the leasehold interest which was levied on and sold by the sheriff, we do not see why there is not the same equity, with respect to him, for the correction of the mistake in the deed, so that complainant should have thereunder what there is no doubt he purchased.

The land was owned by Rebecca Stallings in her own right, it having come to her by inheritance. The lease was not acknowledged. It is therefore claimed to be invalid against her, she being at the time a married woman,—and it is urged that a court will not correct the mistakes of a married woman in a conveyance. As sustaining these positions, decisions of this court are cited, made under the law as it formerly was. Prior to March 27, 1869, it was only by the husband joining in the execution of the deed, and by a certificate showing an acknowledgment in compliance with the statutory requirement, that the wife could convey real estate. It was the acknowledgment of the married woman in the mode prescribed which was the operative act to pass the title, and this court refused to reform mistakes in deeds made by married women for a conveyance of their lands, as also to enforce their contracts for the conveyance of their real estate, upon the ground that their deeds, to be effectual, must be acknowledged freely and voluntarily, and in the mode prescribed by the statute. But the act of March 27, 1869, provided that any feme covert, being above the age of eighteen years, joining with her husband in the execution of any deed, mortgage, conveyance, power of attorney, or other writing' of or relating to the sale, conveyance or other disposition of lands or real estate, should be bound and concluded by the same, in respect to her right, title, claim, interest or dower in such estate, as if she were sole and of full age; .and the acknowledgment or proof of such deed, mortgage, conveyance, power of attorney, or other writing, might be the same as if she were sole. Of this act this court, in Hogan v. Hogan, 89 Ill. 431, said: “This statutory enactment worked a marked change in the law. Thereafter the acknowledgment ceased to be the effective- means to work the transfer of title. The certificate of her acknowledgment might thenceforth have been the same as that required in the case of a feme sole; and without any acknowledgment whatever, proof of her execution of a conveyance might have been made as at common law. So, also, from that time forth, her contract in writing, made jointly with her husband, for the disposition of her lands, became binding upon her, and might have been enforced in a court of chancery, and she compelled to a specific performance of the -same. ” And so, too, for the same reason, the deed of a married woman may be reformed the same as one of a woman unmarried. (Knox v. Brady, 74 Ill. 476; Edwards v. Schoeneman, 104 id. 278.) Hence the decisions cited, made under the law as it stood prior to March 27, 1869, have no application under the law as changed by the act of that date.

It is set up that the execution of the lease by Bebecca Stallings was obtained by duress. The lease bears date August 2, 1870. On the 21st of September, 1870, Bebecca Stallings filed a bill against her husband, William Stallings, for a-divorce, on the ground of extreme and repeated cruelty, and a decree of divorce was granted her. The proof shows a difficulty between them, and the doing some acts of physical violence upon the person of Rebecca Stallings by her husband, William Stallings, recently before the making of the lease, which had respect, however, to another matter, and had no connection whatever with the making of the lease. The land leased was one hundred and seventy-six acres, for ten years, for the yearly rent of seven dollars per acre,—one-half of the rents to be paid to Rebecca Stallings, and the other half to William Stallings. There would not appear to be much reason of love and affection for the making of the settlement of one-half of these rents by the wife upon the husband. Yet, taking the whole proof together, it appears to show that the lease was executed by Mrs. Stallings freely and voluntarily.

Mrs. Stallings had made a will of this land, and after her death her legal heirs filed a bill to set the will aside. Atkins, the complainant, was made a party to that suit, and he set up in his answer this lease, and his purchase of the leasehold interest under execution. The circuit court sustained exceptions to his answer, and decreed that the lease was void. On appeal to the Supreme Court, this court, at its June term, 1877, reversed that decree for error in sustaining the exceptions to Atkins’ answer, and remanded the cause, but the transcript of the remanding order was not filed in the court below until November 26, 1883, at the hearing of this suit. As the statute provides that if neither party to a cause which is remanded by the Supreme Court shall file a transcript of the remanding order in the court from which the cause was removed, within two years from the time of the making of the final order of reversal, the cause shall be considered as abandoned, and no further action shall be had therein, (Rev. Stat. chap. 110, sec. 84,) it is insisted that the failure to file the remanding order within the time prescribed is a bar to the maintenance of this suit. There is clearly nothing in this point. All the effect of not filing the transcript of the remanding order within the time is, that it is an abandonment of that particular case, and not a bar or abandonment of the rights involved in the case.

It is insisted the decree, as to rents and profit's, is not sustained by the evidence in the respect of the amount found due. According to the testimony of the defendant, William-T. Emmert, it would not be. It is said the testimony of the other witnesses should not be relied upon, it being but of opinions of the profits that were received from the land, and not knowledge of what actually was received. The inquiry was mostly as to what was received from the orchard. The statement of the defendant, William T. Emmert, was, that he actually received but a small amount from the orchard,—very much less than the sum decreed. The other witnesses were farmers who owned and had charge of orchards in the immediate vicinity of the Stallings orchard, and some of them were well acquainted with the latter orchard. They gave testimony as to what their own orchards produced, and their opinions from that, and their knowledge of. the Stalling orchard,—what it should have produced, and what was the value of the crops of apples from 1875 to 1881, when the term expired. Their opinions as to the value of the crops received would justify the finding of a larger sum than was decreed. These opinions, we think, were entitled to be received and weighed as evidence. Upon such a question of mere fact, where the evidence is conflicting, we are not disposed to disturb the decree where it is not more manifestly against the evidence than we find it to be here.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Scott

text:
    John A. Dunaway v. The People of the State of Illinois.

      Filed at Mt. Vernon June 13, 1884.

    1. Criminal law—assault to murder a person other than the one intended, or without intent as to any particular one—recklessness—general malice. Where a person deliberately shoots at A, and in the direction of B, and the ball misses A and strikes B, inflicting a wound, these facts will sufficiently show the intention of the person shooting to kill and murder B, although he has no actual malice or ill-feeling toward B, and he may be convicted, of an assault upon B with intent to kill and murder him.
    2. Where an act, unlawful in itself, is done with deliberation and with-the intention of killing or inflicting serious bodily harm, though the intention be not directed to any particular person, and death ensue, it will be murder at common law. Thus, if a party fires a gun-shot into a crowd of persons with intent to murder some one, or when it is done with criminal recklessness, the killing will be murder, although no intention existed to kill any particular person. ,/
    3. Where one, without provocation, discharged his pistol directly at a group of persons, it matters not what person he intended to kill; or if, under such circumstances, he shoots a person other than the one intended, the act, from its recklessness and want of provocation, will be referred to no other cause than malice. Such reckless acts imply general malice.
    Writ of Error to the Circuit Court of Williamson county; the Hon. D. M. Browning, Judge, presiding.
    Mr. James M. Gregg, for the plaintiff in error:
    If the defendant shoots at C, with the intention of killing him, and hy accident misses G and shoots D, in the crowd, and in range, without any intent to injure D, he can not be held liable for an assault with intent to murder D. The charge is not for what the defendant did, but that in consequence of a particular intent, reaching beyond the act done, he has incurred a guilt beyond what is deducible merely from the act wrongfully performed. 1 Bishop on Crim. Law, (1st ed.) sec. 514.

      If the prisoner’s real intent is not the same which is laid in the indictment, he must be acquitted. 1 Bishop on Crim. Law, (3d ed.) sec. 666; Morgan v. State, 13 S. & M. 242; State v. Beaver, 5 Del. 505.
    The intent charged, which constitutes the.yisi of the offence, must be specifically proved. State v. Neal, 37 Maine, 470 ; Wharton on Crim. Law, 316; 3 Greenleaf on Evidence, secs. 13, 17.
    The intent is a question of fact, and it is error to instruct that the law presumes every man intends the natural, necessary and probable consequences of his act. State v. Stewart, 29 Mo. 419.
    In burglary, if the entry is alleged to have been made with intent to commit a specific, felony, the indictment is not sustained by proof of an entry with intent to commit another felony. Morgan v. State, 13 S. & M. 242; 2 East’s Pleas of the Crown, 514; Roscoe on Crim. Evidence, 328; 3 Greenleaf on Evidence, sec. 17.
    The court erred in refusing defendant’s instruction that “proof of criminal carelessness or recklessness will not sustain an indictment for an assault to murder.” 1 Bishop on Crim. Law, (3d ed.) sec. 396; State v. Sloanaker, 1 Del. 62.
    Mr. William W. Clemens, State’s Attorney, and Mr. James McCartney, Attorney General, for the People :
    Intent to murder—an element in the offence charged— may be implied from highly dangerous, malevolent and reckless conduct resulting in injury, or it may consist of a transfer in law of an intent to murder one, to another actually wounded by the murderous assault perpetrated.
    The extracts from Bishop’s Criminal Law, and Wharton’s Criminal Law, and Greenleaf’s Evidence, appearing in the brief of the plaintiff in error, must be taken from the early editions, as they are not found in the latest, as quoted; yet it is probably true Mr. Bishop, in his latest edition, claims the law to be generally as insisted by the plaintiff in error. Yet Bishop lays down the broad and general rule that a criminal actor is equally responsible for the results of his wrongdoing where the consequences fall upon objects outside of those intended by him. 1 Bishop on Crim. Law, (6th ed.) secs. 327, 330, and note; Wharton on Crim. Law, (8th ed.) sec. 820; State v. Bullock, 13 Ala. 413; McCoy v. State, 3 Eng. 451; State v. Boyden, 13 Ind. 505.
   Mr. Justice Scott

delivered the opinion of the Court :

In the indictment presented by the grand jury of Williamson county, against James A. Dunaway, he is charged with an assault, with intent to commit murder, upon the person of Hartwell Hendrickson. On the trial at the November term, 1883, of the circuit court of that county, defendant was found guilty, and sentenced to the penitentiary for a period of six years.

There is very little conflict in the evidence, and the material facts can be readily ascertained. It appears that on the evening of January 4, 1883, defendant was at the door of a store in the village where the parties reside, talking with some one that was sweeping the sidewalk, when Dow Hartwell was about to pass into the store. Some conversation not of an angry character occurred between defendant and Hartwell, as to whether the latter would commence other proceedings against defendant. Shortly afterwards defendant entered the store where Hartwell and several other persons were standing or sitting around the stove, among whom was Hartwell Hendrickson. It seems Hartwell is an attorney at law, and had commenced proceedings on behalf of defendant’s wife for divorce from him, but whether defendant entertained any ill-will against Hartwell on that account does not certainly . appear. But little was said by defendant after he entered the store and approached the stove where the parties were, before be drew a revolver and shot towards Hartwell, the ball taking effect on Hartwell Hendrickson, inflicting a very serious wound. A second shot was fired, but it did not hit any one.

Defendant was no doubt under the influence of intoxicating liquors at the time of the shooting, yet not so drunk but what he knew most, if not all, that occurred. It is not pretended by defendant, or any one for him, the pistol was accidentally discharged. His own testimony is: “I shot it because I wanted to.” He also says he “had no feeling against either Hendrickson or Hartwell.” The judgment might be sustained on the ground the intention was sufficiently proved to kill and murder Hendrickson. He shot in the direction he was standing, and the law is, a party intends the necessary consequences of an act deliberately done. Giving that construction to the evidence, the instructions given by the court for the People contain nothing calculated to mislead the jury.

Section 24 of the Criminal Code, under which defendant was indicted, provides: “Whoever attempts to commit murder, * * * by any means, shall be guilty of the crime of an assault with intent to commit murder, ” and the theory of • the defence is, that if defendant intended to kill and murder any one, it was Hartwell. The evidence, in some degree, at least, warrants this view of the case. The conversation at the door of the store, before the parties entered, shows defendant had some ill-feeling towards Hartwell. His inquiry whether Hartwell was going to “get up another suit” against him, shows unkind feeling, to say the least of it. On the hypothesis the defendant intended to murder Hartwell, the argument is, the shooting of Hendrickson was not intended, and therefore defendant could not be guilty, under the statute cited, of an assault with an intent to murder Hendrickson. The law is, that had defendant shot at Hartwell with intent to murder him, but killed Hendrickson, the killing of the latter would have been murder at common law. The rule in such cases rests on the fact there was the felonious intent to commit murder. It is said when an unlawful act in itself is done with deliberation, and with the intention of killing or inflicting serious bodily harm, though the intention be not directed to any particular person, and death ensue, it will be murder at common law. Thus, if a party fires a gunshot into a crowd of persons, with intent to murder some one, or when it is done with criminal recklessness, the killing will be murder, although no intention existed to kill any particular person. As the argument is understood, it is not denied that had the wound on Hendrickson proved fatal the killing would have been murder, could it have been established the defendant intended to kill Hartwell. The charge is, defendant assaulted Hendrickson with intent to commit murder, and the insistence is, no such intent is shown, because the intent was to murder Hartwell. The reasoning on this branch of the case is too subtle to be adopted with safety. Undoubtedly there are cases that hold the doctrine contended for, and so many of the early text writers wrote, but the better and more modern doctrine is against the position taken. Conceding, as is done, had the shot fired by defendant killed Hendrickson it would have been murder, the proposition the severe wounding by the same shot would not have been done with intent to commit murder,—that is, to commit the greater crime that might have been the result,—finds no sanction either in reason or the analogies of the law.

In the case of Walker v. The State, 8 Ind. 290, the defendant was indicted and convicted under the statute of that State, which declares: “Every person who shall perpetrate an assault, or an assault and battery, with an intent to commit a felony, shall, upon conviction thereof, be imprisoned in the State prison, ” and the defence insisted upon was, that defendant did not intend to shoot the prosecuting witness, and therefore the intent to murder, as laid in the indictment, was not proven. It appeared defendant deliberately shot .into a crowd of persons, among whom was the prosecuting witness, and who was wounded by the shot. Although defendant may also have intended to murder another "person in the same crowd, it was held, defendant having committed a battery on the prosecuting witness, with a weapon likely to' cause death, the jury were authorized to find the intent as charged in the indictment, and that on the principle every man is supposed to intend the necessary consequences of his own act. The case of Callahan v. The State, 21 Ohio St. 306, is a case arising under a statute not unlike the one in the case last cited, and it was ruled, where a pistol was discharged with criminal intent at one person, and wounded another, who was at the time known to be in such position or proximity that his injury might have been reasonably apprehended as a probable consequence of the act, a conviction on an indictment averring the shooting of the latter with intent, is good under the statute of that State, and that it was not error, on the trial, to instruct the jury accordingly. Regina v. Smith, 33 Eng. L. & Eq. 567.

But the question involved is not new in this court. In Perry et al. v. The People, 14 Ill. 496, defendants were indicted and convicted of an assault with intent to commit murder. On the trial, at the instance of the prosecution, the court instructed the jury that if they believed, from the evidence, that one of defendants fired the pistol, either with malice prepense, or a total disregard of human life, then the law would be for the People. In remarking on that instruction the court said: “Where the act is committed deliberately, and is likely to be attended with dangerous consequences, the malice requisite to murder will be presumed. ” The instruction was approved because predicated upon that principle of law which attributes malice to reckless acts of homicide, where no particular motive can be traced..

The case of Vandermark et al. v. The People, 47 Ill. 122, is analogous, both in principle and in its facts, with the case now before this court. Defendants were indicted for an assault with an intent to commit murder, and it was insisted in that case, as here, that defendants shot at another person, and it was accidental the prosecuting witness was hit. There was a conflict in the evidence whether the defendant who fired the shot intended to shoot another person. The affray occurred between one of the defendants and Hand, and it seems another defendant drew his pistol, and the shot fired struck the prosecuting witness, who was not in the crowd. Under these circumstances, it was said by the court, the jury were warranted in the conclusion defendant was actuated by malice against the party injured, or if not, his conduct was so reckless that it implied a total disregard for the lives of others. The act was such as implied general malice, and as defendant evidently intended to shoot some one, when it was apparent it was without any provocation, the act was referred to malice, and the conviction of the party that did the shooting was sustained. The facts in the case being considered bring it precisely within the doctrine of the case cited. Here, defendant discharged his pistol directly at the group of men around the stove, and whether he intended to kill Hartwell or Hendrickson, he must have intended to kill and murder some one of the number. The act was deliberately done, and was done with such an utter, reckless disregard for the lives of others, where no apparent provocation existed for the shooting, it can be referred to no other cause than malice, and that is sufficient, on the authority of the previous decisions of this court, to sustain the conviction. The instructions given by the court at the instance of the prosecution, conform so nearly to this view of the law it is not possible they could have misled the jury, to the prejudice of defendant. Indeed, the evidence so fully warrants the conviction, it is plain to be seen the jury were not misled. That some of the instructions are subject to criticism on account of the phraseology in which they are expressed, may be conceded. Entire accuracy in the use of language in an instruction containing a correct proposition of law, would of course be desirable, but it is not always .attainable, nor can it be reasonably expected. It is not, and ought not to be, the practice to reverse a judgment in a criminal case because some inaccuracy in word or phrase may be found to exist in an instruction which contains a correct proposition of law, although not very happily expressed. Such a practice would render the administration of the criminal law so technical and difficult as to defeat the ends of justice. The conviction of defendant is warranted both by 'law and the evidence, and the judgment against him ought not to- be reversed on account of slight inaccuracies in the statement of the law, that could in nowise affect the merits of the defence.

The judgment will be affirmed.

Judgment affirmed.


text:
    Mary Ann Simmons, Admx. v. The Chicago and Tomah Railroad Company.

      Filed at Ottawa May 19, 1884.

    1. Pbactice—excluding all the plaintiff’a evidence—directing a verdict for the defendant. Although there may be some evidence tending to support the plaintiff’s case, yet where the evidence given at the trial, with all inferences that the jury could justifiably draw from it, is so far insufficient to support a verdict for the plaintiff that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant.
    2. Negligence—as between master and servant—want of proper care on the part of the latter. While there is an implied contract betwéen employer and employe that the former shall provide suitable means, appliances and instrumentalities with which to perform the labors required of the latter, and also that the latter shall be advised by the former of all dangers incident to the service of which the latter is not cognizant, yet the failure of the employer in this regard furnishes no excuse for the conduct of an employe who voluntarily incurs a known danger.
    3. If a servant, knowing the hazards of his employment, as the business is conducted, is injured while engaged therein, he can not maintain an action against the master for the injury merely on the ground that there was a safer mode in which the business might have been conducted, the adoption of which would have prevented the injury.
    4. In this case, an employe of a railroad company was killed by the falling of a bank of earth which he was engaged in excavating. His administrator brought suit for damages, against the company, on the alleged ground of a want of proper care on the part of the agents of the company in charge of the work, in directing the manner in which it should be done. The facts, as shown by the testimony, were substantially these: A number of laborers were engaged in excavating a’hill, under the direction of a foreman. The bank, at the point where the accident occurred, was sixteen to twenty feet high, and composed of clay commonly called “joint clay. ” The deceased was twenty-eight years of age, an old miner in the neighborhood, and accustomed to work in that kind of earth. The manner of doing the work, and as directed by the foreman, was undermining the bank by digging under from two to three feet, and prying the bank off from the top. That was not the proper and safe way to take down the bank. The foreman had control of the men, and could discharge them for disobedience of orders. On the morning of the accident, the foreman, as he was about to go elsewhere, cautioned the men about the danger. Two days previously the superintendent of the road told the men that the way they were doing the work was dangerous,—that they must not cave it off that way, and that they must not dig under so far. In the forenoon of the accident several of the men, the deceased himself included, were speaking of the bank getting dangerous. One man left the place on that account, and another went to work somewhere else. This the deceased could have done if he had desired, as he was not required to work at that particular place, but chose it for himself; and continuing to work there, the bank fell • upon him and killed him. The court below, on this state of case, excluded all the plaintiff’s evidence from the jury, and directed a verdict for the defendant. This was proper. There was no sufficient ground of recovery, the deceased having voluntarily continued in the place of danger with full knowledge of the peril he was in.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Jo Daviess county; the Hon. William Blown, Judge, presiding.

      Mr. M. Y. Johnson, and Mr. James S. Baume, for the appellant :
    There was evidence enough tending to support the plaintiff’s case, to require that it should be submitted to the jury. The court below had no right to usurp the functions of the jury, and direct a verdict for the defendant.
    The motion to exclude the plaintiff’s evidence from the jury was a demurrer to the evidence, and the usual consequences follow. Fent v. Railroad Co. 59 Ill. 349; Phillips v. Dickerson, 85 id. 11; Walters v. Ohio and Mississippi R. R. Co. id. 500.
    The facts appearing in this case do not bring it within the rule that the servant assumes all the risks, on entering the service, naturally incident thereto. That rule is to be understood as applicable only to such risks and hazards as are incident to the usual and ordinary mode of conducting the business in which the servant is employed. With that limitation the rule is correctly stated. 2 Am. and Eng. Railroad Cases, 104; Lalor v. Chicago, Burlington and Quincy R. R. Co. 52 Ill. 401; St. Louis R. R. Co. v. Valirious, 56 Ind. 511; Baxter v. Roberts, 44 Cal. 187.
    Mr. B. C. Cook, for the appellee :
    As to the propriety of excluding all the plaintiff’s evidence from the jury, and directing a verdict for the defendant, the more reasonable rule is, that in every case, before the evidence is left to the jury, there is a preliminary question for the judge,—not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed. Pleasants v. Fant, 22 Wall. 120; Improvement Co. v. Munson, 14 id. 448; Parks v. Ross, 11 How. 362; Bowditch v. Boston, 101 U. S. 318; Ryder v. Wombwell, Law Rep. 4 Ex. 32; Giblin v. McMullin, Law Rep. 2 P. C. 335; Jewell v. Pan, 16 C. B. 616; Toomey v. Railway Co. 3 C. B. (N. S.) 146.
    This doctrine has been affirmed in the strongest manner by this court in the case of Phillips v. Dickerson, 85 Ill. 11, in which the court quote approvingly the case of Reed v. Derfed, 8 Allen, 524, as follows: “Where the whole evidence introduced by the plaintiff, if believed by the jury, is so insufficient to support a verdict that the court would not permit one to stand, it is the duty of the court to instruct the jury, as a matter of law, that there is not sufficient evidence to warrant a verdict for the plaintiff. ” See, also, Gartside v. Outley, 58 Ill. 217; Martin v. Chambers, 84 id. 579; Poleman v. Johnson, id. 270; Railroad Co. v. Goodman, 62 Pa. 329; Bachelder v. Hengan, 18 Maine, 32; Tourtelott v. Rosebrook, 11 Metc. 460; Losee v. Buchanan, 51 N. Y. 476; McCully v. Clarke, 40 Pa. 399; Chicago v. Major, 18 Ill. 349; Hammock v. White 11 C. B. (N. S.) 588; Holmes v. Mather, L. R. 10 Ex. 261; Ellis v. Railway Co. L. R. 9 C. P. 551; Burdon v. Railroad Co. 4 Har. (Del.) 252.
    Upon the principal question, as to the liability of the defendant, the rule is: If a servant, knowing the hazards of his employment, as the business is conducted, is injured while engaged therein, he can not maintain an action against the master merely on the ground that there was a safer mode for conducting the business, the adoption of which would have prevented the injury. Naylor v. Chicago and Northwestern Ry. Co. 53 Wis. 661; Ladd v. Railroad Co. 119 Mass. 412; Clark v. Railroad Co. (Minn.) 2 Am. and Eng. Ry. Cas. 240, and cases cited; Sullivan v. India Manf. Co. 113 Mass. 396; Stroblendorf v. Rosenthal, 30 Wis. 674; Morey v. Lower Vein Coal Co. 55 Iowa, 671; Way v. Illinois Central R. R. Co. 40 id. 341; Muldowney v. Illinois Central R. R. Co. 39 id. 615; Kroy v. Chicago, Rock Island and Pacific R. R. Co. 32 id. 357; Greenleaf v. Illinois Central R. R. Co. 29 id. 14; Pennsylvania Co. v. Lynch, 90 Ill. 334; Priestly v. Fow

      ler, 3 M. & W. 1; Assop v. Yates, 2 H. &. N. 768; Gibson v. Erie Ry. Co. 63 N. Y. 453; Lanning v. New York Central R. R. Co. 49 id. 453; Camp Point Manf. Co. v. Ballou, Admr. 71 Ill. 418, and cases cited; Clark v. Chicago, Burlington and Quincy R. R. Co. 92 id. 43; Railroad Co. v. Britz, 72 id. 261, and cases cited; Michigan Central R. R. Co. v. Austin, 4 Mich. 247.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

This suit was brought to recover damages for the death of Edward C. Simmons, who was a laborer in the employ of the Chicago and Tomah Railroad Company, and was engaged, at the time of being killed, with others, in removing a bluff or hill in the city of Galena, for, the purpose of preparing the foundation for a round-house, and for laying a side-track. There had been a former trial, resulting in a verdict and judgment in favor of the plaintiff, which judgment, on appeal to the Appellate Court for the Second District, was reversed. At a second trial before a jury, upon the close of the plaintiff’s evidence, the court, on motion of the defendant, withdrew the plaintiff’s evidence from the jury, and directed them to find for the defendant. The jury so found, and judgment was entered in favor of the defendant, which, on appeal to the Appellate Court, was affirmed, and plaintiff appealed to this court.

The declaration alleged as ground of action, in the first count, neglect of the alleged duty on the part of defendant to direct and cause the work about which the deceased was employed, to be done in a prudent and safe manner, and so as not to endanger the lives of the employes engaged in the doing of the work, by reason whereof a large mass of earth, forming part of a hill which was being dug down under defendant’s direction, became detached, and fell upon and killed the decedent. The second count alleges negligence in the employment of competent persons to superintend and oversee the doing of the work.

The evidence showed the following facts: The deceased was twenty-eight years of age, an old miner in that neighborhood, accustomed to work in that kind of earth. The railroad company was engaged in excavating a hill to build a round-house. From thirty to fifty men were engaged in the work. They were in two gangs, of which Decker and Briggs were the respective foremen. The full length of the bank was between two hundred and three hundred feet. The bank was sixteen or twenty feet high at the west end, where the accident occurred. It was nearly perpendicular, and composed of clay, commonly called “joint clay.” The manner of doing the work was undermining the bank by digging under from two to three feet, and prying the bank off from the top by bars. That was not the proper and safe way to take down the bank. It should have been taken down from the top, or pillars should have been left to support the bank. Briggs and Decker were the men put in charge by the superintendent of the railroad, and directing how the work should be done. Each foreman had control of his own men, and for disobedience of orders could discharge them. When one foreman was absent, the other directed both gangs. Deceased was in Briggs’ gang. Briggs, on the morning of the accident, went somewhere else, and left his men with Decker, and saying to them: “Boys, look out for yourselves to-day. I am going to work off here. Don’t get covered up. ” The superintendent of the road was at the bank two days before the accident, and he told the men that the way they were doing the work was dangerous; that somebody would get hurt; that they must not cave it off that way, and that they must not dig under that far. In the forenoon of the accident several of the men there were speaking of the bank getting dangerous. The deceased himself said he believed the bank was getting dangerous. One man left the place on account of it, and another on the same account avoided going there, and went to work somewhere else. The deceased was at work at the west end of the bank, shoveling, out dirt from under .the bank. The bank ran out to a point at the east end. The deceased was not directed to work at that particular sj)ot where he was working—he chose it himself, and might have worked at any other place on the bank. The bank fell in the forenoon of November 24,1880, some twenty or twenty-five feet of it, lengthwise, killing the deceased.

There may be decisions to be found which hold that if there is any evidence—even a scintilla—tending to support the plaintiff’s case, it must be submitted to the jury. But we think • the more reasonable rule, which has now come to be established by the better authority, is, that when the evidence given at the trial, with all inferences that the jury could justifiably draw from it, is so insufficient to support a verdict for the plaintiff, that such a verdict, if returned, must be set aside, the court is not bound to submit-the case to the jury, but may direct a verdict for the defendant. Pleasants v. Fant, 22 Wall. 120; Randall v. Baltimore and Ohio R. R. Co. 109 U. S. 478; Metropolitan Ry. Co. v. Jackson, 3 App. Cas. 193; Reed v. Inhabitants of Deerfield, 8 Allen, 524; Skellenger v. Chicago and Northwestern Ry. Co. 61 Iowa, 714; Martin v. Chambers, 84 Ill. 579; Phillips v. Dickerson, 85 id. 11. In the recent case of Frazer v. Howe, 106 Ill. 573, this court recognized the rule to be: “If there is no evidence before the jury on a material issue in favor of a party holding the affirmative of that issue, on which the jury could, in the eye of the law, reasonably find in his favor, the court may exclude the evidence, or direct the jury to find against the party so holding the affirmative. ”

There was no evidence whatever tending to support the second count of the declaration.

The alleged ground of action in the first count is negligence of the defendant in not having the work done in a safe manner. The evidence shows there was a more proper way of doing the work, and one which would have been safe. But the liability of the defendant does not thence result. In Pennsylvania Co. v. Lynch, 90 Ill. 334, this court said, that while there is an implied contract between employer and employe that the former shall provide suitable means, appliances and instrumentalities with which to perform the labors required of the latter, and also that the latter shall be advised by the former of all the dangers incident to the service of which the latter is not cognizant, “yet the failure of the employer in this regard furnishes no excuse for the conduct of an employe who voluntarily incurs a known danger. He must himself use due care and caution to avoid injury. If he has full knowledge of all the perils of a particular service, he may decline to engage in it, or require that it shall first be made safe; but if he does thus enter it he assumes the risk, and must bear the consequences.” And in St. Louis and Southeastern Ry. Co. v. Britz, 72 Ill. 261, there was approval of the rule laid down in Wharton on Negligence, sec. 214, that “when an employe, after having the opportunity of becoming acquainted with the risks of his situation, accepts them, he can not complain if he is subsequently injured by such exposure.” To the same effect are Clark v. Chicago, Burlington and Quincy R. R. Co. 92 id. 43, and Camp Point Manf. Co. v. Ballou, 71 id. 418.

If a servant, knowing the hazards of his employment, as the business is conducted, is injured while engaged therein, he can not maintain an action against the master for the injury merely on the ground that there was a safer mode in which the business might have been conducted, the adoption of which would have prevented the injury. Many cases affirming this principle are cited in the brief of counsel for defendant. It was expressly laid down in Naylor v. Chicago and Northwestern Ry. Co. 53 Wis. 661,—a parallel case with this in its facts, of an injury from the fall of a bank of earth under which plaintiff was excavating. In Morey v. Lower Vein Coal Co. 55 Iowa, 671, (a case of injury to a miner by the falling of the roof of the mine,) it was laid down: “The true rule is, that if the plaintiff knew, or by the exercise of ordinary care might have known, of the unsafe condition of the roof of the mine, and he continued to work in a dangerous place without protest or complaint, and without being induced to believe that a change would be made, he assumed the risk, and can not recover. ” In Hughes v. Winona and St. Peter R. R. Co. 27 Minn. 137, the Supreme Court of Minnesota sanctioned the rule that “if a man engage in a service, and continues in a service, with a full knowledge of the manner in which his employer conducts his business, and without objection, he is deemed in law to have assumed and taken upon himself all the risks naturally incident to conducting business in that way, even although it be unsafe. ” In the present case the danger was as apparent to the deceased as to any one. The condition of the bank was as open to his observation as to that of the foreman. He had been warned of the danger, and he expressed his own belief of the danger. He might have left the particular place where he was, as did one other of his fellow laborers on account of the danger, or have avoided going to that place, as did another one for that same reason.

Eespeeting knowledge, the court, in Naylor v. Chicago and Northwestern Ry. Co., above cited, in- commenting upon the evidence there, remarked, with entire pertinency to the present case: “The plaintiff is, presumably, a man of ordinary intelligence. He was cognizant of the practical effects of the law of gravitation,- and knew that when a bank of earth is undermined by removing its foundation, it is liable to fall. Such knowledge is not confined to experts. No one knew better than himself the extent to which the bank had been undermined, or could better judge of the peril, ” and holding that being fully informed of the peril, the plaintiff had no cause of action. Fully seeing the danger here, the deceased voluntarily exposed himself to it, and he must he held to have assumed all the risk of working where he. did, and plaintiff must bear the consequences.

Under the evidence in this ease there was no cause of action, and the court ruled properly. The judgment must be affirmed.

Judgment affirmed.

Mr. Justice Walker : I am unable to concur in the reasoning or conclusion in this case. I regard the opinion as in direct conflict with many previous decisions of this court, and virtually deprives parties of trial by jury, and substitutes the court for a jury. I therefore dissent toto ocelo.

Mr. Justice Scott, also dissenting.

Mr. Justice Dickey : I think it a question of law whether there is any evidence tending to prove a given allegation, and that it is a question of fact whether a given amount of- evidence is reasonably sufficient to sustain such allegation. The former is a question for the court, the latter a question for the jury, subject to revision by the court on a motion for a new trial. I therefore can not concur in the proposition that though there may be some evidence tending to prove every essential allegation of a plaintiff, the court may properly take the case from the jury and direct a finding for defendant, merely because, in the judgment of the court, the evidence in support of some material allegation is not reasonably sufficient in force to sustain a verdict for plaintiff.