author: Mr. Justice Bailey

text:
    James S. McFarland v. Abram Claypool.

      Filed at Ottawa

      May 16, 1889.

    1. Plea in abatement—in attachment—requisites of the plea. An affidavit for an attachment set out as grounds therefor, that the defendant “conceals himself or stands in defiance of an officer, so that process can not be served upon him, and has, within two years last past, fraudulently conveyed or assigned his effects, or a part thereof, so as to hinder and delay his creditors, and has, within two years last past, fraudulently concealed or disposed of his property so as to hinder and delay his creditors, and is about fraudulently to conceal, assign or otherwise dispose of his property or effects, so as to hinder or delay his creditors.” The defendant pleaded in abatement “that he did not conceal himself and did not stand in defiance of an officer, so that process could not be served upon him; that he has not, within two years last past, fraudulently conveyed or assigned his effects, or a part thereof, so as to hinder and delay his creditors; has not, within two years last past, fraudulently concealed or disposed of his property so as to hinder and delay his creditors, and was not about fraudulently to conceal, assign or otherwise dispose of his property or effects so as to hinder and delay his creditors:” Held, on demurrer to the plea, that it was bad, in failing to deny that the debtor had, within two years before the commencement of the suit, fraudulently disposed of his property.
    2. Exception—when necessary to be taken. On application of a defendant for leave to file an amended plea in abatement to a writ of attachment, the court remarked that no action would be taken granting leave until affidavit was filed, showing, etc. No exception was taken : Held,, that if the remark of the court was to be taken as a denial of the motion, the ruling could not be assigned for error, for want of an exception.
    3. Practice—asking leave to file an amended pleading. A party who desires to file an amended pleading should prepare it, and submit it to the inspection of the court. He is not entitled, as of right, to an order giving him leave in advance to file it before it has even been drafted. There is, therefore, no error in refusing defendant’s motion for leave to file an amended plea in abatement to an attachment, when the proposed plea is not prepared and submitted for inspection.
    4. Same—waiver as to judgment on demurrer. Where a demurrer is sustained to a defendant’s plea in abatement to a writ of attachment, and the defendant appears and asks leave to file an amended plea, it is questionable if he does not thereby waive his right to complain of the judgment upon the demurrer.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. James Frake, for the plaintiff in error:
    The demurrer to the plea should have been overruled. The plea traversed the affidavit by negativing all the allegations in the affidavit relative to defendant, James 8. McFarland. It denied the allegations in the affidavit, using the language used in the affidavit, and tendered an issue. Miller v. Blow, 68 Ill. 304.
    A plea denying the causes for attachment must be understood to refer to the time of the commencement of the suit by filing an affidavit. In this case the sustaining of a demurrer to the plea for lack of exact technical accuracy, and a refusal of leave to amend the plea, amounts to a denial of justice.
    The plea was not a dilatory plea, and not subject to the rules governing such pleas. The court erred in not permitting defendant, J. S. McFarland, to file amended pleas to the affidavit. Safford v. Insurance Co. 88 Ill. 296; Railway Co. v. McDermid, 91 id. 170; Humphrey v. Phillips, 57 id. 132.
    The defense set up by the plea in this case must be held to be of a substantial and meritorious character, equally with a plea to the jurisdiction. Hawkins v. Albright, 70 Ill. 88.
    Granting leave to amend is not discretionary with the court, but a legal right, and when proper application is made for leave to amend a plea on sustaining demurrer thereto, the court can only, in granting it, impose such terms as are just and reasonable, having reference to existing rules of practice. Insurance Co. v. Trust Co. 1 Bradw. 391, citing Drake v. Drake, supra, McCormick v. Wells, 83 Ill. 240, and Hays v. Loomis, 84 id. 18.
    The court required the defendant, J. S. McFarland, to file an affidavit showing that he would be injured if not allowed to plead. This requirement was complied with, but the court then denied leave to amend. The court had no right to insist upon any affidavit.
    By Section 28 of the Attachment act, the plaintiff has the right to amend his affidavit for any insufficiency. The rights of the defendant are just as sacred, and for any insufficiency of his plea the right to amend is given him by section 23 of the Practice act.

      Messrs. Cbatty Bbos. & Ashcbaft, for the defendant in error:
    When the court sustained a demurrer to the plea, the defendant took no exception, but immediately moved for leave to amend. He asked a favor of the court, and undertook to show a meritorious right to file a new plea. By that course he waived any further right to insist upon the sufficiency of the former plea, or question the action of the court in sustaining the demurrer. McKichan v. Follett, 87 Ill. 103.
    The court had the right to have a plea produced for inspection, to see whether it be a better plea than the old one, and save further demurring and delay. The court would clearly have the reasonable right to protect itself and the parties to that extent. No plea in fact was presented, and that omission alone was reason enough to justify a denial of the motion. But, as the court stated, no action whatever was taken at that time, and whatever was done seemed to be satisfactory to counsel, for he took no exception to the remark.
   Mr. Justice Bailey

delivered the opinion of the Court :

This was a suit in attachment, brought by Abram Claypool against James S. McFarland and I. B. McFarland, to recover the amount of four checks drawn by the defendants upon the Union Stock Yards National Bank, payable to the plaintiff or order, and payment of which had been refused by the bank on presentation. The affidavit in attachment, which was sworn to and filed January 8, 1887, -stated as grounds for attachment, the non-residence of defendant I. B. McFarland, “and that he, the said James S. McFarland, conceals hirqself or stands in defiance of an officer, so that process can not be served upon him, and has within two years last past fraudulently conveyed or assigned his effects, or a part thereof, so as to hinder and delay his creditors, and has, within two years last past, fraudulently concealed or disposed of his property so as to hinder and delay his creditors, and is about fraudulently to conceal, assign or otherwise dispose of his property •or effects so as to hinder or delay his creditors.”

A plea on behalf of James S. McFarland was sworn to by him February 4, 1887, and filed February 8, 1887, the allegations of which were in the following language: “That he did not conceal himself and did not stand in defiance of an officer so that process could not be served upon him; that he has not within two years last past fraudulently conveyed or •assigned his effects or a part thereof so as to hinder and delay liis creditors; has not within two years last past fraudulently concealed or disposed of his property so as to hinder and delay his creditors, and was not about fraudulently to conceal, assign or otherwise dispose of his property or effects so as to hinder and delay his creditors.”

To this plea a special demurrer was filed, pointing out as a ground of demurrer, among other things, that it did not appear from the plea that the defendant had not, within the two years last preceding the filing of the affidavit, fraudulently conveyed or assigned his effects or a part thereof so as to hinder and delay his creditors, and had not within the two years then last past fraudulently concealed or disposed of his property so as to hinder and delay his creditors. Said demurrer was sustained, and the judgment of the court sustaining it is assigned for error.

The defendant, instead of electing to abide by his plea, appeared by his counsel and asked leave to file an amended 'plea, and it is questionable whether he did not thereby waive liis right to complain of the judgment of the court upon the demurrer. But whether that is so or not, it is too manifest to admit of argument, that the plea was fatally defective. Its averments were in the present tense, and can therefore be held to apply only to the two years next preceding the day on which it was filed, or at most to the two years next preceding the day on which it was sworn to by the defendant. There re- ■ mained a portion of the two years covered by the attachment affidavit to which the plea did not apply, and for that reason it was not a complete traverse of the affidavit. Both the plea and affidavit might be true.

The defendant has' also assigned for error the decision of the court in relation to permitting an amended plea to be filed. It appears from the hill of exceptions, that at the time the order of the court sustaining the demurrer was entered, the defendant’s counsel “moved the court for leave to said defendant to file an amended plea in abatement of the writ of attachment issued in this cause, and the court thereupon stated that no action would be taken granting leave to file such amended plea until an affidavit was filed showing that said defendant would be injured by not being allowed to file an amended plea in abatement.” Whether the remark of the court here recorded is to be regarded as an adverse decision of the defendant’s motion to amend, or as a refusal to take any action on the motion until an affidavit should be filed, it can not now be assigned for error, as it does not appear to have been excepted to.

On the following day the defendant’s counsel again appeared, and in support of his motion to file an amended plea, read his own affidavit showing that he had been taken by surprise by the filing of the demurrer and the decision of the-court thereon, and that his client had gone temporarily to the State of Colorado on business and therefore could not make the affidavit in person. Said affidavit also stated on information and belief various facts which had been communicated to said counsel by his client, which tended to show that the attachment affidavit was untrue. So far as the record shows, however, no amended plea was either prepared, presented op-offered to be filed. The motion for leave to file an amended plea was thereupon overruled, and an exception to said decision was duly preserved. -

The record does not specify the ground upon which the motion was overruled, and therefore if any tenable ground existed, the decision of the court must be sustained. As no amended plea was presented or offered to be filed, we may assume that the motion was overruled on that ground. A party who desires to file an amended pleading should prepare it and submit it to the inspection of the court. He is not entitled as of right to an order giving him leave in advance to file it before it has even been drafted. Ho presumption can be indulged in that the plea when presented would be a good one, and its sufficiency in substance can be made to appear only by bringing it into court for examination. Hven then, if found to be substantially defective, it would not be error to refuse to allow it to be filed, and such refusal certainly can not be error where the pleading has not been presented at all, and there are no means of determining whether it is sufficient in substance, or not. As the defendant’s motion for leave to file an amended plea was unaccompanied by any draft of the plea sought to be filed, and as no copy of such proposed plea is preserved in the record, we are unable to say that the motion was not properly overruled.

It should be observed that in this case there was no application to the court for time to prepare the plea, but the defendant’s counsel was content to submit his motion upon his affidavit alone, without any presentation of the amended plea itself, or any prayer for time to prepare one, and as he did not therefore place himself in a position where he was entitled to a favorable decision of his motion, he can not now be heard to complain that the decision was against him.

After the denial of the defendant’s motion, a trial was had before the court without a jury on the plea of non-assumpsit, said trial resulting in a finding and judgment in favor of the plaintiff for $2052. This judgment was taken to the Appellate Court by writ of error and there affirmed. As we find no error in the record, the" judgment of the Appellate Court will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Wilkin

license: Public Domain

text:
    John E. Hanks v. Laura B. Rhoads et al.

      Filed at Springfield

      May 14, 1889.

      1. Cross-examination. "Where a "witness is asked,'on cross-examination, about a matter not testified to by him on his direct examination, the question will be obnoxious to an objection as not being proper cross-examination.
    2. Chancery—sufficiency of evidence to support decree. Where there is sufficient evidence to justify the decree rendered, the decree will not be reversed on the ground the evidence is conflicting and contradictory, especially when the chancellor has heard the witnesses testify, so that he could judge from their appearance on the stand, and when the defendant’s evidence differs in theory from the defense made in the answer.
    Appeal' from the Circuit Court of Edgar county; the Hon. James F. Hughes, Judge, presiding.
    Mr. H. S. Tanner, for the appellant:
    Prior to the September term, 1878, of the Edgar circuit court, appellant had become surety for said W. W. Hanks on a replevin bond in the penal sum of $10,000. This deed, appellees, by their bill, ask to have declared a mortgage to secure appellant as such surety, and to pay any indebtedness of W. W. Hanks to appellant. We think the evidence wholly insufficient to show that the deed was intended as a mortgage. Whether the conveyance amounted to a mortgage depends upon the intention of the parties at the time. Pitts v. Gable, 44 Ill. 102; Price v. Karnes, 59 id. 276.
    The positive evidence of the warranty deed, absolute upon its face, and the witnesses Michael Hanks, John McCord, Abner Dill, Thomas Siemens, James Cale, Samuel Hybarger and Forrest Hanks, is surely sufficient to overcome any doubt raised by the uncertain and contradictory evidence given for appellees. To convert the deed in this case into a mortgage, the evidence should show clearly such was the contract and intent of the parties at the time of making the deed. It must have been a mortgage from the beginning. Sweetland v. Sweetland, 3 Mich. 482.
    Not one of appellees’ witnesses claims to know anything about the contract between William W. Hanks and appellant when the deed was delivered. Their evidence is confined to conversations with appellant after the whole transaction was concluded. Pitts v. Cable, 44 Ill. 102; Price v. Karnes, 59 id. 276; Remington v. Campbell, 60 id. 516; Hancock v. Harper, 86 id. 445.
    Mr. Jambs A. Eads, and Mr. H. Van Sellar, for the appellees.
   Mr. Justice Wilkin

delivered the opinion of the Court:

This is a bill in chancery, by appellees, against appellant, by which it is sought to have a deed declared a mortgage, and for an accounting, for rents, payment of taxes, etc. The bill alleges that William Hanks, the father of appellees, to secure appellant as surety on a replevin bond executed by William, did, on the 18th day of April, 1879, convey to said appellant, in fee simple, one hundred and sixty acres of land in Edgar county, Illinois; that no liability accrued to said appellant as such surety, and that he suffered no loss thereby, but that he has since refused to reconvey said premises, claiming that said deed was intended by the parties to be absolute. Appellant, by his answer, denies that said conveyance was made merely to indemnify him on account of said suretyship, and he avers, “that said William W. Hanks, at the time of said conveyance, was indebted to defendant between $5000 and $6000, for money at different times before then advanced by defendant to said William W. Hanks; that said William W. Hanks was financially embarrassed, and defendant, at various times, advanced him large sums of money, and that just before the making of said conveyance, he and said William W. Hanks had an accounting, in which it was shown that defendant had loaned said William W. Hanks considerably more than $5000, without counting any interest, and said William W. Hanks proposed to convey to said defendant said tracts of land in said bill mentioned, in liquidation of his indebtedness.” On the hearing, the witnesses were produced, and testified in open court, and á decree was rendered in favor of complainants, declaring the conveyance to be in the nature of a mortgage, as alleged in the bill, and ordering a statement of account between the parties. From that decree this appeal is prosecuted, and a reversal insisted upon, mainly on the ground that the evidence is insufficient to sustain the finding and decree of the trial court.

The evidence is irreconcilably conflicting, and by no means satisfactory. A number of witnesses introduced on behalf of appellees testify to admissions and declarations by appellant, to the effect that the deed in question was made for the purpose alleged in the bill, and not intended by the parties as an absolute conveyance, and their evidence, uncontradicted, justifies the finding and decree. On the other hand, witnesses introduced by appellant swear to declarations made by William in his lifetime, to the effect that he had sold the lands to appellant, and which tend to disprove the theory of the bill and establish the defence. But one witness testifies to being present when the deed was made. Thomas Slemons swears that appellant told him, before he bought the land, he was going to do so, and says: “I went with him when the trade was made,—when the papers were drawn up. Berry (meaning appellant) paid him some money. They talked about papers, and Berry counted him down some money,—between $1500 and $2000.” He also states that they talked about what had been done before that; that Berry had paid off some judgments and some costs, some lawyers fees, and other charges; that they were figuring on items that Berry had made as payments on the place; but he seems to be quite positive that a considerable sum of money was paid down by appellant at that time, and he says the deed was then made. This he thinks was about the middle of April, 1879. Forrest Hanks, ■a son of appellant, testified to a conversation between his father and William about this land. He swears that he heard his father say he had paid him $4000, and would pay him $2360 if he would deed him the place, and let him have two years rent if he would pay the mortgage. This conversation he says was in 1879.

This testimony, especially that of Slemons, while it tends to prove an absolute purchase of the land in question, is in conflict with the theory of the defence set up, which is in the answer, that the conveyance was in satisfaction of a past indebtedness, and not on account of anything paid at the time. Siemens’ evidence is, that the deed was executed and acknowledged after night, but the deed itself shows that it was filed for record at four o’clock P. M. the same day it was made. It can not be said that there is not evidence in this record sufficient to support the decree, nor that it is so completely -overcome by the evidence of appellant as to justify a court of review in setting aside the finding of the chancellor, more particularly when the record shows that he had the opportunity of seeing the witnesses and hearing them testify.

‘ James Hanks, a witness for appellees, was asked, on cross-examination, if William did not tell him that he had sold the land in question to Berry, and the court sustained an objection thereto, evidently on the ground that it was not proper ■cross-examination. We think the ruling was correct. There was nothing in the evidence of the witness in chief to justify that question.

The decree must be affirmed.

Decree affirmed.


author: Mr. Justice Scholeield

text:
    Prescott G. Hale v. Amos W. Cravener.

      Filed at Ottawa

      May 16, 1889.

    1. Vendos and pubchasek — of the right of rescission—conditions upon which it rests. Where one has obligated himself to convey to* another a fee simple title to a tract of land by a warranty deed, before the vendor can rescind the contract for non-payment of the purchase money, he must not only tender to the purchaser a proper deed, but must also be able to convey a marketable title,—that is, a title not subject to such reasonable doubt as would create a just apprehension, clone that persons of reasonable prudence and intelligence would be willing to take and pay the fair value of the land.
    2. A person holding land in trust under a will, made a contract for its sale, agreeing to make a warranty deed conveying the title in fee, and to furnish an abstract showing title and his power to sell and convey, tendered his deed after the filing of a bill by the heirs of his testator to set aside the will, and on refusal of the vendee to accept the deed, and perform his part of the contract, the vendor filed his bill to rescind the sale. It was held, that as the vendor was not able to convey such a title as would satisfy the covenants of his agreement, he could not put the purchaser in default by the tender, and demanding performance before the termination of the suit to contest the will, which was his. authority to convey. In such case, no prudent man would accept the deed subject to the doubt and uncertainty cast upon his right to convey by the filing of the bill to set aside the will.
    3. A contract for the sale and conveyance of land provided that the-vendor, on or before a day named, should make and deliver to the purchaser an abstract showing title and the right to convey, and that if the abstract failed to show a good title, then the cash payment which had been made should be returned to the purchaser and the contract determined: Held, that the clause relating to the rescission of the contract if the abstract did not show a good title, was for the benefit of the purchaser, and that the vendor could not take advantage of it to-rescind the contract.
    4. A party who seeks to determine his contract by availing himself of a condition therein contained providing for such determination, must bring himself strictly within the terms of such condition. Such a condition is not to be construed liberally, nor enlarged to include facts or circumstances not within its terms, but on the contrary, is, in contracts for the sale of land, to be taken most strongly against the vendor.
    5. A vendor can not make use of a condition to rescind his contract-for the purpose of getting rid of a duty which attaches to Mm upon the-rest of the contract.
    6. A trustee under a will made a contract for the sale of a tract of land, and $500 was paid down. The vendor was, by a given time, to furnish the purchaser with an abstract showing title and his right to convey, and if he failed to show a good title, then the $500 was to be returned and the contract to terminate. Independently of this, the vendor covenanted that on performance by the purchaser he was to-convey and assure to the latter a fee simple title. The vendor furnished. an abstract, which on its face showed a good title and right to convey, but in fact there was a bill then pending, filed by the heirs of the testator, to set aside the will, not shown in the abstract: Held, that the vendor had not brought himself within the terms of the condition, although his abstract did not show any defect in his title, and that he could not rely on facts outside of the abstract as a ground of rescission, and further, that he was bound to convey by his covenant to that effect.
    7. As a general rule, a contract can not be determined or rescinded by a party to it for non-performance of the other party, unless the former is in a position to demand a specific performance.
    8. Same—waiver of prior performance. Under a contract for the-sale of land, the purchaser was to pay down $500, which was done. The vendor was then, by a certain time, to furnish the vendee an abstract showing a good title and power to convey such a title, and in ten days-thereafter the purchaser was to pay $3500, and execute notes for the-balance of the price, seemed by mortgage, when the vendor obligated himself to convey the title in fee simple. It was also provided, that if the abstract, when furnished, failed to show such title, the $500 was to be returned and the contract to be determined. The abstract was furnished, showing a good title, but failed to show the pendency of a bill to set aside a will, under which the vendor claimed authority to sell and convey: Held, that each party was bound to perform in the order stated,—that the doing of the preceding act required the performance of the succeeding act by the other, and that one party might waive the doing of the preceding act by the other, and proceed to the performance of the succeeding act.
    Appeal from the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook-county ; the Hon. Egbebt Jamieson, Judge, presiding.

      This was a bill in equity, exhibited in the Superior Court of Cook county, by Prescott Gr. Hale, against Amos W. Cravener, to cancel and set aside as a cloud upon title a certain •contract for the sale and conveyance of real estate. The Superior Court decreed in conformity with the prayer of the bill, but that decree was reversed on appeal to the Appellate Court for the First District, and the bill dismissed. The case is in this court by appeal from that judgment. A sufficient statement of the facts and points in issue will be found in the opinion of Mr. Justice Moban, of the Appellate Court, which is as follows:
    Moban, P. J.: “On December 24,1886, a contract in writing was entered into between appellant and appellee, as follows:
    “ ‘Articles of agreement made this 24th day of December, A. D. 1886, between Amos W. Cravener, party of the first part, and Prescott Gr. Hale, as trustee under the last will and testament of Matilda Hale, deceased, party of the second part:
    “ ‘Witnessefch, that if the party of the first part shall first make the payment and perform the covenants hereinafter mentioned on his part to be made and performed, the said party of the second part covenants and agrees, at the time hereinafter stated, to convey and assure to the said party of the first part, in fee simple, clear of all incumbrances whatever, by a good and sufficient warranty deed, the lot, piece or parcel of ground situate in the county of Cook, and State of Illinois, known and ■described as the north one-half (¿-) of the north-west one-quarter (j-) of section twenty-three (23), township thirty-eight (38) north, range thirteen (13), east of the third principal meridian, except the east fifty (50) feet thereof, heretofore taken for a railroad right of way, and subject also to all streets, alleys and highways, and subject also to all taxes, assessments or other impositions legally levied or imposed upon said land subsequent to the year A. D. 1886. And said second party also agrees to furnish to said party, on or before January 10,188Y, (or as soon thereafter as the probate proceedings in the estate of Matilda Hale, deceased, can be finally settled, and the abstract of title continued to show such settlement,) an abstract of title showing good title and power and authority to sell and convey in said second party as trustee, as aforesaid. And the said party of the first part hereby covenants and agrees to pay to the said party of the second part the sum of $24,000 in the manner following, to-wit: $500 cash down upon the signing of this agreement, and within ten days after said second party shall have furnished to said first party said abstract of title as above provided, said first party shall pay to said second party the further sum of $3500, and will make and deliver to him his four promissory notes, dated January 1,1887, payable to the order of said second party at the Merchants’ Loan and Trust Co., Chicago, Illinois,—one for $3000, payable April 1, 1887, one for $5000, payable one year after date, one for $6000, payable two years after date, and one for $6000, payable three years after date,—all with interest from date, at the rate of six per cent per annum, payable semi-annually, and at the same time will make, execute and deliver to said second party a mortgage on the.premises above described, securing said four above mentioned promissory notes, and at the same time the said second party (the first party having performed his contract) will execute and deliver to said first party the warranty deed aforesaid. In case the abstract of title to be furnished as aforesaid, does not show a good title as herein stated, then the five hundred dollars ($500) this date paid hereon shall be returned to said first party and this contract determined.
    “ ‘In case of a failure of said first party to make either of the payments or to perform any of the covenants on his part made and entered into hereby, then this contract shall, at the option of said second party, be forfeited and determined, and said second party shall retain all payments made, as his agreed and liquidated damages. It is hereby agreed that all the covenants and agreements herein contained shall extend to and be obligatory upon the heirs, executors, administrators, successors and assigns of the respective parties hereto.
    “ ‘In witness whereof said parties have hereunto set their hands and seals the day and year first above written.
    Amos W. Cravener, (seal.)
    Prescott G-. Hale, (seal.)
    Trustee under last will and testament of Matilda Hale, dec’d.’
    “After the making of said contract, appellee proceeded to close up the proceedings in the probate court, and on or about January 6,1887, his final account was approved by said court, and appellee was discharged as executor, and the estate closed. The abstract of the land mentioned in the contract was extended by appellee so as to show the final settlement of the estate, and delivered on January 14,1887, and as soon as it was completed by the abstract makers, to the agent of appellant.
    “On January 8, 1887, Martin C. Hale, Douglass E. Hale and Franklin M. Hale, three of the children and heirs-at-law of said Matilda Hale, deceased, filed their bill in chancery, in the circuit court of Cook county, against appellee and other heirs, alleging, among other things, that the said last will of said Matilda Hale, deceased, was not the last will of said deceased, and praying, among other things, that the same might be set aside. The abstract which was delivered to appellant by appellee on January 14,1887, did not show the commencement of said suit in chancery, though it did show that the same parties who filed said bill, objected, on January 6, 1887, in the probate court, to the discharge of appellee as executor, on the ground, as they alleged, that said will was not the last will of said Matilda Hale. The abstract furnished to appellant was submitted by him to his solicitor for examination, and on January 20, 1887, said solicitor sent to appellant the following opinion of title:
    “ ‘I have given the abstract of title to the land N. J N. W. J, sec. 23, T. 38, 13, in Cook county, Illinois, a careful examination/ It is my opinion that the title stood at death of Matilda Hale in her, and that she had good right to convey the same, or to devise the same by will; that under the will, if the same is in all respects valid, Prescott Gr. Hale, as her trustee, has full right to sell and convey the same, and that a deed from said Prescott Gr. Hale and her other heirs (none being under disability) will give a good title in any event.
    Tours’ H. T. Helm.’
    “Neither Cravener nor his solicitor knew of the filing of the bill attacking the will till after the date of said opinion. Some negotiations took place between the parties with reference to some arrangement by which the chancery suit might be disposed of and the title passed, but nothing was accomplished, and on March 9, Cravener filed a petition to be made a party defendant in said suit in the circuit court, and set out in his j>etition a copy of his contract for the purchase of the land in controversy, and an order was made by the court, making said Cravener a co-defendant, with leave to answer.
    “Cravener did not make the payment of money required by the contract to be made within ten days of the delivery to him of the abstract, and did not make and deliver the promissory notes or mortgage provided for in the contract. About May 7, 1887, Hale was offered $28,500 for the property in controversy, and through his attorney answered that he could not sell till he had gotten rid of the contract with Cravener, which he proposed to do. On May 27, 1887, Hale tendered to Cravener a deed of the premises described in the contract, and which was in form according to the contract, and demanded that Cravener should pay the money then due under the contract, and should execute and deliver the notes and mortgage according to the terms of the contract; but appellant refused to accept said deed and to make the payments or execute the notes, whereupon appellee tendered to appellant $512.75,— being the $500 which appellant paid on the contract, with interest thereon from December 24, 1886, when it was paid; but appellant refused to receive said tender or to accept said money, and thereupon appellee declared the said contract determined, and demanded from appellant the abstract of title. The next day appellant went to the office of appellee’s solicitor, and there tendered to appellee the money due under the contract, and offered to receive the deed and execute the mortgage and notes, provided appellee would procure said chancery suit to be dismissed; but appellee declined, for the reason that he could not get the suit dismissed without the payment of a large amount of money.
    “On June 4, 1887, the bill in this suit was filed, showing that appellant refused to discharge said contract, and that by his filing a copy thereof in said suit in the circuit court it had become a cloud on the title of appellee, and that appellant claims a conveyance of said premises, but insists that said chancery suit should be settled or caused by appellee to be dismissed, and praying that said contract be declared null and void, and be removed as a cloud on appellee’s title, and be ordered delivered up and canceled. On the hearing, the facts above set out appeared from the pleadings and proofs of the respective parties, and upon said facts the court entered a. decree granting the relief prayed for in appellee’s bill.
    “The correctness of the decree depends upon the question whether, under the terms of the contract and the facts stated, appellee had a legal right to rescind the contract and tender back the deposit paid by appellant. The terms of the contract obligated appellee to convey and assure to appellant a fee simple title to the premises described, and, to discharge such obligation, appellee was bound to convey a marketable title,—that is, a title not subject to such reasonable doubt as would create a just apprehension—one that would be regarded as merchantable, so that persons of reasonable prudence and intelligence would be willing to take it, and pay the fair value of the land. Parker v. Porter, 11 Bradw. 602; Brown v. Cannon, 5 Gilm. 174; Snyder et al. v. Spaulding, 57 Ill. 480.

      “It is very plain that the title to the land mentioned in the contract was not in the merchantable condition at the time appellee tendered the deed to appellant and demanded the performance of the contract, and appellee, not being able to convey such a title as would satisfy the covenants in his agreement, could not put appellant in default by tendering the deed and demanding performance of the contract. Appellant had not agreed to accept such a title as was offered to him, and no prudent man would do so while subject to the uncertainty cast upon it by the filing of the bill. Indeed, it is frankly admitted by counsel for appellee, in his brief filed in this court, that appellant could not be compelled to accept any' other than a good title, and he states that appellee has never insisted, that appellant was bound to accept the title, in view of the litigation that was developed after the contract was made. If appellant was not put in default by the tender of the deed, then appellee had no right to rescind the contract on the ground that appellant refused to perform it.
    “It is contended by appellee that the conditions in the contract authorized him to rescind if the title was not found good. The condition is, Tn case the abstract of title to be furnished as aforesaid does not show a good title, as herein stated, then the $500 this date paid thereon shall be returned to said first-party, and this contract determined.’ Now, it is obvious that any party who seeks to determine his contract by availing himself of a condition therein contained providing for such determination, must bring himself strictly within the terms of such condition. The condition is not to be liberally construed, nor enlarged to include facts or circumstances not within its terms, but, on the contrary, is, in contracts for the sale of lands, to he taken most strongly against the vendor.
    “In Greaves v. Wilson, 25 Beav. 290, which was a bill for specific performance in a case in which the vendor sought to determine a contract under a condition contained in it, the court said: ‘The mode in wThich these conditions must be con■strued is explained in all the eases upon the subject. They must be construed, like every other instrument, most strictly •against the person who frames them, because the vendor alone can be the sole judge of the necessity or propriety of making such conditions before he offers the property for sale. In addition to that, it is to be borne in mind that a person who •offers property for sale becomes subject to certain duties, in the character of vendor, and that he does not get rid of them by special conditions of sale.’ It is further said in the same case, ‘that a vendor can not make use of a condition to rescind a contract, for the purpose of getting rid of the duty which attaches to him upon the rest of the contract, of making out ,a title.’ And to this effect is Page v. Adams, 4 Beav. 269.
    “In In re Jackson, 14 L. R. (Ch. Div.) 851, the rule laid down in Greaves v. Wilson, supra, was followed in a case where the •condition provided, among other things, that objections should be made within fourteen days from the delivery of the abstract, and if none were made within the time, the title was to be deemed accepted, and if the purchaser should insist on any objection which the vendor should be unable, or, on the ground •of expense, should decline to remove, then the vendor should be at liberty to rescind the contract by notice, unless the purchaser should, by notice, withdraw the objection, and upon rescission the purchaser should receive back his deposit. The abstract delivered did not show the real state of the title, and after the title as shown by the abstract was approved, it was ■discovered that there was an equitable mortgage on the leasehold, of which the vendor was ignorant. The purchaser insisted that this should be discharged, and the vendor gave notice that he was unable and unwilling, on the ground of expense, to comply, and that he would rescind the contract unless the objection was withdrawn. The purchaser refused to admit the rescission, and applied to the court, and it was held that there could be no rescission, as the objection did not come within the condition, not having been shown by the abstract, and that the charge upon the property should be •cleared off by the vendor. See, also, Roberts v. Wyatt, 2 Taunt. 268, where a condition in a contract of sale by which the contract was to be void in case the vendor could not deduce a good title, is construed by Lord Mansfield to give an option, not to the vendor, but to the purchaser, to avoid the contract for failure to deduce such good title.
    “Now, in view of this rule of strict construction as against the vendor, as illustrated by these eases, has appellee brought himself within the condition which he seeks to avail himself of to rescind this contract ? He agreed to furnish to appellant an abstract of title showing good title, and power and authority to sell and convey, in himself, and provided a condition that in case the abstract of title to be furnished did not show a good title, the deposit should be returned, and the contract determined. The abstract which he furnished showed a good title, therefore it is clear that if nothing further had arisen to affect the title, appellee would have no right to rescind the contract under the condition. Facts existed, not shown on the abstract furnished by appellee, which render the title not good; but the existence of such facts can not avail appellee as a basis 'of rescission, for the condition only authorizes rescission ‘in case the abstract to be furnished as aforesaid does not show a good title.’ It will not do to suggest that the abstract, if perfect when delivered to appellant, would have failed to show the title good. Appellee took upon himself the duty of furnishing the abstract, and he furnished the one delivered, as a compliance with his undertaking, and he can not allege his own error or default in order to bring himself within the condition and accomplish a rescission.
    “This case is not like the cases of Hoyt v. Tuxbury et al. 70 Ill. 332, and Brizzolara et al. v. Mosher et al. 71 id. 41, cited and relied on by counsel for appellee. In the first of those cases the provision was, that payments were to be made in a certain time ‘after the title had been examined and found good.’ In the second case the clause in the agreement was, ‘should the title to the property not prove good, then the payment to be refunded.’ So in Manson v. Fletcher, L. R. (10 Eq.) 212, the condition was very broad, being, in effect, if any objection to-the title be persisted in, the vendor shall be at liberty to rescind the contract on returning to the purchaser his deposit. The difference between the conditions and provisions of the contracts in those cases, and that in the case under consideration, is too obvious to require specification. Such cases establish no rule for the construction of this condition.
    “Our conclusion is, that appellee could not rescind the contract under its terms, as he did not bring himself within the condition authorizing a rescission, and he could not rescind for non-performance by the appellant, because appellee was not himself in a condition to perform. As a general thing, a contract can not be determined or rescinded by a party to it unless he is in a position to demand a specific performance. Baker v. Bishop Hill Colony, 45 Ill. 264; Howe v. Hutchison, 105 id. 501; Johnson v. Pollock, 58 id. 181.
    “The decree of the court annulling the contract and directing its cancellation can not be sustained, and the same will be reversed, with directions to the Superior Court to dismiss appellee’s bill.”
    Mr. James S. Murray, for the appellant:
    The title is conceded to be good if the will is valid. Can the appellee hold the contract in abeyance until this litigation concerning the will is determined ? We contend that he has no such right under the contract, and that upon the declaration bf the appellee not to accept the title, then the appellant, had a right to refund the $500 and declare the contract determined.
    The appellant has never insisted that appellee was bound to accept the title, in view of litigation that was developed after the contract was made. Nor has he attempted to forfeit anything. He merely claims what the contract clearly provided,—that if the title was not found to he good, neither party should be embarrassed, but that each should be placed in statu quo. This intention is most clearly and positively expressed. The provision is: “In case the abstract of title to be furnished as aforesaid does not show a good title, as herein stated, then the five hundred dollars ($500) this date paid thereon, shall be returned to said first party, and Uiis contract determined.” Brizzolara v. Mosher, 71 Ill. 41; Hoyt v. Tuxbury, 70 id. 332; Fry on Specific Performance, sec. 732; Fitch v. Willard, 73 Ill. 107; Greaves v. Wilson, 25 Beav. 290; Mawson v. Fletcher, L. R. (10 Eq.) 212.
    Messrs. H. T. & L. Helm, for the appellee:
    Under a contract calling for a “good title,” the vendee is entitled to a marketable title. Parker v. Porter, 11 Bradw. 602; Brown v. Cannon, 5 Gilm. 174; Snyder v. Spaulding, 57 Ill. 480; 1 Sugden on Vendors, (8th Am. ed.) 336.
    The vendee is not bound to accept a deed and rely on the covenants of warranty. His bond calls for the title, not covenants. Thompson v. Shoemaker, 68 Ill. 256; Tyler v. Young, 2 Scam. 444; 22 Ill. 127; 26 id. 396; Baker v. Bishop Hill Colony, 45 id. 264; Vining v. Leeman, id. 248; Johnson v. Pollock, 58 id. 181; 58 id. 182; Fames v. Germania Turnverein, 8 Bradw. 672; Denby v. Graff, 10 id. 195.
    The furnishing the vendee with a truthful abstract of title was a condition precedent. Howe v. Hutchinson, 105 Ill. 501.
    The vendor can not claim a forfeiture unless he is in a position to demand a specific performance. Such is the express statement of many adjudications. Baker v. Bishop Hill Colony, 45 Ill. 264; Vining v. Leeman, id. 248; Wallace v. McLaughlin, 57 id. 53; Johnson v. Pollock, 58 id. 182; Brown v. Cannon, 5 Gilm. 174; Snyder v. Spaulding, 57 Ill. 486; Howe v. Hutchinson, 105 id. 501.

      The demand made by appellant upon appellee, on the 27th of May, goes for naught; and appellee was under no obligation to make tender or offer of payment until the vendor was in condition to give a good title. Denby v. Graff, 10 Bradw. 195, and cases cited.
    This contract is to be construed most strongly against the vendor. The vendor expressly agreed to convey the land, and to furnish the vendee with an abstract showing a good title. He shall not be allowed to say, because he has failed to keep either of these covenants, that this fact gives him the right to say the contract has no binding force. It could not have been intended that this contract was only to bind the vendee. There should be some mutuality in its provisions. This clause should not be regarded as an open link, which the vendor could use at his pleasure to annul the binding force of his agreements, whenever, from choice or necessity, he should find himself in default. It shall not be said that when a party agrees to do a certain thing, and in case of default or failure the contract shall have no binding force, such obligor can release himself from the binding force of his own obligation by simply failing to perform his agreement. Mason v. Caldwell, 5 Gilm. 196; Chrisman v. Miller, 21 Ill. 235; Howe v. Hutchison, 105 id. 504; Canfield v. Westcott, 5 Cow. 207.
    This clause was inserted for the peculiar benefit of the vendee, and not for the purpose of enabling the vendor to release himself, and this case is clearly distinguishable from Brizzolara v. Mosher, 71 Ill. 41.
   Mr. Justice Scholeield

delivered the opinion of the Court:

We concur in the views expressed in the foregoing opinion of Mr. Justice Moran, both upon the law and the facts.

The acts required to be done by the respective parties, after the signing of the contract, are to be done in this order: First, Cravener is to pay $500 in cash, which was done; second, Hale is to furnish to Cravener, on or before January 10, 1887, or as soon thereafter as the probate proceedings in the estate of Matilda Hale, deceased, can be finally settled and the abstract of title continued to show such settlement, an abstract of title, showing good title, and power and authority to sell and convey; third, Cravener is to pay Hale, ten days after said abstract shall have been furnished, $3500, and execute the notes and mortgage stipulated, for the balance of the purchase money; fourth, Hale is to convey the land described to Cravener, in fee simple, free and clear of all incumbrances whatever, by a good and sufficient warranty deed.

Bach party, it will thus be seen, is obligated, absolutely, to perform his undertaking in the order thus stated. There is no stipulation whereby either shall be released therefrom without the consent of the other. The doing of the preceding act by the one, necessitates the doing of the succeeding act by the other. Of course, either party may waive (because he may give away what he pleases) the doing of the preceding act by the other, and proceed to the performance of the succeeding act; but unless he shall do so, this order of sequence must be observed.

The stipulation that in case the abstract of title to be furnished does not show a good title, the $500 paid at the date of the execution of the contract shall be returned and the contract determined, can not be taken advantage of by Hale, because, first, it is manifestly designed for the benefit of Cravener, only. Hale, it is to be presumed, knows the title he has, while Cravener does not; and since it can not affect Hale adversely if Cravener shall be content to take a bad title, he may elect to take any title which the abstract discloses. Second, Hale’s undertaking to convey is entirely independent of his ability to furnish the required abstract, and is in no respect conditional.

Cravener does not now have an option to take the title of Hale, or not, at his election. He had an option to accept the title offered, or to reject it, because of the pendency of the suit, unknown to him and not disclosed by the abstract, to set aside the will, when he learned the pendency of that suit; but that he waived, by an agreement, tacitly, at least, made with Hale, to postpone the further execution of the contract until the termination of that suit. If that suit results in sustaining the will, he is obliged to accept the title, and he can exercise no option whatever, and the contract is not, therefore, unilateral in this respect.

The judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Mageuder

text:
    The St. Louis Bridge Company v. The People ex rel. James D. Baker, Collector.

      Filed at Mt. Vernon

      May 10, 1889.

    1. Taxation—townboard of review—adjourned meeting. On the fourth Monday of June, which was the 27th, the assessor and town clerk met to hear complaints in respect of the assessment of property in the town. On objection being made to the assessment of a bridge structure, an adjournment was made to the following day on account of the death of the supervisor, and so on until July 2, when the successor of the supervisor was appointed, and was present, and the assessment of the bridge was raised, on the complaint of the mayor of the city in which the bridge was situated : Held, that the action of the board of review in adjourning was not contrary to law.
    2. Same—evidence—to show meeting and adjournment of town board. The record of a town clerk showing that he and the local assessor met to review the assessment of property, and an adjournment of the hearing of complaints to a subsequent day, is the best evidence of the fact of such meeting and adjournment.
    3. Same—who may complain in respect to an assessment. The town-. ship board of review may increase the assessment of any particular property on the application of any person who shall complain. The right to make such application is not confined to tax-payers. A city interested on account of its revenues may make the application through its mayor.

      4. Same—appeal to the county board. "Where the town board of review improperly increases an assessment, it would seem that the owner of the property assessed may apply to the county board, under section 97 of the Revenue act.
    5. Same—return of assessor’s books. Section 90 of the Revenue act, requiring the assessor to return his books to the county clerk on or before the first day of July, is directory, merely, and under sections 191 and 280, the failure of the assessor to return his books on the day fixed will not vitiate the assessment.
    6. Cboss-ebrors—whether necessary. On appeal of a tax-payer from a judgment of the county court, the appellee (the collector) can not allege for error the refusal of the county court to render judgment for a particular tax, unless cross-errors have been assigned on the record in accordance with the rule of this court.
    Appeal from the Comity Court of St. Clair county; the Hon. John B. Hat, Judge, presiding.
    Messrs. G. & G. A. Koerner, for the appellant:
    Under section 86 of the Revenue law, the assessor, town clerk and supervisor are required to meet on the fourth Monday of June, and to review the assessment on the complaint of any person aggrieved, or who complains that the property of another is assessed too low. Any two of the officers may act, and they may adjourn from day to day. The illness or death of one of them is no excuse for not meeting and attending to the business presented. All complaints must be made on the fourth Monday of June, and none can be acted on which are not made on that day. Statutory provisions regarding such board are mandatory, and a compliance is held a condition precedent to any further proceeding. Cooley on Taxation, 365 ; Marsh v. Chesnut, 14 Ill. 223; Blackstone on Tax Titles, 42; Nashville v. Weiser, 54 Ill. 245; Batik v. Cook, 77, id. 622.
    “When, therefore, either directly by the statute, or by some officer or board under its authority, a certain time is fixed for the meeting of a board of review, and the board fails to meet, * * * the tax proceeding must be regarded as having failed to become effectual, because of the officer failing properly to follow them up as required by law. No argument can be admitted in such case which proposes the acceptance of something else.” Cooley on Taxation, 366; Coburn v. Coe, 67 N. H. 556; Stuart v. Palmer, 74 N. Y. 183.
    The meeting of the commissioners of highways, under section 13, for the levy of the road and bridge tax, was required to have been held on the first Tuesday of September. Railroad Co. v. People, 116 Ill. 243; Railway Co. v. Commissioners, 117 id. 279.
    However, whether there was a reason for it or not, the law is imperative that this meeting of commissioners should beheld on the Tuesday preceding the annual meeting of the board of supervisors.
    With quasi corporations, such as commissioners of highways, the rule obtains, that their power to impose taxes will be strictly construed. This is the language of this court in Comrs. of Highways v. Newell, 80 Ill. 587. The time of their meeting for the purpose of levying the tax is jurisdictional no authority is given them anywhere in the statutes to levy a tax at any other time. No authority is given the commissioners to meet on that day and adjourn their meeting for action to a later day. If they had such an authority the proof shows that they did not exercise it. They did not meet at the office of the auditors, nor anywhere else. They passed no resolution to adjourn. According to the testimony of one of the commissioners, they agreed to meet when the sick commissioner would be well, not even fixing a certain day. If they had met there would have been a quorum to transact business, and they knew, as they testified, that they could transact business. See, also, as to the proof of jurisdiction, Sanderson v. LaSalle, 57 Ill. 441.
    Mr. George Hunt, Attorney General, for the appellee:
    Error or informality in the proceedings of any of the officers connected with the assessment, levying or collecting of the taxes, not affecting the substantial justice of the tax itself, does not vitiate, or in any manner affect, the tax or assessment thereof. Union Trust Co. v. Weber, 98 Ill. 351; Gage v. Bailey, 102 id. 17.
    The remedy for an excessive valuation is by application to the town board of review, under section 86 of the Revenue law, and to the county board, under section 97 of the same law. Stock Exchange v. Gleason, 121 Ill. 524; People v. Lots in Ashley, 122 id. 297.
    The cases holding the statute mandatory as to the holding of the board of review were decided before the adoption of our present statute, which has worked a radical change. Chiniquy v. People, 78 Ill. 570.
    The precise day for levying the road and bridge taxes, under sections 13, 14 and 16 of the Road law, is not material, but it will be sufficient if the certificate is filed with the county clerk in time to have the tax extended. Railway Co. v. People, 116 Ill. 232.
    When the requirement of the law which has failed of observance is one which has regard simply to the due and orderly conduct of the proceedings, or to the protection of the public interests as against the officer, so that to the tax-payer it is immaterial whether it was complied with or not, a failure to comply ought not to be recognized as a foundation for a complaint by him. Cooley’s Const. Lim. 520, note 2.
    Lord Mansfield would have the question whether a law is mandatory or not. depend upon whether that which was directed to be done was or was not of the essence of the thing required. Rex v. Locksdale, 1 Burr. 447.
    The Supreme Court of New York, in an opinion approved by the Court of Appeals, said: “Statutes directing the mode of proceeding by public officers are directory, and are not regarded as essential to the validity of the proceedings themselves, unless it be so declared in the statute.” People v. Cook, 14 Barb. 290; 8 N. Y. 67.

      Under the statute of 1873, and section 191 of the Revenue Code, a failure to levy and return local municipal taxes within the time specified by law will not defeat their collection. Buck v. People, 78 Ill. 566; Chiniquy v. People, id. 570; Railway Co. v. People, 119 id. 211; Moore v. Fessenbeck, 88 id. 422; Railroad Co. v. Surrell, id. 535; Thatcher v. People, 79 id. 597; Riverside Co. v. Howell, 113 id. 267; People v. Railroad Co. 88 id. 537.
    Mr. F. G-. Cockrell, for the city of East St. Louis.
    Mr. R. D. W. Holder, for the appellee Baker.
   Mr. Justice Mageuder

delivered the opinion of the Court:

This was an application by appellee, as county collector of Saint Clair County, to the County Court of that county for judgment against delinquent lands. The appellant, the Saint Louis Bridge Company, one of the owners of lands and lots reported as delinquent, appeared and filed three objections to the entry of judgment for the amount of tax reported to be due on the St. Louis Bridge structure. The County Court sustained one of the objections, but overruled the two others, and rendered judgment against property, etc. The case comes before us on appeal from this judgment of the County Court.

The first of the overruled objections is, that the assessment of the bridge structure, made by the township assessor, was illegally raised by the town board of review. The assessor of the township valued the property at $750,000.00; the board of review raised this valuation to $1,000,000.00; the State Board of Equalization accorded a reduction of twenty per cent, so that the amount, on which the taxes were assessed, was $800,000.00. The increase complained of by appellant is that of $750,000.00 to $1,000,000.00.

The 86th section of the Revenue Act provides, that, “in counties under township organization, the assessor, clerk and supervisor shall meet on the fourth Monday of June for the purpose of reviewing the assessment of property m such town.” In the present case the fourth Monday of June was June 27, .1887. Appellant contends, that no meeting of the hoard took place on that day. It is true, that one Noel, a deputy assessor, says that “as he understands,” no meeting took place on June 27,1887, on account of the illness of John P. Timlin, the supervisor.

But the best evidence upon this subject is the record of the town clerk of East St. Louis. This record was produced in evidence and is not discredited in any way. It shows that the assessor and the town clerk met on Monday, June 27, 1887; that complaint was then made that the property of the Bridge Company was assessed too low; that an adjournment was had until June 28, 1887, and that on each day thereafter an adjournment was had until July 2, 1887. These adjournments took place from day to day, on account of the death of the supervisor, Timlin, which occurred on the night of June 27, and on account of the proceedings for the election of his successor, which resulted in the election, on June 30, of H. 0. Boiighan, as such successor. The Board, composed of the clerk, the assessor and the new supervisor, met on Friday, July 1, to hear the matter of the increase of the assessment. The attorney of appellant was present, and it was agreed, that the hearing should be had on the next day, Saturday July 2. On the latter day, the assessment was reviewed by the board. The attorney of the appellant was present at the review, and participated in the proceedings, introducing and examining as many as three witnesses.

Counsel for appellant claim, that, as “any two of said officers meeting are authorized to act” by the terms of section 86, the assessor and town clerk should have proceeded to review the assessment on June 27 in the absence of the supervisor, and that the illness and death of the supervisor furnished no excuse for the adjournments. The section says, that any two members of the board “may adjourn from day to day, till they have finished the hearing of all eases presented on said day,” that is, the fourth Monday in June. The case of appellant’s- ' property was presented on that day by the application of the Mayor of East St. Louis, complaining that the bridge structure was assessed too low. The board had the power to adjourn as it did, and we see no reason for holding, that respect for the memory of their deceased associate, and a desire to have the assistance of his successor in the performance of their duties, were unworthy reasons for the exercise of such power.

It is said, that the hoard of review should have closed its labors before Friday, July 1, because the assessor is required by section 90 of the revenue act to return his books to the county clerk on or before the first day of July'of the year, for which the assessment is made. But we have held that, under sections 191 and 280 of the act, the failure of the assessor to return the assessment on the day fixed by the statute does not vitiate the assessment. (Purrington v. People, 79 Ill. 11; Eurigh v. People, 79 id. 214.)

It is also urged, that the complaint as to the lowness of the-assessment must be made to the board, by a tax-payer, and that the City of East St. Louis, acting through its mayor, was not a tax-payer. We think the complaint was properly made-by the city, as the latter was interested in the amount of the tax to be raised. Section 86 says that the assessment may he reviewed upon the application of “any person who shall complain” etc. Such application is not confined to tax-payers-by the terms of the section.

Without specially noticing any other supposed errors or in-formalities, to which counsel for appellant refer, we deem it. sufficient to say, that they do not affect the substantial justice of the tax, and, therefore, under section 191 of the revenue-act, do not vitiate the assessment. It is also to be observed, that the appellant did not ask the County board, at its meeting on the second Monday in July, to review and correct the-assessment, as provided for in section 97 of the revenue law.

We think that the objection to the increase of the assessment was properly overruled by the County Court.

The second of the overruled objections is, that the special road and bridge tax for 1887 within the township of East St. Louis was illegally levied by the Highway Commissioners of said township.

The tax is claimed to be illegal, because it was levied at a meeting of the Highway Commissioners held on September 13, 1887. It is contended that the levy should have been made on September 6, 1887, and that, on that day, the commissioners held no meeting.

This objection is discussed in the cases of St. Louis Nat. Stock Yards v. People ex rel. Baker, Collector, and The St. Louis Bridge & Tunnel R. R. Co. v. The People ex rel. Baker, Collector, 127 Ill. pages 22 and 627. The rulings in those cases must govern in this case. The objection was there overruled as to the levy of forty cents made on September 13, 1887, but sustained as to the levy of twenty cents made on October 20, 1887.

The objection made by the appellant in the court below, which was sustained, related to the special tax for the year 1887 levied by the city of East St. Louis. Counsel for appellee contend in their briefs, that the County Court erred in sustaining the objection of the Bridge Company to this special tax. All the proceedings of that court in relation to such tax are in the record now before us, but we can not review them, because appellee has failed to assign cross-errors in accordance with the rule. Cross-errors must be assigned within two days after the record is filed in this Court, and not afterwards without special leave of the court; and the assignment of cross-errors, as well as of errors, must be written upon or attached to the record.

For the error in rendering judgment for the additional road and bridge tax of 20 cents on the $100.00 valuation levied October 20, 1887, the judgment of the county court is reversed and the cause is remanded.

Judgment reversed.


text:
    William Haward et al. v. Angenette J. Peavey.

      Filed at Ottawa

      May 16, 1889.

    1. WHiLS—equitable conversion—as, a change in the nature of property—real estate to personal, and personal estate to real. An equitable conversion is defined to be that change in the nature of property by which, for certain purposes, real estate is considered as personal and personal estate as real, and transmissible and descendible as such. It is an application of the maxim, that equity regards that as done which ought to be done.
    2. It is not essential that there should be an express declaration in the instrument that the land shall be treated as money although not sold, or that the money shall be treated as land although not actually laid out in the purchase of it. Such direction may arise, by necessary implication, from the nature of the instrument or the language employed.
    3. There must, however, be an expression, in some form, of an absolute intention that the land shall be sold and turned into money, or that the money shall be expended in the purchase of land. The test is, has the will or deed absolutely directed that the conversion be made. In order to work a conversion while the property remains unchanged in form, there must be a clear and imperative direction to convert it.
    4. If the act of converting is left to the option, discretion or choice of the trustees or others charged with making it, no equitable conversion will take place, because no duty to make the change rests upon them.
    5. In this case, a testator devised all his estate after the payment of debts, etc., to his executors, in trust, for the support of his widow, and provided that on her death or marriage the executors should divide the property among his five children, or such of them as should then be living, or the lawful issue of such as might be dead. He also expressed a wish that the land be kept in the family, and authorized his executors to sell it to any of his sons at its full value, and provided that if any of his sons had any money advanced for them to begin with, the others should be made equal to them in the division: Held, that the executors were given a power of sale, the purchasers being limited to his sons, but that no imperative duty of sale was imposed, and hence there was no equitable conversion of the land into money. In such case, if no one of the sons was willing to purchase and pay the full value of the land, the power of sale could not be executed.

      6. Remainder—whether rested or contingent. A remainder is vested when a present interest passes to a party to be enjoyed in the future, so that the estate is invariably in a determinate person after the particular intervening estate terminates; while a contingent remainder is one limited to take effect either to a dubious and uncertain person, or upon a dubious and uncertain event.
    7. It does not follow, however, that every estate in remainder which is subject to a contingency or condition, is a contingent remainder. The condition may be precedent or subsequent. If the latter, the estate vests immediately, subject to being defeated by the happening of the condition, while in the former the remainder can not vest until that which is contingent has happened, and therefore become certain.
    8. A testator devised all his estate to his executors, in trust, for the benefit of his widow for life, or until her marriage, with the remainder to such of his children as should be alive at the termination of the precedent estate, or to the lawful issue of such of them as might be dead leaving such issue: Held, that the estate devised to the sons was a contingent remainder, until the happening of the contingency that the persons who were to take the estate should be alive at the death or remarriage of the widow. In such case, it makes no difference that the sons were named in the devise.
    9. Sale on execution—contingent remainder. A contingent remainder is not subject to sale on execution against the party entitled to the same.
    Appeal from the Circuit Court of La Salle county; the Hon. George W. Stipp, Judge, presiding.
    This was a petition for partition, brought by Angenette J. Peavey, in which she claims title in fee to an undivided one-fourth of certain lands formerly owned by one J ames Haward. On the 16th day of April, 1866, said Haward died testate, being seized in fee at the time of his death of the lands described in the petition, and leaving him surviving Ellen Haward his widow, and William Haward, George Haward, Bobert Haward, James Haward and Thomas Haward, his children and only heirs at law. His will, which was duly admitted to probate, was as follows:
    “This is the last will of me, James Haward, farmer, of Eden Township, county of La Salle and State of Illinois, in manner following:

      “First, I will and direct that all my just debts, funeral expenses and the costs of proving this my will, may be paid out of my personal estate as soon as convenient after my decease, and the rest and residue of my property, wheresoever situated and of what nature and kind soever, to he given in trust to my executors for the benefit and support of my wife Ellen, so long as she shall remain my widow and unmarried; that she and my two sons, James and Thomas, and also Eobert, if they think best, may carry on my said farm or any part of it, also to send the said James and Thomas to school, one at a time, to improve their education; and if at any time my said wife and sons may wish to give up farming, it shall and may be lawful for my executors to sell all my personal estate to the highest bidder, and the proceeds thereof to be invested in some secure place, and the interest of said money and also the rent of my real property to be given -to my wife to be used as aforesaid ; hut be it understood that my two old mares known by the names of Pigeon and Kitty shall not on any account be ■sold out of the family; if my said wife does not wish to keep them, any one of my sons may have them to keep, but if none of the family will keep them, my executors shall cause them to he destroyed and buried.
    ' “On the death of my wife, or in the event of her marrying again, my executors shall then proceed to divide the property among my children. To my son William I give two hundred dollars as his share, as I think he is better provided for than any of the others, and the land I wish to be kept in the family, and the executors may sell it to any of the boys at its full ■value, and the proceeds of all my property, both real and personal, to he divided among my several children, William as above mentioned two hundred dollars, and the residue equally ■divided between such of my children, George, Eobert, James and Thomas, as may he then alive, or the lawful issue of such ■of them as may he dead leaving lawful issue.

      “And, lastly, I nominate and appoint my said wife Ellen ■executrix, and my sons William and Robert executors, of this my will, and that they be paid all reasonable expenses for their trouble in executing this my will, and if any of my sons have any money advanced for them to begin with, the others must be made equal to them in the division of the property.”
    Ellen Haward, the widow, remained unmarried until her •death, which occurred July 26, 1886. On the 20th day of December, 1877, and during the lifetime of said widow, the petitioner recovered a judgment in the Circuit Court of the United States for the Northern District of Illinois against Robert Haward, one of the sons, for $963.16 and costs. On the 15th day of May, 1882, the interest of said Robert Haward in said land was sold on an alias execution issued on said judgment, the petitioner becoming the purchaser, and in due time a marshal’s deed was executed to her, and under that deed she claims title in fee to an undivided one-fourth of said land. ‘The widow lived upon and occupied said land until her death, and no part of it has ever been sold or conveyed by the executors. On the 5th day of March, 1878, James Haward conveyed his interest in said land "to William Haward, and on the 8th day of the same month Robert Haward also conveyed his interest to William Haward. At some time prior to the hearing, the date not being shown by the record, Thomas Haward died intestate and without issue.
    At the hearing the court found the petitioner to be the owner in fee of an undivided three-twelfths,. William Haward of an undivided five-twelfths and George Haward of an undivided four-twelfths of said land, and a decree was entered accordingly. It being admitted by all the parties that said premises were so situated as not to be susceptible of division without manifest prejudice to the owners thereof, it was ordered that it be sold and the proceeds, after the payment of costs, be divided between the parties according to their respective interests as found by the decree. William Haward and George Haward. have thereupon appealed to this court.
    Messrs. Duncan & Gilbebt, for the appellants:
    That a devise of real estate which is to be converted into money and the money distributed, is a devise of money and not of land, and that it can not be sold under execution against the devisee, has been repeatedly decided by this court. Baker v. Copenbarger, 15 Ill. 103; Jennings v. Smith, 29 id. 116.
    It is not essential, however, that the direction should be express in order to be imperative. It may be necessarily implied. Pomeroy’s Eq. Jur. see. 1160; Bispham’s Eq. secs. 311, 312; Wert’s Exrs. v. Page, 19 N. J. Eq. 365.
    If there was no equitable conversion, the devise was not vested, but contingent, and the interest was not subject to-levy and sale under execution. Freeman on Executors, sec. 178; Baker v. Copenbarger, 15 Ill. 103; McIlvaine v. Smith, 42 Mo. 45; Olney v. Hull, 21 Pick. 311; Nash v. Nash, 12 Allen, 345; Putnam v. Gleason, 99 Mass. 454; White v. Woodberry, 9 Pick. 139; Richardson v. Wheatland, 7 Metc. 166; People v. Jennings, 44 Ill. 448.
    Mr. L. Leland, for the appellee:
    • That there was not an equitable conversion of the land into-money, see Story’s Eq. Jur. sec. 1214; Jarman on Wills, 483.
    That the interest of Robert Haward was vested, and not contingent, see 4 Kent’s Com. 203 ; 1 Jarman on Wills, 631, 632; Railsback v. Lovejoy, 116 Ill. 442; Female Academy v. Sullivan, id. 375; Hurt v. McCartney, 18 id. 129; Loan Co. v. Bonner, 75 id. 316; Lunt v. Lunt, 108 id. 307; Schofield v. Olcott, 120 id. 362.
   Mr. Justice Bailey

delivered the opinion of the Court:

The petitioner in this ease claims title in fee to an undivided’ one-fourth of the land in question by virtue of the sale under execution of Robert Haward’s interest therein, and the decree can be sustained only upon the theory that at the time of the levy and sale, Robert Haward was the owner of an estate in said land subject to execution. The appellants insist that Robert Haward at that time had no vested interest in the land, and in support of their contention they submit two propositions, viz.: First. That by the will of James Haward, deceased, said land was directed to be converted into money and the money divided among his sons, thus working an equitable conversion of the land, eo instanti, upon the death of the testator. Second. If there was no conversion, the interest given to Robert Haward by the will of his father was not a vested but a contingent remainder, and that such remainder did not become vested until after said levy and sale. It must be admitted that if either of these propositions can be sustained, the sale under the execution was nugatory, and vested no title in the purchaser.

Did the will of James Haward operate as an equitable conversion of said land ? Conversion has been defined to be, that change in the nature of property by which, for certain purposes, real estate is considered as personal, and personal estate as real, and transmissible and descendible as such. It is an application of the maxim that equity regards that as done which ought to be done. It is not essential that there should be an express declaration in the instrument that the land shall be treated as money, although not sold, or that the money shall be treated as land although not actually laid out in the purchase of it. Such direction may arise by necessary implication from the nature of the instrument or the language employed. But there must be an expression, in some form, of an absolute intention that the land shall be sold and turned into money, or that the money shall be expended in the purchase of land. The test is, has the will or deed absolutely directed that the conversion be made? In order to work a conversion while the property remains unchanged in form, there must he a clear and imperative direction to convert it. If the act of converting is left to the option, discretion or choice of the trustees or others charged with making it, no equitable conversion will take place, because no duty -to make the change rests upon them. 3 Pomeroy’s Eq. Jur. sec. 1159 et seq. and authorities cited. In Anewalt’s Appeal, 42 Pa. St. 414, the court lays down the rule, in language quoted from the standard authorities, as follows: “To establish a conversion, the will must direct it absolutely or out and out, irrespective of all contingencies. The direction to convert must be positive and explicit, and the will, if it be a will, or the deed, if it be by contract, must decisively fix upon the land the quality of money. It must be an imperative direction to sell.”

Does the will of James Haward contain an absolute direction, either in express terms or by implication, to convert the land of the testator into money and distribute it among his sons in that form, so as to leave to his executors no discretion on that subject? Said will assumes to deal with both real and personal estate, and as we have no information on the subject outside of the will, we may assume that the testator, at the time of his death, was the owner of personal as well as real property. The will gives all his property, both real and personal, to his executors, in trust for the benefit and support of the testator’s wife so long as she should remain his widow, and it was provided that the widow and certain of the sons might, if they thought best, carry on the farm or a part of it, or if they wished to give up farming, the executors were authorized to sell his personal property and invest the proceeds, and rent the land, paying to the widow the rent and the interest on the money invested. The direction to convert the land into money, if it exists at all, must be found in the following clause of the will:

“On the death of my wife, or in the event of her marrying again, my executors shall then proceed to divide the property among my children. To my son William I give two hundred dollars as Ms share, as I think he is better provided for than the others,' and the land I wish kept in the family, and my executors may sell it to any of the boys at its full value, and the proceeds of my property, both real and personal, to be divided among my children, William, as above mentioned, two hundred dollars, and the residue equally divided between such of my children, George, Bobert, James and Thomas, as may be alive, or the lawful issue of such of them as may be dead leaving lawful issue.”

By this clause the executors were clearly given a power of sale, the persons who might become purchasers being limited, however, to the testator’s sons, the reason of such limitation being the testator’s desire to keep the land in the family. But we fail to find any provision which, either expressly or by implication, made it imperative that the executors should exercise that power. Said clause first provides in terms for a division of the property among the testator’s sons upon the termination of the widow’s equitable estate. That provision standing alone would have made it imperative upon the executors to divide the property as it stood without a sale. But it being the testator’s desire that his land should remain in his family, he provided further, that his executors might sell the land to one of Ms sons, if any one of them was willing to buy and pay its full value, and make distribution by dividing the proceeds. It seems clear that the power of sale was given as an alternative and not as the exclusive mode of making division of the property. The testator’s wish that the land should be kept in the family seems to have furnished a governing principle in drafting the will, and that wish would be equally well accomplished by dividing the land itself among his sons, or by selling it to one of them and dividing the proceeds.

It should also be observed that the language of the will does not require the land to be sold, but only provides that it may be sold, and in case of sale the possible purchasers were limited to five persons. Because of such limitation it became necessary to provide that the purchaser should pay the full value of the land, for otherwise it might he sacrificed by reason of a lack of competition. It would have been repugnant to the very purpose for which a sale was permitted to allow the land to be sold to a stranger, as that would manifestly have taken it out of the family. If no one of the sons therefore had been willing to purchase and pay its full value, the power of sale could not have been executed. In that case the only division possible would have been a division of the land.

An argument is sought to be based upon the following phrase of the clause of the will above quoted, viz., “the proceeds of all my property, both real and personal, to be divided among my several children, ” etc. That language is a part of the provision permitting a sale, and its force is merely that, in ease of a sale, the proceeds should be divided. It clearly was not intended to apply to the division in case the land itself should be divided.

Nor can we perceive any special significance, as bearing upon the question under consideration, of the last clause of the will which provided that, “if any of my sons have any money advanced for them to begin with, the others must be made equal to them at the division of the property.” It is not claimed that any such advances had been made by the testator in his lifetime, and the language here quoted must be deemed to have reference to possible advances made to the sons by the executors, or it may he by the widow, out of the personal estate, during the lifetime of the widow. We are unable to see how an adjustment of such advances was not quite as practicable under one mode of division as under the other. Even if there was not sufficient personal estate for the purposes of such adjustment, and it is not shown that there was not, the necessity of making it would interpose no obstacle to the division of the land without a sale.

We are of the opinion that there was no absolute requirement in the will that the land should be sold, but that the sale was left to the discretion of the executors, and as no sale was actually made under the power, there was no equitable ■conversion of the land.

The lands of James Haward, deceased, being devised to his •executors to be held in trust for his widow during widowhood, and then to be divided among his children, the four sons specially named in the will took only an estate in remainder, and the material question here is, whether the remainder devised to his son Robert was, at the time of the execution sale, vested -or contingent. The proposition is not controverted that if it was merely contingent, it was not subject to sale on execution. This proposition seems to be supported by the following authorities: Watson v. Dodd, 68 N. C. 530; Jackson v. Middleton, 52 Barb. 9; Baker v. Copenbarger, 15 Ill. 103; Freeman on Executions, sec. 178.

The will provides that, upon the death or re-marriage of the widow, the executors shall proceed to divide the estate of the testator among his children, but in fixing the mode in which the division shall be made, it provides that William shall be given two hundred dollars in money as his share, “and the residue equally divided between such of my children, George, Robert, James and Thomas, as may be then alive or the lawful issue of such of them as may be dead leaving lawful issue.”

A remainder is said to be vested where a present interest passes to a party, to be enjoyed in the future, so that the estate is invariably fixed in a determinate person after the particular estate terminates; while a contingent remainder is one limited to take effect, either to a dubious and uncertain person, or upon a dubious and uncertain event. 2 Black. Com. 168. This definition is adopted, in substance, by all the text writers, and is sufficiently accurate. But it does not necessarily follow that every estate in remainder which is subject to a contingency or condition is a contingent remainder. The ¿condition may be precedent or subsequent. If the former, the remainder can not vest until that which is contingent has happened and thereby become certain. If the latter, the estate vests immediately, subject to be defeated by the happening of the condition. Bromfield v. Crowder, 1 Bos. & Pul. 313; Blanchard v. Blanchard, 1 Allen, 223; Manice v. Manice, 43 N. Y. 380; Washburn on Beal Property, (4th ed.) 579. It is plain that in the present case the estate devised was, so far as-Robert Haward was concerned, subject to a contingency, viz., his being alive at the time the particular estate should be determined by the death or re-marriage of the widow. Whether this contingency constituted a condition precedent or subsequent must be determined by the language of the will.

While the proper construction of the will is not a matter wholly free from doubt, it seems to be clear that the intention of the testator was not to devise to his son Robert a present estate subject to be defeated in case of his death before the termination of the particular estate, but to make the estate itself conditional upon his being alive at that time. The devise was not to him, nor to him and his three brothers, but only to such of the four as should be alive at the death or remarriage of the widow. If one or more of the sons named had died before the death of the widow, it would have been doing violence to the language of the will to hold that any estate was thereby vested in them. They would have been excluded by the very terms of the will from the number of those named as beneficiaries. The persons to whom the estate would go being wholly uncertain during the continuance-of the particular estate, it must be held that the contingency named, viz., that the persons who were to take the estate-should be alive at the death or re-marriage of the widow, was a condition precedent to the Vesting of the estate, and that until the condition happened the estate was necessarily contingent.

The cases to be found in the reports, so far as they can aid us in the interpretation of the will under consideration, seem to support the view we have here expressed. In Olney v. Hull, 31 Pick. 311, the iestator, after devising to his wife the use-of his real estate while she remained his widow, proceeded as follows: “Should my wife marry or die, the land shall then be equally divided among my surviving sons, with each son paying $60 to my daughters, to be equally divided among them, as soon as each son may come into possession of said land." It was held that until the death or marriage of the widow it was uncertain who would be alive to take, and therefore, that no estate vested in any one before that event happened.

In Nash v. Nash, 12 Allen, 345, the testator devised the use of his real estate to his wife during life, and at her death the fee to such of his children as might be then living, share and share alike, and it was held that, during the life of the widow, the estates given to the children were contingent and not vested.

In Thomson v. Ludington, 104 Mass. 193, the testator gave his estate to his widow during life or widowhood, and directed that at her decease or marriage, the estate should be divided “equally to and among such of my children as shall then be living, share and share alike; the names of my said children are George C., Ann L., Lucy M., Francis H. and Caroline E., to them and to their heirs and assigns forever.” It was there held that the will gave only a contingent remainder to such of the children as should happen to be living when the contingency of such death or marriage happened.

The case of Blanchard v. Blanchard, 1 Allen, 223, may be referred to as a fair illustration of a vested remainder, liable to be divested by the happening of a condition subsequent. There the testator devised to his wife all the income of all his real and personal property, and then devised as follows: “I give and bequeath to my beloved daughter Elizabeth Ford Blanchard, to my daughter Mary Jane Blanchard, to my daughter Anna Dawson Morrison Blanchard, to my son Henry Blanchard, and my son Samuel Orne Blanchard, all the property both real and personal that may be left at the death of my wife, to be divided equally between the five last named children. And provided, furthermore, that if any of the last five named children die before my wife, then the property to be equally divided between the survivors, except they should leave issue, in that case to go to said issue, provided the said issue be legitimate.” The testator had ten children, all of whom survived the wife. The court held that the portion of the clause above quoted preceding the proviso presented the ordinary case of a devise to the wife for life, remainder in fee at her death to five of her children, to be equally divided between them. There being in that portion of the devise no words of contingency, such as “if they shall be living at her death,” or “to such of them as shall be living,” the usual and proper phrases to constitute a condition precedent, a vested remainder was created in the children named as tenants in common. In construing the proviso, it was admitted that, if its effect was to limit the remainder to such of the children named as should survive their mother, the remainder would be contingent, but it was held, after a full review of the authorities, that the proviso merely introduced into the devise a condition subsequent, and that the remainder was vested, subject to be divested upon the happening of the condition.

The foregoing cases sufficiently illustrate the principles upon which the will in this case must be construed. The devise was to such of four persons as should be alive at the termination of the particular estate. Until that time arrived it could not be told who were to be the beneficiaries of the devise. Until that time the persons to take were not and could not be identified, and until that time it was wholly uncertain whether Robert Haward was one of them or not. Ij; follows that, at the time the land in question was sold under execution, Robert Haward’s interest was only a contingent remainder, which was not subject to levy and sale, and that no title therefore passed to the purchaser by the marshal’s deed.

An attempt is made to distinguish this case from the cases above cited upon the fact that in this case the four possible beneficiaries of the devise were mentioned by name, while in the cases cited, or in most of them, the devise was to the children who should he alive at the termination of the particular estate, as a class. Even that distinction does not exist between this case and Thomson v. Ludington, as there the children were all mentioned by name, and it is not even suggested there that that fact made any difference with their rights. But we are unable to see how there can be any greater degree of certainty in the designation of the beneficiaries where all the persons in the class are mentioned by name, than where they are simply designated as a class, so long as the devise is only to such of the persons named, or of the class, as may be alive at the expiration of the life estate. The contingency grows out of the use of the words, “to such of them as shall be living,” which, as said in Blanchard v. Blanchard, is a proper phrase to constitute a condition precedent.

The decree of the court below finding that the petitioner is the owner in fee of an undivided one-fourth of the lands sought to be partitioned is unsupported by the evidence. The decree will therefore be reversed and the cause remanded.

Decree reversed.