author: Per Curiam :

text:
    Catharine M. Brace et al. v. John W. Black et al.

      Filed at Springfield May 9, 1888.

    1. Contest of a will—testamentary capacity. A witness called by the contestants of a will, stated, on his direct examination, that he could make a statement that would throw light on the question whether the testator was laboring under the delusion that he had no property, and that he and his wife would eventually go to the poor-house, and show that he did not have that delusion, but contestants asked no further question. On cross-examination he was asked to make that statement, and the witness stated that the testator said his daughter demanded him to make her a deed to a part of his property, which he was unwilling to do, and also that he referred to an incumbrance, etc. Contestants then offered to prove by the daughter that she had never demanded her father to make a deed, which the court refused to allow: Held, no error. Even if the testator was either willfully or ignorantly mistaken as to the fact, still his declaration showed that he knew he had the property, and hence was laboring under no delusion in that respect.
    2. On the contest of a will, the court instructed the jury, for the proponents, that no one, however nearly related, had a natural right that could be asserted against the will of the testator, and the fact a person was the son-in-law of the testator did not entitle him to be regarded as a natural object of his bounty, and although they might believe, from the evidence, that the testator was prejudiced against the son-in-law, yet, unless they believed, from the evidence, that the latter had so conducted himself as to be entitled to the gratitude of the testator, and to be regarded as a natural object of his bounty, such prejudice, though morbid, and amounting to an insane delusion, would not of itself invalidate his will, provided such insane delusion did not prevent the testator from understanding and appreciating his relation to those who had a claim upon his bounty and who were the natural objects of his bounty: Held, not open to the objection of being misleading, as introducing a question not in the case, viz., whether the son-in-law had a claim on the testator’s bounty, and because the prejudice against the son-in-law might prevent the testator from making the provision he otherwise would for his daughter. If the insane delusion did not prevent him from “understanding and appreciating” his relation to his daughter, then he knew she was not responsible for anything her husband might have done or said.
    3. Witness—competency of party contesting a will. In a suit by the heirs-at-law of a testator, contesting the will, where the purpose of the suit is, not merely to adjust rights between the heirs-at-law, but to take the estate from the legatees, some of whom are not heirs-at law, and vest it in those who are, the heirs-at-law are not competent witnesses to show the want of testamentary capacity in the testator prior to and at the time of the making of the will.
    4. Appeal—whether a freehold is involved. Where the validity of a will is contested which makes a different disposition of real estate from that by the Statute of Descents, a freehold is involved, and the case may be brought directly to this court from the trial court, by appeal or writ of error.
    Writ of Error to the Circuit Court of Greene county; the Hon. George W. Herdman, Judge, presiding.
    Mr. John G. Henderson, for the plaintiffs in error:
    The burden of proof is on the party affirming the validity of the will. 13 Ill. 15; 41 id. 80; 62 id. 196; 89 id. 42.
    The oath of the subscribing witnesses, on being introduced, made a prima facie case, and the burden of proving unsoundness of mind then rested on complainants. Carpenter v. Calvert, 83 Ill. 71; Holloway v. Galloway, 51 id. 159.
    Insanity having been shown by the inquest found, the presumption of sanity is reversed. It will be presumed to continue. Lilly v. Waggoner, 27 Ill. 397; Trish v. Newell, 62 id. 200; Morton v. Appleton, 29 Me. 298; 1 Greenleaf on Evidence, secs. 42, 370.
    As to insane delusion, and its incapacitating one from making a will, see 1 Wharton & Stille on Med. Jur. sec. 35; Lucas v. Parsons, 24 Ga. 640.
    Complainants were competent witnesses. Pigg v. Carroll, 89 Ill. 207; Mueller v. Rebhan, 94 id. 149; Kershaw v. Kershaw, 102 id. 307; Ebert v. Gerding, 116 id. 221; Treleaven v. Dixon, 119 id. 553,
    Mr. E. A. Doolittle, for the defendants in error;
    When the evidence as to the mental capacity of the testator is conflicting, the judgment will not be reversed oh. the ground that the evidence does not support the verdict. Johnson v. Moulton, 1 Scam. 532; Roney v. Monaghan, 3 Gilm. 85 ; O’Reily v. Fitzgerald, 40 Ill. 310; Railway Co. v. Vosburgh, 45 id. 311; DeClerq v. Mungin, 46 id. 112; Young v. Rock, 48 id. 42; Railroad Co. v. Terhune, 50 id. 151; Railroad Co. v. Gillis, 68 id. 317; Calvert v. Carpenter, 96 id. 63.
    -There were three witnesses to the will, each of whom, by becoming a witness, virtually certified that the testator was of sound and disposing mind and memory. Each of them went before the probate court and signed and swore to an affidavit to the same effect, in so many words. This affidavit was introduced in evidence, and made out a prima facie case. Carpenter v. Calvert, 83 Ill. 71; Holloway v. Galloway, 51 id. 159.
    The will offered in evidence bears within itself ample proof that the testator possessed the necessary qualifications that he understood the business in which he was engaged at the time ; that he remembered the persons who were the natural objects of his bounty; that he knew and understood the nature and extent of his property, and the manner in which he desired to dispose of it. Jarman on Wills, (5th Am. ed.) 103, et seq; 1 Redfield on Wills, 123-135.

      The standard of measurement for a testator’s mental capacity is the ability of the testator to transact his ordinary business. Trish v. Newell, 62 Ill. 196; Meeker v. Meeker, 75 id. 260; Yoe v. McCord, 74 id. 34; Rutherford v. Morris, 77 id. 418; Carpenter v. Calvert, 83 id. 62; Kimball v. Cuddy, 117 id. 232; Freeman v. Easly, id. 317.
    The property owner, unless an idiot or lunatic, must be allowed to make his own division and disposition of his property. Nor does the fact that a party is physically unable to look after his property, or that his mind is enfeebled by age or disease, if not to the point of lunacy or absolute imbecility, take from him this power. Kimball v. Cuddy, 117 Ill. 232.
    If there were any doubt as to the meaning of the statute, the testimony of Mrs. Cullimore and Mrs. Brace was clearly incompetent, under the following decisions: Holloway v. Galloway, 51 Ill. 160; Fischer v. Fischer, 54 id. 231; Mahoney v. Mahoney, 65 id. 406; Alexander v. Hoffman, 70 id. 114; Whitmer v. Rucker, 71 id. 410; Connelly v. Dunn, 73 id. 218; Bragg v. Geddes, 93 id. 39; Walsh v. Wright, 101 id. 182; Wachter v. Blowney, 104 id. 610; Freeman v. Easly, 117 id. 317.
   Per Curiam :

This was a proceeding, by bill in equity, to contest the validity of an instrument purporting to be the last will and testament of William Black, deceased.

Two issues at law were made up and submitted to a jury : First, was the writing purporting to be the last will and testament of William Black, deceased, the last will and testament of the said William Black, or not; second, was the said William Black, at the time of the execution and attestation of the said writing purporting to be the last will and testament of said William Black, of sound mind and memory. The verdict of the jury was: “We, the jury, find the writing offered in evidence to be the last will and testament of William Black, ;and that he was, at the time of executing it, of sound mind and memory.” The court below, after overruling a motion for a new trial, entered a decree upon this verdict.

The will devised real estate in fee, and a freehold is therefore involved, and the writ of error is properly sued out of this court.

William Black left surviving him children, to whom his property would have descended, as his heirs-at-law, had he made no will, but by the terms of his will he devised a considerable portion of his property to grandchildren, and to one of his children he devised nothing.

Upon the trial, the complainants in the bill, Alice E. Cullimore and Catharine M. Brace, daughters of William Black, were offered as witnesses on their own behalf, to prove the insanity of their father at and prior to the time he executed the instrument in suit purporting to be his last will and testament; but the court, upon the objection of the guardian ad litem for the minor grandchildren, who are legatees, refused to allow them to testify, and a material question to be now considered is, whether this ruling is right. It is clear enough, that at common law these parties would be excluded by reason of their interest, and it would seem to hardly admit of a rational doubt that they are not rendered competent by the statute. The adverse parties defend as legatees, and that to which they were called to testify occurred before the death of the testator. The object of the suit is not merely to adjust rights between heirs-at-law, as in Pigg et al. v. Carroll et al. 89 Ill. 205,—it is to take the estate from the legatees, some of whom are not heirs-at-law, and vest it in the heirs-at-law. There was, therefore, no error in refusing to allow these parties to testify.

Dr. Turner, who was called and examined as a witness on behalf of complainants, stated, on his direct examination, that he could make a statement that would throw light on the question whether the testator was laboring under the delusion that he had no property, and that he and his wife would eventually go to the poor-house, and show that he did not have that delusion. Complainants’ counsel asked the witness no further question in this respect, but the counsel for the defendants, on cross-examination, asked the witness to make that statement, and the witness then said: “He (meaning the testator) said that Mrs. Cullimore demanded him to make her a deed to a part of the property, which he was unwilling to do at that time. Another reason was, that he referred to the incumbrance,” etc. Complainants then offered to prove, by Mrs. Cullimore, that she had never demanded him to make a deed, and the court, on objection, refused to allow her to so testify, and this is claimed also to have been error. We think the court ruled properly. Suppose, as the offered testimony would have tended to prove, that he was either willfully or ignorantly mistaken as to the fact that she had demanded a deed, still his declaration showed that he knew he had the property that he did have, and hence that he was laboring under no delusion in that respect, and this was the sole purpose of offering the testimony.

The court, at the instance of the defendants, among other things, instructed the jury:

“The court instructs the jury, for the defendants, that the natural objects of a testator’s bounty are those persons who, by reason of kinship or ties of gratitude, may reasonably be supposed to have some claim upon him, but that no one, however nearly related he may be, has any natural right that can be asserted against the will of the testator. So in this case, the mere fact, if it be a fact, that James Cullimore Was the son-in-law of William Black, did not, of itself, entitle him to be regarded as a natural object of the bounty of William Black; and although the jury may believe, from the evidence, that William Black was prejudiced against James Cullimore, yet, unless they further believe, from the evidence, that James Cullimore had so conducted himself as to be entitled to the gratitude of his father-in-law, and to be regarded as a natural object of his bounty, such prejudice, although morbid, and amounting to an insane delusion, would not, in itself, invalidate his will: Provided, such insane delusion did not prevent the testator, William Black, from understanding and appreciating his relation to those who had a claim upon his bounty, and who were the natural objects of his bounty.”

It is contended that this instruction was calculated to mislead, because, first, a question not in the case, namely, whether Cullimore had a claim on the testator’s bounty; second, the testator might understand and appreciate his relation to his daughter,—that she was his child, and had just claim upon his bounty,—and yet the insane prejudice of the testator against the husband enter into the making of the will, and prevent him from making that provision for her that he otherwise would. But this fails to give due effect to the words “understand” and “appreciate.” If the insane delusion did not prevent the testator from understanding and appreciating his relation to his daughter, then it must have been, first, that he knew that she was not responsible, and ought not to be held responsible, for anything that her husband did or said; and second, that he was able to estimate justly (for in this connection that is the sense of “appreciate”) his relation toward her. Having full knowledge and full capacity to reason, there is left no place for delusion to operate. Moreover, the court, in the sixteenth instruction given at the instance of the complainants, told the jury as follows: “That if the jury should believe, from the evidence, that William Black was capable of transacting ordinary business, where there was no intricacy about it, or complication, yet if the jury further believe, from the evidence, that he was laboring under partial insanity from the time that he was adjudged insane down to the time of his death, and that he entertained an insane prejudice against James Cullimore, which entered into and influenced him in the disposition of his property, so far as Alice Cullimore was concerned, then the jury should find that the paper read in evidence is not the will of William Black, and that he was not of sound mind and disposing memory at the time of the execution of said paper.” With this instruction, so fully supplementing the other, it is not presumable that the jury were misled.

We think it needful only to add, upon the subject of instructions, that twenty-one instructions, some of them quite lengthy, were given on behalf of the complainants, presenting, fully and fairly, as we think, every contention of the complainants, both of law and of fact. There was, therefore, no error in refusing other instructions asked by complainants.

We have carefully considered all of the evidence in this record, which is quite voluminous, and, having done so, we are unable to say that there was error in not setting aside the verdict of the jury as unsupported by the evidence. To discuss the facts at length would require many pages, and could subserve no useful end. We concede the question of the testator’s sanity is a close one, but we can not say that there is a clear and decided preponderance in the evidence that he did not possess what the law contemplates as a sufficiently sound mind to dispose of his property, when he made his will.

The decree is affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Magruder

license: Public Domain

text:
    Henry H. Gage et al. v. Benjamin A. Stokes et al.

      Filed at Ottawa May 9, 1888.

    1. Former adjudication—in the Supreme Court—as to what matters have been determined. A, the holder of an undivided two-thirds interest in land derived by sheriff’s deed in a proceeding by attachment against the original owner, filed his bill for partition against B, the owner of the other third, making O and D, the holders of an adverse title derived by deed from the attachment debtor, and also the holder of certain tax deeds, parties defendant, seeking to have such adverse titles and deeds set aside as a cloud on the title of A and B. The trial court found that the title of A and B was invalid, and dismissed the bill. This court reversed the decree, finding that the title of A and B, under the sheriff’s deed, was superior to the title of C and D derived under the deed from the attachment debtor, but expressing no opinion as to the validity of the tax deeds, and remanded the cause for further proceedings in conformity with its opinion: Held, that the judgment of this court was conclusive as to the invalidity of the title of C and D derived from the attachment debtor, but not as to the tax titles held by them.
    2. Same—and herein, of proceedings allowable after remandment. Before the hearing, after the remandment, C and D asked leave to amend their answer in respect to the title held invalid, by showing that C held that title only in trust for D, which the court refused to allow: Held, that the refusal was proper, as that title had been passed upon by this court adversely to C and D, and it was practically immaterial which of them was the beneficial owner of it.
    3. The trial court then entered a decree for partition between A and B, finding them to be the owners of the land as tenants in common, and thus impliedly disposed of the tax titles without any proof of their invalidity, or requiring A and B to pay C and D, or the holders of the tax deeds, the amounts advanced by them for taxes and interest: Held, that the decree was erroneous, in not being limited so as to protect the defendants’ interest in the tax titles, which had not been passed upon by this court.
    4. Removing cloud upon title—setting aside tax deeds—burden of proof. A bill to set aside certain tax deeds as clouds on title, set up certain defects in the proceedings leading up to and ending in the tax deeds, and charged that such deeds were void. The answer denied the existence of the defects, and claimed that the tax deeds were valid: Held, that under the pleadings the burden of proof did not rest upon the defendants to show the validity of the tax deeds, but was upon the complainant to show they were void, and operated as clouds.
    5. Same—extent and character of relief to be granted. It is only the owner of land who can ask to have a cloud removed from his title. The complainant in a bill for partition has the right to abandon that part of it which seeks to have a conflicting title set aside, and this may be done by a dismissal of the bill as to the holder of such title, when the latter does not claim another title which is adjudged invalid. If the complainant abandons his right to have certain titles removed, and insists on his right as to another title claimed by the defendant, and succeeds as to the latter, the decree setting aside one of the titles should not find the complainant the owner of the land generally, but should find him the owner as against the title set aside.
    Appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.

      Mr. Augustus N. Gage, for the appellants:
    The judgment of the Supreme Court was not upon the validity of the tax titles, but settled the question of the superiority of the sheriff’s deed over the deed of the attachment debtor.
    The complainant offered to do equity by repaying the taxes, as a condition to setting aside, the tax deed, and it is not to be supposed this court intended to give him more than he asked. Gage v. Nichols, 112 Ill. 271; Gage v. Busse, 102 id. 592.
    No decree can be sustained unless the evidence is sufficient to support it, and the evidence must be preserved in the record either by findings in the decree or by a certificate of evidence. Moss v. McCall, 75 Ill. 190; Waugh v. Robbins, 33 id. 181; Wilhite v. Pearce, 47 id. 413; Ward v. Owens, 12 id. 283; Marvin v. Collins, 98 id. 510.
    Messrs. Wilson & Moore, for the appellees:
    The Supreme Court having decided the case upon its merits, the case was not open for a re-trial in the circuit court. It had no power to allow amendments or hear new evidence. Wadhams v. Gay, 83 Ill. 253.
    This court found that a decree of partition should have been entered, and when the cause was remanded for proceedings in conformity with the opinion, the circuit court could only enter the decree which it should have entered on the original hearing. Gage v. Bailey, 119 Ill. 539; Buck v. Buck, id. 613; Hook v. Richeson, 115 id. 431; Parker v. Shannon, 121 id. 452.
   Mr. Justice Magruder

delivered the opinion of the Court:

This case is now before us for the second time. It is reported as Stokes v. Riley et al. 121 Ill. 166. The object of the bill, as originally filed by Stokes and as subsequently amended, was to get a partition of the lots in controversy between Stokes, as owner of an undivided two-thirds thereof, and Riley, as owning the other undivided one-third, and also to remove certain tax deeds, alleged to have been held by the Gages, as clouds upon the title and as being void for reasons stated in the bill. Stokes and Riley claimed to own the lots under a sheriff’s deed issued upon judgments and execution levies in certain attachment proceedings against one Ward. Asahel Gage claimed to own the lots under a series of conveyances from Ward through others to himself. While Asahel Gage claimed in his answer to own the Ward title, the proof showed, that the money for the purchase was advanced by Henry H. Gage, and that Asahel merely held the legal title in trust for Henry. Henry, in his answer, denied that there were defects in the tax proceedings, as alleged in the bill, and set up that he was the owner of the lots by virtue of the tax deeds issued to him.

Upon the original hearing before the Circuit Judge, the parties seemed to abandon that part of the case, which had reference to the validity of the tax titles and to the removal of the tax deeds as clouds. The contention was as to the ownership of the Ward title, and as to whether Stokes and Riley had the better title under the sheriff’s deed, or as to whether Asahel Gage had the better title by reason of the conveyances from Ward. The Circuit Court thought that the Gage title, derived directly from Ward, was the better title and dismissed the bill filed by Stokes. This Court was of the opinion, that the sheriff’s deed was valid, and reversed the decree of the Circuit Court dismissing the bill, and remanded the cause for further proceedings in conformity with the opinion in Stokes v. Riley et al. supra.

When the cause was re-docketed in the Circuit Court, the Gages made a motion to amend their answers, so as to set up, in substance, that Asahel Gage held the title for Henry H. Gage instead of being the owner of it himself. The Circuit Judge refused to allow the amendments to be made, and we think that he was right in doing so. We had decided that the title obtained through the conveyances from Ward was not valid as against the sheriff’s deed. That question was settled, and the proceedings in the court below were to be in conformity with the opinion filed. It could make no practical difference whether Asahel Gage held the title for himself or as trustee for Henry. It was an invalid title, because its source was a deed made by Ward after all the interest of the latter had passed out of him by reason of the judgment, levy and sale in the attachment suits.

After overruling the motion to amend the answers, the Court then entered an ordinary partition decree, finding Stokes and Riley to be the owners of the lots, as tenants in common, in the proportions already stated, and appointing commissioners to make the partition. Appellants object to this decree, because, by finding appellees to be owners, it impliedly disposes of the tax titles without requiring the complainant to pay to the holders of the tax deeds the amounts, advanced by them for taxes, and interest thereon.

The 39th section of the Partition Act provides, that “in all suits for the partition of real estate * * * the Court may investigate and determine all questions of conflicting or controverted titles, and remove clouds upon. the titles to any of the premises sought to be partitioned.” In this case there was a question of controverted or conflicting titles.

The controversy was between Stokes and Riley, as holders under the sheriff’s deed in the attachment proceedings against Ward, on the one side, and the Gages, as holders under the deed made by Ward, on the other side. The bill or petition prayed that the deeds from Ward and his grantees, under which the Gages claimed title, be set aside as clouds upon the title of Stokes and Biley. The opinion in Stokes v. Riley et al. settled this controversy and nothing else.

That opinion did not determine nor undertake to determine the other question as to the validity of the tax deeds. It merely stated that Henry H. Gage had claimed in his answer to be the owner of the lots under “divers good and valid tax titles thereto,” etc., and that he had not established such claim by any evidence to be found in the record.

The complainant below set up in his bill certain defects, which he alleged to exist in the various proceedings leading up to and ending in the tax deeds, and charged that such deeds were void on account of such defects, and prayed that they be set aside as clouds.. What Henry H. Gage avers in his answer in relation to the validity of his tax deeds is in reply to the attack made upon those deeds in the bill. His denial that there were defects in the tax proceedings and his claim that his tax titles were valid were in response to the charge of holding a cloud over complainant’s title. Therefore, under the pleadings, the burden did not rest upon him of proving his tax deeds good, but the burden was on the complainant to show that they were void and operated as clouds. Upon this subject the complainant introduced no proof whatever upon the trial below.

The Court below, in the decree, which was reversed in Stokes v. Riley et al., made no finding as to the validity or invalidity of the tax titles. On the contrary the decree contained these words: “It is further ordered, adjudged and decreed, that the tax deeds claimed by said Henry H. Gage to the said land and real estate aforesaid be not in any way affected by the decree herein.”

Inasmuch, therefore, as the validity of the tax deeds was not passed upon or determined either by the Circuit Court or by this Court, the direction, that the cause be remanded “for further proceedings in conformity with” the opinion in Stokes v. Riley et al., could not have contemplated the entry of a decree virtually finding the tax deeds to be invalid without hearing any evidence or argument as to the defects claimed to exist. The complainant below in his bill offered, as the law required him to do, to pay whatever amounts the defendants had advanced for taxes, and interest thereon, in case the tax deeds should be set aside. To give him the benefit of a decree, which might have the effect of accomplishing this object without requiring him to make such payment, would be palpably unjust.

It must be remembered that the Circuit Court dismissed the bill on the ground that complainant had no title. If this view had been sustained, it would have been unnecessary for the complainant to prove his objections to the tax deeds. It is only the owner who can ask to have a cloud removed. But when the decree dismissing the bill was reversed and the complainant was held to be the holder of the better of the two titles which were controverted, then the case was back in court for the purpose of determining whether or not the tax deeds were clouds upon the successful title.

The decree of the Circuit Court should have limited its findings upon the title to the questions determined by our former opinion. It should have found the attachment proceedings against Ward and the sheriff’s deed thereunder to have been valid, and should have set aside the deeds from Ward and his grantees to Asahel Gage. As to the tax deeds, if the complainant declines to introduce any proof as to their invalidity, the decree ought in some way to protect the rights of appellants thereunder, so that they can have their remedy by ejectment.

The complainant below undoubtedly has a right to abandon 'that part of his bill, which asks for the removal of the tax deeds as clouds. The bill might be dismissed as to the Gages, if they merely claimed under the tax deeds, but, as they also claim under the deeds from Ward which are set aside, it is necessary to hold them as parties. Consequently a decree, which finds Stokes and Riley to be the owners of the property generally, without limiting their ownership to the Ward title, might be construed to embrace the tax titles, and, that too, without any hearing as to their validity.

The decree of the Circuit Court is reversed and the cause is remanded for further proceedings in conformity with the views ; here expressed.

Decree reversed.


author: Mr. Justice Craig

text:
    Silas Lees v. The Drainage Commissioners.

      Filed at Ottawa May 9, 1888.

    1. Certiorari—at common law—when the proper remedy. Circuit courts have jurisdiction to award writs of certiorari, at common law, to inferior tribunals and jurisdictions, when it is shown that such inferior tribunals have exceeded the limits of their jurisdiction, or in cases where they have proceeded illegally, and no appeal is allowed, and no other mode of directly reviewing their proceedings is provided.
    2. This writ may be resorted to, in certain cases, to test the legality of the action of commissioners of highways, or to determine the validity of the action of three supervisors who have passed upon an application to lay out a highway.
    3. But it does not lie for the purpose of testing whether a corporation or drainage district has a legal existence, or has been legally organized, for the reason the statute has furnished another remedy to test such facts, namely, an information in the nature of a quo warranto.

    4. Same—trial by the record, alone. The writ brings up the record of the inferior tribunal for inspection, and the case is tried by the record alone, no extrinsic evidence being admissible.
    5. If it appears, from an inspection of the record, that the inferior tribunal had jurisdiction of the parties and of the subject matter, and proceeded according to law, the writ will be dismissed.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Kane county; the Hon. Isaac G. Wilson, Judge, presiding.
    Mr. W. R. S. Hunter, and Messrs. Sherwood & Jones, for the appellant:
    It is a well settled principle of law, that any power granted or any act authorized by the legislature to be done, must be performed in strict compliance with the terms of the act, when authority to proceed is conferred by statute, and when the manner of obtaining jurisdiction is prescribed by the statute. Potter’s Dwarris on Statutes, 224; Smith v. Hileman, 1 Scam. 323; Graves v. Bruen, 11 Ill. 437; Corley v. Kennedy, 28 id. 143; Shinkle v. McGill, 58 id. 422; Marsh v. Chesnut, 14 id. 224; Hardin County v. McFarlan, 82 id. 139; Locke v. Davison, 111 id. 24; Day v. Cushman, 1 Scam. 475.
    Proceedings of commissioners of highways are vitiated by a failure to give the notices required by law. Corley v. Kennedy, 28 Ill. 123; Commissioners v. Harper, 38 id. 103; Shinkle v. Magill, 58 id. 422; Frizell v. Rogers, 82 id. 111.
    Jurisdictional facts are not presumed in favor of inferior tribunals. Commissioners v. Harper, 38 Ill. 103; Railroad Co. v. Chamberlain, 84 id. 335; Silver v. People, 45 id. 224.
    Appellant has no remedy except, by certiorari. There is no other mode of reviewing the proceedings. People ex rel. v. Wilkinson, 13 Ill. 660; Railroad Co. v. Fell, 22 id. 323.
    The superior tribunal, upon an inspection of the record, alone, determines whether the inferior tribunal had jurisdiction of the parties and subject matter, and whether it has exceeded its- jurisdiction, or has otherwise proceeded in violation of the law. Commissioners v. Supervisors, 27 Ill. 140; Commissioners v. Harper, 38 id. 103; Miller v. Trustees, 88 id. 26.
    Mr. J. A. Russell, and Mr. N. J. Aldrich, for the appellee:
    The legality of the organization of a corporation, such as a drainage district, can only be determined by quo warranto. Osborn v. People, 103 Ill. 224; Renwick v. Hall, 84 id. 162; Keigwin v. Drainage Comrs. 115 id. 352; Marsh v. Astoria Lodge, 27 id. 421; President v. Thompson, 20 id. 197; Coles County v. Allison, 23 id. 437; Tisdale v. Minonk, 46 id. 9; Kettering v. Jacksonville, 50 id. 39; Mitchell v. Deeds, 49 id. 416; Town of Geneva v. Cole, 61 id. 397; Lawson v. Kolbenson, id. 405; Trumbo v. People, 75 id. 562; People v. Newberry’s Estate, 87 id. 41; Alderman v. School Directors, 91 id. 179.

      It is the settled law of this State, that under the common law writ of certiorari, only the record can be examined, and that it is not from the petition or the writ, or the statements therein, upon which the lower court, as well as this court, must decide the case. People ex rel. v. Wilkinson, 13 Ill. 622; Doolittle v. Railroad Co. 14 id. 383; Commissioners v. Supervisors, 27 id. 140; Low v. Railroad Co. 18 id. 324.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a petition for a common law writ of certiorari, to bring before the circuit court of Kane county a transcript of the record of the proceedings of drainage commissioners of district No. 2, in the town of Virgil, in Kane county, for the purpose of testing the legality of the organization of the district.

The law is well settled that circuit courts have jurisdiction to award writs of certiorari, at common law, to inferior tribunals and jurisdictions, where it is shown either that they have exceeded the limits of their jurisdiction, or in cases where they have proceeded illegally, and no appeal is allowed, and no other mode of directly reviewing their proceedings is provided. (People v. Wilkinson, 13 Ill. 660; Chicago and Rock Island Railroad Co. v. Whipple, 22 id. 105; Commissioners v. Harper, 38 id. 103.) This writ may be resorted to, in certain cases, to test the legality of the action of commissioners of highways, as in the case last cited; or it may be brought to determine the validity of the action of three supervisors who have passed upon an application to lay out a highway, as was done in Commissioners v. Supervisors, 27 Ill. 143. The writ brings up a transcript of the record of the inferior tribunal for inspection, and the case is tried and determined upon the record alone, no evidence outside of the record being admissible. When it appears, from an inspection of the record, that the iníérior tribunal had jurisdiction of the parties and subject matter, did not exceed its jurisdiction, but proceeded according to law, the writ will always he dismissed. In looking into the record, however, in this case, it does not appear to be a proceeding to test the validity of the action of an inferior tribunal, but the petitioner is seeking to use the common law writ of certiorari to determine whether a certain corporation,—a drainage district,—has a legal existence. No authority has been cited to show that the common law writ of certiorari may be resorted to for that purpose, and we are not aware of any well considered case where the doctrine has been announced.

Section 1, chapter 112, page 1871, of our statute, (Starr & Curtis,) has an important bearing on the question. It provides: “That in case any person shall usurp, intrude into or unlawfully hold or execute any office, * * * or any association or number of persons shall act within this State as a corporation without being legally incorporated, * * * the Attorney General, or State’s attorney of the proper county, either of his own accord or at the instance of any individual relator, may present a petition to any court of record of competent jurisdiction for leave to file an information in the nature of a quo warranto, in the name of the People; * * * and the court may grant the petition, and order the information to be filed, and process to issue.”

If this drainage district was not legally incorporated, here is a complete remedy provided by the statute, where the question may be determined and settled in a direct proceeding; and if the petitioner desires to call in question the validity of the organization of the district, he must proceed under this provision of the statute.

In Osborn v. The People, 103 Ill. 226, which was a proceeding to collect a special assessment for drainage purposes, an attempt was made to defeat the proceeding by showing that the drainage district was not legally organized; but it. was held, that the legality of the organization of a corporation can be attacked and judicially examined only in a direct proceeding by quo warranto. In Blake v. The People, 109 Ill. 508, which was also a proceeding to collect an assessment levied by a drainage district, the land owner attempted to question, the legality of the organization of the district; but it was held that the defense could not be made in that proceeding. It is there said: “Under repeated decisions of this court it is clearly not now admissible, in this form of action, to question the existence of this corporation, and the authority of these commissioners to act in that capacity. There being an acting de facto corporation, its existence, and the authority of its acting officers, can only be questioned by a proceeding by quo warranto.” In Renwick v. Hall, 84 Ill. 162, a bill in equity was filed to enjoin certain persons from proceeding to incur debts as directors of a certain school district, on the ground that the district was not legally organized. The circuit court, on motion, dissolved the injunction and dismissed the bill, and the decision was affirmed. ,It was there held: “Where a number of persons assume to act as school trustees of a district claimed by them to be legally organized, the question as to the legal existence of such district can only be tested by filing an information in the nature of a quo warranto.” See, also, Angell & Ames on Corp. (9th ed.) sec. 778.

There are other cases in this court holding the same doctrine, but it will not be necessary to cite them, as the law is well settled that the remedy is the one pointed out by the statute,—an information in the nature of a quo warranto.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


text:
    E. M. Hulse et al. v. Stephen L. Mershon et al.

      Filed at Ottawa May 9, 1888.

    1. Insolvent debtors—preference of creditors—to what extent allowable—as to attorneys’ fees included in judgment by confession. While a debtor in failing circumstances, who does not seek the benefit of the general Assignment act, may prefer one creditor to the exclusion of others, when he does so in good faith, it is also true that a gift or voluntary conveyance by an insolvent debtor is presumptive evidence of fraud, and void.
    2. The right of an insolvent debtor to give a preference among his creditors can only be exercised as to the amount actually and lawfully due, as against the rights of his other creditors who are not preferred. It is only “for a debt bona fide due,” that a person may confess judgment.

      3. In this case, a failing debtor gave certain of his creditors his notes for the sums actually due them, and about fifteen per cent of their amount in addition, as attorneys’ fees, with a power of attorney to confess judgment for the full amount of the notes, including the attorneys’ fees. The attorneys knew, at the time the notes were given, that the debtor was insolvent: field, that as to the other creditors not preferred, the amount of the attorneys’ fees was a gift to the preferred creditors, and fraudulent and void.
    4. The moral obligation resting upon a debtor to see that his creditor gets all his money without the deduction of fees, is a sufficient consideration for a contract between a solvent debtor and his creditor to have judgment confessed for a reasonable attorney’s fee, in addition to the debt, but this can not be done to the prejudice of other equally meritorious creditors.
    Appeal from the Appellate Court for the First District;— heard in that court on writ of error to the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Messrs. Frank G. Smith & Helmer, for the appellants:
    An insolvent debtor has the right to prefer creditors at his own discretion, so long as he does not make a general assignment. Ewing v. Runkle, 20 Ill. 448; Waddams v. Humphrey, 22 id. 661; Funk v. Staats, 24 id. 645; Schroeder v. Walsh, 120 id. 403.

      The allowance of a reasonable attorney’s fee in a judgment note is upon a valid consideration, not against public policy, and binding upon the makers and all others. Smith v. Silver, 32 Ind. 321; Imler v. Imler, 94 Pa. St. 372; Pasham v. Pulliam, 5 Coldw. 487; Ball v. Miller, 38 Ill. 110; Clawson v. Munson, 55 id. 394; Dunn v. Rodgers, 43 id. 260; Haldeman v. Insurance Co. 120 id. 390.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is a creditor’s bill, filed by appellees against appellants in the Superior Court of Cook county, upon three' judgments, amounting to $2709.40, rendered by that Court at the October term, 1886, against the appellant, B. M. Hulse, and upon which judgments executions were duly issued and returned unsatisfied. The bill seeks to reach the amounts of certain attorneys’ fees, included in certain judgments by confession entered up in favor of a number of preferred creditors, who, together with their attorneys, are made defendants and appear herein as appellants. Answer was filed to the bill and replication filed to the answer. The cause was heard upon an agreed state of facts, embodied in a written stipulation signed by counsel for both sides. The Superior Court dismissed the bill for want of equity, and the ease was taken by writ of error to the Appellate Court; the latter Court reversed the decree of the Superior Court and remanded the cause, with directions to decree the payment of the moneys, collected as attorneys’ fees, in satisfaction of the judgments of the complainants, ordering that the plaintiffs in error there, who are appellees here, recover their costs, etc. The case is brought here by appeal and upon certificate of importance, signed by two judges of the Appellate Court.

On September 9, 1886, E. M. Hulse, then engaged in the business of manufacturing and selling furniture in Chicago, owed complainants $2709.40, as already stated, and also owed the following amounts to the following defendants: Cassell $3825.71; Katlinsky & Co. $985.25; Harris Bag and Metal Co. $1000; Swisky $517; Bowes $1011.35; Hartman $505.95; Barth $611. On that day Hulse, being insolvent and aware of his insolvency, desired to prefer the defendants thus named, who were simple contract creditors and whose claims were not yet due, and, to that end retained, as his personal counsel, two attorneys in Chicago, whom he informed of his insolvency and consulted as to what steps might be lawfully taken to prefer said creditors. He was advised that he could give defendants judgment notes and add therein reasonable attorneys’ fees. Thereupon the attorneys, at the request of Hulse, prepared judgment notes for the full amounts due the defendants respectively as above stated, and also for about fifteen per cent in addition thereto as attorneys’ fees. The attorneys’ fees in the note to Cassell were $573; in that to Katlinsky & Co. $145; in that to the Bag and Metal Co. $150; in that to Swisky $75; in that to Barth $90; in that to Bowes $150; in that to Hartman, $75. The total amount of the seven judgment notes given to the preferred creditors was $9709.26, of which $8451.26 was actual indebtedness and $1258 was for attorneys’ fees.

The notes were dated September 10, 1886, and due on demand. Hulse, after signing them, left them with the attorneys, who, under his instructions, gave them to the defendant creditors, after the latter were informed of the foregoing facts, in consideration of their receipts in full for all their claims against Hulse. The creditors then retained these same attorneys to enter judgments on the notes and collect them out of Hulse’s assets. On September 11, 1886, the attorneys entered up judgments in favor of said defendants upon the notes respectively for the amounts above specified together with the attorneys’ fees already named. Executions were issued and all of them, except that in favor of Barth, were levied upon the assets of Hulse.

Barth’s execution was returned unsatisfied and, on September 15, 1886, he filed a creditor’s bill in the Superior Court, and, on the same day, obtained the appointment of one Wilson, as receiver. On September 25, 1886, the assets in the sheriff’s hands were turned over to the receiver, subject to the rights of the execution creditors, and the receiver proceeded at once to make sale. On October 18, 1886, he made report, showing that he had funds enough to pay the said judgments, his own fees and $50 to said attorneys, who also acted as attorneys for the receiver. The report was approved, and, under order of court, the receiver paid in full the judgments so rendered in favor of the defendants, amounting to $9709.26 and including the $1258 for attorneys’ fees.

Cassell being a resident of Wisconsin, the attorneys in question, who received the whole amount of his judgment, remitted to him $3825.71, the amount of his claim, and retained the $573 for their fees.

When the judgment notes were given, and also when the judgments were entered up, and, again, when, the creditor’s bill was filed and the receiver appointed, these attorneys knew that Hulse was insolvent, and that the judgment notes were given for the purpose of preferring the defendant creditors to the extent of their just claims, and that, when such notes were paid in full, the assets of Hulse would be nearly or quite exhausted, and that the complainants and the other creditors would be unable to collect their claims.

Appellees claim, that, under the facts thus stated, the attorneys’ fees, provided for in the powers of attorney attached to the notes, were, in law and equity, gifts to the payees in the notes, and, as such, fraudulent and void as to the other creditors, and that the appellants should be compelled, in equity, to turn the amount of such fees over to appellees, or to a receiver for their benefit.

The appellants claim, that Hulse had a right to make the judgment notes, as he reserved to himself no right or interest therein and only included the fees in them to enable the payees to get payment of their just debts “without deduction of loss by costs or other expenses," and that, as to the defendant attorneys, the money, received by them out of said judgment of Cassell, was so received by them as his attorneys, and that appellees as against such attorneys have no rights in the premises.

It was stipulated, that, if the court below should find for defendants, the bill should be dismissed, but if the finding should be for complainants, decree should be entered against the attorneys for the $573 and against the other defendants respectively for the amounts of attorneys’ fees embraced in their respective judgments.

We think that the position of the appellees is correct and should he sustained.

It is undoubtedly true, that a debtor in failing circumstances and who does not seek the benefit of the general Assignment Act, may prefer one creditor to the exclusion of others, when he does so in good faith. But it is also true, that a gift or voluntary conveyance by an insolvent debtor is presumptive evidence of fraud. When a man voluntarily and without consideration, puts his property out of his hands, being at the time in debt, his act in so doing is, as to pre-existing creditors, fraudulent and void. (Moritz v. Hoffman et al. 35 Ill. 553.)

In the present case, Hulse, though insolvent, had a right to give the judgment notes to the appellants respectively for the respective amounts of their claims against him and thereby prefer them over his other creditors. But he had no right to give them $1258 out of his assets when he was insolvent, and thereby prevent other creditors equally meritorious from realizing that much towards the payment of their debts.

■ If the judgments in favor of appellants had been obtained by suit in the ordinary way, attorneys’ fees could not have been taxed as a part of the costs. The plaintiffs in the judgments would have been obliged to pay their own attorneys’ fees, nor could they have recovered of Hulse in separate suits the amounts advanced by them for such fees. Therefore, when he agreed to give those fees to the appellants at a time when his assets were only sufficient to pay the appellants and no other creditors, he deprived such other creditors of their lawful dues. Hulse did not owe the $1258 to appellants. He was not legally bound to pay it to them. Hence, when he put it in the notes, he made a voluntary donation of it to them while he was indebted to others.

The right of the insolvent to give a preference can only be exercised as to the amount actually and lawfully due. When Hulse gave the preferred creditors the privilege of retaining $1258 out of his assets to be applied towards the payment of attorneys’ fees for entering up seven judgments, amounting all together to only about $9000, he did not thereby provide for the payment of a debt then actually and lawfully due. By adding the $1258 into the notes, he attempted to create a new debt, not resting upon a sufficient consideration to give it preference over the claims of other creditors. It is only “for a debt bona fide due” that a person may confess judgment. (Rev. Stat. chap. 110, sec. 65, paragraph 66.)

It is true, that, when a creditor is compelled to sue and deduct attorneys’ fees for prosecuting the suit, he does not realize the full amount of what his debtor owes him. He only realizes such amount less attorneys’ fees paid out. The moral obligation resting upon the debter to see that the creditor gets all his money without deduction of fees is undoubtedly a sufficient consideration for a contract between a solvent debtor and his creditor to have judgment confessed for a reasonable fee in addition to the debt. In the cases alluded to by counsel, where a reasonable fee has been allowed to be included in the judgment by confession pursuant to the contract therefor in the judgment note, no question arose as to the insolvency of the debtor, nor as to his right to give a preference by judgment note while in an insolvent condition. In those cases, the simple question was, whether a contract to confess judgment for the debt and a reasonable fee was a valid and binding contract.

But under our Illinois statutes and practice, there is no legal obligation resting upon the debtor to protect his creditor against deduction for fees, in case the latter is compelled to sue. When a debtor is insolvent and provides for giving some of his creditors preferences over others equally meritorious, a legal obligation—and not a mere moral obligation—must lie at the basis of such preferences.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    Benjamin Heckle v. William Grewe.

      Filed at Springfield May 9, 1888.

    1. Exemption from execution—interest of tenant in common in personal property. The interest of a tenant in common in personal property stands upon the same footing, in respect to the exemption laws, as like interests in other property, where the possession as well as the title is several.
    2. A defendant in execution, being the head of a family and residing with the same, was the owner of an undivided half of certain personal property, not exceeding in value $300, as tenant in common with another. Upon notice by the officer holding the execution, he scheduled such property, and claimed the same as exempt, but the officer, nevertheless, levied upon and sold his interest in the property: Held, that the officer became liable to him in trespass, for double the value of such property.
    3. Error will not always reverse—must be prejudicial to party complaining. Courts of review will reverse only for such errors as may-have been prejudicial to the party complaining. Errors can not be said to be prejudicial to a party when it is clear that the judgment upon the conceded facts is the only one that could properly be rendered, and when another trial would necessarily result the same way.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Adams county; the Hon. Charles J. Scofield, Judge, presiding.

      Mr. George W. Fogg, for the appellant:
    The terms of the statute indicate that the legislature proposed to deal with estates in severalty. One co-tenant can not have set apart to him, and hold as exempt, for his sole benefit, property to which he has no right of separate possession. When the question has arisen, the claim of a cotenant to a homestead exemption has been repeatedly denied. West v. Ward, 26 Wis. 580; Thurston v. Maddock, 6 Allen, 129 ; Waalf v. Fleischacker, 5 Cal. 244; Reynolds v. Pixley, 6 id. 167; Elias v. Verdego, 27 id. 418; Bishop v. Hubbard, 23 id. 517; Ward v. Hahn, 16 Minn. 167; Kingsley v. Kingsley, 39 id. 565; Bousal v. Comly, 44 Pa. St. 442; Pond v. Kimball, 101 Mass. 105; Guptil v. McFee, 9 Kan. 30; Kellenbarger v. Kapp, 5 Cal. 565.
    The statute is a penal statute. Pace v. Vaughn, 1 Gilm. 30; Cornelia v. Ellis, 11 Ill. 584; Vaughn v. Thompson, 15 id. 39; Casey v. Haney, 14 id. 45; Railroad Co. v. Reidy, 66 id. 46 ; Amend v. Murphy, 69 id. 337; Race v. Oldridge, 90 id. 250.
    Such statutes must be strictly construed, and their provisions are not to be extended or enlarged by construction, and the party will be required to bring himself clearly within their provisions. Raplee v. Morgan, 2 Scam. 561; Waddle v. Duncan, 63 Ill. 223; Edwards v. Hill, 11 id. 22; People v. Peacock, 98 id. 173.
    The plaintiff must, by his pleadings, show himself clearly within its provisions, or his declarations will be held bad on demurrer. Figueira v. Pyatt, 88 Ill. 402.
    A law admitting of but one penalty, and that a harsh one, will be subjected by the court to the closest criticism and to the strictest construction. Railroad Co. v. People, 69 Ill. 27.
    No property can be successfully claimed as exempt which does not clearly appear to be embraced in the statute. (Freeman on Executions, secs. 208, 317.) The onus of proof is on the claimant. He must show affirmatively every fact necessary to support his claim. Calhoun v. Knight, 10 Cal. 393;
      Briggs v. McCulloch, 36 id. 512; Dowling v. Clark, 3 Allen, 570; Davenport v. Alston, 14 Ga. 271; Corp v. Griswold, 27 Iowa, 379; Van Sickler v. Jacobs, 14 Johns. 434; Griffin v. Sutherland, 14 Barb. 456; Dawes v. Prosser, 32 id. 290 ; Tuttle v. Buck, 41 id. 417; Swan v. Stephens, 99 Mass. 7.
    Where, by statute, double or treble damages are given, the actual damages found by the jury are to be doubled or trebled by the court. 2 Archbold’s Nisi Prius, 119; Buckle v. Bawes, 4 B. & C. 154; Sedgwick on Damages, (6th ed.) 724; Gray v. James, 1 Pet. C. C. 394; Evans v. Hitchcock, 3 Wash. 408 ; Newcombe v. Butterfield, 8 Johns. 342; King v. Havens, 25 Wend. 420; Warren v. Doolittle, 5 Cow. 678.
    Messrs. Carter & Govert, for the appellee:
    Appellant’s contention that this statute should be strictly construed, is not supported by the authorities, but, on the contrary, it has been uniformly held that statutes of exemption are to be liberally construed. Kelly v. McFadden, 80 Ind. 536; Gregory v. Latchem, 53 id. 449; Barkley v. Mahon, 95 id. 101; State v. Rood, 94 id. 103; Puett v. Beard, 86 id. 172; Good v. Fogg, 61 Ill. 449; Kuntz v. Kinny, 33 Wis. 510; Carty v. Drew, 46 Vt. 346; Allison v. Brookshire, 38 Texas, 199; Seely v. Gwillim, 40 Conn. 106; Haas v. Shaw, 91 Ind. 384.
    We have been able to find no case, nor has appellant cited any, where the question at issue in the case at bar has been decided. On the contrary, it is held in the following eases, that the members, severally, of a co-partnership, are entitled to exemptions out of the co-partnership personal property: Skinner v. Shannon, 44 Mich. 86; Russell v. Lennon, 39 Wis. 507; 20 Am. Rep. 60; Stewart v. Brown, 37 N. Y. 350; Burns v. Harris, 67 Harris, (N. C.) 140; Thompson on Homestead and Exemptions, sec. 216.
    But it is immaterial what the rule may be as to partnership property. It seems to us sufficient to say, that the interest of appellee in this property is clearly within the statute of this State, according to its very letter and spirit, and that no construction of the statute is required.
    In 1 Sutherland on Damages, 826, the learned author states, that while it is appropriate, and according to the general practice, for the jury, if they find the defendant guilty, to assess simple damages in terms, then the court, on motion, to direct judgment for the increased damages provided for in the statute. But if the statute contains no express or implied directions on the subject, it is immaterial whether the court or the jury doubles or trebles the damages. Quimby v. Carter, 20 Me. 218. And in Warren v. Doolittle, 5 Cow. 684, cited by appellant, the court, while approving the action of the court below in doubling the single damages found by the jury, said: “In principle, it is wholly immaterial whether it is done by the court or jury.”
   Mr. Justice Mulkey

delivered the opinion of the Court:

Henry C. Mulligan, having recovered a judgment in the Adams circuit court, for $139.65, against the appellee, William Grewe, who was the head of a family, and residing with the same, caused a writ of fieri facias to be issued thereon, and placed it in the hands of the appellant, Benjamin Heckle, the sheriff of the county, for execution. On being notified thereof, the appellee made out and delivered to the sheriff, in strict conformity with the statute, a schedule of all his property, amounting in value to about $300, and claimed the same as-exempt from execution. Most all of the property scheduled consisted of three mules, two coal wagons, four sprinkling wagons, and five sets of double harness, in which the appellee had an undivided half interest, as tenant in common with one A. H. Wissmann. The sheriff, under the instructions of the plaintiff’s attorney, proceeded to levy upon the defendant’s interest in the property, notwithstanding it had been scheduled and claimed by him as exempt under the statute, and subsequently, after the usual notice, sold the same, under the execution, for $183.50. The defendant in the execution thereupon brought an action of trespass against the sheriff, to recover double the value of the property sold. The action is founded on the 13th, 14th and 17th sections of chapter 52 of the Revised Statutes, entitled “Exemptions,” (Starr & Curtis’ ed.) the last section of which provides as follows: “If any officer, by virtue of any execution or other process, or any other person, by any right of distress, shall take or seize any of the articles of property exempted, as herein provided, from levy and sale, such officer or person shall be liable to the party injured for double the value of the property so illegally taken or seized, to be recovered by action of trespass, with costs of suit.” The cause was tried before the Adams circuit court and a jury, resulting in a judgment of $600 for the plaintiff, which was subsequently affirmed by the Appellate Court for the Third District, whence the case is certified, under the statute, to this court for review.

The undisputed facts are, as already indicated, that the property levied upon and sold by the sheriff belonged to appellee, as tenant in common with Wissmann; that the same was properly scheduled and claimed by the defendant in the execution before it was taken and sold by the sheriff; that appellee’s one-half interest therein did not exceed $300 in value, and that at the time the property was so taken and sold, appellee was the head of a family, and residing with the same. It therefore follows, that if, as matter of law, the interest of a tenant in common in personal property is in any case exempt, under our statute, from levy and forced sale, it clearly was in this. The lower courts both held that such interest in personal property stands upon the same footing, in respect to the exemption laws, as like interests in other property, where the possession as well as the title is several. That the lower courts ruled correctly on this question, we have no doubt. Being of this opinion, it would be a useless consumption of time to consider the other questions discussed in the briefs, for, accepting this as the law of the case, as, upon the admitted facts, we must, there was clearly no error in affirming the judgment of the trial court, even though some of its rulings may have been improper, about which we express no opinion. Courts of review reverse only for such errors as may have been prejudicial to the complaining party, and certainly no error or number of errors can, with any propriety, be said to prejudice a party, when it is clear, as it is here, that the judgment upon the conceded facts is the only one that could properly be rendered, and that another trial would therefore necessarily result the same way.

It is supposed by counsel, that the view taken by the courts below on this question, and in which we fully concur, is not to be reconciled, in principle, with the case of Trowbridge v. Cross, 117 Ill. 109. We are unable to perceive anything in that case which justifies the claim of counsel. The question there decided was, “whether one member of a firm can hold a homestead estate in the real estate of the firm, as against a co-partnership debt, and without the consent of the co-partner,” and it was held that he could not. If the articles levied upon in this case were partnership property, and the claim sought to be collected were a partnership debt, then there would be a striking analogy between that and the present case; but as it is, there is scarcely any. Indeed, the differences between the ownership of property by a tenant in common, and the ownership of like property by a partner, are so many and elementary in their character, and withal so clearly defined in the law, that it would be useless to name them, or point out the legal consequences that respectively attach to them.

Being fully satisfied with the conclusion reached by the Appellate Court, its judgment will be affirmed.

Judgment affirmed.


text:
    Frank S. Weigley v. Canute R. Matson et al.

      Filed at Ottawa May 9, 1888.

    1. Record imports verity—parol evidence. The record of a court, showing a judgment by confession in open court, imports verity, and can not be contradicted by parol evidence. The record of such judgment is the only proper evidence of itself, and is conclusive evidence of the fact of its rendition, and of all the legal consequences resulting therefrom, both as against the parties, and all others whose interests may be affected thereby.
    2. Confession of judgment—including an attorney’s fee—consideration. A stipulation in a warrant of attorney for the confession of a judgment, .by which a debtor agrees to pay the fees of his creditor’s attorney in case the creditor is compelled to resort to legal proceedings to collect his debt, is an agreement which is not only eminently just, but which rests upon a good and valuable consideration.
    3. Execution—before judgment entered. Where judgment is taken in term time, it being a part of the proceedings of the court in term time, it is not material whether the record of the same is written up, or not, at the time •an execution is issued thereon.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    Messrs. Weigley, Bulkley & Grant, for the appellant:
    A judgment by confession can be either entered in term time or vacation, and if in term time, it can only be in open court. Conkling v. Ridgely, 112 Ill. 40; Anderson v. Field, 6 Bradw. 314.
    The entry of a judgment is a judicial act, and the judge can not perform such an act except when sitting in open court .and acting as a court. Ling v. King, 91 Ill. 571.
    If the judgment were confirmed in vacation, then no execution could be valid when issued before the judgments were entered upon the record. Ling v. King, 91 Ill. 571; Cummins v. Holmes, 109 id. 15.
    Attorney’s fees confessed by an insolvent debtor are fraudulent as against bona fide creditors.
    Messrs. Flower, Remy & Holstein, for the appellees:
    The record, showing these judgments were confessed in open court, imports verity, and can not be contradicted. Richardson v. Beldam, 18 Bradw. 529; Freydendall v. Baldwin, 103 Ill. 329; Wiley v. Southerland, 41 id. 25; Roche v. Beldam, 119 id. 320.
    A stipulation for the payment of attorney’s fees, in a promissory note, in the event of an action to collect the same, is valid and enforcible. Nickerson v. Sheldon, 32 Ill. 372.
    A judgment entered by confession upon a warrant of attorney may properly include attorney’s fees, if authorized by warrant of attorney. Ball v. Miller, 38 Ill. 110; Clawson v. Munson, 55 id. 394; Dunn v. Rodgers, 43 id. 260; Haldeman v. Life Ins. Co. 120 id. 390; Smith v. Silvers, 32 Ind. 321 ; Parkam v. Pulliam, 5 Coldw. 487.
    The hill fails to show want of jurisdiction, or fraud in the rendition of the judgments.
   Per Curiam :

The opinion of the Appellate Court for the First District, in this case, is as follows:

“Bailey, J.: The complainant having obtained a judgment against one Sea, and having levied his execution upon the property of his debtor, seeks, by his bill, to have certain prior judgments and executions against the same debtor, and in favor of other creditors, vacated and declared null and void, so as to give priority to the complainant’s execution. The judgments attacked were entered by confession, and no claim is made that the indebtedness for which they were entered was not justly and in good faith due, nor are there any allegations of fraud or collusion. The claim to relief is based solely upon certain alleged irregularities on the entry of said judgments.
“The bill admits that said judgments purport to have been entered in open court, in term time, but it is alleged, that, in fact, the branch of said court presided over by the judge before whom said judgments purport to have been entered, was not in session on that day, and had not been opened ¿or that term; that the declarations and cognovits were presented to the judge out of court; that he there indorsed thereon directions to enter judgments, and that said papers, with such indorsements, being filed with the clerk, said judgments were entered by him.
“It is the settled rule of law, that the record of a court showing a judgment by confession in open court, imports verity, and can not be contradicted by parol evidence. (Boche v. Beldam, 119 Ill. 320.) The record of such judgment is the only proper evidence of itself, and is conclusive evidence of the fact of the rendition of the judgment, and of all the legal consequences resulting from that fact, both as against the parties to the judgment and all others whose interests may be affected thereby. Koren v. Roemheld, 7 Ill. App. 646; Richardson v. Beldam, 18 id. 527; Jasper et al. v. Schlesinger et al. 22 id. 637.
“The complainant, then, by admitting that the judgments which he is seeking to have set aside purport to have been entered in open court, in term time, admits the existence of judgment records which furnish conclusive evidence that said judgments were so entered, and he has therefore precluded himself, by such admission, from insisting that the contrary is the fact.
“It is alleged that the executions are void, because they were issued and delivered to the sheriff before the judgments were actually entered upon the records of the court. As the judgments were a part of the proceedings of the court in term time, it is not material whether the record of the judgments were actually written up or not at the time the executions were issued. Buck was the conclusion reached by us, on full consideration of this question, in Jasper v. Schlesinger et al. supra.
“The point is made, that the provision of the warrants of attorney as to attorney’s fees was fraudulent as to other creditors, in that it appropriated the amount of such fees to the payment of the attorneys of the judgment creditors, without consideration. It is claimed, that to the extent of such fees, at least, the judgments should be vacated., A stipulation, by which a debtor agrees to pay the fees of his creditor’s attorney in case the latter is compelled to resort to legal proceedings to collect his debt, is an agreement which is not only eminently just, but which rests upon a good and valuable consideration. It is not in the nature of a gratuity, but is a contract, by which the debtor, in part consideration of the credit given him, agrees to indemnify his creditor against the consequences of his neglect or refusal to pay, whereby the creditor may be subjected to the necessity of employing and paying an attorney.
“We are of the opinion that the bill presented no grounds for relief. The demurrer was therefore properly sustained. Decree affirmed.”

Upon an examination of the bill, and after full consideration of the arguments of appellant’s counsel, we have come to the same conclusion as that reached by the Appellate Court. The reasons stated in the opinion of the court in support of the decision are satisfactory, to our minds, and meet our approval. We therefore adopt the opinion of the Appellate Court as our own opinion in the case.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


text:
    Marshall Field et al. v. Eliza J. Geohegan et al.

      Filed at Ottawa May 9, 1888.

    1. Insolvent debtors—preferring creditors—whether allowable. The act relating to a general assignment for the benefit of creditors, making preferences in favor of particular creditors void, has no application to the case of a debtor who retains the dominion over his property. Such debtor may, if he .act in good faith, sell his property, mortgage or pledge it to secure a bona fide debt, or create a lien upon it by confessing judgment in favor of a bona fide creditor.
    2. In this case, the debtor firm, more than thirty days before making a general assignment for creditors, gave to certain creditors notes, with warrants of attorney for the confession of judgments thereon. The judgments were not, however, entered until the day of the assignment. Executions were placed in the officer’s hands just before the execution and recording of the assignment. There was no question made as to the validity and sufficiency of the consideration of the judgment notes, and the debtors, at the time of giving such notes, were not contemplating making an assignment: Meld, that the lien of the executions issued upon the judgments was prior to that of the assignee or the other general creditors.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    Mr. Frank P. Leffingwell, for the plaintiffs in error:
    The Assignment act is a remedial law. Sedgwick on Stat. and Const. Law, 41; Potter’s Dwarris, 73.
    Construction of remedial act: Railroad Co. v. Dunn, 52 Ill. 260; Conkling v. Ridgeby, 112 id. 36; Potter’s Dwarris, 73, 74, 231-233, 244; Dean of York v. Middleburgh, 2 Y. & J. 196.
    The entry of the judgments by confession, and the delivery of the executions to the sheriff, were a fraud upon the Assignment law. Hahn v. Salmon, 20 Fed. Rep. 801, and cases cited,—cited in Preston v. Spaulding, 120 Ill. 208; Receivers
      v. Savings Bank, 10 N. J. Eq. 13; Kerr on Fraud and Mistake, 288; “The Wm. King,” 2 Wheat. 148,—cited in Lee v. Lee, 8 Pet. 50; Buchanan v. Smith, 16 Wall. 307; Wilson v. City Bank, 17 id. 473; Bock v. Perkins, 28 Fed. Rep. 122; Parsons v. Caswell, 1 id. 74.
    The entry of the judgments, levying of the executions, and making of the deed of assignment, must he construed to be part and parcel of the same transaction. Preston v. Spaulding, 120 Ill. 205, and cases cited; Berry v. Cutts, 42 Maine, 445; Perry v. Holdem, 22 Pick. 269; Holt v. Bancroft, 30 Ala. 193; Livermore v. McNair, 34 N. J. Eq. 478.
    The law will not permit that to be done indirectly which can not be done directly. That which violates the policy of a statute is as much condemned as if it violated the letter. The law no more tolerates an evasion of a statute by artifice, than a palpable violation of it. Holt v. Bancroft, 30 Ala. 193. See, also, Livermore v. McNair, 34 N. J. Eq. 478; Downing v. Kintzwig, 2 S. & R. 335; United States v. King, Wall. C. C. 13; Oates v. National Bank, 10 Otto, 239.
    Messrs. Abbott & Baker, for the defendants in error:
    The rights of the parties became fixed at the time the warrants of attorney were given. Farwell v. Jones, 63 Iowa, 316 ; Nelson v. Gary, 15 Neb. 531; Perry v. Vezina, 63 Iowa, 25 ; Van Patten v. Marks, 55 id. 224; Dodd v. Hill, 21 Kan. 707.
    An insolvent debtor, while he retains control of his property, may prefer a creditor, provided it is not part of a scheme to make a general assignment. Preston v. Spaulding, 120 Ill. 208.
    The entry of the judgments in favor of the creditors was not the act of the insolvents. Clark v. Iselin, 21 Wall. 360.
   Mr. Justice Craig

delivered the opinion of the Court:

Section 13 of the act concerning voluntary assignments provides, that “every provision in any assignment hereafter made in this State, providing for the payment of one debt or liability in preference to another, shall be void; and all debts and liabilities within the provisions of the assignment shall be paid pro rata, from the assets thereof.” In Preston v. Spaulding, 120 Ill. 210, in passing upon this section of the statute, we held, that after a debtor has made up his mind to make an assignment, and has entered upon that determination, aH conveyances, transfers, and other dispositions of his property, made in view of the intended general assignment, whereby any preference is given, will, in a court of equity, be declared void. But in the same ease it was also held, that the act does not interfere with the action of the debtor while he retains the dominion of his property. He may, in good faith, sell his property, mortgage or pledge it to secure a bona fide debt, or create a lien upon it by operation of law,—as, by confessing a judgment in favor of a bona fide creditor. Under the construction placed upon the statute in the case cited, there can be no doubt in regard to the validity of the notes and warrants of attorney upon which the judgments involved in this case were confessed. The validity of the consideration is not disputed or called in question. The notes and warrants of attorney authorizing confession of judgments were executed and delivered more than thirty days before the assignment was executed, and at the time the notes and warrants of attorney were executed, W. S. Geohegan & Co., who executed them, had no thought of making an assignment for the benefit of creditors. It will be remembered, that the clause of the statute prohibiting a preference is, that every provision in any assignment hereafter made, providing for the payment of one debt in preference to another, shall be void. Unless, therefore, these notes and warrants of attorney are to be held as a part of the assignment, there is no ground for holding them illegal and void, within the meaning of the act; and how can they be held to be a part of the assignment when executed more than thirty days before the assignment, and when the assignment was not within the contemplation of the parties ?

But it is said, the exercise of the authority to confess the judgments was delayed until the creditors holding the warrants of attorney became fully advised of the debtor’s intention to make an assignment, and thus the use of the warrants of attorney was a fraud upon the Assignment law. It is true, that judgments were not entered on the warrants of attorney until January 8, 1886,—the same day the assignment was made,— and that executions were only issued and delivered to the sheriff a short time before the assignment was executed and filed for record. But the debtors had nothing to do with the entry of judgments. They did not dictate or determine the time when judgments should be entered. After the warrants of attorney were executed, the creditors holding them as a security for their debts, and they alone, had the right to determine when judgments should be confessed, and, the fact that they delayed until they saw there was danger of losing their debts unless judgments should be entered before the debtors made an assignment, does not militate against their acts. A creditor always has a right to take every precaution to save or secure his debt, and the fact that he delays until the debtor may be on the eve of bankruptcy, is no argument against the good faith of his acts. Had the warrants of attorney under which the defendants in error obtained priority, been executed after the debtors contemplated an assignment, and on the eve of an assignment, then they might be regarded as a part of the assignment, and obnoxious to the statute. But such was not the case.

Clark v. Iselm, 21 Wall. 360, is a case where it is held that a judgment confessed on a warrant of attorney executed prior to insolvency, does not constitute an illegal preference.

We fully concur in the decision of the Appellate Court, and it will be affirmed.

Judgment affirmed,.