author: Mr. Justice Craig Mr. Justice Walker:

text:
    Chicago, Burlington and Quincy Railroad Company v. Bridget Dougherty.

      Filed at Ottawa May 19, 1884.

    1. Negligence—of railway company in giving signals at public road crossings. The statute (chapter 114, section 43,) requires every railroad corporation to cause a bell of at least thirty pounds weight to be rung or a steam whistle to be sounded at the distance of at least eighty rods before a public highway is reached by a train or locomotive, and kept so ringing or being sounded until the highway is reached; and when this is done, the railroad company has discharged its duty imposed by the statute, whether such signal given is heard or not. The statute does not require the giving of such signals of the approach of a train as to enable others absolutely to ascertain its approach and avoid being injured.
    2. If a railway company has such a bell on an engine attached to a train as the statute requires, and it is rung in the manner required, then, so far as giving signals before the train reaches a public highway crossing is concerned, the company is without blame, whether the signal so given is observed or heeded, or not, by one attempting to cross the railroad track on the public highway.
    3. Where the evidence is conflicting as to the fact whether a railway company, on the approach of one of its trains to a public road crossing, gave the statutory signals, it is error to state in an instruction, in a suit to recover damages for a personal injury to one while crossing the railroad track on a public highway, that if the defendant failed to give such signals of the approach of the train as to enable the person injured or killed to ascertain its approach and avoid injury, the company is liable.
    4. Appeal—damages on affirmance. Section 23, chapter 33, relating to costs, which authorizes ten per cent damages when the Supreme Court shall be of opinion that an appeal is prosecuted for delay, has no application to a case which is contested in good faith in that court. It applies only to cases appealed and not prosecuted, or such as are not prosecuted in good faith. This rule also applies to the Appellate Court.
    5. Instruction—accuracy required on issues when the evidence is conflicting. On an issue whether a bell on an engine of a passenger train was rung eighty rods before the train reached a public road crossing, and kept ringing until the crossing was reached, witnesses for the plaintiff testified, in substance, that they did not hear the bell or whistle, although near enough to have heard it had one been rung or the other blown, while on the other hand it was proved by the fireman and engineer the- size of the bell, its character and condition, and that the bell was rung and the whistle sounded as required by the statute: Held, that it was a matter of grave importance that the law should be accurately given to the jury.
    Appeal from the Appellate Court for the Second District;—• heard in that court on appeal from the Circuit Court of LaSalle county; the Hon. Josiah McRoberts, Judge, presiding.
    Mr. Samuel Richolson, for the appellant:
    Where the evidence is conflicting upon a vital issue of fact, and there may be doubt, each party has the right .to have the jury clearly and accurately instructed as to the law of the ease. Railroad Co. v. Maffit, 67 Ill. 431; Railway Co. v. Clark, 70 id. 276; Railway Co. v. Henks, 91 id. 411; Volk v. Rochie, 20 id. 299.
    The statute does not require a bell to be so rung or & whistle to be so sounded as to apprise a person passing of the approach of the train. Railroad Co. v. Siltman, 67 Ill. 74.
    The plaintiff’s first instruction in effect tells the jury that if the defendant failed to give such signals of the approach of the train as to enable Dougherty to ascertain the approach of the train and avoid being injured by it, etc., to find for the plaintiff. This requires more than the statute requires, and is calculated to mislead the jury. The instruction is faulty in stating certain facts on one side, as affecting the defendant’s liability, and giving them undue prominence, and omitting to state the law as to comparative negligence, which was directly involved.
    Messrs. Leland & Gilbert, and Messrs. Mayo & Widmer, for the appellee,
    contended that the former rule requiring each instruction to be accurate in cases of a sharp conflict in the evidence, should not be applied in a ease affirmed by the Appellate Court, as that court, by affirmance, must have found that substantial justice has been done.

      The plaintiff’s first instruction informs the jury as to the measure of care required on the part of Dougherty, by saying that it must appear that he, “during all the time he was driving towards said railroad crossing and attempting to pass over the same, and until his death, exercised ordinary care to ascertain whether said train was approaching,” etc. It is not implied from this instruction that it was the defendant’s duty to give such signals as would have enabled Dougherty to hear them and avoid injury, for the jury are immediately told that to authorize a recovery such failure to give such signals must amount to a want of ordinary care, and be the direct cause of Dougherty’s death. This instruction is sanctioned by the case of Railway Co. v. Henks, 91 Ill. 407.
    The doctrine of comparative negligence was not applicable to this case.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action brought by Bridget Dougherty, administratrix of the estate of Bernard Dougherty, deceased, against the Chicago, Burlington and Quincy Bailroad Company, to recover damages for the death of Bernard Dougherty, who was killed while attempting to cross the railroad with a team and wagon at the crossing where Columbus street crosses the railroad track, in the north part of Ottawa, on the 7th day of September, 1881. The declaration charges the defendant with a want of ordinary care,—first, in not ringing a bell or sounding a whistle; second, in running at too great a rate of speed; and third, in failing to station a flagman at the crossing where the deceased was killed. A trial of the cause before a jury resulted in a verdict and judgment in favor of the plaintiff for $5000, which was affirmed in the Appellate Court, and the railroad company appealed from the judgment of the Appellate Court.

B was urged in the Appellate Court with much earnestness that the verdict of the jury was against the weight of evidence ; but that question does not arise here, as the decision of the Appellate Court is final on controverted questions of fact.

B was also insisted that the court erred in the instructions to the jury. The first instruction given for the plaintiff to which exception was taken, is as follows;

“If the jury believe, Bom the evidence in this case, that on or about the 7th day of September, A. D. 1881, Bernard Dougherty was killed by a passenger train of the defendant, at the point where the defendant’s railroad crosses Columbus street, in the city of Ottawa; that he left him surviving Bridget Dougherty, as his widow, and Thomas Dougherty and Elizabeth Dougherty, as his only heirs at.law; that said Dougherty, during all the time that he was driving towards said railroad crossing and-attempting to pass over the same, and until his death, exercised ordinary care to ascertain whether said train was approaching said crossing, and to avoid being injured by sajd train; that said defendant drove said train over said crossing at a reckless, dangerous and improper rate of speed, or failed to give such signals of the approach of said train as to enable Dougherty to ascertain the approach of said train, and avoid being injured by it, by the exercise of ordinary care; that in so driving said train, or in so failing to give such signals, said defendant was guilty of a want of ordinary care, and that such want of ordinary care was the direct cause of Dougherty’s death, and that his death was not the result of any want of ordinary care on his own part,—then and in such case the jury should find a verdict in favor of the plaintiff. ”

Section 43, chapter 114, of the Bevised Statutes of 1874, provides: “Every railroad corporation shall cause a bell of at least thirty pounds weight, and a steam whistle, to be placed and kept on each locomotive engine, and shall cause the same to be rung or whistled, by the engineer or fireman, at the distance of at least eighty rods from the place where the railroad crosses or intersects any public highway, and shall be kept ringing or whistling until such highway is reached.”

In the third count of the declaration it was averred that defendant failed to keep a bell of thirty pounds weight to be rung and kept ringing, or a steam whistle to be in like manner sounded, for the distance of eighty rods, until the said crossing was reached by the locomotive. This averment was denied by defendant’s plea, and hence an issue was presented by the pleadings for the jury to pass upon and determine, from the evidence which might be introduced bearing upon this branch of the case. In support of the averment of the declaration, the plaintiff called witnesses who, in substance, testified that they did not hear the bell or whistle, although near enough to the train to hear, had the one been rung or the other blown. On the other hand, the defendant proved, by the fireman and engineer, the size of the bell, its character and condition; that the bell was rung and whistle sounded, as required by the statute. Both by the pleadings and the evidence, an issue was presented whether proper signals of the approach of the train had been given by the railroad company before the crossing was reached. Under the issue thus presented it was a matter of grave importance that the law should be accurately given to the jury, in order that they might reach a correct conclusion, and thus mete out justice and right between the two contending parties. It will be observed that the statute heretofore cited requires a bell of at least thirty pounds weight on the engine to be rung at the distance of at least eighty rods before a public highway is reached, and shall be kept ringing until the highway is reached, or a steam whistle shall be sounded in like manner as a bell is required to be rung; but the statute does not require a bell to be rung or a whistle sounded in such a manner as will absolutely give notice to travelers of the approach of the train. The act is to be done in a certain specified manner, and when that is done the railroad company has discharged the duty imposed by law, whether the signal given is heard or not. But the instruction declares that the railroad shall be liable if it “failed to give such signals of the approach of said train as to enable Dougherty to ascertain the approach of said train, and avoid being injured, by the exercise of ordinary care. ” This requirement is not imposed by the statute, and it was error to direct the jury that 'defendant was bound to do more than the statute had imposed, upon it. Under this instruction the jury may have found, from the evidence, that the defendant rung the bell as required by the statute, and yet,, unless the sound of the bell was such as to attract the attention of Dougherty and enable him to ascertain that the train was approaching, the company would be liable. The statute has' never, so far as we are advised, received such a construction. Indeed, in Peoria, Pekin and Jacksonville R. R. Co. v. Siltman, 67 Ill. 72, an instruction in almost the identical language was condemned. (See, also, Chicago and Alton R. R. Co. v. Robinson, 106 Ill. 142.) If the railroad company had such a bell on the engine as the statute requires, and it was rung in the manner required, then, so far as giving signals is concerned, no blame can be attached to the company, whether the signals were observed or heeded by Dougherty or not. We think the instruction was erroneous,—and that, too, on a vital point in the case,— and for this error the judgment will be reversed. Nothing herein said, however, has any reference whatever to the supposed liability of the railroad company for a failure to station a flagman at the crossing where .the accident occurred.

Other questions have been raised and argued by appellant’s counsel, but we do -not think it necessary to remark upon them here. The point indicated is decisive of the judgment, and the other questions argued will not be likely to arise on another trial, and hence it is not necessary to consume time in the discussion of them here.

The appellee has assigned as a cross-error that the Appellate Court erred in not giving appellee judgment for a sum not exceeding ten per cent on the amount of the judgment of the circuit court, as damages. Section 23, chapter 33, of the statute entitled “Costs,” which authorizes ten per cent damages where the Supreme Court shall be of opinion that the appeal was prosecuted for delay, has never been understood to apply to a case which has been contested in good faith in the Supreme Court, but the statute has only been applied to such cases as were appealed and not prosecuted, or such as were not prosecuted in good faith. Upon this question we are of opinion the decision of the Appellate Court was correct, but for the error indicated the judgment' will be reversed, and the cause remanded.

Judgment reversed.

Mr. Justice Mulkey : I do not concur in the decision of this case. The instruction complained of, in my judgment is not obnoxious to the objection urged against it. But conceding it is, it is manifest it could not have materially affected the result, so far as the finding of the jury is concerned. The principle is well settled by a long line of decisions, that this court will not reverse for a mere formal error that could not have misled the jury.

Mr. Justice Walker:

I dissent, and concur with my brother Mulkey.


source: Caselaw Access Project

author: Mr. Justice Walker

license: Public Domain

text:
    John K. Rock et al. v. John J. Haas.

      Filed at Ottawa May 19, 1884.

    1. Homestead—requisites to create the estate. Under the statute, to create an estate of homestead three things must concur: First, the person must be a householder; second, he or she must have a family; and third, the property must be occupied as a residence. If either of these requisites is wanting, the law will not create the estate.
    2. Sam:e—who is a householder. Under the statute relating to homesteads, a person owning a dwelling house that is capable of being occupied as such, is a householder.
    3. Same—what constitutes a family. Under the Homestead act a family is a collection of persons living together,—hence one person can not constitute a family. Nor can a person and his or her children, permanently separated, constitute a family. A person never having been married, and having no family, or a man or woman having once been married but having no family, can not claim an estate of homestead. '
    4.. Where a widow having children in another State, comes to this State leaving them in other homes, with no purpose of bringing them with her, they can not be said to constitute a family, with her at its head.
    5. To create the estate of homestead by reason of being husband and wife, the relation must be legal, and not pretended. The fact that a man and woman may have lived together upon her premises before their marriage, and they marry after a judgment against her becomes a lien upon the same, will not render the property exempt from sale under the judgment.
    6. Judicial sale—failure to make demand of payment before levy and sale under execution—effect thereof. While it is the duty of a sheriff holding an execution against a party, to make a demand of payment before he levies the same,—and he may be liable for damages for neglecting this duty, —such omission will not aifect the title acquired under such levy and sale. At most, it is only such an irregularity as to afford ground for a motion to set the sale aside, and it is waived by acquiescing in the sale.
    Appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.

      Messrs. Smith & Burgett, for the appellants:
    A party failing to avail himself of the remedy to set aside a wrongful sale of his property, should not be permitted, after the time of redemption expires, to set it aside, unless he can show a .strong case of fraud, wrong or oppression. Dobbins v. Wilson, 107 Ill. 17.
    As to what is an unreasonable delay in moving to set aside a sale, see Winchell v. Edwards, 57 Ill. 41; Noyes v. True, 23 id. 503.
    Facts to excuse the delay should have been alleged in the bill. Piatt v. Vattier, 9 Pet. 405; Johnson v. Johnson, 5 Ala. 90; Badger v. Badger, 2 Wall. 95.
    Annie Pierce was not a “householder having a family,” within the meaning of the statute. A “householder” is not simply a house-keeper, but also a master or chief of a family, —one who keeps house with his family. Aaron v. The State, 37 Ala. 106; Griffin v. Sutherland, 14 Barb. 456; Gunn vGudehus, 15 B. Mon. 447.
    A woman who keeps a house of ill-fame is not a householder, within the meaning of the statute. Bowman v. Quackenboss, 3 Code Rep. (N. Y.) 17.
    The family must reside in this State, to give rise to the exemption. Allen v. Menasse, 4 Ala. 554; Boykin v. Edwards, 21 id. 261; Kieffen v. Berney, 31 id. 192; Meyers v. Claus, 15 Texas, 516; Alston v. Ulman, 39 id. 157; Jordan v. Godman, 19 id. 275; Casey v. Tice, 6 Cal. 625; Benedict v. Bunnell, 7 id. 245; Dye v. Mann, 10 Mich. 291; McKee v. Wilcox, 11 id. 358.
    A mere intention to occupy, carried into effect after a lien attaches, creates no exemption. Solary v. Howlett, 18 Fla. 756; Oliver v. Snowden, 17 id. 823; Grosholz v. Newman, 21 Wall. 481; Faut v. Talbot, 15 Ky. 712; Charless v. Lamberson, 1 Iowa, 435; Cole v. Gill, 14 id. 527; Christy v. Dyer, id. 438; Elston v. Robinson, 23 id. 208; Cooledge v. Wells,
      20 Mich. 79; Wisner v. Farnam, 2 id. 472; Holden v. Pinney, 6 Cal. 235; Brown v. Martin, 4 Bush, (Ky.) 47; Hansford v. Holdam, 14 id. 210; True v. Morrill, 28 Vt. 672; Lee v. Miller, 11 Allen, 37; Williams v. Darris, 31 Ark. 466.
    Mr. Eli B. Felsenthal, for the appellee:
    The law exempts the homestead, and the debtor is required to do no act to avail of its protection. Hence the rules as to laches in other cases do not apply. Hubbell v. Canady, 58 Ill. 425; Pardee v. Lindley, 31 id. 186.
    In the following eases judicial sales of the homestead were set aside because the provisions of the Homestead act were not complied with: Green v. Marks, 25 Ill. 221; Hume v. Gossett, 43 id. 297; Conklin v. Foster, 57 id. 154; Hubbell v. Canady, 58 id. 425; Stephenson v. Marony, 29 id. 532; Haworth v. Travis, 67 id. 301; Hoskins v. Litchfield, 31 id. 137; Mooers v. Dixon, 35 id. 208; Cummings v. Burleson, 78 id. 282; Muller v. Inderreiden, 79 id. 382; Moore v. Titman, 33 id. 560.
    The statutes of Alabama and Texas give the exemption only to families in the State, and hence the authorities cited have no application.
    The statute should receive a liberal construction. (Deere v. Chapman, 25 Ill. 498.) The statute only requires occupancy by the householder,—not by the family. A widow without children is entitled to the homestead rights of her husband. White v. Plummer, 96 Ill. 394.
    Actual residence by the head of the family prior to the creation of the lien or alienation, with the intention of taking the premises for use as a house for the party’s family, is sufficient to create the exemption. Thompson on Homesteads, sec. 260.
    Minors being, in general, incapable of changing their domicile, retain that of their parents. Story on Conflict of Laws, sec. 46, p. 56.
   Mr. Justice Walker

delivered the opinion of the Court:

This was a bill in chancery, filed by Haas, against Bock and others, to set aside a sheriff’s deed and two tax deeds for a lot in the city of Chicago. The lot belonged to Annie Pierce, in 1878, but was incumbered to the amount of $600, by two trust deeds to Knaus. In January, 1878, Bock recovered judgment against her in the Superior Court. A writ of execution was issued upon the judgment, to the sheriff of Cook county, who levied on the premises, and in pursuance of the levy, sold them at public sale on the 25th of February, 1878, to Bock, and gave him a certificate of purchase; and no redemption having been made, the sheriff executed a deed to Bock for the premises, and it was recorded. It appears that after the sale Annie Pierce intermarried with one Jungbluth; that Bock sued them, before a justice of the peace, in an action of forcible detainer, after he received his sheriff’s deed, and recovered judgment. A writ of possession was issued, and Bock was put in possession of the premises in March, 1880. In the month of June, 1880, Bock borrowed of appellant Burgett $435, for which he gave his promissory note, payable in three years, and to secure its payment he executed a trust deed to J. M. H. Burgett, as trustee, which deed was duly recorded. A tax deed was made to John Ñ. Young, for the premises, in May, 1880, and he released to Bock. A second tax deed was made to Young on the 26th of October, 1881, and in April, 1883, Young also conveyed this title to Bock. Annie Pierce, in March, 1880, executed a deed for the premises to appellee, Haas, and he seeks to recover the premises, because, as he claims, the sheriff’s sale and the tax deeds are void, and that Bock having no title, Burgett acquired no lien on the property by the trust deed to secure the loan by him to Bock. A hearing was had in the circuit court of Cook county, and the relief prayed was granted, and the deeds vacated and set aside. Defendants sought a reversal in the Appellate Court for the First District, but the decree was affirmed, and they appeal to this court.

The ground relied on and urged in the bill is, that at the time of the recovery of the judgment by Rock against Annie Pierce, and of the levy and sale, she was a householder having a family, and she was the head of the same, and residing on the premises as a homestead, and that there was no demand by the sheriff for payment of the execution, and that the sale was made by him without division or appraisement by commissioners, in conformity to the requirements of the Homestead statute. As to the tax deed of 1881, the ground relied on in the bill is, that the notice of sale, and date of expiration of the time of redemption, was not served on Annie Pierce, in whose name the premises were listed and taxed, nor on ICnaus, the trustee for Haas, and that the taxes for the year 1876 were paid. These are the grounds for the relief sought, but they are denied by appellants. These are the contested questions in the case.

The statute in relation to exemptions will not bear the construction that a person can acquire and hold a homestead title without having a family. The first section provides : “Every householder having a family shall be entitled to an estate of homestead, to the extent in value of ‘$1000, in the farm or lot of land, and buildings thereon, owned or rightly possessed, by lease or otherwise, and occupied by him or her as a residence. ” And the same is exempted from attachment, judgment, levy, or execution sale, for the payment of his debts, or other purposes. The second section provides: “Such exemption shall continue, after the death of such householder, for the benefit of the husband or wife surviving, so long as he or she continues to occupy such homestead, and of the children until the youngest child becomes twenty-one years of age. ” These are the material provisions of the statute which confer and regulate the right of homestead.

Under the statute, to create the estate of homestead the householder must, have a family, and must hold the designated title to the land, and it must be occupied by him or her as a residence. By the language of the statute three things must concur in the creation of a homestead estate: First, the person must be a householder; second, he must have a family; and third, the premises must be occupied as a residence. If either of these requisites is wanting, the law will not create the estate of homestead. A person owning a dwelling house that is callable of being occupied for that purpose, is, in the sense of the statute, a householder. But he or she, under the statute, must have a family. Then, what is a family ? It is, in its popular sense, defined by lexicographers to be a collection of persons living together,—hence, one person can not constitute a family. Nor can a person and his or her children, permanently separated, constitute a family. A residence together is essential to constitute a family. And a family of the owner or householder is indispensable to the creation of the estate of homestead. A person never having been married, and having no family, can not claim such an estate. Nor can a man or a woman, having once been married, and surviving the husband or wife, and having no children, and acquiring title to such property after the death of the husband or wife, claim an estate of homestead therein, any more than can a person who was never married. Here, Annie Pierce had been married, and lived in Pennsylvania until after the death of her husband. After that she came to this State, leaving her three children in Pennsylvania, with relatives, to be supported. They have never been in this State, nor does it appear that she has ever, at any time since coming to this State, contributed anything to the support of her children, nor does it appear she has any fixed purpose of bringing them here to organize a family. It has been many years since she left them in Pennsylvania,—we infer, sixteen or eighteen years before the trial. She says, at that time the youngest was nineteen years old. It is not a reasonable inference to conclude that she ever had any fixed purpose to bring them to this State, nor does she say she ever had, but she hoped to do so when she got fixed to keep them. It is therefore incorrect to say they ever constituted a family, with her at its head. Had they constituted a family, living on the property, before the recovery, and they had only been temporarily absent, it would have been otherwise. Nor did she, so far as the evidence shows, ever contribute anything to their care or support after coming to this State. Nor did she marry Jungbluth until after the judgment was recovered and became a lien on the property. Although they may have lived on it, they were not married until afterward. To create the title of homestead by reason of being husband and wife, the relation must be legal, and not pretended. The marriage can not relate back so as to create the estate of homestead as against a prior judgment. The statute will bear no such construction. The estate never having been created and never attached to this land, it is unnecessary to construe the second section. There never having been a homestead estate, the question can not arise whether such an estate will continue in favor of the surviving husband or wife having no family, or whether a family living with the householder is indispensable to support such an estate.

There is no force in-the objection that the sheriff failed to demand payment of the judgment before he levied the execution, and did not notify Annie Pierce of the levy. It is no doubt true it was the duty of the sheriff to have done so, and failing in that regard, he may be liable for any damage shown to have grown out of such neglect of duty; but such omission does not affect the title acquired under the sale. But it is not such an irregularity as would render the sale void after it had passed redemption, and the sheriff’s deed had been made. The evidence, we think, shows that she was notified of the sale long before the time for redemption expired, and she made no motion to have the sale set aside for that reason, even if it would have justified it. So if it was an irregularity authorizing that to be done, she waived the right by acquiescing in the sale as it was made.

From these considerations it is obvious that the other questions raised require no discussion. As all of Annie Pierce’s title passed to the purchaser at the sheriff’s sale by his deed, she had nothing to sell,—hence her grantee took nothing by her deed to him.

The decree of the court below is reversed, and the cause remanded.

Decree reversed.

Mr. Justice Dickey, dissenting.


author: Mr. Justice Dickey

text:
    John Brennan v. The People of the State of Illinois.

      Filed at Springfield May 19, 1884.

    Criminal law—burglary of ear—sufficiency of indictment after verdict and sentence. A count in an indictment for burglary, after the appropriate introductory matter, charged that the defendants “willfully, maliciously, feloniously and burglariously, without force, did then and there enter into a freight railroad car, * * * then and there being open, with intent, then and there, therein feloniously and burglariously to steal, take and carry away,” etc. No objection was taken to the same before trial, or by motion in arrest of judgment. On error it was objected that the count was bad for not stating that the windows and doors of the car were open: Meld, that as the objection was to the form rather than the substance of the indictment, even if well taken at an earlier stage of the proceeding it could not avail on error, and that it would be presumed the evidence showed that the doors and windows of the car were open at the time of the unlawful entry.
    Writ of Error to the Circuit Court of Christian county; the Hon. William R. Welch, Judge, presiding.

      This was an indictment found by the grand jury of Christian county, at the November term, 1881, of the circuit court, against Charles Green, John Brennan and Charles Doyle. The second count of the indictment charged that the defendants, on the ninth day of September, A. D. 1881, “at the county aforesaid, willfully, maliciously, feloniously and burglariously, without force, did then and there enter into a freight railroad car of one John King, Jr., there situate, the said freight railroad car then and there being open, with intent, then and there, therein feloniously and burglariously to steal, take and carry away divers goods and chattels of said John King, Jr., and with intent to feloniously steal, take and carry away the goods and chattels of Lewis Selby and Thomas Menta, then and there being in said freight railroad car, contrary,” etc. The jury, on a trial, found the defendants guilty as charged in the second count of the indictment, and fixed their punishment at three years in the penitentiary. To reverse the judgment on this verdict, John Brennan prosecutes this writ of error.
    Messrs. Craig & Craig, for the plaintiff in error:
    The second count of the indictment, under which the conviction was had, is bad, in not charging that the doors and windows of the car were open. For all that appears, the doors and windows may have been closed, and the whole side knocked out, or it might have been an open flat car. There could be no burglary in that case.
    The same objection that can be made to an indictment, or might be made on motion in arrest of judgment, can be urged on error. Sweeney v. People, 28 Ill. 209.
    Mr. James McCartney, Attorney General, for the People,
    urged that the objection being to the form of the indictment, should have been made before trial and conviction, or by motion in arrest, if the defect was not such as to be cured by the verdict,—citing Bishop on Crim. Pr. secs. 1284, 1285; Rev. Stat. chap. 110, sec. 63; Keedy v. People, 84 Ill. 569.
    The offence is so well described in the count, as to present a bar to a second indictment. Morton v. People, 47 Ill. 468.
   Mr. Justice Dickey

delivered the opinion of the Court:

Plaintiff in error was jointly indicted and tried with two others, in the circuit court of Christian county, upon a charge of burglary. The indictment contains two counts. The defendants were each convicted upon the second count, and sentenced to the penitentiary. It is sought to reverse this conviction upon the sole ground that the second count of the indictment is bad.

The statute is: “Whoever * * * willfully and maliciously, without force, (the doors and windows being open,) enters into any * * * freight or passenger railroad car * * * with intent to commit * * * larceny, * * * shall be deemed guilty of burglary. ” The count in question, with appropriate introductory matter, charges that plaintiff in error and his co-defendants, “willfully, maliciously, * * * without force, did * * * enter into a freight railroad ear, * * * then and there being open, with intent, ” etc. The only objection made to the sufficiency of the count is, that it fails to say that the doors and luindows were open,—it simply says the cwr was open. This is rather form than substance. We will not say, that had this objection been taken before trial, the circuit court might not have properly sustained it,— of this we express no opinion. But it is not made until after trial, conviction and sentence. The attention of the circuit court does not appear to have been called to this alleged defect, in any part of the proceedings. There was no demurrer to the count, no motion to quash before trial, and no motion in arrest after conviction. It must be presumed, in fin's condition of the record, that the proof on the trial did show that the doors and windows of the car were open at the time of the unlawful entry, otherwise the court would not have entered judgment of sentence upon the verdict. It appears from the whole record that this defendant had satisfactory notice of the matter for which he was to be tried. He could not have been taken by surprise by proof that the doors of the car were open. The offence was sufficiently identified, so that he can never hereafter be called to answer for that felonious entry into that car, upon an indictment saying the doors and windows were open.

We feel it our duty to affirm the judgment in this case.

Judgment affirmed.


author: Mr. Chief Justice Sheldon

text:
    Phœnix Insurance Company of Hartford, Connecticut, v. William Rink.

      Filed at Ottawa September 24, 1884.

    1. Specific performance—sufficiency of proof to compel execution of a parol agreement to convey land. On bill for the specific performance of an alleged verbal contract for the conveyance of land, the uncorroborated testimony of the complainant himself as to the existence of such an agreement, contradicted as it was by the testimony of a disinterested witness, it was held did not amount to that clear and convincing proof of a verbal contract to convey real estate which is required for its establishment, before a specific execution of it will be decreed in a court of equity.
    2. Consideration—whether it exists. Land conveyed to a trustee as security for a debt, was conveyed by the trustee to the creditor in payment of a portion of that debt, for the residue of which the creditor obtained a judgment. The debtor claimed that upon making payment of a part of that judgment, the creditor agreed to reconvey to him the land embraced in the trust deed. It was held, even if such a promise was made, there was no consideration to support it. The payment by the debtor of a part of the judgment for the whole of which he was legally liable, could form no legal consideration for a promise to make to him a deed for the land, in addition to discharging the judgment.
    3. Chancery—setting aside sale under trust deed for want of notice— condition upon which it may be done. Where land held under a trust deed given to secure indebtedness of the grantor, has been sold and conveyed by the trustee to the creditor in part payment of the indebtedness, if it be sought to set the sale aside for the want of proper notice, the relief will be granted only upon the condition of the one asking it doing the equity of paying that portion of the debt secured by the trust deed which was discharged by the sale of the land.
    Appeal from the Circuit Court of Lee county; the Hon. William Brown, Judge, presiding.
    Mr. A. K. Trusdell, for the appellant.
    Messrs. Barge, Rathbun & Barge, for the appellee.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

The hill in chancery filed in this case on the 4th day of February, 1881, sets out that on May 10, 1859, one Henry S. Palmer gave to the Phoenix Insurance Company of Hartford, Connecticut, his promissory note for the sum of $231, payable November 1, 1859, and gave to James L. Camp, trustee, a deed of trust on five lots of section 16, town 22, north of range 9, east of the fourth principal meridian, in Lee county, in this State, to secure the payment of the note, the trust deed requiring sixty days’ notice of a sale under it; that on the 3d day of September, 1860, Camp, the trustee, claiming that Palmer had made default in the payment of the note, without giving any notice required by the trust deed, sold to said insurance company the premises described in the trust deed, for the sum of $25, and Camp made to the company a deed for the land; that the company, on December 15, 1860, obtained judgment against Palmer for the sum remaining due on the note, ($194.41,) and costs of suit; that on February 2, 1866, Palmer paid the judgment, and the insurance company discharged the same, and that at that time the company agreed to make to Palmer a deed for said premises, and had failed to do so; that on November 16, 1868, Palmer and his wife conveyed the premises to the complainant, Rink. The bill prays for a conveyance from the company. The answer denies the allegation as to Camp making the sale without notice, and as to the agreement to make a deed to Palmer, an”d sets up the Statute of Frauds. On hearing, the circuit court decreed that the sale under the trust deed was void, and that the deed made by Camp thereunder was void, and that it be delivered up to be cancelled.

The two grounds of relief are, an alleged agreement to convey, and an insufficient notice of the trustee’s sale The evidence as to any agreement to make a deed rests upon .the testimony, alone, of Palmer,.who had given a warranty deed for the premises to the complainant. There is no pretence that there was any such agreement in writing. Palmer’s testimony in respect to an agreement to convey is as follows : “I had a conversation with defendant’s agent. -Can’t say when. A special agent, unknown to me, and James B. Charters, their attorney. Can’t say when, only that it was at Dixon. It was on compromising the claim. We compromised by my paying the special agent $150, he or they agreeing to quitclaim the land back to me. ” He states that he had several conversations with Camp, as agent, and Charters, as attorney, with regard to the quitclaim deed. “Mr. Charters agreed to get a quitclaim deed.” Mr. Charters entirely contradicts this testimony, so far as respects himself. He says that he never was present and never heard any conversation between Palmer and any person representing the Phoenix Insurance Company, in which the company promised Palmer to give him a deed for the land; that he never heard any such promise made, and never told Palmer the company would make him a quitclaim deed for the property; that Palmer never spoke to him on the subject until after sale made by Rink, the complainant, to Blackburn; that Rink asked witness at that time to try and get a quitclaim deed from the company to him. Surely, the testimony of this interested witness, Palmer, contradicted as it is, does not amount to that clear and convincing proof of a verbal contract to convey real estate which is required for its establishment, before a specific execution of it will be decreed in a court of equity. And the contract, as attempted to be proved, is without the support of a valuable consideration, which it should have in order to its enforcement. The payment of $150, February 2,1866, in discharge of a judgment for $194.41, and costs, rendered on December 15, 1860, is all of consideration that is pretended for the alleged promise to make a quitclaim deed of the land. The obligation was upon the judgment debtor to pay the whole of the judgment, and the payment by him of a part of it could form no legal consideration for a promise to make to him a deed for land, in addition to discharging the judgment.

As respects the other ground of relief,—the not giving of the full notice of the trustee’s sale required by the trust deed,—it is a conclusive objection thereto that the complainant was not entitled, in a court of equity, to the relief sought, without doing equity himself. The complainant’s equity in the case would have been to redeem from the trust deed, and a bill for that purpose. But there was here no offer to redeem, and redemption was not sought at all, but the purpose was for the insurance company to lose both the land and the portion of the debt it was given to secure,—that is, the purchase price for the land which was credited on the note of Palmer,—and that was the result which the decree effected. There is no plainer principle of equity jurisprudence than that he who would have equity must do equity. We are of opinion that there was here no title to the equitable relief of having the sale set aside, except upon the condition of doing the equity of paying that portion of the note secured by the trust deed which was discharged by the sale of the land.

The decree will be reversed, and the cause remanded, with directions to dismiss the bill without prejudice.

Decree reversed.


text:
    Ithiel C. Towner et al. v. John M. McClelland.

      Filed at Ottawa May 19, 1884.

    1. Assignment—assignee of negotiable paper before and after maturity—sale by agent without authority—whether assignee protected—and of defences in equity. Where the holder and owner of two notes indorsed in blank, the one over-due and the other not, placed them in the hands of an agent to receive payment of them only, and the latter sold and delivered them to an innocent purchaser having no notice, in fact, of the agent’s want of authority to negotiate the same, it was held, that the purchaser, as to the note past due, was put on inquiry to ascertain whether the agent had authority to negotiate the same, and took no title as to such note, but as to the note not due the purchaser acquired the legal title.
    2. While a purchaser in good faith of a note before its maturity, which is indorsed in blank, acquires the legal title, and may enforce his rights in a court of law, yet if the note is secured by mortgage on real estate, and he resorts to a court of equity to foreclose the mortgage, that court will let in any defence which would have been good against the mortgage in the hands of the mortgagee.
    3. A mortgage, not being assignable at law, the assignee takes it subject to equities between the parties; and the fact that he takes the note secured by the mortgage by assignment before maturity, free from all defences at law, does not protect the mortgage against equitable defences.
    4. The equitable assignee of a mortgage, to protect his rights against a payment by the mortgagor to the mortgagee, must give the former notice, actual or constructive, of its assignment. He may place the assignment on record, or give notice to the mortgagor, and thus protect his equitable rights. If he does neither, a payment of the debt to the mortgagee,—and there are no circumstances to put the mortgagor on inquiry as to the fact of the assignment,—will satisfy the mortgage and defeat a foreclosure. But such payment to the mortgagee after the legal transfer of the note before maturity, will not discharge the note, and it may be enforced at law.
    Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Kane county; the Hon. C. W. Upton, Judge, presiding.

      On October 21, 1870, Edward S. Wilcox and wife sold and conveyed to Ichabod S. Bartlett ten acres of land in the city of Elgin, for $3600. Bartlett paid in cash $1000, and executed his dour notes for the balance,—two notes of $500 each due in one year, $800 due in two years, and one for $800 due in three years after date, all with ten per cent interest, and secured by q, mortgage on the land, of the same date, which was recorded. On November 15 following, Bartlett paid the two $500 notes, and the interest on all the notes, to Edward S. Wilcox, the payee, to October 21, 1871, and subsequently divided the land into forty lots, and recorded a plat thereof. On or about October 21, 1871, Edward S. Wilcox sold and assigned the two unpaid notes of $800 each, to his brother, John S. Wilcox, and at the same time executed a release of the mortgage, and delivered the notes, mortgage, release and assignment to John S. Wilcox. Neither the release nor the assignment was recorded.
    On December 1, 1871, Bartlett sold to Hiram Ainsworth, for $500, lots 5, 6 and 7, and the south-east half of lots 3 and 4, and on the same day sold to James S. Schoonhoven, for $840, lots 1 and 2, and the north-west half of lots 3 and 4. The Ainsworth deed was filed for record on December 6, 1871, and the Schoonhoven deed on May 7, 1872. In the spring of 1873, Ichabod S. Bartlett, by contract in writing, sold the remaining lots to James Coleman, subject to the mortgage on the land securing the $1600 and the interest due on the notes, the payment of which Coleman assumed. This contract having been lost without being recorded, was proved by parol evidence.
    In September, 1873, Coleman advertised the lots sold to him, for public sale on the 27th of that month, for one-third cash, one-third in one year, and one-third in two years, the unpaid two-thirds to draw interest at six per cent, and be secured by mortgage on the lots sold. Prior to the sale it was arranged between Coleman, Bartlett and John S. Wilcox, that the latter should place the two $800 notes, the mortgage, release and assignment, in the hands of John G. Kribs, an attorney at law in Elgin; that when the lots were sold at auction, Bartlett should execute deeds therefor to the purchasers, and place them in Kribs’ hands; that Kribs should procure an abstract of title, and receive the money and notes and mortgages from the purchasers, deliver their deeds to them, and from the proceeds of the sale pay, first, to John S. Wilcox the amount of principal and interest on the notes, being $1760; second, retain $50 for his services; third, pay in money or notes to Bartlett the amount remaining due to him from Coleman, being about $700; and lastly, turn over to Coleman the remaining proceeds of the sale. Wilcox left his two $800 notes with Kribs for payment, as a matter of accommodation to Bartlett. Under this arrangement John S. Wilcox placed in Kribs’ hands the two $800 notes, the mortgage and release. • When these notes were originally assigned by E. S. Wilcox, he indorsed them in blank, and some time thereafter, and before they passed out of the possession of John S. Wilcox, the latter wrote the words “without recourse, ” over the indorsements; but he testified that he had no thought that the notes were to be assigned or negotiated by Kribs, and that he never authorized Kribs to assign the same.
    On September, 1873, the larger portion of the lots were sold at auction. Many persons were present at the sale, and Coleman stated to them publicly that the title to the lots was clear of the $1600 and interest due on the Wilcox mortgage; that the mortgage, notes and release had been placed in Kribs’ hands, to be paid from the proceeds of the sale. The purchasers either examined the abstract of title and the release, or procured attorneys to do so for them, and were informed by Kribs that the mortgage was to be paid and cancelled from the proceeds of the sale. Lots 15, 17, 18, 19, 20, 21, 22, 23, 24, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39 and 40 were sold at the auction, and the aggregate of the consideration of the deeds was $3765, of which one-third was paid in cash, and the remaining two-thirds was secured by notes and mortgages running directly to Bartlett.
    On October 10, 1873, Bartlett, Coleman and Kribs met, and Bartlett executed deeds for the lots to the purchasers, and placed them in Kribs’ possession, for delivery upon payment, and the giving of notes and mortgages for the deferred payments; and it was then agreed that from the cash proceeds of the sale Kribs should pay Wilcox the amount of his notes and interest, and that he should retain $50 for his services, and from the remaining proceeds pay to Bartlett the amount due him, in accordance with the previous arrangement between them and Wilcox. Kribs on this occasion handed Bartlett the full release of the mortgage, who, after examining it, passed it back to Kribs, and requested him to put it on record, which Kribs promised to do. Bartlett also asked Kribs where his notes were,- and was told that they were filed away with his papers, and that the release was kept out to show purchasers, and Bartlett told Kribs to take care of the notes and leave them with his papers.
    Shortly after October 10,1873, Kribs delivered the deeds to the purchasers, and received from them the money -and notes due thereon. Kribs received between $1800 and $1900, and on the 13th of that month he paid John S. Wilcox $1000, and before the 21st of the same month he paid to Wilcox $1760, as the full amount of principal and interest unpaid on the notes. Bartlett received of the notes and mortgages a sum sufficient to pay him the balance due him from Coleman, and the remainder of the proceeds, less $50 retained for services, was turned over to Coleman, who left the same with Kribs, to be sold for him. Bartlett was never able to get a settlement with Kribs for his notes. Kribs’ office was burnt, and he pretended that the Wilcox notes were burned, and in 1875 he was arrested for obtaining them of the complainant by the confidence game, and for other crimes, was tried and convicted of the crime of larceny, and sentenced to the penitentiary. In the fall of 1875, after Kribs’ arrest, Bartlett forth e first time learned that the two $800 notes were in the possession of John M. McClelland, the defendant in error.
    It appears from the complainant’s testimony, that about October 9, 1873, Kribs applied to McClelland, and offered to sell him these notes, informing him that they were secured by mortgage on real estate. At this time one of the notes was nearly a year over-due, and the other would mature in eleven days. McClelland made no inquiry of the maker of the notes and mortgage, or of any one, and never saw the mortgage itself or had it in his possession, and took no assignment of it, but relying implicitly upon the statements of Kribs, paid him $1000 on that day, and on the 22d of the same month paid him $600, and took the notes at a discount of $30, and held them for more than two years, and until Kribs was arrested, without making any effort to collect them, during which time Kribs had been paying McClelland the interest and an annual bonus of $15, to let the notes run. During this transaction E. S. Wilcox, at the request of Kribs, on the representation of Kribs that the original release had been mislaid, executed two partial releases of the mortgage as to lots 10, 12, 14, 15, Í6, 17, 19, 21, 22, 23, 30, 31, 32, 33, 36 and 37, which were recorded. Neither Bartlett nor J. S. Wilcox had any knowledge that such releases were being used.
    On December 13, 1875, McClelland, the defendant in error, filed the bill in this case in the circuit court of Kane county, against Bartlett and all of the purchasers and owners of the lots so sold, praying that these releases be cancelled, and that a decree of foreclosure be made against all of the lots for the amount due on the Wilcox notes. On a hearing the court dismissed the bill, declaring the mortgage cancelled, according to the prayer of a cross-bill filed. From this McClelland appealed to the Appellate Court for the Second District, which reversed the decree of the circuit court, and remanded the cause. (McClelland v. Bartlett et al. 3 Bradw. 481.) On the return of the cause to the circuit court the bill was dismissed as to some of the defendants, new parties were made defendants, amended bills and answers filed, and additional proofs taken. On the second hearing, at the October term, 1882, a decree was again made dismissing the bill, and granting the relief asked in the cross-bill, to the extent of declaring the mortgage paid. McClelland appealed from this decree to the Appellate Court, which, on July 27, 1883, reversed the decree of the circuit court, and remanded the cause to that court, with directions to enter a decree of foreclosure of the mortgage for the full amount of principal and interest due on both $800 notes, against lots not specially released, being lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 13, 18, 20, 24, 25, 26, 27, 28, 29, 34, 35, 38, 39 and 40, to be sold upon such decree in the inverse order of their alienation, and that this bill be dismissed as to the other parties,—the owners of the lots in the two releases. The plaintiffs in error are interested in part of the lots held liable to the mortgage, and they bring the case here by writ of error, to reverse the decree of the Appellate Court.
    Mr. R. W. Ranstead, for the plaintiffs in error:
    The proofs show that the mortgage has been released as to all the property. The circumstances under which the complainant took the notes were sufficient to have put him on inquiry, which would have led directly to a full knowledge that they were paid, and of the fraud perpetrated on him.
    The authority given to Kribs to receive payment of the notes, conferred on him no power to negotiate them. Ryhiner v. Feickert, 92 Ill. 311; Thompson v. Elliott, 73 id. 221; Padfield v. Green, 85 id. 529; Ames v. Drew, 31 N. H. 475; Story on Agency, secs. 98, 99, 126.

      Complainant knowing that Kribs held the notes as agent, and not as owner, was required to ascertain the extent of his authority. (Williams v. Merritt, 23 Ill. 626.) The fact that one of the notes was over-due nearly one year was sufficient to put him on inquiry. Besides, the possession of the lots by Coleman and the other purchasers was notice of all their equitable rights. Doolittle v. Cook, 75 Ill. 354; Small v. Stagg, 95 id. 39; Brainard v. Hudson, 103 id. 218.
    McClelland, as the assignee of the notes, took the mortgage subject to all equities between John S. Wilcox and Bartlett, and has no greater right than Wilcox would have to enforce the security. The mortgage not being negotiable paper, the purchaser takes it subject to all equities in favor of the mortgagee and his assigns. Olds v. Cummings, 31 Ill. 139; Haskell v. Brown, 65 id. 29; Bryant v. Vix, 83 id. 12; Ogle v. Turpin, 103 id. 148; Silverman v. Bullock, 98 id. 11; Melendy v. Keen, 89 id. 404; White v. Sutherland, 64 id. 186; Walker v. Dement, 42 id. 277; Keohane v. Smith, 97 id. 156.
    Mr. R. N. Botsford, for the defendant in error:
    It is customary in the transfer of a mortgage, for the mortgagee to pass a release to the purchaser, to be delivered upon the payment of the debt; and such will not operate to extinguish the mortgage lien before payment and delivery. Flower v. Elwood, 66 Ill. 438.
    The purchasers of the unreleased lots do not occupy the position of innocent purchasers. They knew of the mortgage, and trusted Kribs, as their agent, to have the same released. Assuming that Kribs had defrauded or deceived Bartlett and Coleman, he was their agent, and intrusted with their affairs, and he who without intentional fraud has enabled a person to do an act which must be injurious to himself or to another innocent party, must suffer the injury. Story on Agency, sec. 127.

      The notes being in Kribs’ possession, indorsed in blank, were prima facie his property, and his transfer conveyed a good title to complainant. Palmer v. Gardner, 77 Ill. 143; Jewell v. Cook, 81 id. 260.
    No case has been cited, nor can any be found, where the doctrine of equitable defences against the foreclosure of a mortgage has ever been interposed to relieve a party who had placed money in the hands of his own agent,—or, in a case like this, to pay his mortgage indebtedness,—to relieve such party from the folly of allowing his agent to hold the notes secured by mortgage, as an accommodation to such mortgagee in paying them, and then paying to his own agent, without requiring the production of the notes. Morris v. Preston, 93 Ill. 215; Keohane v. Smith, 97 id. 156; Miller v. Larned, 103 id. 562.
   Mr. Justice Walker

delivered the opinion of the Court:

What are the rights of the parties on the facts in this case ? Did defendant in error acquire title to these notes, or either of them, when he purchased of Kribs ? As to the note overdue, we think not. The case of Foley v. Smith, 6 Wall. 492, was where the payee of a note left it with a bank for collection. It was indorsed in blank, and not having been paid at maturity, an officer of the bank, after it was due, fraudulently sold the note, and it was held that the note, being over-due, and the bank having no power to sell it, the purchaser took no title to the note,—that the note being dishonored by nonpayment at maturity, the purchaser was put on inquiry to ascertain whether the bank had authority to sell it, and failing to make inquiry to learn the fact, he was chargeable with bad faith, and took nothing by his purchase. That case is in point in this. Here, Kribs had no power to sell that note. It was over-due, and that put defendant on inquiry, and having failed to learn whether Kribs had necessary authority to sell the note, he must suffer the loss. The other note, not being clue when he paid the $1000, and it was delivered to him, depends on a different principle. He found the note in circulation and negotiable by delivery. Being indorsed in blank, and not due, he acquired title by the purchase and delivery, as there was no notice or anything to put him on inquiry. The statute expressly provides that purchasers of negotiable paper not due, and without notice, shall be protected against defences of payment by the maker. Here, this note was not due, and defendant in error purchased without notice, and as against the maker he took it free from the defence of the after-payment by Bartlett to Wilcox before the note matured. There is no question that Bartlett paid Wilcox in good faith, nor is there any that defendant in error acted in equally good faith, and the loss must fall on one of two innocent parties. The equity of defendant in error is manifestly equal to that of Bartlett, and where the equity is equal the law must prevail,—and that maxim applies in its full force in this case as to this latter note. Defendant had, for a full consideration, acquired, as we have seen, the legal title, which must turn the scale in his favor. Then, defendant in error having purchased the note in good faith, before maturity, and holding the legal title, all of his rights incident to commercial paper may be enforced in a court of law; but where resort is had to a court of equity by such holder, to foreclose the mortgage, that court will let in any defence which would be good against the mortgage in the hands of the mortgagee. (Olds v. Cummings, 31 Ill. 188.) It therefore follows, that where the mortgage is transferred in equity by the assignment of the note to which it is incident, the assignee of the mortgage is not protected, as he is with the note acquired in good faith before maturity.

A mortgage not being assignable at law, the assignee takes it subject to all equities between the parties. The fact that he takes the note by assignment, before maturity, free from all defences at law, does not thereby protect the mortgage against equitable defences,—that applies alone to negotiable paper, and not to equitable assignments. Not only so, but where a mortgage is assigned, and the mortgagor without notice pays the payee, who has parted with the note, that will discharge the mortgage, and in a suit to foreclose, such payment may be set up in bar of a decree for its foreclosure. The mortgagor, to release himself from liability on his note, must see that he pays the money to the holder of the note, who has received it by assignment before maturity, but not so to discharge the mortgage, because it is not assignable at law. The equitable assignee, to protect his rights against a payment by the mortgagor to the mortgagee, must give the former notice, actual or constructive, of its assignment. He may place the assignment on record, or give notice of the assignment to the mortgagor. Here defendant in error did neither, nor did the mortgagor have any notice, nor was there anything to put him on inquiry. It follows that the mortgage was satisfied by the payment by Bartlett, through Kribs, to Wilcox.

The decree of the Appellate Court is reversed, and the cause remanded.

Decree reversed.


author: Mr. Justice Mulkey Mr. Justice Sheldon, Per Curiam :

text:
    John T. Johnson et al. v. Elizabeth L. Van Epps.

      Filed at Ottawa May 19, 1884

      Rehearing denied September Term, 1884.

    1. Life insurance—to whom payment shall be made. An insurance policy taken by the assured provided for the payment of a certain sum within thirty days after due notice and satisfactory evidence of his death, to his wife, or the legal representatives of the assured: Held, that the intention of the assured was, that his wife should have the proceeds in case she survived him, but in case she did not, such proceeds were to go to his executor or administrator, to-be distributed in the due course of administration.

      2. Same—meaning of the words “legal representatives." The words “legal representatives, ” in a policy of insurance, as designating the beneficiaries, when there is nothing in the context or surrounding circumstances to indicate a contrary intention, mean “executors or administrators.” A policy of insurance payable to the legal representatives of the assured, is the same as if made payable to himself.
    3. Same—of the right of assured to change same. Where a policy of insurance is made payable to the wife of the party procuring the same, or his legal representatives, whatever may be the right of the assured during the lifetime of his wife, after her death he will have the same power over it as if it had been originally payable to himself, his executors and administrators, and with the consent of the insurer he may surrender the same, and take out a new one payable to another person.

      i. Same—payable to a stranger. The insurance of one’s own life by a party, for the benefit of one not a relative, is not void on grounds of public policy, as tending to encourage the commission of crime. But if it were, no one but the insurer can raise the question. That can not be urged by the heirs of the person insured.
    Appeal from the Appellate Court for the Second District;—■ heard in that court on appeal from the Circuit Court of Peoria county; the Hon. David McCulloch, Judge, presiding.
    Mr. Miles A. Fuller, and Messrs. Fuller & Keithley, for the appellants:
    The first policy vested a right in the beneficiaries therein named, which could not be divested except by their consent. Bliss on Insurance, sec. 317; May on Insurance, sec. 390; Continental Life Ins. Co. v. Palmer, 42 Conn. 60; Chapin v. Fellows, 36 id. 132; Continental Mutual Life Ins. Co. v. Burroughs, 34 id. 305; Eadie v. Slimmons, 26 N. Y. 9; Swan v. Snow, 11 Allen, 224; Goslin v. Caldwell, 1 Lea, (Tenn.) 454; Wilburn v. Wilburn, 83 Ind. 56; Gould v. Emerson, 99 Mass. 154; Knickerbocker Life Ins. Co. v. Weits, 99 Mass. 157; Ricker v. Charter Oak Ins. Co. 27 Minn. 193; Allis v. Ware, 28 id. 166; Williams v. Williams, 68 Ala. 406; Succession of P. A. Kugler, 23 La. 455; Pilcher v. New York Life Ins. Co. 33 La. Ann. 322; Barry v. Equitable Life Ins. Co. 59 N. Y. 587; Glanz v. Gloeckler, 104 Ill. 573; Libby v. Libby, 37 Me. 359.

      Ordinarily, the meaning of the words “legal representatives, ” is that of executors or administrators; hut the language here shows it meant the heirs. Bliss on Life Insurance, sec. 319; Warnecke v. Lembca, 71 Ill. 91; Bowman v. Long, 89 id. 19.
    Mrs. VanEpps does not belong to the class entitled to aid under the association, it being to afford financial aid to the widows and orphans, heirs or devisees of deceased members.
    Messrs. Starr & Starr, and Mr. John C. Yates, for the appellee:
    The cases cited on the first point, being on special statutes, have no application here.
    After the death of Johnson’s wife there was no special use in his keeping his certificate. It then belonged exclusively to him, and he had the right to have the same cancelled and a new one issued payable to another person. Clark v. Durand, 12 Wis. 248; Kenman v. Howard, 23 id. 128; Gambs v. Mutual Life Ins. Co. 50 Mo. 44; Mutual Benefit Life Ins. Co. v. Atwood, 24 Gratt. 497; Mutual Life Ins. Co. v. Coghill, 30 id. 72; Doll v. Lincoln, 31 Maine, 428; Swift v. Mutual Aid Society, 96 Ill. 309.
    The new certificate was issued upon the application of Johnson,—not Mrs. VanEpps. Assenting to an assignment is treated in equity as a new policy. Cole v. Marple, 98 Ill. 58; City Fire Ins. Co. v. Mark, 45 id. 482; Tillon v. Kingston Mutual Ins. Co. 7 Barb. 573.
    The certificate is to be treated as a policy of insurance. Masons’ Benevolent Society v. Winthrop, 85 Ill. 537; Masons' Benevolent Society v. Baldwin, 86 id. 479; Commercial League v. The People, 90 id. 166; Commonwealth v. Wetherbee, 105 Mass. 160; State v. Merchants’ Mutual Benefit Society, 72 Mo. 146.
    There must be something illegal or immoral before a contract can be void as against public policy,—something that is calculated to corrupt the public morals, or is in contravention of public interests. Gillett v. Logan County, 67 Ill. 256.
    The certificate could be enforced against the society as a gift to Mrs. Van Epps. Bliss on Life Insurance, 513, 514, 515; Grangias v. Arden, 10 Johns. 291; Dale v. Lincoln, 62 Ill. 22; Majors v. Everton, 89 id. 56; Cranz v. Kroyer, 22 id. 74.
    Mr. W. T. Whiting, guardian ad litem for minor heirs:
    It matters not who paid the assessments on these certificates. Gambs v. Mutual Life Ins. Co. 50 Mo. 44.
    “Heirs” and “legal representatives” are, as to this case, synonymous terms. Loos v. Hancock Ins. Co. 41 Mo. 540; Masonic Association v. McAuley, Am. Law Reg. 1883, 141; Gauch v. St. Louis Mutual Life Ins. Co. 88 Ill. 252.
    A certificate is controlled by the constitution and by-laws of the society. Richmond v. Johnson, 28 Minn. 448.
    One of the questions arising early in this case is, which certificate is in force. If the first, then the reasons therefor may be found in—
    First—A vested interest in the heirs. Pilcher v. New York Life Ins. Co. 33 La. Ann. 323; Hirschl on Fraternities, 25; Glanz v. Gloeckler, 104 Ill. 573; 10 Bradw. 486.
    Second—The second certificate being void in whole. Penn v. Bornman, 102 Ill. 534; McGowan v. Insurance Co. 54 Vt. 215; Van Buren v. St. Joseph, 28 Mich. 404; Mutual Life Ins. Co. v. Miller, 13 Bush, (Ky.) 491; Folmer's appeal, 87 Pa. St. 138. Or in part. Koontz v. Hannibal, 42 Mo. 128; Arnott v. Pittston, 2 Hun, 591.
    Third—The validity in favor of the heirs, pro rata, as to assessments upon the old and new certificates,—that to this extent, at least, it was a paid-up policy—an executed contract. Harley v. Heist, 86 Ind. 199; Connecticut Mutual Life Ins. Co. v. Burroughs, 34 Conn. 315; Landrum v. Knowles, 22 N. J. Eq. 595.

      The second certificate could be attacked on the ground of public policy, and declared void. Mutual Benefit Association v. Hoyt, 46 Mich. 478; Missouri Valley v. Sturges, 18 Kan. 93.
   Mr. Justice Mulkey

delivered the opinion of the Court:

On the 1st of August, 1872, the Illinois Masons’ Benevolent Society, for the consideration therein mentioned, issued, under its seal, to H. B. Johnson, of Toulon, this State, a certificate of membership, in the nature of a policy of insurance, whereby said society promised and agreed “to and with the said H. B. Johnson, his heirs, executors, administrators and assigns, well and truly to pay, or cause to be paid, to Judith Johnson, his wife, or the legal representatives of the said H. B. Johnson, within thirty days after due notice and satisfactory evidence of his death, ” certain sums of money in said certificate or policy specified. Mrs. Judith Johnson having-previously died, the society, on the 17th of January, 1880, at the request of the assured, and upon his representation that Mrs. Elizabeth L. Van Epps, of Peoria, Illinois, was then his affianced, cancelled the above certificate of insurance, and issued another to him of that date, substantially the same as the first, except that it was made payable to the said “Mrs. Elizabeth L. Van Epps, or the heirs of the said H. B. Johnson.” At the time of issuing the new certificate, certain indorsements were made upon the old-one. Across the face was written: “Cancelled—Null and void—New certificate, January 17, 1880.” On the back is the following:

“On the 17th day of January, 1880, the within certificate was surrendered to the Illinois Masons’ Benevolent Society, at my request, and a new one of that date issued, with benefit payable to Mrs. Elizabeth L. Van Epps, my affianced. I have no children.
H. B. Johnson,
Formerly of Toulon, Stark county, Ill.”

At the date of this transaction Mrs. Van Epps was a married woman, though living apart from her husband, from whom she was divorced on the 6th of October following. The evidence tends to show that prior to the above transaction the assured was an occasional guest or lodger in the house of Mrs. Van Epps, and that during the year 1880, his health having become precarious, he changed his residence to Peoria, and became a permanent lodger in her house, where he was taken care of and supported by her until the time of his death, which occurred on the 25th of October, 1881. The deceased left no children or descendants of children, the appellants being his collateral heirs only. Upon Johnson’s death, the company having - been notified by appellants not to pay to Mrs. Van Epps the amount due under the policy, payment was accordingly withheld until their respective rights could be determined. The company thereupon filed the present bill of interpleader, to compel them to litigate their title to the fund in question, which amounts to $4160.41. The company has brought this sum into court, that it may be paid to the successful claimants, whoever they may be. Upon the hearing of the cause the court found Mrs. Van Epps entitled to the fund, and entered a decree accordingly, which, on appeal, was affirmed by the Appellate Court for the Second District, and the heirs bring the record here for review.

After a careful consideration of the evidence in this case, we do not feel inclined to disturb the decree, unless some imperative rule of law demands it. The proofs satisfactorily show that Johnson, after the death of his wife, by reason of the loss of health, and consequent travel in attempting to . regain it, became financially in very straightened circumstances,—so much so that he was in effect forced to make some disposition of his certificate or policy of insurance, or suffer it to lapse for non-payment of assessments. Under these circumstances he “entered into arrangements with Mrs. Van Epps whereby she was to pay all assessments, furnish him a home, and take care of him in case of sickness, ” in consideration of which she was to receive the proceeds of the policy upon his death. In pursuance of this understanding, the old certificate was taken up and cancelled, and a new one issued, as already stated. This agreement has been faithfully executed on her part. The evidence shows that after the change in the certificates, all assessments, amounting in the aggregate to $165.20, were paid by her; that she furnished the deceased with a comfortable home, supported and nursed him through a long period of suffering and prostration that preceded his death. Whatever may be the legal aspects of the case, it must be conceded Mrs. VanEpps, on the principles of natural justice, has a strong claim upon the fund in dispute. But of course these principles, of themselves, can not avail, as the rights of the parties to this, as well as tó all other legal controversies, must be determined according to the positive law of the State, whether that law entirely coincides with our notions of natural equity, or not. The question then is, when thus tested, what are the legal rights of the parties ?

The first position assumed by appellants, as stated in their own language, is: “That immediately upon the issuance of the first policy, payable to ‘Judith Johnson, or to the legal representatives of H. B. Johnson,’ the right of said beneficiaries became vested, and could not be divested in any way without their consent. The property, or ownership of the policy, was in the beneficiaries, and beyond the control of Johnson, the insured, and he could do no act to divest or transfer it from them to other parties. ” Numerous authorities are cited as sustaining the view thus stated, among which are the following: Bliss on Insurance, sec. 317; May on Insurance, secs. 390, 391; Continental Life Ins. Co. v. Palmer, 42 Conn. 60; Chapin v. Fellows, 36 id. 132; Gould v. Emerson, 99 Mass. 154; Glanz v. Gloeckler, 104 Ill. 573.

With respect to the cases cited, appellee contends they are, in the main, if not altogether, based upon the statutes of the several States in which they arose, and not upon common law principles. It is also claimed the text of May and Bliss is founded solely upon these eases, and hence it is concluded the authorities cited can have no effect in this case. It is further claimed by appellee, that in the absence of any statutory provisions controlling the question, the rule contended for by appellants is applicable only where the policy is taken out by the beneficiary, and not by the party whose life is insured,—or, in other words, only when the contract of insurance is between the beneficiary and the insurer, as, where a wife or child takes out a policy on the life of the husband or father, as in the case of Glanz v. Gloeckler, 104 Ill. 573, above cited; that the rule has no application where one takes out a policy in his own name, for the benefit of his wife or child, as was the case here; that in such case, the contract being between the insurer and the party whose life is insured, so long as the latter retains possession of the policy he has the right, with the consent of the insurer, to change the contract of insurance so as to give the proceeds of the policy, upon his death, to a different beneficiary, or to change it in any other manner the contracting parties may agree upon, not contrary to law or good morals. That this position is supported by many analogies of the law, as well as by express adjudications, must be conceded; (Clarke v. Durand, 12 Wis. 248, Kerman v. Howard, 23 id. 108, Foster v. Gile, 50 id. 603, and Gambs v. Mutual Life Ins. Co. 50 Mo. 44;) and assuming it to be the law, the decree in this ease is clearly right. But whether, as a general proposition, this be the correct view or not, we do not regard as material to the decision of this case, and we shall therefore not stop to consider it, as the conclusion to be reached will be placed on a different ground.

If, as claimed by appellants, where one takes out a policy on his own life for the benefit of another, the latter at once acquires a vested interest therein which can not be defeated by any act of the assured or insurer, or by the combined action of both, it would seem to follow such an interest would not be defeated by the death of the beneficiaryjhi the lifetime of the assured, but that in such case the right thus vested in the policy would pass, like any other chattel interest, to the executor or administrator of the beneficiary, so that if it be assumed the interest in the first certificate of insurance, upon being issued, at once vested in Mrs. Johnson, and the rule suggested be applied to the present case, it is clear the right to the proceeds of the policy is in her personal representatives, and not in the appellants, which of course would be fatal to their claim. They are therefore forced to the position that upon the death of Mrs. Johnson, the first beneficiary in the order of limitation, and all persons claiming through her, ceased to have any interest in the policy or its proceeds, and it seems to be now conceded by both parties to this appeal that the instrument in question must be now construed in the same way it would be if Mrs. Johnson’s name had never appeared in it as a beneficiary. It is manifest, as already remarked, any other view would be fatal to the claim of appellants. Striking out the name of Mrs. Johnson as a beneficiary, the policy or certificate would then be payable to “the legal representatives of the said H. B. Johnson, ” and the question for determination is, what construction should a policy receive thus drawn. If by the expression, “legal representatives,” is meant the executor or administrator of Johnson, which is the ordinary meaning attached to it, it is clear appellants did not, as contended by their counsel, take an immediate vested interest in the policy at the time it was issued, and if they took none then, it will hardly be contended they have any now. The doctrine seems to be well recognized that the words, “legal, representatives, ” when used to indicate those entitled by law to a decedent’s personal estate, as was the case here, uniformly mean, where there is nothing in the context or surrounding circumstances to indicate a contrary intention, “executors and administrators.” (Loos v. John Hancock Life Ins. Co. 41 Mo. 538.) In 2 Jarman on Wills, sec. 649, the author, referring to the expressions, “legal representatives, ” and “personal representatives, ” says: “Each of these terms, in its strict literal acceptation, evidently means executors or administrators, who are, properly speaking, the ‘personal representatives’ of their deceased testator or intestate.”

We fail to discover anything in the certificate to indicate the expression, “legal representatives,” was used out of its ordinary and appropriate sense; nor do we perceive anything in the surroundings or circumstances attending the transaction to warrant the conclusion the expression in question was used in any other sense than that of “executors” or “administrators.” On the contrary, we are of opinion the circumstances rather strengthen the view it was used in its ordinary and appropriate sense, as above stated. Judging from Johnson’s pecuniary circumstances at the time of his death, it is probable he was a man of limited means when the first certificate was issued. He was without children, and outside of his wife he had no relations that he was under any obligation to maintain or provide for. His highest duty, therefore, in disposing of the proceeds of the certificate of insurance, was to first provide for his wife, and then for such as might have just claims against his estate in the event he survived her, and this we think he accomplished by limiting the proceeds of the certificate in the manner he did. In short, we think, so far as the first certificate is concerned, it was the intention of Johnson that his wife should have the proceeds in the event she survived him, but in case she did not, such proceeds were to then go to his executor or administrator, to be distributed in due course of administration. This view is, of course, fatal to appellants’ claim. Whatever may have been the rights of Johnson with respect to the policy before the death of his wife,—about which we express no opinion,—we have no hesitancy in holding that after that event he had the same power over it as if it had originally been made payable to himself, “his executors and administrators, ” in which ease, of course, he would, at any time during his life, with the consent of the company, have had the right to surrender it, and take out another, making a different disposition of the proceeds, as was done in this case. The taking out of the new certificate was, under the circumstances of this case, in legal effect the taking out of a new policy; and that it was competent for the contracting parties to do so, under the circumstances of this case, is fully shown by the case of Swift v. Mutual Aid Society, 96 Ill. 309. We cite, also, in this connection, Cole v. Marple, 98 Ill. 58; Mutual Benefit Life Ins. Co. v. Atwood, 24 Gratt. 497; Mutual Life Ins. Co. v. Coghill, 30 id. 72; Doll v. Lincoln, 31 Maine, 428.

The judgment will be affirmed.

T , ^ „ 7 Judgment affirmed.

Mr. Justice Sheldon,

dissenting:

I regard the provision for payment to Mrs. Van Epps as void, as being repugnant to the whole purpose and design of the association, as set forth in its constitution and by-laws. Article 2 of its constitution declares: “Th.e business and object of this society shall be to give financial aid and benefit to the widows, orphans, and heirs or devisees of deceased members.” A section of its by-laws declares: “The business and object of this society shall be to afford financial aid .and benefit to the widows, orphans, heirs and devisees, only, of its deceased members..” The latitude allowable in the case of insurance companies in making policies of insurance for the benefit of others, is not, consequently, admissible in such a case as this, as our statute in respect to “corporations not for pecuniary profit, ” declares : “Associations and societies which are intended to benefit the widows, orphans, heirs and devisees of deceased members thereof, * * * shall not be deemed insurance companies.”

Subsequently, upon an application for a rehearing, the following additional opinion was filed:

Per Curiam :

The point is made in the petition for a

rehearing, that the law will not sanction any contract or other engagement which has a tendency to the commission of crime, and it is claimed the insuring of one’s own life for the benefit of a stranger has such a tendency;—hence it is concluded the certificate of insurance to Johnson, for the benefit of Mrs. Van Epps, is void. Viewing this as an original question, there is certainly but little, if any, force in it, so far as it is supposed to be applicable to the case in hand. It is an every day occurrence for persons to make wills containing bequests to mere strangers having no notice of their provisions, and yet the validity of such wills has never been questioned on the ground suggested. So, it is not infrequent that contracts are made to pay sums of money upon the death of a specified person. So, it is a part of every day’s experience to convey lands to one for life, with remainder in fee to another, and the validity of these transactions has certainly never been doubted on the grounds suggested,—and yet the temptation of the beneficiary to accelerate the enjoyment of property thus limited, by taking life, is just as strong in either of the cases mentioned as in the case before us.

Upon the record before us, however, we deem it wholly unnecessary to inquire whether the claim of Mrs. Van Epps stands upon the same footing that one confessedly founded upon a wager policy does, as is claimed to be the case by appellants, for the result, let the question be decided as it may, is all the same, and equally fatal to their right to maintain this appeal. The company has brought the fund in dispute into court, for the express purpose of discharging its liability on the certificate or policy payable to Mrs. VanEpps, and sets forth in its bill that the former certificate was, at the request of Johnson, in his lifetime, taken up and cancelled by the company, and consequently now has no existence. These facts are not denied by appellants, but are admitted upon the record to be true, and the only shadow of claim they have, or claim to have, to the fund in question, must be worked out through the present certificate, which is expressly payable to Mrs. VanEpps, and the by-laws of the company or society, in express terms, as well as the law of the State, if the certificate has any legal effect at all, require the fund to be paid to “the beneficiaries named in the certificate.”

If the requirement of the by-laws is to be observed, this money, of course, must be paid to Mrs. VanEpps. But for the purpose of defeating her claim, appellants, as we have just seen, say the making of the certificate payable to her was not authorized by law,—that such a contract is in the nature of a wagering policy, and is consequently void as against public policy. Conceding, for the purposes of the argument, this is so, and that the decree for this reason is erroneous, it does not necessarily follow the decree should be reversed, at the instance of appellants, for that reason. The argument is like a two-edged sword,—it cuts both ways. It proves too much. As it has been fully shown the alleged rights which appellants are seeking to enforce in this proceeding are based upon this very certificate, and if it is true, as claimed by them, the certificate is void as against public policy, it manifestly follows they themselves acquired no rights under it, for no, one can acquire rights under a void instrument, and it is hardly necessary to add, one will not be heard to complain of an error that does not injuriously affect some right of his. Assuming appellants’ hypothesis to be true, the company or society alone would have the right to complain. But it is entirely content, and makes no objection whatever to the payment of the money on the ground suggested.

In any view, appellants have no right to the proceeds of the certificate in question.