author: Mr. Justice Mulkey

text:
    Octavius Pierce v. The People of the State of Illinois.

      Filed at Springfield March 29, 1883.

    1. Foreign insurance companies—power of the State to prescribe a penalty against cm agent of a company which has not complied with the statute. Section 22, of the general Insurance law of 1869, so far as it provides a penalty against any agent of a foreign insurance company for acting for such company without a certificate of authority from the Auditor showing it has complied with the requisitions of the act, and declares that any person aiding, in any manner, in transacting the insurance business of such company shall be subject to such penalty, is a constitutional and valid law.
    2. It is competent for the legislature to declare all contracts of insurance made by a citizen of this State with a foreign insurance company having no right to do business here, void, on the ground of being contrary to the public policy of the State; and in furtherance of the same object, the legislature may declare it a penal offence for any one to do anything here, whether acting on behalf of the insurer or insured, by way of aiding in effecting 'insurance in such companies not qualified to do such business under our laws.
    3. Same—as to the place where the contract may be made, as affecting the liability of the agent here. So far as concerns the liability of the agent acting in this State, to the penalty prescribed, it matters not where the eon-tract of insurance may be made. The evil intended to be reached by the act was not merely the making of such contracts in this State. What the legislature desired to accomplish was to prevent them being made at all.
    4. Same—whether a person is to he regarded as the agent of the company or of the assured. In this case, upon the question whether a person acting in the matter of procuring property in this State to be insured by a foreign insurance company was acting as the agent of the company or of the assured, it was considered, on the facts appearing, that he should be regarded as the agent of the insurance company, and as such subject to the penalty imposed by the act of 1869, notwithstanding a clause in the policy providing that any person, other than the assured, who shall participate in any transaction concerning the insurance will be deemed the agent of the assured, and not of the company.

    Appeal from the Superior Court of Cook county; the Hon. Rollin S. Williamson, Judge, presiding.
    Mr. Thomas Bates, for the appellant:
    The statute does not attempt to prevent an insurance company in New Orleans from insuring property in Illinois, provided the contract for insuring is made in New Orleans, and the policy written there. Nor does it prohibit a citizen of this State, either by himself or his agent, from sending to an insurance company not admitted to do business in this State for insurance on his own property. People v. Imlay, 20 Barb. 68; Clay Fire and Marine Ins. Co. v. Huron Salt and Lumber Co. 31 Mich. 354; Lamb v. Bowser, 7 Biss. 315; Union Mutual Life Ins. Co. v. McMillen, 24 Ohio, 79; Hunter v. Merrill, 32 Barb. 628; Jackson v. State, 50 Ala. 141 ; New Orleans v. Virginia Fire and Marine Ins. Co. 31 La. Ann. 781.
    Appellant, in procuring this policy, was the agent of the insured, and not of the company. As bearing on this point, see Ben Franklin Ins. Co. v. Weary, 4 Bradw. 78; Fame Ins. Co. v. Thomas, 10 id. 554; Standard Oil Co. v. Triumph Ins. Co. 64 N. Y. 89; Hartford Ins. Co. v. Reynolds, 36 Mich. 506 ; Lycoming Fire Ins. Co. v. Rubin, 79 Ill. 403. Besides, the policy itself made him the agent of the insured.

      Mr. W. C. Goudy, also for the appellant,
    among various, other points, in addition to those above, made the following:
    The contract was made in Louisiana. The proposition was sent by letter from Chicago to New Orleans, and accepted there. The policy was made and signed there, and mailed from that city. As soon as mailed, the contract was binding on the insurance company. Huntly v. Merrill, 32 Barb. 566 ; Hyde v. Goodnow, 3 N. Y. 266; Western v. Insurance Co. 12 id. 236; Lamb v. Bowser, 7 Biss. 315; May on Insurance, sec. 66.
    Mr. E. B. Sherman, and Mr. J. L. High, for the People:
    The Insurance law of 1869, for a violation of which this suit is brought, is constitutional and valid. Cincinnati Mutual Health Association v. Rosenthal, 55 Ill. 85; Ward v. Farwell, 97 id. 593; Chicago Life Ins. Co. v. Auditor, 101 id. 82; Farmers and Merchants’ Ins. Co. v. Hurrah, 47 Ind. 236; Franklin Ins. Co. v. Louisville, 9 Bush, 590; Lamb, Assignee v. Lamb, 6 Biss. 420.
    The statute does, in terms, prohibit any foreign insurance company not having complied with the provisions thereof, from taking any risk on property situated in the State of Illinois, and such is its evident intent and purpose. Rev. Stat. chap. 73, see. 22.
    In order more effectually to prevent such illegal transaction of insurance business in this State, agents of such corporations, and all other persons, are expressly prohibited from aiding, in any manner, ^directly or indirectly, in the taking of risks or the transacting of such business of insurance in this State. Rev. Stat. chap. 73, sec. 22.
    Appellant was clearly an agent of the insurance company, within the meaning of the statute, and acted as such in placing the risk in question, and in transacting the said business. Rev. Stat. chap. 73, sec. 22; Ford v. Buckeye Ins. Co. 6 Bush, 133; Lamb v. Lamb, 6 Biss. 420.

       See Union Ins. Co. v. Chipp, 93 Ill. 96, as bearing on this subject.

   Mr. Justice Mulkey

delivered the opinion of the Court-:

This is a penal- action, brought in the Superior Court of Cook county, by the Attorney General, in the name and on behalf of the People, the appellee, against Octavius Pierce, the appellant, under the 22d section of the act of the 11th of March, 1869, entitled “An act to incorporate and to govern fire, marine and inland navigation insurance companies. ”

The declaration charges “that the defendant, on June the 1st, 1880, acted as the agent of, and transacted business for, the Firemen’s Insurance Company of New Orleans, in taking-risks and transacting business of fire insurance in the State of Illinois, and as such agent did procure and deliver to Stina Wiggins, of said county, a policy of insurance, numbered 13,149, whereby the said Firemen’s Insurance Company of New Orleans did insure the said Stina - Wiggins against loss or damage by fire for one year, from June 1, 1881, in the sum of $1000, on property in Cook county, described as follows: ” giving a description of the property. It is also shown, by proper and formal averments, that at the time the defendant so acted as agent, the Firemen’s Insurance Company of New Orleans was a foreign insurance company, organized and doing business under the laws of the State of Louisiana, and had not complied with the requirements of the general Insurance act above referred to. In another count of the declaration it is charged that the defendant assisted “in procuring, issuing and delivering to Stina Wiggins said policy, and that said acts were done by defendant as agent of said company. ” There was a general traverse of the averments of the declaration, and the cause, by consent of parties, was tried before the court without a jury, resulting in a finding and judgment in favor of plaintiff for $500, and costs, and thereupon the defendant appealed to this court.

There is no controversy so far as the evidentiary facts are concerned,—the controversy being entirely as to a conclusion of fact. The case, in this respect, turns in the main upon the testimony of the appellant himself. He testifies as follows : “I am engaged in the insurance business, and have been so engaged for several years. I wrote a letter, of which the one shown me is a copy. The letter is dated May 25, 1881, and was directed and sent to the Firemen’s Insurance Company of New Orleans, and was received by them. The letter is as follows:

“ ‘Chicago, May 25, °1881.
“‘Firemen’s Ins. Co., New Orleans, La.:
“ ‘Gentlemen : I am requested by Mrs. Stina Wiggins, of this city, to ask you if you will accept a risk on her furniture factory, as per memorandum inclosed. If so, you can either send policy direct to her, or to me, and I will deliver it for you, and see that the premium is remitted to you.
“ ‘Tour early reply will greatly oblige,
Tours, very truly,
0. Pierce.
‘“Memorandum.—One year, $1000, 5 per ct. prem., $50, June 1, 1881. On the frame building in the alley, situate in the rear of No. 198 Union st., and on the ‘L’ connected and running north along the alley in the rear of Nos. 200 and 202 North Union st., Chicago, 111. q p
‘“Note.—Occupied as a furniture factory.’
“I received no reply to the letter, but they sent the policy of insurance, and nothing else. The policy now shown me is in every respect a copy of the policy received in answer to the letter, except that one was signed by the officers of the company and this is not. The policy sent me was dated June 1, 1881, and when received I delivered it to Mrs. Wiggins. It was accepted by her, and she paid me the premium, $50, of which amount I remitted $40 to the Firemen’s Insurance Company, and retained $10 as my commission.”

The policy itself contained a provision that any person other than the assured procuring the insurance to be taken by the company, should be deemed the agent of the assured named in the policy, and not of the company. On the back of the policy also appears this indorsement: “Bead the conditions of this policy.—Expires June 1, 1882. Sum insured, $1000. Bate, 5 per cent. Premium, $50, less 20 per cent; rebate, $10; net, $40.”

The 22d section of the Insurance act, above referred to, contains, among others, the following provisions: “It shall not be lawful for any insurance company, association or partnership incorporated by or organized under the laws of any other State of the United States or any foreign government, for any of the purposes specified in this act, directly or indirectly, to take risks or transact any business of insurance in this State, unless possessed of the amount of actual capital required of similar companies formed under the provisions of this act; and any such company desiring to transact any such business, as aforesaid, by any agent or agents in this State, shall first appoint an attorney in this State, on whom process of law can be served, and file in the office of the Auditor of Public Accounts a written instrument, duly signed and sealed, certifying such appointment. * * * Nor shall it he lawful for any agent or agents to act for any company or companies referred to in this section, directly or indirectly, in taking risks or transacting the business of fire or inland navigation insurance in this State, without procuring from the Auditor of Public Accounts a certificate of authority, stating that such company has complied with all the requisitions of this act which apply to such companies, and the name of the attorney appointed to act for the company. * * * violation of any of the provisions of this act shall subject the party violating the same to a penalty of $500 for each violation, and of the additional sum of $100 for each month during which any such agent shall neglect to file such affidavits and statements as are herein required. * * * The term ‘agent or agents,’ used in this section, shall include an acknowledged agent, surveyor, broker, or any other person or persons who shall, in any manner, aid in transacting the insurance business of any insurance company not incorporated by the laws of this State. ”

One of the grounds assigned in the court below in support of the motion for a new trial is, that the Insurance act of 1869, so far as it relates to foreign insurance companies, is unconstitutional. But it is conceded here by counsel for appellant, if the act is construed as merely prohibiting foreign companies from coming into this State and doing an insurance business here, except upon the conditions prescribed by the act, it is constitutional. This proposition is so clearly settled by the authorities, it can no longer be regarded as an open question. But it is contended, on the other hand, that if the act is to be construed “so as to prevent an inhabitant or citizen of this State from making a valid contract with a corporation created by the laws of Louisiana, and doing its business in that State, then it is in conflict with that provision of the Federal constitution declaring that the citizens of each State are entitled to all the privileges and immunities of the citizens of the several States. ” According to the view we take of the facts of this ease we do not deem it important to determine whether the construction last suggested is the true one or not, or, conceding such to be the proper construction, whether the act, in that event, would be obnoxious to the Federal constitution, as is supposed by counsel. It will be time enough for the discussion of these questions when a case comes before us in which the contract of insurance or the acts complained of clearly occurred outside of the State. For the purposes of this case we may assume the construction of the act first above suggested is the true one, and in that view it is conceded by all parties to be constitutional and valid. '

Assuming, then, the act only extends to persons who make contracts of insurance here on behalf of such companies, or who do acts here in furtherance or in aid of such contracts, though concluded out of the State, the case before us is brought within a very narrow compass. It resolves itself into this: Was appellant, in procuring from the company the policy issued to Mrs. Wiggins, acting exclusively as her agent, and not as the agent of the company,—;or, more pointedly, can it be truthfully said that the appellant, in procuring from the company the policy in question, was not, “in any manner, aiding in transacting the insurance business” of that company in this State ? We do not think that it can. In the light of all the circumstances it is difficult to arrive at any other conclusion than that the appellant, in obtaining the insurance in question, was acting as the agent of the company, or at least was in some manner aiding in the transacting of insurance business by that company in this State, within the meaning of the act. It is to be specially noted, as-we have already seen, that the term “agent,” as defined in the act, is not confined to such as are duly appointed or acknowledged by these companies, and who have opened offices and established places of business in this State, but extends to “any other person or persons who shall, in any manner, aid in transacting the inswrance business of any insurance company not incorporated by the laws of this State, ” and which has not complied with the provisions of our insurance act. It being admitted this company was not incorporated under the laws of this State, the simple inquiry is, did the appellant, in any manner, aid in transacting the insurance in question? Now, it is manifest that it was almost wholly through his agency the insurance was effected. If you leave out of view the part he played in the transaction there would be really nothing of it. As it was, an insurance was effected between a citizen of this State and a foreign insurance company not having authority to do business here, upon property in this' State,—the very thing the legislature intended to prevent so far as it was competent for it to do so, —and yet we are asked to say the appellant did not, in any manner, aid in effecting the insurance; for to admit that he did, we are bound by the express terms of the act to hold he was the company’s agent.

It is an error to suppose the evil which the legislature intended to reach was the making of such contracts in this State. What the legislature desired to accomplish was to prevent their being made altogether. The evil sought to be reached was the taking of risks by these companies on the property of our citizens situated in this State. It was therefore a matter of entire indifference, so far as the evil sought to be reached was concerned, where these contracts were made, if to be made at all. In adopting our Insurance act the legislature evidently intended to protect the citizens of this State, and keep them out of the clutches of worthless and irresponsible companies, and to force all companies, good and bad alike, to keep an adequate fund within the jurisdiction of our own courts for the protection of policy-holders. It may be admitted that it was incompetent for the legislature, in endeavoring to accomplish this object, to say that a citizen of this State should not make a contract with a foreign company not having the right to do business here, for the insurance of property in this State, yet the legislature, in such case, would clearly have the power to declare all such contracts void, when sought to be enforced here, on the ground they are contrary to the public policy of the State; and we perceive no reason why it might not also, in furtherance of the same object, declare it a penal offence for any one to do anything here, whether acting on behalf of the insurer or assured, by way of aiding in effecting such insurance by these companies. \

But waiving all these considerations, can it, in the light of the unquestioned facts of the case, be dotibted that there must have been either an express or tacit understanding between the company and appellant that he was to act for it in obtaining risks on property in this State ? He states, himself, that he is, and has been for some years, in the insurance business; that his place of business is No. 202 La Salle street, and that while thus engaged in business he made the application in question; that he wrote and sent the above letter to the company, asking it to take the risk in question, which purports.on its face to have been written at her request, but in his testimony he does not claim or pretend that, as a matter of fact, she requested him to write any such letter, or that she gave him any instructions whatever with reference to the insurance. For aught that appears from his own testimony she- may have simply called at his office and told him she wanted insurance in some good company, and left the entire matter to him, as is frequently done. But this, of course, is matter of mere conjecture. As to what actually took place between him and her his testimony is significantly silent.

It further appears from appellant’s testimony, as we have already seen, that at the time of forwarding the application he also sent a description of the property and a memorandum of the terms of the contract; that the policy was made out in exact conformity with the terms proposed, and returned to him to be delivered to her; that upon receiving the policy so made out, he delivered the same to her, she paying him the premium of $50, $10 of which was retained by him as commissions and the balance forwarded to the company. If we leave out of view the fact that the application purports to have been made at the request of the assured,—though, as before stated, appellant does not, in his testimony, claim or pretend it was so made,—in what does this transaction differ from other eases where the agents of foreign companies doing-business here forward like applications to the home offices ? In nothing, that we can see. And yet in those cases, so far as we are advised, it is universally understood that the local agents here act as the agents of such companies in effecting insurance.

Moreover, it seems to us that in this particular case the conduct of the company, viewed in the light of a business transaction, is wholly unaccountable, except upon the hypothesis the appellant was acting for and in the interest of the company in effecting this insurance. Assuming this was a mere casual transaction, in which he acted as a mere friend of the assured, and that there was no previous understanding or arrangement by which applications of this kind were to be forwarded to the company, how is it that he or Mrs. Wiggins, or both of them together, were able to fix in advance all the terms and conditions of the insurance so satisfactorily to the company, without at all consulting the company on the subject? Under the circumstances suggested, the more natural course would have been to have written a letter to the home office of the company, inquiring whether it would take the desired risk, and if so, the terms upon which it would take it. And to have enabled the company to have acted intelligently in the premises, the appellant should, and doubtless would, have prepared and inclosed with the letter of inquiry a regular survey of the property upon which the insurance was desired. But nothing of this kind was done. On the contrary, the terms of the insurance were all settled, and sent with the application, substantially in the same manner it is usually done in other eases where the party making out and forwarding the application is confessedly acting for the company. And not only so, upon the application being thus made out and forwarded, the company, without any such survey or other information, so far as the evidence shows, tp enable it to determine the extent of the hazard in accepting the terms proposed, quietly made out the policy, inclosed it in an envelope, and addressed and mailed the same to appellant at Chicago, without any accompanying letter, note or direction, or a single word of explanation or comment. Upon the hypothesis appellant was acting as the agent of the company in this transaction, the company’s conduct is rational enough; hut upon the theory he was acting as the agent of the assured only, its conduct is wholly inexplicable, on business principles.

Again, if appellant was acting as a mere friend of Mrs. Wiggins, and not as the agent of the company, in taking her application, we are at a loss to see how he could consistently have collected $50 of her as premium, since the company was only entitled to $40, upon the hypothesis he was not acting as its agent. Prom his account of the affair, however, it is clear enough she understood she was paying the company the entire sum of $50 as premium. Had he told her the company would only be entitled to $40 net, but that he should charge her $10 for asking the company if it would take the risk, the probability is she would have declined his services. However skillfully disguised, the true character of the transaction seems to us apparent. The $50 was paid by her as premium,—that being the amount she proposed to pay in her application,—and as between her and the company no rebate of twenty per cent was intended or expected, notwithstanding the provision in the policy to that effect. As between the appellant and the company of course the rebate was allowed, which was nothing more than a payment by the company of the usual fee allowed in such cases.

When we examine this policy in the light of the facts in this ease, we can not repel the conviction that the provision in it just referred to, providing for a rebate of twenty per cent of the premium, and also the provision declaring “that any person, other than the assured, who may have procured this insurance to be taken by this company, shall be deemed to be the agent of the assured named in this policy, and not of the company, under any circumstances whatever, or in any transaction relating to this insurance, ” were inserted in the forms of the company’s policies for the express purpose of enabling the company and its agents to evade the above provisions of our Insurance act, and similar acts of other States. Yet all such schemes, however cunningly devised, must necessarily fail. Courts look to the substance of a transaction, rather than the form, and will not permit the legislative will to be defeated by the most ingenious shifts and devices. If one engages another to attend to his business, and the latter enters upon the duties assigned to him, he thereby becomes the other’s agent as to everybody else, notwithstanding it may have been expressly stipulated between the parties that he should be regarded as the agent of some one other than the employer. All such attempts to change or control the law of the land by stipulations between contracting parties, must necessarily prove idle and futile.

The question here is, did the appellant, within the meaning of the statute, act as the agent of the company? In his letter to the company he says, if it accepts the risk, “you can either send policy direct to her, or to me, and I will deliver it for you, and see that the premium is remitted to you. ” The policy was sent by the company to the appellant, and he delivered it to her. His express undertaking with the company, if sent to him, was to deliver it to her for the company, and he did so deliver. So far, then, as the delivery of the policy is concerned, it is manifest he was acting for the company; and so with respect to the receiving the premium from the assured, and transmitting it, less his fees, to the company. By sending the policy to him, the company impliedly authorized him to collect the premium from the assured and remit the same to the company, for that was just what he proposed to do if the policy was sent to him for delivery, as it subsequently was; and if he was authorized to receive the premium, of course the assured was warranted in paying it over to him. Now, suppose appellant, after receiving the premium, instead of sending it to the company had converted it to his own use, would the assured still have been liable to the company for the premium ? Surely not. And yet such would unquestionably be the result if appellant is not to be regarded as the agent of the company for the purpose of delivering the policy and receiving and transmitting the premium. Again, could the assured, after having paid over the premium, and before it had been transmitted to the company, have compelled appellant to return it to her? Certainly not. And yet she undoubtedly could if the money, when thus paid over and before transmission to the company, was in his hands as her agent, and not the company’s.

In any view we take of this case, we have no hesitancy in holding the appellant was acting as agent of the company in the transaction. The appellant, although he had an opportunity of doing so, did not, anywhere in his testimony, either directly or by implication, deny his agency.

The judgment will be affirmed.

Judgment affirmed.

Mr. Justice Craig: This being a penal action, I do not think the testimony sufficient to show that the defendant was the agent of the insurance company, or that he aided the company in making the insurance in violation of the statute. If he was not the agent, and did not aid. the insurance company in violation of the statute, which I am satisfied the evidence fails to establish, the judgment ought to be reversed.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    George Goldgart v. The People ex rel. Joseph Goar, Collector.

      Filed at Springfield March 29, 1883.

    1. Taxation—credits liable thereto. Under the statute, “credits” are required to be taxed, and the statute is not subject to any constitutional objection, even if the property for which the credit was given is also taxable: They, like other personal property, are required to be listed by the owner, if a resident of the State, or if it be controlled by an agent, then by the agent.
    2. Same—situs of credits. If the owner of credits resides in the State, there is jurisdiction over his person and over his credits, which in the law, in the absence of anything showing they have a situs elsewhere, accompany him. If he is absent from the State, but the credits are in fact here, in the hands of an agent, for renewal or collection, with the view of reloaning the money by the agent as a permanent business, they have a situs here for the purpose of taxation.

      3. A non-resident creditor having debts due him from residents of the State, not put into the hands of an agent here, is not liable to taxation in this State. Such credits follow his person, leaving nothing here to which jurisdiction can attach, it being the credits, not the debts, which are taxable.
    Appeal from the Comity Court of Coles county; the Hon. J. E. Cunningham, Judge, presiding.
    Mr. Charles Bennett, for the appellant:
    At common law the situs of personal property is the residence of the owner,—his movable property, in contemplation of law, accompanying him wherever he goes. Cooley on Taxation, 269, 270.
    A personal tax can not be assessed against a non-resident, neither can the property of a non-resident be taxed, unless it has' an actual situs within the State, so as to be under the protection of its laws. Cooley on Taxation, 14-16.
    To tax, in one State, contracts owned in another, is held to impair their obligation, and inadmissible, even though they are made payable in the State imposing the tax, and secured by mortgage there. Cooley on Taxation, 65.
    Mr. James McCartney, Attorney General, for the appellee:
    We insist, first, that being in this State for the conduct of his business, appellant was a resident of the State for the purposes of taxation, within the meaning of the statute relating to the revenue; and second, that the money loaned in ■this State is taxable as personal property in the State, regardless of the residence of the creditor.
    The first proposition is sustained by Board of Supervisors v. Davenport, 40 Ill. 197, where the question of residence for. the purpose of taxation is very fully discussed. Secondly, taxes are a compensation for the protection furnished, either to the life or property, and the State which furnishes protection to either may collect the tax. Section 1 of the Eevenue act, clause 1, declares that “all real and personal property in this State” shall be taxed. This includes all property, moneys and credits in the State, without reference to the residence of the owner. Section 7 designates where the property shall be listed,—namely, where the owner resides,— and “if there be no principal office or place of business in this State, then at the place in this State where any such corporation or person transacts business.” Appellant transacted his business at Mattoon, in Coles county, and was not resident elsewhere in the State, and was properly taxable in Mattoon.
    The word “property” includes credits and choses in action. It is properly used to denote “intangible rights, of value. ” Trustees v. McConnel, 12 Ill. 138; People v. Rhodes, 15 id. 304; People v. Worthington, 21 id. 172.
    The situs of personal property is not uniformly that of its owner. When the property is permanently located at a particular place, it is subject to taxation there, whether that be the domicile of the owner or not. Irvin v. New Orleans,

      St. Louis and Chicago R. R. Co. 94 Ill. 105. See, also, Mills v. Thornton, 20 id. 300 ; First National Bank v. Smith, 65 id. 44; Munson v. Crawford, id. 185.
    The rule that the situs of personal property is that of the owner, is one of convenience only, and may be changed by statute for the purposes of taxation. First National Bank v. Smith, 65 Ill. 44; Munson v. Crawford, id. 185; Danville Banking and Trust Co. v. Parks, 88 id. 170.
    A city charter granting power to tax all personal property within its limits, includes power to tax personal property actually located within the city, but owned by a non-resident. Dunleith v. People, 53 Ill. 45.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This is an appeal from a judgment of the county court of Coles county, against certain real estate of the appellant, for alleged delinquent taxes for the year 1881. Appellant appeared and filed an objection, in writing, against the application for judgment, in substance that he had paid all taxes assessed against the real estate, and that the personal tax, on account of which, alone, judgment was sought, was illegal and void, because appellant was not a resident of the county, and had no personal property therein, so as to be liable to be taxed therein upon personal property for the year 1881. It was agreed upon the trial that all taxes against the real estate had been paid, and that the tax in controversy was solely that assessed for the year 1881 on moneys loaned by appellant in Coles county, and secured by mortgage on real estate therein. Evidence was introduced. showing that appellant permanently removed from Coles county and this State on the 31st of March, 1881, with the intention of becoming a resident of the city of New York, since which time he has not resided in Coles county or this State; that when he so removed he took with him all his accounts, notes, etc.; that he has, since that time, had no agent in Coles county to look after and collect his loans; that he has, himself, only been there once since that time before he came to defend this suit, which was in September, 1881 ; that he then came for the purpose of having a plate glass front put in his business block, and not to collect interest or loan money, and intended to stay only about four weeks, but owing to delays in receiving the glass he remained about ten weeks; that during the time of such stay he made new loans to the amount of $4500, made two renewals of old loans, (one for $1700 and the other for $800,) and collected some $200 or $300 of interest upon loans; that he has had no office or regular place of business in Coles county since his removal therefrom, and that usually, when interest has been due him, parties have remitted it to him at New York. The court overruled the objection, and gave judgment that the real estate be sold for the payment of the tax.

The only question to be determined is, whether, under the circumstances in proof, the loans were properly taxable in Coles county. Our statute requires “credits” to be assessed for taxation, (Rev. Stat. 1874, chap. 120,) and this court has held there is no constitutional objection to such taxation, even where the property for which the credit was given is also taxable. (The People v. Worthington, 21 Ill. 171.) The statute requires the “credit, ” as well as other personal property, to be listed by the owner, if a resident of the State, or if it be controlled by an agent, then by the agent. (Rev. Stat. 1874, sec. 6, ubi supra.) If the owner be resident in the State there is jurisdiction over his person, and over his credits also, which, in legal contemplation, in the absence of anything showing they have a situs elsewhere, accompany him. If the owner is absent, but the credits are in fact here, in the hands of an agent, for renewal or collection, with the view of reloaning the money by the agent as a permanent business, they have a situs here for the purpose of taxation, and there is jurisdiction over the thing. Burroughs on Taxation, 44, et seq.

But it is to be borne in mind it is “credits, ” and not “debts, ” that is the subject of taxation. The debtor can not be taxed, and is not assumed to be by the statute, on what he owes. The only property in case of indebtedness is in the credit,— the ownership of the amount due, or, rather, of the right to have that amount paid,—and this belongs to and goes with the person of the creditor, unless he voluntarily assigns and transfers it to another, or places it in the hands of an agent. And so in the case of the non-resident creditor not having parted with his credit, there is nothing here to tax,—nothing here to which jurisdiction can attach. This is well settled by adjudicated cases. (See Tappan v. Merchants’ Nat. Bank, 19 Wall. 499 ; State Tax on Foreign held Bonds, 15 id. 317; Hoyt v. Commissioner of Taxes, 23 N. Y. 240.) And this must be peculiarly so in the ease of negotiable instruments. They are the subject of larceny, and their indorsement transfers the “credits” of which they are evidence. They are regarded as property, and of course this must be property having its situs where they are lawfully held. (The People v. Trustees of Ogdensburg, 48 N. Y. 390.) And it is accordingly said by Cooley, in his work on Taxation, page 15, et seq.: “But debts owing to foreign creditors, by either corporations or individuals, are not the subject of taxation. The creditor can not be taxed, because he is not within the jurisdiction, and the debts can not be taxed in the debtor’s hands through any fiction of the law which is to treat them as being, for this purpose, the property of the debtor. They are not property of the debtors in any sense,—they are the obligations of the debtors, and only possess value in the hands of the creditors. With them they are property, but to call them property in the hands of the debtors is simply to misuse terms.” See, also, ibid, post, 270.

The present case does not fall within the principle of Board of Supervisors et al. v. Davenport, 40 Ill. 197. In that case it was held that Davenport had a residence, .within the meaning of the Revenue law, at Pekin, where he was taxed. At page 208, the court, in summing up, say: “Here' the domicile or home of the defendant was at Bath, in the State of New York, and his business residence at Pekin.. While there attending to it he could not be considered as residing at Bath, in New York. In conformity with the definition given of the term ‘residence,’ that of the defendant is established. ' Here was a settled, fixed abode at Pekin,—an intention to remain there permanently, at least for a time, for business purposes. When at Bath he resided there for a time, and so at Pekin, when he was assessed. His residence there was just as certain during the business season as it was in Bath, to which place he repaired on the approach of the hot and sickly season.” That case was simply one of two different residences, alternating regularly, and not as is the present one, wherein the residence is abroad, and a single visit here, for a temporary purpose, alone, is proved. Had it been shown appellant regularly spent a portion of each year in Coles county, the cases would be analogous. But it is not claimed such a conclusion is warranted by the evidence. We do not think the proof showed, either, that appellant was a resident of Coles county after the 1st of May, 1881,—the date at which personal property was liable to be assessed for taxation for that year,—or that his credits had a situs there after that date.

The judgment is reversed and the cause remanded.

Judgment reversed.


author: Mr. Chief Justice Scott

text:
    William L. McCann v. Prudence Atherton et al.

      Filed at Springfield March 29, 1883.

    1. "Witness—competency of one in interest against one defending as heir. Where a person, long after the execution and delivery of a deed for land, makes a second conveyance of the same premises to another, who files a bill against the heirs of the prior grantee to have the first deed set aside, on the ground it was delivered on conditions which were never performed, and the bill is brought for the mutual benefit of the second grantee and the grantor, the latter is not a competent witness for the complainant against the heirs of the prior grantee, to prove the grounds on which the first deed is sought to be avoided.
    2. Estoppel—statements to strangers—as affecting right to assert title. Casual statements made by a grantee of land long after his deed" has been recorded, concerning the transaction, to persons having no interest in the land, can not operate by way of estoppel to prevent the assertion of the truth thereafter by him, or by his heirs after his death.
    3. Delivery op deed—delivery to grantee as an escrow. A deed or other sealed instrument can not be delivered to the grantee or obligee as an escrow, to take effect upon a condition not appearing on its face. In order to operate as an escrow the delivery must be made to a stranger, otherwise the deed or other instrument will become absolute at law.
    4. Same—presumption of delivery from, possession of the deed by the grantee. Where a deed duly executed is found in the hands of the grantee, there is a strong implication that it has been delivered, and only clear and convincing evidence can overcome the presumption.
    5. Where a deed was duly executed and acknowledged in June, 1867, and recorded in a few days thereafter, on bill filed to annul and cancel the same, in 1882, all the parties having resided in the same county where the land is situated during the intervening time, the court will not set aside such deed except for the clearest and most satisfactory reasons. In such case casual statements made by the grantee to strangers to the title, and to persons having no interest in the land conveyed, are insufficient to warrant a decree annulling the deed.
    Appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.

      Mr. Ira J. Bloomfield, for the appellant:
    The defendant Amos Rutledge was a competent witness in behalf of the complainant, the adverse party, when called by him. Rann et al. v. Rann, 95 Ill. 433; Caprez v. Trover, 96 id. 456.
    All parties are competent witnesses in partition proceedings, because it is immaterial whether they derive title through purchase or descent. Pigg v. Carroll, 89 Ill. 205; Mueller v. Rebhan, 94 id. 142; Kershaw v. Kershaw, 102 id. 307.
    The circuit court erred in excluding the evidence of the defendant Amos Rutledge, for, considering it and giving it proper weight, the decree must have been for complainant.
    The deed of Amos Rutledge only being given to Dickerson to get his wife’s signature, did not become operative. Placing it in the hands of the grantee for that purpose only, did not constitute a delivery of the deed. 2 Washburn on Real Prop. 612, sec. 47; Fraser v. Davis, 2 S. C. 56.
    Mr. E. M. Prince, Mr. A. G. Karr, and Messrs. Rowell & Hamilton, for the appellees:
    The recording of a deed affords prima facie evidence of its delivery. Himes v. Keighblinger, 14 Ill. 469; Warren v. Town of Jacksonville, 15 id. 236.
    Where a deed duly executed is found in the hands of the grantee, there is a strong implication that it has been delivered, and only clear and convincing evidence can overcome the presumption. The unsupported evidence of the grantor, some fifteen or twenty years after the date of the deed, can not be received to rebut such presumption. Tunison v. Chamblin, 88 Ill. 379; Reed v. Douthitt, 62 id. 348.
    A person who is a necessary party to a bill, and who, if a party, would not be competent to testify as against parties defending as heirs, falls within the meaning of the statute, and will be treated as incompetent the same as if he were a party to the suit. While both parties to a transaction are living they are upon a perfect equality, and can each testify. When one is dead the other is not permitted to give evidence, and thus take advantage of the heirs of the deceased, who are wholly ignorant of the facts. Alexander v. Hoffman, 70 Ill. 115; Pyle v. Oustatt, 92 id. 215; Mahoney v. Mahoney, 65 id. 406; Merrill v. Atkins, 59 id. 20; Ruckman v. Alwood, 71 id. 155; Fisher v. Fisher, 54 id. 235; Rev. Stat. sec. 2, chap. 51, “Evidence and Deposition. ” See, also, sec. 7 of the same chapter.
    That the deed should operate as an escrow, it is necessary that the delivery should be made to a stranger, and not to the grantee. Dawson v. Hall, 2 Mich. (Gibbs,) 392; Ward v. Winslow, 4 Pick. 519; Arnold v. Patrick, 6 Paige Ch. 310; Worrall v. Munn, 1 Seld. (N. Y.) 238; Jordan v. Pollock, 14 Ga. 155; Duncan v. Pope, 47 id. 445.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

Originally the hill in this casé was brought by William L. McCann, against Prudence Atherton, who had a life estate ha the premises in question, to prevent waste. After the death of the life tenant a supplemental bill was filed; to which other persons were made parties, praying for a partition of the property. Before a hearing of the case was had, a second supplemental bill was filed by complainant, the object of which was to set aside a deed made by Amos Rutledge to R. F. Dickerson, since deceased, for two-sevenths of the land involved, on the ground the deed had not been delivered to the grantee, except upon conditions that had not been performed. On the hearing of the ease a decree for partition was rendered on the first supplemental bill,—the court finding the interests of the parties to be as therein stated,—and dismissed the second supplemental bill, so far as complainant claimed any interest in the premises under the deed from Amos Rutledge and wife to such lands, as against the heirs of E. F. Dickerson, under a former deed from Amos Eutledge alone. It is the decision of the court dismissing the second supplemental bill of which complaint is made.

Complainant, to maintain his bill in that regard, offered Amos Eutledge, his grantor, to prove the deed previously made by him to Dickerson was not delivered to the grantee except on conditions that had not been performed, and hence the deed was not valid; but the court, on objection being made, held the witness was incompetent, and therefore excluded his testimony. That decision is assigned for error. It will be seen the witness was directly interested in the event of the suit. His deed was made to complainant with a view to enable him to maintain the suit for their mutual benefit. Should complainant succeed in setting aside the deed made by witness to Dickerson, the witness would himself, in that event, be entitled to an interest in the land recovered from the heirs of Dickerson. So manifest is the interest of the witness in the result of the suit, it can not reasonably be a matter of dispute. The statute in regard to the competency of witnesses in civil suits provides, in unambiguous terms, that “no person directly interested in the event thereof shall be allowed to testify therein of his own motion or in his own behalf, by virtue of * * * the statute, when any adverse party sues or defends * * * as heir of any deceased person.” That is precisely the case here. The defendants claiming the land under the deed from the witness are the minor heirs of the deceased grantee, and defend in, the capacity of heirs of a deceased person. Adverse to the claim of the witness are the interests of the heirs of Dickerson. Although the witness was called by complainant, still if his testimony should be allowed it would be in support of his direct interest in the property, and against th.e interest of the other defendants, who defend as heirs of his grantee. This is not permissible, under the statute, and is so plain a proposition it needs the citation of no authorities in its support.

The deed made by Amos Eutledge to E. F. Dickerson bears date June 8, 1867, was regularly acknowledged on that day, and was recorded in the proper office in the county where the lands are situated, on the 14th day of the same month. At that time it appears the grantor and his wife lived apart, and it is claimed it was agreed the deed was not to take effect unless it should first be signed by the wife of the grantor; that if it was not so signed the grantee was to return it to the grantor, and unless so signed the grantee was under no obligation to pay the price agreed upon as the purchase money. The rule of law on this subject is, that a deed, or any other-sealed instrument, can not be delivered to the grantee or obligee himself as an escrow, to take effect upon a condition not appearing on the face of such deed or other instrument. The delivery must be made to a stranger, otherwise the deed or other instrument becomes absolute at law. Arnold v. Patrick, 6 Paige Ch. 310; Fairbanks v. Metcalf, 8 Mass. 230.

But excluding, as must be done, the testimony of Amos Eutledge, there is no satisfactory evidence in the record that the deed to Dickerson was delivered upon any conditions whatever. That which does appear consists mostly of casual statements made by Dickerson to persons having no interest in the land, and could not therefore operate by way of estoppel to prevent the assertion of the truth thereafter by himself, if living, or by his heirs since his death. At most they are incomplete statements concerning the transaction, and were made long after the deed had been recorded. On this subject this court has said, in Tunison v. Chamblin, 88 Ill. 379: “Where a deed duly executed is found in the hands of the grantee, there is a strong implication that it has been delivered, and only clear and convincing evidence can overcome the presumption.” No such evidence is found in this record. An additional consideration is, the deed in this case was made and delivered by the grantor to the grantee in June, 1867, and it was not until March, 1882, that the supplemental bill in this case was filed to set aside the deed for the causes it is now insisted render it inoperative. Surely, after the lapse of so many years, a deed absolute in form, and duly acknowledged and recorded in the county where the land is situated and where all the parties reside, will not be set aside and annulled except for the clearest and most satisfactory reasons. Casual statements made by the grantor to strangers to the title, and to persons having no interest in the land conveyed, are insufficient to warrant a decree annulling the deed.

As respects the irregularities it is insisted there is in the decree as to dower, it is a sufficient answer that if any in fact exist, complainant is not injuriously affected thereby, and he has no just cause for complaint on that score. It will not therefore be necessary to remark on this branch of the case.

The decree of the circuit court must be affirmed, which is done.

Decree affirmed.


author: Mr. Justice Walker

text:
    Wilson Thomas v. Genevive Mueller et al.

      Filed at Springfield March 29, 1883.

      1. Husband and wife—right to contract with each other. Under the existing legislation all restrictions on the power of husband and wife to contract with each other, except, as to compensation for services, are removed, and they are enabled to sue each other on all contracts except for such services.
    2. Same—contract between husband and wife made prior to July 1, 1874—ratification. Where a husband, prior to July 1, 1874, when the law did not recognize contracts between husband and wife, made a note payable to his wife, with personal security, it was held, that he might, subsequent to that date, when the statute permitted contracts between husband and wife, ratify and adopt the same, so as to make it binding on him to the same extent as if he had made a new note in lieu of the prior one, when the same is not shown to have been made to defraud his creditors.
    3. Same—confession of judgment as between husband and wife—con- . sideration. The indebtedness of a husband to his wife by note, or for money or property, is a sufficient consideration to support a judgment against him by confession in favor of his wife as against his other creditors, when not impeached for fraud.
    4. Judgment by confession—prima facie evidence of fairness—as between husband and wife. The confession of a judgment by a husband in favor of his wife, like all other- judgments, is prima facie evidence of its justice and fairness, even as against creditors of the husband making no claim that the debt- was not fairly and honestly due.
    5. Same—construction of power to confess—as to time of talcing judgment. Under a power of attorney to enter a defendant’s appearance, in term time or in vacation, “at any time hereafter,” and file a cognovit, and confess judgment, etc., a judgment may be confessed on the same day the power of attorney is executed. Such a power is distinguished from one authorizing the confession of judgment at any time after the day of its execution, where a judgment confessed on the day of its date was held void.
    6. Same—presumption in favor of. A judgment entered by confession before the clerk of the court, in vacation, will be presumed to be regular unless shown not to be so by the files in the case, or otherwise; and it devolves on the party seeking to have the same set aside to allege and prove facts impeaching its validity.
    7. Ghanceky—setting aside judgment by confession—not upon merely technical grounds. A court of equity will not set aside a judgment confessed by a husband in favor of his wife, at the suit of a creditor of the former, merely because of some legal informality or technical advantage. It acts on broader and more equitable principles.
    8. Release of one of several obligors—who may avail of the defence as to the release of the others. If one maker of a note is discharged by the release of the other maker, the former alone can avail of such defence. Such a defence, like the pleas of infancy, limitations, and the like, is purely personal, and the fact that such maker is released by operation of law is no just ground for setting aside a confession of judgment by him for the amount of the note, at the instance of another one of his creditors. A man may rightfully pay or secure a just debt, though barred by statute, or discharged by bankruptcy, or released by operation of law.

      Writ of Error to the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of Sangamon county; the Hon. Charles S. Zane, Judge, presiding.
    Messrs. Rice & Crook, for the plaintiff in error:
    At the time the note in this case was given (May 4, 1874,) there was no law authorizing a husband to execute a note to his wife, and no suit can be maintained on such note, for want of capacity to make or take. Chestnut v. Chestnut, 77 Ill. 350; Hogan v. Hogan, 89 id. 427.
    There being no law authorizing the execution and acceptance of such a note, it was absolutely void. Warner v. Hale et al. 65 Ill. 395; Hoker v. Boggs, 63 id. 161.
    The note,-if void, was incapable of ratification, but nothing is shown to warrant the conclusion of a legal ratification, independent of presumptions, which, of course, can not be indulged in a vacation proceeding, Johnson v. Johnson, 72 Ill. 489; Roundy v. Hunt, 24 id. 598.
    The confession of the judgment was premature. The power authorized the confession to be made at “any time hereafter.” This did not authorize the confession on the same day.
    That an act or thing to be done or performed hereafter, can not lawfully be done on the day of the date, on the day of the event, or on the day of the act, see Lester v. Garland, 15 Ves. 248; Bigelow v. Wilson, 1 Pick. 485; Cornell v. Moulton, 3 Denio, 12; Seekonk v. Rehoboth, 8 Cush. 371; Warren v. Slade, 23 Mich. 1; Bemis v. Leonard, 118 Mass. 502; Waterman v. Hall, 28 Ill. 54; White v. Jones, 38 id. 159; Protection Life Ins. Co. v. Palmer, Admr. 81 id. 88; Ewing v. Bailey, 4 Scam. 420.
    The warrant of attorney authorized confession of judgment for $19,700, but it was confessed for that sum and costs, the latter being in excess of the attorney’s authority. For these reasons the judgment should be set aside. Tucker v. Gill, 61 Ill. 236; Chase v. Dana, 44 id. 262; Roundy v. Hunt, 24 id. 598; 1 Tidd’s Practice, 552.
    If the note was the basis of the judgment, then in order to render it valid the note must have been a legal and bona fide demand. But the payee had, before that time, released Ger-hard Mueller, so that the maker was discharged. A judgment confessed upon it after such release can not be upheld. 5 Bacon’s Abr. 702, G; 2 Bouvier, sec. 3832; Rice v. Webster et al. 18 Ill. 331; Benjamin v. McConnel, 4 Gilm. 536.
    Messrs. Scholes & Mather, for the defendants in error:
    It is not pretended that the note in question was not given with respect to the separate property of the wife, and under the decisions under the acts of 1861 and 1869 we think it was competent for the husband to execute such a note to his wife before the act of 1874 took effect. But were the law otherwise, the note was recognized as a binding obligation between the parties subsequent to July 1, 1874. Various payments were made, and the husband gave the power to confess judgment on it. These acts constitute a legal ratification. Taylor v. Boardman, 92 Ill. 566.
    It is urged the judgment is null and void for the reason it was prematurely entered. In the cases cited the attorney was empowered to act after the date or day of execution, while here the power was well exercised at any time after the execution. Warren v. Slade, 23 Mich. 1.
    In answer to the objection that the judgment was confessed for a few dollars more than was due on the note, we cite Adam v. Arnold, 86 Ill. 185.
    The warrant of attorney expressly waives and releases all errors in entering up the judgment. Hall v. Hamilton, 74 Ill. 437.
    The release of a co-'obligor, or one of the joint makers of a note, may, under certain circumstances, operate as a release of all. In such case it must be properly pleaded. It is a defence purely personal.
   Mr. Justice Walker

delivered the opinion of the Court:

It appears from the record that on the 4th day of May, 1874, Henry E. Mueller and G. A. Mueller executed a promissory note to Genevive Mueller, due one day after date, for the sum of $15,000, bearing interest at the rate of ten per cent. The bill alleges that Mrs. Mueller claims to have received the interest in full on the note up to the 4th of May, 1876, and that she, on the 30th day of April, 1877, released in writing G. A. Mueller, and agreed to look to H. E. Mueller for the payment of the note; that H. E. and Genevive Mueller are husband and wife, and were when these transactions occurred; that Mrs. Mueller caused a declaration on the note' to be filed in the office- of the clerk of the circuit court of Sangamon county, on the 10th day of June, 1879; that a power of attorney to confess a judgment was executed by H. E. Mueller, and proof thereof was made, and they were filed and a judgment was confessed on the 19th day of June, 1879; that the power of attorney was executed to William F. Herndon, and empowered him to confess a judgment in the case for $19,700; that he filed a cognovit, and confessed a judgment for that sum on the filing of the power of attorney, proof of its execution, and cognovit. The confession and entry of the judgment, and the proof of the execution of the power and cognovit, bear date the day of the entry, but the power of attorney bears no date. An execution was issued, but immediately returned by order of plaintiff, without a levy. The bill also alleges that complainant obtained a judgment in the Sangamon county court, against Henry E. and Gerhard A. Mueller, for $305.86, and a decree in the circuit court of that county, upon which there is unpaid the balance of $1261.20; that executions were issued thereon, and that issued upon the decree had been levied on real estate, as the property of Henry B. Mueller. The bill also avers that the last indorsement of the payment of interest on the note is in the handwriting of the payee of the note, who is the wife of Henry B. Mueller, and is dated the 27th of July, 1876. The bill prays that the judgment by confession be set aside and removed, as an obstruction to the collection of complainant’s debt, inasmuch as the defendants in this judgment and decree are insolvent. Defendants filed a demurrer to the bill, which was sustained, and the bill was dismissed at complainant’s costs. He thereupon removed the case to the Appellate Court for the Third District, where, on a hearing, the decree of the circuit court was affirmed, and the record is brought from that court to this court on error, and a reversal is urged.

It is urged that at the time this note was executed, the law then in force did not authorize a husband to execute to his wife a note upon which she could maintain an action and recover a judgment; that the note in this case for that reason is void, and being void, the judgment by confession has no basis for its support in equity as against creditors of the husband. To this it is answered, that by an act in force July 1, 1874, a husband was fully empowered to become indebted to his wife, and she authorized to sue him and enforce the debt; that having paid interest on the note, and executed the power of attorney to confess the judgment after that date, the husband ratified the note, and rendered it as binding as if given at either of these dates. On turning to the chapter entitled “Husband and Wife, ” we find the legislature has greatly enlarged the powers and relations of husband and wife. As to the management and control of her property the wife is almost entirely emancipated from all power of the husband. She may buy and sell property, and sue and be sued in reference to it, independent of his control, and the 8th section in terms' limits their power to sue each other for compensation for labor performed or services renderecl for the other, whether in the management of property or otherwise. From this it is manifest that the legislature intended to remove all restrictions on their power to contract with each other, and to enable them to sue each other on such contracts, in the same manner as if they were hot married. This being so, H. E. Mueller had the legal right to ratify the execution of the note, or to have given a new note and taken up the old one. The consideration of the note is not questioned, and if valid, the ratification by these acts rendered the note as valid as a new one would have been, executed after the law went into effect. For anything alleged in the bill we fail to see this was not a sufficient ratification. It is not attacked for fraud or want of consideration, to hinder or delay creditors.

There can be no question that H. E. Mueller had ample power to confess a judgment at the time he did to his wife, and that she could avail of all the benefits it conferred; and had there been no note under which to confess it, there seems to be no question that it would have been valid until impeached for fraud,—as valid as if confessed on a note admitted on all hands to be perfectly valid and binding. If he owed her for money or property, that was a sufficient consideration to support the judgment, and on an attempt to impeach the judgment, the true question should be whether it was confessed without sufficient consideration and for fraudulent purposes. The appeal is to equity, and it can not interfere to defeat a just claim because of some mere legal informality or mere technical advantage in legal proceedings. It acts on broader and more just and equitable principles. Here there is no claim that the debt is not fairly and honestly due from Henry E. Mueller, nor is any fraud of any kind charged or insisted upon. The confession of •this, like all other judgments, is prima facie evidence of its justice, nor is that denied or in any manner questioned.

It is urged that the judgment was confessed prematurely, and consequently without power, and the judgment is void and should be cancelled, and plaintiff in error permitted to satisfy his judgment out of the property of H. E. Mueller. The power of attorney is not dated, but the proof of its execution bears date the day the judgment was confessed. The clerk in the judgment recites that the declaration, the power of attorney, and the proof of its execution, were filed by the plaintiff. It also recites the appearance of Herndon, the attorney, the filing of the cognovit, and the confession of the judgment by him for the amount specified in the warrant, and the release of errors, and the judgment is rendered thereon.

It is urged that the attorney had no power to confess the judgment on the day of its execution, because, by fair construction of the language of the power, the day of its execution must be excluded, and we must presume that, having no date, it was not executed before the day it was filed. Plaintiff in error has undertaken to impeach a judgment that is prima facie fair and valid, and it devolved on him' to allege and prove facts impeaching its validity. He does not aver that the power of attorney was executed on that day, nor is there anything appearing in the record to show that it was. Although the confession was entered under the statute by the clerk, as it was authorized by the statute, we must presume it is regular, unless shown not to be by the files in the case, or otherwise. The papers do not show, nor do the allegations in the bill, that it was executed on that day. But concede it was, does the language of the warrant preclude the confession on the day it was executed ? The language is, to enter the appearance of Henry E. Mueller, in term time or in vacation, “at any time hereafter,” and file a cognovit, and confess judgment, etc. The obvious meaning is, at any time after the warrant was executed. It was confined to no day or time, except it was after the execution of the warrant of attorney. That, by its terms, was the only limitation as to the time these acts should be performed. There is no computation of time involved. The only question is, when was the attorney in fact empowered to act ? And the warrant says, at any time after it is executed. This is the only interpretation the language will bear. The cases, therefore, which refer to the computation of time have no application to this case.

The cases of Waterman v. Jones, 28 Ill. 54, and White v. Jones, 38 id. 159, are unlike this case. There the powers of attorney authorized the attorneys, at any time from and after the day of their execution, to confess the judgments. There the day they were executed was excluded, and being so excluded, the judgments entered the day they were executed were held void, for the want of power to confer jurisdiction over the person of the defendant, and to confess a judgment; but here there is no exclusion or limitation of- time after the execution of the power of attorney. No case is referred to where the facts are similar to this case, and they are not applicable as authority. We must, to give any effect to such judgment entered in vacation, presume that the warrant of attorney and other papers were filed before or at the time of the confession of the judgment, where they bear the same date.'

It is urged that the release of G. A. Mueller operated to release Henry E. Mueller from all obligation to pay the note. If it operated as a release, he alone can avail of the discharge. Such a defence, like the pleas of infancy, limitations, and the like, is purely personal. Nor does it prohibit an honest man from paying a just debt. For aught that appears, this debt that H. E. Mueller owes to his wife is as just and equitable as is the debt to plaintiff in error, and if so, he was fully justified in paying it, or enabling his wife to collect it by confessing a judgment. There is no law that prevents a man from paying a just debt because it is barred by statute, or discharged, by bankruptcy, or released by operation of law, although its payment may operate to render the debtor less able to pay his other creditors. The law does not, in such cases, take charge of his conscience, and prohibit him from acting honestly. It only gives him the option to plead such defences, but by no means compels him, nor has the law conferred the power on others to compel him, to make the defence, or authorized them to interpose and make it for him.

There are some minor questions raised, but in the view we take of the case it is not important to discuss them.

Perceiving no error in the record, the decree of the court below is affirmed.

Decree affirmed.


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    Jairus C. Sheldon v. Charles H. Van Vleck et al.

      Filed at Springfield March 29, 1883.

      1. Pleading in ejectment—what special pleas allowed—evidence under the general issue. The practice in ejectment suits in this State does not warrant the filing of any special pleas, except such as are expressly enumerated in section 22 of the Ejectment act. Under the general issue the defendant may give in evidence any matter that may tend to defeat the plaintiff’s action, except as is provided in said section 22. If any special plea is filed other than such as is authorized, the court should, on its own motion, strike it from the files.
    2. Eobmeb adjudication—in ejectment—effect of a new trial. Where the plaintiff in ejectment, after judgment against him, obtains a new trial under the statute, and by amendment makes a new party defendant, and before a second trial dismisses his suit, the former judgment is no bar to a second action brought by him against such new defendant. The effect of the new trial is to vacate and render wholly inoperative the prior judgment, and leave the parties as they stood before the trial, except that the plaintiff can not claim a second new trial under the statute in the same suit.

      Writ of Error to the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.
    Mr. J. O. Cunningham, for the plaintiff in error.
    Mr. Francis M. Wright, for the defendants in error.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Jairus C. Sheldon, the plaintiff in error, brought to the September term, 1882, of the Champaign circuit court, an action of ejectment, against Charles H. and Frank YanYleck, defendants in error, to recover certain real estate situate in said county, to which the plaintiff claimed title in fee. To the declaration the defendants filed the statutory plea of not guilty, and also a special plea alleging “that at the February special term, 1881, of the circuit court of Champaign county, the plaintiff commenced his certain suit in ejectment for the same identical premises described in plaintiff’s declaration in this case, against one Thomas Guard, ivho was then in possession thereof under and by virtue of the same title, and not otherwise, under which the defendants in this suit now claim said premises; that the said plaintiff filed his declaration in said ejectment suit so brought to said February special term, 1881, of said court aforesaid, to which the defendant therein pleaded the general issue of not guilty; and that afterwards, to-wit, at the September term, 1881, of said circuit court, the issue formed in said court in said cause was tried, and the same title, and none other, under which the plaintiff claims said premises in this suit, was given in evidence, and the same title, and none other, under which these defendants claim said premises, was given in evidence, and the court thereupon then and there adjudged and determined that the said plaintiff have nothing by his action, and then and there gave final judgment upon the trial of said issue upon its merits for the defendant therein; and thereupon the plaintiff moved the said court for a new or second trial under the statute in such cases made and provided, upon condition that plaintiff would pay the costs of said proceeding and suit within the time prescribed by the statute in such cases made and provided, which motion the court did then and there allow, and ordered a second trial of said cause on said condition aforesaid, whereupon said plaintiff did then and there pay the costs of said cause, and did then and there, by reason of the premises, obtain a second trial of the said cause so brought at said special February term, 1881, as aforesaid, and then and thereafter, in said court, certain amendments were allowed in said cause, by which the defendants in this suit were added as defendants in that suit, and afterwards, at the March term, 1882, of the said circuit court, the plaintiff voluntarily and upon his own motion obtained from and the court ordered that said suit so begun at said special February term, 1881, and in which judgment was rendered as aforesaid, be and the same was dismissed, whereby, and by reason of the premises, the defendants say that the said judgment so rendered at the said September term, 1881, and was at the commencement of this suit, a bar to this suit, and this the defendants are ready to verify. ” The court overruled a demurrer to this plea, and the plaintiff electing to stand by his demurrer, final judgment was entered against him, to reverse which this writ of error is prosecuted.

Before proceeding to pass upon the sufficiency of the plea, we desire to say that the practice in ejectment suits in this State does not warrant the filing of a special plea of this kind, or any other kind which is not expressly authorized by the statute, and circuit courts should not allow it. They but incumber the record without any compensating benefit. It is manifest, from the 19th, 21st and 22d sections of the Ejectment act, that no special pleas are permissible in this action, except such as are .expressly enumerated in the 22d section, and this enumeration, by implication, excludes or inhibits all other special pleas not falling within the enumeration, and the 19th section provides, “the defendant may demur to the declaration as in personal actions, or he shall plead the general issue, * * * and upon such plea the defendant may give in evidence any matter that may tend to defeat the plaintiff’s action,” except as provided for in the 22d section,—and there is no pretense that the matter set up in the plea under consideration falls within that section. The court, on its own motion, ought to have stricken the plea from the files.

Assuming, however, the plea was properly filed, and waiving all question as to the form of the plea, we are clearly of opinion that it presents no defence to the action. Upon the payment of the costs in the former suit in conformity with the order of the court, the judgment therein became vacated and wholly inoperative, leaving the suit and the parties thereto in precisely the same situation as if no trial had ever taken place or judgment had been rendered, except that after such trial and judgment the plaintiff could not, as a matter of right, demand another new trial under the statute. In the case of Edwards v. Edwards, 22 Ill. 121, where the facts are substantially the same as they are in this case, so far as the question in hand is concerned, it is said: “Setting aside the verdict is as if it had never been, and can not be used for any purpose. Followed up by a voluntary non-suit, the whole action and all its parts are null.” That case is conclusive of this.

The judgment of the court below is reversed, and the cause remanded for further proceedings in conformity with the views here expressed.

Judgment reversed.


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    Anne Montague v. Theodore Selb et al.

      Filed at Mt. Vernon March 30, 1883.

      1. Estoppel—asserting rights at different times, inconsistent in their character, and to cut off a preexisting right in another. On petition for dower and homestead by the widow of a former owner of certain premises, it appeared the defendant held the premises as purchaser at the sale thereof by the administrator of such former owner, under an order of court obtained for that purpose. Prior to the sale by the administrator, a mortgage on the same premises, which had been executed by the intestate in his lifetime, and in which the rights of dower and homestead were released, had been foreclosed, and the certificate of purchase executed thereunder was assigned to the defendant, the purchaser at the administrator’s sale. These facts were set up in the answer of defendant, who contended the widow’s rights of dower and homestead should be subjected to the condition that she contribute, pro rata, to the amount paid out by him in acquiring the certificate of purchase issued in the foreclosure proceeding, and so it was ruled in this court, reversing the decree of the trial court and remanding the cause. Upon the remandment, the defendant, in a supplemental answer, set up that since the original hearing he had obtained a deed ujion his certificate of purchase, claiming thereunder adversely to the petitioner, and that she was thereby barred of any right of dower or homestead. It was held, that inasmuch as the defendant, on the first hearing, only asked that the petitioner make contribution, thereby, in effect, representing that redemption had been made from the mortgage sale, he would be equitably estopped to afterward assert a claim adverse to the widow’s rights, whereby, from lapse of time, she would have lost her right to protect her interests by making redemption herself, and also barred from securing her rights by making contribution.
    2. Tenancy in common—widow’s homestead and estate of heirs, or title of purchaser of inheritait.ce. Where a man dies in the occupancy of premises as his homestead, leaving a widow and heirs in possession, and the premises exceed the homestead estate in value, and the homestead is not set off and specifically defined, the widow and the heirs, until severance of their interests, will hold as tenants in common, and on sale of the inheritance by the administrator for the payment of debts the purchaser will take the place of the heirs, and become a tenant in common with the widow as to her homestead estate.
    3. Same—purchase of outstanding title, etc., by one inures to all. One co-tenant can not take advantage of any defect in the common title by purchasing an outstanding title or incumbrance, and asserting it against his cornpanions in interest; but in such case the purchase is, notwithstanding the design of the purchaser to the contrary, for the common benefit of all the co-tenants,—and this rule applies whether the several interests accrue under the same instrument or act of the law. It is founded on the duty which the connection of the parties as claimants of a common subject creates.
    á. A purchaser of land at administrator’s sale, in which land the widow of the intestate has a homestead estate in the equity of redemption, can not cut off the widow’s right of homestead by the subsequent purchase of a certificate of purchase given on a sale under a decree foreclosing a mortgage given by the intestate and wife, in which the homestead is released, and taking out a master’s deed, for the land, such purchaser and the widow, in respect to her homestead estate, being tenants in common. The purchaser will hold such after-acquired title in trust for the common estate, and the widow will be entitled to avail of it upon making ratable contribution of the amount paid out for it.
    5. Practice—waiver of objection by not making it in time. A party will not be allowed to lie by and permit matters to pass unchallenged in the court below, and then urge them as objections for the first time in this court; and it is much more inadmissible that a party should try a cause without raising a particular objection, submit it in this court without raising that objection, and then retry it, and for the first time when the case is brought here a second time, raise such objection.
    6. Chancery practice—filing supplemental answer. The filing of a supplemental answer after the reversal of a decree and the remanding of the cause, setting up matter in contradiction of the original answer, as, setting up a title inconsistent with a right distinctly admitted by the first answer, should not be allowed.
    Appeal from the Circuit Court of Madison county; the Hon. Amos Watts, Judge, presiding.
    This was a bill by appellant, against appellees, to set off homestead and dower. It is alleged in the bill that appellant was the wife of Daniel Montague; that he died intestate; that he resided on the lands described in the bill, as his homestead, prior and up to the time of his death, and that-since his death she has continued to, and still does, reside thereon with her family, etc., and that she thereby became, and is, entitled to homestead and dower in said lands, which have never been assigned to her. It is further alleged in the bill that at the May term, 1880, of the Madison county court, upon the petition of the administrators of the estate of said Daniel Montague, deceased, an order was made directing said administrator to sell said real estate to pay the debts of said deceased, subject to the homestead and dower rights of appellant, and that in pursuance of said order said real estate was sold to appellees, and a deed was made to them. The prayer is that homestead and dower be set off and assigned to appellant, etc., and also for general relief.
    The answer of appellees sets up, in substance, that before appellant and Daniel Montague were married,—namely, on the 17th of June, 1872,—Daniel Montague executed a mortgage on a portion of these lands to Celia Morrison, to secure §500, and on the 3d day of November, 1873, he gave a second mortgage on a portion of these lands to John Wood, to secure an indebtedness of §852, and interest. In each of these mortgages Montague released the right of homestead. After appellant and said Montague were married,—namely, on the 20th of October, 1876,—he executed another mortgage on another part of said lands, to secure §1000. In this mortgage appellant released her homestead right and dower. This last mortgage and indebtedness were assigned to and held by appellees, unpaid, at the time of answering. The first two mortgages were foreclosed at the March term, 1880, of the Madison county circuit court, upon a bill and cross-bill, and on the 3d day of July, 1880, the premises were sold under the decree of said court to J. H. Spence and John Scechtig, for §1638. After the sale the certificate of purchase was sold and transferred to appellees, who still hold the same. The answer concluded by alleging that “-whatever claim of dower or homestead the said complainants may have in said premises, or to any part thereof, is subject to the deeds of trust and the certificate of purchase above set forth,” and it concludes by praying “that an account maybe taken by the court, in this behalf, of the amounts due upon said deed of trust and certificate of purchase, and that on determining the value of the dower or homestead of said complainant, that said amount found to be due as aforesaid be deducted from the value of said premises before her dower or homestead in the same are set off to said complainant. ”
    On hearing, the circuit court decreed that appellant have homestead and dower set off to her as prayed in the bill. That decree was brought before this court on error, at the November term, 1881, and the decision here reversed the decree below and remanded the cause for further proceedings. (102 Ill. 446.) After the cause was remanded, appellees, by leave of court, filed a supplemental answer, alleging that since the filing of their original answer, on the 30th of March, 1882, (there having been no redemption from the sale of which they alleged, in their original answer, an assignment of the certificate of purchase to themselves,) the master in chancery made and executed a deed to them for the lands in the certificate described, and therefore, as to such lands, they deny that appellant is entitled to homestead and dower. On final hearing, the court decreed that appellant was not entitled to homestead or dower in the premises described in the bill of complaint, and that she pay the costs, etc. This appeal is prosecuted from that decree. ' •
    Messrs. Metcalf & Bradshaw, for the appellant:
    The court erred in allowing the amendment to appellees’ answer setting up their title, and in admitting in evidence deeds showing title under the mortgage sale. This court having passed upon all the equities of the parties’ in their opinion, it "was the duty of the circuit court to carry that opinion into effect.
    Appellees, by their purchase at the administrator’s sale, acquired the interest of Daniel Montague in this land, subject to these incumbrances, and after having, as such purchasers, asked and obtained the protection of this court, they will not be permitted to shift their ground from the administrator’s deeds to deeds obtained under the foreclosure sales, and thus cut the widow out of her dower and homestead. If they held the equity of redemption it was their duty to redeem from the foreclosure sale. Hurd’s Stat. 657, sec. 18.
    Having based their defence upon the administrator’s deed, and treating the assignment of the certificate of purchase under the foreclosure of the mortgage as a redemption, and claiming contribution from the widow in respect to her dower and homestead, which was awarded them by this court, appellees could not, on the remanding of the case, set up the execution of the master’s deed to them on the certificate of purchase, and thus deprive the widow of her rights on contributing her ratable share of the sum paid by them for the certificate of purchase.
    Messrs. Krome & Hadley, for the appellees:
    Two of the mortgages were given by Montague prior to his marriage, and were foreclosed, the land sold, and the certificate assigned to appellees. The third mortgage was given after appellant’s marriage, was signed by her, and her dower and homestead thereby released. It is the title acquired by appellees under the first two mortgages which they set up on the second trial of this case as a bar to appellant’s claims.
    The statute gives a widow dower in lands mortgaged by her husband before the marriage against every person except the mortgagee and those claiming under him. Hurd’s Stat. 1880, chap. 41, sec. 3.
    The title of the purchaser at the mortgage sale, or his assignee, relates back to the date of the mortgage, and any person claiming an interest in the premises, acquired since the execution of the mortgage, must redeem from the mortgage or suffer his interest to be barred. State Bank v. Wilson, 4 Gilm. 57; Chickering v. Failes, 26 Ill. 516; Mattison v. Thomas, 41 id. 114.

      It is contended that notwithstanding the master’s deed, appellant should he allowed dower upon contributing her proportionate share of the incumbrances. This would amount to a redemption pro tanto from the mortgage sales. The right of redemption is purely statutory, and must be exercised in the manner and within the time pointed out in the statute. Littler v. People, 43 Ill. 188; Moore v. Hopkins, 93 id. 507; Suitterlin v. Connecticut Mutual Life Ins. Co. 90 id. 484; Cooper v. Crosby, 3 Gilm. 506.
    Under the petition filed in this case no such relief can be granted. There is nothing in the whole record to show that appellant offered to contribute towards the payment of the incumbrances. She does not offer to do so in her petition.
   Mr. Justice Scholfield

delivered the opinion of the Court:

When this case was before us at a former term, the controversy was whether the present appellant was entitled to dower and homestead in the premises described in the bill without contributing on account of the prior incumbrances, or whether she was bound to make contribution on that account. She contended that, under the evidence in the record, the purchasers at the administrator’s sale assumed the burden of removing the prior incumbrances, and took title subject to her right of dower and estate of homestead. The present appellees denied this position, and contended that she was liable to make contribution on account of the prior incumbrances. We sustained this view, and reversed the decree and remanded the cause, and in doing so used this, language: “The decree of the circuit court granting to the widow, unconditionally, dower and an estate of homestead, was therefore erroneous, in not subjecting her rights each to the condition that she should, as to each right, contribute a ratable share, in regard to such right, of the redemption money paid by appellants for the discharge of the mortgages, before she should be permitted to avail herself of that right. The decree is therefore reversed, and the cause remanded for other proceedings not incompatible with the views here expressed. ” (Selb et al. v. Montague, 102 Ill. 452.) But the court below, instead of proceeding in compliance with this direction, permitted the present appellees, by a supplemental answer, to set up that since the former hearing they had obtained a deed on the certificate of purchase which they then held, and which, in the argument and consideration of the case when formerly here, was treated as a redemption from or payment and discharge of the prior mortgage, and to rely on that deed as a bar to appellant’s claim for dower and estate of homestead, and the present question is, whether appellees can be allowed to now set up that deed as a complete bar to appellant’s claim for dower and estate of homestead.

In their original answer, appellees, after stating their ownership of the certificate of purchase, prayed the court that appellant he decreed to pay ratably the amount paid out by them on that account. It was not then asserted that appellees, by acquiring the certificate, had acquired an adverse interest in the property, but it was, by implication at least, conceded that they had simply removed a common burden upon both their and appellant’s interests, and hence that in equity appellant was bound to make contribution, as a condition to the enjoyment of her rights. Had appellant been then advised the purpose was to assert an interest adverse to her claim, under and by virtue of that purchase, there was yet ample time in which she could have protected herself by making a redemption, but by asking that she be required to make contribution, she was, in effect, told redemption had already been made, and she had a right to rely on the belief that the sole question involved was whether she was compelled to make contribution as a condition to the assertion of her claim for dower and homestead. If she was entitled to make contribution then, it is inequitable that she should now be told she has no such right. Appellees having, then, asserted that she should make, a contribution to them for having removed a prior incumbrance to their common interest, are now equitably estopped to say that was not true, but that she was only entitled to make a redemption, which has since been barred by lapse of- time.

But appellant’s right to treat appellees’ purchase of the certificate as the simple removal of a prior incumbrance upon her and their common interest, rests also upon another very satisfactory ground. The record shows occupancy of the premises as a homestead by Daniel Montague at the time he and appellant were married, and thenceforth until his death, and the continued occupancy of the premises as a homestead by appellant and her family since that time; and it also appears that the homestead estate will not necessarily embrace the entire premises, but leave something beyond for the heirs and creditors. When Daniel Montague died, therefore, this was the condition of these premises. They were charged with the payment of these mortgages, but he was in possession and still had the equity of redemption. In this equity of redemption appellant had an estate of homestead, and so much of such equity as was not embraced by that estate descended to his heirs at law. The estate of homestead not being set off and specifically defined, its exact limits and boundaries could not be determined, (Rev. Stat. 1874, chap. 52, secs. 10, 11,) and necessarily, therefore, she and the heirs, until its severance, must hold as tenants in common, having the requisite unity of possession. When the administrators sold for the payment of debts, they only-sold, and could only sell, .the interest of the heirs at law, and, therefore, the purchasers at such sale, taking the place of the heirs at law, became tenants in common with appellant.

It is said in Freeman on Co-tenancy, sec. 96: “As tenancy in common may arise from such a confusion of goods that neither owner can designate and reclaim his own, so it may exist whenever the title of real estate is such that neither of the owners can locate his part. If the owner of a tract conveys a number of acres, less than the whole, without any designation of their locality, the grantee thereby acquires an interest in the whole tract as tenant in common with the grantor. The interest of the grantee in the whole tract is in the proportion which the number of acres conveyed to him bears to the whole number, and entitles him to all the rights and remedies incident to a tenancy in common. It is immaterial by what means the interest is created, so long as it remains unsegregated. Hence, where a defendant was entitled to a homestead of a specific value out of a tract of land which had been sold under execution, it was held that as the purchaser owned all in excess of the homestead limit of value, and the defendant owned all within that limit, and as neither had a claim to any specific portion, they were tenants in common in proportion to the value of their respective interests.” The author refers to Silloway v. Brown, 12 Allen, 30, in support of the last proposition. In that ease the court said, among other things: “The homestead estate differs, indeed, from ordinary estates held in common, in not being an aliquot part of the land, but measured by value only, which may be constantly fluctuating. * *' * But when an estate of homestead has once been acquired in land of a greater value than the limit of the homestead exemption, and the surplus has been alienated by levy of execution or sale according to law, the owner of the homestead and the owner of the residue each has a right of immediate possession and enjoyment of the land. * * * Their rights in this respect are exactly those of tenants in common, according to the elementary definition. ‘Tenants in common are such as hold by several and distinct titles but by unity of possession, because none knoweth his own severalty, and therefore they all occupy promiscuously. This tenancy therefore happens where there is a unity of possession merely, but perhaps an entire disunion of interest of title and of time.’ (2 Blackstone’s Com. 191.) The facts that the defendant had an estate for life, and the plaintiff an estate in fee; that the defendant held by virtue of the Homestead act, and the plaintiff by purchase from the defendant’s assignee in insolvency, and that the defendant acquired his title long before the .plaintiff purchased his,—do not make them the less tenants in common by reason of their unity of possession.” (Page 36.)

There is here, it will be observed, a common interest in the title of Daniel Montague. Both the rights of the heirs, (and, by necessary consequence, those of the purchasers at the administrator’s sale,) and those of the widow, rest upon that title. Any paramount title defeating the one must necessarily defeat the other.

The general doctrine is, a co-tenant can not take advantage of any defect in the common title by purchasing an outstanding title or incumbrance, and asserting it against his companions in interest; but in such ease the purchase is, notwithstanding his designs to the contrary, for the common benefit of all the co-tenants. (Freeman on Co-tenancy, sec. 154.) The objection has sometimes been urged that this doctrine only applies where there is an equality of interest or estate, but in Rothwell v. Dewees, 2 Black, 613, the Supreme Court of the United States held that objection untenable; and in Bracken et al. v. Cooper et al. 80 Ill. 229, this court followed the ruling in Rothwell v. Dewees, observing: “We do not find sufficient authority or reason to induce us to adopt the qualification of the doctrine, as applied to tenants in common, that their interest should accrue under the same instrument or act of the law. We regard the rule as founded upon the duty which the connection of the parties as claimants of a common subject creates, and not as dependent upon the accidental circumstances whether the relationship of the parties be constituted by the same instrument or act of the parties or of the law, or not. ”

There are obvious and peculiarly intimate relations of trust and confidence between the widow and heir at law,—the owner of the homestead and of the inheritance,—which it would be clearly contrary to the law to allow violated, which it is not necessary to specify. It is sufficient to say they exist, and are, quesumably, obvious. It necessarily results that, in our opinion, appellees could not, by taking a deed by virtue of the certificate of sale, cut off appellant’s rights. They hold this title in trust for the common estate, and appellant is entitled to avail of it upon making ratable contribution of the amount paid out for it.

The objection, however, is interposed, that appellant has never offered to make contribution. That objection is now urged for the first time. It comes too late. We have before seen that appellees, in their original answer to the bill, after setting up their ownership of the certificate of purchase, prayed the court that appellant be decreed to pay ratably the amount paid out by them on that account, and that the only question made here, on the former argument, was whether appellant should be held to so contribute. If the objection that an offer to contribute should have been alleged in the bill is tenable now, it was tenable then, and was tenable in the circuit court on the first hearing. We have often held a party can not be allowed to lie by and permit matters to pass unchallenged, and then urge them as objections for the first time in this court. Much more is it inadmissible that a party should try a cause without raising a particular objection, then submit it in this court without raising that objection, then retry it, and for the first time when the case is brought here a second time, raise the objection. The supplemental answer presented, in fact, no new question. If it had, it would have been in contradiction of the original answer, because the attempt was to set up a title inconsistent with a right there admitted, and for that reason it would seem it ought not to have been allowed to be filed. (Greenwood v. Atkins, 4 Sim. 61.) But the question remained precisely the same after as before that answer was filed. The purchase of the certificate by the appellees was in trust for all the co-tenants, and that was totally unaffected by the subsequent taking of -the deed. The deed, after it was obtained, was held precisely as the certificate had been held.

For the reasons expressed the decree below is reversed, and the cause remanded for further proceedings consistent therewith.

Decree reversed.