text:
    William Bussen et al. v. B. A. Dickson.
    1. Forcible Entry and Detainer — Submerged Lands. — Where a plaintiff in an action of forcible entry and detainer claims nothing but what it is conceded his grantor’s title covered, including- the shore and some submerged lands to the middle of a stream, the emergence of the submerged portion will not divest him of his title.

      2. Same — Plaintiff’s Possession of Submerged Lands— Where the plaintiff in an action of forcible entry and detainer shows that he and his grantors had held continuous possession of what remained of the shore portion of a submerged tract of land since 1856, it was held that such possession was sufficient to sustain the action against any person entering upon and occupying any portion of the tract.
    3. Same — What is a Wrongful Possession of Submerged Lands.— Where the evidence shows that the plaintiff is entitled to the possession of the whole tract of land (part of which is submerged) described in his complaint, and the fact that the defendant had entered upon that portion of it which had emerged, and had grown and was growing crops on such portion, is sufficient to warrant the court in finding him guilty, and rendering judgment against him for the possession of the whole tract.
    Forcible Entry and Detainer. — Appeal from the Circuit Court of Monroe County; the Hon. Martin W. Schaefer, Judge, presiding. Heard in this court at the February term, 1961.
    Affirmed.
    Opinion filed September 4, 1901.
    Julian Laughlin and Jos. W. Rickert, attorneys for appellants.
    Chas. Morrison and Dill & Wilderman. attorneys for appellee.
   Mr. Presiding Justice Creighton

delivered the opinion of the court.

This was an action, in forcible entry and detainer, commenced before a justice of the peace, in Monroe county, by appellee against appellants, to recover possession of certain lands described in the complaint. From the judgment rendered by the justice an appeal was taken to the Circuit Court, where the case was tried before the court without a jury, by agreement of the parties. This trial resulted in a finding and judgment in favor of appellee for possession of the land described in the complaint.

The lands in controversy are described in the complaint as follows:

“Beginning on range line between ranges 10 and 11 "W"., T. 1 S., 5.47 chains south of the southern boundary of survey 432; thence north on said range line, 5.47 chains to the south boundary line of said survey 432; thence south 86 degrees 25 minutes west on said boundary line, 1391 chains, to the northwest corner of said survey; thence north 2 degrees 35 minutes west, 13.68 chains, to the northwest corner of said survey; thence north 13 degrees 25 minutes east, 23.18 chains; thence north 76 degrees 20 minutes west, 11 chains, to the bank of the Mississippi river; thence down aid rsiver, with the meanderings thereof, to a point on the bank of said river, directly west of the beginning point; thence east along the boundary line between B. A. Dickson and L. Warnock, 35 chains, to the beginning corner."

The middle of the main channel of the Mississippi river is the west boundary line of the State of Illinois. St. Louis v. Butz, 138 U. S. 226; Bellefontaine Co. v. Niedringhaus, 181 Ill. 426. Appellants own the south part of an island in the Mississippi river, on the Illinois side of the main channel. In 1808 this island was surveyed and platted by the government as “ Island Bo. 4,” and in 1842, the south part of it was patented to Samuel Carroll. It is known in this record as Carroll Island, and appellants succeed to Carroll’s title. Appellee’s remote grantor owned a tract of land on the Illinois shore opposite the south end of Carroll Island, described by metes and bounds, as above quoted from the complaint, and appellee succeeds to that title. An arm of the river, known in this record as Carroll Island Slough, lay between the shore and the island. Afterward the • river so changed as to greatly enlarge the slough and widen the space between the island and the shore b}^ cutting away the shore, and submerging a large portion of the land owned by appellee’s grantor and now claimed by him. About 1872 the river began to change back to the west side of the island, and the slough began to fill. This progressed until at the time this suit was commenced, much of the land originally covered by its waters was dry land and somé of it in cultivation.

It is admitted that title to the disputed land was originally in appellee’s grantors, but appellants’ counsel contends that by the changings of the river, first in cutting away appellee’s land and afterward by its recession and change back to the west side of the island, and by the filling up of the slough, the land in dispute ceased to belong to the shore owner and became an accretion to the island, and that thereby appellee was divested of title .and right of possession. It must be borne in mind that appellee claims nothing by accretion, but only what it is conceded his grantor’s title covered. Appellee owned both the shore and submerged lands to the middle of the slough. Griffin v. Johnson, 161 Ill. 377. The emergence of the submerged portion did not divest him of his title. It was his when it lay covered by water, and it remained his after it had arisen above the water by the deposit of alluvion thereon by the action, of the river or otherwise, or had become dry land bv the recession of the water or change of the channel of the river.

Appellants’ counsel further contends that appellee had not previously had such possession of these lands as is necessary to support an action of forcible entry and detainer. The evidence conclusively shows that appellee and his grantors had held continuous actual possession of what remained' of the shore portion of the tract, at least since 1856. This was sufficient possession of the whole tract to support an action of forcible entry and detainer against those who might wrongfully enter upon and occupy any portion of such tract. Griffin v. Kirk, 47 Ill. App. 258; Nauman v. Burch, 91 Ill. App. 48.

The only remaining question is as to the possession of appellants. Their counsel insist that they were not in such possession at the time suit was commenced as to support the judgment, and say the.suit and judgment is for “all ” the land described in the complaint. “ What right had the trial court to give appellee judgment against appellants, for unlawfully withholding from appellee that portion of appellee’s land which the river had never taken % * *. * There is no pretense that this land (the shore portion of the tract) was in appellants’ possession.” The evidence shows that appellee was entitled to possession of the whole tract described in the complaint, and tends to show, and the trial court was fully warranted in believing from the evidence, that appellants had entered upon that tract and had grown and were growing crops on a portion of it. This is sufficient to warrant the court in finding them guilty, and rendering judgment against them for possession of the whole tract. Hardin v. County of Sangamon, 71 Ill. App. 103, is a case in which this question was directly before the court. In discussing the question the court said :

“The statute is that ‘if it shall appear on the trial that the plaintiff is entitled to the possession of the whole of the premises claimed, he shall have judgment and execution for the possession thereof.’ * * * Whether the judgment and execution should be for the whole or only a part of the premises claimed * * * is thus made to depend, not on the extent of the defendant’s actual possession, but on that of the plaintiff’s right of possession.”

We find'no substantial error in this record. The judgment of the Circuit Court is affirmed.


source: Caselaw Access Project

author: Mr. Justice Bigelow

license: Public Domain

text:
    Charles E. Henry Sons Co. v. Edward Mahoney et al.
    1. Replevin — Notice to the Vendor When the Property Sold is Replevied from the Vendee . — Where property is taken by a writ of replevin from the vendee, by a third party, it is not necessary that a formal notice should be served upon the vendor demanding that he appear and defend the suit in order to fix his liability upon an implied warranty of title.
    2. Former Adjudication — Rlentity of the Issue Determined. — Ordinarily the pleadings in the former suit will show what was adjudicated in it, but a fact or question is no less at issue, or within the conclusive effect of the adjudication because the averments of the declaration and traverse are general.
    3. Same — Parol Evidence Admissible to Show What Matters Were in

      Fact Adjudicated. — Parol evidence of what occurred upon a former trial and what matters were actually adjudicated, is always admissible in such a case.
    4. Same — Stenographic Notes and Instructions to the Jury Admissible for the Purpose of Establishing the Identity of Points Determined. — • Stenographic notes and the instructions given to the jury, are admissible for the purpose of establishing the identity of the point determined in the former action.
    5. Same — How Far Conehisive. — When a court with jurisdiction of the parties and subject-matter of the litigation, makes an adjudication as to a question of law or fact, its adjudication is conclusive upon the same questions in any subsequent litigation between the same parties.
    6. Vendos and Vendee — When the Vendee is Evicted from the Property Purchased. — Where a vendee of personal property is dispossessed of the same or of its value by legal proceedings at the suit of a third party, the burden of proof is upon him to show that such eviction was lawful before he can hold his vendor responsible for his loss.
    Replevin. — Appeal from the Circuit Court of St. Clair County; the Hon. Martin W. Schaefer, Judge, presiding. Heard in this court at the February term, 1901.
    Affirmed.
    Opinion filed September 4, 1901.
    Statement. — On the 17th of October, 1898, appellees, who are cattle dealers in St. Louis, Missouri, shipped ninety-eight head of cattle to appellants, who are commission merchants at the National Stock Yards, East St. Louis, to be sold for account of appellees. Means & Kneedler, who also seem to be cattle dealers, purchased the entire lot of cattle from appellants and paid the purchase price to them, and appellants remitted the proceeds of the sale, $1,865.90, to appellees at once.
    Means & Kneedler sold 'fifty-two head of the cattle for about $1,100 to Berry & Sons, who in turn sold them to one White, all of Missouri.
    On the 19th of October, 1898, Evans-Snider-Buel Commission Company, of Kansas City, Missouri, replevied the fifty-two head of cattle from White, in the Circuit Court of Montgomery County, Missouri, and on the same day the commission company replevied thirty-six of the ninety-eight head of cattle from Means & Kneedler, in the Circuit Court of St. Clair County, in this State, and on the same date the commission company replevied three of the ninety-eight head of cattle from appellants. The latter suit was brought before a justice of the peace of St. Clair county.
    The three replevin suits seem to have been based on a chattel mortgage, executed in Shannon county, Missouri, by one Freeman, in favor of said commission company, in November, 1897, to secure a debt of something more than $4,000.
    As soon as the thirty-six head of cattle were replevied from Means & Kneedler, they demanded of appellants a return of the money which had been paid for the cattle and threatened suit unless it was done. Appellants at once notified appellees of the replevin suits and arranged for an interview with the parties in interest. This interview was held at Union station, in St. Louis, Missouri, on the evening of October 20, 1898, and there were present C. E. Henry, representing appellants, and Mr. Demcy, his lawyer, E. W. Mahoney, representing appellees, one McNeely and one Mitchell; the two last named persons were also cattle dealers, who sold these cattle to Mahoney Brothers.
    In the meantime, between the shipment of the cattle and this interview, appellees had shipped other cattle to appellants to be sold on account of appellees, and after the interview the shipments continued in the same way. Appellants rendered accounts of sales as fast as made, but retained the proceeds in their possession.
    At this interview the evidence leaves the exact conclusions arrived at between the parties in much doubt, as there seems to be much dispute on material matters. A careful examination of the testimony shows that the conclusions of fact that the learned trial judge arrived at, in the general judgment rendered in the case, are fully borne out by the evidence.
    On the part of appellants the evidence tends to show that appellees were told that Means & Kneedler wanted their money and . threatened suit if not paid; that Mahoney replied: “ Why don’t you return the money to them ?” and that appellants replied that they did not want to be without the use of the money so long as they had already paid appellees for the cattle; that thereupon Mahoney replied that appellants already had some money in their possession belonging to appellees, and that as appellees would continue to ship cattle to appellants, there would soon be enough to cover the amount of Means & Kneedler’s claim. It is further claimed by appellants that there was an agreement between the parties that a trial of the two replevin suits in Illinois should, so far as the parties to this interview were concerned, settle the title to all of the cattle, and that appellees should have charge of the suits in Illinois and manage to keep down expenses, and that, inasmuch as Mr. Mitchell knew the man from whom his firm had bought the cattle, and was on this same evening going down into Missouri, where the cattle originally came from, the Mahoneys and Mitchell would, on their part, furnish the evidence to defeat, if possible, the replevin suits.
    All of this evidence is denied by appellees and they practically say that at this interview there was nothing said about replevin suits.
    At any rate, on the next day, October 21st, appellants repaid to Means & Kneedler the $1,865.90, and claim that they notified appellees of what had been done; this is also denied by appellees. The two replevin suits were tried as one in the Circuit Court of St. Clair County, the one before the justice of the peace having been appealed to that court. The trial took place on the 6th of February, 1899. The issues were found for Evans-Snider-Buel Commission Company. In a day or two after the trial, appellants rendered to appellees a statement of moneys on hand and of disbursements made for account of appellees. The charges in this account were $1,865.90 returned to Means & Kneedler; $40 for attorneys’ fees paid in trying the replevin cases; $16.57 for court costs in the justice of the peace suit; $53.47 for court costs in the Circuit Court case. A check for $369.98 was also enclosed to balance the account.
    It will thus be seen that appellants attempted to account for $2,345.92.

      Most of this money had been in the possession of appellants since in October of the previous year, and the evidence fails to show that appellees asked for it during the pendency of the replevin suits. The bookkeeper of appellees, when the settlement sheet and the check came in, objected, according to his testimony, very emphatically to the credits that appellants had taken and declared to them that his firm would not stand it; this matter is denied by appellants.
    The suit in Montgomery county, Missouri, was dismissed by a stipulation between the commission company and White, the plaintiff in the suit paying the costs. The stipulation was filed in vacation of the court, and some time in November, 1898.
    At the trial of the case before the justice of the peace for the replevin of the three cattle, one of the appellees was present; he was not, however, present at the trial of the case on appeal in the Circuit Court of St. Clair County, nor were either of appellants present at the trial of the replevin suit for the thirty-six cattle against Means & Kneedler; but the deposition of one of the appellee's was taken in St. Louis, and it was used on the trial of both cases.
    The chattel mortgage which was used on the trial of the title to the thirty-six cattle and the three cattle, described the property therein as follows: “ Two hundred head of one and two year old Southwest Missouri and Arkansas steer cattle, various colors, all dehorned and branded ‘ F ’ on the left jaw,” etc.; in conclusion the mortgage has the following provision: “The cattle above described may have other brands or marks on them than those mentioned above; but those given are the holding brands or marks, and carry the title to the cattle.” This mortgage was used on the trial of the two Illinois replevin suits, and also on the present trial of this case.
    At the trial of this case, Mr. C. H. Toups, brand inspector for the Cattle Raisers’ Association of Texas, at the National Stock Yards, East St. Louis, testified that he saw all of the cattle which were replevied; that he went to Missouri and saw the fifty-two head of cattle which were replevied there, and that he found no letter “ F” on the left jaw; but that they were branded with an “ F” on the left shoulder; that he had clipped off the hair on the jaws of these cattle to see whether the brands at such place had been obliterated, and that he had found no marks whatever on the left jaw of any of these cattle except one, and that mark he would not, call a brand. All this evidence went into the record over the objection of appellants, they contending that all such matters had been adjudicated in the replevin suits. It is also shown that Mr. Toups made this examination on the 29th of October, 1898, at the direction of Means & Kneedler, and that he was not a witness on the trial of the replevin cases. All of the evidence as to the brands on the cattle stands unchallenged in the record. Appellants also introduced the pleadings, deposition of one of the Mahoneys, and the judgments in the replevin suits, to all of which matters appellees objected, on the ground that they were not bound by the same; no objection was made because such evidence was improper under the pleadings as they stood; the court overruled the objection of appellees and they excepted. The court, in admitting the deposition of Mr. Mahoney, stated that it was proper on the question of notice merely as to appellees’ knowledge of the pend-ency of the replevin suit in which it was taken.
    At the present trial of this case Mr. Means testified that appellants had nothing to do with the trial of the suit brought against him;' that he had “ sense enough to hire his own lawyers,” and that he never intended to appeal from the judgment in that suit.
    It is conceded all around that the successive purchases of the cattle was in good faith by each and all concerned; and it is also proven, beyond question, that all the items that appellants take credit for, as above stated, were really paid by them. There was a suit in St. Louis, brought by MclSTeely & Mitchell against Mahoney Brothers, in which they recovered judgment for these cattle, but beyond furnishing occasion for the taking of certain depositions, which were used as impeaching testimony on this trial, the suit is not claimed to have any bearing on the issues in this case. The case was submitted to the court without a jury, and a judgment for the sum of $1,100 was awarded against appellants; appellees have assigned cross-errors, claiming that the court erred in not rendering judgment for the full amount of their claim, which they fix at the sum of $1,809.81, there being a discrepancy of $166.13 between the accounts of appellants and appellees, - appellants charging themselves with that amount more than appellees charge them; at least the abstract so shows; but inasmuch as neither side has adverted to the fact, it is excluded from the consideration of the case.
    Messick, Moyers & Crow, attorneys for appellants.
    Wise & McNulty, attorneys for appellees.
   Mr. Justice Bigelow

delivered the opinion of the court.

Plaintiff’s declaration consists of a special count and the common counts. The special count is based on the balance of account which grows out of so many cattle as appellants may have had on hand unsold prior to the time they sent their draft for the $1,865.90, and such cattle as were sent after that time and .sold by appellants, but unaccounted for by not paying over the cash proceeds, less the check for $369.98 sent by appellants to appellees, on the 10th of February, 1899, to balance accounts, appellees refusing to recognize the items paid out by appellants, as shown by the statement of facts heretofore made. To the declaration appellants pleaded general issue, payment and set-off.

It is insisted by appellants that their assignments of error are well taken, and that the evidence shows that nothing is due appellees; while appellees claim that their cross-errors ought to be sustained and that a judgment for the full amount of their claim, $1,809.81, ought to have been rendered.

The pleas in the replevin cases were: non cejyit, non detinet, plea of property in Henry Sons Company, denying the right of property in plaintiffs in the replevin cases, and plea of property in Means & Kneedler; denying the right of property of the plaintiffs in the same actions.

To these special pleas there were traverses of the rights of property of Henry Sons Company and of Means & Kneedler. On all of the issues the court found generally for the plaintiffs in the replevin suit. The judgment determined that both the right of possession and the right of property to the thirty-nine cattle were in the plaintiff, and there is no contention to the contrary in- the arguments on either side; the questions raised are; On whom are the replevin judgments binding? Are the judgments void for fraud and collusion ? and what is the effect of the judgments as to the thirty-nine cattle on the fifty-two cattle replevied in Missouri.

Before attempting to answer these questions, it will be expedient to consider the chattel mortgage and the evidence of the brand inspector. We shall endeavor to show hereafter that this record does not establish, as to the fifty-two cattle, that the chattel mortgage was the controlling question in giving the judgments in the Illinois replevin cases. So that, in disposing of this branch of the case, we shall assume that the chattel mortgage and the'evidence of the brand inspector were rightfully admitted. It needs no argument to show that cattle branded with an “‘F’ on the left shoulder,” would not answer the description of cattle branded “ ‘ F ’ on the left jaw,” particularly when the mortgage provided that, although there might be other marks or brands on the cattle, the brand “ ‘ F5 on the left jaw ” should carry the title to the cattle. The case of New Hampshire Cattle Company v. Bilby, 87 Mo. App. 45, admitted in evidence on the trial, seems to be in point; it is not necessary to say that we are concluded by its reasoning because we think that such ought to be the law, as a matter of abstract opinion. If the question were an open one on this- record, we should say without hesitation that the chattel mortgage was invalid as to all of the cattle involved in this controversy.

On whom are the judgments binding in the Illinois replevin cases ? One action was entitled Snider-Evans-Buel Company v. Henry Sons Company; the other action was entitled the same plaintiff v. Means & Kneedler. The court held, as a matter of law, that the final judgments in the replevin cases were conclusive and binding on appellees, so far as the title to the thirty-nine cattle' were concerned, if appellees had notice of the pendency of these suits and of the time when they were set for trial; and if, further, one of the plaintiffs was present at the trial in the justice court and was a witness in the other case. It is true that this proposition of law, as held, has been modified by the court, and it is also true that the proposition should have adverted to a supposed obligation in law or in fact for indemnity between the parties, because if no such obligation existed, even an express and clear notice to defend the replevin suits would have cast no obligation on the appellees; but there is abundance of evidence'in the record to support such hypothesis. And inasmuch as the court found generally for appellees to the extent of §1,100 only, we can only conjecture upon what precise point the indemnity matter appeared to the mind of the trial judge; but if we can see from the record that the judgment is right, irrespective of the absolute correctness of the proposition held, the judgment ought not to be reversed. North Chicago City Ry. Co. v. Lake View, 105 Ill. 207. It is not necessary that formal notice should have been given to appellees by appellants demanding that they defend the replevin suits, if, as a matter of law or contract, appellees were obliged to indemnify Henry Sons Company for any loss that the latter might suffer in the cattle transaction. Drennan v. Bunn, 121 Ill. 175; Cressey v. Kimmel, 78 Ill. App. 27; 2 Van Fleet’s Former Adjudication, Sec. 576. It is certain that one of the firm attended the trial in the justice court and that-another of the firm had his deposition taken as a witness,, and the evidence also shows that the matter of defending-these replevin suits was talked of at the union station in St. Louis; if these suits were not mentioned at that interview, why was the interview held at all %

Were appellees indemnitors to appellants so far as these cattle, or a portion of them, were concerned ? Appellees insist that appellants were mere agents of Mahoney Brothers in the sale of these cattle, and that the evidence shows that Means & Kmeedler knew that fact; that therefore the recourse of the latter firm was entirely on appellees, because there was no contractual relation between Means & Kneedler and appellants; that the law is that appellants can not dispute the title to the proceeds of these cattle, because the money in appellants’ hands was paid to the use of appellees, and so there never was any responsibility over from appellees to appellants, even if the title to these cattle should fail. All of this may be true, and yet appellants might, •irrespective of their agency, have been liable in trover to the true owner of these cattle; and this fact may have furnished appellants a reason for indemnity, if they should be able to get it by way of contract before they had, in fact, paid a possible trover judgment.

There is evidence in the record that appellants were successful in getting this indemnity, for the refusal of the trial judge to find a judgment for any cattle other than those replevied in Missouri, shows that he concluded that appellants should be indemnified as to the cattle replevied in Illinois. As heretofore stated, we can only conjecture what precise facts the court found from the evidence. The record shows that appellees permitted, from October 20, 1898, to February 10, 1899, more than enough money to remain in the hands of appellants to cover any possible claims that Means & Kmeedler might have against appellants on account of this cattle transaction. This was done between the interview at the union station and the trial of the replevin cases in the Circuit Court of St. Clair County. This undisputed fact, together with the evidence of what transpired at the interview, probably established in the mind of the trial judge that there was a contract of indemnity to the extent of money that was permitted to remain with appellants until the replevin cases were adjudicated in the Circuit Court of St. Clair County. Upon no other probable theory was this money left for such a length of time in the hands of appellants, when otherwise it was at once due and payable to appellees, and at a time when they were receiving other remittances from appellants. But the learned trial judge must also have found that appellees gave no authority to appellants to pay the $1,865.90 to Means & Kneedler; and there was abundant ground for that finding, for it is in evidence that Mr. Henry said that he was sorry he had done so. The authority was simply to retain the money as indemnity. Had appellees seen fit, in the first instance, it may be that they could have compelled appellants to have paid this money; but they dealt differently with the money matter, by putting up the special money indemnity to appellants, by letting so much money remain with appellants as probably covered what Means & Iineedler would have a right to have returned if the title to all, or any part of the cattle, failed.

It follows from what has been determined, that both appellees and appellants became privies to the judgments rendered by the Circuit Court of St. Clair County in the two replevin suits, and that they are bound by those judgments. If appellees had reasons to distrust the character of the defenses that might be made to those suits, they had not only the right, but it was their duty to have made their own defense. Ho criticism should be indulged because the same court has found apparently in opposite ways on the same chattel mortgage. Besides, it is not certain that appellees could have made a better defense. That might have depended on too many contingencies for conjecture. At any rate, the judgments in the replevin cases establish conclusively between the parties to this record, that as to thirty-nine cattle, appellants were evicted by paramount title, and that appellees must indemnify appellants, a thing they have already done by the amount of money in these cattle now in the hands of appellants and for which the court did not render judgment. This disposes of appellees’ cross-errors.

But it is said by appellees that there was collusion between the commission company and Means & Kneedler in obtaining the judgments in the replevin cases, because the latter had evidence in their possession to defeat the chattel mortgage, when the brand inspector returned from Missouri, and when he could have testified that not a single head of the cattle was included in the description given in the mortgage. The question whether the judgments are fraudulent'so as not to bind the parties to this record, can not be raised in that way. To make that attempt is to collaterally attack the validity of those judgments, which may not be done; these judgments, rendered by a court of competent jurisdiction, must be set aside in some direct proceeding, or not at all.

It remains to point out that the judgment against appellants is correct. So far as the dismissal of the replevin suit in Missouri is concerned, it is not pretended that appellees either authorized or ratified the act. The status given to the fifty-two head of cattle in Missouri by the agreement or non-agreement of the commission company and Mr. White does not in any wise bind appellees. Even had they been parties directly to the record of the Missouri suit they could not have prosecuted it to a final judgment. The plaintiff in that suit, so far as we are advised, had a complete right to try or dismiss it, taking the chances of liability on the replevin bond. But it is insisted that appellees are still bound by the judgments in the replevin cases as to the title to these fifty-two cattle. They are certainly not bound by the judgments directly; and if they are bound at all it is by reason of some controlling fact which was settled adversely to appellees in the Illinois replevin cases. It is urged that the chattel mortgage is that controlling fact, and therefore it was error to admit it and.the testimony of the brand inspector, in evidence.

The declaration in the replevin suits did not count on the chattel mortgage in terms for the rights of possession and of ownership of the plaintiffs in those. suits. It is said by the court in Wright v. Griffey, 147 Ill. 500:

“ Ordinarily the pleadings in the former suit when introduced will show what was within the issue tried and determined therein. A fact or question is no less at issue, or within the conclusive eif'ect of the verdict and judgment, because the averments of the declaration and traverse are general. The difference between cases where the issue is thus general and those where it is limited by the pleading to a single point, is, that the matter which appears by the mere inspection of the record in the latter, must in the former be established by evidence. Parol evidence of what occurred upon the former .trial and what was actually decided, is always admissible in such cases.”

And the entire stenographic notes and the instructions given to the jury were introduced to establish the precise point determined adversely in another action, which was asserted by the parties to be binding in the case decided by the court. So the court was able to see what the issues were that had been submitted on the former trial. In the case at bar, the issues as to possession and right of property were general; the pleading was not limited to the fact that a chattel mortgage was the precise foundation of the issues litigated. The fifty-two cattle themselves were not a subject-matter directly in issue in the two Illinois replevin cases. As to the thirty-nine cattle the judgments settle conclusively as against the parties to this record on a collateral attack, that others than the parties here owned the cattle, and that there was an eviction, as we have said, by paramount title. The fifty-two cattle are other than the thirty-nine cattle. If any fact, then, which established the ownership of the thirty-nine cattle, was “ the ultimate vital point, or only incidental, but still necessary to the decision on that point,” was litigated in the Illinois replevin cases, and if such fact is the same and controlling fact as to the ownership of the fifty-two cattle, it devolved upon appellants by pleading and evidence to show it. Attorney-General v. Chicago & Evanston R. R. Co., 112 Ill. 520. We pass the point that appellants filed no plea of res adjudicóla, and look to the evidence to see whether it discloses that there was an identity of issue as to the ownership of the thirty-nine cattle and the fifty-two cattle. The evidence fails to disclose such a case.

It is true that the chattel mortgage was introduced in evidence in the two replevin cases, and that it was also introduced in the case at bar; it is true that the brand inspector says on this trial that he had examined all the cattle replevied and that none of them had the brand “ ‘ F ’ on the left jaw,” and he was not a witness in the two replevin suits. In addition thereto, we will say that as against the evidence of the brand inspector we must conclusively presume in favor of the judgments in the two replevin cases; there was evidence to show that the brands of the thirty-nine cattle replevied tallied with the description of the chattel mortgage. As to the fifty-two cattle this only holds true, if plaintiffs in those suits had a finding-in their favor on the chattel mortgage only. If the record before us had established the fact that this was the only evidence on which the court found the rights of possession and of property in the two replevin cases, the question of the chattel mortgage would be res adjudicatei; for, if the defendants or their privies had offered counter evidence on the description of the cattle, and had, nevertheless, been cast in their defense by the court’s finding, then their remedy was by appeal to have corrected that error, and if they had omitted to have shown that the description did not tally with the mortgage, such fact would have been an omitted defense and they still would have been bound, because such facts would have been the only material issue made by the evidence on the ownership of the cattle. But the record before us fails to establish that the chattel mortgage was either “ the ultimate vital issue or only incidental, but still necessary to the decision of that point.”

For anything that appears in this record the chattel mortgage was admitted in evidence merely as inducement to full proof that the plaintiffs in the replevin cases, after the execution of the mortgage, and the sale of the cattle to the parties to this' record, bought the cattle outright from the mortgagor, and so it would have been immaterial whether the plaintiffs in the two replevin cases had a chattel mortgage or not, as a foundation for their rights of property. Before the judgments could be plead or proven .as estoppels, so as to conclude as to matters other than the title to the thirty-nine cattle, it was necessary for appellants to have shown that appellees were defeated on the same material facts in the two replevin cases that they are now seeking not to be concluded by in this suit. See cases cited in Wright v. Griffey, 147 Ill. 498. The circumstance that the cattle were replevied in Missouri is of no importance on this question; the question is, is the title to the fift3r-two cattle also conclusively settled by the prior replevin cases as against appellees and in favor of appellants, so as to show an eviction by paramount title, as a matter of estoppel from former litigation ?

This court is unable to answer that question in the affirmative from anything that appears in this record.

Appellants must show in some other way that they were evicted by a title paramount as to these cattle, because if they were not so evicted, the cattle or their value may still be somewhere (the proper conditions existing) to respond to their rights of ownership. And the burden of proof is on appellants to show that this eviction was a lawful one. Matheny v. Mason, 73 Mo. 677. If appellants voluntarily yielded to third persons the money placed with them as their indemnity, they assumed all the risks of proving the correctness of their action, so long as the court must have found — and in which finding we concur — that the payment of the money by appellants to Means & Kneedler was neither authorized nor ratified. Accordingly appellants have no right to pay any part of the indemnity which was in their hands relating to the fifty-two cattle in Missouri.

If White and his predecessors in title to these cattle have been repaid their money, it would seem as if the cattle were now the property of appellants, though on that proposition we express no opinion.

The evidence shows that these cattle were worth about $1,100, and inasmuch as no question has been raised either in the court below or in this court as to the measure of damages, it follows that the judgment of the Circuit Court is correct.

Appellees contend with some insistence, that there could be no action for the breach of the warranty had appellants , brought a suit for indemnity, unless the proof showed that White had called on Berry & Sons, and they had called on Means & Kneedler, and they in turn had called on Mahoney • Brothers to defend- the title; and, further, that an intermediate covenantee can not sue his covenantor without first satisfying his liability to his covenantee; citing Chambers v. Smith, 23 Mo. 174, and Vancourt v. Moore, 26 Mo. 98. Without controverting that position or the cases cited in support thereof, the reply to it is. that if the parties had remained in their strictly legal positions from the beginning, such rules of law might have been applicable; but an indemnity fund was permitted to remain in appellants’ hands to cover the matters in contingency, s'o that the real question in this case is, what amount of the indemnity fund have appellants a right to retain and what amount must they account to appellees for ?

Mo argument has been made as to other items claimed by appellees to have been wrongfully paid out by appellants for court costs and attorneys’ fees, therefore we regard the complaints to such matters to have been waived.

The judgment of the Circuit Court of St. Clair County is affirmed.


author: Mr. Justice Worthington

text:
    John L. Jones & Co. v. Mrs. Olive Chamberlain.
    1. Contracts — Not to be Varied by Contemporaneous Parol Statements. — The terms of a wntten contract can not be varied by contemporaneous oral statements, nor can the conditions of a sealed instrument be changed by subsequent unexecuted parol agreements.
    3. Same — Agreements to Extend the Time of Payments — Consideration.- — An agreement to extend the time of a payment without a consideration for it, is not binding upon the parties.
    Replevin. — Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the February term, 1901.
    Reversed and remanded.
    Opinion filed September 4, 1901.

      Alexander Flannigen, attorney for appellant.
    Wm. P. Launtz, attorney for appellee.
   Mr. Justice Worthington

delivered the opinion of the court.

This is an action of replevin to recover certain articles of household furniture, bought of appellant, who sold furniture upon the installment plan. It was first tried before a justice of the peace, where a judgment was rendered for appellee. From this judgment an appeal was taken by appellant to the City Court of East St. Louis, where a verdict was returned for appellee, upon Avhich judgment for costs Avas entered against appellant, and the property replevied ordered returned to appellee. From this judgment appellant appeals. Appellant sold to appellee certain articles of furniture, taking her note, as follows :

East St. Louis, Feb. 4, 1900.

Uine months after date, I promise to pay to the order of John L. Jones & Co., fifty-three dollars, for value received, with interest from maturity at 6 per cent per annum until paid, payable in monthly installments of $6.

Olive Chamberlain.”

This note was secured by a chattel mortgage upon the furniture bought, which provided that until default was made in paying the monthly installments of $6, appellee might retain possession of the furniture for txvo years, unless appellant should elect to take possession sooner. It further provided that if said furniture should be attached, levied on by execution,'wasted, or removed out of the county, or attempted to be sold by the mortgagor, that the mortgagee might take immediate possession and sell the property at public or private sale.

It is not claimed that any of these latter provisiohs Avere Anolated, the claim of appellant to the possession being based upon the alleged default of appellee to make the monthly payments specified in the mortgage.

Appellee paid on said furniture $26.50, as íoHoavs : February 20th, $5; February 27th, §1; March 20th, $2; May 1st, $5; June 26th, $2.50; September 2d, $5; October 20th, $-1; ^November 27th, $2; leavdng a balance due of $26.50 when this suit in replevin was commenced.

Appellee testified: “ They always took the amount I paid and said it was all right. They said that in case of sickness, or my husband was out of work, they would wait until we could make the payments. That was at the time I bought the furniture.”

To this testimony appellant objected, and the objection was sustained by the court, and the jury directed to disregard the testimony.

Appellee further testified: “ I was paying just as I could, and these payments were satisfactory. I paid $3 and sometimes $2 — different amounts; it was all right.”

To this testimony objection was made and sustained.

There was no error in sustaining these objections. The contract was a written contract, and the mortgage an instrument under seal. The terms of the contract could not be varied by contemporaneous parol statements, nor the conditions of the sealed instrument changed by subsequent unexecuted' parol agreements. Weaver v. Fries, 85 Ill. 356; Alschuler v. Schiff, 164 Ill. 298; Goldsborough v. Gable, 140 Ill. 269; J. C. Winship Co. v. Wineman, 77 Ill. App. 161.

Cooke v. Murphy et al., 70 Ill. 96, is cited by appellee as authority for changing the terms of a sealed contract by subsequent parol agreement. An examination of the authority shows that one of the parties a few days after the execution of the contract, claimed that there was in it a mistake of $500 in the amount of the consideration to be paid, and that this was not denied by the other party, wdio then promised to pay this $500. This was not, then, an authority for changing by parol the terms of a contract under seal, because by tacit agreement at least, the contract as written did not contain the terms of the contract as agreed upon.

Bishop v. Busse, 69 Ill. 403, also above cited, was not a contract under seal.

Worrell v. Forsyth, 141 Ill. 22, cited by appellee, does not hold, that an unexecuted parol agreement can vary a contract under seal. In this case, the parol agreement was executed, $yid the party objecting was held to be equitably estopped thereby.-

Uor were agreements to extend the time of payments, if made, binding upon appellant, for the reason that no consideration for such extension is shown. Weaver v. Fries, 85 Ill. 356; Heenan v. Howard, 81 Ill. App. 633.

It follows from these authorities, that the modification by the court of appellant’s second instruction was error. The instruction as- asked ivas as follows :

“ The court instructs.the jury that if you believe from the evidence that the defendant executed the note and chattel mortgage in evidence, and that she has made default in the payment of the money as provided in the mortgage, and that the plaintiff, before the commencement of this suit, made demand for the possession of the property described in the mortgage, which was refused, then the plaintiff would have the right to seize said property by writ of replevin, and sell the same at public or private sale, and out of the proceeds of the sale pay and satisfy the balance due them, on said note and chattel mortgage and render the surplus, if any, to the defendant.”

The court refused to give the instruction as asked, but gave the same adding thereto the following -words:

“ Unless you believe from the evidence that the conditions and terms in the mortgage were changed by agreement of parties thereto.”

There was no competent evidence introduced to warrant this addition to the instruction,-as an unexecuted parol agreement can not change the terms of a contract under seal.

For the same reason it was error to give the first and seventh instructions given for appellee.

Two witnesses testified for appellant that a demand was made before suit was brought. Appellee denied that any demand was made. If the case turned alone upon this issue, the verdict of the jury would be held conclusive. But when palpable error, that may have been prejudicial, is found in another branch of the case, the court can not assume that the finding of the jury turned upon a disputed question of fact.

The claim that appellant could not, by due progess of law, take possession under the mortgage for default in payment, is not sustained. By the terms of the mortgage, appellee was only entitled to possession by complying with the conditions of the mortgage, one of which was the payment of the monthly installments as they fell due. While the amount involved in this case is small, and sympathy appeals for appellee, the law must be administered as if conditions were different. Judgment is therefore reversed and the cause remanded.


author: Mr. Presiding Justice Creighton

text:
    Martin W. Robertson v. The City of Marion et al.
    1. Cities and Villages — Not Liable for the Tortious Acts of Their Officers. — A municipal corporation in the performance of its police regulations can not commit a wrong through its officers in such a way as to render it liable.
    2. Malicious Prosecution — Requisites of the Declaration in Actions for. — To maintain an action for malicious prosecution it is necessary to allege and prove that the prosecution was malicious and without probable cause, and further that the suit complained of has been judicially determined in favor of the party bringing the suit for malicious prosecution.
    Trespass on the Case, for malicious prosecution. Appeal from the Circuit Court of Williamson County; the Hon. Alonzo K. Vickers, Judge, presiding. Heard in this court at the February term, 1901.
    Affirmed.
    Opinion filed September 4, 1901.
    Young & Morris and A. J. Kimmel, attorneys for appellant.
    W. W. Clemens and E. M. Spiller, attorneys for appellees.
   Mr. Presiding Justice Creighton

delivered the opinion of the court.

This was an action on the case, in the Circuit Court of Williamson County, by appellant against appellees, to recover damages alleged to have been sustained by appellant on account of his arrest and prosecution by appellees for a violation of certain ordinances of the city of Marion. (Appellees are the city of Marion and its officers.) It appears from the record that the original declaration consisted of three counts; that the declaration was finally so amended as that what is denominated “ fourth additional count,” became substituted for the third count; that appellant nollierl the second count; that the court sustained a general demurrer in favor of all the appellees to the first count and to the “ fourth additional count;” that appellant elected to stand by his first count and “ fourth additional count,” and that thereupon the court rendered judgment against him for costs. Appellant’s appeal brings before us for consideration, only the' action of the trial court as to the first count and the “ fourth additional count” of his declaration.

The gist of the first count is, that on the 13th day of April, 1898, appellees began a suit against appellant under sections 1 to 6 inclusive of ordinance Mo. 17 of the city of Marion, and caused him to be arrested, taken before a justice of the peace, tried and fined; that he appealed from that judgment to the Circuit Court, where trial was had resulting in a judgment in his favor; that appellees appealed the case to the Appellate Court, where the judgment of the Circuit Court was affirmed. The count then avers that by reason of such prosecution and appeal, appellant was greatlv injured, etc. The “fourth additional' count” sets up, in substance, that appellant owned a lot in the city of Marion and was proceeding to erect a building thereon; that appellees claimed that said building was being erected in violation of certain of the city ordinances, and “ maliciously instituted and prosecuted divers suits and prosecutions against appellant, which were false and fictitious and without any probable cause,” whereby he was injured, etc.

This case, as stated in each of these counts, is to such extent a case for malicious prosecution as to make that feature of it a controlling factor in the case, and to require that the declaration be tested by the law applicable to such cases. As to such cases a municipal corporation sustains a legal relation wholly different from that of an individual. In Board of Trustees v. Schroeder, 58 Ill. 353, it is held that a municipal corporation is not liable for the illegal acts of its officers in administering an ordinance, although its trustees may have participated therein. In Blake v. City of Pontiac, 49 Ill. App. 543, it is held to be well established law that a city, in the performance of its police regulations, can not commit a wrong through its officers in such a way as to render it liable. This doctrine is recognized and acted upon by the court in the very recent case of City of Chicago v. Williams, 182 Ill. 135. The rule of law which exempts municipalities from liability for the torts of their officers in the enacting or enforcing of purely police regulations, rests on the soundest public policy. It follows, therefore, that as to the city of Marion the demurrer was properly sustained.

As to the city’s co-appellees, although officers of the city, the above stated exemption from liability does not apply. The question as to them then, is, does the declaration set up a cause of action? To maintain an action for malicious prosecution it is necessary to allege and prove that the prosecution was malicious and also that it was without probable cause, and further, that the suit or suits complained of have been judicially determined in favor of the party suing for such malicious prosecution. Tested by these requirements this declaration fails. The first count does not charge' either malice or want of probable cause, and the fourth additional count ” does not charge that the divers suits complained of, or any of them, have been prosecuted to a judicial termination. It follows, therefore, that as to all of appellees the demurrer was properly sustained.

The judgment of the Circuit Court of Williamson County is affirmed.


text:
    W. P. Cravens v. Edward Winzenberger.
    1. Rents — Who is Entitled Before a Demand for Dower is Made.— Until a demand has been made or petition for dower filed by the party-entitled to the assignment, the owner of the fee is entitled to the whole of the crops or rents.
    2. Dower — Nature of the Right During Coverture.— The right of dower in the party entitled, is an inchoate expectancy, during coverture, maturing upon the death of husband or wife into a right of action to have his or her dower admeasured in the lands of which the deceased party was seized; the right rests in action merely; it is not an estate in lands nor does it give the party entitled to it a right of entry.
    3. Jurisdiction — In Equity. When to he Challenged in the Trial Court. — 'The objection that a court of equity is without jurisdiction because the complainant has an adequate remedy at law, can not be made for the first time in the court to which an appeal is taken.
    Bill for an Injunction. — Error to the Circuit Court of Wayne County; the Hon. Prince A. Pearce, Judge, presiding. Heard in this court at the February term, 1901.
    Affirmed.
    Opinion filed September 4, 1901.
    Creighton & Kramer and Hanna & Hanna, attorneys for plaintiff in error.
    Geo. W. Johns and W. T. Bonham, attorneys for defendant in error.
   Mr. Presiding Justice Creighton

delivered the opinion of the court.

This was a bill in chancery in the Circuit Court of Wayne County, by defendant in error against plaintiff in error, to enjoin plaintiff in error from removing crops, and from interfering with the possession of certain lands which defendant in error had purchased at an administrator’s sale. Upon final hearing the Circuit Court sustained the bill and made the injunction perpetual.

There were two motions filed in the case at the last term, one by defendant in error for a rule on plaintiff in error requiring him to file bonds for costs, and one by plaintiff in error for continuance. These motions reached us after the case had, in due course, been called and taken. They came too late and are both denied.

Plaintiff in error was surviving husband of deceased, whose land was sold by the administrator under a decree of the County Court. The County Court decree finds that plaintiff in error had consented that the land should be sold “free and clear” of his dower interest therein, and it was ordered so sold. At the foundation of the controversy between the parties here is the denial of plaintiff in error that he ever consented that the County Court should order the land sold “free and clear” of his dower interest, and he claims that he was entitled to the crops and to possession of the land until such time as dower should be assigned. This position is unsound. The record does not disclose that any demand had ever been made, or petition filed by plaintiff in error for assignment of his dower. In such case the owner of the fee is entitled to the whole of the crops or rents, until such demand is made or such petition filed. Bedford et al. v. Bedford, 136 Ill. 354; and in Heisen v. Heisen et al., 145 Ill. 658, it is said:

“ The legislature having abolished tenancy by the courtesy, and conferred upon the husband the right of dower in his wife’s lands, in general terms, and without the use of ivords showing an intention to enlarge the right of the husband, beyond that granted to the wife, it is to be presumed that the same right Avas intended to be conferred upon each. * * * The right of dower in the wife is an inchoate expectancy during coverture, maturing upon the death of the husband into a right of action, to have admeasured to her dower in the lands of which he had been seized, and to Avhich her doiver had not been released. After the death of the husband, and before assignment, the right rests in action merely, is not an estate in lands, nor does it give a dowress a right of entry.”

The only remaining question worthy of discussion is as to the power of the court to grant the relief decreed. Counsel for plaintiff in error contend that a court of equity has no jurisdiction, because there is an adequate remedy at law. "What force, if any, there would be in this position, under the facts of this case, as an original proposition, is now of no consequence. The record does not show that the jurisdiction-was questioned or challenged in the trial court, but on the contrary shows that plaintiff in error filed his answer to the merits, and proceeded throughout, in that court, without in a manner raising the question there. An objection in a case of this character, that complainant has an adequate remedy at law, can not be made for the first time in the court to which the appeal is taken. Darby v. Dixon, 4 Ill. App. 187; City of Chicago et al. v. Cameron et al., 22 Ill. App. 91; Stout et al. v. Cook, 41 Ill. 447; Magee v. Magee, 51 Ill. 500; Chicago Theological Seminary v. Gage, 103 Ill. 175.

We find no such error in this record as calls for a reversal. The decree of the Circuit Court is affirmed.


text:
    Baltimore & Ohio S. W. R. R. Co. v. Maggie Irwin.
    1. Measure of Damages — For Property Destroyed by Fires Set by Locomotives. — The measure of damages for meadow and grass land destroyed by fire set by locomotives on railroads is the difference between the land before and after the fire, and that of hay and straw, is the fair cash value of it when destroyed, as shown by the proofs.
    3. Damages — Where $103. SO is Not Excessive. — Fire from a locomotive engine upon a railroad destroyed fourteen acres of meadow grass growing on the land, three acres of blue grass pasture, ten tons of hay in the stack, one stack of straw and ten fence posts. Held, that a verdict for §163.80 was not excessive.
    8. Variances — Questions of, Must Be Raised in the Trial Court.— All questions of variance between the pleadings and the proofs must be raised in the trial court so that the objection may be obviated by amendment. Such questions can not be raised for the first time in the Appellate court.
    Trespass oil the Case, for damages by fire. Appeal from the Circuit Court of Marion County; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the February term, 1901.
    Affirmed.
    Opinion filed September 4, 1901.
    Van Hoorebeke & Louden and L. M, Kagy, attorneys for appellant; R. E. Hamill, of counsel.

      John S. Stonecipher, W. F. Bundy and Frank F. Noleman, attorneys for appellee.
   Mr. Justice Bigelow

delivered the opinion of the court.

■ This action was brought by appellee against appellant to recover damages for injury done to appellee’s farm and other property, by fire.

The declaration contains three counts. The first count alleges that on October 7, 1899, appellee was the owner of a farm, describing it, situated in Marion county, in this State, on which was fourteen acres of meadow grass growing, three acres of blue grass pasture, ten tons of hay in stack, one stack of straw and ten fence posts. That appellant operated its railroad on its right of way, along and adjoining appellee’s farm. That appellant failed to keep its right of way free from dry grass and other combustible matter, and failed to keep its engines in good repair so as to prevent the escape, of fire therefrom, and failed to handle its engines in a careful and competent manner along and adjoining appellee’s farm, whereby sparks and brands of fire escaped therefrom and set fire to the dry grass on appellant’s right of way, which spread upon appellee’s premises, by means of which the before described property was burned and destroyed.

The second count is substantially the same as the first count, except that in the former it is averred that appellant’s engines were out of repair, and were improperly handled, whereby fire escaped and was thrown upon appellee’s land, destroying fourteen acres of meadow grass and three acres of pasture grass.

The third count is also substantially the same as the first.

The plea was not guilty. There was a trial by jury which resulted in a verdict for appellee for $162.80, and it was followed by a motion by appellant for a new trial; the motion was denied and the defendant exceptedj and judgment having been rendered on the verdict, defendant has brought the case here by appeal for a reviewal of the judgment.

After a general statement by counsel for' appellant, of what they deem the substance of the evidence, they sum up the case as follows:

61 At the conclusion, of the testimony for appellee, appellant moved the court to exclude the evidence from the jury and instruct the jury to find for appellant, which the court refused to do, to which appellant excepted, and again at the conclusion of all the testimony, the motion was renewed and instruction asked to find for appellant, which was again refused and excepted to.

This fairly presents the issue involved in this case and the salient points of the evidence.”

We fully agree with the counsel as to the real issue involved in the case, which is, as we understand them, does the evidence in the case and the legitimate inferences to be drawn from it, sustain the finding of the jury, or is it' wholly insufficient to uphold such finding ?

If it does sustain the finding then the court did not err in refusing the instruction, and on the other hand, if it is insufficient to sustain the finding the judgment should be absolutely reversed.

This, then, leads to an investigation as to what the evidence really was, on which the jury found their verdict.

It is not denied by appellant that appellee’s land was burned over and materially injured in value, and her hay, straw and fence posts destroyed by fire that was started in some place, in some manner; but it is denied that the fire started on appellant’s right of way, or that weeds, dry grass or other combustible material had accumulated thereon.

It is contended by appellant that the locomotive of defendant that is claimed to have set the fire was fully equipped with the best spark arresters known, and that it was in good order and condition, hence the fire could not have been caused by it.

It appears from the evidence that appellee’s farm to which the injury was done lies north of appellant’s right of way, and that between the farm and right of way there is a narrow strip of land belonging to a third party, and that this strip was, at the time of the fire, covered with dry weeds and grass.

Appellee did not reside on the land and the testimony on her part seems to have come from disinterested witnesses, and one of them, Perry Warner, testified, as shown by the abstract, as follows:

“ I live about a mile from'the land by the shortest road. I remember the occasion of the fire — perhaps an hour before it broke out I was on the Vincennes road just two and one-half miles north of the B. & O. S. W. E. E. When the mail train passed me, I was about a half mile from the road going east, and a mile west of the land in question. Before the train passed the right of way was clear. After the train passed I saw volumes of smoke arising at different places between the so-called Cunningham farm and the hill. As I went further east I saw a second volume of smoke and flames crossing over the meadow of Maggie Irwin. The ground is perfectly level. When I first saw the smoke I was in a position where a strip of timber might have clouded my vision for a short time, but when 1 went further east and came to the school house, I could see where the fire was. I am a practical surveyor and I know the land in question.”

Another witness, Lucien Storment, testified as follows:

“ I know the land in question. I live about two and one-half miles from it. I remember the occasion of the fire. It was some time about the first of October. I was driving home from Salem and I saw the fire when out in that neighborhood. I was about the Phelps school house when I saw the fire, possibly saw the smoke before, but could not tell where it was until I got to the school house, which is about one-half mile away. The land is level there and you can tell. There was a train passed just before I saw the fire, but don’t remember in which direction it was going. I think it was a passenger train. After it passed Isaw two fires break out, one on Mrs. Irwin’s land and the other a half mile west. The wind was south and Mrs. Irwin’s land is south. Her land is about 150 yards from the railroad. There is a strip between her land and the railroad right of way. I was along the road almost every day for a short time before the fire. The road runs along the west line of plaintiff’s land • It runs north and south across the railroad. 1 don’t remember exactly how the right of way was, but it was covered with grass, and a'll grass was dry at that time. I suppose it was the right of wajL It was very dry at that time and had been for quite a time.”

There was evidence of other witnesses to the same effect, and there was also evidence that the fire burned the dry-grass and weeds on appellant’s right of way, and north on appellee’s land.

Appellee’s evidence shows that about three months before the fire the right of way was cleared off and the weeds and grass burned, but there was no evidence tending to show that the fire was set in any other way than from appellant’s locomotive.

We are of the opinion there was abundance of evidence tending to show that the fire was set on appellant’s right of way by appellant’s locomotive, and that the court did not err in refusing to take the case from the jury.

It is also urged that the court erred in giving appellee’s second and fourth instructions. The second because there was no evidence on which to base it. The instruction told the jury that if they believed from the evidence that the defendant, by its then servants, operated one of its locomotive engines along its said track, near plaintiff’s said land, in such a careless and negligent manner that divers sparks and brands of fire escaped from said engine to and upon other lands adjacent thereto, whereby the same was communicated to plaintiff’s said land, and said meadow and blue grass was injured or destroyed and said hay and straw burned as charged in plaintiff’s declaration, then you should find the defendant guilty.”

We are of the opinion there was sufficient evidence before the jury to warrant the instruction.

The fourth instruction told the jury that if they found for the plaintiff, the measure of damages to the meadow and grass land would be the difference between the value of the land before and after the fire; and the measure of damages to the hay and straw was the fair cash value of whatever was shown to be destroyed, if any. We can discover no fault in the instruction.

Complaint is also made that the court refused to give to the jury some of appellant’s instructions.

Appellant asked the court to give fifteen instructions and eleven of them were given and the balance refused, and if some of those refused had correctly stated the law applicable to the case, which they do not, the refusal of them would be no ground for reversing the judgment,as the jury were well instructed in those given.

It is also insisted that the damages assessed by the jury are excessive.

Forty witnesses were sworn and examined in the case, many of them as to the amount of damages appellee had suffered on account of the fire.

It is not strange that the witnesses did not agree as to the amount of damage done the land, and we can not say that the jury were not justified by the evidence in finding the amount they did.

It is also urged as a ground for reversing the judgment, that there was a variance between appellee’s declaration and the evidence as to the description of appellee’s land and other property claimed to have been injured or destroyed.

That there was a variance is obvious, but appellant did not object to the evidence for that reason; if it had done so, the declaration could easily have been amended and the objection obviated.

The question of variance can not be raised for the first time in this court. Lynch v. Eimer, 24 Ill. App. 185; Miner v. Reed, 25 Ill. App. 175; Rozet v. Harvey, 26 Ill. App. 558.

We find no material error in the record and the judgment is affirmed.


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    Wm. H. Brown v. Mary E. Bear et al.
    1. Chancery Practice — Sworn Answers. — The rule in chancery is, that a sworn answer, in so far as it is responsive to the bill and fairly meets the allegations of the complainant, must be received as true, unless it is disproved by evidence amounting to the testimony of two witnesses.
    2. Judgments — Against an Ancestor not Binding upon the Heir in a Proceeding to Sell Beal Estate to Pay Debts — Administration of Estates. — Although a judgment may be binding upon the personal assets of an estate, it is of no avail against the heir in a proceeding to sell the land for the payment of debts. The heir may, notwithstanding the judgment, urge any infirmity in the original indebtedness.
    Creditor’s Bill. — Appeal from the Circuit Court of Clay County; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the February term, 1901.
    Affirmed.
    Opinion filed September 4, 1901.
    H. R. Boyles and R. S. C. Reaugh, attorneys for appellant.
    B. D. Monroe, attorney for appellees.
   Mr. Justice Bigelow

delivered the opinion of the court.

This is a creditor’s bill, brought by appellant against appellees, to compel payment of a judgment in favor of appellant, rendered by the Probate Court of Clay County against the estate of Oliver Bear, deceased. Appellee Joseph Bear is a brother, and the other appellees are the widow and children of the deceased.

On the 19th of September, 1887, appellant and Oliver Bear became sureties for one Wm. E. Beaird on a promissory note for the sum of $500, payable to Eversman, Wood and Embring, bankers, at Effingham, Illinois. Beaird, the principal on the note, defaulted in the payment of it, and appellant was compelled to pay the entire note. On the 22d of December, 1887, appellant paid one-half of the note, and on January 6,1888, he paid the balance — being $275.44, which, he alleges in his bill, is the share for which Oliver Bear became liable as co-surety with appellant. At the time Oliver Bear signed the note as surety with appellant, he was the owner in fee of 207 acres of land, exclusive of a sixty-three acre tract which wTas0his homestead; he was also the owner of a remainder in fee of fifty-seven acres, in which there was a life estate in one Henry Boorman. On the 10th of October, 1887, Oliver Bear and appellee Mary E., his wife, conveyed all of his real estate, except the homestead, to appellee Joseph Bear. Oliver Bear died on the 23d of January, 1892. At the September term, 1896, of the County Court of Clay County, appellant recovered a judgment against the estate of Oliver Bear, deceased, for the sum of $378.75. The bill charges that the conveyance of the real estate from Oliver Bear and wife to Joseph Bear, was a mere sham to hinder and delay the creditors of Oliver from collecting their claims against him, and that Joseph Bear was a party to the fraud. It is further alleged in the bill that Joseph Bear, for a consideration of $1,800, conveyed 120 acres of land to one Bailus Carter, and that the balance of the lands had been conveyed back to the heirs of Oliver Bear, subject to a life estate in Mary E. Bear, but the deed had not been placed on record. Appellee Joseph Bear was the administrator of Oliver’s estate.

The prayer of the bill is, that out of the proceeds of the sale of the real estate by Joseph Bear to Bailus Carter, that Joseph be required to pay the judgment, and that the conveyances placing the title to the lands in the widow and heirs of Oliver Bear be declared null and void, and the judgment for $378.75 be declared a lien on the premises, and that enough of the lands be sold to satisfy the judgment.

The bill was filed on March 1, 1900. The answers of appellees Mary E. Bear and Joseph Bear were under oath, as required by the bill. A guardian ad litem was appointed for the minor defendants. The answer admits the recovery of the judgment as averred in the bill, but charges that the same is of no force and effect as against the estate; denies the fraud charged in the bill, or that the conveyance from Oliver to Joseph was made with the purpose of defrauding the creditors of Oliver Bear; denies that appellees had any knowledge of the claimed indebtedness of Oliver to appellant; admits.the conveyance of the 120 acres of land to Bailus Carter, and charges the lands were not the property of Oliver at the time of said conveyance, or that he had any right or title to said lands; charges that the deed from Oliver to Joseph was made to secure a debt of $3,000 due from the former to the latter; denies that Joseph Bear had any personal property in his hands w'hich was the property of the estate of Oliver, and charges the truth to be that Joseph, as administrator, had fully accounted for all personal property of said estate. In addition to this answer all of the defendants filed a plea of the statute of limitations, alleging that whatever cause of action appellant may have for the relief sought by his bill, accrued more than five years before the filing of the bill. Replication was filed to the answer, and testimony was taken in open court, with the result that appellant’s bill was dismissed at his costs.

Many questions are discussed in the briefs, but it will be unnecessary to discuss any matters of law raised, for the reason we are of opinion the evidence failed entirely to make out a case authorizing the relief prayed for.

As to the 120 acres which were deeded to Bailus Carter, the evidence of Joseph Bear is, that this tract of land was not the property of Oliver at all; that it was included in the deed from Oliver to Joseph by mistake, and that this land was a part of the property which Oliver and Joseph inherited as tenants in common from their father, and before the deed was made from Oliver to Joseph it had already been deeded to the latter in the division of their father’s estate. His evidence further discloses the fact, that for some years prior to the deed of October 10, 1887, Joseph Bear paid the taxes on this land. The testimony of Mary E. Bear, that her husband, Oliver Bear, claimed the land before it was deeded in October, 1887, we do not regard as of much significance, in the face of the fact that the answer denied the title of Oliver Bear to this 120 acres of land, and appellant did not attempt to disprove the title from the father of Oliver and Joseph. There is a clear preponderance of the evidence that this land was the property of Joseph Bear, unaffected by the conveyance of October 10,1887. If, however, such is not the true scope of the evidence, the most favorable view we are able to take of the matter is, that there, was a conflict of evidence. We are unable to say that the court erred in its finding on this branch of the case, so that, whatever consideration Joseph Bear received for the conveyance to Bailus Carter was in fact his own property and not assets of the estate of Oliver Bear.

As to the balance of the land, 144 acres, which was included in the deed from. Oliver to Joseph, the evidence shows, and such is the substance of the sworn answer of Joseph Bear, that Oliver was indebted to him on two promissory notes made on the 18th of September, 1886, and on the 1st of October, 1886, respectively, for the sum of $1,500 each, and that a judgment by confession had been entered upon these notes, for the sum of $3,493, on the 3d of October, 1887. The answer of Joseph Bear is, that the deed of October 10, 1887, was executed to secure this indebtedness.

The testimony of Joseph is that Oliver Bear settled and paid this indebtedness before he died; that by a deed of April 1, 1892, Joseph had reconveyed this 144-acre tract to the widow and children of Oliver Bear. The evidence further tends to show that the deed of October 10th, instead of being a conveyance for security, was in fact a purchase by Joseph from Oliver, for a consideration of $2,500; that Joseph was the administrator of the estate of Oliver Bear, deceased, and that he never inventoried this asset due from himself to the estate. But the evidence to support this theory is scarcely more than a conjecture.

The sworn answer of Joseph Bear is, that the deed was made as security to him for his judgment; and the rule in chancery is that a sworn answer, in so far as it is responsive to the bill and fairly meets the allegations of the complainant, must be received as true, unless it is disproved by evidence amounting to the testimony of two witnesses. (Stouffer v. Machem, 16 Ill. 553; Marple v. Scott, 41 Ill. 50.) The record presented is far from satisfying this rule.

But the evidence shows also that Joseph Bear, as administrator of the estate of Oliver, neglected to inventory this land as he ought, after the judgment had been satisfied, and after he had no further interest in the land by way of security. The delinquency of the administrator may be admitted in this respect; but how is that matter an answer to the plea of the statute of limitations set up by the heirs?

On January 6, 1888, appellant knew he had a cause of action against Oliver Bear, and after his death appellant knew that this cause of action was a claim against the estate; and yet he never filed his claim against the estate until the August term, 1896, nearly nine years after the cause of action accrued.

Though the judgment held by appellant may be binding on the personal assets of the estate, it is of no avail against the heir in proceeding to sell the land for the payment of debts. The heir may, notwithstanding the judgment, urge any infirmity in the original indebtedness. Stone v. Wood, 16 Ill. 177; Hopkins v. McCann, 19 Ill. 113; Marshall v. Rose, 86 Ill. 374; Gibson v. Gibson, 82 Ill. 61.

That the bar of the statute of limitations fell in five years from the date appellant paid the judgment does not seem to be questioned; or, if appellant is within the saving provisions of section 19, chapter 83, Hurd’s R. S., 1899, the evidence fails to show such fact.

Indeed appellant’s argument substantially admits that as to the 144-acre tract, the plea of the statute of limitations is a complete defense.

There being no error in the record the decree of the Circuit Court is affirmed.


author: Opinion per Curiam.

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    C. O. Aden v. Road District No. 3.
    1. Freehold — Eminent Domain — Proceedings to Lay Out Roads— Easements. — The interest acquired by the exercise of eminent domain in lands taken for highways, streets and alleys and other like purposes, is in the nature of a perpetual easement and such an easement is a freehold.
    3. Same — Order of the Commissioners Laying Out a Road Involves a Freehold. — A valid order of the commissioners of highways laying out a highway will deprive the owner of the land over which it passes of his freehold therein.
    3. Appellate Court Practice — Consent of Parties Can Not Confer Jurisdiction. — Where parties to the record appear to have overlooked the fact that a freehold is involved in the controversy and no motion to dismiss the appeal has been made, this court is without jurisdiction to adjudicate upon this matter, and the objection will be taken sua sponte.

      Appeal, from the Circuit Court of Union County; the Hon. Joseph P. Robarts, Judge, presiding. Heard in this court at the February term, 1901.
    Dismissed.
    Opinion filed September 4, 1901.
    Taylor Dodd, attorney for appellant.
    Hileman & Sessions, attorneys for appellee.
   Opinion per Curiam.

F. M. Karraker petitioned to commissioners of highways of Road District No. 3 in Union county, for a private road, for private and public use, over the lands of appellant; the commissioners ordered the road laid out in accordance with the prayer of the petition. An appeal was taken by appellant to the Circuit Court of the county, where the acts of the commissioners were confirmed and approved by the court. An appeal from the order of the commissioners to the Circuit Court was taken in conformity with section 232, chapter 121, Hurd’s R. S. 1899, and the proceeding in this court is an appeal from the judgment of the trial court, questioning the legality of the order laying out the road.

It was held by the Supreme Court in Chaplin v. Commissioners of Highways, 126 Ill. 264, that the interest acquired by the exercise of eminent domain in lands taken for railroads, highways, streets and alleys, or other like purposes, is in the nature of a perpetual easement, and that such an easement is a freehold. If the order of the commissioners of highways in laying out the road is valid, it is manifest that appellant will lose his freehold in the property sought to be taken.

In the opinion of the lower court, the action of the commissioners in laying out the road was lawful; the court directed them to open the road for travel.

Where the necessary result of the judgment or decree is that one party gains and the other loses a freehold estate, the decisions of the Supreme Court have been uniform that a freehold is involved, and that the appeal must be taken to that court. C., B. & Q. R. R. Co. v. Watson, 105 Ill. 217; Sanford v. Kane, 127 Ill. 591; City of Alton v. Fishback, 81 Ill. App. 86.

Both parties to the record seem, to have overlooked the fact that we are without jurisdiction of the case, as no motion is made by appellee to dismiss the appeal. Where it is plain that this court is without jurisdiction, the objection will be taken sua sponte.

The appeal is dismissed and leave is granted appellant to withdraw the record and abstracts from the files in case he so desires.

It may be out of place to remark that the record fails to show any exception taken to the judgment and preserved in the bill of exceptions. Dismissed.


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    Olney Loan and B. Association v. H. C. Rush et al.
    1. Building and Loan Associations — Release of Mortgages by Officers Without Authority of Law. — A release of a mortgage given by a borrower to a building and loan association, executed by its officers fraudulently and without authority to do so, is not binding upon the association.
    2. Corporations — Execution of Deeds By. — The technical mode of executing the deed of a corporation, is for the proper officer to sign the corporate name to it, adding his signature and official title as agent by whom the act is done and affixing the corporate seal, which should be affixed by a duly authorized officer or agent.
    Bill of Foreclosure. — Appeal from the Circuit Court of Richland County; the Hon. Enoch E. Newlin, Judge, presiding. Heard in this court at the August term, 1901.
    Reversed and remanded with directions.
    Opinion filed September 4, 1901.
    John Lynch, Jr., attorney for appellant.
    H. G. Morris, attorney for appellees.
   Mr. Justice Bigelow

delivered the opinion of the court.

Appellant is a corporation organized and doing business under the laws of this State.

On the 16th of May, 1896, Harry C. Rush borrowed of appellant $600, and on that date Rush (his wife, Anna, joining with him) executed their promissory note to appellant for said sum, payable eight years after date, with interest as stated in the note, “ at the rate of seven-twelfths of one per cent per month, payable monthly, also all monthly dues and fines on six shares of the capital stock of said association.”

On the same date of the note and to secure it, Rush and wife mortgaged directly to appellant lot 41 of 0. S. & 0. Mace’s first addition to OIney; and on that date, Harry C. Rush became a stockholder in the association, taking and carrying six shares of the stock.

On April 27, 1897, Rush sold and assigned his stock to appellee Charles Quick, and at the same time Rush and wife sold and conveyed the mortgaged property to Quick, who assumed to pay the mortgage debt, and thereafter, until April 15, 1899, Quick paid the dues,, interest and premium as provided by the by-laws of the association. On that date and for years prior thereto, Charles S. Mace was the secretary, and for a portion of the time was the legal solicitor of the association, and while acting as such on the last named date. Quick contracted with Mace to sell a farm ■which he owned to Mace, for $4,000, and Mace gave his two notes for $1,500 each, due in five and ten years, respectively, and also gave Quick five shares of stock in the Linden Lawn Farming Company, valued in the trade at $500, and for the remaining $500, Mace drew his .check to Quick on the First National Bank of OIney and handed it to Quick, who immediately handed it back to Mace. Quick gave Mace a bond for a deed of the farm.

When the check was drawn Mace had to his credit in the bank $154.15, and the assistant cashier of the bank testified that he presumed the check would have been paid if it had been presented, but there was no special arrangement between Mace and the bank whereby Mace’s checks were cashed.

When Quick handed the check back to Mace, Mace immediately went to the court house and released, in his own name, the mortgage on the record, and after stamping the , mortgage “ Paid,” handed it to Quick. The note secured by the mortgage was not canceled nor delivered to Quick, but remained in possession of appellant and was carried on its books as an asset of the association.

Early in March, 1899, Mace was discovered to be a defaulter to the loan association of over $50,000 and committed suicide.

After the death of Mace, Quick made an arrangement with the administrator of Mace’s estate, whereby he surrendered the two $1,500 notes and turned back to the estate the five shares of stock in the Linden Lawn Farming Company, and Mace’s estate surrendered to Quick, the bond for a deed of the farm, given to Mace; Quick however, did not return to the estate the $500, or any part of it.

This suit was brought by appellant to foreclose the mortgage, the bill, beside the usual allegations for such purpose, charging the invalidity of the release by reason of fraud, and because Mace had no power from the board of directors of the association to execute it. Quick answered the bill, denying the charges of fraud and set up the transaction between himself and Mace, insisting that Mace had authority to execute the release on the ground that for many years he had executed releases in the same manner the release in this case was made, without being forbidden by the board of directors of the association. Replication was filed to the answer, and the cause was heard on oral testimony in open court, and at the conclusion of the evidence, Rush and wife were dismissed out of the case, and the court dismissed the bill for want of equity, and the record of the case is brought here on the appeal of the loan and building association.

The errors assigned bring for review the order of the court in dismissing the bill.

As to the contention of appellant that the release was conceived in fraud, the principal, if not the only party who conceived and attempted to carry out the fraud being dead, we prefer to let that matter rest, without expressing any opinion concerning it further than may become necessary in the proper determination of the case.

Appellee does not contend that appellant actually got the money due to it on the mortgage, but rests his entire defense upon that portion of the transaction of the sale by appellee of his farm, and the purchase of it by Mace, wherein Mace drew his check on the bank for $500 and handed it to appellee who at once handed it back to Mace, thus making the delivery and redelix'ery but one transaction, xvhich amounted to no delivery at all to Quick. This conclusion is fully sustained by appellee himself, who testified in chief as follows:

“Q. Mow go on and state the transaction of paying off this mortgage. A. When we closed the deal Mix Mace xvrote out a check for $500; I said, I don’t want the money, I xvant to pay off the mortgage on the Rush property, and shoved the check back and he xvent over to the court "house and canceled the record and came back and said he had released the mortgage; and I have got it in my hand or pocket noxv.”

It seems too clear for argument that no actual or claimed potential money was transferred from Mace to Quick, and if there xvas none how could any have passed from Quick to Mace. The transaction in its nakedness xvas a sale of Quick’s farm to Mace, and a part of the purchase price of the farm was, that Mace should pay Quick’s debt to appellant, which he never did pay; hoxv then can any effect be given to the so-called release, since it is not claimed to be based on any other consideration ?

The release which Mace made on the margin of the record of the mortgage is as follows:

“Tor and in consideration of full payment to the OIney Loan and Building Association of the amount secured by the annexed mortgage, I hereby release and quit-claim to Charles Quick, by whom said payment xvas made, the premises included in said mortgage, and forever cancel and release and discharge the same of record.

Dated this 18th day of April, A. D. 1899.”

(Signed) “ C. S. Mace,

Solicitor OIney Loan and Building Association.”

It is evident that this is not a release by appellant and it does not pretend to be.

“ The technical mode of executing the deed of a corporation is for the proper officer to sign the corporate name, adding his signature and official title as agent by whom the act is done, affixing the corporate seal. * * It is essential that the deed .on its face should purport to be executed by the corporation, and that its seal should in fact be affixed by a duly authorized officer or agent.” Jones on Conveyancing, Vol. 2, Sec. 1048.

We are not to be understood as holding that if appellant held out to its patrons that Mace, either as its secretary or solicitor, was authorized to receive money in payment of mortgages, that it would not be bound by his acts in receiving it, even if after receiving it he embezzled the fund; but that is not this case, because appellee never had the money to pay to Mace, nor did he attempt to get it as he should have done to have made himself safe, before delivering to Mace his bond for a deed of his farm. Appellant had nothing to do with the deal between appellee and Mace, and appellee knew it and was bound to know the law concerning it,, and if he did not, the loss, if any he has suffered, must be attributed to his own negligence.

It might have been possible, that if Mace had presented the check to the bank with direction to place the amount to the credit of appellant on the books of the bank, that the directions would have been complied with, and the burden of the fraud placed upon the bank, where it properly belonged, if it was in the habit of allowing its bankrupt customers to overdraw their accounts to such an extent that this check would have overdrawn Mace’s account.

Notwithstanding the assistant cashier of the bank testified that, had the check been presented, it would “probably ” have been paid, yet, in the absence of any certainty about the matter, courts ought not to rely on conjectural opinions, that what ought not to have been done and was not done, would have been done had an opportunity been, given for the doing of it.

Of course we assume (and the evidence warrants the-assumption) that Mace was a bankrupt at the time he drew his check and if it be said that the bank did not- know it, the reply is, that before its representative can be believed in saying that the bank would probably have cashed the check had it been presented, it must appear that Mace was good for his overdraft, and there is no pretense that he was.

We are not to be understood as holding that the check would have been a payment of the note, if Mace’s account at the bank had shown that he had to his credit funds more than sufficient to have paid the check.

The claim by appellee, that appellant is estopped by the release from foreclosing its mortgage, has no foundation on which to rest. There is no innocent purchaser for value of the mortgaged property, without notice of the mortgage in this case. Mor did appellant know of the trade and arrangement between appellee and Mace by which 'the _ mortgage was attempted to be released until long after it was done. ,

As we view the case, it is unnecessary to advert to the settlement that appellee made with the representatives of Mace’s estate, whereby he got back his farm by surrendering Mace’s notes, and the stock he received from Mace, in the Linden Lawn Farm Company, while he did not even offer to pay back the money that he claims to have paid ■to appellant to satisfy the Rush note and mortgage, probably for the reason that he did not believe then Mace had paid him any money on the purchase of the farm, and Ave thing he was fully justified in that belief.

Appellee, in attempting to giAre a reason why he did not take up the Rush note when he claims to have paid it,, testified as folloAvs:

“ The Court: I want to ask Mr. Quick a question or two; I understand you to say that Avhen you got your mortgage back you did not get the note ? ”

A. Mo, sir.”

“Q. He told you he wanted to keep the note and use it as collateral % A. Yes. He says : ‘I Avant to keep the note for a few days. I might AArant it for collateral.’ I says: ‘ The note is mine, you have no right to it;’ and he started off in a hurry, as he always Avould and says: ‘ In a few days you come in and I will give you the note.’ 1 went out and supposed that he was honest, and believed he would.”

“ Q. Did you tell him he could have the note to use as collateral? A. I went out and never said another word.”

From this evidence it is quite clear that appellee consented that Mace should retain and hold the note to be used by him, Mace, as collateral security for his own indebtedness, and accordingly, as Mace knew his check would not be paid (as it never has been), he concluded it was quite unnecessary to go through the form of taking the note, as secretary of appellant, from its office, and formally delivering it to appellee for the mere purpose of having it redelivered to him as secretary by Mace in his own private capacity, therefore he left it in the possession of the association, where the check must have been, according to appellee’s theory of the transaction, as collateral security for the payment of the check.

We do not think it necessary, in order to sustain appellant’s right to foreclose the mortgage, to adopt the foregoing reasoning, but the facts that lead to the conclusion reached are in the record and are furnished by appellee, and since he consented to the use of the note by Mace as collateral security for Mace’s debts generally, we know of no way in which he could have used it, that would have done less injury to appellee than the way indicated.

The decree, dismissing the bill as to appellees Quick and his wife, is reversed, and the cause remanded for further proceedings not inconsistent with the views herein expressed. Reversed and remanded.