text:
    George S. Dobbins v. Frank M. Wilson et al.

      Filed at Ottawa June 16, 1883.

    1. Notice—to real party in interest, sufficient. Where a party purchases a judgment, and has the same assigned to another for the use of the assignor, he controlling the same, notice by the judgment debtor of any fact to the real owner of the judgment alone is sufficient, and will bind the nominal assignee. J

    2. Judgment lien—effect of subsequent conveycmce by the debtor. A conveyance of land by a judgment debtor to another, for a valuable consideration, after the judgment has become a lien thereon, and pending an appeal, will not defeat the lien of the judgment. In such case the grantee takes title subject to the lien of the judgment, and a sale and deed made on execution under such judgment will pass the title, unaffected by the conveyance.
    3. Purchaser—prior incumbrance—whether to be satisfied out of other property of his grantor. If a purchaser of land from one against whom there is a judgment, desires to have other lands of his grantor first levied upon and sold to satisfy the judgment, it is his duty to give notice of his interest in the property bought by him, and to point out such other property, that the creditor may have it taken in execution.

      i. Same—remedy when land purchased of debtor is levied on and sold instead of other lands of debtor. Where a purchaser of land from a judgment debtor having other land amply sufficient to satisfy the judgment, gives notice to the judgment creditor of his rights, and requests him to levy upon the remaining lands of his grantor, and the creditor has the purchaser’s land levied on first, and sold, the purchaser should apply to the court from which the execution issued, in apt time, to have the levy and sale set aside. His remedy in sucli case is complete at law, by motion, and it is no sufficient excuse for neglecting such remedy that the purchaser was totally blind from his youth.
    5. Laches—as cm obstacle to obtaining relief. It is a familiar principle that a court of equity will only lend its aid to those who seek it in apt time, taking all things into consideration. In this ease bill was filed to set aside an execution sale of land a day before the expiration of fifteen months from the sale, based on a ground available by motion in the court from which the execution issued, and it was held, that after such delay no relief could be had.
    6. Jtjdiciaii saie—inadequacy of price. Inadequacy of price at a sale under execution, where the privilege of redemption is given, is no ground for setting aside the sale in equity.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.
    Messrs. Beam & Cook, for the appellant:
    Gross inadequacy of consideration, taken in connection with other circumstances tending to impeach the fairness of the transaction, is entitled to great weight in determining the equities of parties. Dutcher v. Leake, 44 Ill. 398; Dickerman v. Burgess, 20 id. 266.
    A court of equity will compel a judgment creditor to exhaust all the property held by his debtor. before resorting to property purchased of the debtor, but subject to the lien of the judgment. Where a judgment creditor may collect from property that his debtor has not conveyed, but refuses or fails to do so, he may be enjoined from proceeding against the grantee of his debtor. Hurd v. Eaton et al. 28 Ill. 122; Wise v. Shepherd, 13 id. 41; Marshall v. Moore, 36 id. 321; Iglehart v. Crane, 42 id. 261; Baird v. Jackson, 98 id. 78.
    Mr. Edward J. Judd, for the appellees:
    Complainant had a complete remedy at law by applying to the United States Court, out of which the process issued, and by not making the same is guilty of laches, from the results of which equity will not relieve him. Baird v. Fore

      man, Breese, 303; Chittenden v. Rogers, 42 Ill. 95; Pitts v. Magee, 24 id. 613; LaSalle v. Moore, 1 Blackf. 226; Stewart v. Marshall, 4 Greene, (Iowa,) 75; Cunningham v. Cassidy, 17 N. Y. 276; Hapgood v. Goddard, 26 Vt. 401; Noyes v. True, 23 Ill. 503; Raymond v. Paul, 21 Wis. 535.
    Mere inadequacy of price is not sufficient to vitiate a forced sale. Skillman v. Holcomb, 1 Beasley, 131; Watt v. Galliard, 67 Ill. 503.
    Beickwald being an innocent purchaser, is not chargeable with any error in the judicial proceedings. Hay v. Baugh, 77 Ill. 500; Warren v. Iscarian Community, 16 id. 114; Martin v. Jackson, 27 Pa. St. 504; Stuyvesant v. Hall, 2 Barb. Ch. 151.
    The equitable right to compel a creditor who has a lien on two funds to resort to the one on which he alone has a lien, is not applicable to the case at bar, because it is not a duty of the creditor to do so. He may pursue his remedies as he may see fit. It is not a right that accrues to complainant by operation of law, but an equity of which he may avail himself, at his own cost, if he does not thereby impair the security of the creditor having both liens; and a failure to assert this right in apt time is a waiver of the same, particularly where ’ the rights of an innocent purchaser have intervened. 1 Story’s Eq. Jur. sec. 633; Hurd v. Eaton, 28 Ill. 122; Sweet v. Redhead; 76 id. 377; 2 Leading Cases in Equity, 319-321.
    Mr. H. H. C. Miller, and Mr. Yan H. Higgins, also for the appellees.
   Mr. Justice Scott

delivered the opinion of the Court:

Both parties claim the title to the premises in controversy that was in Thomas S. Dobbins, as will appear from the facts to be hereafter stated. In May, 1874, Clark W. Upton, assignee, recovered a judgment in the United States District Court against Richard Gregg and Thomas S. Dobbins. That judgment, it seems, was afterward affirmed in the Supreme Court of the United States. At an execution sale under that judgment Frank M. Wilson and George Wilson purchased the property, and received from the marshal making the sale the usual certificate of purchase, which would entitle them to a deed in case the property was not redeemed. That certificate they afterwards assigned to Van H. Higgins, and after the expiration of fifteen months from the date of the sale, the property not having been redeemed, the marshal made and delivered Higgins a deed for the property. Subsequently Higgins conveyed the property to his co-defendant, Henry G. Eeichwald. It is the title so acquired that defendants insist is the better title, and should prevail.

On the 15th day of April, 1875, Thomas S. Dobbins conveyed the property to his son George Spurk Dobbins, and the grantee immediately took possession of the premises, and has since held possession by himself and his tenants. The sum stated as the consideration for the making of the deed is $13,000. It is proven, beyond all doubt, at that time and prior thereto Thomas S. Dobbins was justly indebted to the grantee in a sum in excess of the consideration stated in the deed. At the time of the making of the deed the suit of Upton against Gregg and Dobbins was pending, on appeal, in the Supreme Court of the United States, and was not affirmed in that court until April, 1877. The original bill in this case was brought by George Spurk Dobbins, against the two Wilsons, Van H. Higgins and Jesse Hildrup. It was filed one day before the expiration of fifteen months from the date of the marshal’s sale of -the property. By that bill complainant asked for an injunction to restrain the marshal from making a deed to the purchasers or their assignees, and the sale to the Wilsons be set aside. No injunction was awarded, and after the expiration of the fifteen months the marshal made Higgins a deed for the property. An-amended bill was then filed by complainant, by leave of court, making Reichwald, the purchaser from Higgins, a party, and also making the National Life Insurance Company a party, as having some interest in the subject matter of the litigation. Answers were filed by defendants, and the cause was heard upon bill, answers and replications, and proofs taken. The court dismissed the bill for want of equity, and complainant brings the case to this court on appeal.

The evidence is quite conclusive Higgins was the real owner of the Upton judgment against Gregg and Dobbins long before the property was sold by the marshal on the execution issued on that judgment. The assignment of the judgment to the Wilsons was made in the interest and at the request of Higgins. He had the control.of the judgment, and whatever was done by the Wilsons was done for the benefit of Higgins.

One ground of relief insisted upon is, that Higgins, being the owner, and having the control of the Upton judgment, released the property in controversy from the lien of the judgment. On this point in the case the evidence is flatly contradictory. Dobbins states most positively it was the agreement the property he had conveyed to his son, the complainant in this bill, should be, and was, released from the lien of the Upton judgment, and Higgins is equally positive no such agreement was ever made. The written agreement of March 8, 1877, is ambiguous. Dobbins states it was made to release the lien of the Upton judgment, and that the judgment mentioned therein as the “Higgins” judgment, was, in fact, the Upton judgment. On the other hand, Higgins says he did not own the Upton judgment at the time of the making of that agreement, and that the “Higgins” judgment mentioned therein was a judgment in favor of Henry C. Higgins and others against Dobbins and others, which he had previously bought, and had the same assigned to him. But Dobbins says that he was not negotiating about that judgment, inasmuch as he expected the railroad company with ■which he was and had been connected would pay it,—that he was talking about the Upton judgment, and that it is the same judgment mentioned in the agreement. So unsatisfactory is the testimony on this branch of the case, it can hardly be said the evidence so preponderates in favor of complainant that it would warrant a decree in his favor on that ground. It is most singular the parties did not make their written agreement in this respect more definite and certain. So far as this court can know, these witnesses are of equal respectability, and it can not say the testimony of one preponderates over that of the other. No witnesses other than Higgins and Thomas S. Dobbins testified touching this point in the case, and there are few, if any, extrinsic facts that tend to strengthen the testimony of either party. It may, therefore, be fairly said the testimony as to this fact in the case is equally balanced, and hence it will not warrant a decree for complainant.

But the point which seems to be most confidently relied on ■for relief is, that at the time the judgment in favor of Upton was rendered, Dobbins, the judgment debtor, had other real property than thg,t which he afterwards conveyed to complainant, upon which the judgment was a lien; that it was many times the value of the amount of the judgment, and that before the levy and sale on the execution issued on the judgment, Dobbins, the debtor, informed Higgins and the other defendants interested in the execution that he (Dobbins) had sold the property in controversy to his son, for value, and that he then owned other unincumbered real property subject to the .lien of the judgment, and requested defendants to cause such other property to be first levied on and sold before resorting to the land sold to complainant, but that they refused to do so. It will be seen, on looking into the record, the evidence on this branch of the case is also contradictory. It may be conceded that notice to Higgins, if any w'as given, would be sufficient, whether the Wilsons had notice or not. It is very clear the Wilsons were simply acting for Higgins, and whatever would affect Higgins with notice would be all the notice required to be given. The execution debtor is positive he gave notice to Higgins that he had other real property that was unincumbered and was subject to the lien of the judgment. Higgins, however, denies that Dobbins gave him any description of any other lands upon which he could cause the execution to be levied, but that he refused to disclose the description of any other lands. There is, and can be, no doubt the property in controversy was subject to the lien of the Upton judgment. It was not conveyed to complainant until long after the judgment became a lien on the grantor’s property. It is unnecessary to say that a purchaser acquiring title to land after judgment against his grantor, will take it subject to such lien. It will be presumed complainant took title to the lots in controversy knowing the same were subject to the lien of the Upton judgment. If, then, the judgment debtor had other property that was unincumbered and subject to the lien of the judgment, it was the duty of the purchaser to point out such property, that the creditor might seize it. That was not done, either by complainant or any one on his behalf. On this subject the law is as stated in Hosmer v. Campbell, 98 Ill. 572, where it is said the law makes it the duty of a subsequent purchaser of mortgaged property to give actual notice of his interests to the prior mortgagee, if he intends to insist the property shall be sold in the inverse order of alienation. He will not be permitted to remain silent until the sale has been made, and then invoke the aid of a court of equity to undo what he might have prevented by giving timely notice of his interest in the premises.

But if it be conceded notice was given to Higgins that the debtor had other property subject to the lien of the judgment controlled by him, and that he refused to levy on it, but chose to levy on complainant’s property first, complainant ought to

have applied to the court out of which the execution issued, to set aside the levy and sale, if a sale had been made. In that court he had a full and complete remedy. Neglecting the remedy the law afforded for speedy redress, he can not invoke the aid of a court of equity. Some excuse is shown by the evidence for the want of personal diligence on the part of complainant. He is “totally blind, and has been since he was fifteen years old; ” but he could have procured others to act for him, and that he should have done. As was said in Hay v. Baugh, 77. Ill. 500, a party failing to avail of the remedy by motion to set aside the alleged wrongful sale of his property, “should not be permitted, after the time for a redemption expires, to set it aside, unless he can show a strong case of fraud, wrong or oppression. A defendant has no right to lie by and permit the purchaser to obtain a deed, then have the action of the officer abrogated, thus delaying the creditor in the collection of his debt, when, by applying to one of the two terms of the circuit court occurring after the sale' and before the right of redemption expires, he could obtain complete justice.” Complainant has shown no sufficient reason why he did not apply to the court out of which the execution issued, to have the action of the marshal making the levy and sale set aside, or if, for any reason, it was desirable or necessary to proceed by bill, why he did not bring his bill sooner. He has slept too long on his rights, if he had any, to invoke the aid of a court of equity. It is a familiar prineiple that equity will only lend its aid to those that seek it in apt time, all things considered. That has not been done in this case.

Some testimony may have been admitted that was improper, but, in the view taken of the case, it is not seen how it injuriously affected complainant. It is also insisted the cross-examination of the witness Dobbins, touching the contents of an affidavit made in another case, and which was not then before him so that he could refresh his recollection, was so improper as to be error. Concerning the subject matter of the cross-examination, it may be said it was not relative to any matter at issue, and it seems impossible the mind of the court was influenced by it in coming to a conclusion.

It is made a point for relief the property was sold for an inadequate price. The proof is,' it was sold at the marshal’s sale for $2700, and that shortly after Higgins obtained a deed for it he sold it to his co-defendant for $18,000. No doubt the amount bid at the marshal’s sale was very much less than the property was really worth, but of that complainant has no just reason to find fault, as it did not affect him injuriously. It was sold with the privilege of redemption, and had complainant chosen to avail of that privilege, it is obvious the less that was bid upon the property the more favorable it was to him. A careful considei’ation of the whole record discloses nothing that the law will take hold of to afford complainant relief.

The decree of the circuit court will be affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    Howell Strong et al. v. Monroe N. Lord et al.

      Filed at Ottawa June 16, 1883.

    1. Rescission of contract—/or fraud. Where one of several joint owners of real estate, the legal title being in another of the owners, offered his services to negotiate the purchase of the same from the holder of the legal title for a purchaser who was ignorant of certain facts which were not disclosed, and which would operate to impair the title, and such joint owner procured the purchase, which was accepted in ignorance of the facts, it was held, that these facts constituted constructive fraud on the part of the person negotiating the purchase, and entitled the purchaser to rescind the contract, if he had not put it out of his power to restore the whole interest he had thus been induced to purchase.

      2. Same—placing the other party in, statu quo. A party who would rescind a contract for fraud, must restore the other party to the condition in which he stood before the contract was made. So where the purchaser of land sells an interest therein, and receives full payment, and his vendee dies leaving an infant heir entitled to a deed, he can not rescind his own purchase, for the reason that he can not restore the land in whole to his vendor.
    3. Same—power to decree the restoration of the infants interest, in such case. The inability of the parties in such case to make conveyance' of the infant’s interest, so that upon the rescission of the original contract of sale the entire property might be restored, can not he aided by a decree of court directing such conveyance, for the want of authority to do so, at least where there is no application on behalf of the infant.
    4. Descents—equitable title. "Where a purchaser of land, under a written contract, makes full payment of the purchase money, so as to be entitled to a deed from the vendor, he will have an equitable title, which on his death will vest in his heirs.

      5. Same—in case of partnership in land—rights of surviving partners. The doctrine of survivorship, in respect to estates in partnership in real property, is limited, it seems, to the extent to which equity stamps the character of personalty upon such estates, and that is, so far as, and no further than, they are required to pay partnership debts; so that whatever remains of such partnership real estate after the debts of the company shall have been discharged, is held in common, at once subject to dower or curtesy, and goes to the heirs or devisees accordingly.
    6. So where several persons were joint equitable owners of land, in respect of which there was no indebtedness, either from the owners to others, or as among themselves, it was held, even conceding a partnership existed, upon the death of one of the owners his interest descended to his heirs, and the surviving partners had no power of disposition as to that part.
    Writ op Error to tlie Appellate Court for the First District ;—heard in that court on appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    Mr. E. A. Crane, for the plaintiffs in error:
    Where fraud is charged and proved, the burden of proof is on the defendants to first purge themselves of the fraud, and they are estopped from using the result of their own wrong as a defence for their unlawful acts, until they first make some showing of fairness on their part. Seeley v. Price, 14 Mich. 541; Jacox v. Jacox, 40 id. 573; Wartemburg v. Spiegel, 31 id. 400; Duncomb v. Richards, 46 id. 169.
    We are not hound, under these circumstances, to put these defendants in statu quo. Downer v. Smith, 32 Vt. 7; McCrillis v. Carlton, 37 id. 139; Concord Bank v. Gregg, 14 N. H. 338; Holbrook v. Burt, 22 Pick. 554; Coffee v. Ruffin, 4 Caldwell, (Tenn.) 516; Gilbert v. Hoffman, 2 Watts, (Pa.) 66; Allin v. Willison, 72 Ill. 291; Van Dyke v. Walton, 88 id. 444; Upham v. Dickinson, 38 Mich. 338; Reed v. Peterson, 91 Ill. 288; Hopkins v. Snedeker, 71 id. 449.
    We can put them m sfaiw quo with the aid of the court. It is well settled that where fraud is charged a tender is not necessary before filing a bill, but defendants may be put in statu quo, or as nearly so as they can be by the decree, which may order it done in a certain way and time. Corbus v. Teed, 69 Ill. 206; Fitzhue v. Smith, 66 id. 487; Board of Supervisors v. Henneberry, 41 id. 179; Webster v. French, 11 id. 254.
    The statute (chap. 22, sec. 44,) provides how the court may transfer the interest of a minor, and such has been done. Enos v. Capps, 12 Ill. 256; Burger v. Potter, 32 id. 66; Greenebaum v. Austrian, 70 id. 591; Saff v. Phelps, 92 id. 589.
    The action of plaintiffs in erroi does not necessarily depend on whether the agents of defendants in error stated what was not true. Coffee v. Ruffin, 4 Coldwell, (Tenn.) 516; Eldridge v. Walker, 60 Ill. 230; Case v. Ayers, 65 id. 142; Whitney v. Roberts, 22 id. 381; Mathews v. Hamilton, 23 id. 470.
    They can not be both buyer and seller at the same time. (Tewksbury v. Spruance, 75 Ill. 187.) Courts will not sanction such a course, nor sanction shifts to avoid it, (Pensonneau v. Bleakley, 14 Ill. 15,) or sell his own property as property of another. Ely v. Hanford, 65 Ill. 267.
    Lord became agent of plaintiffs in error by his own voluntary acts, and no words are necessary to create that relation.
      Casey v. Casey, 14 Ill. 112; Dennis v. McCagg, 32 id. 492; Hughes v. Washington, 72 id. 84; Cotton v. Holliday, 59 id. 176.
    It makes no difference whether the property purchased was worth more or less than plaintiffs in error paid for it,— whether the market has gone up or down. Pensonneau v. Bleakley, 14 Ill. 15.
    Mr. George G. Christian, for the defendant in error Lord:
    Before a party can rescind a contract for any reason, he must he in a position to restore to the other party that which he received from him. Cunningham v. Fithian, 2 Gilm. 650 ; Buchenau v. Horney, 12 Ill. 336; Jennings v. Gage, 13 id. 610; Edmunds v. Myers, 16 id. 207; Murphy v. Lockwood, 21 id. 611; Brown v. Schuler, 41 id. 196; Smith v. Doty, 24 id. 163; Smith v. Brittenham, 98 id. 197; Wolf v. Dietzsch, 75 id. 205; Benjamin on Sales, sec. 452.
    The identical property must be restored, and the restoration must be full and complete. Brown v. Schuler, 41 Ill. 196; Smith v. Doty, 24 id. 163; Buchenau v. Horney, 12 id. 336; Jennings v. Gage, 13 id. 610; Smith v. Brittenham, 98 id. 197; Wolf v. Dietzsch, 75 id. 205.
    It must be unincumbered, and in good condition. Cunningham v. Fithian, 2 Gilm. 650.
    The rescission and offer to restore must have been at the first practicable moment. Hall v. Fullerton, 69 Ill. 448; McCarthy v. Marleth, 80 id. 526.
    The interest of Charles Roe, on his death, descended to his heirs. Buck v. Eaman, 18 Ill. 529 ; Smith v. Smith, 55 id. 204; Smith v, McConnell, 17 id. 135; Phelps v. Funkhouser, 39 id. 401; Walbridge v. Day, 31 id. 379.
    Mr. George B. Blanks, for the defendant in error Bolton.
   Mr. Justice Sheldon

delivered the opinion of the Court:

Howell Strong and Bobert M. Boe brought their bill of complaint in the Superior Court of Cook county, against Monroe N. Lord and others, to rescind a certain contract of purchase of real estate in Cook county, made by Strong. The land in question was, on October 1, 1872, conveyed to Strong by the deed of Silas C. Stevens, with whom defendants Lord and Bolton, and one Flack, were joint equitable owners, for the consideration of $2750, and the bill alleges that complainant Bobert M. Boe, and one Charles Boe, were jointly interested with Strong as partners in the purchase. The transaction is sought to be avoided on the ground that complainants were induced to purchase through fraud, practiced by defendant Lord. Answers and replications were filed, and the cause heard upon the testimony offered by the complainants. When the complainants had rested their case, counsel for defendant Lord moved the court to dismiss the bill upon the evidence presented by complainants, because they could not place the defendants in statu quo, and so were not entitled to have the contract rescinded, and, after argument, a decree was entered dismissing the bill. The decree was affirmed by the Appellate Court for the First District, and writ of error sued out from this court.

The evidence adduced by complainants before the Superior Court tends to show that Lord was part owner with Bolton, Stevens and Flack, of the land sold and conveyed by Stevens to Strong; that Strong was ignorant of, and Lord did not disclose, this fact to Strong, and offered his services to negotiate the purchase from Stevens, which were accepted by Strong, and Lord did negotiate the purchase for Strong from Stevens. These circumstances, uneontradicted, were sufficient to constitute constructive fraud on the part of Lord, and would entitle Strong to rescind the purchase from Stevens, if Strong were in the situation to reconvey to Stevens the title which he received from the latter. There can be no dispute as to the general rule that the party who would rescind a contract on the ground of fraud must restore the other party to the condition in which he stood before the contract was made. We shall, then, confine ourselves, in the present case, to the inquiry whether the plaintiffs in error are able to place the defendants in statu quo.

The proof discloses that Strong, after his purchase from Stevens, and in December, 1872, entered into a written contract with Bobert M. Boe and Charles Boe for the sale and conveyance to them, each, of an undivided one-fourth of the land in question, upon their making payment of the purchase money named; that the said Boes afterward made payment in full of the purchase money, and that in 1876 said Charles Boe died intestate, leaving him surviving Mary Boe, his widow, and Alice, Alma and Elsie Boe, his children and heirs at law. The latter child, Elsie, is an infant. Charles Boe, then, having made full payment for, and being entitled to, a deed from Strong, under the written contract of the latter, of one-fourth of the land, became the owner in equity of such one-fourth, and he dying intestate, the equitable title to one-fourth of the land descended to his heirs. (Smith v. Smith, 55 Ill. 205.) Elsie Boe, one of those heirs, is an infant, and can not therefore make a valid conveyance of his interest. It is apparent, therefore, that plaintiffs are not in the condition that they are able to restore to Stevens, or the parties interested with him in the land, the title to the premises as Strong received it.

It is contended by plaintiffs’ counsel that the contract of sale and conveyance between Strong and the two Boes constituted a partnership between them; that the land to be conveyed,by Strong to the Boes was partnership property, and that on the death of Charles Boe the title vested in plaintiffs as his survivors, and they offer to execute any conveyance of the land the court may direct. The theory of a partnership is based upon the following clauses in the contract:

“It is agreed, in case of a sale of any of the lands, the second party shall receive one-fourth of the proceeds. In case the lands do not sell for as much, including taxes, costs, etc., as the first party originally paid said Stévens, then the second party shall bear one-fourth of the loss,—the intent of this instrument being to create a co-partnership in the sale of said lands, the party of the first part to have a three-fourths and the party of the second part a one-fourth interest in the profits, and to share in the same proportion the losses,—in case of a sale, the second party to release his interest in the part sold. ”

The contract is between Strong, of the first part, and Bobert M. Boe in one and Charles Boe in the other contract, of the second part,—there being a separate contract of the same tenor with each of the Boes. The language of the preceding part of the contract is, “the first party, for $687.50, to be paid as hereinafter set forth, agrees to sell the second party an undivided one-fourth” of the land in question. Then follow the terms of payment, and afterward this: “The first party agrees, if above conditions are fulfilled, to deed the second party an undivided one-fourth of the land. ” Bobert and Charles Boe both having made all the required payments under the contract, they were by its terms each entitled to a deed of an undivided fourth of the land, and it might well be disputed whether there was the existence of any partnership after the making of such payment. But conceding the existence of a partnership, as claimed, we can not recognize the right in the survivors, Strong and Bobert M. Boe, after the death of Charles Boe, to sell the interest which the. latter had in the land at the time of his death. Mr. Washburn, in his work on Beal Property, (vol. 1, p. 422,) speaking of estates in partnership in real property, says: “In this country,—and it seems generally in England,—the doctrine of survivorship is limited by the extent to which equity stamps the character of personalty upon such estates, and that is, so far as, and no further than, they are required to pay partnership debts. ” And further, on page 423: “And, as would naturally be inferred from the premises above stated, whatever remains of such partnership real estate after the debts of the company shall have been discharged, is held in common, at once subject to dower or curtesy, and goes to the heirs ór devisees accordingly.” All the payments on Strong’s purchase of the real estate in question had been made, and Strong had received from the Roes all payments due him under the contracts with them. There were no debts owing in respect to this matter¡ The supposed partnership was fully wound up, and there was nothing left for the survivors to do, and consequently the equitable title of Charles Roe in the land descended to his heirs.

It is suggested that although there may be inability in the parties to make conveyance of the infant’s interest, it may be conveyed for and on behalf of the infant, under decree of the court to that effect. We know of no warrant of authority for the exercise of such a power on the part of a court,—at 'least where there was no application on behalf of the infant.

We see nothing in the circumstances of the ease which should take it out of the general rule of the necessity, in order to rescind a contract for fraud, of restoring the other party to the condition in which he stood before the contract was made, and that being impossible here, the judgment of the Appellate Court must be affirmed.

Judgment affirmed.


author: Mr. Justice Scholeield

text:
    Hugh McFarlane v. William H. Williams.

      Filed at Ottawa June 16, 1883.

    1. Landlord and tenant—as to amount of rent to be paid—whether terms of an agreement to lease are uncertain—how the amou/nt may be ascertained. A contract for a lease of premises provided that the rent to be paid yearly was $1513.84, subject to any errors in the figuring thereto attached, which, with the parol evidence identifying the figuring, showed that the rent to be paid was six per cent on the cost of the property: Held, that the lease was not void for indefiniteness and uncertainty as to the amount of the rent. The sum named was certain, and must govern unless a mistake in the estimate was shown, and this might have been done without the proviso providing for its correction, and parol evidence was admissible to show such mistake.
    2. So where a person had purchased a number of lots, a part of which he agreed to lease to the party negotiating the purchase, at a certain annual rental named, the amount to be subject to correction if there were any errors in the figuring on a paper attached to the contract, and it appeared that the sum named was intended to be six per cent on the pro rata cost of the lots, it was held, that the amount of the rent was not uncertain, as it could be readily estimated what the lots to be leased cost, by comparing the number of square feet in them with the square feet in the entire purchase, and that six per cent on that sum was the rent to be paid.
    3. A contract for a lease is sufficient if it gives the data by which the amount of rent may be found, leaving it to be worked out by calculation, and it is also sufficient to state a gross sum supposed to represent that calculation, subject to the correction of any mistake that may be found in such calculation. But when the sum is stated it will be presumed to be correct, until a mistake therein is clearly proven.
    4. ■ Same—as to time of payment of rent. "Where a contract for a lease provides that the rent is to be paid annually, but fixes no time of payment, and no contrary usage is shown, the rent will be payable at the end of each year.
    5. Same—as to time when lessee shall pay taxes. "Where an agreement for a lease requires the lessee to pay all taxes on the demised premises, without stating the time of payment, they must be paid when due, the time being fixed by law, or paid so as to avoid any sale of the property.
    6. Same—whether lessee must sign the lease, in order to bind him to the payment of rent. Where a lease recites that the lessee is to pay a certain sum as rent for the premises, his acceptance of the lease makes him a direct obligor or promisor to pay the rent, although he has not signed or executed the instrument. Such an instrument is not a unilateral contract.
    7. Samé—of the consideration of an agreement to make a lease. The promise or obligation of a lessee to pay rent is a sufficient consideration for an agreement to lease the premises to him.
    8. Specific performance—laches. Where a bill was filed within three months after the absolute refusal of the owner of premises to lease the same to the complainant, according to his written agreement to do so, for a specific performance of the contract, and the complainant in the meantime gave the owner no reason to believe he did not intend to insist upon the performance of the contract, the delay in instituting suit was held no bar to the relief sought.
    9. Same—agreement to make a lease—insolvency of the proposed lessee. Where a party agrees to lease property to another, the insolvency of the latter is no reason for not decreeing a specific performance of the agreement, when he has offered abundant security for the payment of the rent, which is refused because the owner thinks he can do better, and therefore determines not to perform.
    10. Mistake—may he shown hy parol evidence, and corrected in equity. Where a mistake is made in a contract for the payment of a given sum of money, by a miscalculation on a basis adopted by both parties, it is competent to allege and prove the mistake in a court of equity, and parol evidence is admissible to prove the same.
    11. Burden of proof—to impeach consideration of contract. Where a contract recites an adequate consideration, the burden of proof is on the party seeking to avoid it to impeach such recital by a clear preponderance of evidence.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Geo. Gardner, Judge, presiding.
    William H. Williams filed his hill in equity, in the office of the clerk of the Superior Court of Cook county, against Hugh McFarlane, on the 29th day of July, 1881, wherein it was, in substance, alleged, that about the loth of May, 1880, the Charter Oak Life Insurance Company, of Hartford, Connecticut, was the owner of lots 1 to 5, and lots 10 to IT, inclusive, in Dobbins’ subdivision of block 55, of school section addition to Chicago; that defendant was, at that date, desir-

      ous of purchasing the same, and employed complainant to negotiate for the purchase thereof; that it was then agreed between complainant and defendant, that in case complainant should procure for defendant the purchase of said premises, defendant would lease to said complainant a portion of said premises, namely, lots 1 to 5, and 10 to 14, both inclusive, for a term of years, upon favorable terms; that complainant, acting in good faith, commenced to negotiate for the premises first aforesaid on behalf of defendant; that to make said agreement more binding, it was agreed, in writing, on the 15.th of May, A. D. 1880, that in case said defendant should purchase the first aforesaid premises, he would lease the complainant the last aforesaid premises for the term of one year, commencing on the 1st day of May, A. D. 1880, with the option to complainant to continue said lease for-a second year, and again for a third year, with the proviso, that in case defendant should sell or desire to improve said premises, then, in such case, complainant should not have the possession of said premises for said third year; that the yearly rental of said premises should be $1513.84, payable at the end of each year; that said amount was made subject to any errors in figuring six per cent on a valuation of said premises leased as aforesaid, fixing said valuation at $23,564, and the complainant was to pay, as additional rent for said premises, the taxes upon the same for the years so leased,— which contract was duly recorded in the proper office, July 28, 1880, and a copy thereof is annexed to the bill, as an exhibit.
    It is further alleged in the bill, that on or about the date of said written contract defendant entered into a contract with said Charter Oak Life Insurance Company to purchase the first above described premises, and subsequently to the entering into said contract to purchase, and prior to the 1st day of May, A. D. 1881, said purchase was duly consummated, and the defendant received from said insurance company a warranty deed of the premises first above described; that since said 1st day of May, A. D. 1881, the defendant has been in possession of said premises, and, although often requested, has not executed to complainant a lease in accordance with the terms of said contract, nor given possession of said premises to complainant, but has refused,' and still refuses, to do so. It is further alleged that complainant is negotiating to lease said premises to other parties, and if he should succeed in doing so, and give them possession, it would cause endless suits, and take months, and perhaps years, to dispossess them, and thereby cause irreparable injury to complainant. It is further alleged that complainant has, in every way, complied with the terms of said contract, and is ready and willing to sign a lease in accordance with said contract, and in every way to comply therewith.
    The prayer is that defendant answer without oath, and that he be decreed to execute a lease in accordance with the terms of said contract; that he deliver possession of said premises to complainant; that in case he shall refuse to execute such lease the master in chancery shall execute the same; that the value of the use of said premises from the 1st day of May then last, to the time complainant is given possession, be ascertained, and such amount deducted from the rent due defendant on the 1st day of May, 1882, etc., and for general relief, etc.
    The defendant answered the bill, admitting the purchase of the lots from the life insurance company, but denying that he employed complainant to make the purchase, or that complainant acted for him in making said purchase, or that he agreed to lease complainant any of said lots. The answer then sets up and relies upon the Statute of Frauds. It is further alleged in the answer, that the life insurance company, its agent or attorney, employed complainant to assist its solicitor, Judge Van H. Higgins, in making the sale of said lots to defendant, and has paid complainant for'his services in rendering such assistance; that defendant admits signing the written contract made an exhibit to the bill, but alleges that he did not receive from complainant any consideration for such signing, and that it is null and void; that complainant rendered defendant no services, as recited in that instrument, but complainant was employed and paid by said insurance company, or by its agent or solicitor, Judge Van. H. Higgins; denies that the legal effect of such agreement is, that yearly rental should be $1513.84, payable at the end of each year, or that the rent was to be on the basis of six per cent on a valuation, but avers that at the time of signing said agreement the figuring was on a basis of seven per cent, instead of six, and that there was no consideration paid defendant for signing same; denies that he has been in possession since May 1, 1881, but says that Warren Springer, with complainant’s consent," was in possession of same under a lease from one Holton, from the time defendant bought until the 28th of May, 1881, when defendant bought from Springer a building which covered a large portion of lots 1 to 5, and 10 to 14, inclusive; that immediately after the purchase of said building defendant expended $8000 and upwards in repairing it, and thereby increased the rental value of the property, and shortly thereafter leased it to Charles Karstner & Co., who are now occupying the same; denies that complainant has kept his agreement; alleges delay and laches in filing the bill; alleges that complainant was insolvent at and for a long time prior to May 1, 1881, and claims, finally, that complainant’s remedy, if he has any, is at law.
    On final hearing the court decreed a specific performance in conformity with the prayer of the bill. From this decree an appeal was prosecuted to the Appellate Court for the First District, where the decree of the Superior Court was affirmed. The present appeal is from' that decision.

      Mr. Wm. H. & Mr. J. H. Moore, for the appellant:
    The contract is so indefinite and uncertain that no one can tell when the rent is payable, or how much. A valuable consideration, particularity, certainty, and a necessity for performance, are the requisites upon which the equity of the case arises. Waterman on Specific Perf. secs. 6, 141, 149.
    If any of the material portion of the terms be omitted or left in doubt, the court will' regard the transaction as imperfect, and resting in treaty only. Taylor on Landlord and Tenant, sec. 46, and note; Grace v. Dennison, 114 Mass. 17; Nichols v. Williams, 22 N. J. 17; Gosse v. Jones, 73 Ill. 509; Brix v. Ott, 101 id. 74.
    The contract is not based upon any consideration, and can not be enforced. Gilbert v. Holmes, 69 Ill. 556; Lear v. Chouteau, 23 id. 42; Taylors. Merrill, 55 id. 61; Frisbie v. Ballance, 4 Scam. 287.
    Williams was insolvent on and prior to the 1st day of May, 1881,—the time when the tenancy was to commence. Insolvency is a bar to the specific contract for a lease. Taylor on Landlord and Tenant, sec. 47; Waterman on Specific Perf. sec. 433; Fry on Specific Perf. sec. 634; Pomeroy on Specific Perf. sec. 332.
    The case of the complainant is barred by change of circumstances, laches, and lapse of time. Williams sat by until July 29, 1881, when McFarlane had expended $10,000 upon the building, and three months after May 1, when the tenancy was to commence, before filing his bill.
    The enforcement of a contract is within the sound legal discretion of the court. Courts always hesitate to compel specific performance “when there is anything, by reason of the change in circumstances in regard to the property, that makes it unconscionable ” for them so to do. Iglehart v. Vail, 73 Ill. 65; Kimball v. Tooke, 70 id. 565; Stone v. Pratt, 25 id. 25; Fish v. Lesser, 69 id. 396; Mississippi and Missouri R. R. Co. v. Cromwell, 91 U. S. 645.

      Time is the essence of a contract for a lease. Waterman, sec. 460; Taylor on Landlord and Tenant, sec. 49.
    Mr. H. C. Notes, and Mr. B. S. Williams, for the appellee:
    If there is no usage or agreement to the contrary, the rent is payable at the end of the term. Taylor on Landlord and Tenant, sec. 391; 3 Kent’s Com. 374; Dixon v. Niccols et al. 39 Ill. 386.
    As to the taxes, they could not, from the nature of the case, be made payable at any particular time. As to the consideration, it was sufficient that Williams agreed to pay rent.
   Mr. Justice Scholeield

delivered the opinion of the Court:

The objections relied upon by counsel for appellant for a reversal of the judgment below, will be noticed, so far as deemed important, in the order in which they are urged in their printed argument.

First—It is contended' the alleged contract for a lease is indefinite and uncertain. This is the language of the contract :

“It is hereby stipulated and agreed, that in case I purchase lots 1 to 5, and lots 10 to 17, in Dobbins’ subdivision of block 55, of the school section addition to Chicago, that I will lease to W. H. Williams said lots 1 to 5, both inclusive, and said lots 10 to 14, both inclusive, for one year, from 1st May, 1881, with the option to said Williams to have said lease extended for one year, and again for another year,—the last year, however, to be subject to the right of said McFarlane to sell said premises, or to improve them. This is made in consideration of services rendered by the said Williams in effecting the purchase of the said property.

“Witness my hand and seal this 15th day of May, 1880.

“The rent to be paid by the said Williams is $1513.84, subject to any errors in-the figuring hereto attached, and the taxes on the property so leased.

(Signed)- H. McFarlane. [Seal.]”

Certain papers, with calculations thereon, are attached to the paper on which the contract is written.

The respect wherein it is contended the contract is indefinite and uncertain, is, first,-in the amount of rent to be paid; second, the time when it is to be paid; and third, the time when the taxes are to be paid. We perceive no difficulty in either respect. The amount of rent specified in the contract is, beyond all question, definite and certain. It is $1513.84. But does the fact that the probability of a mistake in this amount is contemplated, and a provision is inserted in the contract providing for its correction, make any difference? Surely not. Had no such provision been inserted, it would undoubtedly have been competent to have alleged and proved the mistake in a court of equity, and parol evidence would have been admissible to have shown the mistake. (Kerr on Fraud and Mistake, (Bump’s ed.) 416.) But again, “that is certain which may be rendered certain,” is a maxim which may with propriety be applied here. It is proved the amount agreed to be charged for rent was ascertained in this way: The five lots fronting on Canal street were 110 feet one way, and 100 feet the other way, making 11,000'square feet. There were eight lots fronting on Harrison street, each 24 feet wide. By multiplying the 24 by 8, the total width of these lots is obtained. One of the lots, however, was 3 feet wider than the others, and there was, therefore; this 3 feet to be added to the total width of the lots. And then there was, also, a private alley between the lots, which was likewise to be added to the total width, making, in all, the total width 205 feet, which, being multiplied by the length or depth of the lots, (100 feet,) makes 20,500 square feet. To this 1950 was added on account of a private alley, and then the 11,000 feet for the lots on Canal street, making a total of 33,450 feet. From this was subtracted 7920 feet, on account of the lots retained by McFarlane, (being 15, 16 and 17,) leaving 25,530 square feet as the number of square feet in the nine lots leased to Williams. The purchase price of the property was $31,000, which, being divided by the whole number of square feet, gave the purchase price per square-foot, and that being multiplied by 25,530, gave the purchase price of the nine lots leased to Williams, and upon this amount interest was computed at six per cent, as determining the amount of rent to be paid by Williams. The value of the lots leased to Williams, thus ascertained, was $23,564, and in the original calculation six per cent on this amount was counted as amounting to $1513.84, by mistake, instead of $1413.84. The error is patent upon the face of the calculations. Now, these facts are all distinctly shown by the figures and calculations annexed to the contract. It is true it required parol evidence to explain what the figures meant, but this, we have seen, was perfectly competent for the purpose of explaining and correcting a mistake. The only dispute in the evidence on this question is, whether the rate should be six or seven per cent, appellant testifying that it should be the latter, but in our opinion the evidence clearly shows that he is wrong, and that the rate was six per cent.

In our opinion it would have been sufficient to have shown, in the agreement, the data by which the amount of rent was to be ascertained, leaving it to be worked out by calculation, and it was sufficient to state a gross amount supposed to represent such calculation, subject to the correction of any mistake that might have occurred in ascertaining that amount. In such case there is no real uncertainty,—the amount must always be precisely the same,—the only difficulty lying in the proof of what was the data upon which the calculation was made. The amount stated being prima facie correct, must be taken as tbe true amount until it is clearly and unequivocally proved that another and different amount is the true amount, and then that amount, when ascertained, in presumption of law, is the amount which the parties contracted should be paid, and must have been paid, in order to comply with the contract. The mistake of counsel for appellant, here, is in assuming that a mistake in stating the true terms of a contract, and uncertainty in the terms of a contract, are one and the same thing. In the former case, in presumption of law, there is no uncertainty, while in the latter case there can be no accurate knowledge of what the terms of the contract really were, and hence the court can not know what should be enforced.

The time of payment of the rent, here, is, clearly, the end of the year, no usage or agreement being shown to the contrary. (Dixon v. Niccolls et al. 39 Ill. 386; Taylor on Landlord and Tenant, sec. 391.) The taxes were to be paid when due, and this is fixed by law. They must be paid so as to avoid a sale of the property for their non-payment, or the enforcement of any personal liability against the lessor on account thereof.

Second—The next contention of counsel for appellant is, the contract is not based upon any consideration. ' This is not, in our opinion, sustained by the record. The contract recites an adequate consideration, and the burden is upon appellant, if he would impeach that recital, to do so by a clear preponderance of evidence. Waiving the question whether, in the absence of evidence of fraud or mistake, appellant is estopped by such recital, we think he has not clearly and unquestionably proven that it is untrue. At. most, it could only be said the evidence is contradictory, and the question is not free from doubt.

But again, this is not a unilateral contract, as is assumed by appellant’s counsel. By accepting the deed,—as, technically, the contract is,—appellee became bound by the obligations it imposed upon him. Although a deed poll, it recites that appellee is to pay $1513.84 rent, etc., and his acceptance' makes him a direct obligor or promisor to this effect. (Kershaw v. Kershaw, 102 Ill. 307; Atlantic Dock Co. v. Leavitt, 54 N. Y. 35; Schmucker v. Sibert, 18 Kan. 104.) So it is said in Fry on Specific Performance, (2d Am. ed.) 202, *137, sec. 29S: “An agreement contained in a deed poll was enforced, notwithstanding an objection which was taken from the unilateral nature of the instrument.” And the author refers to Otway v. Braithwaite, 1 Finch, 405, and Butler v. Powis, 2 Coll. C. C. 156. See, also, to like effect, Old Colony R. R. Co. v. Evans, 6 Gray, 25. The promise to pay rent was a sufficiently valuable consideration for the promise to lease. See Chitty on Contracts, (11th Am. ed.) page 50, note d.

Third—It is contended the insolvency of appellee was, of itself, a sufficient reason why appellant should not execute the lease as required by the terms of the contract. To this we think there are two sufficient answers. First, the proof dees not establish the fact that appellee was insolvent on the 1st of May, 1881. It is unnecessary to recite and comment upon the evidence on this point. It is enough to say that we have carefully examined and considered it, and while it undoubtedly establishes that appellee was a man of small means, it does not establish that he was insolvent at that time. Second, appellee offered abundant security that he would pay all rent, and this was rejected, not because of its insufficiency, but because appellant had determined that he could do better, and would therefore fail to perform his contract with appellee.

Fourth—It is next insisted the decree neither conforms to the allegations of the bill nor the evidence; that “the bill alleges that the yearly rental of said premises to be paid defendant by complainant, should be $1513.84,” while the decree provides that the amount shall be $1413.84. This is not a fair presentation of the allegation of the bill in this respect. The bill alleges that the amount of $1513.84, stated in the contract to be the yearly rental to be paid by appellee to appellant, was “subject to any errors in figuring six per cent on a valuation of said premises * * * at $23,564,” and hence, of necessity, it results that the amount to be paid, instead of being $1513.84, .must be $1413.84. And this, we have seen, is borne out by the evidence.

Fifth—The remaining objection is, appellee is barred by laches and lapse of time. Appellant’s refusal became absolute May 1, and the present bill was filed on the 29th of July following,—within less than three months. Appellee gave appellant no reason to believe, that we have been able to discover, upon the faith of which he was justified in acting, that he did not intend to insist upon his rights under the contract. No peculiar circumstances are shown requiring greater promptness in filing the bill than appellee used.. Appellant’s refusal was inexcusable and willful, and he is entitled to no sympathy not due in general to all who break their engagements in order to make profit thereby.

The judgment below is affirmed.

Judgment affirmed.


author: Mr. Justice Scott

text:
    The Missouri Furnace Company v. Edward Abend.

      Filed at Mt. Vernon June 16, 1883.

    1. Appeai—reviewing controverted facta. In an action on the case to recover for the death of the plaintiff’s intestate, occasioned by the alleged negligence of the defendant, in which the plaintiff recovered, and the judgment is affirmed by the Appellate Court, it will be assumed that whatever the evidence tended to prove was found in favor of the plaintiff, and such finding is conclusive upon this court.

      2. Negdigence—of evidence as to due care on the part of the plaintiff, in- cm action to recover for personal injury. In an action to recover damages for a personal injury alleged to have resulted from the negligence of the defendant, the law does not always require positive proof of due care and diligence on the part of the plaintiff. Under certain circumstances it may be taken for granted that he observed usual and ordinary care for his personal safety. So where an engineer upon a railroad, who was killed by defects in a foot-board', was shown to be a competent and careful servant in his employment, and he was seen a few moments before his death in the observance of due care, it was held, that it could not properly be said there was an entire want of evidence on this branch of the case.
    3. Same—negligence as a question of fact. It is a question of fact whether a servant is guilty of negligence by continuing to use defective machinery for a reasonable time for the master to make the needed repairs, after his promise to do so.
    4. Instruction—as being based upon evidence. If there is evidence in a case tending to prove that a party, at the time of receiving an injury, observed ordinary care, that will be sufficient to warrant the giving of an instruction based upon that hypothesis.
    5. Master and servant—liability of the former for inju/ries received by the latter in his service—of their relative duties. A party entering the service of a railroad company, or other corporation using locomotives as propelling power, assumes by his contract all the ordinary hazards arising from the performance of the duties of his voluntary engagement, and for an injury arising from such perils no recovery can be had.
    6. It is, however, the duty of the employer not to expose the employé to other perils not within those commonly known to be incident to the service he is expected to perform. On this principle it is the implied duty of the master to furnish reasonably safe machinery for use, and to observe ordinary care in selecting fellow servants.
    7. If an employe discovers that the service has become more hazardous than usual, or than he had anticipated, by reason of defective machinery, the retaining of unfaithful fellow servants, or from any other cause, the general rule is, he must quit the service or assume the extra risks to which he is exposed. The law imposes no obligation on the master to take more care of the servant than the latter is willing to observe for his own personal safety.
    8. This general rule, however, has its exceptions. When the master, on being notified by the servant of defects that render the service he is engaged to perform more hazardous, expressly promises to make the needed • repairs, the servant may continue in the employment a reasonable time to permit the performance of the promise without being guilty of negligence, and if any injury results therefrom he may recover, unless he should continue in the employment when the danger is so imminent that no prudent man would undertake to perform the service. The promise' of the master, in such case, relieves the servant from the charge of negligence by continuing in the service.
    Appeal from the Appellate Court for the Fourth District; —heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. George W. Wall, Judge, presiding.
    • On the 21st day of February, 1880, Charles Castaine, since deceased, was in the employ of the Missouri Furnace Company, as engine-driver on the switch locomotive used by the company for moving cars in and about its yards. While thus employed on that day, he in some way fell from the locomotive, and was run over by it and killed. Afterwards the administrator of his estate brought this suit against the company to recover damages resulting to the widow and next of kin on account of the death of the intestate, which it is alleged was caused by the negligent conduct of defendant. Eecitals in the declaration set forth the duty of defendant to keep the engine in suitable repair, and as a breach of that duty it is averred defendant permitted the engine to become and remain out of repair, and dangerous to the engine-driver. Among the principal defects that led to and caused the death of the intestate, it is averred the engine was so constructed it could not be oiled except when running; that it was out of repair, and dangerous to the employé, and that there were no platforms or other safeguards so as to protect such employe while engaged in oiling and running it; and that the foot-board in front of the engine was out of repair, and in an unsafe condition. It is also further alleged, that “on the 21st of February Charles Castaine was in the employ of defendant, and was engaged in running said engine on said railroad, as engineer, and that then and there he complained to said defendant, and notified it of the said defective and dangerous condition of said engine, and said defendant caused the said Charles Castaine to remain and continue in said employment by then and there promising him that said defects, including the repairing of said foot-board, would be speedily repaired and remedied; that defendant did not heed its duty in this respect, and failed and neglected . to remedy said defects; and that on vsaid 21st day of February, and while he was in the employ of defendant as engineer, and was engaged in running said engine, using due care and diligence, he was, in consequence of said defects, thrown with great force and violence from said engine, and was thereby then and there killed. ” The names of the widow and children surviving the deceased are stated in the declaration, and it is then averred that in consequence of his death they were deprived of the support he had hitherto given them. A demurrer interposed to the amended declaration was overruled, and defendant pleaded the general issue, on which a trial was had, which resulted in a verdict for plaintiff, on which judgment was rendered. The first judgment for plaintiff was reversed, on defendant’s appeal, by the Appellate Court. On the second trial plaintiff recovered a second verdict in the sum of $3000. The motion made for a new trial was overruled, and the court pronounced judgment on the verdict. This latter judgment, on the appeal of defendant, was affirmed in the Appellate Court for the Fourth District, and defendant brings the case to this court on its further appeal.
    Messrs. G-. & Gr. A. Koernee, for the appellant.
    Mr. James M. Dill, for the appellee.
   Mr. Justice Scott

delivered the opinion of the Court:

It is not insisted in this court, as was done in the courts below, that the verdict is against the weight of the evidence, nor is it expected this court will reexamine the evidence on controverted questions of fact. It will be assumed that whatever the evidence tends to prove was found in favor of plaintiff, and that finding, under the Practice act, is, of course, conclusive on this court. It is said, however, there is an entire want of evidence to sustain the averment of the declaration that deceased “used due care and diligence” for ‘ his personal safety, and that this defect is fatal to the present recovery. No one saw the accident, hut the evidence warrants the belief that deceased fell from the foot-board while in the act of oiling the engine .when in motion, and was killed. The concession of counsel is, no doubt, correct, it does not always require positive proof of the exercise of due care and diligence. Under certain circumstances it may be taken for granted deceased observed usual and ordinary care for his personal safety. That is the case here. The testimony from all sources is, that deceased was a competent and careful engineer. There is some evidence tending to show the engine could not well be oiled, on account of its peculiar construction, except when in motion, and the jury must have so found. Had the foot-board been in order, there would have been no danger in so doing. It was the usual mode of oiling the engine. The deceased was seen, a few moments before his death, in the observance of due care. In the brief period that intervened it is unreasonable to believe he ceased to use that ordinary care that he had been accustomed to observe during the whole time he had been in the company’s employ. All the circumstances tend to show the exercise of due care and caution on the part of deceased at the time of the accident, so that it is not accurate to say there was an entire want of evidence on this branch of the ease. A similar objection was taken in Chicago, Burlington and Quincy R. R. Co. v. Gregory, 58 Ill. 272. In that case it was said: “Up to within a moment of the accident, he,” deceased; “was shown to have been in the exercise of due care in his proper place, and it would do violence to the facts in the case to presume that in the instant that intervened he was guilty of negligence, in the absence of proof of any circumstances that even tend to establish the fact of negligence. ” No one in that case saw the accident, and no affirmative evidence was given as to what care the deceased observed. It was thought to have been made to appear from the circumstances attending the accident, and it was said it was immaterial how the fact was made to appear, so it did appear.

Passing on, the principal question made will be briefly considered. It is, whether deceased was, himself, guilty of such negligence by remaining in defendant’s service after he knew the foot-board was in a dangerous condition, as will bar a recovery. The proof is, deceased notified the proper officers of the company whose duty it was to make and direct when repairs should be made, of the dangerous condition of the foot-board, and the averment is, defendant “caused the said Charles Castaine to remain and continue in said employment by then and there promising him that said defects, including the repairing of the foot-board, would be speedily repaired and remedied; that defendant did not heed its duty in this respect, and failed and neglected to remedy said defects.” There was evidence tending to sustain this averment in the declaration, and, of course, it will be assumed, for the purposes of this decision, the jury so found in support of the verdict, and the affirmance of the judgment by the Appellate Court implies a finding of the facts in the same way. It only remains, therefore, to consider the questions of law raised. On this branch of the case the court gave the following instruction for plaintiff: “The court instructs the jury, that if they believe, from the evidence, that the deceased, Charles Castaine, while in the exercise of due care and caution, was killed in consequence of the defective condition of the engine used by defendant, as alleged in the declaration, and. if they further believe, from the evidence, that the said Castaine, shortly before his death, called the attention of the superintendent and foreman-carpenter of the defendant to said defects, and that said persons, or either of them, then had authority to remedy said defects, and that said persons, or either of them, thereupon promised the said Castaine that said defects should be remedied, and that said Castaine, relying upon such promise, remained in the employ of the defendant until he was killed, as aforesaid, then the jury must find for plaintiff.” This charge is not subject to the criticism made upon it, that it assumes deceased was in the exercise of due care and diligence. Nor is it true there was no evidence on which to base it. As has been seen, there were circumstances tending to show deceased observed ordinary care, and that was sufficient to warrant the giving of the instruction. But the objection most elaborated in the argument is, the “instruction lays down as law that a mere promise to repair justified the deceased to use the foot-board, though he knew it was dangerous.” The principle embodied in this charge is broader than the objection taken assumes it to be. It proceeds on the theory, deceased, “relying upon said promise, remained in the employ of the defendant until he was killed. ”

The questions raised and discussed on this record have not .heretofore been considered by the court in the exact form now presented, and the court is at liberty to determine them as upon first impression. The principles that lead up to the precise questions involved have been the subject of frequent discussion in this court. A party entering the service of a railroad company, or other corporation using locomotives as propelling power, assumes, by his contract of employment, all the ordinary hazards arising from the performance of the duties of his voluntary engagement. Where a person is injured by any of the ordinary perils incident to such service, however sad the consequences, the law will afford him no remedy. It is, however, the duty of the employer not to expose the employé to other perils not within those commonly known to be incident to the service he is expected to perform. On this principle it is the implied duty of the master to furnish reasonably safe machinery for use, and to observe ordinary care in the selection of fellow servants. Should the employé discover the service had become more hazardous than usual, or than he had anticipated, by reason of defective machinery, the retaining of unfaithful fellow servants, or for any other cause, the general rule is, he must quit the service or assume the extra risks to which he is exposed. The rule of law in this respect rests on a correct principle. Where the servant discovers defects in machinery, or anything else that renders the Service more hazardous, no matter from what cause the same may arise, it is all-important he should report the same to the common master, or at least to persons in the employ of the master whose duty it is to correct the same. Unless he does so the law has wisely provided he can not recover from the employer for injuries occasioned by extra perils he voluntarily encounters, without notice to the master. The relation of master and servant imposes no obligation on the master to take more care of the servant than the servant is willing to observe for his own personal safety. Indianapolis, Bloomington and Western Ry. Co. v. Flanagan, 77 Ill. 365; Pennsylvania Co. v. Lynch, 90 id. 334; Columbus, Chicago and Indiana Central Ry. Co. v. Troesch, 68 id. 545.

But the general rule thus stated admits of exceptions. It is now uniformly stated by text writers, that where the master, on being notified by the servant of defects that render the service he is engaged to perform more hazardous, expressly promises to make the needed repairs, the servant may continue in the employment a reasonable time to permit the performance of a promise in that regard without being guilty of negligence, and if any injury results therefrom he may recover, unless when the danger is so imminent that no prudent person would undertake to perform the service. (W'harton and Redfield on Negligence, sec. 96; Cooley on Torts, 559; Wharton on Negligence, 220.) The doctrine on this subject rests on sound principle, and it will be found to be supported by English and American decisions. The reason upon which the rule is said to rest is, that the promise of the master to repair defects relieves the servant from the charge of negligence by continuing in the service after the discovery of the extra perils to which he would be exposed. (Patterson v. P. and C. R. R. Co. 76 Pa. St. 389; Conrad v. Vulcan Iron Works, 62 Mo. 35; Hough v. Railway Co. 100 U. S. 213; Holmes v. Clark, 7 H. & N. 348; Clark v. Holmes, id. 937.) The facts in Holmes v. Clark, as shortly stated by Pollock, C. B., are, that when plaintiff entered into defendant’s service the machinery was protected by an iron guard, but after he had been some months in the service the guard was broken, either by accident or decay, and the machinery remained unprotected. The plaintiff complained of it more than once, and was told the guard should be restored. This was not done, and whilst plaintiff, in the course of his duty, was oiling the machinery, he sustained the injury for which the action was brought. Against plaintiff’s right to recover on the facts' as stated, two points were made, one a matter of fact, the other of law. It was said plaintiff’s own negligence caused the injury; but that was regarded as a question of fact, which the jury found in favor of plaintiff, and that was taken as conclusive. The point of law was, that plaintiff having undertaken a dangerous service, with knowledge of the danger, could not recover damages in consequence of an injury which ensued from the risk he had voluntarily undertaken. In ruling against the position taken by defendant, the court said: “Many cases might be put in which a servant might reasonably incur the risk instead of abandoning the service, and if, during a period when the danger of the service is increased by the machinery becoming unprotected, either by accident or decay, or from other cause, the servant complains, and the master promises that the protection shall be restored, it must be considered that the master takes upon himself the responsibility of any accident that may occur during that period.” The doctrine of this case was afterwards affirmed in Clark v. Holmes, supra, on appeal. The American cases cited all follow closely the doctrine of these English cases. Running through all the cases examined on this subject is the principle, that if the danger from continuing in the master’s service is so imminent that no one but a person utterly reckless of his personal safety would venture upon it, the master is not responsible. Under such circumstances the law holds it to be negligence on the part of the servant that will bar any recovery in case of accident. It is, however, a question of fact, to be found as any other fact in the case, whether the servant is guilty of negligence by continuing to use defective machinery for a reasonable time for the fulfillment of the promise after the master has promised to make the needed repairs.

Applying these principles to the case being considered, the recovery is fully warranted by the facts as they must have been found by the trial and Appellate courts. The law applicable to the facts is stated with sufficient accuracy in the charge given by the court, and whether plaintiff was guilty of negligence by continuing to use the engine after the promise to make the repairs, was a question of fact, which the jury found for plaintiff, and since that finding has been affirmed by the Appellate Court it must be regarded as well found.

Only a single point more remains to be considered. The declaration contains an averment the machinery was out of order; that there was a promise to repair; that defendant failed to do so, and that the intestate, after such failure, was killed, and it is insisted there is a clear variance between the proof and the declaration in this respect. Such is not the case. There is evidence tending to show there was a promise to make repairs on the foot-board in the morning before the happening of the accident. A workman appeared for that purpose, and would no doubt have made the repairs had not the yard-master directed a postponement until twelve o’clock of that day, for the reason the engine could not be spared until that time. There was, therefore, no variance between the proof and the declaration.

No error appearing that affects the merits of the ease, the judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Dickey

text:
    Anderson Walton v. Thomas E. Burton et al.

      Filed at Springfield June 16, 1883.

    1. Delivery oe deed—presumption from being recorded. A party residing in Ohio requested his brother, residing in this State, to give him a mortgage to secure an indebtedness, and the mortgage was made, acknowledged, and recorded shortly afterward. The mortgagee was notified by letter of these facts, who, in reply, requested the mortgagor to get the mortgage, and hold the same until he should return to this State, and the mortgagor did obtain the mortgage from the recorder, but lost the same before any manual delivery to the mortgagee. It was held, that the record of the mortgage was prima facie evidence of its delivery, and that the burden of showing that the acceptance came after the recorder had parted with the deed, was upon the party denying the delivery and acceptance.
    2. Where a mortgage is made, acknowledged and recorded by the mortgagor, it needs only the assent of the mortgagee to make it good. If withdrawn from the recorder by the mortgagor, for the mortgagee, and at his request, the subsequent manual possession of it by the mortgagor becomes that of the mortgagee, and the mortgage becomes operative.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Coles county; the Hon. J. W. Wilkin, Judge, presiding.

      This is a suit in chancery, brought in the circuit court of Coles county, in 1877, by Thomas E. Burton, against Elias and Narcissa Burton, to correct and foreclose his mortgage, making Anderson Walton a party thereto. Prior to September 17, 1872, Elias Burton had executed and delivered to his father, George R. Burton, his promissory notes for various sums of money, which notes were long past due, and had, before that time, been assigned by the payee to Thomas E. Burton, to whom Elias was also indebted on his past due promissory note for $400. Elias owned a parcel of real estate in Charleston, known as the “Half-Mile House,” described as lot 2, in assessor’s subdivision of the north-west quarter of the north-east quarter of section 14, township 12 north, range 9 east, and also lots 1 and 2 in Mitchell & Teal’s addition to the city of Charleston. To secure the indebtedness, Elias Burton, on September 17, 1872, at the request of his brother Thomas, made a mortgage of the two lots in Mitchell & Teal’s addition, intending also to include the “Half-Mile” property. By mistake of the draughtsman the latter property was not properly described. Thomas E. Burton was living, at that time, in Ohio, and Elias, after signing and acknowledging the mortgage, filed it for record in Coles county, where the property was situated. After it was recorded, he called for - and obtained the mortgage, and ever afterward had it in his possession, until it was lost and could not be found. After executing the mortgage and having it recorded, he notified Thomas, and he wrote Elias to keep the mortgage for him, expecting soon to be in Charleston, when he would get it. Thomas did not come to Charleston, and the mortgage was never in his possession. The mortgage to Thomas was filed for record September 18,1872. On the 4th day of October, 1875, Elias Burton executed and delivered to Anderson Walton a mortgage, in the sum of $300; this mortgage was intended to cover the same property intended to be included in the prior mortgage to Thomas E. Burton, but, by mistake of the draughtsman, the same mistake occurred as in the Burton mortgage. This mortgage was filed for record on the same day it was executed. On June 5, 1876, Elias, being indebted to Walton in the further sum of $465, to secure the payment of the same executed and delivered to him another mortgage on the “Half-Mile” property, which was properly described therein. This mortgage was filed for record June 7,1876. Walton answered,' denying, among other things, that the complainant’s mortgage was ever executed or delivered, or that any mistake was made therein, and claiming that he obtained his mortgage without any knowledge or notice of complainant’s mortgage, and was entitled to the first lien on the premises. On the hearing the trial court found the equities of the case with complainant, and decreed correcting and foreclosing his mortgage, and declaring it a first lien on the premises. To reverse that decree Walton prosecuted his Avrit of error from the Appellate Court. The Appellate Court affirmed the decree, and this appeal is prosecuted to reverse that judgment.
    Messrs. Dunn & Connolly, for the appellant:
    To constitute a valid delivery of a deed it must pass into the hands of the grantee, or some other person for him, and the grantor must not only part with the possession, but also with the right to control it. Johnson v. Farley, 45 N. H. 405 ; Baker v. Haskell, 47 id. 479; Elmore v. Marks et al. 39 Vt. 538 ; Hawkes v. Pike, 105 Mass. 560 ; Kingsbury v. Burnside, 58 Ill. 310; Union Mutual Ins. Co. v. Campbell, 95 id. 267; Stinson v. Anderson, 96 id. 373.
    The recording of a deed does not amount to a delivery Avithout the knowledge or assent of the grantee. Herbert v. Herbert, Breese, 278; Kingsbury v. Burnside, 58 Ill. 310; Krebaum v. Cordell, 63 id. 23.
    If the grantor still has power over the title, without the consent of the grantee, there is no valid delivery. Wiggins
      v. Lusk, 12 Ill. 122; Byers v. Spencer, 101 id. 429; Bryan v. Wash, 2 Gilm. 557; Gunnell v. Cockerill, 79 Ill. 79; Gorman v. Gorman, 98 id. 361.
    To constitute a valid delivery of a deed, not only must the grantor part with the possession and control of the instru- - ment, but the grantee must accept or assent to the conveyance. Hulick v. Scovil, 4 Gilm. 175; Masterson v. Cheek, 23 Ill. 76; Welch v. Sackett, 12 Wis. 243; Derry Bank v. Webster, 44 N. H. 264; Oxnard v. Blake, 45 Me. 602; Richards v. Jackson, 6 Cow. 617; Church v. Gilman, 15 Wend. 658; Jackson v. Bodle, 20 Johns. 184.
    Mr. A. C. Ficklin, and Mr. Thomas Stoddert, for the appellees:
    The destruction or loss of a deed subsequent to its delivery or acceptance by the grantee, does not revert the title to the lands therein conveyed in the grantor. Duncan v. Wickliffe, 4 Scam. 452; Bryan et al. v. Wash, 2 Gilm. 565; Bennett et al. v. Walker et al. 23 Ill. 177.
    The execution of a deed or mortgage, and having it placed on record, if without the knowledge of the grantee, might not be a sufficient delivery; but, in such a case, the subsequent assent of the grantee would make it a good delivery. The intention controls. Dale v. Lincoln, 62 Ill. 22; Kingsbury v. Burnside et al. 58 Ill. 310; Walker v. Walker et al. 42 Ill. 311.
    When a deed has been delivered to the recorder by the grantor, without explanation, it has been held by the court to be a delivery to the grantee, and the acceptance by the grantee is presumed from the beneficial nature of the transaction. Masterson et al. v. Cheek et al. 23 Ill. 73; Rivard et al. v. Walker et al. 39 Ill. 413.
    A formal delivery and acceptance of a deed is, in no case, essential to convey title, and if the circumstances show an' intention on the part of the grantor to deliver, it is all the law requires, and tantamount to a delivery. A delivery may be by words merely, without acts. Masterson et al. v. Cheek et al. 23 Ill. 73; Gunnell et al. v. Cockerill et al. 79 id. 79.
    Where the grantor executes a deed without the knowledge of the grantee, files it in the office of the recorder of deeds, for record, and afterwards tells the grantee that he has made the same, and the grantee replies, “That was all right,” or “Very well,” or words to that effect, it has been held to constitute a good acceptance of the same. Kingsbury v. Burnside et al. 58 Ill. 310.
    After the acceptance of a deed by the grantee he may do what he chooses with it, and make any person the custodian, even the gr'antor himself. Otis v. Spencer, 102 Ill. 622.
    Where the grantor places a deed in the hands of another, for the purpose of conveying title to the grantee, and the grantee, being subsequently informed thereof, accepts the same, it is held sufficient to convey the title to the grantee, although the deed was lost, and never passed into the hands of the grantee. Bennett et al. v. Waller et al. 23 Ill. 97.
   Mr. Justice Dickey

delivered the opinion of the Court:

The only ground urged for the reversal of the judgment of the Appellate Court in this case, is the alleged want of delivery of the mortgage by Elias Burton and wife to appellees, dated September 17, 1872, and filed for record the next day in the recorder’s office in Coles county, in which the real estate in question lies.

The proofs show that Elias Burton, of Illinois, being indebted to his brother Thomas, then resident in Ohio, the latter requested the former to secure the indebtedness by a mortgage upoh his real estate, and he promised to do so.After the creditor brother had gone to Ohio, the debtor and his wife signed, sealed and acknowledged the mortgage in question, and the debtor gave the same to the recorder, to be recorded, and soon after notified the mortgagee by letter that he had executed the mortgage. The mortgagee answered, requesting his brother, the mortgagor, to retain the mortgage for him, as he soon expected to come to Illinois. It turned out that he did not come so soon as was expected, and the mortgagor, having received the mortgage from the recorder, laid it away, to await the arrival of the mortgagee. By some mishap the mortgage was lost, and never came into the manual possession of the mortgagee. The proofs do not show at what exact date the mortgage was taken from the recorder’s office by the mortgagor—whether before or after the letter of the mortgagee asking his brother to keep the mortgage until his coming. The mortgagor testifies: “When I signed the mortgage, it seems to me I took it to the recorder’s office. ” The record shows it was filed the day next after its date. This witness proceeds: “My best recollection is, that some time after that I called at the recorder’s office and got it. * * * My brother Thomas requested me to make the mortgage. * * *' He knew it was made. I wrote him. ” He further testified that he retained the mortgage under a statement in a letter from his brother “that he would be out here in a short time, and for me to retain it and keep it. ” The mortgagee, on this subject, testifies: “It was made about the 17th of September, 1872, and recorded shortly after. * * * He gave me the mortgage because I demanded it. * * * I told Elias he must give me a mortgage on his land, to secure me. He said he would do so, and afterwards informed.me he had. * * * When I wrote' him for the mortgage, some years afterward, he informed me that it had got mislaid, and he could not find it. * * *' When he told íne he and his wife had made me a mortgage, and had it recorded, I asked him to keep it for me until I got there. ”

It is plain, from the mode of examining the witnesses, that at the hearing this question of delivery was not the main point in controversy. The answer, in general terms, denies the execution of the mortgage, but does not make a distinct point of the supposed want of delivery, and places the specific defence on other grounds, not now relied upon.

We think the decree was properly affirmed by the Appellate Court. Appellant insists that the proof fails to show that the mortgage was accepted while it was in the hands of the recorder. Assuming this to he material, the transcript from the record of the mortgage was prima facie, evidence of its delivery. The burden of showing that the acceptance came after the recorder had parted with the deed would seem to rest upon appellant. Be this as it may, the mortgage having been made, and acknowledged, and recorded, it needed only the assent of the mortgagee to make the delivery good. It had been delivered to the recorder, for the mortgagee, and even if withdrawn, after record, by the mortgagor, such withdrawal was plainly an act done for the mortgagee, and when his assent was made known, the manual possession of the mortgagor became at once the possession of the mortgagee.

The judgment of the Appellate Court is therefore affirmed.

Judgment affirmed.