author: Mr. Justice Scott

text:
    Thomas M. Campbell v. The People of the State of Illinois.

      Filed at Mt. Vernon March 29, 1884.

    1. Chiminal law—local jurisdiction of offences—exception to the rule. Under the constitution and laws of this State, as at common law, the local jurisdiction of, all offences is in the county where the offence is committed. The crime of larceny is made an exception, and the offender may be tried in any county to which he carries the stolen property, or where it may be found, as well as in the county in which the property was first taken. This rule has no application, however, to any crime other than larceny. The offence of receiving stolen property, or aiding in its concealment, knowing it to have been stolen, is not embraced in section 393 of the Criminal Code, and the person must be tried in the county where the offence was committed.
    2. SAME—former acquittal—whether a bar to a second prosecution—• jurisdiction essential—former acquittal in another county. The trial and acquittal, in one county, of one charged with receiving stolen goods, knowing them to have been stolen, is no bar to an indictment for the same offence in a different county, unless it shall appear that the offence was committed in the county in which the acquittal was had, so as to give the circuit court of that county jurisdiction. An acquittal of a crime by a court having no jurisdiction is no bar to a prosecution for the same offence in a court having jurisdiction.
    3. The general rule at common law is, that an acquittal in one county can only be pleaded in the same county, for the reason that all indictments are local; and if the first is laid in the wrong county, the defendant can not be found guilty, and could not have been in legal jeopardy. To this rule there are a few exceptions, as, in larceny, and in case of a change of venue, as in this State.
    4. Same—former acquittal, to be a bar, must have been in respect to the same identical offence—and the plea must so show. To make a plea of a former acquittal or conviction a bar to a second indictment, proof of the facts alleged in the second must be sufficient in law to have warranted a conviction upon the first indictment of the same offence charged in the second one, and not of a different offence; and the plea must show that the offence charged in both cases is the same in law and in fact, and the question must be determined by the facts appearing from the record, without the aid of extrinsic circumstances.
    5. Same—of a plea of former acquittal—its requisites. A plea of an acquittal of the same offence in a different county is defective, in substance, if it fails to show that the court of such other county had in some legal way acquired jurisdiction of the subject matter, and how such jurisdiction was acquired, as, by a change of venue, or, in case of larceny, by the defendant having taken the stolen property into such county.
    6. Same—a plea must answer all it professes. A special plea (as, a former acquittal,) to an indictment containing several counts, if it fails to answer any one count, is bad on demurrer.
    7. Same—concealing stolen property. A party knowing property to have been stolen, has no right to conceal the same, even with the intention to save himself from loss; and a clause in an instruction, on the part of the defendant, announcing a different rule, will vitiate the entire instruction, m

      8. Same— general verdict on several counts. On an indictment for receiving stolen property, and also for aiding in its concealment, charged in two separate counts, both of.which relate to but one and the same transaction, the punishment for each offence, even if distinct ones, being the same, a general verdict of guilty is good, and will sustain a judgment inflicting a single punishment.
    9. Practice—improper remarks of State’s attorney—waiver by failing to object. A party on trial upon a criminal charge will not be permitted to remain quiet without calling the attention of the court to it, and permit the State’s attorney to indulge in improper language, and afterward assign the same for error. He must object at the outset, or his objection will be deemed to have been waived. But the fact defendant’s counsel may "have traveled outside of the record, and made statements not warranted by the evidence, affords no justification for the State’s attorney to do the same thing.
    10. Instruction—giving undue prominence to particular facts, and giving improper construction to a letter. On the trial of one for receiving, and also for aiding in concealing, stolen property, an instruction directing the attention of the jury to a particular part of the evidence, and giving it undue, importance, and which also gives a construction to a letter of the defendant not warranted by any correct reading, is properly refused.
    11. Same—should be applicable to the case. Although an instruction contains a correct principle of law, yet if it has not the slightest application to the facts of the case, its refusal is proper.
    Writ of Error to the Circuit Court of Jackson county; the Hon. Daniel M. Browning, Judge, presiding.
    Messrs. Albright & Harben, and Mr. R. M. Davis, for the plaintiff in error:
    The court erred in sustaining the demurrer to the plea of autre fois acquit. The demurrer admits the offences in the two indictments were identical. Section 399 of the Criminal Code, gives jurisdiction in any county in the State through which stolen property may be taken. Having been tried in the county where property is stolen, the defendant can not be tried in any other county. 1 Bishop on Crim. Law, 981, 982.
    One convicted of a particular offence contained in another, or which includes another, can not be again tried for such other offence. State v. Chaffin, 2 Swan, (Tenn.) 493; 1 Bishop on Crim. Law, sec. 1058; State v. Johnson, 12 Ala. 849; Drake v. State, 60 id. 42.
    The State can not split up one crime and prosecute it in parts. A prosecution for a single part of a crime bars any further prosecution upon the whole or any part of the same crime. State v. Cooper, 1 Gr. (N. J.) 361; Regina v. Ellington, 9 Cox, C. C. 86; State v. Damon, 2 Tyler, 387; Jackson v. State, 14 Ind. 327; 1 Bishop on Crim. Law, sec. 1060; Roberts v. State, 14 Ga. 8; State v. Lewis, 2 Hawks, (N. C.) 98; Foster v. State, 39 Ala. 229; Harrison v. State, 36 id. 248; State v. Spear, 6 Mo. 644.
    As to the improper remarks made by the State’s attorney in his closing speech, highly calculated to prejudice the jury from consideration of matters not in evidence, counsel referred to the following cases: Wilson v. People, 94 Ill. 299; Bulliner v. People, 95 id. 394; Earll v. People, 99 id. 123.
    The two offences charged are inconsistent, and a general verdict of guilty, including both counts, is erroneous. Tobin v. People, 104 Ill. 565.
    Mr. James McCartney, Attorney General, and Mr. William Schwartz, State’s attorney, for the People:
    The local jurisdiction of all offences not otherwise provided by law, shall be in the county where the offence was committed. Underwood’s Stat. p. 477, chap. 38, sec. 395.
    In section 399 of the same statute, in case of larceny, jurisdiction is conferred on the court in any county into which the property is taken, or through which it passed. But this case is not for larceny.
    The two offences can not be the same, and saying so does not make it so, where the facts set out in the record contradict it. Perkins v. State, 9 Texas, 272.
    The two offences must be the same both in law and in fact. State v. Nash, 86 N. C. 650; Rex v. Tyler, 3 B. & C. 502; Freeland v. People, 16 Ill. 381; 1 Chitty on Crim. Law, 452; 3 Greenleaf on Evidence, sec. 36; State v. Standifer, 5 Ala. 523.
    As Campbell could not have been convicted on this charge in Perry county, he could not have been in jeopardy on this indictment. 4 Blackstone’s Com. 336, and notes; Rex v. Taylor, Dowling & Ryland’s N. P. cases, 422; Rex v. Vandercourt, 2 East’s P. C. 519.
    In a ease of larceny the plea would be good. Meyers v. People, 26 Ill. 176; Stinson v. People, 43 id. 397.
    As to the jurisdiction of the offence, and the sufficiency of the plea, see Wharton on Conflict of Laws, 927, 931; Wharton on Crim. Law, see. 288; Wharton on Crim. Pl. and Pr. secs. 442, 473, 475; Moore v. Illinois, 14 How. 13; State v. Rankin, 4 Coldw. 145; Phillips v. People, 55 Ill. 430; Marshall v. State, 6 Neb. 121; State v. Adams, 14 Ala. 486; United States v. Amy, 14 Md. 152; State v. Inness, 53 Maine, 536; Commonwealth v. McCauley, 105 Mass. 69.
    If one count is good it will sustain a general verdict. Curtis v. People, Breese, 197; Townsend v. People, 3 Scam. 329; Holliday v. People, 4 Gilm. 113; Wharton on Crim. Pl. and Pr. sec. 291.
   Mr. Justice Scott

delivered the opinion of the Court:

The indictment presented by the grand jury in the circuit court of Jackson county, at the December term, 1882, against Thomas Campbell, contains two counts. The first one charges defendant with receiving stolen goods, knowing the same to have been stolen, and the second charges him with unlawfully and feloniously aiding in concealing stolen property, knowing the same to have been stolen. On being arraigned at the March term of the court, 1883, defendant entered a motion to quash the indictment, which motion being overruled by the court, he entered a plea of not guilty, on which a trial was had, but the jury failing to agree, they were discharged, and the cause continued. At the August term of court, 1883, defendant seems to have filed a special plea, in which it is averred, in substance, he was indicted in the county of Perry, at the October term, 1882, of the circuit court of that county, with one Robert C. Milburn, for the identical same offence, and that on the trial in the circuit court of that county he was acquitted. To the plea setting forth, with the usual formality, the proceedings had against defendant in the circuit court of Perry county, and his acquittal of the offence charged against him in the indictment, by the verdict of a jury, and the judgment of the court thereon, the State’s attorney prosecuting filed a demurrer, which was by the court sustained. On the trial at that term of the court, on the plea of not guilty, filed at a former term, defendant was found guilty by the jury, and the term of punishment fixed at a period of three years in the penitentiary. Motions for a new trial and in arrest of judgment were severally overruled, and the court pronounced judgment on the verdict.

The points made upon which defendant most confidently relies for a reversal of the judgment against him are, the court erred, first, in sustaining the demurrer to the plea of autre fois acquit; second, in refusing certain instructions asked by defendant; and third, in permitting the State’s attorney, in his closing argument to the jury on behalf of the People, to make remarks concerning defendant not warranted by the evidence, and which were calculated to prejudice his defence.

The principal question in the case arises on the decision of the court sustaining the demurrer to the plea of autre fois acquit. The plea contains a copy of the indictment found against defendant in the county of Perry, and it is seen it is an exact copy of the one found against defendant by the grand jury of the county of Jackson, and under which he was convicted, except the venue is laid in the county of Perry. The indictments in both counties contain two counts,—one for receiving stolen property, knowing it to have been stolen, and one for aiding in concealing stolen property,—and were found under section 239 of the Criminal Code. (Rev. Stat. 1874.) It is hardly necessary to state a principle so elementary, that if the circuit court of Perry county had no jurisdiction to try defendant for the crime with which he is charged in Jackson county, its judgment would be no bar to the present prosecution. Under the constitution and laws of this State, as at common law, the local jurisdiction of all offences is in the county where the offence is committed. (See art. 2, sec. 9, Const. 1870, and sec. 395 of the Crim. Code, Rev. Stat. 1874.) The statute, it will be seen, follows closely the constitution, and declares, “the local jurisdiction of all offences not otherwise provided by law shall be in the county where the offence was committed.” Among the provisions for jurisdiction of the same offence in more than one county, is where, as in section 399 of the Criminal Code, which provides, concerning jurisdiction in larceny, that “where property is stolen in another State or country, and brought into this State, or is stolen in one county of this State and carried into another, the jurisdiction shall be in any county into or through which the property may have passed, or where the same may be found.” This latter statute is simply declaratory of the common law on the same subject. Larceny, under the laws of this State, “is the felonious stealing, taking and carrying, leading, riding or driving away the personal goods of another.” The common law,—which. contained the same definitidn of larceny,—seems to have regarded the felony as having been committed where the goods were feloniously stolen, but for the purposes of jurisdiction the offence was treated as having been committed within any jurisdiction into which the property was afterwards carried. The rule on this subject proceeds on the legal assumption that where the property has been feloniously taken, every act of removal may be regarded as a new taking and asportation. (3 Gray, 434.) That is the meaning of the statute of this State concerning jurisdiction in larceny cases. It has no application, however, .to any crime other than larceny. The offence or offences with which defendant stands charged are not embraced within the terms of the statute.

The plea of autre fois acquit is grounded on that principle of the common law, and which has been incorporated in the constitution of this State, no person shall “be twice put in jeopardy for the same offence.” A former acquittal may always be pleaded to a second indictment for the same offence, which implies that the court that pronounced the judgment of acquittal had jurisdiction of the cause. The principle is of course familiar, but there is often some difficulty met with in its application. Generally the rule is, as at common law, an acquittal in one county can only be pleaded in the. same county, and the reason assigned is, be-" cause all indictments are local, and therefore if the first were laid in a wrong county the defendant could not be found guilty upon it, and consequently was in no danger, and therefore could not plead' an acquittal upon it in bar of a subsequent indictment for the offence in the proper county. (Vaux’s case, Pt. 4, Co. 45 d, Com. Dig. Indict. L.; 1 Wharton on Crim. Law, p. 555, ed. of 1874; Marshall v. The State, 19 Ohio St. 363.) But at common law there were exceptions to this general rule, and one of the exceptions most frequently noted is in cases of larceny where the jurisdiction might be where the felony was in fact committed, or in that jurisdiction into which the property might be carried, and that exception, as well as some others, exists under the laws of this State. Among the other exceptions, under our laws, is where the venue is changed, under the statute, from one county to another.

It is said by text writers, the Crown may either traverse or demur to the plea of autre fois acquit. The same practice would no doubt prevail under our system of jurisprudence. In this case the question as to the sufficiency of the plea to bar the prosecution arises on a demurrer to it, interposed by the People. The rule laid down by Blackstone as to pleas of this character has been adopted by this court in Freeland v. The People, 16 Ill. 380, and is, with reference to former acquittal or conviction, it “must be upon a prosecution for the same identical act and crime. ” All the authorities hold, that to entitle a defendant to the benefit of this plea it is necessary the crimes charged in the first and second indictments should be the same, and that if the crimes charged in the first and second indictments are so distinct that the evidence of the one will not support the other, a conviction or acquittal of the one will not bar a prosecution of the other,—or, adopting the language of this court in Freeland v. The People, the rule may be stated to be, that to make the plea a bar, proof of the facts alleged in the second indictment must be sufficient in law to have warranted a conviction upon the first indictment of the same offence charged in the second, and not of a different of-fence. The general rule adopted for ascertaining the identity of the offences is as stated by Archbold in his work on Criminal Pleading, 106, where it is said: “The true test by which the question whether the plea is a bar in any particular case, may be tried, is, whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction on the first. Substantially the rule has been stated in the same way by Chitty in his work on Criminal Law, and as stated by both authors it has been adopted by this court. Applying these well understood principles to the plea being considered, the case ought not to present any great difficulty. Would proof of the facts alleged in the indictment in Jackson county have warranted a legal conviction on the indictment in Perry county ? That is one of the tests, it is said, must be applied, and it is obvious the question admits of only a negative answer. Certainly the offence of receiving stolen property in Perry county, knowing it to have been stolen, is not the same offence as receiving stolen property in Jackson county with a like guilty knowledge. As a matter of law they are distinct offences,—as much so as a murder committed in one county is a distinct crime from a murder committed in another county. Proof of a murder committed in one county would not sustain a prior indictment for the same murder in another county; nor could the first acquittal be pleaded in bar of a second indictment found in the county where the crime was in fact perpetrated, and the reason is, because in the judgment of the law the accused was not in jeopardy on the first indictment. The principle is, as at common law, if the offence charged in the second indictment is in one king’s reign, and the first indictment was confined by the contra pacem to the preceding reign, an acquittal upon the first could not be pleaded in bar to the second. The ground upon which that principle is said to rest is, the contra pacem tied up the prosecution to proof of an offence in a particular reign. By our system of pleading, the venue, as laid in the indictment, confines the prosecution to proof of an offence committed in a particular county, as effectually as the proof was limited by the contra pacem regís at common law to an offence committed in the reign of a particular king.

It is the settled law that an acquittal on one indictment, in order to be a good defence to a subsequent indictment, must be an acquittal of the same identical offence as that charged in the second indictment. That fact must in some way appear from the plea itself, and that the offences charged in both cases were the same in law and in fact. (Commonwealth v. Roby, 12 Pick. 496.) The question must be determined by the facts appearing from the record, without the aid of extrinsic circumstances. All questions arising on demurrer to pleadings must, of course, be determined without reference to any evidence that may thereafter be given on the trial of the cause. It is not always enough the two indictments may appear to be in precisely the same words. That may well be, and yet the offences distinct felonies, as, for instance, where there are two indictments for rape, it might be the same person committed a rape upon two women of precisely the same name, and an acquittal on one indictment would not bar a prosecution on another, unless it was made to appear in some way it was identically the same offence. But the best, and perhaps the most accurate, test given in the hooks is, as before stated, would the evidence necessary to sustain the facts alleged in the second indictment have been sufficient to sustain a legal conviction on the first indictment. In the case being considered it is so plain it need not be elaborated further, that proof defendant had received stolen property in Jackson county, know'ing it to have been stolen, would not have sustained an indictment for the identical same offence in Perry county. The plea might have shown, had that been the fact, that the Perry county circuit court got jurisdiction by change of venue to try defendant on a proper indictment for receiving stolen goods in Jackson county, and such a plea would have been a bar to a prosecution on a second indictment in Jackson county for the same offence. That was not done, simply because it would have availed nothing. It has been seen original jurisdiction of an offence, like the one charged in the first count of the indictment against defendant, is necessarily local, and is confined to the courts of the county w'here the offence is committed, and an acquittal elsewhere is as nothing in law. The plea in this case is in the usual form given w'here it is filed in the same county where the trial was had on the first indictment, to a second indictment in the same court for the same offence. But that is not sufficient in a case like the one being considered. Here the plea is defective, because it does not show, by way of averment, that the circuit court of Perry county in any way, or for any cause, obtained jurisdiction to try defendant for the crime of receiving stolen goods, with guilty knowledge, in the county of Jackson, and therefore it is obnoxious to the demurrer.

A question might arise as to whether the plea might not be good as to the second count of the indictment, which charges defendant with aiding to conceal stolen goods. It might be he aided in concealing the property in Perry county, and that fact would have conferred jurisdiction. How the law may be on that question it will not now be necessary to decide, for it does not appear from the plea the property was ever in Perry county. That fact is jurisdictional, and must appear, or the plea will be bad. It will be observed the former acquittal pleaded took place in another county, and not within the jurisdiction of the court where the second indictment was found, and it is necessary the plea should show the court had jurisdiction to try defendant for the identical offence charged in the second indictment. It is apprehended it must appear, from the plea itself, how the court obtained jurisdiction, otherwise the plea will be no bar.' Lord Hale states the rule to be, that a plea of former acquittal is no bar to an indictment for larceny in the county of G, for though the accused be acquitted in D, it may be because the goods were never' brought into that county, and so the felony in C was not in question.

But another view renders any further consideration of this branch of the case unnecessary. The plea of autre fois acquit, it will be observed, is to the whole indictment. Failing to answer any one count of the indictment, the plea would be bad on demurrer. (Commonwealth v. Wade, 17 Pick. 395.) As has been seen, it was clearly bad as to the first count of the indictment, because it did not show how, or for what reason, the circuit court of Perry county obtained jurisdiction to try defendant for receiving stolen goods in Jackson county, knowing the same to have been stolen. As a matter of law, that court could have no original jurisdiction. Had defendant pleaded “not guilty” to the first count of the indictment, and “autrefois acquit” as to the second count, which charges him with aiding in concealing the stolen goods, then the question whether the circuit' court of Perry county had jurisdiction on the first indictment to try defendant for that offence, on the ground it was an offence that might be committed in any county into which the property was carried and concealed, would have been fairly presented, and might have been definitely determined. But that was not done, and the demurrer was properly sustained.

Passing now to the consideration of the instructions given by the trial court, it does not appear from the transcript of the record in this case that more than one instruction was given on behalf of the People. That has relation to the form of the verdict, and it is so clearly accurate no question is made concerning it. On behalf of defendant a great number of instructions were given, stating the law very favorably for the defence sought to be made. Of the instructions refused that were asked for by defendant, it is insisted it was error in the court not to give the first, second and third of the series as they appear in the transcript of the record. The first instruction is faulty, because it directs the attention of the jury to a particular piece of evidence, and gives an undue importance to it, and for the further reason it gives a construction to the letter to which attention was called, not warranted by any correct reading of the same. The proposition contained in the second charge, if defendant concealed the stolen property “with an intention to save himself from loss,” is not the law, and that vicious clause rendered the whole instruction bad. If it be conceded the third charge contains a correct principle of law, it could not have the slightest application to the facts of the case, and the court very properly refused it.

In support of his motion for a new trial, defendant filed his own affidavit of matters stated and accusations made by the State’s attorney in his closing argument to the jury, against defendant, not warranted by any evidence in the case. If the State’s attorney said all that is imputed to him, his conduct in that respect is not free from blame. It is no sort of justification for him that counsel for defendant may have traveled out of the record and made statements not warranted by the evidence. But it does not appear from anything in this record that defendant called the attention of the court to the objectionable language at the time. Had he done so, no doubt the court would have checked counsel at once, and admonished him not to repeat the objectionable language. A party on trial will not be permitted to remain quiet, without calling the attention of the court to it, and permit counsel to indulge in improper language, and afterwards assign the same for error. He must object at the outset, or his objection will be deemed to have been waived. Counsel say, in the case at bar, that at the time the objectionable language was being used, the attention of the trial judge was called to the fact, and the judge not only failed to check counsel, but gave him license to proceed. No such objection is found in the abstract. The transcript of the record has also been examined, and no such thing is discovered, if any exists. Failing to call the attention of the court to the improper language at the time it was used, it is now too late to insist upon it as error. The fact it was embodied in an affidavit in support of a motion for a new trial, does not dispense with the necessity for calling the attention of the court at the time that counsel might be confined to the record in the argument of the case. Omitting to do so, the objection can not now prevail. Wilson v. The People, 94 Ill. 299.

Without entering upon any analysis of the evidence, it may be said, when it is subjected to a careful consideration it is seen it fully justifies the verdict. Ordinarily, the question of the guilt or innocence of the accused on trial for crime is a fact peculiarly within the province of the jury to find, It is the duty of the court, however, to see that no injustice is. done the accused, and for that reason the court must consider the evidence in all criminal cases that come before it. That has been done in this case, and no reason is perceived for disturbing the verdict.

It has been observed the indictment contains two counts,— one for receiving stolen property, and the other for aiding in concealing stolen property,—and it is insisted a general verdict of guilty is bad. Both counts in this indictment relate to the same transaction, and the punishment, even if the offences are distinct, is precisely the same. That being so, under the decision of this court in Lyon v. The People, 68 Ill. 271, a general verdict is good in law, and will sustain a judgment imposing a single punishment, as was rendered in this case.

No serious error is discovered in the admission of testimony against defendant, that would justify any complaint on that score. The suggestion the letter read in evidence was written under such circumstances as made it a “privileged communication, ” has so little in its support it need not be remarked upon. On the whole record, when considered, no error materially affecting the merits of the case is perceived, and the judgment of the circuit court must be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Dickey

license: Public Domain

text:
    James T. Tartt et al. v. Philip H. Clayton et al.

      Filed at Mt. Vernon May 15, 1884.

      1. Mortgage with power op sale—sale under, not vitiated, if bought in part payment of mortgagee’s indebtedness. On the sale of land by a mortgagee, under a power of sale, for default in payment of moneys thereby secured, the fact that the purchaser pays no money to the mortgagee, but the amount of the bid is applied upon a debt due from him to the purchaser, under an arrangement to that effect before the sale, will not affect the validity of such sale.
    2. Same—burden of proof to invalidate sale. On bill to set aside a sale of land under a power in a mortgage, on the ground the notice of the sale was defective, and was published'in an obscure paper, the burden of proving such ground rests upon the complainants.
    3. Same—notice of sale—recitals in deed as evidence. Recitals in a deed made by a mortgagee under a power of sale, of the giving of due notice of the sale, in conformity with the requirements of the statute and in pursuance of the provisions of such mortgage, by advertisement in a certain public newspaper printed and published in the county, for the space of thirty days, said advertisement containing a description of the real estate sold, with the time, place and terms of sale, show prima facie that the notice of the sale was good. The fact that such deed recites particularly certain essentials and omits certain others, does not repel the conclusion that the notice was good.
    4. Same—sale under power—when personal notice necessary. Where a mortgagee holding under a mortgage containing a power of sale, may have thrown persons succeeding to the rights of the mortgagor off their guard by seeking different relief by bill in chancery, it may be that before selling upon notice under the power of sale in the mortgage, he should notify the mortgagor or his assignee of his intention; but if a specific demand is made for the payment of the sum due, of the mortgagor, or one holding a second mortgage, such persons can not say they have been lulled into security; and the mortgagee, before selling under the power, is not bound to give personal notice to one holding an interest in the premises through the mortgagor, where it appears that the mortgagee had no notice of such one’s interest. Nor is notice necessary to any one interested who was not lulled into security by the pendency of the bill in chancery.
    5. Same—filing bill by mortgagee to set aside his deed to mortgagor, and his mortgage, does not deprive him of right to sell under power.
      Where a party has conveyed land to his daughter, taking back a note from her husband, secured by mortgage of the husband and wife, for the payment of an annuity of $200, the mere filing of a bill by him to set aside his deed to his daughter, and the annuity mortgage, and another mortgage given by his grantee and her husband, upon the allegation that the mortgage is not adequate security for the payment of his annuity, will not strip such party of the right to change his mind, and proceed to enforce the mortgage by a sale under a power therein, especially when all the defendants answer the bill, insisting that he has ample power to collect his annuity under the mortgage.
    Appeal from the Circuit Court of Madison county; the Hon. William H. Snyder, Judge, presiding.
    This was a hill by James T. Tartt, and John A., Julius L. and Harris E. Prickett, the three last being partners, against Philip H. Clayton and Lucy A. Clayton, seeking to set aside a deed of certain lands, made October 7, 1881, to Lucy A. Clayton, by Philip H. Clayton, as mortgagee, under a power of sale in a mortgage given by Thomas M. Tartt, and Jennie C. Tartt, his wife, to said Philip H. Clayton. On November 1, 1875, Philip H. Clayton, being about to marry, conveyed to his daughter, Jennie C. Tartt, the land involved in this litigation, taking back from her and her husband, Thomas M. Tartt, a mortgage, to secure to him from September 1, 1876, the payment from them of an annuity, during his natural life, of $200, to be paid on September 1 of each succeeding year during his natural life, which mortgage provided that upon default in any of the payments, the mortgagee might advertise the land for sale in some public newspaper to be published in the county of Madison, for the space of thirty days, the advertisement to contain a description of the real estate, with the time, place and terms of sale; that upon the day and place named the mortgagee might sell said real estate at public auction, to the highest bidder, for cash in hand, and make a deed or deeds to the purchaser or purchasers, the sale to be without redemption; and that with the proceeds of the sale he pay, first, all costs and reasonable charges attending the sale and transfer; second, whatever sum might re-a main due and unpaid to the mortgagee upon such annual payments, and the remainder, if any, to the party of the first part, their heirs and assigns. This mortgage was duly recorded. Default having been made in the payment of $200 on September 1, 1880, and $200 on September 1, 1881, Philip H. Clayton advertised the property for sale, and on October 7, 1881, sold the same to Lucy A. Clayton, his wife, by marriage after the mortgage was given, for $439, she being the highest bidder, and he at once made a deed conveying the property to her, which is the conveyance sought to be set aside by the bill in this case. The right to have such sale and conveyance set aside is based upon the following facts: On January 26, 1878, Thomas M. Tartt, and Jennie C., his wife, made a second mortgage on the same land to Charles T. Clayton, a son of Philip H. Clayton, and a brother of Jennie C. Tartt, to secure the payment of a promissory note of that date, given by Thomas M. Tartt to said Charles T. Clayton, for $2316, payable in ten months from its date. In this mortgage the annuity mortgage is mentioned as a prior incumbrance. This second mortgage was afterwards foreclosed, and the property sold, under a decree of court, to satisfy the sum due on the same, and costs, and at the sale .was bought by James T. Tartt for $3263.06, he being at that time the owner of the demand, as assignee of Charles T. Clayton, and a certificate of purchase was given to him by the master in chancery, dated February 14, 1880. Before the time of redemption expired, James T. Tartt assigned this certificate of purchase to a banking corporation, called “The Farmers’ Exchange and Loan Company,” and this company shortly afterwards assigned the same to the Pricketts, to whom the master made a deed, which was recorded September 27, 1881.
    The grounds stated in the hill on which the sale and deed to Mrs. Clayton are sought to be set aside are:
    First—That the advertisement of the sale, and the deed, are both insufficient.

      Second—That there was pending, at the time of the sale, a bill, by which Philip H. Clayton sought to have his deed for this property to Mrs. Tartt, and the annuity mortgage, and the mortgage by Thomas M. Tartt and wife to Charles T. Clayton, set aside, and the title to the land restored to him. The recital in the deed to Mrs. Lucy A. Clayton, so far as relates to notice, was in these words: “Having first given due notice of the sale hereinafter mentioned, in conformity with the requirements of the statute and in pursuance of the provisions of said mortgage, by advertisement in the ‘Madison County Sentinel,’ a public newspaper printed and published in the county of Madison aforesaid, for the space of thirty days, said advertisement containing a description of the real estate aforesaid, with the time, terms, and place of sale. ” The advertisement itself was not produced by either party.
    Third—That none of the parties in interest had actual notice of the sale.
    Fourth—That the paper in which the notice was published was an obscure one, and that defendants in this suit, by reason thereof, and by reason of the pending suit, fraudulently concealed the sale, and threw the parties in interest off their guard, etc.
    On the hearing, the circuit court dismissed the bill, from which order the complainants appealed to this court.
    Messrs. Metcalfe & Bradshaw, and Messrs. Happy & Travous, for the appellants :
    The bill to set aside his conveyance, by Philip H. Clayton, is a disclaimer of all claim under his mortgage, and is notice to all that he claims nothing by his mortgage, and lulled them into security. During the pendency of this suit, no matter what the motives were in filing the bill, the sale under the power, without notice to those in interest, that they might protect their rights, was a fraud. Whether these statements, to constitute an estoppel, are made privately or in a suit, can make no difference. Smith v. Newton, 38 Ill. 230; Ball v. Hooten, 85 id. 159; Baker v. Whitehead, Breese, 132; Cook v. Hunt, 24 Ill. 535; Young v. Foute, 43 id. 33; Moses v. Kreige, 49 id. 84; International Bank v. Bowen, 80 id. 541.
    Again, in a sale-mortgage such as Clayton’s, he, as mortgagee, occupies the double relation of payee of the note and trustee to sell, and in testing the sale his acts are to be judged of by the law applicable to trustees. Flower v. Elwood, 66 Ill. 438; Grover v. Fox, 36 Mich. 461; Ross v. Demoss, 45 Ill. 447; Hall v. Towne, id. 493; Roberts v. Fleming, 53 id. 196; Harper v. Ely, 56 id. 179; McHany v. Schenck, 88 id. 357; Hebert v. Bullo, 42 Mich. 489; Lee & Bassett v. Clay, 38 id. 223.
    The mortgage provided for a sale for cash, and the trustee 'could sell no other way. The arrangement to sell otherwise was made by the trustee before sale, and differs from a case where time is given after sale. Mapps v. Sharp, 32 Ill. 13; Ross v. Demoss, 45 id. 447; Hall v. Towne, id. 493; Griffin V. Marine Ins. Co. 52 id. 130.
    Mrs. Clayton is not a bona fide purchaser for value. She paid no money. Moshier v. Knox College, 32 Ill. 155; Powers v. Jeffreys, 4 Scam. 387; Brown v. Welch, 18 Ill. 343; Keys v. Test, 33 id. 316.
    Messrs. Wise & Davis, for the appellees:
    It is contended that the recitals in the deed made under the power do not amount to prima facie evidence of due notice; but how does that amount to proof that such notice was not given ? A thing may fall short of being prima facie proof of a thing, without being proof of the contrary. Farrar v. Payne et al. 73 Ill. 82.
    ' As to the evidence of the due publication of the notice from the recitals in the deed, see Farrar v. Payne, 73 Ill. 82; Weld v. Rees, 48 Ill. 428.

      There is no proof that Philip H. Clayton began his suit to set aside the mortgage with the fraudulent design of throwing appellants off their guard. Philip H. Clayton' was not estopped from making sale under his mortgage during the pendency of his suit to set it aside. The mortgagors are not parties to the suit now before this court. They are not seeking to set aside the sale to Mrs. Clayton, nor is the Farmers’ Exchange and Loan Company. To estop a party, there must be a fraudulent purpose of the party against whom it is applied, or his acts must produce a fraudulent result. Flower et al. v. Elwood, 66 Ill. 438.
   Mr. Justice Dickey

delivered the opinion of the Court:

After a very careful consideration of this record we think that as against James T. Tartt, one of the complainants, the decree was clearly right.

The evidence produced does not lead us to the belief that Philip H. Clayton, or Mrs. Lucy A. Clayton, has been guilty of any fraud or bad faith in the matter of the sale under the power in the annuity mortgage. Nor do we think the validity of the sale is affected by the fact that Mrs. Clayton, instead of paying to Philip H. Clayton the amount of her bid in cash, paid the same, under an arrangement made with him before the sale, by giving him credit to the amount of that bid, upon an existing indebtedness by him to her for a larger amount. There is no proof whatever tending to show that the paper in which the notice was published was an obscure paper, save the supposed declarations of Mrs. Clayton, mentioned by the witness Adams. She denies making the statement, and swears she does not know anything about the supposed obscurity of the paper. If the status of the paper were not what it ought to be, the fact, from its very nature, could have been proven affirmatively by any number of witnesses, and yet no proof of that kind is offered. That charge is not sustained. Nor is there any proof offered to sustain the allegation that the notice, in itself, was defective in any particular. The notice was not produced by complainants, and no reason is shown for the failure to produce it. The burden of showing that the same was defective was upon complainants. The recitals in the deed sought to be set aside show, prima facie, that the notice was good. The fact that it recites particularly certain essentials, and omits certain others, does not repel the conclusion that the notice was good. The recitals do not profess to set out all that the notice contained. It is merely said in this regard, that the notice embraced the essentials specified. It is not to be inferred that these constituted the whole of the notice.

The mere filing of a bill by Philip H. Clayton, asking that his deed to Jennie C. Tartt, and the annuity mortgage, and the mortgage to Charles T. Clayton, be set aside, upon the allegation that the mortgage was, in the manner in which it was drawn, not adequate security for the payment of his annuity, did not strip him of the right to change his mind and proceed to enforce the mortgage, especially after all the defendants thereto who had been brought into court had answered the bill, insisting that he had ample power to collect his annuity by virtue of the mortgage. As well might it be said that these answers estopped them from questioning his right to sell under his mortgage, for by their answers they asserted that as his present and existing right. True, the pendency of such a suit may have thrown them off their guard, and thus imposed upon the mortgagee the duty of notifying them, in some way, that he proposed to exercise his rights under the mortgage. This he did do, by a specific demand upon Thomas Tartt and upon James Tartt for the payment of the two installments which had matured and become payable, respectively, on September 1, 1880, and on September 1, 1881, and he proceeded to advertise in less than a week after these demands. Thomas Tartt and James Tartt therefore have no ground to complain of being lulled into security by the pending suit.

The only serious question in this regard has relation to the other complainants, composing the firm of John A. Prickett & Sons. The assignment of the interest of Charles T. Clayton to James Tartt carrying with it the right of redemption from the annuity mortgage, was made before the suit of Philip H. Clayton was instituted, and accordingly Thomas Tartt and wife, and James Tartt, were made defendants. In April, 1881, James Tartt having disclosed in his answer the fact that he had assigned his interest to the banking • corporation, complainant took leave to, and did amend, his bill, making that corporation a party; but no process was served upon that corporation, nor does it appear it had any knowledge or notice of the pendency of the suit in question. And although it appears in proof that on the 27th day of September, 1881, a deed of the master conveying this land to them was placed on record, which deed purported to have been made under sale of the same upon proceedings under the second mortgage, and in which it is recited that the certificate of purchase was assigned by the banking corporation to John A. Prickett & Sons, still it does not appear that Philip H. Clayton or his wife had any actual knowledge that the Pricketts had any interest in the matter whatever. In fact, it is not so alleged in the bill.

This is not a- question as to the legal effect of a deed in passing an interest in land. The only interest that deed passed to the grantees was the title of this land, subject to this annuity mortgage, and the recording of the deed vested that interest in the grantees as against any subsequent purchaser of that interest from James Tartt or from the corporation. It did not affect the right of Philip H. Clayton to enforce his annuity mortgage. The question here is one of personal good faith. If Philip H. Clayton, at and before the sale, was ignorant of the interests of the Pricketts, and Mrs. Clayton, at the time of the sale, was ignorant of the same interests, no bad faith can be attributed to them upon the ground that no actual notice was given to them, nor can they complain no actual notice was given to them. True, they stand in the shoes of the Farmers’ Exchange and Loan Company, and it is said no actual notice was given to it. It is not alleged in the bill that this corporation had any knowledge of the pending suit, nor is it alleged that this corporation did not in fact know of the sale sought to be set aside,-before the same occurred. The testimony of John A. Prickett does tend to show that the corporation had no actual notice of the proposed sale until after it occurred, but it also tends strongly to show that the corporation was not misled or lulled into security by the suit of Philip H. Clayton. Prickett testifies that he was the president of that corporation, and that he did not know, until after the sale to Mrs. Clayton, that there was any default in the payment of any of the installments to be paid as annuity to Philip H. Clayton. Had he known of the bill of Philip H. Clayton seeking to set this mortgage aside, he would necessarily have known the ground alleged,— the non-payment of the annuity of 1880, and the peculiar provision of the annuity mortgage, which it was said rendered it inadequate security. It is therefore clear that the Farmers’ Exchange and Loan Company was not lulled into security by the suit of Philip H. Clayton, and therefore was not prejudiced thereby.

As to the firm of John A. Prickett & Sons, who acquired their rights from the corporation in April, 1881, Philip H. Clayton, as trustee under the mortgage, owed them no duty he did not perform. He did not have any actual knowledge of their interests in this regard. The bill does not allege such notice, and no proof tends to show it. It is said the filing for record of their deed on September 27, 1881, was notice to him and to Lucy A. Clayton, the purchaser. This is true as to constructive notice. It is equally true that all the complainants (embracing the Pricketts) had constructive notice of the sale, and should have attended to protect their interests.

After a careful consideration of this entire record, we find no error in the decree of the court below. The decree is therefore affirmed.

Decree affirmed.


author: Mr. Justice Craig

text:
    William Maxwell, Sr. v. William Maxwell, Jr. et al.

      Filed at Mt. Vernon March 29, 1884.

    1. Advancement—when presumed from the relations of the parties. The general rule is, that a purchase of land by a parent in the name of a child, or by a husband in the name of his wife, will be presumed to be an advancement, and not a trust.
    2. Same—presumption may be rebutted. But any antecedent or contemporaneous acts or facts may be received to rebut or support this presumption; and any acts or facts so soon after the purchase as to be fairly considered a part of the transaction, may be received for the same purpose.
    3. Same—sufficiency of facts to rebut presumption and raise a resulting trust. In 1842 a husband purchased a half section of land from the United States, and had the patent issued to his wife. They lived together and occupied the same as their homestead until in 1881, when the wife died testate, having devised other lands, but not this tract. The husband filed his bill against her heirs to enforce an alleged resulting trust arising from these facts, and from the fact that he paid all the purchase money, and expended $1500 in improving the premises, and had all the time been treated as the owner, and had paid all the taxes thereon; but it was held that these facts were not sufficient to overcome the presumption of law that the purchase was an advancement to her, and that he having a life estate in the land as tenant by the curtesy, and having the exclusive use of the same, it was his duty to pay the taxes thereon, and that his improvements and possession, as well as payment of taxes, would be presumed to have been under his life estate. The court attached no significance to the fact that the wife failed to dispose of this tract in her will.

      Appeal from the Circuit Court of Randolph county; the Hon. William H. Snyder, Judge, presiding.
    Mr. H. Clay Horner, for the appellant.
    Messrs. Gordon & Hood, for the appellees.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a hill for a deed, brought by William Maxwell, Sr., appellant, against William Maxwell, Jr., and others, children and heirs at law of Margaret Maxwell, deceased, who was the wife of the complainant. It is alleged in the bill, that in the year 18— complainant was married to Margaret Phillips, who remained his wife to her death, in the year 1881; that subsequent to the said marriage, in the year 1842, complainant purchased from the government of the United States the north half of section 32, in township 6 south, of range 6 west, in Bandolph county, Illinois, and paid for the same out of his own individual moneys; that he had said land entered in the name of, and patented to, his said wife, Margaret Maxwell; that it remained in her name to the date of her death; that said Margaret Maxwell had no money of her own at the time of such purchase, nor had she any at the date of her marriage; that complainant had but little property of his own at the time of the purchase; that said land was always understood to belong to complainant, by his said wife and by complainant, and was always treated by them as his property; that it was wild land when purchased ; that complainant cleared and imjoroved said land, and the improvements made on the same amounted to §1500, all made with complainant’s money; that his said wife never expended any money on said land, nor otherwise assisted him; that the said premises were occupied by complainant and wife as a homestead from the date of purchase to the death of his wife, and is yet so occupied by the complainant; that complainant paid all taxes and assessments against said land, and always considered the property his own, and treated it as such; that after her death he was first informed by the children that they would not make him a deed; that the children were not aware that the legal title was in their mother till complainant told them; that said wife died testate in 1881, leaving complainant, (her husband,) and John Maxwell, William Maxwell, Jr., Mathew Maxwell, and Margaret Harmon, her children and heirs; that in her will she disposed of specific real estate in Kansas, and all her personalty, but nowhere mentioned the above described land, and died intestate as to same; that she died intestate as to the land. because she considered it the complainant’s property; that he has applied to defendants for deeds, and they all refused to make them. Prayer of bill for deed from heirs to complainant, etc.

The answer admits the material allegations of the bill, but sets up as a defence to the relief claimed in the bill, that at the time the land was purchased, as alleged in the bill, the complainant “was the owner of eighty acres of other land purchased from the United States government, in Randolph county, Illinois, and could not lawfully buy more, ” and that so owning and holding a patent for eighty acres of other land, the complainant believed he could not lawfully buy more, and for the purpose of evading the law as he believed it to be, he had the land entered in his wife’s name, intending to defraud the government, etc. To this part of the answer complainant filed exceptions, which the court overruled, and complainant electing to abide by his exceptions, the court dismissed the bill, and the complainant appealed.

Whether the complainant, in 1842, at the time the land in question was entered, was precluded from entering more land than he then owned, by the acts of Congress, is a question which we do not find it necessary here to determine, as the decision of the case may be placed upon other grounds.

As before observed, the allegations of the bill were admitted to be true by the answer, and it is contended that the facts alleged and admitted as to the entry and management of the land created a resulting trust, which a court of equity may enforce by a decree requiring the defendants to convey the land to the complainant. It does not always follow that where lands are purchased in the name of one person with the funds of another, a resulting trust is created. Had the land been entered in the name of a person in no way related to the complainant, with the complainant’s money, the case would be relieved of much difficulty; but such is not the case. While the money was furnished by the complainant, the title was taken in the name of his wife. The general rule is, that a purchase of land by a parent in the name of a child, or of a husband in the name of the wife, is presumed to be an advancement, and not a trust. Perry on Trusts, sec. 147, says : “Whether a purchase in the name of a wife or child is an advancement or not, is a question of pure intention, though presumed, in the first instance, to be a provision and settlement; therefore any antecedent or contemporaneous acts or facts may be received, either to rebut or support the presumption; and any acts or facts so immediately after the purchase as to be fairly considered a part of the transaction may be received for the same purpose. ” In Taylor v. Taylor, 4 Gilm. 303, where a parent purchased lands in the names of his two sons, and the question arose whether the purchase was an advancement, or whether they held in trust, it was held that “the presumption of law is, where a father purchases land in the name of his children, unaccompanied by any extraordinary circumstances, that it was intended as an advancement; but the presumption may be rebutted by circumstances. ” ' In Cartwright v. Wise, 14 Ill. 417, where a parent with his own money entered a tract of land in the name of his son, who was an idiot, this court took stronger grounds in sustaining the conveyance as an advancement than was done in the case last cited. In deciding the ease it was said: “The question arises whether a father who purchases land with his own money, and takes the title to his idiot son, can file a bill for a resulting trust, and claim that he did not intend it for the benefit of his son, but for his own use. We are prepared to say that such a bill can not be sustained. It must be held to be an advancement in favor of the child. The policy of the law requires that such an advancement thus made to such a party should be held to be irrevocable by the father. ”

While all that was said in the case last cited was proper under the facts of that case, as it seemed absurd to suppose a person creating a trust would select an idiot for a trustee, yet the language there used might not fully apply to a case of this character. Here the wife might be regarded as a proper person for a trustee, and the question to be determined is, whether the facts set up in the bill are sufficient to overcome the presumption of law that the conveyance was intended as an advancement. The facts relied upon by complainant to overcome the presumption are, that he entered into the possession of the land, improved it, paid the taxes, and occupied it with his wife as a homestead, as "his own property. There is nothing, however, in these facts inconsistent with the theory that the land was conveyed to the wife as an advancement to her. If she took the title by virtue of the patent, as she had children by complainant, he became tenant by the curtesy, and as such he had the right to the possession of the land, the rents and profits, during his natural life, and while occupying under this right, the law cast upon him the burden of paying the taxes. The possession and improvements of the complainant, as well as the payment of taxes, may with the- same propriety be presumed to have been under his life estate in the lands as under a claim of title in fee. The fact that the wife did not dispose of the land by will, as she did other property, is of but little significance. It often occurs that a person who executes a will leaves some property undisposed of, and yet we are not aware that an omission of that character has ever been regarded as evidence sufficient to defeat an absolute title standing of record in the name of a testator. We do not, therefore, regard the allegations of the bill as sufficient to overcome the presumption of law that the purchase by complainant in the name of his wife was intended as an advancement to her.

No case having been made-by the bill, the decree dismissing it was correct, and it will be affirmed.

Decree affirmed.

Mr. Justice Scott, dissenting.


author: Mr. Chief Justice Sheldon

text:
    August Timm v. Carter H. Harrison, Mayor.

      Filed at Mt. Vernon February 15, 1884.

    1. Intoxicating Liquors—act of 1883, concerning the licensing of dram-shops—constitutionality—subject embraced in its title. The act of the General Assembly entitled “An act to restrict the power of counties, cities, towns and villages in licensing dram-shops, for providing a license to retail malt liquors separately, and for punishing persons holding such separate licenses for unlawful sale and gifts," approved June 15, 1883, is a valid and constitutional law, and the subject matter of each of its three sections is embraced the title.
    2. Same—application of the constitutional rule as to mode of amending a statute—License law of 1883. The act of June 15, 1883, concerning the licensing of dram-shops, is not in violation of that clause of the constitution which declares that “no law shall be revived or amended by reference to its title only, but the law revived, or section amended, shall be inserted at length,” as such act does not profess to be amendatory of any other act. Again, section 2 of the act, aside from the change in the amount of the license fee, contains all that is contained in section 3 of the Dram-shop act, with the further provision, “that in all cases where a license is granted for the sale of malt liquors only, such board may grant the same upon payment into the county treasury of a sum not less than $150 per annum for each license, ” which is a full compliance with the constitutional provision that the section amended shall be inserted at length in the new act. It is not necessary to declare in the new act that the section, as amended, is inserted at length.
    3. Same—rule of uniformity in taxation, as applied to liquor dealers. Under section 1, article 9, of the constitution, which provides that “the General Assembly shall have power to tax peddlers, * * * liquor dealers,” etc., in such manner as it shall, from time to time, direct by general law, uniform as to the class upon which it operates, the term “liquor dealers,” is used in a generic sense, and it is competent for the legislature to classify the different kinds of liquor dealers, and impose differential taxes upon such classes; and the rule of uniformity will not be violated so long as the tax imposed is the same upon all the members of the particular class.
    4. Same—extent of the power to regulate the liquor traffic. In the exercise of the police power the legislature may prohibit altogether the sale of intoxicating liquors, and consequently may attach such conditions to the allowance of their sale as it sees fit to prescribe.
    5. Statutes—as to the subject being embraced in the title. It is a sufficient compliance with the requirement of section 13, article 4, of the constitution, if the subject of the enactment is expressed in its title. It is not necessary to state in the title the effect of the subject matter, as, its amending or repealing some prior law.
    6. The repeal of a statute on a given subject is properly connected with the subject matter of a new statute on the same subject; and therefore a repealing section in a new statute is valid, notwithstanding the title is silent on that subject.
    7. Same—as to the mode of amendment, under the constitution. The mischief intended to be remedied by the constitution, which provides that in amending a statute the law or section amended shall be inserted at length, was that of the amendment of statutes by reference to their titles only, where the amendment in many cases could not be understood without looking into the section amended.
    8. Where a new act on a subject is complete in itself, and entirely intelligible, showing of itself just what it is, and its enactment, without reference to any prior law, it will not contravene the constitutional provision. An act complete in itself is not within the mischief designed to be remedied by such provision.
    Appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.

      Mr. Melville W. Fuller, Mr. Harry Rubens, and Mr. Edward Roby, for the appellant.
    Mr. F. S. Winston, and Mr. James McCartney, Attorney General, (with whom were Mr. J. L. High, and Messrs. C. C. & C. L. Bonney, as amici curiae,) for the appellee.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

This was an application, made November 3, 1883, for a writ of mandamus to compel the mayor of Chicago to issue to the petitioner a license for the sale of intoxicating liquors, upon tender of $103, the amount alleged to be the proper license fee under the ordinances of the city of Chicago, the petitioner alleging full compliance with the requirements of the city ordinances. Defendant, by his answer, admitted such tender and compliance with the city ordinances, but justified his refusal to grant the license, under an act of the General Assembly, entitled “An act to restrict the power of counties, cities, towns and villages in licensing dram-shops, to provide for granting a license to retail malt liquors separately, and for punishing persons holding such separate license, for unlawful-sale and gifts,” approved June 15, 1883, in force July 1, 1883, by which act cities, towns and villages are prohibited from granting licenses for the keeping of dram-shops except upon payment of a sum not less than at the rate of $500 per annum, or not less than $150 per annum when the license is for the sale of malt liquors only. Petitioner excepted to the answer, averring that the act of the General Assembly in question was unconstitutional. The court overruled the exception and dismissed the petition, and the petitioner appealed. The record thus presents the sole question of the constitutionality of the act of the General Assembly in question.

It is insisted that the act of June 15, 1883, is in effect an amendment of chapter 43 of the Revised Statutes of 1874, known as the “Dram-shop act, ” and that it violates the provision of section 13, article 4, of the constitution of 1870, that “no act hereafter passed shall embrace more than one subject, and that shall be expressed in the title, ” in that the title of the act does not profess to make such amendment. It is said that if an existing law is amended, the fact that the new act is in amendment of the prior law must be expressed in the title of the new act, because such fact is the “subject” of the new law. The subject matter of each of the three sections of the act of June 15 is embraced in the title. If such subject matter operates to amend or to repeal any prior law, that will be but the effect of the subject matter; and it is only the subject which the constitutional provision requires to be expressed in the title, and not the effect thereof. This precise question we regard as determined by the decision in The People v. Wright, 70 Ill. 388. The court there say of the act which they were, called upon to construe: “Although that act does not, in terms, profess to be ah amendment of the charter of the city of Chicago, it is manifest that such was its necessary effect. It is entitled ‘An act to establish a board of police in and for the city of Chicago, and to prescribe their powers and duties.’ It requires the organization of an executive department of the municipal government of the city, to be known as the ‘board of police of the city of Chicago,’ and to this board it transfers the control and management of the entire police of the city, and also of all public police property. Certain powers theretofore exercised by the mayor and common council are thereafter to be exercised by the board of police. • * * * It (the act) became fundamental—a part of the organic law of the municipality,—in other words, an amendment of its charter; and the mere fact the act in its title does not profess to amend the city charter, is unimportant. It professes to, and does, enact that which makes new "organic law for the city government, and this is sufficient.” The act in that case was passed in 1861, but the then constitution of 1848 contained this same provision as to every private or local law,—that it should not embrace more than one subject, and that should be expressed in the title. The repeal of a statute on a given subject, it is held, is properly connected with the subject matter of a new statute on the same subject, and therefore a repealing section in the new statute is valid, notwithstanding the title is silent on that subject. (Cooley’s Const. Lim. 145. And see Burke v. Monroe County, 77 Ill. 610.) We think the same may be said of an amendment by implication. In Town of Abington v. Cabeen, 106 Ill. 207, upon a review of the decisions in this State upon this question of title, this court say: “The title adopted being sufficient to apprise the legislators fairly of the general subject matter of the act, all the provisions therein fairly related to that general subject, and designed to conduce to the building of the road named, must, in the light of previous decisions of this court, be held to be fairly embraced in the title adopted.”

It is claimed that this act of June 15, 1883, violates the further provision of said section 13, of article 4, of the constitution, that “no law shall be revived or amended by reference to its title only, but the law revived, or the section amended, shall be inserted at length. ” The act of 1883 contains three sections. Section 1 forbids the granting of a license for the keeping of a dram-shop by the corporate authorities of any city, town or village, except upon payment of a sum not less that $500, except that a license for the sale of malt liquors may be granted upon payment of not less than $150. Section 2 imposes like limitations upon the exercise of the like power by county boards. Section 3 prescribes a penalty for selling liquors other than malt liquors under a license to sell malt liquors only. The act does not profess to be amendatory of any other act. Section 2 of the act, aside from the change in the amount of the license fee to be imposed by county boards, contains all that is embraced in section 3 of the Dram-shop act, with the further provision: “Provided,, that in all cases where a license is granted for the sale of malt liquors only, such board may grant the same upon payment into the county treasury of a sum not less than $150 per annum for each license.” • So that as respects section 2 of the act of 1883, section 3 of the Dram-shop act is, with the changes above indicated, inserted at length in the former act, making, as respects section 2, a full compliance with the constitutional requirement that the section amended shall be inserted at length in the new act.

But it is said, although this be so that the section amended is inserted at length, this is not so declared in the act, and is treated as if it were a'separate section then for the first time enacted. The constitution does not so require that such declaration should be made, but only that the section amended shall be inserted at length; and that this was done here, as respects section 2, there is no question. As to sections 1 and 3 of the act of 1883, it is not pointed out wherein they amend any prior act, except that it is said they are additional sections to the Dram-shop act, and are amendments by “addition” of that act, wherefore the act of 1883 is, in its terms, in legal effect an express amendment of the Dram-shop act, although it does not so state, either in the title or the body of the act, and the proposition is advanced that “it was essential to the validity of the act of June 15, 1883, that chapter 43 of the Revised Statutes of 1874, (the Dram-shop act,) should be republished as a part of it,—that is to say, that the new act should state at length the law as amended. ” It is not perceived what purpose of use, or what intent of the constitution, would be subserved by the republication of chapter 43 of the Revised Statutes as a part of the act of June 15, 1883. The mischief intended to be remedied by the constitution was that of the amendment of statutes by reference to their titles only. Under the practice which had prevailed, to amend a previous act merely by reference to its title, and in the insertion or striking out of certain words, or the making of some substitution therein, the amendatory act, of itself, would be unintelligible, and it would require examination, and comparison with the prior act, to understand what the real purport of the amendatory act was,—hence the constitutional inhibition that “no law shall be revived or amended by reference to its title only; ” and in remedy of the evil the further provision is, “but the law revived, or the section amended, shall be inserted at length in the new act.” When this is done, the amendatory act will be intelligible of itself, and not require going elsewhere to understand its purport. The act in question is complete in itself, and entirely intelligible, showing of itself just what it is, and in its enactment we are of opinion that there is no contravening of the constitutional provisions named.

In The People v. Mahoney, 13 Mich. 481, in pronouncing, under a like constitutional provision, upon the constitutionality of an act having an amendatory effect by implication, Mr. Justice Cooley, delivering the opinion of the court, says: “The act before us does not assume, in terms, to revise, alter or amend any prior act or section of an act, but, by various transfers of duties, it has an amendatory effect by implication, and by its last section it repeals all inconsistent acts. We are unable to see how this conflicts with the provision referred to. If, whenever a new statute is passed, it is necessary that all prior statutes, modified by it by implication, should be reenacted and published at length as modified, then a large portion of the whole code of laws of the State would require to be republished at every session, and parts of it several times over, until, from mere immensity of material, it would be impossible to tell what the law was.” And it was held that an act complete in itself was not within the mischief designed to be remedied by this constitutional provision. But we consider the question now under discussion, as well as the former one in respect to title, as having been determined by this court in The People v. Wright, above cited. The court were also required in that case to construe the act of July 1, 1872, commonly known as the “mayor’s bill.” The act in effect amended, in many important respects, the existing charters of cities, without purporting in its title to be an amendment, and without setting forth the sections affected or amended in the new act. In overruling the objection that the law was, for this reason, unconstitutional, the court say: “No particular section of any act purports to be amended by this act. All that can be said of it in this respect is, that by implication it amends the municipal charters of cities. It can not be held that this clause of the constitution embraces every enactment which, in any degree, however remotely it may be, affects the prior law on a given subject, for to so hold would be to bring about an evil far greater than the one sought to be obviated by this clause. ”

It is further contended that the act in question is in conflict with the constitution, and void, because in imposing the money payment therein named, it is not uniform as to the class upon which it operates. The following portion of section 1, article 9, of the present constitution, is relied upon in this respect: “But the General Assembly shall have power to tax peddlers, auctioneers, brokers, hawkers, merchants, commission merchants, showmen, jugglers, inn-keepers, grocery-keepers, liquor dealers, toll bridges, ferries, insurance, telegraph and express interests or business, vendors of patents, and persons or corporations owning or using franchises and privileges, in such manner as it shall, from time to time, direct by general law, uniform as to the class upon which it operates.” It is insisted that the money required to be paid is for revenue, and is a tax, within the intent and meaning of the constitution; that the class named in the constitution is liquor dealers; that the act in question imposes a minimum tax of §150 on the venders of malt liquors, and §500 on the venders of other intoxicating liquors, and it is therefore not uniform as to the class upon which it operates, and hence unconstitutional. Conceding, for the purpose of the argument, that the license fee exacted by the act in question is a tax, within the meaning of the constitution, we are of opinion that the act is not in conflict with the rule of uniformity as to the class upon which it operates. The term “liquor dealers,” used in the section above of the constitution, is, as we regard, used in a generic sense. There may be different classes and varieties included under the general description, “liquor dealers, ” and we think it is competent for the General Assembly to classify the different kinds of liquor dealers included in the general description as used in the constitution, and impose differential taxes upon such classes,—that the rule of uniformity in taxation would not be violated so long as the tax imposed is the same upon all the members of the particular class. The line of division into classes here made, based upon the sale of malt liquors as distinguished from more intoxicating drinks, if viewed as for taxation, is a quite natural and a reasonable one, and not out of harmony, in our view, with any feature of the constitution in respect of taxation. But, however, as license fees, in regulation of the traffic in intoxicating liquors, the sums required to be paid by the act in question find abundant justification in former decisions of this court: City of East St. Louis v. Wehrung, 46 Ill. 392; East St. Louis v. Trustees of Schools, 102 id. 489; Wiggins Ferry Co. v. East St. Louis, id. 560; Howland v. City of Chicago, 108 id. 496, and other cases. In the exercise of the police power the legislature might prohibit altogether the sale of such liquors, and consequently may attach such conditions to the allowance of their sale as it sees fit to prescribe.

The judgment of the court below dismissing the petition must be affirmed.

Judgment affirmed.


author: Mr. Justice Scott Mr. Justice Dickey

text:
    Charles V. Chandler et al. v. Van H. Higgins et al.

      Filed at Ottawa March 26, 1884.

      1. Satisfaction—by levy on personal property—how far that will operate as a satisfaction. The levy of an execution upon personal property of value sufficient to satisfy the debt, operates as a satisfaction for the time being, but it is not an absolute satisfaction. If on a sale enough is not realized to discharge the debt, or if the property is returned to the execution debtor, and the levy released by his consent, or if by some act of the execution debtor the fruits of the levy are lost to the creditor, there will be no satisfaction of the judgment and execution.
    2. Assignment of judgment—redemption. An assignment of a judgment may be made so long as anything remains due thereon, and a valid redemption may be made under an alias execution issued thereon, from a sale under a senior judgment.
    3. Same—transfer of bankrupt’s interest, after limitation. After the Statute of Limitations has run against an assignee in bankruptcy, an assignment of an interest in a judgment held by the bankrupt can not be called in question.
    4. Payment by surety—keeping judgment alive for his indemnity. The law is well settled that a surety against whom a judgment is rendered, with his principal, may advance the money to the creditor, and have the judgment assigned to a third party, and kept alive for his security.
    5. Same—in case of partners, as sureties for each other. Where one partner, on the dissolution of the firm, assumes, for a consideration, to pay the firm debts, as between themselves the other partners are sureties for him, and on judgment against all, those who are thus sureties may advance the money to the creditor, and have his judgment assigned to a third party, to be kept alive for their indemnity; and this will not operate as a satisfaction of the judgment.
    6. Redemption—by judgment creditors—statute liberally construed. A judgment creditor may redeem from a sale or sales made under senior judgments. The policy of the law favors such redemptions, and the statute allowing them is construed liberally, so as to make the execution debtor’s property-pay as much of his indebtedness as possible.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.

      Messrs. Fairchild & Blackman, and Mr. C. F. Wheat, for the plaintiffs in error:
    The effect of the levy by the sheriff of Kane county on land and stock, and by the sheriff of Cook on land, and the appropriation of the stock levied on to the purchaser of the Chisholm judgment by Pease, and the assignment of the judgment to Fuller, was to satisfy the judgment. Harris v. Evans, 81 Ill. 419; Smith v. Hughes, 24 id. 270; Drefahl v. Tuttle, 42 Iowa, 177; Marden v. Vedder, 5 Cord, 671; Hunt v. Breading, 13 S. & R. 37; Tompkins v. Fifth National Bank, 53 Ill. 57.
    As Chisholm was not told the object of the assignment, it was a payment. White v. Fisher, 62 Ill. 258; Frost v. Yonkers, S. B. 560.
    To give priority to the lien of junior judgment. Dean v. Davidson, 13 S. & R. 341; Hayden v. Agent of Prison, 1 S. & Ch. 195; Whiting v. Butler, 29 Mich. 134.
    To make the judgment unassignable. Wood v. Van Arsdale, 3 Rawle, 401.
    To make an execution issued thereon void at law and in equity. Bones v. Aikin, 35 Iowa, 534; Coggeshall v. Ruggles, 62 Ill. 401; Carnes v. Platt, 59 N. Y. 411.
    The assignee took an equitable title to the right of the assignor, and subject to defences, (Hosaek v. Underwood, 55 Ill. 123,) and until the defendants had notice of the assignment it is as though, to them, not assigned. Himrod v. Baugh, 85 Ill. 435.
    Complainants having the right to redeem as judgment creditors, may have the same enforced in equity. Roan v. Rohrer, 72 Ill. 582.
    A court of chancery has jurisdiction, and will enjoin the holders of a paid judgment from using it to the prejudice of a junior judgment creditor, upon the ground of removing a cloud from title. Conwell v. Watkins, 71 Ill. 488; Christie v. Hale, 46 id. 117; Buill v. Crouch, 37 Texas, 53.

      The levy on personal property sufficient to satisfy the same, is a satisfaction of the judgment, and such levy could not be released except by consent of all the parties. Montgomery v. Wayne, 14 Ill. 373; Smith v. Hughes, 24 id. 277; Herrick v. Swartwout, 72 id. 340; Gregory v. Stark, 3 Scam. 612; Gold v. Johnson, 59 Ill. 63.
    If one joint debtor pays the debt or judgment, it is discharged, and can not be kept alive for his benefit by assignment. New York State Bank v. Fletcher, 5 Wend. 88; Hosack v. Underwood, 55 Ill. 123; Tompkins v. Fifth National Bank, 53 id. 57; Coggeshall v. Ruggles, 62 id. 401; Harbeck v. Vanderbilt, 20 N. Y. 497.
    Mr. A. W. Green, and, also, Mr. Edward Judd, for the defendants in error:
    Where one partner, for a consideration, assumes payment of the firm debts, as between the firm he will become principal debtor, and the other members his sureties. Conwell v. McGowan, 81 Ill. 287; Waddington v. Vredenburgh, 2 Johns. Ch. 227; Wood v. Dodgson, 2 M. & S. 195; Ætna Ins. Co. v. Wires, 28 Vt. 93; Colgrove v. Tollman, 67 N. Y. 95.
    A surety who pays a debt reduced to judgment is entitled to have the judgment kept alive for his benefit. Bispham’s Equity, sec. 336; Berringer v. Boyden, 7 Jones’ Law, (N. C.) 187; Crawford v. Logan, 97 Ill. 396; Flagg v. Geltmacher, 98 id. 293; Dempsey v. Bush, 18 Ohio St. 376; Fleming v. Beaver, 2 Rawle, 128; Scott’s Appeal, 88 Pa. St. 173; Townsend v. Whitney, 75 N. Y. 432; Cuyler v. Tevis, 6 Paige, 32; Corey v. White, 3 Barb. 12; McIntyre v. Miller, 13 M. & W. 247; Wheeler’s Estate, 1 Md. Ch. 80.
    The levy of the Chisholm execution upon the personal property of Pease was not a satisfaction of the judgment, because the levy was released with the consent of Pease, the judgment debtor, and the property levied upon restored to him. Ambrose v. West, 11 Ill. 488; Green v. Burke, 23 Wend. 490;
      United States v. Dashiel, 3 Wall. 688; The People v. Hopson, 1 Denlo, 574; Peck v. Tiffany, 2 Com. 451; Banks v. Evans, 10 S. & M. 35; Wade v. Watt, 41 Miss. 248; Ex parte King, 2 Dev. L. (N. C.) 341.
    A judgment need not be a lien, to entitle the judgment creditor or bis assignee to redeem. Sweezy v. Chandler, 11 Ill. 445.
    If the property has been sold several times, a judgment creditor may make all necessary redemptions, though he has but one judgment. Freeman on Executions, sec. 317; Ex parte Peru Iron Co. 7 Cow. 540.
    Leaving out of consideration the assignment from the assignee in bankruptcy, the evidence shows that Higgins is a bona fide assignee of the Chisholm judgment, for a valuable consideration, by regular assignment from the plaintiff in the judgment. Complainants, who are not even creditors of Pease, can not attack this assignment. The right to attack it is vested exclusively in the assignee in bankruptcy of Pease. In re Myers, 1 B. R. 581; Glenny v. Langdon, 98 U. S. 20; Sewart v. Isidor, 5 Abb. Pr. (N. S.) 68; Bolling v. Munchaus, 59 Ala. 482; Thomas v. Phillips, 5 Pa. St. 355.
   Mr. Justice Scott

delivered the opinion of the Court:

On looking into this record it is seen this bill was brought by the executors of Charles Chandler, deceased, against Van H. Higgins, a former, and the present, sheriff of Cook county, J. W. Hambleton, and other persons in some way interested in the subject matter of the litigation. The relief sought is, that a redemption from sheriff’s sales made by Higgins, as the assignee of a judgment creditor of Thomas S. Dobbins, of the premises in controversy be set aside, and that a sheriff’s deed to Joseph W. Hambleton for the same property be also set aside, as having been made without authority of law, and in fraud of the rights of complainants’ testator, who in his lifetime was a judgment creditor of Dobbins, and on that being clone, that complainants be permitted to redeem the property, as a judgment creditor might do, from a previous sheriff’s sale, .which it is conceded was rightfully made. It is represented in the bill that a number of persons .obtained judgments against Thomas. S. Dobbins and others, all of which it seems became liens upon the real property of Dobbins. These several judgments are all set out in the bill in the order in which they became liens. It will not be neces'sary to an understanding of the questions discussed, to make reference to all of the judgments recited in the bill. So far as it may be thought to be necessary it will be done as the discussion goes on. On the 16th day of December, 1875, Robert B. Chisholm recovered a judgment in the Superior Court of Cook county, against Thomas S. Dobbins, George S. Brown, Walter L. Pease and John S. Wilcox, for $16,625, and costs of suit. It appears that on the same day an execution was issued on this judgment, directed to the sheriff of Kane county, where some proceedings were had on it that will be noticed hereafter. It is shown this judgment was assigned by plaintiff to Allen C. Fuller, and by him assigned to Lawrence, and by the latter it was re-assigned to Chisholm, the plaintiff, and by the plaintiff then assigned to Higgins. A copy of the assignment of the Chisholm judgment was filed in the office of the clerk of the Superior Court, where the judgment was rendered. By virtue of an alias execution issued on that judgment, Higgins redeemed the property from a previous sheriff’s sale that had been made on an execution issued on a j udgment in favor of Matthieson, against Dobbins, and at the subsequent sale Jose¡5h W. Hambleton became the purchaser of the property, and afterwards received a sheriff’s deed for the same. It appears the judgment creditor received the redemption money, and there is no complaint on that score. This is the deed complainants ask to have set aside.

It will be noted that Higgins, with the same execution, redeemed the same premises from sheriff’s sales on executions issued on judgments in favor of Burley & Gregg, and Hunger. These latter judgments were prior liens on the property to that created by the Matthieson judgment. It also appears these latter judgment creditors received the redemption money, and now make no complaint. This is the redemption that complainants ask to have set aside, and the sheriff enjoined from selling the property under the execution on which it was redeemed from the previous sales.

On the 6th day of April, 1876, Charles Chandler, since deceased, recovered a judgment in the Superior Court against Thomas S. Dobbins and others, for $10,961.10, and costs of suit. An execution issued on that judgment on the 2d day of May, 1876, was returned by the proper officer unsatisfied. After the death of the plaintiff, complainants filed a copy of their letters in the office of the clerk of the Superior Court, and caused an alias execution to be issued and placed in the hands of the proper officer. Complainants tendered to the sheriff having the execution, a sum of money sufficient to redeem all the lots in block three (3) from the previous sales on the executions issued on the Burley & Gregg and Hunger judgments, and requested him to levy the execution on the lots mentioned. The tender was made in apt time if a redemption was allowable, but the sheriff refused to take the money and permit a redemption, for the reason the property had previously been redeemed by Higgins, and had not been sold a second time. This bill was then filed to set aside that redemption by Higgins and the deed to Hambleton, as hindrances in the way of the redemption complainants desired to make: The principal reason assigned why the redemptions made by Higgins should be set aside is, that the Chisholm judgment under which the redemptions were made had been satisfied and fully paid before it was assigned to Higgins, and hence no valid redemption could be made under it. "Whether the Chisholm judgment against Dobbins and others had in fact been satisfied before it was assigned to Higgins, is the controlling question in the case, and the only one that need be considered. It is obvious if it were a subsisting judgment, and unsatisfied in the hands of Higgins, the redemptions made by him under the execution issued on it were valid, and the bill should have been dismissed, as was done.

Three objections are taken to the Chisholm judgment in the hands of Higgins, and to the use made of it by him: First, that the judgment was satisfied by payment of the same to Chisholm by Pease, one of the judgment debtors ,* second, it was satisfied by a levy of the execution issued on it upon personal property of the judgment debtors, greater in value than the sum due on the judgment; and third, if Pease had any interest in-the judgment, as equitable owner, or otherwise, it passed by his bankruptcy to his assignee. Considering these objections in the inverse order stated, it would seem to be a sufficient answer to the latter objection that. Lewis, the assignee of Pease in bankruptcy, assigned and transferred whatever title or interest he may have had in the judgment, if any, to Higgins, and whether that assignment was regularly made or not, since then the bar of the Statute of Limitations has run against any recovery by the assignee of the bankrupt. Unless challenged in some way the assignment would be valid, and that can not now be done.

There is no pretense the Chisholm judgment was satisfied before it came to the hands of Higgins, by any levy upon, and sale of, real estate. Something"was made on it in that way, but not enough to discharge it. If it was satisfied at all, it must have been by a levy upon bank stock owned by Wilcox, one of the execution debtors, and by a further levy on bank and other stock belonging to Pease, another one of the execution debtors. The law is, the levy of an execution upon personal property sufficient to satisfy it, operates as a satisfaction for the time being, but it is not an absolute satisfaction. It may be if the property was sold, for some reason the sum realized might not be sufficient to discharge the execution indebtedness, or it might be shown it was returned to the execution debtor and the levy released by his consent, or it might be shown that by some act of the execution debtor the fruits of the levy were lost to the creditor. (Montgomery v. Wayne, 14 Ill. 373.) Applying these general principles to the ease in hand, it is seen the levy on the bank and other stock of Pease was subsequently released by his consent, and from it nothing was realized. It does not appear that Wilcox ever consented to releasing the levy upon his bank stock. But crediting the execution with the sum made by the sale of real estate, and also the full value of the Wilcox bank stock levied upon, there still remained, as this evidence is understood, quite a considerable sum unpaid on the execution at the time the judgment was assigned to Higgins.

Nor is the other objection taken, tenable. It may be true that Pease furnished the money to pay Chisholm, and caused the judgment to be assigned to Fuller. It was done for the purpose of keeping the judgment alive for the security of Pease, and that, under the facts, as shown by the record, it is thought he might lawfully do. The judgment in favor of Chisholm was rendered on a promissory note given by the firm of T. S. Dobbins & Co., of which firm Pease was a member. The firm expired by limitation, and by an agreement subsequently made, the firm sold to Thomas S. Dobbins all its assets, and he agreed, among other things, to assume all the liabilities of the firm, and save the individual members from all trouble, loss or litigation growing out of the affairs of the firm. All the members of the firm (unless it was B. M. Hough) signed the agreement, and Dobbins took possession of the assets of the firm, and undertook to pay its debts. On this subject the law- is, where one partner, on the dissolution of the firm, assumes, for a consideration, to pay the firm debts, as between themselves the other partners are sureties for him. As respects third parties, of course their relations are not at all changed. (Conwell v. McCoiuan, 81 Ill. 285.) The law is well settled that a surety against whom judgment is rendered, with his principal, may advance the money to the creditor, and have the judgment assigned to a third party, and kept alive for' his security. That is what was done in this case, and it seems clear the Chisholm judgment was kept alive for the security of Pease, that it might eventually be made out of the property of Dobbins, who was obligated to pay it.

The first and second redemptions made by Higgins, seem to have been made under the same judgment and under the same execution. The last redemption was from a sale or sales under senior judgments. No reason is perceived why this may not be done under the statute. The policy of the law favors redemptions, and to that end the statute allowing redemptions from judicial sales has uniformly been construed liberally, so as to make the execution debtor’s property pay as much of his indebtedness as possible. A case somewhat analogous in principle is Ex parte Peru Iron Co. 7 Cow. 540.

The judgment will be affirmed.

Judgment affirmed.

Mr. Justice Mulkey took no part in the consideration of this case.

Mr. Justice Walker : I concur in the conclusion reached in this case, but am not prepared to adopt all that is said in the opinion.

Mr. Justice Dickey

: I am not satisfied that the Chisholm judgment was still in force, and such as gave Higgins a lawful right, as against Dobbins, to collect the same. But Hambleton is a bona fide purchaser at a sale on proceedings good upon their face, and should be protected. As to the right of complainant to redeem from the sales made on the judgments in favor of Burley & Gregg, and Hunger, I think he has no such right. Whether the Chisholm judgment was valid or invalid, still the redemption was in fact made, and the redemption money was accepted by the purchaser. This extinguished this sale, and hence there is no sale from which complainant can now redeem. If the Chisholm judgment was valid, Higgins got a good title by his redemption and subsequent sale under that judgment. If it was not valid, the redemption simply extinguished the sale, and left the land liable to levy under any other judgment. I therefore think the judgment of the Appellate Court ought to be affirmed.