author: Mr. Justice Scholfield Mr. Justice Scott :

text:
    The People ex rel. C. Henry Meyer v. Willis Hazelwood, County Clerk.

      Filed at Springfield March 27, 1886.

      1. Township obganization— acts of 1877 and 1883—constitutionality •—whether creating an independent system from that under the general law. The act of May 23, 1877, entitled “An act to authorize county boards under township organization to organize certain territory" situated therein, as a town, ” and the amendment, in 1883, of the fifth section thereof, do not create a new and independent system of township organization, but is an adoption of that system with modifications deemed essential to territory under city organization, and is to be taken, with the prior general law, as constituting an entire system, and is a valid constitutional law.
    2. Same—application of sections 1 and 2 of the act of 1877—as to cities within a town, and where the boundaries of each are the same. Section 2 of such act of 1877 is in substance and effect but a reenactment of section 20 of the Township Organization act of 1874, under which the territory composing the city of Quincy was organized as a town, and makes such territory a town. Section 1 of the act of 1877 applies to the territory of cities within a town, while section 2 applies to the territory of a city the limits and boundaries of which are the same with the township. Under section 1 the township is divided, while it is not under section 2.
    3. Same—adapting the means to the end—constitutionality—whether the act local and special. The mode of transacting township affairs and the selection of the instrumentalities to that end, are incidents to the organization of territory into townships. An act for the creation of the territory of cities into towns, under the township organization system, will authorize the passage of such provisions as are essentia} to make the law uniform in its application, and relieve it of constitutional objection as being local or special.
    4. So the legislature may provide somewhat different means and instrumentalities for the government and management of the affairs of towns lying wholly in the country, and those the entire territory of which is covered by an incorporated city, without making the law obnoxious to the constitutional objection of being special and local.
    5. Same—making a city treasurer q town collector. A section of the law relating to towns covering the same territory with cities, authorized the city council'of any such city and town “to provide, by ordinance, that the offices of treasurer and town collector shall be united in the same person.” An ordinance under it declared the city treasurer to be town collector: Held, that the ordinance was a compliance with the statute, and that the city treasurer, when elected, became also town collector.

      6. Statutes—constitutionality—title of the aet. The constitutional provision in relation to the title ttf statutes embracing the subject of the enactment, does not require that the title to an act shall set forth a detailed statement, or an index or abstract of its contents. The title is sufficient if comprehensive enough to reasonably include the several objects which the statute assumes to effect. When the general purpose is declared, the means for its accomplishment will be presumed as intended as a necessary incident.
    7. Same-—general—or local and special. A law is general and uniform, and not subject to the objection of being local or special, when it is general and uniform in its operation upon all in like situation.
    8. Same—construction—doubts solved in favor of laws. Where it is doubtful with the court whether an act of the legislature is in violation of the constitution, the doubt must be solved in favor of the validity of the law. It is only when the court is clearly satisfied, that it will pronounce a law unconstitutional.
    9. It will never be presumed that the legislature intended to enact a statute in contravention of the constitution, unless such conclusion, after a careful consideration of all its provisions, can not reasonably be avoided; and the courts will not give an enactment such a construction as will render it unconstitutional, if it can be avoided.
    10. Same—when part of law only held unconstitutional. Where a section of a statute is not so intimately connected with the remaining parts thereof, and the balance of the act so dependent upon it as to lead to the conclusion the act would not have been passed but for such section, if it is unconstitutional the whole must fall with it, but otherwise not. When the rest of the act may well stand without it, and is capable of enforcement, it will not be declared void.
    11. Therefore, section 3 of the act entitled “An act to authorize county boards in counties under township organization to organize certain territory situated therein, as a town, ” which provides a different day for holding the annual elections from the general act, in such new towns formed under that act, if in conflict with the constitution may be rejected as void, leaving the rest to stand as a valid enactment.
    This is an original proceeding in this court, on the relation of C. Henry Meyer, who claims to be town collector for the town of Quincy, for a mandamus against Willis Plazelwood, county clerk' of Adams county, commanding him to deliver to the relator the tax books for that town for the year A. D. 1885. Sufficient allegations are in the petition to entitle the relator to the mandamus prayed for, if, under the statute in force and applicable, the office of town collector exists independently of the office of city treasurer of the city of Quincy. The respondent sets up an ordinance of the city of Quincy, whereby the duties of town collector of that town are devolved upon the city treasurer; that Charles F. Schwindeler, city treasurer, who has formally qualified for that purpose, has demanded the tax books, and that respondent, being unable to decide between the parties, has refused to deliver the tax books to either. The parties stipulate as follows:
    “It is hereby conceded and agreed by the parties in interest in this cause, that if the office of town collector of the town of Quincy, in Adams county, Illinois, was not, by force and effect of the act of the General Assembly of the State of Illinois, entitled ‘An act to authorize county boards, in counties under township organization, to organize certain territory situated therein as a town,’ approved May 29, and in force July 1, 1877, and the act of 1883, amendatory of the fifth section of said first named act, and the ordinances of the city of Quincy, in respondent Hazelwood’s answer set forth, united, to the office of city treasurer of said city of Quincy, in said county, in the person of said city treasurer, then the relator, C. Henry Meyer, is the lawfully elected and qualified town collector of said town, and that upon his petition in said cause, and the answer of respondent Hazelwood thereto, and the demurrer of the petitioner to said answer, said relator is entitled to the writ of mandamus prayed for in his said petition. If, however, on the other hand, the said office of town collector was, by force and effect of the acts and ordinances aforesaid, united to the office of city treasurer of said city of Quincy, in the person of said city treasurer, then said relator is not such collector, and is not entitled to any relief in this cause. And it is further conceded and agreed that the town of Quincy was fully organized as a town, by, under and in pursuance of the general Township Organization law, approved and in force March 4, 1874, and that the bond of relator, C. Henry Meyer, was approved by the supervisor and town clerk of said town, as alleged in the petition, and before said supervisor and town clerk approved the bond of said Charles F. Schwindeler, as alleged in the answer of respondent, and the pleadings in this cause may be treated as properly alleging the facts herein conceded and agreed to.”
    Messrs. Carter & Govert, for the petitioner.
    . Mr. George A. Anderson, and Mr. Wm. McFadon, for the respondent.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The section of the general Township Organization law, in force March 21,1874, under which the town of Quincy was organized, is the twentieth, and reads thus: “When, in any county under township organization, there is any territory eo-extensive with the limits of a city situated therein,'and Which is not included within any organized town,"such territory shall constitute á town by the name of such city, and all the provisions of this act' shall apply to the town so constituted, the same as if it had been’organized in the manner provided in this act in the case of the organization of new towns.” Thereafter, on the 23d of May, A. D. 1877, an act was approved, entitled “An act to authorize county boards under township organization to organize certain territory 'situated therein as a town.” The first and second sections are as follows:

“Sec. 1. That the county board in any county under township organization, may provide that the territory embraced within any city in such county shall be organized as a town: Provided, such territory shall have a population of not less than three thousand: And provided, the city council in such city shall, by resolution, request such action by the county board.
“Sec. 2. The territory of any city now organized, within the limits of any county under township organization, and not situated within any town, shall be deemed to be a town.”

The third section requires that all town officers shall be elected at the annual charter election of such city. The fourth section provides that the powers vested in the town shall be exercised by the city council. The' fifth section was amended by an act approved June 18,1883, so as to read as follows: “The city council in such city and town may, by ordinance, provide that the offices of city and town clerk shall be united in the same person; that the offices of treasurer and town collector shall be united in the same person; that the election of highway commissioners shall be discontinued, and that the offices of supervisor and poor-master shall be separated, and the poor-master be appointed by the city council. ”

Plainly, as we think, this is not the creation of a new and independent system of township organization, but an adaptation of the general system previously in force, with modifications deemed essential to the different relations and circumstances, to territory under city organization, and this act is therefore in pari materia with the statute embracing the general law in relation to township organization, and the whole must be read and construed together as constituting one entire system, and as if enacted in a single act. Young v. Stearns, 91 Ill. 221; Nance v. Howard, Breese, (Beecher’s ed.) 245.

It was not ruled in The People ex rel. v. Brayton, 94 Ill. 341, that this act did not in any respect amend or change the law previously existing in relation to township organization, but simply that it did not repeal or amend the law requiring that the question of uniting several towns into one shall be submitted to a vote of the people. On the contrary, it was expressly said that section 1 was intended to supply a supposed omission in the statute, and authorize the county board, where a township organized under the Township Organization law contained within its limits a city with a population of not less than three thousand inhabitants, to establish a township out of the territory embraced within the city. The effect of the other sections did not fall within the line of investigation and discussion, and no opinion of any kind was expressed in regard to either of them.

The second section is, in our opinion, in substance and effect but a- reenactment of the section of the general law by virtue of which the city was in the first instance incorporated. The territory of the city of Quincy is not, as counsel contend, within the town of Quincy. Its limits are simply coextensive •with the limits of the territory of that town, and, therefore, neither is within the other. Not only is this construction required by the literal meaning of the w'ord “within, ” in this connection, but it is essential to give section 2 a distinct, effective meaning, for it can not be reasonably pretended, and in the argument here it is not, that, in" counties organized into townships' under the general law, there can be any territory outside of the limits of an organized township, whether in a city or elsew'here, and section 1, applying to all instances where a township contains within its limits a city with a population of not less-than three thousand inhabitants, and authorizing the county board to establish a township out of the territory embraced within the city,—that is, in effect, dividing the township. The- only instance in which the words employed can hfive their full meaning, is where the limits of the city and the township are coextensive. Of course, if section 2.is but a repetition of section 20 of the general law, it was unnecessary for the mere purpose of bringing into existence that class of townships; but there was obviously the same consideration urging that the different provisions of the other sections of the act should apply to townships created as such becaüse their limits were eo-extensive with the limits of the city, as úrged, that they should apply to other townships whose limits did not extend beyond the limits of the city; and it was" one -way of making this application, and liable to no constitutional objection of which we are aware, to repeat the enactment organizing townships whose limits are coextensive with the limits of the city, and then, in subsequent sections, embody these provisions in general terms, and make them applicable to the townships in common, whether organized 'pursuant to or in conformity with the provisions of one section or the other. It is never to be assumed, unless that conclusion, after considering the entire act, can not reasonably be avoided, that the legislature intended to enact a statute in contravention of the constitution ; and yet if the subsequent sections of this act are not applicable to townships organized by section 20 of the general law, they are in direct violation of that clause of section 22, of article 4, of the constitution, which declares that the General Assembly shall not pass local or special laws for regulating county and township affairs, since it can admit of no dispute that these sections do regulate township affairs, and that townships organized by section 20 of the general law are in no essential feature, so far as circumstances and relations, external to the manner of their being created corporations, are concerned, different from townships created under .and pursuant to section 1 of this act; and so, necessarily,. a law applying to the latter townships alone, or to the latter: and other-.townships embracing territory entirely under city government, and excluding the townships created by section 20 of the general law, must be both local and special. The words, then, “such city and town, ” as" applicable to section 2, we hold have no reference to the date of the organization of the city and town, whether before or after the adoption of that act, but only to the fact of being a town in the manner provided by that section. If the town or township (and in this connection these terms are convertible,) was a town or to-wnshi-p, before the passage of this act by virtue of section 20 of the general law, it did not cease to be such by this enactment, and the territorial limits bring it within the letter of the act without reference to the date of organization.

But counsel contend that the act is unconstitutional because section 5, of article 10, of the constitution, provides that the day of holding the annual township meeting shall be uniform throughout the State, while this section provides that all the town officers shall be elected at the annual charter election of the city, which, in this instance, is a different day than that provided in the general Township law for the annual township meetings. Concede that this objection be well taken, and what follows ? This section is not so connected with the other sections, and their mutual dependence upon each other as conditions, considerations or compensations for each other such, as to warrant the belief “that the legislature intended them as a whole, and that if all could not be carried into effect, the residue would not have been passed independently. ” Upon the contrary, we-think the .date of the election was a matter wholly distinct and apart from the matters involved in the consideration of the other questions. It involved only a question of economy and convenience wholly unaffected by the other sections. The date of the election is neither a matter affecting the inherent merits of the other sections, nor the _ manner. or th§, fact of their enforcement, and so, however obnoxious to constitutionahobjections, sectipp3 may be, the other sections are not affected by those objections. Cooley’s Const. Lim. (1st ed.) 177, et seq.; Myers v. The People, 67 Ill. 503. An analogous but stronger ease, as against the present contention, is The People v. Brown, 11 Ill. 478, where the court held that though so much of the Township act of 1849 as held that if a majority of the votes cast (instead of a majority of all the citizens within the county entitled to vote on the question) were in favor of township organization the system should be declared adopted, was unconstitutional, still the balance of the. act was valid. The People ex rel. v. Kennedy et al. 96 N. Y. (56 Sickles) 294. See, also, to like purpose, Franklin Co. v. Railroad Co. 12 Lea, 521. The other sections have, then, remained, assuming the objection well taken, just as if that section had never been enacted.

We may remark, to avoid misapprehension, that by an act in force July 1, 1879, it is now provided that the regular charter election for the election of city officers of any city having the same territory as an organized township, shall take place on the same day provided by law for the township election, (Public Laws of 1879, p. 69,) and that no objection is taken in this case to its constitutionality.

The objection is also urged that so much of this act as is claimed to authorize the ordinance adopted by the city, is unconstitutional, because it embraces a subject not embraced within the title of the act. The title of the act is, “An act to authorize county boards in counties under township organization to organize certain territory situated therein as a town. ” We have often held that the provision of the constitution here claimed to be violated, does not require that the title to the act shall set forth a detailed statement, or an index or abstract of its contents, but that it will be sufficient if the title be comprehensive enough to reasonably indicate the several objects which the statute assumes to effect. When a general purpose is declared, the means by which to accomplish that purpose are presumed to be intended as necessary incidents. See Potwin v. Johnson, 108 Ill. 78, and cases there cited; Montclair v. Ramsdell, 107 U. S. 147; Blake v. The People, 109 Ill. 504; Larned v. Tiernan, 110 id. 173.

The mode of transacting township affairs, and the selection of the instrumentalities to that end, were clearly incident to the organization of territory into townships, and such provisions as were essential to make the law uniform in its application, and thus relieve it of constitutional objections in that regard,—in other words, as were necessary to bring the townships thus organized, and other townships of the same class or grade, under the same law, we think, also, on the authority of the principles applied in previous decisions of this court, and in decisions of other courts of last resort, were germane to the main purpose of the act,—the organization of certain territory into townships. Conceding, as we do, that this question is not entirely free from doubt, still the doubt must be solved in favor of the validity of the act, since we are not clearly satisfied that the objection is tenable.

Again, the objection is urged that the law is local or special, in that the townships affected by the act are essentially different from townships existing in territory unaffected by the act, and that it is, for that reason, unconstitutional. It will be observed that this difference is merely in the instrumentalities by and through which the general township system is enforced. The main object, evidently, is to reduce the number of officials required to carry on local government, and, to that extent, to reduce expenses.

It is assumed, and rightly, as we think, that as regards the purposes of the organization of townships and the administration of township government, there is such a difference in the conditions and relations of things within incorporated cities from those in the country, as, in material respects, makes differences in the statutes applicable to the one and to the other indispensable. Thus, the construction and repairing of roads, bridges, etc.; the regulation, restraint or prohibition-of domestic animals running at large; the constructing, repairing and regulating the use of public watering places; the regulating of the planting of trees upon highways; the prevention of the creation of certain defined nuisances, etc., which are among the powers conferred upon towns by section 3, article 4, of the Township Organization law, (Rev. Stat. 1874, p. 1011, et seq.,) can, in the country, be done only by the corporate authorities of the townships, but in the cities these things fall entirely within the powers of the municipal government. (See sec. 1, art. 5, chap. 24, Rev. Stat. 1874, p. 211.) So, also, there are other powers conferred upon towns by the Township law which have relation only to the protection of the interests of- agriculture in the country, the subjects matter whereof are, by the mere fact of the existence of a city, excluded from its limits. (See section 3, article 4, of the Township Organization law, supra.) Classification, therefore, in our opinion, is not only allowable, but, to a large extent, inevitable, between towns lying wholly in the country and those the entire territory of which is covered by an incorporated city, and we are, hence, unable to say that a law applicable, as is this, to all townships the territory of which does not extend beyond the limits of the territory of an incorporated city, is unconstitutional because local or special. We have held that laws are general and uniform, and hence not obnoxious to the objection that they are local or special, when they are general and uniform in their operation upon all in like situation. The People ex rel. v. Wright, 10 Ill. 398; Hawthorn et al. v. The People, 109 id. 312.

The only remaining objection that we deem it necessary to notice is, that the ordinance does not conform to the act. It makes the city treasurer town collector. The act authorizes “the city council in such city and town to provide by ordinance that the offices of treasurer and town collector shall be united in the same person. ” Is not that done by this ordinance ? Inasmuch as the election district and the qualification of electors are precisely the same, of what practical consequence was it whether it was said, as here expressed, of that the town collector should be city treasurer, or that both names should attach at the same time, provided, only, that the ordinance was adopted before the election, so that the voters knew, when voting, that the person for whom they were voting would perform, if elected, the duties of both offices? We think not the slightest. The substance was, the man elected became thereby city treasurer and town collector. All else was immaterial form. The person elected must possess all the qualifications prescribed for either office, and he must execute bond and qualify as required for both, or he will forfeit his office. The offices have become inseparabie, and the duties and burdens of one may not be accepted and those of the other rejected.

Other objections of minor importance, at least in our esti- ' mation, have been pressed, but we deem them untenable. They have been considered, but we do not think that they . demand special notice.

The writ is denied.

7 Mandamus refused.

Mr. Justice Scott :

I do not concur in this opinion.

Mr. Justice Shope having been unavoidably absent from the court at the argument of this cause, took no part in its determination.


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    Daniel Hughes v. The People of the State of Illinois.
    Filed at Springfield March 27, 1886.
    Criminal law&emdash;record as showing return of indictment. A recital *n tlie «cord of a criminal case as follows: “And now, on this 6th day of March, A. D. 1884, and the fourth judicial day of the March term of the circuit court of Crawford county, Illinois, duly selected and sworn, and returned into open court the following true bills of indictment, all of which are indorsed by the foreman thereof as and for true bills, ”&emdash;is held to show from the context that the grand jury came into court and presented the indictments, and is sufficient.
    2. Same&emdash;self-defence. The law will not permit one to follow up his enemy, and if an encounter ensue, kill him, and justify the killing as being done in self-defence.
    3. Practice&emdash;sustaining objection to question when a like question had been answered. On the trial of one for murder, the defendant called a witness, who was permitted to and did state that he had heard the deceased make threats against the defendant. He was then asked to “state what they were,” an objection to which was overruled. The witness failing to answer, he was then asked, “Have you heard the deceased, J., make any threats against the defendant now on trial?” This question was objected to, and the objection sustained: Held, no error, as the witness had already answered the question.
    4. Exception—when necessary. If no exception is taken on the trial to a witness stating his opinion, an assignment of error as to the admission of the evidence can not be considered.
    5. New trial—opinion of juror before the trial. A verdict will not be set aside on the ground that a juror taken on the trial had, before being called, formed and expressed his opinion of the guilt of the accused, unless it is made to appear, from satisfactory evidence, the juror had previously “formed and expressed” an opinion hurtful to the defence.
    6. SAME--sic7iiiess of juror. The fact that a juror in a capital case was taken suddenly ill, which was not noticed until the trial was over and the jury had retired, after which he became unconscious for a few hours, during which no discussion of the case was had, is not a sufficient ground for a new trial on behalf of the defendant.
    7. Transcript op record—in Supreme Court—impeachment thereof. The attestation of the clerk of the circuit court to the transcript of the record sent up by him, imports absolute verity, and the transcript and his attestation can not be impeached by mere ex parte affidavits.
    Writ of Error to the Circuit Court of Crawford county; the Hon. W. C. Jones, Judge, presiding.
    Messrs. Olwin & Allen, and Messrs. Parker & Crowley, for the plaintiff in error;
    If Hughes killed Joseph, as he honestly believed, to save his own life or prevent his receiving great bodily harm, the killing was justifiable. Campbell v. People, 16 Ill. 18; State v. Burke, 30 Iowa, 331; Schnier v. People, 23 Ill. 17; Maher v. People, 24 id. 141; Adam v. People, 47 id. 376; Roach v. People, 77 id. 25; Steinmeyer v. People, 95 id. 383; 2 Wharton on Crim. Law, secs. 1019, 1021; 1 Bishop on Crim. Law, secs. 383, 384; Grainger v. State, 5 Yerg. 459.
    If the defendant, under the belief- that he was in danger of losing his life or suffering great bodily harm, killed the deceased, it is justifiable homicide. Apparant danger is sufficient. Campbell v. People, 16 Ill. 19; Roach v. People, 77 id. 25; Steinmeyer v. People, 95 id. 383.
    Prior threats will justify a defendant in resorting to self-defence when otherwise he would not be justified. Cahill v. People, 106 Ill. 621.
    There need not be actual danger of great bodily harm if the party acting in self-defence honestly believed there was. Cogne v. Commonwealth, 2 Wright, 265; Campbell v. People, 16 Ill. 18; Meredeth v. Commonwealth, 18 B. Mon. 49; State v. Sloan, 47 Mo. 504; Pond v. People, 8 Mich. 150; Patten v. People, 18 id. 314.
    Hughes’ expressions of sorrow after the homicide, show it was not premeditated, but done in self-defence. Allen v. People, 77 Ill. 487.
    The court erred in not permitting George Elliott to testify as to non-communieated threats. Campbell v. People, 16 Ill. 18.
    If a juror states on his voir dire that he has no opinion, when in fact he had, it will authorize a new trial. Byars v. City of Mt. Vernon, 77 Ill. 470; Davison v. People, 90 id. 226.
    Mr. George Hunt, Attorney General, for the People:
    The first assignment questions the correctness of the sixteenth instruction given on behalf of the People. That instruction tells the jury to disregard uncommunicated threats, and, under the circumstances of this case, was correct. Plaintiff in error courted all the danger, real or apparent, that surrounded him at the time he killed "Victor Joseph, by going out of his store on a hostile mission, and armed with a deadly weapon. He was in the position occupied by Wilson, in Wilson v. People, 94 Ill. 324. “His peril (if any) was courted, that he might have an opportunity to gratify his malice.” There was no act of deceased shown, tending to manifest any purpose to execute any threat, if he had ever made one. There was no act of deceased shown to which threats could give character. Forbes v. Snyder, 94 Ill. 374; Adams v. People,
      47 id. 376; Cummins v. Crawford, 88 id. 312; 1 Wharton on Crim. Law, sec. 1027.
    The wrongful acts of the plaintiff in error brought on the collision between himself and "Victor Joseph, (if there was a collision,) and he can not avail himself of the right of self-defence for the purpose of taking the life of Joseph, even though he might have been the assailant. Adams v. People, 47 Ill. 378; State v. Neely, 20 Iowa, 116; Russell on Crimes, 718, 719; Kinney v. People, 108 Ill. 519.
    Unless it be shown that the plaintiff in error was prejudiced by the sickness of the juror, the verdict should stand. Davis v. People, 19 Ill. 78; Reeves v. People, 30 id. 256; Miller v. People, 39 id. 457; Adams v. People, 47 id. 376.
    The evidence that a juror has sworn falsely on his voir dire must clearly preponderate in establishing the fact, before a court will, for that reason, disturb the verdict of the jury. Davis v. People, 90 Ill. 221.
   Mr. Justice Scott

delivered the opinion of the Court:

At the March term, 1884, of the circuit court of Crawford county, Daniel Hughes was indicted for the murder of Victor M. Joseph. On the trial, at a subsequent term of that court, defendant was found guilty, by the jury to whom the cause was submitted, of the crime of manslaughter, and the punishment at service in the penitentiary was fixed at a period of twelve years. A motion for a new trial, supported as to some grounds by affidavits, was made, and was, after due consideration by the court, overruled, and judgment pronounced on the verdict. Defendant brings the case to this court on error.'

The defence in the trial court seems to have been rested mainly on two grounds: First, that the killing was done in self-defence; and second, that defendant was insane at the time, and was not therefore subject to punishment as for crime. It is for these reasons it is insisted in this court it was error in the circuit court to refuse a new trial, and that the present judgment should be reversed.

The erecord is quite voluminous, but the evidence it contains has been subjected to the most careful study. It is seen the testimony relating to the homicide is very brief, and contains very little that is conflicting. No one saw the fatal shot fired. The killing took place at about nine o’clock in the evening of the 11th of December, 1883. Just before the shooting, defendant was in his drug store, with a brother of deceased. They were talking about deceased, whom defendant seems to have thought was one of a party that had subjected him to great indignity about a month previous to that time. The conversation that took place shows defendant entertained very intense hatred to those persons who had outraged him, and deceased was one of the suspected parties. It seems defendant and .Herschel Joseph were in the store of defendant, and had the door locked and the lights put out. It was, however, a very bright moon-light night, so that any one passing the windows could be readily recognized. Some one passed and defendant inquired who it wras, and was told it was deceased going to see the mail carrier to ascertain if he could ride with him the next day to Robinson. Presently the deceased returned, and probably looked into the store through the glass in the doors, and passed on, and as soon as he had passed, defendant pulled out a revolver and said to Herschel Joseph, “youremain here till I come back,” and unlocked the door and went out. It was but a brief moment before the report of a pistol shot was heard. Immediately Herschel Joseph went out and met defendant, who told him he had killed his brother. The shot fired by defendant took effect in the head of deceased, and death ensued almost instantly. When the body was found both hands of deceased-were in his pockets. He had no weapons of any kind on his person. There is some conflict as to what defendant said to Herschel Joseph just after the fatal shot was fired, but assuming either account of what was said to be true, it does not seriously affect the merits of the case.

Without entering upon any close analysis of the testimony, it is sufficient to say that after a most careful consideration the conclusion reached is, it wholly fails to sustain the theory, the killing was done in self-defence. Had defendant remained in his store, there is no pretence deceased would have interfered with him in any way whatever. He had passed by the store without giving defendant any cause of complaint. Surely when one goes out in search of his enemy, and kills him when found, it can not be said it was done in self-defence. Nor has the suggestion defendant went out to ascertain whether any injury was being done to his property, anything in its support. The evidence shows, past all doubt, the killing was done some considerable distance from his store-house. He must have gone in search of deceased. The law will not permit a person to follow up his enemy, and if an encounter ensue, justify the killing as being done in self-defence. In this case the evidence tends to show no encounter ever took place. Going upon the street where he knew deceased was, and on meeting him, defendant commanded him to throw up his arms, and because he did not do it he shot him. The evidence tends to show a deliberate purpose to kill deceased, rather than it was done in self-defence, and so the jury must have found. That conclusion seems to be best sustained by the weight of the evidence. At least there is no reason, in the opinion of this court, for setting the verdict aside on that ground.

Most of the testimony in the record is in regard to the condition of the defendant’s mind,—whether he was sane or insane at the time of the homicide. This has also been subjected to the closest scrutiny. It is seen it is in a measure conflicting, but the weight of the entire evidence seems to be with the conclusion reached by the jury. Defendant was a practicing physician, and had a drug store which he attended himself. Since he had a partial paralysis, some of his neighbors, physicians as well as non-professional persons, think he was not exactly right in his mind,—certainly not as strong as he was before his sickness. Others could see no difference in his mental condition. Physicians that were well acquainted with him and saw him every day, testified they thought he was entirely sane. There would seem to be much good sense in the statement of one of the physicians when he says the “idea of insane impulse without insanity is unreasonable,” and then he added: “There can be no such' condition as a person being sane one moment, insane the next, and sane again immediately after.” This wdtness further says, “insanity is a disease of the brain, ” and expresses his disbelief of the idea the “brain can be diseased one moment and sound the next. ” The theory is advanced, “if insanity exist at all, it will continue to exist until the cause is removed, and will manifest its presence at intervals.” How this may be can only be known to such persons as have made such matters as mental diseases the subject of study. All the medical witnesses seem to agree that in what they term “hemiplegia, ” the “mind is generally weakened. ” One of the physicians examined as a witness for defendant says, “there is not much difference between a person whose mind is weakened by hemiplegia and any other weak-minded person.” It may be, and is doubtless true, defendant’s mind was weakened, or perhaps impaired, to some extent, by the attack of paralysis suffered, but that he was rendered insane by it, is not made to appear from the evidence. What occurred just before and immediately after the homicide, shows most conclusively defendant knew what he purposed to do, and what he had done. Of this there can not be the slightest doubt. The evidence singularly fails to show defendant was in that mental condition that would relieve him from the consequence of his acts. The finding of the jury on this branch of the case is well sustained by the evidence.

It is assigned as error on the trial, that one of the physicians examined on behalf of the People was permitted to give it as his opinion that defendant was sane when he killed deceased. No exception was taken, on the trial, as to the giving of that testimony, and the objection it was error can not be considered in this court. The rule on this subject is well settled, and the point made need not be elaborated.

It is also insisted it was error in the court to refuse to admit the evidence of the witness Elliott, showing threats against defendant, after defendant stated threats had been communicated to him. After stating he had been acquainted with deceased for about a year before his death, the witness was permitted to and did state he had heard "Victor Joseph make threats against Dr. Hughes. The witness was then asked to “state what they were.” It seems this question was objected to as being improper, but the objection was “overruled. ” Still it does not appear the witness made any answer to it. The question was then asked, “Have you heard the deceased, Victor Joseph, make any threats against the defendant, Dr. Hughes, now on trial?” This question was also objected to, and the objection sustained. There is one obvious reason why the ruling of the court was entirely correct. The witness had just stated he had heard deceased make threats against defendant, and there was no reason why he should be asked to repeat the same thing. Had the witness been asked to state “what they were, ” as the "court had just decided might be done, no doubt the witness would have been permitted to answer. This was not done, and thus in the ruling of the court there was no error.

It is also assigned for error that three of the jurors impaneled to try defendant were incompetent, for the reason they had previously “formed and expressed” opinions as to his guilt. Affidavits filed in support of the motion for a new trial on this ground, do tend to show one or more of these jurors had previously expressed opinions concerning the guilt of defendant, but the jurors implicated deny in the most positive manner they ever made the statements attributed to them. Their affidavits in this respect find some support in the affidavits of persons alleged to have been present. Considering all the affidavits together, it is not thought it is sufficiently proved either of the jurors whose competency is now called in question had previously formed any such opinions concerning the guilt of defendant as would disqualify them, or either of them. A verdict ought not to be set aside on such grounds, unless it is made to appear, from satisfactory evidence, the jurors had previously “formed and expressed” opinions hurtful to the defence. Scarcely a criminal case comes to this court where the same objection to the competency of jurors is not taken, founded on mere ex parte affidavits. Such affidavits are a most unsatisfactory mode of establishing any fact • in a case. The parties making them are subject to no cross-examination,—one of the most potent methods ever adopted to elicit truth and to detect falsehood. Besides that, a mere casual remark concerning any matter may be imperfectly understood or not accurately remembered. Many cogent reasons readily suggest themselves why the testimony as to such previously expressed opinions by persons called as jurors should be of a clear and satisfactory character, otherwise a verdict fully warranted by the evidence might have to be set aside, and the ends of justice defeated.

Another ground of error insisted upon is the fact one of the jurors became suddenly very ill,—so much so as to render him incompetent, for the time being, to comprehend what was transpiring. It does not seem to have been noticed the juror was sick until the case had been concluded, and until after the jury had retired to consider of their verdict. Then the juror had a spasm or fit that rendered him unconscious for a few hours. The affidavits of a number of the jurors were taken, and they all show no discussion of the case was had by any of them until after the juror was so far restored that he could and did take part in their deliberations. That being so, there was'nothing in the sickness of the juror that was prejudicial to defendant. It is fully shown defendant had the benefit of the judgment of this juror as well as that of all others in their deliberations on his case.

The point is made against the validity of the present conviction, the record does not show the indictment against defendant was returned by the “grand jury” in open court. The additional transcript of the record filed in this court, on leave given for that purpose, does show the indictment was returned in open court by the “grand jury,” as the law requires shall be done. In the original transcript of the record filed in this court it was recited: “And now, on this 6th day of March, A. D. 1884, and the fourth judicial day of the March term of the circuit court of Crawford county, Illinois, duly selected and sworn, and returned into open court the following true bills of indictment, all of which are indorsed by the foreman thereof as and for true bills, ”—among which was this indictment against defendant for murder. The additional or amended transcript filed in this court contains the same exact words above quoted, with the addition, “came the grand jury.” It is said these words, “came the grand jury,” have been inserted in the record since the original transcript was filed in this court, and copies of affidavits stating that fact have been filed with the argument in this case. The additional transcript is duly certified by the clerk of the court in which the record remains, as being correct, with the words, “came the grand jury, ” in it. His attestation imports verity, and it can not be impeached by mere ex parte affidavits filed in the clerk’s office. They constitute no part of the record, and can not be considered by this court. But aside from this view, this court does not wish to be understood as holding, or even intimating, that the original transcript of the record was so defective it would not sustain the conviction. The context shows plainly, and correctly read it means, “came the grand jury” into open court to present indictments, and that is sufficient. The objection taken to the record in this respect is too subtle to be entertained by this court.

No error is perceived in the record that in the slightest degree affects the merits of the case, and the judgment of the circuit court must be affirmed.

. Judgment affirmed.


author: Mr. Justice Shope

text:
    George F. Sturtevant et al. v. Church Sturtevant.

      Filed at Ottawa March 27, 1886.

    1. Undue influence—in procuring the making of a deed—what so regarded. To avoid a deed on the ground of undue influence, the influence used must be such as the law deems wrongful, or a species of fraud. The proper and legitimate exercise of an influence fairly and honestly acquired is not the exercise of an undue influence, and a deed which, but for such influence, would not have been made, will be sustained, if made freely, and as the result of the grantor’s own conviction and deliberate judgment.
    2. Consideration—for conveyance of land. A written agreement of a grantee of land to take care of the grantor for the remainder of his life, if fairly and understandingly made and accepted by both parties, is a sufficient consideration to support the deed.
    3. Delivery of deed—what will amount to a delivery. Two parties went to an attorney, stating their agreement, and procured him to put the same in waiting, which he did in the form of two deeds from the one to the other, and the agreement of the latter to support and take care of the former, which was read over and seemed to be satisfactory, and the deeds were left with the attorney to procure the acknowledgment of the conservator of the grantor’s wife, which was done, and they were then delivered to the grantee. The grantor suffered the grantee to take possession and expend large sums in valuable improvements on the premises. It was held, that these facts showed a delivery of the deeds.
    4. Chancery—remedy at law—as, in setting aside a deed which has never been delivered. Unless a deed for land has been delivered no title passes, and the maker of the same has an adequate remedy at law to obtain possession from the party named as a grantee, and there is no necessity of going into a court of equity to have the deed set aside.

      5. Rescission—for non-performance of contract. Where a person of advanced years makes a conveyance of his lands in consideration of the written obligation of the grantee to take care of and support him during his life, a breach of such agreement and failure to perform the same will justify the setting aside of the conveyance, and restoring the grantor to the full and absolute possession and control of the lands.
    Appeal from the Circuit Court of Stark county; ■ the Hon. John Burns, Judge, presiding.
    This was a bill in chancery, filed by appellee, against appellants, to set aside two deeds executed by appellee to appellant George F. Sturtevant. The original bill alleges that on April 9,1844, complainant acquired title to the north-east quarter of section 18, township 14 north, range 7 east, in Stark county, Illinois; that from that time until the 13th day of May, 1881, he was the sole owner, and occupied said premises as a homestead, and that said premises were worth $16,000; that on said 13th day of May, 1881, he was also the owner of the north half of the south-west quarter of section 9, and a part of the south half of said quarter in township 14 north, range 7 east, in all containing about eighty-three acres, used by complainant as pasture land, of the value of about $5000; appellee further says he is nearly eighty years of age, and has been in feeble health for several years; that his wife, Hannah Sturtevant, has been insane for more than twenty years, and has lived with and been cared for by a married daughter, at her home, at the cost of appellee; that appellee’s sons and daughters many years ago established homes of their own, and for more than twenty years appellee has lived solitary and alone, so far as his relatives were concerned, employing a house-keeper and farm laborer to do his work. About May 1, 1881, appellant George F. Sturtevant, of Somerville, Massachusetts, a distant relative, proposed to appellee to bring his family upon said farm, and that he would support and maintain appellee, and "do his business, and relieve him from care in his declining years, and used many undue arts and fraudulent devices to win the confidence of appellee; and upon May 13, 1881, appellee being in feeble health and intellect, and harassed by family and business cares, said George F. Sturtevant, by flattering and deceitful promises, and by an exercise of undue arts and cunning and fraudulent devices, and by falsehood and misrepresentation, induced appellee, and appellee did then make, execute and deliver to said George F. Sturtevant two deeds,-—-one conveying to him the said north-east quarter of section 18, township 14 north, range 7 east, and the other the pasture land above described; in consideration of the execution of said deeds, appellant George F. Sturtevant agreed that he, with his family, would occupy and reside on said farm, and would care for, board and support the appellee, nurse him in sickness, and treat him as a member of his family during the remainder of his life. Appellant was also to give appellee the exclusive use of the north-east room in the house, stable room and feed for two horses when Avanted, the use of a carriage house, and all such other privileges upon and about such premises as appellee might desire, not inconsistent with the rights and privileges of other members of the family, and he should have all the rights and privileges of a member of the family. Said bill further alleges, that in addition to the above the appellant was to pay to appellee the sum of $12 per acre for the pasture land, amounting to $996, which appellant refuses to pay; alleges that said deeds were without consideration, and were made by appellee as the result of undue cunning and deceitful arts and fraudulent devices,' falsehood and misrepresentations, and false and fraudulent pretences, practiced upon him by said George F. Sturtevant, and that appellee was under improper restraint, from the false practices of appellant; alleges that appellee was in his dotage, his mind was feeble, and he was incapable of understanding the business transacted between appellant and himself; that about July 1, 1881, appellant moved on to said premises with his family, and that since that time has occupied the dwelling-house and premises,' and used the said premises and received the profits thereof, but has failed and refused to board, clothe, care for and support appellee, or to nurse him in sickness, or to give" him the exclusive occupancy of said north-east room in the house, or stable room or feed for two horses, or to permit appellee to have any rights and privileges about said premises, or to permit him to reside with and constitute a member of appellant’s family; on the contrary, they treat appellee with contempt and unkindness, using violent and abusive language toward him, and making his life miserable, so that it is impossible for appellee to live with them; that appellant has made improvements on said premises, and is indebted to appellee in a large sum, for money loaned and personal property sold to him, and prays that an account be taken by the court of said improvements and debts, and of the rents and profits of the land; prays that the deeds and agreement above named be declared fraudulent and void, and clouds upon appellee’s title, and annulled, and that appellant be required to pay to appellee such sums as shall appear to be due upon an accounting between them, and offers to pay appellant whatever sum may appear to be due him; prays that appellants be required to reconvey said premises to the appellee, and surrender up possession, etc.; ends with general prayer for relief.
    In the deed for the north-east quarter of section 18, township 14 north, range 7 east, referred to in the bill as “Exhibit A,” the appellee reserves a life estate to himself in one-half of the land, and it is averred in the bill that this reservation was made for the purpose of securing the performance of this contract for his support and maintenance, on the part of appellant.
    The amended bill is substantially the same as the original, except that it enters more fully into the details of the manner in which appellant and appellee became acquainted, and states that appellee lived solitary and alone, without relations with whom he could have recreation or social intercourse,— lonesome and homesick in his own house. It is further alleged that complainant has resided on said north-east quarter of section 18, and cultivated the same, nearly forty years; that his occupation has been that of a farmer; that his education was very limited and deficient; that he was an old man, nearly eighty years of age, and for several years past has been in feeble health; that the defendant frequently referred to the fact that the complainant had reached the age when he should be relieved from all labor and care; charged complainant's relatives with neglect of duty to him, and declared that he should consider it not only a duty, but a pleasure, to care for the complainant, transact his business, and relieve him from all labor and care in his declining years; that being a poor writer, the complainant opened negotiations with Josiah C. Sturtevant, a favorite nephew, of Center Harbor, New Hampshire, to come and take care of him, sending propositions and receiving replies by the defendant as he went to Boston and returned; and that the defendant, for the purpose of obtaining complainant’s property for himself, fraudulently misrepresented said propositions and the replies of said Josiah C. Sturtevant, to break off said negotiations and prevent said Josiah C. Sturtevant from coming; .that soon after the termination of said negotiations, to-wit, on the 1st day of May, A. D. 1881, the defendant, still pursuing the object of his pretended solicitude and anxiety for the complainant’s welfare and comfort, proposed to take complainant’s farm, and care for, support in comfort and keep him, transact his business and relieve him from all care and anxiety in his declining years; and that the defendant used and exercised upon the complainant so many artful and cunning devices, and such undue and fraudulent influences and false and deceitful promises, that the complainant, then being in feeble physical health, and weak of mind and intellect, and being actually in his dotage, and not realizing or understanding what he was doing, was induced to and did yield to the said influences and consent to said propositions; and on the 13th day of May, 1881, the complainant still being under improper restraint and undue influence, and weak mind and intellect, and in feeble health, and not realizing or understanding the business upon which he was entering, he was induced by the continued artful and cunning devices and false and fraudulent misrepresentations of the defendant, to make and execute the said deeds and agreement; that when the complainant consented to said proposal of the defendant, and from that time to and until at the time when said deeds wrere made,, executed and signed by the complainant, he was not of sound mind or memory; that he could not and did not comprehend, and was incapable of understanding, the import and consequence of said contracts, and was not competent to make the same; that at and during such time his mind was impaired, his memory weak and his intellect feeble; that he was not capable of giving the matter due consideration; that his judgment was faulty and unsafe; that he was incapable of understanding the scope and meaning of said contract,— in short, that he wras in his dotage, his mind wras clouded, his understanding was impaired, and his judgment and reasoning faculties lost "and destroyed; and that during all that time the defendant used and exercised over and upon the complainant improper restraint and undue influence, and by means thereof, and by the exercise of many and various cunning and deceitful arts and devices, and by fraud and circumvention, induced the complainant to make and execute said deeds and agreement; that the defendant agreed to pay to the complainant the sum of $996 for the pasture land, and that it was understood and agreed that neither of said deeds should be delivered until said sum had been paid, but that said deeds should be held by the complainant and kept in his own possession until said sum had been paid by a note or other evidence of the indebtedness given therefor; that said deeds were taken by the notary public for no other purpose than to obtain the signature and acknowledgment of complainant’s wife, and that complainant did not authorize or request or intend that the notary should give up, deliver or surrender said deeds, or either of them, to the defendant, or file the same for record, but that the same were to be returned to the complainant, to be by him kept and held until such time that he should be ready and deem proper to deliver them ; that said deeds have never been delivered by the complainant to the defendant, or to any person for or as the agent of him nor for him, nor for, in behalf, at the request, or by the authority of the complainant; that there has never been any valid or lawful delivery of said deeds, but that the same were surreptitiously and wrongfully, and without the knowledge or consent of the complainant, filed for record^; that said deeds of conveyance and said agreement were not to take effect until the first day of January, 1852, and until that date the complainant was to retain and keep possession of all of said real estate and said deeds of conveyance; that complainant, by a verbal contract, leased said premises to the defendant until the 1st day of January, 1882, and that on or about the 1st day of July, 1881, the defendant took and entered into the possession of said, premises under said verbal lease and as a tenant of said complainant; that the complainant has never given or surrendered to the defendant the possession of said premises, or any part thereof, under said deeds, or as a purchaser thereof; that the defendant has never had or obtained the possession of said premises, or any part thereof, under and by virtue of any title conveyed to him by said deeds, but that he holds and retains the possession thereof forcibly, and without the consent of the complainant, and without right.
    The answer of appellants, George S. and Harriet Sturtevant, admits that appellee, prior to May 13, 1881, W'as the owner of the premises in controversy, but denies that he was the owner on July 1, 1881; denies that the north-east quarter of section 18, township 14, north, range 7, east, was worth $16,000, or that the pasture was worth $5000, but says that the first was worth $8000 or $9000 and the latter $2000; admits that appellee’s children had all left him, and that he was an old man living without family associations, solitary and alone, “lonesome and homesick in his house;” states that appellee was miserable, fretful, fault-finding, and disagreeable in his habits, so that his family could not live with him, but abandoned him and left him alone; admits that in pursuit of his business appellant came to Stark county to purchase horses for shipment; that he called upon appellee, his uncle, and stopped with him, more or less, while purchasing horses; that he kept a part of his horses there while gathering them for shipment; that appellee treated him with great kindness, and that appellant became much attached to appellee and had great regard for him; but appellant says that he always offered to pay, and did pay, appellee for all board or horse-feed, to the full satisfaction of appellee, and owes him nothing therefor; admits that appellant, in conversation, said to appellee that he had reached an age when he ought not to be burdened with so much care, but denies that he ever charged the relatives of appellee with neglecting him; denies that prior to the execution of said deeds, on May 13, 1881, he ever told appellee that he would consider it his duty and pleasure to take care of appellee, and manage his business, and relieve him from care, but says that appellee, at times, was lamenting his loneliness, and the burden of care upon him, and his desertion by his family, when appellant did have great sympathy for him, and a desire to assist him so far as he could, but appellant had not then thought of' taking care of appellee or his business, further than to assist him what he could in connection with his own business, and no't otherwise; admits that appellee desired appellant to correspond with Josiah Sturtevant, and try to induce him to come and live with and take care of appellee, and alleges that appellant did correspond with said Josiah, and once went to his home in New Hampshire and tried to prevail on him to come and live with him and take care of appellee, and, by authority of appellee, told him that if he would come and live with and care for appellee, appellee would give him all of the land in controversy, but Josiah refused to come, and told appellant that he knew appellee, and that nobody could live with him. Appellant denies that he misrepresented appellee’s proposition to Josiah, or Josiah’s reply to appellee, but says that he acted in good faith, and desired that Josiah should come, because of the sympathy and respect that he had for appellee; admits the execution of the two deeds and the agreement, but denies all fraud and misrepresentation, and all deceitful devices and undue influence, and denies that appellee was under any improper restraint, and denies that appellee was of weak mind or feeble intellect, or that he did not understand the business that he was transacting, but alleges that appellee was of sound mind and understanding; that he executed said deeds and agreement with full knowledge of their contents, without solicitation or influence of any kind by the appellant; that appellee then had, and now has, other important business than that, which he prudently transacts; denies that appellant was to pay any sum of money for the pasture, but says that the only consideration for the agreement was that he was to care for appellee, as stated in said agreement; alleges that in 1877, 1878, 1879 and 1880, appellant George S. Sturtevant lived at Somerville, Massachusetts; that, in partnership with two brothers, he was engaged in buying and selling groceries and provisions, and buying, shipping and selling live stock; that said firm was doing an extensive and profitable business; that in prosecution of said business appellant made frequent visits to Illinois to purchase horses; that he called upon the appellee and was welcome there; that appellee was very friendly, and assisted appellant in his business, and appellant assisted appellee about his business, and by the interchange of business affairs an attachment grew up between them, and appellee confided to appellant his family troubles and his abandonment by his own children, and asked the assistance of appellant to induce Josiah Sturtevant to come and live with appellee, and appellant did so, and by authority of appellee offered Josiah the same premises afterwards conveyed to appellant for a similar purpose, but Josiah refused to come. After the refusal of Josiah to come, and at the next visit of appellant to appellee, in the spring of 1881, appellee asked appellant to make a proposition, how he (appellant) would come and live with and take care of appellee while he lived. Appellant replied that he would make a proposition, and in a few days thereafter did make a proposition in writing that he would give up his business in Somerville and move his family here, and care for appellee, if appellee would give him the farm and pasture in controversy, which was the same that appellee had offered to Josiah to come. Appellee accepted the offer, and appellee and appellant came together to the office of B. F. Thompson, a notary public, and directed him to draw the necessary papers. Afterward, Thompson drew said deeds and agreement, and went to the house of appellee, where said deeds and agreement were executed. The said deeds were delivered to appellant, who caused them to be recorded, and the agreement was delivered to appellee. Appellant denies that the deeds were to be retained by appellee until appellant should pay $12 per acre for the pasture land, and avers that the deeds were freely delivered, and there was to be no money consideration whatever for them; that immediately after said deeds were executed, appellant withdrew from his business at Somerville, and removed his family to Illinois, upon said premises, and in accordance with said agreement, and they have fully complied with all of their agreements with appellee; that they have boarded and clothed him, have kept and furnished his rooms for hint, have entertained his friends, and have endeavored to make him a comfortable and pleasant home, but they say that by the influence of false friends, and his own unhappy and discontented mind, appellee has become dissatisfied, and seeks to violate his agreement; that appellant, immediately after moving upon said premises, rebuilt the dwelling house, which had become dilapidated and leaky, expending thereon $2000, and on outbuildings, fences, etc., the further sum of $2000; denies that any lease was ever made, or that appellant took possession under any lease, and avers that appellee lived with appellant at the time said house was being built, and made no pretence or claim that appellant was not rightfully in possession; denies that appellant is indebted for any rent, but says that at the time said deeds were executed the season was considerably advanced. Appellant had yet to remove his family from Massachusetts, and" had no seed, grain or tools to work with, and was not prepared to proceed at once with the work. It was thereupon agreed that appellant should pay for the help, use the seed and tools of appellee, and that each have one-half of the crop and pasturage that year. They did so farm that year, and appellee did receive one-half of the grain and much more than one-half of the pasturage; denies that appellee was of unsound mind, or in his dotage, or under restraint, but avers that appellee was of sound mind, and executed said deeds to induce appellant to come and make him a good home; denies that appellee is entitled to any relief, and prays the same advantage of this answer as if they had demurred or pleaded to said bill, and prays to be hence discharged with costs, etc.
    A replication was filed to the answer, and upon the hearing the circuit court found that the deeds from appellee to appellant were obtained from appellee by undue influence exercised over him by appellant, and, by decree, annulled and set them aside, and appellant has appealed to this court.
    Mr. W. W. Weight, and Mr. Miles A. Fullee, for the appellants:
    What will be regarded as undue influence in respect to the making of a contract or will, is fully discussed in the following authorities: Dickie et al. v. Carter, 42 Ill. 379; Roe v. Taylor, 45 id. 491; Rutherford v. Morris, 77 id. 413; Yoe v. McCord, 74 id. 44; Allmon v. Pigg, 82 id. 150; Stone v. Wilbern, 83 id. 109; Chandler v. Ferris, 1 Harr. (Del.) 454; Redfield on Wills, 522.
    Of the mental capacity to make a deed or other contract: Story’s Eq. Jur. sec. 238; Lindsey v. Lindsey, 50 Ill. 79; Willemin v. Dunn, 93 id. 511; Pickerell v. Morss, 97 id. 220; Stone v. Wilbern, 83 id. 105; Uhlich v. Muhlke, 61 id. 499; Miller v. Craig, 36 id. 109; Dickerson v. Evans, 84 id. 451; Roe v. Taylor, 45 id. 485; 1 Hilliard on Vendors, 350.
    Courts will not interfere to relieve persons from unfortunate contracts which they have understandingly, but unwisely, entered into. Campbell v. Carter, 14 Ill. 291; Dickerson v. Evans, 84 id. 451.
    Delivery of deeds, of the essentials, and evidence thereof : 4 Kent’s Com. 445; Bryan v. Wash, 2 Gilm. 557; Tunison v. Chamblin, 88 Ill. 387; Daub v. Englebach, 109 id. 271.
    Mr. J. E. McKeighan, and Mr. S. B. Jones, also for the appellants:
    Capacity to act rationally in the ordinary affairs of life, is sufficient to sustain a deed or will. Meeker v. Meeker, 75 Ill. 260; Titcomb v. Van Kyle, 84 id. 371. And generally, see Yoe v. McCord, 74 Ill. 33; Willemin v. Dunn, 93 id. 511; McKinney v. Hensley, 74 Mo. 326; Crowe v. Peters, 63 id. 429; Pickerell v. Morss, 97 Ill. 220; Dennett v. Dennett, 44 N. H. 531; Mace v. Boyer, 30 Pa. St. 111.

      Any thing showing intention of the parties that the deed shall become operative, is considered as a delivery. Gunnell v. Cockerill, 84 Ill. 319; Hewitt v. Clark, 91 id. 605; Tunison v. Chamblin, 88 id. 378.
    The undertaking of appellants to take care of the grantor, was a good consideration to uphold the deed. Sutton v. Hayden, 62 Mo. 101; Gupton v. Gupton, 47 id. 37; Reid v. Porter, 54 id. 265.
    Of the influence that may be used to procure a deed or other provision in a party’s favor, and what constitutes undue influence, see Meeker v. Meeker, 75 Ill. 260; Allmon v. Pigg, 82 id. 159 ; Yoe v. McCord, 74 id. 33; Willemin v. Dunn, 93 id. 511; Lindley v. Lindley, 50 id. 79; McKinney v. Hensley, 72 Mo. 326; Roe v. Taylor, 45 Ill. 486; Crane v. Peters, 63 Mo. 429; Mace v. Boyer, 30 Pa. St. 111.
    Mr. John E. Decker, and Mr. C. C. Wilson, for the appellee :
    As to what is undue influence, and its effect on contracts procured thereby, see 1 Redfield on Wills, (2d ed.) 514, sec. 12; id. 520, secs. 21, 27; 1 Jarman on Wills, (5th ed.) *36; 1 Story’s Eq. Jur. secs. 188-244, 325; Griffith v. Diefendorffer, 50 Md. 466; 1 Greenleaf on Evidence, sec. 688.
    As to mental capacity to make deeds or a will, see 2 Green-leaf on Evidence, sec. 688, note 1; 1 Redfield on Wills, 57, note 2, p. 118, sec. 15.
    A deed procured by undue influence will be set aside when relations of confidence subsist between the parties. Express proof of such influence need not be made, but will be implied from the known relations of the parties. Bayliss v. Williams, 6 Coldw. 440; Turner v. Turner, 44 Mo. 535; Greer v. Greer, 9 Gratt. 330; Millican v. Millican, 24 Tex. 426; Fuller v. Fuller, 40 Ala. 301; Corbitt v. Smith, 7 Iowa, 60.
    A conveyance may be impeached for mere weakness of intellect, if coupled with other things showing an advantage taken of it. Blatchford v. Christian, 1 Knapp, 73; Young v. Stevens, 48 N. H. 133; Davis v. McNally, 5 Sneed, 583.
    As to what facts and circumstances will justify the setting aside of deeds, see Dally v. Smith, 1 Coldw. 290; Harris v. Weamsby, 41 Iowa, 671; Gibson v. Fifer, 21 Tex. 260; Kerr on Fraud, 386, 151; Kennedy v. Kennedy, 2 Ala. 571; Whitehouse v. Hines, 1 Munf. 557; Futrill v. Futrill, 6 Jones’ Eq. 337.
    Although inadequacy of consideration does not of itself constitute fraud, yet when it is accompanied with other circumstances showing imposition or undue influence, or when it is so gross as to shock the conscience, equity will grant relief. Gwynne v. Heaton, 1 Bro. C. C. 8; Osgood v. Franklin, 2 Johns. Ch. 1; Barnett v. Spatt, 4 Ired. Eq. 171.
    Delivery is essential to the validity of a deed. Skinner v. Baker, 79 Ill. 499; Byars v. Spencer, 101 id. 433; Blake v. Farb, 44 id. 302.
    The controlling element in determining the delivery of a deed, is the intention of the grantor at the time. Masterson v. Cheek, 23 Ill. 76; Walker v. Walker, 42 id. 311; Thompson v. Candor, 60 id. 247.
   Mr. Justice Shope

delivered the opinion of the Court:

There are five distinct causes alleged by appellee why the deeds from him to appellant should be set aside: First, that undue influence was exercised over appellee by appellant, to induce him to execute them; second, that appellee was, at the time of executing the same, of such unsound mind and memory as not to be competent to make a deed; third, that there was no consideration for said deeds, and that their execution was procured by deceitful arts, fraudulent devices, falsehood and misrepresentation, and false and fraudulent pretences practiced on the appellee by the appellant; fourth, that the deeds were never delivered; and fifth, that appellant has failed and refused to perform the contract, which was the sole consideration for said deeds on his part. The circuit court based its decree upon the charge of undue influence alone, and we will therefore examine that point first, and if it appears the finding of the circuit court in that respect is sustained by the law and the evidence, of course the decree will have to be affirmed; but if the finding is not sustained, then the other reasons urged for setting aside the deeds will require examination.

It is important at the outset to ascertain what constitutes such undue influence as will vitiate a deed procured by its exercise over the grantor. It is not sufficient to avoid a will or a deed that its execution wras procured by honest argument or persuasion, untainted with fraud. In Dickie v. Carter, 42 Ill. 379, this court said: “If all is fair, and the result of honest argument and persuasion, or of such influence as one may properly obtain over another, the will (deed) must stand. ” In Yoe v. McCord, 74 Ill. 44, we said: “To avoid a will the influence which is exercised must be undue, and this, in a legal sense, is something wrongful,—a species of fraud. ” The same doctrine is announced in many other cases. It follows that the proper and legitimate exercise of an influence fairly and' honestly acquired, is not the exercise of an undue influence, and that a deed which, but for such influence, would not have been made, will still be sustained if made freely and as a result of the maker’s own conviction, and in the exercise of his own deliberate judgment. This being the law, does the evidence in this case show that the deeds in controversy were procured by the exercise of undue influence by appellant over appellee?

We find plenty of evidence in the record showing very kind feelings between appellant and appellee prior to the execution of the deeds and for a considerable time after, from which it might be inferred that each would have some influence over the other; but we are unable to see anything in the record which tends to show the exercise of any undue influence by appellant over appellee, unless it can be said that the deeds themselves, the evidence as to the value of the land, and the contract between the parties, raise a presumption that such an undue influence was exercised. The only thing the appellee says in his testimony which can have any relation to the question of influence is: “Defendant proposed to cornee and live with me in the spring of 1881. His manner towards me was very agreeable. He was kind and considerate, and treated me as a son should his father. In April, 1881, we had a talk about his coming to live with me. I told him I would deed him one-half of my farm, and the balance at my decease. I think we had another talk about it about the time we came to get Thompson to draw the writings. I did deed him two pieces of land, but I do not know whéther it was put in one deed or not. ” The appellant says that appellee first mentioned the subject of appellant going to live with him and take care of him, and appellee says appellant first mentioned it; but it is a matter of. no consequence, in this connection, which is correct in this respect, because appellee, in his testimony, does not mention a single act done or word said by appellant, by way of persuasion, importunity or otherwise, to in any manner influence him in the premises. He says they had a talk upon the subject in April, 1881, and another one before the papers were signed, but he does not pretend to give any of these conversations. Surely, if anything was done or said on either occasion which amounted to an attempt to unduly influence appellee, he would have mentioned it in his testimony, but he did not; and in view of the fact that some time elapsed after the negotiations began, before it was consummated, and that, when consummated, it was only carrying out, in substance at least, a design previously formed by appellee with reference to another nephew, and the further fact that appellee stated to the attorney who drew the papers what the contents were, we are forced to conclude the transaction was the result of the appellee’s own will and judgment, so far as the question of undue influence was concerned, and therefore the finding of the circuit court on that subject is not sustained by the evidence.

The second cause urged for setting aside the deed is, that appellee, at the time of its execution, was not of sound mind, and did not understand its purport and effect. On this subject there were nine witnesses—neighbors and friends of the appellee—examined on his behalf, six of whom say that for a few years prior to 1881 they had noticed that appellee was failing physically and mentally, and that he was not as competent to do business as he formerly had been. Five of them had done business with him, four had not. One thought that his mental faculties were unimpaired, and two of them thought his mind all right until they heard of his trade with appellant, and from that fact alone concluded his mind was impaired. On the other hand, ten witnesses were examined on behalf of appellant, all of whom testified that his mental faculties were not only good up to the time of the transaction now under consideration, but up to the time of the giving of their testimony. These witnesses, with one or two exceptions, are all neighbors and intimate acquaintances, and most of them had had business with him, and one of them (Thomas Hall) had a very important transaction with him in March, 1881, being the purchaser of a farm for the sum of $6000. Mr. Hall says: “We paid him $5000 down, and the balance in September. When I paid him the balance, in the fall, he seemed all right for health and strength, so far as I know. He inquired all about the interest, to see whether we were correct. * * * We paid it at complainant’s house, to him. * * * No one assisted him in the transaction. My judgment is, he knows how to do business as well as any one we have done business with,—that was so in 1881, when we transacted business with him. ” It is an undisputed fact that appellee has transacted his own business ever since the execution of the deeds in controversy, amongst other things selling a large amount of personal property to appellant, taking notes, collecting money, etc., and his mental capacity as to these transactions has not been doubted, either by himself or his friends, so far as we can ascertain from the record. We therefore conclude that he had sufficient mental capacity to make the deeds in dispute, and that they should not be set aside for want of such capacity.

As to the third cause, viz, that the deeds were without consideration, and were procured by fraud, deceit, falsehood, etc., it is only necessary to remark that both the pleadings and the evidence show a consideration for the deeds,—inadequate, it may be, but a consideration nevertheless, and such as is sufficient to sustain the deed unless there was fraud, misrepresentation or undue influence practiced^ upon or exercised over the appellee to procure their execution, or that there was want of mental capacity on his part to contract. The agreement to take care of appellee for the remainder of his life, if fairly and understandingly made and accepted by both parties, is a consideration sufficient to support the deed, to say nothing of the alleged agreement of appellant to pay $12 per acre for the pasture land, which will be discussed later.

What we have already said as to the claim that undue influence was exercised by appellant over appellee, applies with equal force to the charge of false pretences, falsehood, misrepresentation, deceitful practices, etc., because whilst all of these things are charged in general and sweeping terms in the bill, appellee does not refer to any word or act, in his testimony, showing or tending to show the truth of such charges, nor is there any other evidence in the record to sustain them.

The fourth cause assigned is, that the deeds were never delivered. If this were true, it was not necessary to ask the aid of a court of equity. The delivery of the deeds was necessary before any title passed, and if never delivered no title passed, and' appellee had an adequate and complete remedy at law. But we think that there was a delivery of the deeds. When appellee and appellant went to appellee’s attorney, appellee told the attorney that he had made arrangements with appellant to take his farm and take care of him. Both parties told the attorney what they wanted, and he put it in writing, in the shape of the two deeds, and an agreement for support and sustenance. The papers were all read over to both parties, and seemed to be satisfactory,—at least no objection was made. The deeds were then taken by the attorney, for the purpose of securing the signature and acknowledgment of the conservator of appellee’s wife, which was done, and then the deeds were, by said attorney, delivered to appellant, and by him placed on record. We think the acts of appellee in this matter fully justified the attorney in delivering the deeds to appellant, and the subsequent conduct of appellee in permitting appellant to expend such large sums of money in lasting and valuable improvements, raises a strong presumption that he considered the attorney authorized to deliver the deeds when he left them in his hands. Certainly this was the view he took of it when he filed his original bill herein, for he said there that he had made, executed and delivered sfiid deeds.

The fifth and last cause urged for setting aside said deeds is, that appellant had failed to comply with his part of the contract, and had not furnished appellee proper support, etc., and had locked him out of the house, and refused to permit him to reside with the family as a member thereof, and, in short, that he had'refused to perform any of the things required by the terms of the contract to be done and performed by him. This is a very serious charge, and if sustained by the proof, the deed should be at once set aside, and appellee restored to the full and absolute possession or ownership and control of the property as in his former estate. The contract in full is as follows:

“Whereas, Church Sturtevant has conveyed to said George R, by warranty deed of this date, the N. E. 18, 14 N. 7 E., and by said deed reserves to himself a life estate in and to the undivided half thereof, to be held by him in fee during his natural life: Now, therefore, it is mutually covenanted and agreed between said parties, that George F. Sturtevant shall care for, board, clothe and support, and in sickness nurse, the said Church Sturtevant during his natural life; that the said Church Sturtevant may have the exclusive use and occupancy of the north-east room of the dwelling house on said premises; stable room and hay and grain for two horses, or pasture for the same, as long as and whenever he may choose; the use of the carriage house for a carriage, and all such other privileges in and about and upon the premises as he may desire, and as may be consistent with and not an encroachment upon the rights' and privileges of other members of the family; it being the desire and intention of the said parties that the said George F. Sturtevant and his family shall occupy and reside in the said dwelling house and premises, cultivate and carry on the said farm, and that the said Church Sturtevant shall reside with and constitute a member of the said family, and shall have and enjoy all of the rights and privileges of and as one member of the said family.”

We have carefully considered the testimony on the part of the appellee, as shown by the record, on the subject of the refusal or neglect of the appellant to comply with the contract, and assuming it to be absolutely true, all that can be claimed as shown as a violation of the contract is, first, that the appellant, in the month of June, removed the stove from appellee’s room on a promise to return it if the weather turned cold, and that when the weather did get cold he delayed returning it for two days, and returned it as soon as his attention was called to it; secondly, that appellant locked the door leading from appellee’s room into the hall, so that appellee, in order to reach the dining room, had to step out on a covered porch and walk three feet to the dining room door. Appellee claims the reason assigned for this was, that he passed over the carpets with manure and filth on his feet, although two of his witnesses testify that appellant’s wife was sick at that time, and one of them says that appellant gave as a reason for locking the door, that persons passing through the hall injured her health, and made her nervous, and that he requested appellee not to pass through the hall for that reason. The contract provides: “Said Church Sturtevant may have the exclusive use and occupancy of the north-east room, * * * and all other such privileges in and about and upon the premises as he may desire, and as may be consistent with and not an encroachment upon the rights and privileges of the members of the family, * * * it being the intention * * * that said Church Sturtevant * * * shall have and enjoy all the rights and privileges of a member of the said family. ” If appellee persisted in going through the hall in such a way as to annoy or injure the health of sick members of the family, it was not consistent with and was an encroachment upon the rights and privileges of other members of the family, and appellant had a right to prevent it by locking the door leading from appellee’s room into the hall, provided, in doing so, he did not interfere with appellee’s exclusive use of that room, or do any act injurious to the comfort or health of appellee.

Having said this much, it is not necessary to refer to the evidence on this subject offered by appellant, any further than to say, that when considered as a whole, the evidence decidedly preponderates in favor of not only a strict but a liberal compliance with all the terms of the contract under consideration, and therefore we think the decree of the circuit court ought to be reversed.

As to the consideration to be paid for the tract of land known as the pasture land, mentioned in the bill and evidence, we are inclined to the opinion the preponderance of evidence supports the claim of appellee that appellant was to pay him $12 an acre for it. The appellant admits that it was spoken of, but says he refused to agree to it, but the house-keeper, Mrs. Wheeler, testified that appellant told her he was to pay $12 per acre for the pasture, and appellee and Thompson both say that was agreed to when the deeds were drawn. There is a misunderstanding on the part of either the appellant or the other three witnesses, and there is nothing by which to be guided except the number of ■ witnesses, where all are equally credible and intelligent, and have equal means of knowing the facts about which they testify. The $12 per acre was the purchase price of this tract of land, and appellee has, we think, a clear right of recovery therefor, and may have a lien on the land so sold, for its payment, with legal interest since the same became payable. A court of equity having jurisdiction of the cause, will be authorized to go on and do complete equity between the parties.

For the errors heretofore mentioned, the decree of the circuit court is reversed, and the cause remanded to the said court for further proceedings therein not inconsistent with this opinion.

Decree reversed.

This cause was originally assigned to Mr. Justice Dickey, and after his death was re-assigned by the court.