text:
    M. C. Campbell et al. v. Leroy A. Goddard.
    _ _Filed at Mt. Vernon June 12, 1886.

    1. Confession of judgment—on warrant of attorney—power strictly construed, The doctrine is well settled that a power to confess a judgment must be clearly given and strictly pursued, or the judgment will not be sustained.
    2. Same—as to attorney’s fee—power construed. A warrant of attorney to confess judgment included in a note, empowered any attorney at law of the State to appear before any court of record, in term time or in vacation, and confess judgment for the sum therein mentioned, “and a reasonable attorney’s fee,” and to release all errors, etc.: Held, that the warrant should be construed as conferring upon the court the power of determining the reasonableness of the fee, and when the attorney signed a cognovit acknowledging judgment for the sum due, with an attorney’s fee of $125, he acted without-authority in fixing the amount of such fee.
    3. Same—confession in vacation—powers of clerk. The clerk of a court of record having no judicial powers, is not authorized, in entering up a judgment by confession in vacation, to hear evidence and determine what is a reasonable attorney’s fee. In fixing the amount of the judgment he can only look at the cognovit, and enter judgment for the amount there confessed.
    4. Same — control of the court over judgment confessed in vacation. Where a judgment entered in vacation, upon confession of an attorney under a power, is for too great a sum, or includes a sum as an atttorney’s fee which is not proper, the court at the next term should, on motion of the defendant therein, modify or set aside the judgment to the extent of such improper sum.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of Williamson county; the Hon. David J. Baker, Judge, presiding.
    Messrs. Clemens & Warder, for the appellants:
    In judgments by confession, it is well settled that the authority to confess must be clear and explicit, and must be strictly "pursued. Follansbee v. Mortgage Co. 5 Bradw. 22; Fry v. Jones, 78 Ill. 632; Chase v. Dana, 44 id. 264; Tucker v. Gill, 61 id. 238; Keith v. Kellogg, 97 id. 151; Augustine v. Doud, 1 Bradw. 593.
    No evidence was or could be heard by the clerk in vacation, he being no judicial officer. Roundy v. Hunt, 24 Ill. 598; Tucker v. Gill, 61 id. 238; Durham v. Brown, 24 id. 94.
    The 66th section of the Practice act authorizes the confession of judgments “for a debt bona fide due. ” In Soles v. Sheppard, 99 Ill. 620, it is held these provisions for an attorney’s fee can not be upheld as a gratuity, for want of a consideration, nor as a cover for usury; but to be binding they must be treated as an indemnity. If treated as an indemnity, the contingent loss to the party indemnified must be charged in the declaration and shown by proof. Roundy v. Hunt, supra; Israel v. Reynolds, 11 Ill. 218; Follansbee v. Mortgage Co. 5 Bradw. 22.
    The plaintiff in this case does not claim in his declaration that he was at the expense of counsel about confessing said judgment, nor what, if anything, he ever paid for services of counsel. In such case no recovery for an attorney’s fee can be had. Augustine y. Doud, 1 Bradw. 593; Breese v. Becker, 51 Ill. 82.
    Mr. W. W. Barr, and Mr. G. W. Young, for the appellee:
    A judgment by confession before the clerk, in vacation, will be presumed to be regular, and it devolves on the party seeking to set it aside to allege and prove facts impeaching its validity. Thomas v. Mueller, 106 Ill. 37.
    The warrant of attorney authorizing the confession of a reasonable sum as attorney’s fees, the plaintiffs in error can not rightfully ask that the judgment be reduced. The most they could do would be to allege that the fee confessed was unreasonable, and ask leave to defend as to such claim. The defendant must, show that he has a meritorious defence. Hempstead v. Humphrey, 38 Ill. 90.
    As to the amount of the attorney’s fee, or its reasonableness, no proof could be offered before the clerk. He must enter the judgment for the amount confessed, or not at all. (Durham v. Brown, 24 Ill. 93.) When the judgment is so entered, if the power in the warrant is pursued, it can only be attacked for fraud, or at least an equitable defence must be shown, or some equitable reason shown why the judgment should not be vacated or modified. Keith v. Kellogg, 97 Ill. 147; Condon v. Bessee, 86 id. 159; Campbell v. Goddard, 17 Bradw. 582.
   Mr. Justice Magruder

delivered the opinion of the Court:

On April 4, 1885, a judgment by confession was entered, -in vacation, before the clerk, in the circuit court of Williamson county, in favor of appellee and against appellants, for $4651.10, and costs, including an attorney’s fee of $125. Afterwards, at the May term, 1885, appellants made a motion to set aside or modify the judgment, as to the attorney’s fee, embraced in it. This motion was overruled on June 17, 1885, and the decision of the circuit court, overruling it, was, on appeal to the Appellate Court for the Fourth District, affirmed by that court at the August term, 1885. Appellants prosecute their further appeal to this court.

The judgment was rendered upon two notes, one for $3000 and one for $1461:85. Thé phraseology of the warrants of attorney is the same, in both notes. They differ only in amounts, dates and times of payment. One of the notes and warrants of attorney, upon which the judgment was confessed, is in the words and figures following, to-wit: .

“$3000. Thirty days after date, we or either of us promise to pay to the order of L. A. Goddard the sum of $3000, and to secure the payment of said amount, we hereby authorize and empower any attorney at law of the State of Illinois to appear before any court of record, in term time or in vacation, at any time hereafter, and confess judgment for the above mentioned sum, and eight per cent from maturity, and a reasonable attorney’s fee, and to release all errors and waive all proceedings in the nature of a stay of execution, appeal, or petition in error. The endorsers, signers and guarantors, severally, waive presentation for payment, protest, and notice for protest, and notice of non-payment of this note, and diligence, in bringing suit against any party to this note, and sureties agree that time of payment may be extended without notice or other consent.
“In witness whereof we have hereunto subscribed our names and affixed our seals, this 22d day of December, A. D. 1884.
O. S. Tippy, ' [Seal.]
Z. Hudgens, [Seal.]
M. C. Campbell. [Seal.] ”

The objection, urged against the judgment in this case, arises out of the use of the words, “and a reasonable attorney’s fee,” in the foregoing instrument. We have held,' that a judgment by confession may include an attorney’s fee, where the amount of the fee is fixed by the warrant of attorney, which authorizes it to be so included. (Ball v. Miller, 38 Ill. 310.) In this case, however, a fee is authorized, the amount of which is not fixed by the warrant of attorney. The question arises, how and by whom the reasonableness of the fee is to be determined.

The declaration makes no allegation, that any particular amount would be a reasonable fee. The cognovit, however, recites, that “the defendants, by their attorney, waive service of process, and confess, that * * * the plaintiff, on occasion of the non-performance of the several promises, in the declaration mentioned, including.the sum of $125 for his reasonable attorney’s fees, in this behalf, has sustained damages to the amount of $4651.10, and costs, etc., and the defendants agree, that judgment may be entered * * * for that amount,” etc. The clerk, thereupon, entered judgment upon the-record for the amount of debt, attorney’s fees, and costs, so confessed in the-cognovit.

It thus appears, that the amount of the fee was fixed and its reasonableness decided upon by the attorney, confessing the judgment. Was this mode of determining it authorized by the power of attorney ?

In Frye et al. v. Jones, 78 Ill. 632, we said: “The authority to confess a judgment without process must be clear and explicit, and must be strictly pursued.” In Keith et al. v. Kellogg et al. 97 Ill. 147, we, again, said: “The doctrine is well settled and has often been recognized by this ‘court, that:the power to confess a judgment must be clearly given and strictly pursued, or the judgment will not be sustained.” If it were a fair matter of "doubt, whether the power to fix a reasonable fee, in'this case, was conferred upon the court, which should render the judgment, or upon the attorney, who should confess it, that doubt, under the rule of strict construction, laid down in the authorities cited, should be solved, in favor of the court, and not of the attorney, as the donee of the power. These judgment notes are often given by debtors, when their obligations are pressing upon them, and when they are unable to resist any conditions, however exacting, that may be imposed upon them. It is, also, true, in fact and as a matter of practice, whatever the theory may be, that the attorney, signing the cognovit, is generally selected, not by the debtor, but by the holder of the note. To give such an attorney the power of fixing whatever fee he should consider reasonable, and adding it into the judgment confessed, would be to place the debtor toó much at the mercy of his creditor.

We think, that the warrant of attorney, above set forth, is to be fairly construed, as conferring upon the court the power of determining the reasonableness of the fee. The attorney is authorized to appear before a “court of record, ” and confess judgment for such a fee, as that court may decide to be reasonable. In order to decide correctly, it may be necessary to hear evidence and draw conclusions therefrom. This is preeminently the business of a court, acting as such. Inasmuch, therefore, as it was the intention of the makers of the warrant of attorney to give to a judicial tribunal the right to fix the fee, to be taxed against them, it is clear, that the-attorney, who signed the cognovit, exceeded his authority, or, rather, acted without authority, in first determining upon $125, as a reasonable fee, and then confessing judgment for that amount.

It is to be noted, that the judgment was not rendered in term time, but was entered up upon the record by the clerk in vacation. Hence, it can not be assumed, that any proof was introduced or heard, as to the reasonableness of the fee. The clerk, not possessing judicial power, had no authority to determine that question. He acts only "as a ministerial officer. The plea of cognovit actionem was indispensable to his authority to make the entry of judgment. He could not determine the amount from evidence. He could only look to the cognovit, and enter judgment for the amount there confessed. (Tucker v. Gill, 61 Ill. 236.) As the amount there confessed, so far. as the attorney’s fee, embraced in it, was concerned, was not determined in accordance with the authority conferred by the warrant of attorney, nor in the mode there designated, it necessarily follows, that the judgment was, to that extent, wrong, and should have been set aside or modified.

The judgments of the Appellate and circuit courts are reversed, and the cause remanded to the circuit court for further proceedings, in accordance with this opinion.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Chief Justice Scott

license: Public Domain

text:
    The People ex rel. B. F. Shipley v. Jesse Mays.

      Filed at Mt. Vernon June 12, 1886.

    1. Removal ebom office—county superintendent of schools—only for cause. The county board can not capriciously remove an incumbent from a public office, whether he has been elected or appointed to such office. In case of a superintendent of public schools, he can. ojily be removed for a "palpable violation of law or omission of duty.”
    2. Same—setting up the particular duty omitted. A plea to an information in the nature of a quo warranto questioning the right of one to exercise the powers and perform the duties of county superintendent of schools, as he was assuming to do, set up that the relator, who claimed the office, had been at several different and sundry times intoxicated when attending, or at the time he should have been attending, to the duties of his office of county superintendent, and thereupon an order was entered by the county board removing him from the office for “omission of duty,” and declaring the office vacant, and set up the appointment of respondent by the board to fill the vacancy: Held, that the plea was good on demurrer. It was not necessary to allege what particular duty the relator had omitted.
    3. Same—intoxication a ground of removal. The intoxication of a superintendent of public schools, repeatedly, when attending, or at times when he should have been attending, to the duties of his office, shows such a palpable omission of official duty as to justify the county board in removing him from office.
    4. Same—removal from office without written charges. I*t is not essential to the validity of an order of the county board removing a county superintendent from office for palpable omission of duty, that the record shall show that charges were preferred and filed against him before any action was taken.

      5. Same—notice of charges before removal. Where the statute authorizing the county board to remove an officer for certain causes, as, in the case of the county superintendent of schools, is silent as to giving him notice of the time and place of the trial, and an opportunity of being heard, before taking action, no notice -will be required. But in cases where the statute requires notice to be given, it will be jurisdictional, and can not be omitted.
    6. Same—evidence on which county board may remove. In a proceeding before the county board to remove a superintendent of public instruction, it is a matter within the discretion of that body as to the mode of procedure by which to procure the evidence of the facts, not subject to review by the courts. A removal from office simply on the report of a committee appointed to investigate, will be valid in all collateral proceedings.
    Appeal from the Appellate Court for the Fourth District; —heard in that court on appeal from the Circuit Court of Fayette county; the Hon. William E. Welch, Judge, presiding.
    Mr. F. M. Guinn, and Mr. B. W. Henry, for the appellant:
    The superintendent of schools could be removed only for some one of the causes specified in the statute, and the record of the attempted removal, to be a'good and sufficient record, must affirmatively show the existence of such a cause, and the cause must appear as an ascertained fact, and not simply as an expressed opinion or conclusion of the board. Rev. Stat. chap. 122, sec. 13; Clark v. People, 15 Ill. 213; Dullam v. Wilson, 53 Mich. 392; Ex parte Nichols, 57 How. Pr. 416; People v. Cooper id. 416; People v. Fire Comrs. 72 N. Y. 445; People v. Board of Police, 39 id. 506.
    The record, to be good, should have shown that charges and specifications were preferred and filed with the board of supervisors against appellant, charging him with some “palpable violation of law or omission of duty..” 1 Dillon on Mun. Corp. sec. 192; People v. Police Comrs. 67 N. Y. 475; Clark v. People, supra; McGregor v. Supervisors, 37 Mich. 388.
    It was not competent to remove appellant until after being notified that charges had been preferred against him, and when and where they would be investigated. 1 Dillon on Mun. Corp. sec. 193; McGregor v. Supervisors, 37 Mich. 388; Dullam v. Wilson, 53 id. 392; Gordon, 43 Texas, 330; Ex parte King, 35 id. 657; State v. Sheldon, 10 Neb. 452; Wade on Notice, see. 1187; The Queen v. Saddler’s Co. Cases, 10 H. of L. 404; Rosewell v. Otis, 9 How. (U. S.) 330; People v. Stanley, 6 Iowa, 410; Bates v. Railroad Co. 19 id. 260; Jones v. Kenney, Hurd, (Ky.) 96; Commissioners v. Claw, 15 Johns. 537; Commonwealth v. Chase, 2 Mass. 170; People v. Campbell, 82 N. Y. 247; People v. Police Comrs. 67 id. 475; People v. Fire Comrs. 72 id. 445; State ex rel. v. Police Comrs. 14 App. Rep. 97.
    It was not competent to remove appellant without some evidence being heard by the board showing him guilty of some palpable violation of law or omission of duty.
    No intendments or presumptions will be indulged in favor of the legality of the action of an inferior tribunal or inferior body of limited jurisdiction, such as is the board of supervisors; but everything necessary to give them jurisdiction or authority to act, must affirmatively appear on the face of their records. Savage v. County Comrs. 10 Bradw. 204; Gerdes v. Champion, 108 Ill. 141; State v. Powers, 68 Mo. 320; People v. Board of Police, 69 N. Y. 39; Commissioners v. Supervisors, 27 Ill. 140; People v. Soper, 7 N. Y. 428; Gervais v. Powers, 1 Minn. 45; Miller v. McCullough, 21 Ark. 449; Wills v. Mason, 4 Scam. 84.
    Messrs. Webb & Cox, for the appellee:
    We agree that the county board can not remove an officer from mere caprice and without cause, and that the removal must be for cause specified in the statute. We contend that the record in this case affirmatively shows the existence of such a cause as an ascertained fact. Rev. Stat. chap. 122, sec. 13; People v. Higgins, 15 Ill. 117; Clark v. People, id. 216; Wilcox v. People, 90 id. 205.
    The cases cited to show that charges and. specifications are necessary, are no authority, for the reason they are based on entirely different laws, some of which expressly required written charges.
    The law of Illinois does not require charges and specifications to be preferred and filed with the board of supervisors. People v. Higgins, 15 Ill. 110; Wilcox v. People, 90 id. 186.
    Our laws do not require that notice be given to an officer before removal, but on the contrary, it is settled that no notice need be given. People v. Higgins, supra; Wilcox v. People, supra; Holbrook v. Township, 22 Ill. 539; People v. Stout, 11 Abb. Pr. 17; State v. McGany, 21 Wis. 493.
    The act of the board in removing the relator was an executive act, and being such, it is not for the courts to dictate in what manner they shall -proceed in the performance of their duty, their action not being subject to the revision of the courts; nor will courts substitute their judgment for that of the board. Wilcox v. People, 90 Ill. 207; Spencer & Gardner v. People, 68 id. 510; Elliott v. Chicago, 48 id. 293; Porter v. Railroad Co. 76 id. 561; State v. Doherty, 25 La. Ann. 119; Attorney General v. Brown, 1 Wis. 513; Keenan v. Perry, 24 Texas, 253; Field v. People, 2 Scam. 144; Donahue v. Will County, 100 Ill. 109.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

The information upon which the writ of quo warranto was issued in this case, sets up that Benjamin F. Shipley was, on the 7th day of November, A. D. 1882, duly elected county superintendent of schools of Fayette county, for the term of four years; that he duly qualified, and entered upon the' duties of his office, and continued to execute and perform the duties thereof from thence up to the 8th day of March, A. D. 1884, at which time respondent, Jesse Mays, entered into, and from thenceforward to the-time of bringing this suit exercised, the duties, of such office to the exclusion'of relator, without any warrant of law whatever, and still continues so to do. To this petition respondent answered, by way of a plea, asserting his right to hold the office by virtue of certain action of the board of supervisors of Fayette county, had at their March meeting, in A. D. 1884, which action respondent sets up in his plea substantially as follows: That the board of supervisors of Fayette county, at their March meeting, A. D. 1884, removed relator from the office of county superintendent of schools of Fayette county; that a vacancy in such ^office was thereby created, and that he, respondent, was duly appointed by the board of supervisors to fill the vacancy; that after receiving such appointment, respondent immediately qualified as such officer, and entered upon the discharge of the duties thereon, and that by virtue of such facts so pleaded, respondent was, from and after the 10th day of March, 1884, both defacto and de jure superintendent of public schools in and for said county. The demurrer interposed to this plea was, by the court, overruled, and the relator ■ having elected to stand by his demurrer, the court dismissed the proceedings, and rendered judgment against relator for costs. That judgment was afterwards affirmed by the Appellate Court for the Fourth District, and the relator brings the case to this court.

Section 13,-chapter 122, of the Revised Statutes of 1874, provides: “The said superintendent shall be liable to removal by the county board for any palpable violation of law or omission of duty, ” and in case of a vacancy, for any reason, in the office of superintendent of schools, provision is made that the county board may fill such vacancy by appointment, and the person so appointed shall hold the office until the next election for county officers, when his successor shall be elected. It was under this section of the statute the county board assumed to and did remove relator from the office of superintendent of public schools of the county of Fayette, and appointed respondent to such office. It is undoubtedly true the county board can not capriciously remove an incumbent from a public office, no matter whether he has been elected or appointed to such office. In case of a superintendent of public schools he can only be removed for a “palpable violation of law or omission of duty.” In this case the plea sets up that the county board found, from the report of a committee of their body appointed to investigate the matter, that relator had been at “several different and sundry times intoxicated when attending, or at the time he should have been attending, to the duties of his office, ” and thereupon an order was entered by the board removing relator from the office of superintendent of schools for “omission of duty, ” and declaring the office vacant. Of course the demurrer admits every fact well pleaded. That being so, it distinctly appears relator was removed by the county board for “omission of duty.” It is true it is not alleged what particular duty he omitted, but such particularity is not required. It is alleged he w7as intoxicated when attending, or at the time he should have been attending, to the duties of his office. Conceding that to be true, as must be done, it shows a palpable “omission of duty” as a public officer. The facts admitted by the demurrer bring the ease clearly within the meaning of the statute and the previous decisions of this court.

It is made a point against the validity of the removal of relator, that the record ought to show that charges were preferred and lodged with the board against relator before any action was taken against him. The practice is otherwise, as settled and determined by the previous decisions of this court. This precise objection was taken in the case of The People v. Higgins, 15 Ill. 110, and it was there said: “The statute has made none of these formalities necessary, nor does the common law so. interpose and attach itse,lf to the statute as to require them. ” An analogous question arose and was decided in Wilcox v. The People, 90 Ill. 186, mainly on the authority of The People v. Higgins, supra. The principle of these cases covers the exact point made in the case being considered, and renders any further discussion unnecessary.

It is also insisted it was not competent for the county board to remove relator from his office without some competent evidence having been heard by the board showing that relator had been guilty of some palpable violation of law or omission of duty. In such matters the board exercise'powers in the nature of judicial powers, and when such a body has jurisdiction of the subject of inquiry, their decision, whether they proceed regularly or irregularly, will be valid in all collateral proceedings. Here1, the committee appointed by the board to investigate the official conduct of relator, reported that they had “examined witnesses” as to relator’s neglect of the duties of his office, and found he had at “several different and sundry times been intoxicated when attending, or at the time he should have been attending, to the duties of his office, ” and the board chose to adopt the report as sufficient evidence upon which to base their action in removing relator from office. Whether that is the best mode of ascertaining the guilt or innocence of the party whose conduct is to be investigated, is a question as to which this court need express no opinion. It is sufficient that the mode of procuring the necessary information, adopted, is within the discretion of the board, and is not, for that reason, subject to review by this court,—certainly not in a collateral proceeding.

Another objection most confidently insisted upon is, that “it was not competent for the board of supervisors to remove relator from office until he had been notified that charges had been preferred against him, and when and where such charges would be investigated. ” There is much seeming force in the objection taken, and the argument on this branch of the ease might, with great propriety, be addressed to the law making power. The legislature, in enacting this statute, has not seen fit to require that notice should be given to the superintendent of schools before he could be removed from office for a palpable violation of law or omission of duty, and it is not within the rightful province of courts to add anything to it in this regard, by judicial construction or otherwise. It is simply the duty of courts to administer the law as it is plainly written, and if any hardships may result, it is for the ■ legislative department to-provide the'remedy. In cases where the statute is silent as to notice to the party to be removed from office, this court has had frequent occasion to say, no notice will be required. In The People v. Higgins, supra, it was insisted the, party removed “should have had formal notice of the time and place of trial” of the charges alleged against him, but it was ruled that inasmuch as the statute had required no such formality, no notice was necessary. The practice in s.uch cases in this regard is so well and definitely settled by the former decisions of this court, the question made is no longer open for discussion.

The attention of this court has been directed to the fact that other courts have held that notice in such cases is jurisdictional, and the omission to give such notice would render the removal of the officer invalid. It is seen that in most of the cases decided, the statutes of the several States where such decisions were rendered, required that the party to be proceeded against should first have notice. Of course, when the statute requires notice to be given, it is jurisdictional, and may not be omitted. No matter what other courts may have decided, it is now the settled practice in this State, where the statute is -silent upon the subject, no notice will be required to be given to an incumbent ■ before he can be removed from office for a palpable violation of law or omission of duty.

The circuit court decided properly in overruling the demurrer to the plea of the respondent, and the judgment of the Appellate Court affirming that decision will be affirmed.

Judgment affirmed.


author: Mr. .Justice Craig

text:
    John Henderson v. The People of the State of Illinois.

      Filed at Mt. Vernon June 12, 1886.

    1. Criminal law—indictment for perjury—of the conclusion. Under our statute it is not essential an indictment for perjury shall conclude with the words, “and so the jurors aforesaid, upon their oaths aforesaid, do say, etc., that the defendant did commit willful and corrupt perjury.” The statute makes it sufficient to set forth the substance of the offence charged, together with proper averments to falsify the matter whereon the perjury is assigned.
    2. Same—perjury—materiality of testimony alleged to have been false. On a charge of perjury, in that the accused gave false testimony that on a certain time and at a place named, a person offered to give him $250 if he would kill another person, the time, place and amount are material parts of his evidence, as they give strength to the statement of the offer to hire the witness.
    3. Same—perjury—allegations and proofs, in establishing the truth of the testimony questioned. Where a person is indicted for perjury, in having testified falsely that a deceased person, in his lifetime, at a certain time and place, offered him $250 if he would kill another person, it may be shown in defence that deceased did offer the accused money (any sum) to do the act at a different time and place from that named in the indictment, and it, if shown, will be a complete answer. The defence, in proving the truth of the testimony, will not be confined to the time, place and amount named in the indictment.
    Writ of Error to the Circuit Court of Jackson county; the Hon. Oliver A. Harker, Judge, presiding,
    Mr. W. J. Allen, and Mr. W. W. Barr, for the plaintiff in erfor:
    The assignment of perjury on which a conviction is asked, must be in a matter which was material to the issue. If a witness be asked whether goods were paid for on a particular day, and he answer in the affirmative, if the goods were really paid for, though not on that day, it will not be perjury. 2 Wharton on Grim. Law, sec. 1276.

      The indictment, to be good, should have negatived the alleged testimony by averring that Moore did not try to hire defendant to kill Lightfoot, at that or any other time, at Makanda or elsewhere. Arclibold’s Grim. PL 426.
    In this indictment there is no proper charge of perjury. What is therein stated is merely introductory, and an assignment of perjury should follow, thus, “and so the jurors aforesaid? upon their oaths aforesaid, do say, ” etc., and then charge the defendant with perjury. Archbold’s Grim. Pl. 426.
    Mr. E. J. McIlvaine, State’s attorney,- and Mr. W. A. Schwartz, for the People:
    Circumstantiality of evidence becomes material where it contributes to the witness’ credibility. 2 Wharton on Crim. Law, secs. 1277, 1279, 1299; Commonwealth v. Grant, 116 Mass. 17.
    It was more advantageous to plaintiff to have all the facts negatived than to have them met by a general averment that he swore falsely as to an attempt to hire him, and such general averment would have been sufficient. 2 Wharton on Grim. Law, sec. 1300. "
    The assignment of perjury consists in the allegations that the matter sworn to was false, and that defendant knew it was false, and not in the formal conclusion, which is immaterial. 2 Wharton on Precedents, form 577, note n.
    When the jury has been properly instructed, and the testimony is contradictory, a new trial will not be awarded by this court. Connell v. The People, 81 Ill. 379; Rafferty v. The People, 72 id. 57; Gainey v. The People, 97 id. 275.
   Mr. .Justice Craig

delivered the opinion of the Court:

This -was an indictment, in the circuit court of Jackson county, against John Henderson, for perjury. The indictment contains averments of the pendency,of a certain cause of The People v. Henry Lightfoot, for the murder of one Benjamin W. Moore, the jurisdiction of the court, etc. It was therein then alleged, that it became a material inquiry and issue in said trial whether the said Moore tried to hire the said John Henderson to kill the said Lightfoot, and the said John Henderson being so sworn as aforesaid, wickedly contriving and intending to cause the said Lightfoot to be acquitted of said felony, did then and there feloniously, willfully, corruptly and falsely, in said, etc., material to said issue and trial, depose and swear that the said Moore offered him, the said John Henderson, at the town of Makanda, in said county, on the 18th day of November, A. D. 1885, the sum of $250, if he, the said John Henderson, would kill the said Lightfoot, whereas, in truth and in fact, as the said John Henderson then and there well knew, the said Moore did not offer him, the said John Henderson, at the town of Makanda aforesaid, on said 18th day of November, the sum of $250 if the said John Henderson would kill the said Lightfoot. The indictment then concludes: “Contrary to the form of the statute in such case made and provided, and against the peace and dignity of the same People of the State of Illinois.” The defendant entered a motion to quash the indictment, and, after conviction, a motion in arrest of judgment, both of which were overruled, and the decision of the court on the motions is the first error relied upon to reverse the judgment.

Two objections are made to the indictment. First, it is ■contended that the averment wherein it is alleged that the defendant testified that Moore tried to hire him to kill Light-loot, on the 18th day of November, at Makanda, for $250, presented an immaterial issue. It is no doubt true that the gist of the offence consisted in giving evidence that Moore offered the defendant money to induce him to kill Lightfoot, but, at the same time, the place, amount and the time were also material matters. As said in the argument, the naming of the time, place and amount added strength to the testimony of the defendant on the issue before the jury, and thus beoame a material part of his evidence. It is a mistake to suppose that by the averment in the indictment the1 defendant, in making his defence, was confined to the place, time and amount alleged. As said before, the .material element of the crime charged against the defendant was, that he testified that Moore offered him money to kill.a certain person. In his defence, it might have been proper for the defendant to prove that Moore offered him money to do the act at a different time and place from that named in the indictment. Such evidence would have been a complete answer to the charge in the indictment, and had it been offered, it no doubt .would have been admitted.

The second objection is, that the indictment is bad for the reason that it fails to conclude as required by law. The form in the old precedents requires a formal conclusion, substantially as follows: “And so the jurors aforesaid, upon their oaths aforesaid, do say, etc., that the defendant did commit ■willful and corrupt perjury,” etc. While it might be well, in an indictment of this character, to conform to the formal conclusion used in the precedents, it is not material. (2 Chitty on Criminal Law, 312; The King v. Smith, 2 Leach, 856.) Our statute, does not name the formal conclusion as an essential element in an indictment for perjury. It declares: “In every indictment for perjury * * * it shall be sufficient to set forth the substance of the offence charged upon the defendant, * * * together with the proper averments to falsify the matter wherein the perjury is assigned.” (Bev. ,Stat. chap. 38, sec. 227.) The indictment conformed substantially to the statute, and we regard it sufficient.

It is next contended that there was not sufficient evidence introduced to warrant the conviction. There is no dispute in regard to the fact that on the trial of Lightfoot for the murder of Moore, in the circuit court of Jackson county, the defendant testified, as charged in the indictment, that Moore offered him $250 to kill Lightfoot; that the offer was made in a conversation between the defendant and Moore, while they were sitting on some apple barrels, at the south end of the passenger depot platform in Makanda, on Wednesday, the. 18th day of November, 1885. It is also clear, from the evidence, that Moore was in Makanda on the 18th day of November, and that was the only time in the month that he was there. It is also clear, from the evidence, that Moore arrived at Makanda, on the train, about noon of that day, and returned -on the north-bound train, between two and three o’clock. But whether the defendant • was in Makanda, and saw Moore, on the 18th day of November, the evidence is somewhat conflicting. Several reliable witnesses, who were at the depot with Moore, testify that the defendant was not there, and- no-conversation occurred .between Moore and the. defendant. It appears from the évidence, that Moore went to Makanda to see a justice of the peace, in reference to some case on his docket; that upon arriving at the depot he went immediately to the office of the justice. He remained there, as the justice testified, an hour, or an hour and a half. Then the justice went with Moore to the depot; remained there a short time; ate some apples out of a barrel on the platform. Then the two walked across to Hartman’s store, and remained there fifteen or twenty minutes, and then returned to the depot, where they remained together until Moore took the train for home. The justice testified that Henderson was not there, and no conversation occurred between him and the defendant at the apple barrels on the depot platform. The testimony of the justice is corroborated by other witnesses who were there at the time. It is true that the defendant introduced some witnesses who testified that he was there, and one testified that he saw Moore and the defendant in conversation together at the depot. This witness, who was a lawyer without a license, had assisted in the defence of Lightfoot, -and was then under indictment for perjury. On his cross-examination he testified that Henderson was on a drunk the day before. He testified that he took him home, and brought him back the next day to the .trial. Whether the witness testified to the truth was a question for the jury. Doubtless his connection with Henderson, and his seeming control and management of him before Henderson testified in the Lightfoot case, did not inspire the jury with much confidence in the integrity of his evidence.

We do not, however, deem it necessary to enter upon a critical review of the evidence upon this question. ' We have carefully examined all the evidence, and, m our judgment, it was entirely sufficient to authorize"the jury to arrive at the conclusion that the defendant had no conversation at Makanda with Moore, and that Moore made no such offer as he testified, on the trial of Lightfoot, was made to him. The story is incredible in itself. It is unreasonable to believe that any person of ordinary intelligence would, at a public depot, in the presence of a number of people, enter into negotiations with another to induce him to commit murder for a stipulated sum of money. Such contracts are not made at a public place, in broad daylight, in the presence of witnesses, but it is more reasonable to believe that an assassin who sought to engage one to aid him in the commission of' such a crime, would seek a dark, secluded spot, where no living witness could see or hear the foul bargain.

We think the verdict of the jury warranted by the evidence, and the judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Sheldon

text:
    George C. Schoolcraft et al. v. The People of the State of Illinois.

      Filed, at Mt. Vernon

      June 12, 1886.

    1. Criminal law—threats—by One of several defendants. On the trial of three brothers for murder, the court admitted in evidence a statement of one of the defendants, made some time before the killing, to the effect that in speaking of a difficulty he had with the deceased, the defendant said he was “part Indian—bad medicine,” and that something serious would grow out of this trouble: Held, that the evidence was properly admitted against the defendant who made the statement, and was pertinent, as tending to show a threat by him.
    2. Same—evidence—apprehension of danger by deceased, from others than the accused—on a, trial for murder. On the trial of three brothers for the murder of one with whom they had a difficulty, and toward whom they entertained feelings of enmity, defendants offered to prove by a witness that the deceased said to him a few days before he was killed, that he expected some of those fellows with .whose wives he had been running, would kill him some day, which the court, on objection, refused to admit: Held, no error in excluding the same, the offer not being of the evidence of any fact relevant to the issue, but a mere statement of apprehension on the part of the deceased.
    3. Same—circumstantial evidence—reasonable doubt - of an instruction in respect thereto. On a trial for murder, the court, on behalf of the People, instructed, “that if the jury believe, from the evidence, beyond a reasonable doubt, that the defendants deliberately and intentionally shot II., in manner and form as charged, as he was passing along the public highway, and that from the effects of such shooting the said M. died, as charged in the indictment, it matters not that such evidence is circumstantial, or made up from facts and circumstances, provided the jury believe such facts and circumstances pointing to his guilt, to have been proven, beyond a reasonable doubt, by the evidence:” Held, that the instruction was not erroneous, as requiring the jury to convict without regard to whether the facts and circumstances so proved were sufficient to satisfy them of defendants’ guilt beyond a reasonable doubt.
    Writ of Error to the Circuit Court of Hamilton county; the Hon. C. C. Boggs, Judge, presiding.
    Mr. F. B. Stelle, and Messrs. Wilson & Leslie, for the plaintiffs in error.

      Mr. Geobge Hunt, Attorney General, for the People.
   Mr. Justice Sheldon

delivered the opinion of the Court:

At the February term, A. D. 1886, of the Hamilton county circuit court, George C. Schoolcraft, James H. Schoolcraft and Marion Schoolcraft were indicted, tried for, and convicted of the crime of murder of John Mann, and were sentenced, each, to imprisonment in the penitentiary for the term of twenty-five years. By writ of error they bring the record here for review.

It is insisted the verdict of the jury was contrary to the evidence. It appears that on the Friday morning of February 19, 1886, John Mann was shot on the public highway leading south from MdLeansboro to Broughton, in this State, from ambush, apparently with a shotgun, and afterwards with a pistol, and died almost immediately from the effect of the shots. He was struck on the neck, shoulder and back with one hundred and ten shot, and was shot twice in the left side of the face, apparently with a pistol. The deceased was on horseback when he was shot, and was crossing a swamp about two miles wide. He left his home about seven o’clock that morning, to go along the public road, south, to the “Bullard place, ” to measure some corn. He put his paper money in his vest pocket, and his silver in his pants pocket. A witness who was passing along on the road with a team that morning, testifies that while crossing the swamp he saw deceased’s horse loose in the road, with saddle on, and deceased lying in the road, and when he came up to him he was breathing his last; that he heard two loud reports of a shotgun, and then two pistol shots, before coming to the body, when about a quarter of a mile away; that he heard the shots a little after eight o’clock; that the right pants pocket of deceased was turned wrong side out, the vest was open, and 'the inside vest pocket turned wrong side out. No money was found on the body. There was what the witness describes a “blind” erected west of the road, twenty-three steps from the body, behind a large stump, and a log on the north side, and leafy brush on the other side, and the brush cut away between the blind and road. Hazel and briar thickets, were on both sides of the road where deceased was killed. Tracks were found going north-west one hundred yards or more, then south-west. It is four miles from Broughton to where deceased was killed, Broughton being south-east. George C. Schoolcraft lived two and- a half miles west of Broughton, and two and one-half miles south of where deceased was killed. James H. School-craft lived with George, and Marion Schoolcraft lived with his mother, about one mile or one mile and a half north-west of the place of the homicide. The three defendants are brothers, George being married and having a family, James H. a young man, and Marion a boy, as said by defendants’ attorney. All three stayed at George’s the night before the homicide. They ate breakfast there on the morning of the homicide, and, as testified by themselves and others of the family, James H. started to his work on that morning, where he and a relative of his were making ties on the Sanders land, north of George’s and near the swamp. Marion started home, and accompanied James H. until they came to a turn in the road, where they separated, James H. going toward his work, and Marion going north, along the road. George started to Broughton. The person with whom James H. was to work did not come, and the latter went on to Broughton. Afterwards, in the course of that day, they were all three together in Broughton.

The witness Kendall -testified that he lived on the south side of the swamp, north of Sanders, and one and a half mile from where deceased was shot; that about seven or eight o’clock on the morning of February 19, 1886, he saw two persons going north through his clearing, whom he took to be James- H. and Marion Schoolcraft.

Jacob Boss, Sr., who lives three-quarters of a mile from where deceased was killed, and north of Kendall, testifies that deceased was killed north-west of his house; that on the morning in question he saw two men in Mary Mann’s field, going north-west”, in the direction to left of where deceased was killed. Three other witnesses testify to seeing these two persons together in the same vicinity that morning, going north. There is no doubt, from all the evidence, that the two persons were James H. and Marion Schoolcraft. They were not seen to have a gun.

George Trout testified, that on that morning he and his boys were going down into the bottom to make ties; that before they got to the bridge they saw Marion Schoolcraft coming up the road; that the latter came on till he got to the bridge, and waited there till witness came up; that witness and his boys stopped there and talked with Marion, and while so talking, John Mann, the deceased, came along and spoke; that Marion Schoolcraft started on toward his home, and they started to their work; that just after Marion left he sung or hallooed at the top of his voice; that witness went on to his work, and before he got there he heard two big guns in rapid succession, and then, in a little time, two smaller ones; that it "was a half-mile from the bridge, where deceased passed, to the place where he was killed; that Marion usually sang loud, “more of a halloo than a sing, ” and was almost always singing. The witness testified, that that night Marion School-craft, on his return- from Broughton,, stopped at witness’ house, and asked witness if he knew who was suspected of the murder. Witness told him he did not, and Marion said to him, “Uncle George, if I was arrested you could clear me, for you saw me at the bridge when John Mann passed.”

The witness Frazier testified, that on the night of the murder Marion Schoolcraft came over to his house, and in conversation on the subject, inquired of witness who was accused. Witness answered he did not know, when Marion said if he was arrested for it he could prove himself clear by George Trout and his boys, as he saw them on the bridge that morning.

The evidence tends to show there were two sets of tracks about the body,—a large, and smaller one; that the larger one corresponded with the-measurement of James H. School-craft’s boots; that there was a peculiarity in it, in the toe of the right turning a little in, and that James H. walked with that toe a little turned in. The evidence makes it improbable that George Schoolcraft was present at the place of the homicide when it .was committed.

There was evidence of a hostile feeling of the defendants toward the deceased, of difficulties between them, of an old trouble between George and the deceased, and of numerous threats made by George against the life of the deceased, and of some threats against the deceased made by the other two defendants. The witness Trout testified, that on the night of February 14, 1SS6, he stayed with George Schoolcraft; that the latter talked about the lawsuit with Mrs. Bullard; said John Mann had talked of having him arrested about the Bullard matter, and he had told him he would be at court, and if he, Mann, wanted anything out of him he could get it; that the next morning George told him he had his shotgun double-loaded, with powder and shot in proportion, and he need not be surprised to hear of John Mann being found dead, filled full of shot, with his pockets turned wrong side out; and'that on the same morning, as they were walking along the road together, Marion Schoolcraft being with" them, George said, “that if Marion did not do something with John Mann before court, he would come near to, if he did not quite, penitentiary him and Hardman at court, ” and said, “Hardman is the boy that is not afraid. ” The name of James H. School-craft is James Hardman Schoolcraft.

Frank Mann, a son of deceased, -testified, that he was in McLeansboro on the Saturday next before the Friday on which the deceased was shot, and heard a talk between the deceased and George Schoolcraft; that the deceased told George he was coming down Friday to the Bullard .place to measure up McCloud’s corn for Lewis'Hall; “George told him he wouldn’t; father said he would, and George said to him, ‘You won’t; there’s more ways of killing a dog than choking him to death on butter;’ that George told father he would show him that he would stay on that place; that he would kill a man before he would be run over, and that John Mann could not bulldoze him. ” The witness Barnett testified to the same, except the last two statements.

The above are the chief criminating circumstances. We will not stop to comment upon them,'or to refer to what exculpatory matter may appear in the case. It is not to be expected that the crime of secret assassination will be proved by direct testimony. It is, from the nature of the case, only the evidence of circumstances tending to show guilt, which ordinarily can be adduced. The force of the circumstances, as indicating guilt, was peculiarly for the consideration of the .jury. The circumstances which were detailed in evidence appear to have bee'n sufficient to produce in the minds of the jury a conviction that the defendants committed the homicide charged, and we are of opinion that the question of guilt should be left to rest with the decision of the jury,—that there is not such a ease presented as calls for a court’s interference with the verdict, as unsustained by the evidence.

There are some legal points made which remain to be noticed. It is said the court erred in refusing defendants’ challenge of a juror who said he could not read English writing. The abstract shows no such challenge. We are not pointed to any place in the record showing such a challenge. From an examination of the record made by us, we do not discover in it any such challenge. This sufficiently disposes of this ground of error.

The witness Barnett was permitted to testify, for the People, that in the spring of 1885 he heard George Schoolcraft talk about his trouble with John Mann, and George said, “he (George) was part Indian,—bad medicine,—and that something serious would grow out of this trouble. ” Objection is taken to the reception of this testimony, as calculated to arouse prejudice against the defendants, and that the declaration of one defendant was inadmissible against his co-defendants. The evidence was properly received, as being competent testimony against George Schoolcraft, and was pertinent, as tending to show a threat by him.

Defendants made offer of proof, by a witness, “that the deceased said to him, a few days before he was killed, that he expected that some of those fellows whose wives he had been running after, would kill him some day. ” The exclusion of this offer of proof is assigned for error. The offer was not of the evidence of any fact which was relevant to the issue, but of what was but the statement of mere apprehension on the part of the deceased, and we perceive no error in its exclusion.

The giving of the following instruction, on behalf of the People, is insisted upon as error:

“7. That if the jury believe, from the evidence, beyond a reasonable doubt, that the defendants deliberately and intentionally shot John Mann, in manner and form as charged, and as he was passing along the public highway, and that from the effects of such shooting the said John Mann died, as charged in the indictment, it matters not that such evidence is circumstantial, or made up from facts and circumstances, provided the jury believe such facts and circumstances pointing to his guilt, to have been proven, beyond a reasonable doubt, by the evidence.”

In the case of Otmer v. The People, 76 Ill. 149, which is relied on as sustaining this assignment of error, there was a similar instruction, the last clause of which was the same as the last clause of the present instruction, and' we there said of it: “Although the instruction was carefully drawn, yet the latter clause of it was calculated to mislead the-jury. The jury may have believed the facts and circumstances pointing to defendant’s guilt were proven, and yet they may not have regarded the facts and circumstances so proven sufficient to satisfy their understanding and conscience of the defendant’s guilt, but notwithstanding this, they were told by the instruction it was their duty to convict. ” This last feature, as to telling the jury of their duty,to convict, is not present in the instruction in this case. The last clause of the instruction in the former case, taken by itself, was calculated to mislead the jury, but whether, when taken in connection with the preceding clause, it was so calculated, may be questioned. It was not indicated in that case that for that instruction alone the judgment should be reversed. There were two other sufficient grounds for reversal there, one being that the verdict was against the evidence. The real purport of the present instruction seems to be no more than that if the jury believed, from the evidence, beyond a reasonable doubt, that the defendants committed the crime charged, it was not required that the evidence should be direct, but that it might be circumstantial. The jur-y.were most fully told, by several other instructions in the case, that in order to convict they must believe, from the evidence, beyond a reasonable doubt, that the defendants were guilty. We can not hold that for the giving of this instruction the judgment in this case should be reversed.

Finding no material error in the record, the judgment must be affirmed.

Judgment affirmed.


author: Per Curiam :

text:
    The Ohio and Mississippi Railway Company v. The Commissioners of Highways.

      Filed at Mt.Vernon June 12, 1886.

    1. Bo AD tax—requisites to validity. It is essential to the validity of a road tax that it shall be levied by the commissioners of highways, and ■ that they shall give the supervisor of the town a statement of the amount necessary to be raised, and the rate per cent, signed by them, or a majority of them, on or before the Tuesday .next preceding the annual meeting of the board of supervisors, and that the supervisor shall submit such statement to the board for its action.
    2. Personal action for taxes—conditions to a recovery—conclusiveness of a judgment against the land. In an action of debt, to recover the taxes due on forfeited property, the plaintiff must first establish the levy of a valid tax, and then prove it is due on forfeited property; and for the latter purpose the judgment of the county court for the sale of the land is made conclusive evidence. But that judgment is not evidence of the levy of the tax.
    3. The seventh clause of section 224 of the Bevenue law, adopted in 1879, declaring the conclusive effect of a judgment against land for taxes as to any defence that might have been made, does not apply to personal actions for the tax itself, but to collateral actions.
    Appeal from the Circuit Court of Clay county; the Hon. Cabboll C. Boggs, Judge, presiding.
    Messrs. Pebcy & Webneb, and Mr. G. Pollabd, for the appellant:
    It was admitted on the trial, that the county board had not authorized the extension of these road taxes, as required by section 117 of chapter 121. This authority was essential to the validity of the tax. Leachman v. Dougherty, 81 Ill. 324; Railway Co. v. The People, 116 id. 232.
    But the court held, that the judgment of the county court was conclusive as to the validity of the tax. Such judgment is conclusive only when the owner appears and resists the application. Belleville Nail Co. v. The People, 98 Ill. 399;
      Gage v. Bailey, 102 id. 11; Riverside Co. v. Howell, 113 id. 259; Gage v. Pumpilly, 115 U. S. 454.
    Section 226, chapter 120, which provides that the judgment for the sale of real estate for delinquent taxes shall estop all parties from raising any objections thereto, or to a tax title based thereon, has no application to suits to recover the amount due on forfeited property.
    Mr. F. Gf. Cockrell, for the appellee:
    Two modes are given for the collection of taxes: First, by sale under judgment in rem; and second, by an action at law against the owner of the property in personam, which can only be pursued where the other mode has been prosecuted unavailingly to a terminatio'n,—that is, to a forfeiture.
    The judgment of the county court against the land for this tax is conclusive as to its validity, and estops the land owner from disputing the same. Therefore, the fact that the tax in question was unauthorized, or even void, because not ordered to be extended by the board of supervisors, can not be considered, being res judicata.

   Per Curiam :

This is an action of debt, for certain road taxes, alleged to be due on forfeited property. It was stipulated, on the trial, that the “lists, on the authority of which the county clerk extended these road taxes on the collector’s books, were not presented to the board of supervisors of the county, and that- -said board made no order directing the county clerk to extend said taxes, or to cause the same to be collected, and that the county clerk had no other authority for extending said taxes on the tax books, than the lists of the overseers of roads, as above stated. ” ,

We have held in Leachman v. Dougherty, 81 Ill. 324, and in Peoria, Decatur and Evansville Railroad Co. v. The Peoptle, 116 id. 232, that it was essential to the validity of the tax, that the tax should be levied by the commissioners of highways, and that they should give the supervisors of the townships a statement of the amount necessary to he raised, and the rate per cent '-of taxation, signed by the commissioners, or a majority of them, on or before Tuesday next preceding the annual September meeting of the board of supervisors, who shall cause the same to be submitted to said board for their action at such September meeting of said board, etc., as provided by section 120, chapter 121, of the Revised Statutes of 1874, page 932. But the court held, that although the tax was illegally extended, still, inasmuch as the extension was not objected to in the county court, the rendition of the judgment in that court is conclusive against the appellant, and its validity can not be inquired into in this proceeding. This ruling is predicated upon the seventh clause of section 224 of the amendment to the Revenue law, adopted in 1879, (Laws of -Í879, pp. 253, 254,) whereby it is provided, “that any judgment for the sale of real estate for delinquent taxes, rendered after the passage of this act, * * * shall estop all parties from raising any objections thereto, or to a tax title based thereon, which existed at or before the rendition of such" judgment, and could have been presented as a defence to the application for such judgment in the court wherein the same was rendered; and as to all such questions the judgment itself shall be conclusive evidence of its regularity and validity in all collateral proceedings, except in cases where the tax or special assessments have been paid, or the real estate was not liable to the tax or'assessment.” But the suit here is on the tax itself. It is for the amount of the tax due on forfeited property. Revenue act, sec. 232, chap. 120, (2 Starr & Curtiss,) p. 2105; The People v. Winhelman, 95 Ill. 412; Big-gins v. The People, 96 id. 381; The People v. Davis, 112 id. 272; Bowman v. The People, 114 id. 474. Necessarily, therefore, the first thing incumbent on the plaintiff is, to establish the levy of a valid tax, which, we have seen, has not been done in the present instance. Had the levy of a valid tax been established, the next step would have been to prove that it was due on forfeited property, and, for that purpose, the judgment would have been conclusive evidence.

The judgment is reversed, and the cause remanded for further proceedings consistent with this opinion.

Judgment reversed.


author: Mr. Justice Scholfield

text:
    Joseph Shippen et al. v. Clark Whittier.

      Filed at Mt. Vernon June 12, 1886.

    1. Assignment—as to mortgage security—holding subject to equities. The assignee of a promissory note secured by mortgage or deed of trust, though taking before maturity, does not occupy the position of an assignee of commercial paper, as inspects the mortgage security, but takes and holds the mortgage subject to all the equities that might be urged against it in the hands of the original holder.
    2. Sale under trust deed—after payment of the debt—notice. Payment of the debt secured by a deed of trust, whether before or after maturity, extinguishes the power of sale, and no title will pass by a sale made after such payment, although the purchaser may have .had no notice that the debt had been paid.
    3. Same—presumption as to fact of payment. A party claiming title under a sale made by a trustee under a power in a deed of trust, must show the existence of a debt at the time of the sale. The production of the note described in the deed, unattended by any suspicious circumstances, will afford prima facie evidence it was unpaid; but this presumption may be rebutted and overcome by evidence to the contrary.

      i. Same—sale under a power—conditions to its validity. A purchaser under a power of sale purchases at the peril of the sale being void, if a material condition precedent to the exercise of the power does not exist. A sale without the existence of such condition precedent, is one not authorized by the power, and no title can pass by it.
    5. Merger—conveyance by mortgagor to mortgagee—intention. A conveyance of the mortgagor’s estate to the mortgagee does not operate as a merger, in equity, unless it was intended to have that effect. But when the holder of notes secured by deed- of trust accepts a conveyance .from-the grantor in the trust deed, of the lands, and gives the notes up to the maker, and no reason exists for keeping the incumbrance alive, there will be a complete merger, and the grantee will acquire the entire title.
    6. Recording law—of deeds recorded, at different times—priority of right under deed first recorded. Where the holder of notes secured by deed of trust takes a warranty deed of the mortgaged land from the debtor, in payment of the debt, he will not be bound to examine the records subsequent to the time his deed is put on record; and the subsequent recording of a deed from the trustee to a third person, is no notice to him of the making of such deed, so as to affect his title.
    7. So, in such case, the record of the mortgagor’s deed to the holder of the notes, in payment thereof, is notice to all persons thereafter dealing in respect to the land, of the rights such deed assumes to vest in him.
    Writ of Error to the Circuit Court of Madison county ; the Hon. Amos Watts, Judge, presiding.
    Messrs. Metcalfe & Metcalfe, for the plaintiffs in error:
    A bona fide purchaser for a valuable consideration and without notice, either from a fraudulent grantor or grantee, will be protected. Choteau v. Jones, 11 Ill. 300; Moshier v. Knox College, 32 id. 155; Wells & Co. v. Chapman, 81 id. 137; McCormick v. Miller, 102 id. 208; Kerfoot v. Cronin, 105 id. 609; Grundies v. Reed, 107 id. 304.
    A purchaser from a prior bona fide purchaser is protected, although he himself may have had notice. Peck v. Arehart, 95 Ill. 173; Hunter v. Stoneburner, 92 id. 75; Thompson v. Frew, 107 id. 57.
    An innocent purchaser of land without notice of any irregularity in the sale to his grantor under a power in a mortgage, will be protected against an equitable right to avoid the sale to his grantor, and notice will not be presumed. McHany v. Schenk, 88 Ill. 358; Gunnell v. Cockerill, 79 id. 79; Jenkins v. Pearce, 98 id. 646.
    A legal title must prevail over a mere equitable one, unless the party holding the former had notice of the other’s equities at the time he acquired his title. Brown v. Welch, 18 Ill. 343; Railroad Co. v. Kennedy, 70 id. 350.

      But it may be said that the deed to Whittier showed that he had become the owner by deed from Jackson, and Shippen might have learned the facts by inquiring of Whittier. Suppose he could, he was not bound to do so to be protected. This does not meet the law of notice, unless there are such facts of record as to put a prudent man upon inquiry. Chicago v. Witt, 75 Ill. 211; Harper v. Ely, 56 id. 129; Heimburg v. Morse, id. 394; Babcock v. Lick, 57 id. 327; Flint v. Lewis, 61 id. 299; Chadwick v. Chapp, 69 id. 119.
    A note payable to the maker, and indorsed by him, is the same as if payable to bearer. Story on Prom. Notes, p. 19, secs. 36, 37.
    This is what is called accommodation paper, and this may be pledged by a person not the owner. Overton on Liens, see. 153; Bank of Commerce v. Hedge, 4 Conn. 567; Coddington v. Bay, 50 Jour. 537; Edwards on Bailments, sees. 196, 197; Bigelow on Frauds, 391, 392; Story on Bailments, 296; Barker v. International Bank, 80 Ill. 96.
    A pledge is sustained by law, and vests property under pledge contract. Tyler on Pawns and Loans, 496, 508; 4 Kent’s Com. 47, 149; Buchanan v. International Bank, 78 Ill. 500.
    A foreclosure of the lien by sale under the contract vests the title. Overton on Liens, sec. 174, and authorities.
    A promissory note being negotiable paper, an assignee before maturity, without notice and for a valuable consideration, will take it unaffected by a defence not appearing on- the face, and a deed of trust passes as an incident to the assignment. Kleeman v. Frisbee, 63 Ill. 482; White v. Sutherland, 64 id. 181; McFarland v. Day, 69 id. 419; Barbour v. Mortgage Co. 102 id. 121; Fawcett v. Life Ins. Co. 97 id. 11; Wade on Notice, sec. 257.
    An innocent purchaser of negotiable paper transferable by delivery, and not over-due, acquires a perfect title, though taking from a thief. Jones v. Nellis, 45 Ill. 482.

      The assignee of a mortgage containing a power of sale, being the legal holder of the indebtedness thereby secured, is authorized to execute the power of sale. Bush v. Sherman, 80 Ill. 160.
    Messrs. Happy & Trayous, for the defendant in error:
    Pearce can not be regarded as a bona fide purchaser, because he never paid anything for the land. Burgett v. Paxton, 99 Ill. 288; Brown v. Welch, 18 id. 383; Moshier v. Knox College, 32 id. 155.
    Had Whittier’s interest been but a mere equity, being first in point of time, must prevail over any equity Shippen had in the land prior to the making of the deed,, October 25,1880. Story’s Eq. Jur. sec. 1502; Worden v. Crist, 106 Ill. 326.
    Mortgages and deeds of trust are assignable only in equity, and in the enforcement of them are subject to equitable defences in the hands of innocent purchasers. Olds v. Cummings, 31 Ill. 188; Walker v. Dement, 42 id. 272; Cramer v. Willett, 61 id. 481; Haskell v. Brown, 65 id. 29; Kleeman v. Frisbee, 63 id. 483; White v. Sutherland, 64 id. 181; Thompson v. Shoemaker, 68 id. 256; Turner v. Railroad Co. 95 id. 135.
    They are merely an incident to the indebtedness secured thereby, and a, payment of the debt extinguishes the security. Ryan v. Dunlap, 17 Ill. 40; Hands v. Mills, 28 id. 44; Pollock v. Maison,, 41 id. 516; Redmond v. Packenham, 66 id. 434; Cameron v. Irwin, 5 Hill, 272; Wood v. Colvin, 2 Hill, 566; Emery v. Keighan, 88 Ill. 482; Lycoming Ins. Co. v. Jackson, 83 id. 302; Emery v. Keighan, 94 id. 543; Walker v. Carleton, 97 id. 582; Meacham v. Steele, 93 id. 135; Perry on Trusts, sec. 602; Jones on Mortgages, see. 1899.
    When a judgment is satisfied there is no longer any power to sell, and a title can not be acquired even by a bona fide purchaser, without notice of the payment. Wood v. Colvin, supra; Sherman v. Boyce, 15 Johns. 443; Jackson v. Caldwell, 1 Cow. 622; Woodcock v. Bennett, id. 711; Carter v. Simpson,
      7 Johns. 535; Jackson v. Anderson, 4 Wend. 474; Lewis v, Palmar, 6 id. 367; Swan v. Saddlemin, 8 id. 676; Hammatt v. Wyman, 9 Mass. 133; King v. Goodman, 16 id. 63.
    The general rule is, that a purchaser under a power buys at his peril, and however innocent he may be, he can not acquire a title without showing a valid subsisting' power.
    Whittier, while the owner of the notes secured by the trust deed, takes a conveyance of the equity of redemption ivliich united the two estates in him, and operated as a merger. Huebsch v. Scheel, 81 Ill. 281; Dunphy v. Riddle, 86 id. 22; Shaver v. Williams, 87 id. 469.
    The paj’ment of the Jackson notes extinguished the power to sell under the deed of trust, and the attempt to exercise that power afterward was ultra vires, and transferred no title. Frederick v. Ewrig, 82 Ill. 363; Redmond v. Packenham, 66 id. 434; Fire Ins. Co. v. Jackson, 83 id. 302.
    The power of sale was extinguished even as against bona fide purchasers. Cameron v. Irwin, 5 Hill, 272; Wood v. Colvin, 2 Hill, 566.
   Mr. Justice Scholfield

delivered the opinion of the Court:

On the 10th day of January, 1871, W. F. Brink, who was then owner, executed a deed of trust of the land in controversy, and other land, to Henry D. Hatch, to secure $5000 indebtedness to John W. Southerland. Subsequently the land was conveyed to Jonathan Jones, and he thereafter conveyed it to Charles H. Jackson, and the latter, on the 23d' day of August, 1873, conveyed the land, in trust, to John W. Johnson, to secure one principal note for $6000, due three years after date, and six interest notes for $200, each, executed by Jackson, and by him delivered to Jones, and by Jones delivered to Brink, for payment, in part, of purchase money. Some time after this, but in the same year, Clark Whittier, in a transaction between him and Brink, bought the Jackson notes, as thus secured, and assumed the payment of the amount secured by the trust deed to Hatch. On the 14th day of December, 1874, Jackson, having paid nothing on his notes, entered into an agreement with Whittier, whereby he agreed to convey the land in controversy, by warranty deed, subject to the Hatch deed of trust, to Whittier, in full payment and satisfaction of his notes in the hands of Whittier, and Whittier agreed to accept such conveyance in full payment and satisfaction of Jackson’s notes. The deed was accordingly then made by Jackson, and delivered to and accepted by Whittier, and the same was placed on record on the 22d of the same month. Whittier then delivered to Jackson his notes, and it was agreed between them that Jackson should take the notes to the trustee, Johnson, and have him execute and place on record a formal release of the trust deed. On the 18th day of April, 1876, Whittier paid the amount due on the trust deed to Hatch, and Hatch executed a final release of that deed, which was placed on record on the 10th of June, 1876. Jackson neglected to notify the trustee, Johnson, of-the payment of his notes, and to obtain a release of that deed of trust, but on the contrary, he afterward placed these notes, uncancelled, in the hands of one Henderson, or, at least, in some way Henderson obtained their "possession, and Henderson, on the 3d of July, 1876, placed them in the hands of one Stagg, as collateral security for Henderson’s individual note for $215. In October, 1876, Stagg sold the Jackson notes for $906, to Judlin, appropriating the proceeds, as far as necessary, to the payment of Henderson’s note, and the balance to the payment of an individual account -of Henderson. Judlin pledged the notes as collateral security for his own note for a loan of $1000, to John N. Temple. On the 26th of November, 1878, Johnson, the trustee, on the request of Temple, assumed to sell the property described in the deed of trust, for the payment of the Jackson notes. Temple being the only bidder, Johnson conveyed to him on the same day. On the 23d of October, 1879, Temple conveyed the property to Abijah Johnson. On the same day, Johnson conveyed the property to James M. Pearce, and on the 22d of October, 1880, Pearce conveyed to Joseph Sliippen. The bill is filed by Whittier to set aside the deed of the trustee, Johnson; to Temple, and the subsequent deeds in that line, because, .being void and colorable, they are clouds upon his title. The court below decreed in conformity with the prayer of the bill.

The fact that Jackson’s notes were payable to himself, and not indorsed by any one but himself, and were not due when pledged by Henderson as collateral, though important in an action upon the notes, 'is unimportant here.

The assignee of a mortgage or deed of trust does not occupy the position of an assignee of commercial paper, but takes and holds it subject to all the equities that-could have' been urged against it in the hands of the original holder. Olds v. Cummings, 31 Ill. 188; Walker v. Dement, 42 id. 272; Cramer v. Willetts et al. 61 id. 481; Haskell v. Brown, 65 id. 29. In this case, John W. Johnson had no interest in the land. He had a mere power to sell and convey. The conveyance-was to him and his successor in trust, and the sheriff of Madison county was empowered to act in the event.he declined, or was absent, or unable to act. It was expressly stipulated, “if the party of the first part, or any one for him, shall well and truly pay off and discharge the debt and interest expressed in said notes, and every part thereof, when the same become due and payable, according to the true tenor, date and effect of said notes, then this deed shall be void.”

The rule is familiar, and strictly applicable here, that a purchaser under a power purchases at the peril of the sale being void if a material condition precedent to the exercise of the power does not exist. A sale without the existence of such material condition precedent is a sale not authorized by the power, and no title can pass by it. (See Perry on Trusts, sec. 785.) Payment of the debt extinguished the power of sale. In the language we have quoted from the trust deed, that instrument was thenceforth “void. ” Lycoming Ins. Co. v. Jackson, 83 Ill. 307; Wood v. Colvin, 2 Hill, 566; Cameron v. Irwin, 5 id. 272; Jackson v. Morse, 18 Johns. 441; Breckenridge’s Heirs v. Ormsby, 1 J. J. Marsh. 257; Towner v. McClelland, 110 Ill. 542; Redmond v. Packenham, 66 id. 434. See, also, Jones on Mortgages, sec. 1899; Walker v. Carleton, 97 Ill. 582; Ryan v. Dunlap, 17 id. 40; Harris v. Mills, 28 id. 44.

“It is a general principle, ” said Marshall, C. J., in Williams v. Peyton's Lessees, 4 Wheat. 79, “that the party who sets up a title must furnish the evidence to support it. If the validity of a deed depends on an act in pais, the party claiming under that deed is as much bound to prove the performance of the act as he would be bound-to prove any matter of record on which its validity might depend. It forms a part of his title. It is a link in the chain which is essential to its continuity, and which it is incumbent on him to preserve. These facts should be examined by him before he becomes a purchaser, and the evidence of them should be preserved as a necessary muniment of title. ”

As applicable to the present case, it was incumbent on Shippen to show the existence of a debt at the time of the claimed trustee’s sale at which Temple bought. In the first instance, the production of the note described in the deed of trust, unattended by any suspicious circumstances, would be prima facie sufficient; but that is entirely rebutted and overcome by the evidence that the note had been paid, and was afterwards fraudulently put in circulation. It is true, the conveyance of the mortgagor’s estate to the mortgagee does not operate as a merger, in equity, unless it was intended to have that effect. (Campbell v. Carter, 14 Ill. 288; Jarvis et al. v. Frink, id. 396.) But here it was intended to have that effect, and so the merger was complete. Jackson’s debt was paid, and Whittier was the owner of the entire property, subject to the Hatch deed of trust, which he subsequently paid.

This case is not analogous to those where a title passes which is subject to be defeated on the ground of the fraudulent acts of the parties, and in which it is held that a bona fide purchaser, without notice, is to be protected. In this case no title passed. What appears to be a conveyance is not a conveyance, any more than the deed of a person in nowise connected with the title to the property.

We find no sufficient evidence of any fact creating an equitable estoppel to conclude Whittier on that ground. He is not shown to have had any knowledge of Jackson’s fraudulent conduct. The law does not require that he should examine the record subsequent to the timé that Jackson’s deed to him was placed on record, and that deed was constructive notice to all subsequently acquiring title, of the rights which it assumed to vest in him. It is a general warranty deed, covenanting that these lands “are free and clear from all former and other grants, bargains, sales, liens, taxes, assessments and incumbrances, of what kind or nature soever, * * * except a certain deed of trust for $5000 on this and other lands, which the party of the second part assumes to pay. ” The excepted deed of trust is, of course, that to Hatch; and so it is clear that it was assumed in some way, as between the parties, that the trust deed to Johnson was out of the way. By applying to Whittier, the extent of his claim would have been ascertained, and since it is incumbent on those who claim under the sale by Johnson, to know that, at the time of the sale, he had the'power to sell, it is clear no conclusive presumption could ‘arise from'the negligence of Whittier to cancel the notes and obtain and place on record the release of the deed of trust. The possession of the notes by Temple, and the absence of a release from the record, were simply strong circumstances tending to prove that the notes were unpaid; but it was competent to rebut and overcome these circumstance's, and this was done.

It is claimed the evidence does not sufficiently prove that Whittier was the owner of the Jackson notes, and that the deed by Jackson to him was delivered in payment and satisfaction of them. We think otherwise."

The decree is affirmed.

-n Decree affirmed.


text:
    The Town of Evans v. Beula C. Dickey, Exrx.

      Filed at Ottawa June 12, 1886.

    1. Evidence—conclusion of witness instead of giving facts. In a suit by an attorney against a town to recover for legal services in defending a suit, he testified, over the objection of the defendant, that about a certain time he was employed in the suit, but that he could not recollect the particular mode of employment, and that he never thrust himself into the defence of a suit in which he did not believe he was employed: Held, that the admission of such statements was manifest error, and that in no event could he be permitted to state his conclusion as to being employed. He should state only the facts relating to his retainer.
    2. Instruction—assuming disputed facts, and selecting out facts on one side only. An instruction which is a summary.of the principal facts claimed to be proved by the plaintiff, and the conclusion to be drawn from such facts as a matter of law, and which also assumes as facts matters of serious contention, and leaving out of consideration the defence insisted on, is manifestly erroneous.
    3. Appeal—reviewing facts. It is only the findings by the Appellate Court of controverted questions of fact, that are conclusive upon this court. The findings of the trial courts in cases which, for any reason, come directly to this court, are not conclusive.
    Appeal from the Circuit Court of Marshall couuty; the Hon. John Burns, Judge, presiding.
    Mr. W. Evans, and Messrs. Mayo & Widmbr, for the appellant.
    Messrs. Bicholson & Gentleman, for the appellee.
   Mr. Chief Justice Scott

delivered the opinion of the Court :

This action was brought by T. Lyle Dickey, since deceased, against the town of Evans, to recover for professional services as an attorney, rendered for and on behalf of the town, in suits brought against defendant in the Circuit Court of the United States and also for services rendered in the Supreme Court of the United States. Most of the questions made and discussed as arising upon the "present record, have been considered and determined by this court in its opinion in the case of Town of Bruce v. Dickey, 116 Ill. 527, and it will only be necessary to refer to the opinion in that case for an expression of the views of this court upon all analogous questions involved in the case being considered. Only two questions not disposed of by the reasoning in the opinion in the case cited, remain to be considered. All others of sufficient importance to be remarked upon, it is thought are settled by the decision in the former case.

On the trial, plaintiff was permitted, over the objection of defendant, to state in his testimony given in his own behalf, that “some time in the fall,—the íatter part of November, or early in December, 1874,—-I was employed by the town of Evans in relation 'to a suit brought by Sanborn against the town, in .the Circuit Court of the United States, at Chicago.I don’t recollect the particular mode of my employment,— whether the employment began by a copy of the summons being sent to me by the supervisor of the town, or whether my attention was called to the subject in behalf of the town by Mr. Jones of Ottawa; but I do remember the fact that I was in the case, and I know I never thrust myself into the defence of a ease in which I did not believe I was employed.” The admission of these statements of plaintiff was manifest error. Whether plaintiff had been employed by the town to defend suits brought against it, is a question of fact, and it was highly improper to permit plaintiff, as witness for himself, to state that he had been “employed by the town, ” and that be never thrust himself “into the defence of a case” in which “he did not believe” he “was employed.” So far as the employment of plaintiff by the town was a question of fact, it was within the province of .the jury to determine; but so far as any question of law wras involved, of course it was for the court. In no event could plaintiff be permitted to state his conclusion as to whether he had been employed by the town. He could only, be permitted to state the facts as he understood them, and his version of the facts, in connection with other testimony in the case, would be submitted .to the jury to find whether there had been in fact any employment of plaintiff by the town, under proper instruction from the court as to the law applicable.

The giving of the sixth instruction for plaintiff, as was done, was also error. It was faulty for several reasons. It is a mere summary of the principal facts, as plaintiff insisted they were, and the conclusion to be drawn from such facts, stated by the court as a matter of law. That mode of instructing is little less than the decision of the whole case by the court, and the practical effect is to withdraw the case from the jury. It might as well have been withdrawn from the jury in terms, so far as anything was left "for their decision. But a more serious objection appears on a close reading of the instruction. It is seen it assumes as facts matters that are and were the subject of serious contention between the parties. This is not allowable, and is a most hurtful mode of instructing the jury. Aside from this, another most serious error exists in this instruction. It excludes from the consideration of the jury, by its summary of alleged facts, the defence insisted upon, which certainly has some testimony in its support,—that is, that Mr. Jones was the attorney employed by the town to conduct the defence of the suits brought against it, and that what the plaintiff did was at the instance of Jones, and by his procurement. How this fact may. be, of course this court will not now express any opinion.

It may be proper, however, to say, the position taken by counsel for plaintiff that the question of fact as to the employment of plaintiff is not open for review in this court, can not be conceded. The practice is otherwise. It is only the findings by the Appellate Courts of controverted questions of fact that are conclusive upon the court. Not so as to the findings of the trial courts in cases which, for any reason, come directly to this court. This case "did not come to this court from any Appellate Court, and hence there is no 'finding of controverted questions of fact that is conclusive upon this court.

The judgment of the circuit court will be reversed, and the cause remanded.

Judgment reversed.