text:
    The Peoria and Pekin Union Railway Company v. Warren R. Buckley et al.

      Filed at Ottawa June 13, 1885.

    1. Warehouseman—delivery to wrong person—liability to the owner. Where a warehouseman receives grain, he will be liable to the party storing the same if he delivers it to any other person without authority from the owner, unless the latter has done some act or acts to estop him from denying pei'mission to make such delivery.
    2. Same—delivery of grain on a sampler’s ticket—whether a protection to the warehouseman. It is the usual custom on the board of trade in Peoria, when grain has been consigned to a dealer, and the railroad cars in which it was shipped remain upon the track, to cause the grain to be sampled by a person appointed by the board- of trade for that purpose, the sampler giving to the consignee a ticket stating the kind and .grade of the grain inspected, ■and the consignee named, with a sample of the grain. It appeared also to have been the custom, when a sale was made on the board, for the seller to mark on the sampler’s ticket, the name of the purchaser, and the price, and give the same to the purchaser, with an order, either verbal or written, to deliver the grain sold at such place as the buyer may designate. It was held, that a warehouseman, to whom a shipment of grain had been delivered on the order of one who had purchased under the conditions mentioned, was not authorized to deliver the grain to such purchaser merely upon the presentation of the sampler’s ticket with the name of the purchaser and the price marked thereon, without any order from the seller. The sampler’s ticket was not a warehouse receipt, in the sense that term is used in the statute.
    3. Sale bob cash—whether complete before actual payment—payment by check. Where a contract is made for the sale of grain at a warehouse, for cash, the purchaser will not be entitled to possession before payment of the price; and a check given by him on a bank for the price, which is dishonored, is no payment, and he acquires no title to the grain by giving such worthless check.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Peoria county; the Hon. N. M. Laws, Judge, presiding.
    This suit was brought in the circuit court of Peoria county, by Warren B. Buckley and Thomas J. Pursley, composing the firm of Buckley, Pursley & Co., against the Peoria and Pekin Union Railway Company. The declaration is in the usual form in trover, to which the plea of not guilty was filed. On the trial before the court without the intervention of a jury, the court found the issues for plaintiffs, and assessed then-damages at the sum of $473.46. The motion made for a new trial was overruled, and the court rendered judgment on its finding, against the defendant, for the sum found to be due-plaintiffs. That judgment was affirmed in the Appellate Court for the Second District, and a majority of the judges of that court having made the necessary certificate to enable it to do so, defendant brings the case to this court on its further-appeal.
    Messrs. Stevens, Lee & Horton, for the appellant:
    The very appropriation of the grain is equivalent to delivery by the vendor, and the assent of the vendee to take the specific chattel and pay the price, is equivalent to his accepting possession. The effect of the contract, therefore, is to vest the property in the bargainee. Benjamin on Sales, sec. 315.
    The reason the cash was not demanded was that the quantity had to be ascertained by weighing. Where anything remains to be done to complete the contract, such as ascertaining the quantity, or the delivery of possession, the title-does not pass till the contract is thus completed, while the title may pass where the contract is completed, although something may remain to be done under the contract in order to ascertain the amount to be j)aid by the purchaser. In such case, if the possession is delivered under the contract, and such is the intention of the parties, the title may pass, although the quantity is subsequently to be ascertained. O'Keefe v. Kellogg, 15 Ill. 347; Kohl v. Lindley, 39 id. 199; Foster v. Ropes, Ill Mass. 10.
    If goods sold are clearly identified, then, although it may be necessary to number,- weigh or measure them, in order to-ascertain what would be the price of the whole at a rate agreed upon between the parties, title will pass. Crofoot v. Bennett, 2 Comst. 258; Groat v. Gile, 51 N. Y. 431; Bradley v. Wheeler, 44 id. 495.
    The elevator company, acting in good faith, had delivered the grain to the purchaser, who had the indicia of ownership, and though appellees might have retaken the grain from Patterson, they could not prejudice the rights of appellant. Railway Co. v. Kerr, 49 Ill. 458; Young v. Bradley, 68 id. 553; Railway Co. v. Phillips, 60 id. 190; Van Duzor v. Allen, 90 id. 499.
    Messrs. Puterbaugh & Puterbaugh, for the appellees:
    The sale being for cash, the contract was not completed until the money was paid; and an attempted payment by a check, which is dishonored, is no payment, and if it is given for grain sold for cash, and delivered on such check, the grain may at once be reclaimed by the seller. Canadian Bank v. McCrea, 106 Ill. 281; King v. Strong, 35 id. 9; Matthews v. Cowan, id. 341.
    The delivery of the sampler’s tickets to Patterson did not complete the sale, or the delivery of the property; .nor did they vest the title in him until there was an actual delivery.
   Mr. Justice Scott

delivered the opinion of the Court:

On the trial of this case defendant submitted numerous-propositions to be held as law applicable to the case, most of which were refused, and on that decision of the court the questions of law discussed arise. In order to determine whether the rulings of the court on the propositions submitted were erroneous or not, it will be necessary to ascertain the principal facts, and in doing so it will be understood that all the facts the evidence tends to establish, were found, by the trial and Appellate courts, in favor of plaintiffs.

It appears that defendant is a warehouseman, and has an elevator on its line of railroad, situated in the city of Peoria, and known as. “Elevator A.” On the 26th day of October, 1883, plaintiffs, who were grain dealers at Peoria, received car No. 12,977, consigned to them, containing oats, and on the next day they received car No. 2397, also containing oats. It is proven it was the usual custom, and one most generally observed by dealers on the board of trade in Peoria, when grain is consigned to a dealer, and the cars stand on the track, to cause it to be sampled by a person appointed by the board of trade for that purpose. The sampler gives a 'ticket stating the kind and grade of the grain inspected, and the consignees named, and posts one of these tickets in the car, and gives the other to the consignee with a sample of the grain. That was done in this case. There is- evidence tending to show it was the custom among dealers on the board of trade, (as plaintiffs were,) when a sale is made on the board, for the seller to mark on these tickets the name of the person to whom the grain may be sold, and the price at which it is sold, and give the same to the purchaser, with an order, either verbal or written, to deliver the grain sold at such place as the buyer may designate. In this case the grain in controversy was sold by plaintiffs on the board of trade to a fellow member of that board, by the name of Patterson. The inspection tickets were delivered to Patterson at the time plaintiffs sold him the oats. On the tickets plaintiffs wrote the price in figures at which the oats were sold, and marked thereon the letter “A,” which indicated the elevator at which Patterson wished to have the oats delivered or sent. The oats were sent to defendant’s elevator by directions of plaintiffs, and were there unloaded. As respects these facts there seems to be no disagreement between the parties. The oats were sold to Patterson, and his check taken for the amount to be paid. On presentation to the bank, on the next morning after it was drawn, the check was not paid, as the drawer had no money in the bank. In the meantime the oats had been shipped away, by the order and on account of Patterson, by defendant, under the directions of Patterson, and the question presented is, whether defendant had any rightful authority to ship the oats on the order of Patterson. Plaintiffs admit they directed the railroad company to deliver the oats at the elevator of defendant, but they deny most positively they ever gave defendant any authority, either verbal or written, to deliver the oats, or any part of them, to Patterson. The only proof made by defendant, as respects any order from plaintiffs to deliver the oats to Patterson, was the presentation of the inspection tickets by Patterson, with the price marked thereon, and the letter “A,” which indicated the oats were to be delivered at defendant’s elevator for the consignee; but the tickets, although in the hands of Patterson, contain no' order to defendant to deliver the oats to him. The tickets were delivered to Patterson, as was the usual custom on the board of trade, as evidence of the price at which the grain was sold to him, and nothing more. It was to be a cash sale, and plaintiffs were under no obligation to direct defendant to deliver the oats to Patterson until the same were paid for. The giving of a check is no actual payment unless it is afterwards paid. In this case the check given by Patterson, as has been seen, was not paid, and on learning that fact, plaintiffs immediately demanded the oats of defendant, and which they did not and could not deliver, for the reason they had before that time shipped the oats on the order of Patterson. It was a controverted question of fact, at the trial, whether defendant had any authority, verbal or written, from plaintiffs, to deliver the oats to Patterson, and as it must have been found against defendant in the lower court, which had the exclusive authority by law to determine such questions, it is not open for investigation in this court. On the hypothesis defendant had no prior authority from plaintiffs to deliver the grain to Patterson, the law is, it is responsible for it to plaintiffs.

The court, at the instance of defendant, held the law to be, “that if Buckley & Co. clothed Patterson with evidence of the ownership of the grain in controversy, or held him out as the owner of it, or allowed him to appear as the owner of the grain, with full power of disposition, and the elevator company was innocently led into dealing with him on the strength of his apparent ownership or authority, it will be protected in so doing, and Buckley & Co. can not now recover of said elevator company the value of said grain. ” Evidently the court found the facts did not bring the case within the operation of the principle embodied in this proposition, which states the law quite as favorably for defendant as it could ask to have it expressed. The propositions refused contain little more than the one held to be law, although expressed in somewhat different language. In view of the fact the court must have found defendant had no sufficient authority to deliver the grain it had received as the property of plaintiffs, to Patterson, there was certainly no error in law in refusing to hold as the court was asked to do in the several other propositions submitted. Unless defendant had permission from plaintiffs, expressed in some form, either verbal or written, or implied by their acts, or were estopped by some act or acts done to deny such permission was given, the shipping of the grain by the direction of Patterson, and on his account, was clearly wrongful, and the law would require the warehouseman to account for it* to the consignee for whom it received it in the first instance. The slips delivered to plaintiffs were not warehouse receipts, ■in the sense those terms are used in the statute. No warehouse receipts were issued when the grain was received. As the grain was received for plaintiffs, common prudence would have required defendant to obtain specific directions to that effect from the storers before shipping the grain on the order of Patterson. This it failed or neglected to do, and the loss must fall upon the warehouseman. Unless such precautions are observed, it is obvious there would be no safety for the storers of such commodities.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Craig

license: Public Domain

text:
    Catharine Rebhan v. Solomon Mueller.

      Filed at Mt. Vernon June 13, 1885.

    1. Probate op will—loithin what time allowed. There is no statute 'Or law in this State limiting the time of probating a will to any given number -of years. In this case, a will was admitted to probate thirteen years after the death of the testator, and letters of administration which had been previously issued on his estate were revoked.
    2. Revocation of letters of administration on finding a will—as to -acts prior to the revocation. Where a will of a deceased person is found and probated after the grant of letters of administration on his estate, such letters will be revoked; but all rights acquired under the letters will be protected.
    Appeal from the Appellate Court for the Fourth District; —heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    Mr. W. C. Kueffner, and Mr. J. M. Dill, for the appellant:
    The lapse of seven years after the death of a decedent constitutes a bar to granting letters of administration, but which bar may be removed by showing circumstances which prevented an earlier application for them. Fitzgerald v. Clancy, 49 Ill. 465.
    With regard to the time within which the lien of a creditor ■against the lands of a deceased, for the payment of the latter’s -debts, must be enforced, this court has repeatedly decided that although there is not an express statute of limitations within which such a lien may be enforced, it would seem, by •analogy to the lien of judgments and the limitations for entry upon and recovery of lands, that seven years from the death of an intestate should bar such liens. McCoy v. Morran, 18 Ill. 519; Reed v. Colby, 89 id. 107, and authorities there cited.
    In Rosenthal v. Renick, 44 Ill. 205, the rule is said to be established in order to protect innocent purchasers. The reasons for protecting an innocent purchaser against a will kept secret, are as cogent as those for protecting him against the secret lien of debts.
    By a modern regulation of the Prerogative Court of Canterbury, where probate of a will is applied for more than five years after the decease, some explanation should be given for the delay. In the goods of Darling, 3 Hagg. 561; 1 Williams on Executors, 195.
    A proceeding to probate a will is a suit or action, and the Statute of Limitations may be held to be applicable to it. An action or “suit” has been defined by this court to be “an attempt to gain an end by legal process.”
    Mr. R. A. Halbert, for the appellee:
    It is said by Bedfield, that in some of the American States there is no limit to the time beyond which a will can not be proved. 3 Redfield on Wills, 7, note 2.
    It is held in Massachusetts that a will may be proved in the probate court after the lapse of twenty years, for the purpose of establishing a title to real estate, (Shumway v. Holbrook, 1 Pick. 114,) although a less period is limited to a-grant of letters of administration. Waters v. Stickney, 12 Allen, 12; Marcy v. Marcy, 6 Metc. 370.
    The case of Fitzgerald v. Clancy, 49 Ill. 465, decides only that claims against an estate can not be enforced against the-realty of the decedent after seven years,—that the lien thereon, is lost.

      The Prerogative Court of England of course may establish a rule requiring an explanation, if the will is not presented, for probate for five years; but this is in reference to wills bequeathing personalty, and does not apply to realty, as probate of wills devising realty was not required. 1 Jarman on Wills, (Rand. & Tal. ed.) 50.
   Mr. Justice Craig

delivered the opinion of the Court:

Christian Mueller died March 7, 1870. On June 11, 1883, (more than thirteen years afterwards,) Solomon Mueller, a son of the deceased, produced in the probate court of St. Clair county a paper purporting to be the last will of the deceased, which was dated March 19, 1855, and asked that it might be admitted to probate. The witnesses to the will appeared, and after hearing their evidence the court revoked letters of administration which had been previously issued, and admitted the will to probate. No question was made in regard to the genuineness of the will or the capacity of the testator to make a will, but the point presented by the record “relates to the time within which a will must be offered for probate after the death of the testator. ”

Section 12, chapter 148, of the Revised Statutes of 1874, entitled “Wills, ” requires any person who may have in his possession the last will or testament of another, immediately upon the death of the testator to deliver such will to the county court of the county. This section of the statute imposes a fine for withholding a will from the county court, and also severe punishment for willfully secreting a will. But a failure of any person who had the custody of a will, to observe this requirement of the statute, could not affect the rights of any person claiming under a will, nor the jurisdiction of the probate court to admit the will to probate upon proper proof, whenever, within a reasonable time, a will might be brought into court. Upon the death of a resident of this State, if no will is produced and probated, letters of administration may be granted upon the estate of the deceased. But section 28, chapter 3, of the Revised Statutes of 1874, declares: “If at any time after letters of administration have been granted, a will of the deceased shall be produced, and probate thereof granted according to law, such letters of administration shall be revoked. ” From the reading of this section of the statute the legislature did not seem to fix upon a definite time within which a will should be presented in court and admitted to probate, and we find no section of our statute which may be regarded as a limitation law barring the probate of a will after a specified time. The legislature has seen proper to limit the time within which different causes of action may be brought in this State, but as to the probate of a will no time has been designated within which it must be done. In England no definite time is fixed within which a will should be proved, in 1 Jarman on Wills, page 218, the author, in speaking on this subject, says: “The time within which, after the testator’s death, the will is to be proved, is said, in England, to be somewhat uncertain, and left to the discretion of the judge, according to the distance of the place, the weight of the will, the quality of the executors, the absence of the witnesses, the importunity of the creditors and legatees, and other circumstances incident thereto.” In Massachusetts, in Shumway v. Holbrook, 1 Pick. 116, it was held that a will may be proved more than twenty years after the. death of the testator, in order to establish a title to real estate. In some of the States the time has been regulated by statute, but in the absence of a statute regulating the subject we are not aware of any precedent which would authorize a court in holding that a will could not be admitted to probate unless presented to the probate court within a specified time.

Within what time an action may be brought to recover a debt, or to recover the possession of lands, or within what time an action for tort may be brought, or, indeed, any action, is purely a matter to be determined by an act of the legislature. So, also, if there is anything in the policy of the State "which'would require the will of a deceased person to be proved :and admitted to probate within seven, ten, or any other given number of years, it is a matter to be regulated by the legislature, and not by judicial determination. It is no doubt desirable, and perhaps for the best interests of an estate, where a person dies testate, that the will should be presented to the ■court and probated at once; but if a will is not produced, and letters of administration issue, acts done and rights accrued under such administration will be entitled to protection, so that no serious consequences can follow from the delay in probating a will.

The judgment of the Appellate Court will he affirmed.

Judgment affirmed.


author: Mr. Justice Scott

text:
    John Carne, Jr. v. Joseph Peacock.

      Filed at Ottawa June 13, 1885.

    1. Sale for taxes—pending an appeal. Where an appeal is taken by ■the People from the judgment of the county court against lands for taxes, all proceedings under the judgment are thereby suspended until the appeal is disposed of, and a sale of the land pending such appeal will be without authority of law, and void.
    2. Setting aside tax sale—upon terms. A lot was sold for the taxes thereon, by the description of “lot 9, in block 107, ” when it should have been described as “lot 9, in blocks 106 and 107,” of a subdivision, which was chargeable with taxes: Held, that a court of equity, in setting aside such sale, properly required the owner to pay the sum paid for it by the purchaser at the sale, and six per cent interest thereon, as a condition of granting the relief sought.
    3. Appeal—as to the scope of an order granting it—to whom granted. 'On rendering judgment against lands and lots for delinquent taxes, the county court entered an order “that all parties praying an appeal from this judgment file their appeal bond in the sum of $250,” etc., within twenty days; and it was further ordered that in appeals by the People no bonds need be filed: Held, that the legal effect of such order was to grant an appeal either to the-People or any land owner aggrieved by the judgment; and that’ where the-county attorney gave notice of an appeal, and prepared and filed a bill of’ exceptions on behalf of the People as to certain lands, this was an appeal' by the People.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. T. A. Moran, Judge, presiding.
    Mr. George W. Smith, and Mr. John P. Wilson, for the appellant.
    Mr. Consider H. Willett, and Mr. George L. Thatcher, for the appellee.
   Mr. Justice Scott

delivered the opinion of the Court:

In his bill Joseph Peacock alleges he is, and has been since 1872, the owner of certain parcels of land described, all of which had been sold for taxes for certain years mentioned, and that defendant, John Carne, Jr., now holds tax certificates, and that he will apply, as soon as the statutory period for redemption from such tax sales expires, for deeds for such property, to the county clerk, who it is alleged will make deeds to the party holding such certificates, on his application for that purpose. The judgments on which the property was sold were rendered in 1880, for the taxes of 1879 and prior years. Numerous reasons are assigned why the taxes assessed against complainant’s property were illegal, and quite a number of objections are insisted upon as to the validity of the judgment and subsequent proceedings under them. The holder of the tax certificates and the county clerk were made defendants, and defendant Carne filed his answer to the bill, but the county clerk disclaimed all interest in the subject matter of the suit. On the final hearing the court granted relief substantially as prayed for in the bill, and decreed that the tax certificates held by defendant Carne be ■cancelled, and be held for naught, on the payment to him by complainant of the sum found to be due for. taxes and assessments paid by defendant on the property, and that the county clerk be perpetually enjoined from making to defendant any deed or deeds for the property, or any part of it, in case complainant should comply with the terms imposed by the decree on which the relief was granted. Complainant, and defendant Carne, both filed transcripts of the record in the Appellate Court and in this court, and assign errors on the same, and by stipulation the causes have been submitted in this court on the same abstracts and briefs, and are to be considered as one case. ■

It seems that one tract or parcel of the land was sold by an imperfect description, and as to it the court declared the certificate void on payment to defendant, by complainant, of the sum he had paid to relieve the land sold from the tax lien upon it, with interest thereon. As respects the decree touching this particular tract of land, defendant makes no complaint, but as to that portion of the decree complainant has assigned errors which will be noticed further on.

It appears the court found, as a matter of fact, that from the judgment rendered August 26, 1880, by the county court, against the lands of complainant, the People took an appeal to the Supreme Court, and as a matter of law, in consequence of such appeal no steps could be taken in regard to the property mentioned in the decree while such appeal was pending in the Supreme Court, for the collection of taxes, and that no valid sale could be made, or acts done by the collector, until such appeal should be disposed of by the Supreme Court. It was principally for that reason the court held the sales made of complainant’s property during the pendency of the appeal were void; and as the court found, as a matter of fact, complainant had no knowledge or notice of such sales so made by the collector until after the affirmance of the-judgment appealed from, it was decreed that the tax sales, were void, and that complainant was entitled to have the certificates set aside on payment to defendant of the amounts-it was ascertained he had paid to relieve the property from liens or taxes and special assessments upon it. It is the correctness of this finding and decision of the court that is called in question by the assignment of errors made by defendant in this cause. It is thought, however, the finding and decision of the trial court in this respect are warranted both by the evidence and the law. No doubt is entertained, if an appeal was in fact taken from the decision of the county court-rendering judgment for taxes against the property of complainant, that no valid sale of the property for taxes could be made during the pendency of such appeal. (Revenue act,, sec. 193, as amended by the act of May, 1879.) The point insisted on, however, is, that no appeal was, in fact, taken, from the decision of the county court. This, it is believed, is a misapprehension of the record. A general order was entered to permit parties to appeal. In that order it was provided “that all parties praying an appeal from this judgment file their appeal bond in the penal sum of $250, ” and by complying with other conditions imposed, within twenty days-from the date of the judgment. And it was further ordered, “that in appeals by the People of the State of Illinois it shall not be necessary to -file any appeal bonds. ” Where so many persons were interested in a tax judgment as in Cook county, it would be almost impracticable to enter a separate order1 allowing each party aggrieved an appeal, and the law requires no such thing. The legal effect of this order so entered by the court was to grant an appeal either to the People or to-any land owner aggrieved by its decision. All that remained to be done by a land owner was to comply with the order of the court- granting the appeal within the time limited by its. order, and his appeal would be perfected. The People were not required to file any appeal bond to perfect their appeal, neither by the order of the court nor by the statute. (Rev, Stat. chap. 120, sec. 192.) It would seem to follow, then, that all the People had to do to perfect their appeal would be to give notice of such appeal, and file the usual bill of exceptions or certificate of evidence within the time fixed by the court. That was done in this case. There is evidence the-county attorney gave notice he would take an appeal from the decision of the county court to the Supreme Court, and on the 15th day of September, I860, a bill of exceptions was prepared and filed on behalf of the People, so far as the lands-of complainant were concerned. Afterwards it was agreed in open court, between the county attorney and the attorney for complainant, that an order might be entered nunc fro tunc,. as of the 26th day of August, 1880,—that being the day on which the judgment was rendered,—to the effect the appeal prayed for by the People as to the property of the complainant might be taken to the January term, 1881, of the Supreme Court, in the Central Grand Division, and in pursuance of that stipulation it was ordered by the court the appeal prayed for be allowed to that term of the Supreme Court. Accordingly the ease was taken to the Supreme Court in the Central Grand Division, as in the case of an usual appeal, and is reported as The People v. Peacock, 98 Ill. 172. It appears-notice was given at the time the decision was rendered that an appeal would be taken on behalf of the People, and that is sufficient. A bill of exceptions, so far as the property of complainant is concerned, was filed within the time fixed by the order of the court. That completed the appeal, as no bond was required. The order entered nunc fro tunc, if it had no other effect, was sufficient to enable the parties to-submit the case, as was done, in the Central Grand Division. So, then, it appears the appeal was, in fact, pending, as the circuit court found, when the tax sales were made, and as the-appeal operated, under the statute, to suspend all .further proceedings, the law is, the sales were without authority of law, and are void.

The errors assigned by complainant question the finding of the court that there were tax liens on that portion of lot 9, in Stowell’s subdivision of the north part of blocks 106 and 107, owned by complainant, and also the order of the court requiring complainant to .pay the amount bid at the tax sale, with six per cent interest from the date of sale, as a condition of relief. Other errors assigned are of no importance.

As respects the first error indicated, it is said the money received from defendant could not have satisfied any tax liens on lot 9, in Stowell’s subdivision, owned by complainant. There is no doubt this lot 9 was sold by an incorrect or imperfect description. It seems it was described as “lot 9, in block .107, ” when, in fact, it should have been as “lot 9, in blocks 106 and 107, ” of that subdivision. Although not correctly described, it sufficiently appears the property sold is the same property owned by complainant, and the money paid by defendant did, in fact, discharge the tax liens uj)on his property, and in that way preserved it for complainant. It was money complainant ought, under the law, to have paid himself, and as ■ he has had the benefit of money paid by defendant, he ought, in all good conscience, to be required to repay it. ' .

Nor was there any error in the decision of the court requiring complainant to pay interest on the amounts bid at the tax sales, as a condition on which relief should be granted. The terms imposed are both just and reasonable.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield Per Curiam :

text:
    William C. Ritchie et al. v. Walter L. Pease.

      Filed at Ottawa June 13, 1885

      Rehearing denied September Term, 1885.

    1. Conflict of jurisdiction—power of State courts to correct mistakes in decrees of Federal court. A State court is not empowered to review the judgments, decrees and orders of a United States District Court, and rectify the errors therein.
    1. Parol evidence—to identify land under a misdescription in a deed. A deed of an assignee in bankruptcy described the property as lot 9, block 28, Port Dearborn addition to the city of Chicago, subject to all incumbrances thereon, when there was, in fact, no such lot in existence. The description was "sought to be aided by parol evidence of the knowledge and intention of the assignee and the purchaser, and make the same apply to lot 28, block 9, etc.,—the proper description: Held, that there was no latent ambiguity, and that the parol evidence could not render the deed operative to pass the bankrupt’s title, which still remained in the assignee.
    3. Where land is described by an impossible description, and also as the property of a person named, in a given locality, the first part of the description may be rejected, and parol evidence received to show what property answers the latter description.
    4. Where a deed purports to convey all of a person’s right, title, interest or claim in a piece of property, which, from the terms used to describe it, can have no existence, it can not be regarded as an assertion of ownership of any specific property, and can not be aided by parol evidence.
    5. Mistake—of deed of officer of court—correcting as against creditors. It does not follow that a deed of an assignee in bankruptcy will be rectified in equity merely because of a mutual mistake between the assignee and the purchaser as to the description of the land attempted to be sold. The creditors of the bankrupt have an interest in the question. In such case the bankrupt court may order the proper land to be sold by its correct description.
    6. Oloud on title—complainant must have the title. On bill to set aside a deed as a cloud upon the title to complainant’s land, it is incumbent on him to prove title in himself when that is put in issue by the answer. It is not sufficient that the defendant’s claim is under a merely colorable title.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.

      On the 24th of December, 1880, Stephen L. Inslee filed his bill in chancery in the circuit court of Cook county, wherein, among other things, he alleged that on August 28, 1878, Walter L. Pease was the owner of lot 28, in block 9, in Fort Dearborn addition to Chicago, subject to a mortgage to the United States Mortgage Comjiany, dated July 12, 1877, to-secure $18,000, etc., and subject also to judgments hereinafter mentioned; that on the said 26th day of August, 1878, Pease was adjudicated a bankrupt by the United States District Court for the Northern District of Illinois; that Albert T. Lewis was duly appointed as assignee, and received a deed of assignment from A. B. Coon, one of the registers, of all Pease’s estate, real and personal, and that such deed was duly recorded; that in his schedule of assets Pease inventoried said real estate as lot 9, block 28, etc., subject to a trust deed dated July 12, 1877, to the United States Mortgage Company, to secure, etc.; that on October 11, 1878, Lewis, as assignee, filed a petition for leave to sell said real estate described as lot 9, block 28, of Fort Dearborn addition to Chicago, subject to said incumbrance, and that thereupon an order was entered directing such sale and notice in the “Elgin Advocate, ” and by mail to creditors; that notice was-duly given, and on November 2, 1878, the assignee offered the premises at public vendue, and Inslee became the purchaser; that on November 9, 1878, the assignee made report of sale, and that the sale and all proceedings thereunder were duly confirmed; that Lewis made an assignee’s deed, dated November 9, 1878, thereby conveying all Pease’s interest, as-well as the assignee’s, to Inslee, which deed was recorded November 21, 1878, and that Inslee thereby became owner of said lot 28; that on October 29, 1879, the sheriff of Cook county sold said premises at sheriff’s sale under an alias execution, which purported to have been issued out of the Superior Court of Cook county, on June 28, 1879, upon a judgment rendered against Pease and others, and in favor of Robert B. Chisholm; that at said sale Inslee became the purchaser of said lot 28, for $10, and the usual sheriff’s certificate of sale was issued to him; that Wells, Norton & Walker pretended to redeem from said sheriff’s sale, by virtue of some pretended judgment and execution against Pease, and complainant charges that said pretended redemption was irregular, illegal and void, and that Wells, Norton & Walker had or possessed no right in the premises to make such or any redemption; that the sheriff afterwards executed a pretended deed to Wells, Norton & Walker, dated November 29, 1880, recorded, etc., and that Wells, Norton & Walker quit-claimed to. Ritchie, by deed dated November 30, 1880, recorded December 8, 1880, and that Ritchie now claims title; that the pretended sheriff’s deed to Wells, Norton & Walker, and said quitclaim to Ritchie, by reason of having been recorded, are clouds upon complainant’s title. The bill prays that said deeds to Wells, Norton & Walker, and to Ritchie, be set aside, and declared void as against complainant, as clouds, and that said deed of the assignee to complainant be decreed to have passed the title of the assignee and said bankrupt in said lot 28, etc.
    On the 12th of February, 1881, said Inslee, by leave of the court, filed an amended and supplemental bill, alleging the execution of a deed by the defendant Ritchie to Francis T. Wheeler, January 14, 1881, and the commencement of an ejectment suit by Wheeler, against Inslee and his tenants, on the 18th day of January, 1881, in the Superior Court of Cook county, and making Wheeler a party defendant, and asking that he be enjoined from further prosecuting said ejectment, suit. On June 18, 1881, the bill was further amended by-alleging that Pease, the bankrupt, obtained his discharge in bankruptcy on the 22d of January, 1879, and that the said judgment so obtained by said Wells, Norton & Walker was a provable claim against the estate of said bankrupt, and that, the issuing of an execution thereon, and all proceedings thereunder, were void. On the 14th of June, 1883, the death of complainant Inslee was suggested, and on July 12, 1883, a hill of review was filed by Mary Voorhees, Margaret G. Owens and William Inslee, heirs-at-law of the complainant Inslee. On the 27th of May, 1884, the said heirs-at-law filed their amended bill of review, and on the 2d day of October, 1884, on motion of counsel for the heirs-at-law of said Inslee, said Walter L. Pease was substituted as complainant in place of said heirs, and he filed his amendment to said bill of review, alleging that in the lifetime of Inslee,—that is to say, on the 16th of March, 1883,—said Inslee conveyed the property in question to him, and that he then thereby became the owner thereof, and that after the recovery of the judgment by the said Wells, Norton & Walker, on the 22d of January, 1879, he was discharged in bankruptcy from all debts and claims against his estate which existed on the 26th day of August, 1878, and praying that the original bill, and the bill of review, as amended, be taken as amended by such allegations, etc. Answers were filed to the bill, amended and supplemental bills, and amended bills of review.
    The court ordered that Pease be substituted in place of the heirs-at-law of Inslee, and, on final hearing, the court finds that Pease was the owner in fee of said lot 28 on and prior to August 28, 1878; that on that day he filed his bankruptcy petition; adjudication of Pease on the 29th.of August, 1878; appointment of Lewis as assignee, and assignment by the register to Lewis, including said lot 28, and vesting all Pease’s title in Lewis by such assignment; that on October 11, 1878, Lewis, as assignee, filed his petition to sell said real estate; order for sale of said real estate by the district court, upon specified notice, which the court finds was duly given, and that on November 2, 1878, the assignee offered and sold said real estate to Inslee; approval and confirmation of said sale on November 9, 1878, by said district court, and deed by the assignee on the same day to Inslee, conveying said premises; that in making the sale, Lewis intended to sell lot 28, etc., and that Inslee intended to purchase, and supposed he was purchasing, said lot; that the assignee’s deed should be reformed and corrected, so that the description shall read, or be decreed to have the same force and effect as though said description did read, lot 28, etc.; that’the allegations of the bill with relation to the issuing of the sheriff’s deed to Wells, Norton & Walker, and the deed by them to Bitchie, and the deed by Bitchie to Wheeler, and the recording of said deeds, are true, and that each of said three deeds is a cloud;. that Inslee, on March 16, 1883, deeded to Pease, and that Inslee’s title passed to Pease by said deed, and that Pease is entitled to the money in the hands of the receiver, after payment of costs and expenses; decrees that the title to said lot 28, etc., passed by the assignee’s deed to Inslee, and that Inslee conveyed said lot to Pease by his deed of March 16, 1883, and that the certificate of redemption to Wells, Norton & Walker, and the sheriff’s deed to them, and the quitclaim deed from them to Bitchie, and the deed from Bitchie to Wheeler, be set aside, and declared null and void as against Pease, his heirs and assigns, as clouds; decrees costs of suit against Bitchie and Wheeler; further decrees that Pease is the owner of and entitled to the money in the receiver’s hands after payment of costs, expenses and compensation of the receiver, and orders.and directs the receiver to pay to Pease, and take his receipt, and make final report, etc., and retains the cause upon the docket as to the receiver’s report and discharge. The errors assigned question the correctness of the ruling of the court in thus decreeing.
    Messrs. Dupee, Judah & Willard, and Mr. Frederic Ullmann, for the appellants:
    The conveyance of lot 9, block 28, passed no title to lot 28, block 9. There was no such lot as that first named, in existence.

      To sustain a grant, extrinsic evidence is admissible to identify and establish the basis of the call in the deed. But where, as a consequence of a mistake, a deed does not express the intention of the parties, and describes what was not intended, and fails to describe what it was intended to describe, it must be rectified by a court of equity before it can become operative. Bridge Co. v. Curtis, 103 Ill. 410; Shackleford v. Bailey, 35 id. 3S1; Smith v. Crawford, 81 id. 296; Colcord v. Alexander, 67 id. 247; Carter v. Barnes, 26 id. 454.
    The assignee’s sale was a judicial sale. (Rorer on Judicial Sales, secs. 1, 12; Stevens v. Houser, 39 N. Y. 306.) He could sell only by virtue of the order of the bankrupt court. (Ziegler v. Shomo, 78 Pa. St. 363.) That court has power to confirm or set aside the sale. In re Barrow, 1 B. R. 481; In re Troy Woolen Co. 4 id. 629; 8 Blatchf. 465; Bump on Bankruptcy, 564.
    The assignee is an officer of the court. (In re Blaisdell, 6 B. R. 78.) If the assignee sells what he is not directed to sell, the sale is invalid. Warren v. Homestead, 33 Maine, 256.
    At a judicial sale the deed can only pass the title authorized by the decree to be sold. Borer on Judicial Sales, 379; Ryan v. Dox, 25 Barb. 440; Shriver v. Lyman, 2 How. 43.
    Our court can not correct the mistakes made in the orders and decrees of another tribunal. Ward v. Brewer, 19 Ill. 291. See, also, Klokke v. Stanley, 109 Ill. 192.
    If the circuit court had the power to reform' the deed of the bankruptcy court, there are no equities in the complainant entitling him to relief. Altes v. Hinckler, 36 Ill. 267.
    The Federal court still has a supervisory power over its records, and the acts of its officers, and of this sale, and of the bankrupt’s property, and is the proper court in which to seek relief. Bankrupt act, sec. 5062; Sproehnle v. Dietrich, 110 Ill. 202; Logan v. Lucas, 59 id. 237.

      Mr. Melville W. Fuller, and Messrs. Cook & Upton, for the appellee:
    A devise or grant of land will only be declared void for uncertainty, where, after resort to oral proof, it still remains a matter of mere conjecture what was intended by the instrument. Colcord v. Alexander, 67 Ill. 581; Choteau v. Jones, 11 id. 300; Williams v. Warren, 21 id. 541; Warden v. Williams, 24 id. 67; Dickenson v. Breeden, 30 id. 279; Townsend v. Downer, 23 Vt. 225.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The decree below must be reversed. The deed by the assignee in bankruptcy to Inslee can convey no title without rectification, and a State court is not empowered to review the decrees, judgments and orders, and rectify the errors therein, of a United States District Court. These propositions seem so self-evident that but little need be said in their support.

The material facts are, Walter L. Pease was, on the 28th of August, 1878, the owner of lot 28, in block 9, in Fort Dear-born addition to Chicago. On that day he filed his voluntary petition in bankruptcy in the United States District Court for the Northern District of Illinois. In his schedule of assets -attached, he inventoried lot 9, in block 28, Fort Dearborn addition to Chicago, instead of the lot which he owned. On the following day he was adjudged a bankrupt, and at a subsequent time Albert T. Lewis was appointed his assignee, •and, in compliance with the Bankrupt act, a deed of assignment conveying all the bankrupt’s effects was issued to him on the 7th of October, 1878. On the 11th of October, 1878, Lewis, as such assignee, filed in the same court by which he was appointed, his petition for leave to sell certain assets of the bankrujit, describing them, among which he enumerated lot 9, in block 28, Fort Dearborn addition to Chicago, “subject to an incumbrance secured by note and trust deed, bearing date July 12, 1877, etc., given to secure $18,000 in gold, to United States Mortgage Company, -years after date, with interest at nine per cent. ” The court, on the same day, ordered the assignee to sell the property mentioned in the petition at public auction, after giving three weeks’ notice in the “Elgin Advocate, ” etc. The notice published described “all the right, title and interest of said bankrupt, or the undersigned, as assignee, in and to all the following described property, subject to all existing liens and incumbrances, to-wit: lot 9, of block 28, of Fort Dearborn addition to Chicago, Cook county, Illinois.” On the 9th of November, 1878, the assignee made report to the court, accompanying which was a copy of the notice published, and in the report he showed that he had sold the “bankrupt’s certain right .or equity in and to lot 9, of block 28, of Fort Dearborn addition to Chicago, Cook county, Illinois, to Stephen L. Inslee, for five dollars.” The district court approved the sale on the 9th of November, 1878, and on the same day the assignee conveyed to Inslee “all the right, title, interest, estate, claim and demand of the said bankrupt which he had on the said 28th day of August, A. D. 1878, and of the said Albert T.. Lewis, as assignee aforesaid, (subject to all unpaid taxes, and to all liens and incumbrances, unless by the terms of said sale expressly excepted,) in and to the following described real estate, to-wit: lot nine (9), of block twenty-eight (28), of Fort Dearborn addition to Chicago, Cook county, Illinois.

There is no such property anywhere as lot 9, in block 28, of Fort Dearborn addition to Chicago. But it is contended that parol evidence is admissible for the purpose of explaining and correcting the mistake, and that it has been held in Colcord v. Alexander, 67 Ill. 581, that a description will be held sufficient which can be rendered certain by parol proof, and evidence was offered and admitted that this property was known as “No. 53 State street, in Chicago, ” both to Lewis, the assignee in bankruptcy, and to Inslee, the purchaser, at the time of the sale, and, indeed, that they knew it by no other description. This is quite competent to prove a mistake in the description of the property as conveyed, and that the property which the assignee intended to sell, and which Inslee intended to buy, was not the property which the deed assumes to convey, but was, in fact, lot 28, in block 9, of Fort Dearborn addition to Chicago. It could hardly be seriously contended, however, that a deed conveying one piece of property, or assuming to convey property of which there is no existence, can be held a sufficient conveyance of a piece of property of another description, merely because it may be shown by parol that the parties mutually intended, the one to sell, and the other to buy, and they actually thought the one was selling and the other buying a piece of property of the latter description. Parol evidence is admissible in the case of a latent ambiguity, and to identify and establish the objects of the calls in a deed, as in Colcord v. Alexander, supra. In that case property was sold as the property of Lansing & Ostrom, and it was held parol evidence was admissible to identify the property in controversy as answering to that description. So here, had this property, in addition to the descriptive words here used, been described as the property of Pease, in a given locality, the impossible description might have been rejected and parol evidence admitted to show what property answered to this description; but “all of a person’s right, title, interest or claim,” in a piece of property which, from the terms used to describe it, can have no existence, is an assertion of no ownership of any specific property. It is impossible that the deed can derive any aid from the mortgage, because, first, it makes no reference whatever to the mortgage, and so there is no principle upon which the mortgage can be read as a part of the deed; and second, because there is, in fact, no such mortgage as that referred to in the schedule of Pease. The only mortgage of which there is any evidence is one dated July 12, 1872,—five years before that described in the schedule,—for $20,000, instead of $17,000, as described in the schedule.

There is no latent ambiguity, and the difficulty is not in establishing the objects and calls in the deed. There is no property answering the description in the deed, and the words “lot 9, in block 28,” being rejected, no objects or calls are left which can be applied to any property. The error in the description commenced with the schedule, and was continued in the petition, notice and order and confirmation of sale, in the United States District Court. The power to execute the deed was derived from that court. The property was that of a bankrupt, and no State court was therefore empowered to deal with it. We perceive no reason why that court may not still subject that property to sale for the payment of the debts of the bankrupt; but certainly this court can not sit as a court of review to rectify and amend the errors of that court, .and this deed can not be rectified unless that shall be done. Logan v. Lucas, 59 Ill. 237; Sproehnle v. Dietrich, 110 id. 202.

We may observe it does not follow there should be rectification merely because the mistake was mutual between the assignee and the purchaser. The creditors have an interest in the question. The fact that the property decreed to be sold, and advertised .to be sold, had no existence, may have been a reason why more money was not bid at the sale. It by no means follows that no one else would have bid had the property which the bankrupt really owned been decreed and advertised to be sold.

The decree is reversed and the cause remanded.

Decree reversed.

Subsequently, upon an application for a rehearing, the following additional opinion was filed:

Per Curiam :

A petition for rehearing has been presented, in which it is insisted that the appellants are in nowise prejudiced by that portion of the decree which we have held to be erroneous. In our opinion this is a misapprehension. Undoubtedly it is, before suit brought, a matter of indifference to a party having only a colorable title, in whom is the real title; but a party in possession under a colorable title is ■entitled to hold that possession against all the world except those who establish a better title, and possession under a colorable title may ripen, by the lapse of time, accompanied by payment of taxes, into an absolute title. To maintain a bill to remove a deed as a cloud upon a title, where the title •of the complainant is put in issue by the answer, the complainant must prove title in himself. (Wing v. Sherrer, 77 Ill. 200; Emery v. Cochran, 82 id. 65; Hutchison v. Howe, 100 id. 11.) Here, the title of the complainant, Pease, is put in issue by the answer. It is expressly denied that any title passed by the assignee’s deed to Inslee, and by Inslee’s deed to Pease. Without the erroneous decree declaring title in Pease, he has no standing in court. By virtue of it he has ■a decree, which he could not otherwise have, divesting appellants of the possession of property to which they are entitled as against everybody but the assignee in bankruptcy. It can not be pretended that in this proceeding, if a decree had not gone in favor of Pease, it would have gone in favor of the assignee in bankruptcy divesting their possession, because no pleadings in the record authorize such a decree. The appellants are decreed to pay costs, when, but for the error in declaring title in Pease, he would have been decreed to pay the costs. Appellants are therefore directly and materially prejudiced by the erroneous decree.

The case made is certainly one wherein, if it had been in reference to a mere private transaction, by which one person was attempting to convey land to another, a court of equity would, on proof, correct the mistake. But we think it very clear that no legal title to lot 28 passed by the assignee’s ■deed to Inslee.

The rehearing is denied.

Rehearing denied.


author: Mr. Chief Justice Mulkey

text:
    Mary C. Zimmerman v. Elijah A. Willard et al.

      Filed at Mt. Vernon June 13, 1885.

    1. Pleading—as to mere matters of evidence. It is not proper for a pleader to plead mere matters of evidence in any case.
    2. Same—alleging fraud in deed of assignment for benefit of creditors To an interpleader by an assignee for the benefit of creditors, filed in a suit by attachment against the assignor and another, who were sued as partners, claiming the property attached and the debts garnisheed as having passed under the assignment for creditors, the attaching creditor replied that the deed of assignment “was executed, made, had and contrived by the said! grantor therein, of his fraud and covin, with the intent and purpose to delay, hinder and defraud his creditors, ” etc. The court sustained a demurrer to-the replication: Held, that the replication was good in both substance and form. The pleading was not obnoxious to the objection that it stated the-mere conclusion of the pleader, and not the facts constituting the fraud. The making of the deed of assignment, and the fraudulent intent, were the-two facts essential to the defence, and they were distinctly averred.
    3. Assignment for the benefit of creditors—of the place where-deed may be acknowledged—the statute construed. A deed of assignment, by a failing debtor to assignees, for the benefit of creditors, is not required by the statute to be acknowledged in the county where the grantor resides, but must be there recorded. The words in the first section of the act of 1877, that “every assignment shall be duly acknowledged and recorded in the county where the person or persons making the same reside, ” do not require the deed to be acknowledged at the county of the grantor’s residence. There should be a comma after the word “acknowledged. ”
    4. Same—sufficiency of certificate of acknowledgment. A certificate of the acknowledgment of a deed by a debtor, of his lands, etc., for the benefit of creditors, which stated that the grantor was personally known to the officer, and that he appeared before such officer and made the acknowledgment of the deed, is substantially good, as sufficiently showing that the grantor did appear in person before the officer, at least under the act relating to voluntary assignments.
    5. Same—if in fraud of creditors—of the right to attack the assignment after county court has assumed jurisdiction. If the assignment by a debtor for the benefit of certain of his creditors is made for the purpose of defrauding certain other of his creditors, it will be void as to the latter; and the fact that the county court has assumed jurisdiction of the subject matter of the assignment, and appointed new assignees, will not prevent creditors so attempted to be defrauded from attacking the deed for fraud, in a collateral proceeding, when it is sought by it to withdraw property attached by them, and place the same in the hands of the assignees appointed by the court.
    6. Witness—competency—grantor in deed of assignment for benefit of creditors. A debtor who makes a voluntary assignment of his property for the benefit of' creditors, is a competent witness, on the trial of an interpleader interposed by his assignee in an attachment suit against him and another, to show that he alone owned the property attached, and therefore that it belonged to the assignee, and was not subject to attachment.
    7. Eebor will not always reverse—ruling that a good pleading is bad, when there are issues on other pleadings equally availing. It is sufficient in any case that there is one issue under which a given defence may be proved. Therefore a reversal will not be given for sustaining a demurrer to a good plea or replication, where the evidence is admissible, and has been heard under some other issue.
    Appeal from the Appellate Court for the Fourth District; —heard in that court on appeal from the Circuit Court of Union county; the Hon. 0. A. Harker, Judge, presiding.
    This case originated in an action by attachment, brought by Mary C. Zimmerman, against Elijah A. Willard and Gr. W. Patterson, as partners. Prior to this suit Willard had made an assignment of all his real and personal estate to certain persons, for the benefit of his creditors. They having failed to qualify and serve, the county court of Union county appointed Philip Y. N. Davis and William C. Rich in their place. These assignees appeared in the attachment suit, and interposed an interpleader, alleging that the money in the hands of the garnishees did not belong to Willard & Patterson, but was the individual property of Willard. The plaintiff traversed this plea in the usual form, and, by leave, filed a special replication, as follows:
    “And the said plaintiff, by leave of the court for that purpose first had and obtained, as to the said plea of interpleader of said Philip Y. N. Davis and William C. Rich, as assignees of the said Elijah A. Willard, saith, that by reason of anything in the said plea of interpleader set forth and alleged, she ought not to be barred or hindered from the further having or maintaining her aforesaid action and her rights and remedies against the said Willard & Patterson, and against, the property, rights, debts and credits attached, seized and taken by her said writ of attachment, and claimed by the said Rich and Davis in and by their said plea of interpleader, as therein set forth; because she says that the said supposed assignment by the said,Elijah A. Willard, on the 18th day of July, A. D. 1882, mentioned in the said plea of interpleader of the said Philip Y. N. Davis and William 0. Rich, in this behalf, was executed, made, had and contrived by the said Elijah A. Willard, of his fraud and covin, with the intent and purpose to delay, hinder and defraud his creditors of their just and lawful actions and suits against the said Elijah A. Willard, and was and is utterly void and of no effect as against the said plaintiff, to-wit, at the county aforesaid. And this-she is ready to verify, ” etc.
    To this special replication the court sustained a general demurrer, and the plaintiff elected to abide by her replication.
    Mr. A. D. Duff, and Mr. W. J. Allen, for the appellant t
    The deed of assignment was not admissible in evidence. The act of 1877 (section 1,) required it to be acknowledged, in Union county. The statute is peremptory. Hardman v. Bowen, 5 Abb. (N. S.) 332; 39 N. Y. 196; Cook v. Kelley, 12 Abb. 35 ; 14 id. 466.
    Laws in relation to assignments are strictly construed. Heacock v. Durand, 42 Ill. 232.
    The certificate of acknowledgment is not in conformity with law. Section 26, chapter 30, of the Revised Statutes, prescribes the form, which must be substantially complied with. The officer must not only certify that the party whose-name is signed to the deed “is personally known to him, but also that he who is so personally known to him “appeared before him. in person and acknowledged, ” etc. Th& notary here simply states that Willard “appeared before him July 18, 1882, and is personally known to him to be the same person whose name is subscribed to the deed. ” Tally v. Davis, 30 Ill. 108; Shepard v. Carriel, 19 id. 319; Short v. Candee, 28 id. 227.
    Fraud vitiates all contracts, both at law and in equity, (Whitney v. Roberts, 22 Ill. 381,) and is cognizable in a court of law. Jamison v. Beaubien, 3 Scam. 113.
    It is for the jury to determine whether an assignment is made in good faith or not. Wilson v. Pearson, 20 Ill. 81; Nimmo v. Kuykendall, 85 id. 476; Hays v. Barnard, 38 id. 297.
    The special replication does not state a conclusion of law, but a fact, and the only fact necessary to be stated in such a replication. The intent with which the deed is alleged to have been made, is a traversable fact. That it contains all that is necessary, and is formal, see 1 Chitty’s Pleading, 537; 3 id. 1168; Bump on Fraudulent Conveyances, 581, 582; Boies v. Henny, 32 Ill. 130.
    There being no plea in abatement denying the partnership of Willard & Patterson, their evidence was not admissible to-show there was no partnership, there being no such issue., Warner v. Chambers, 12 Ill. 124; McKinney v. Peck, 28 id., 177; Degan v. Singer, 41 id. 28; Shufeldt v. Seymour, 21 id. 524; Zuel v. Bowen, 78 id. 234; Field v. Flanders, 40 id. 470.
    Mr. W. S. Day, and Messrs. Barr & Lemma, for the interpleaders :
    The words of location in section 1 of the act of 1877, refer only to the recording of the deed.
    The county court having assumed jurisdiction of the trust funds and property, can not be divested of it in this way. Frcydendall v. Baldwin, 103 Ill. 325; People v. Gray, 72 id, 344.
    The certificate of the acknowledgment of the deed is substantially good. The replication states no facts, but merely a conclusion of the pleader. When fraud is set up, the facts constituting it must be stated. Jones v. Albee, 70 Ill. 34; Davis v. Pickett, 72 id. 484.
    Charges of fraud and usury should not be general, but the facts distinctly stated on which the charges are based. Newell v. Board of Supervisors, 37 Ill. 253; Shafer v. Davis, 13 id. 395; Hovey v. Holcomb, 11 id. 660.
    The appellant made only a general objection to the evidence of Willard & Patterson. If evidence is obnoxious to a special objection, it must be stated. Railroad Co. v. Estes, 96 Ill. 473; Sargent v. Kellogg, 5 Grilm. 81; King v. Railroad Co. 98 Ill. 377.
    If the appellant fails to make the objection in the court below, so as to give an .opportunity to obviate it by amendment of the pleadings, he will be held to have waived it. City of Elgin v. Kimball, 90 Ill. 356; Driver v. Lord, id. 599; Druggers v. Bell, 94 id. 225; Stone v. Oil Co. 41 id. 91; Roberts v. Graham, 6 Wall. 578; Rev. Stat. chap. 110, sec. 24.
   Mr. Chief Justice Mulkey

delivered the opinion of the Court:

For several years next before July, 1882, Elijah A. Willard carried on the banking business at Jonesboro, Union county, this State. He was also, during the same time, engaged in the buying and shipment of grain at different points in the State, but principally in Union and Jackson counties. His operations in the grain trade were carried on mainly through Gr. W. Patterson, who resided on a farm belonging to Willard, near Makanda, in Jackson county, some fourteen miles distant. In July, 1882, Willard failed, and went to Mexico, where he has since resided. On his way there he passed through the city of St. Louis, where he executed and acknowledged, before a notary of that city, a deed, apparently in due form, bearing date July 18, 1882, whereby he conveyed to Thomas Hileman, Daniel Hileman and Charles F. Willard, all his estate, both real and personal, for the benefit of his ■creditors. This deed was sent by mail to the grantees in Union county, and was there received by them, and properly recorded on the 22d of the same month. The grantees having afterwards declined to assume the trust, by a proper proceeding in the county court of Union county Philip V. N. Davis and William G. Rich, Sr., appellees, were, on the 24th of July, 1882, duly appointed assignees in their stead, and thereupon entered upon the duties of the trust. On the 9th of September following, Mary C. Zimmerman, the appellant, and a number of other creditors of Willard, proceeding upon the hypothesis that Patterson was a partner with Willard in the grain business, sued attachments out of the circuit court of Jackson county against the estate of the said Willard & Patterson. These writs were served upon a number of commission merchants in the State, as garnishees, whose answers show that they, collectively, had in their hands some $3000 due Willard, or Willard & Patterson, as the case might be, on account of wheat transactions between them. Pending these attachment proceedings, Davis and Rich, the assignees, appeared in court and filed interpleaders, claiming that the money in the hands of the garnishees was the individual property of Willard, and consequently passed to them by virtue of the deed of assignment. The attaching plaintiff in the present case denied, generally, the allegations of the interpleader, and also replied specially that the deed of assignment through which appellees claim “was executed, made, had and contrived by the said Elijah A. Willard of his fraud and covin, with the intent and purpose to delay, hinder and defraud his creditors, ” etc. To this replication the court sustained a general demurrer, and the cause was then submitted to a jury upon the issue tendered by the interpleader, resulting in a verdict in favor of appellees, upon which the court rendered final judgment. From this judgment there was an appeal to the Appellate Court for the Fourth District, where the same was affirmed. The present appeal is from the judgment of the latter court.

The ruling of the court upon the demurrer to the special replication to the interpleader presents the first question for consideration. It is first objected that the replication states a mere conclusion of the pleader, and not the facts constituting the fraud, as it should do. This is a misapprehension. While we fully recognize the general rule adverted to by counsel, yet in applying it there is another general rule that must-not be lost sight of, namely, that it is not proper to plead mere matters of evidence in any case. It may be difficult in-some cases to apply these well recognized rules of pleading,— and this, indeed, is conceded by the most authoritative text writers; yet we perceive no difficulty in applying them in the-present instance. The fraud relied on here is not, as is generally the case, to be inferred from a great variety of issuable-facts to be proven on the trial. It differs from other cases in this respect, however, only in the paucity of the issuable-facts from which the fraud is to be inferred. The defencehere consists of two facts, namely, the making of the deed, and the alleged illegal or fraudulent intent with which it was done. Both these facts are distinctly averred, and present, triable issues, and this is all the law requires.

We have examined with care all the cases cited by appellees’ counsel which are supposed to be inconsistent with the conclusion here reached, but we find nothing in them that,, in our judgment, warrants such an inference. It is true the-language of the opinions in some of them is quite broad, yet-when limited, as it must be, to the facts in the particular case, it is entirely consistent with the conclusion here reached. Most of the cases in this court bearing upon the question are-mainly based upon Hovey et al. v. Holcomb et al. 11 Ill. 660. But even in that case, which may be regarded as the leading-one on the subject in this State, this court holds the following language: “It may sometimes be a sufficient averment of fraud to say that a certain specified act was fraudulently done, or that it was fraudulent, without showing how it was fraudulent. ” The case in hand evidently falls directly within the class of cases here alluded to.

As to the form of the replication, it is in strict conformity with the precedents, and we see no objection to it in that respect. 3 Chitty’s Pleadings, *1168.

It is further objected that the deed of assignment, having been properly filed and recorded in the county court, and that court having necessarily recognized its validity in appointing new trustees under it, its validity can not he questioned in a mere collateral proceeding, as is sought to be done here; that by reason of such action of the county court its validity became res judicata, and hence it can only be attacked by a direct proceeding for the purpose of setting it aside. We do not concur in this view, nor do we think the authorities cited by counsel in its support sustain it, and there is certainly nothing in the statute that justifies such a conclusion. It is clear appellees’ right to the attached property depended solely upon the validity of the deed of assignment, and it is equally clear that if it was made, as is alleged in the replication, with the intent to defraud the creditors of Willard, it was void and inoperative as to such creditors. We are therefore of opinion the replication presented a valid defence to the case made by the interpleader, and that the court erred in sustaining the demurrer to it. Nevertheless, we do not think the judgment should be reversed for that reason. Under the general traverse of the interpleader the appellant had the right to' prove any fact which could properly have been given in evidence under the special replication, and she could not therefore have been injured or prejudiced by the ruling of the court upon the demurrer. It is sufficient in all cases that there is one issue in the cause under which a given defence may be proven. That was the case here. Zirkel v. Joliet Opera House Co. 79 Ill. 334.

The point is also made that the court erred in admitting the deed of assignment in evidence, against the objections of appellant. The grounds of the objection are two-fold: First, that the deed was acknowledged outside of the State; and second, that the certificate of acknowledgment is insufficient in this, that it does not state the grantor appeared before the notary in person. The first section of the act of 1877, under which the assignment was made, provides, among other things, that “every assignment shall be duly acknowledged and recorded in the county where the person or persons making the same reside, ” etc. The deed in question was, as we have already seen, duly recorded in Union county, where Willard resided; but the contention of appellant is, that it should also have been acknowledged there. We do not think that this is a fair or reasonable construction of the language cited. While the object of the legislature in requiring the deed to be recorded in the county where the assignor resides, etc., is quite apparent, yet no possible reason is perceived for requiring it to be acknowledged there. The place of acknowledgment would therefore seem to be wholly inconsequential, and to limit it to a particular place would certainly, in many cases, lead to great inconvenience, and in some would probably operate as a denial of the right of a failing debtor to make such an assignment at all. A construction which would lead to such results ought not to be adopted unless the statute plainly and imperatively demands it. We do not think it does in this case. Had a comma been inserted after the word “acknowledged, ” as it should have been, no one would have thought of that word being limited by the qualifying member of the sentence, “in the county where the person or persons making the same reside,” etc., and we are of opinion that sound reason and public convenience alike require the provision in question to receive the same construction as if the comma had been so inserted. We therefore hold that the requirements of the statute were fully met by the recording of the instrument in Union county,—the place of Willard’s residence.

In respect to the sufficiency of the acknowledgment, we do not deem it necessary to enter'into an elaborate discussion of the question, or upon a review of the authorities relating to it, but will content ourselves with stating, in general terms, that we regard the certificate sufficient. It states that Willard was personally known to the notary, and that he appeared before such notary and made the acknowledgment in question. We think the fair inference is, that the party making the instrument did appear in person before the notary, though it is not expressly so stated in the certificate; and without expressing any opinion as to whether this would be sufficient under our Conveyance act, we have no hesitancy in holding, as we do, that it is a substantial compliance with the act relating to voluntary assignments.

It is further objected that the court erred in admitting the deposition of Willard in evidence, for the purpose of proving that the moneys attached belonged to him individually, and not to him and Patterson, as partners. The argument is, that Willard & Patterson having been sued as partners, and the existence of the partnership being admitted by them upon the record, Willard could not, on his own behalf, introduce evidence to disprove it, and as the assignees claim through him as mere volunteers, they have no rights in this respect which he himself could not exercise. The argument is manifestly unsound. It leads to this: that one, after having made a valid assignment of his property for the benefit of creditors, might, by failing to make a proper defence when sued by a stranger in respect to it, defeat the assignment altogether. It is not within the power of the insolvent debtor in such case, by any action or non-action of his, in pleading or otherwise, to defeat the claims of the creditors under the assignment. As between the appellant and Willard, as a party defendant in the attachment suit, the evidence objected to would clearly have been incompetent, on the ground suggested by appellant’s counsel. But the evidence was not offered in that case, nor at the instance of Willard. The filing of the interpleader was, in effect, the commencement of a new suit by parties claiming adversely to both the plaintiff and defendants in the attachment suit, for the enforcement of rights which accrued, if they have any existence at all, long before the commencement of the attachment proceeding, and to hold that the rights of the creditors thus accruing could be prejudiced by anything Willard might do or neglect to do in the attachment suit, would certainly be a startling proposition, and one to which we can not for a moment yield our assent.

Upon a careful consideration of the instructions, we find no substantial error requiring a reversal. Some of those given on behalf of appellees are, considered as general propositions, subject to criticism, but as applicable to the evidence before the jury, and the controlling issue in the case, the appellant could not have been prejudiced by them. As to appellant’s refused instructions, we think they either announced a wrong principle of law, or were calculated to mislead the jury, and were therefore properly refused. The truth is, the case was tried and decided by the jury upon a sharp issue of fact. Whether the attached property belonged to appellees, as charged in the interpleader, depended upon whether or not Willard & Patterson were partners in the grain trade. Appellant maintained that they were, and appellees that they were not. This was the frictional point in the case, and the one upon which it turned. The proofs in other respects were formal, merely. Upon this issue the jury found in favor of appellees, and their finding has received the sanction and approval of the circuit and Appellate courts, and, as already indicated, we discover no error in the proceedings of the trial court which we regard as having contributed to this result, and we are therefore not permitted to interpose.

The judgment will be affirmed.

Judgme!lt aJirmed.


author: Mr. Justice Sheldon

text:
    Mary Stahl v. Catharine Stahl et al.

      Filed at Mt. Vernon June 13, 1885.

    1. Homestead—effect of a divorce at the suit of the wife, as to her •homestead right. Where a wife procures a divorce from her husband, the court is authorized to make disposition as to the homestead; but if the court fails to do this, the relation of husband and wife being severed by the decree of divorce, the latter loses all claim to a homestead, so that the husband may sell the premises without her release of homestead right. It is different in respect to the wife’s dower, which is not lost by a divorce for the husband’s fault.
    2. The surviving wife of a deceased householder, who is made to succeed to his estate of homestead, is the one who is his wife at the time of his death. A. divorced wife will take no rights in the homestead.
    3. Doweb—in the case of two widows, as, of father and son—and as to the relative rights of a wife who had obtained a divorce, and the wife in actual wedloch at the time of the husband’s death. Where a son takes land by descent from his father, subject to the dower of his mother in the same, and her dower is afterward assigned to her, such assignment will relate back to the time of the death of the father, so as to prevent the seizin of the son as of a present estate in the third of the premises assigned to the widow' of the father; and the legal effect is to deprive the widow' of the son, who dies in the lifetime of his mother, of dower even in the reversion of the third of the ■estate assigned.
    4. But the rule is different where the father conveys to the son. In such case the son becomes seized of a present estate in the whole of the premises, subject only to the contingent dower right of his mother in one-third thereof, if she survives the grantor, so that upon the death of such grantee during the life of the widow of the grantor, the wife of such grantee is entitled to dower in the whole premises, subject only to the incumbrance of the prior right of dower in one-third of that estate during the actual continuance of that right.
    5. So, applying these rules to the present case, where a husband, seized -of the fee in land subject to the contingent right of dower in a former wife, who had procured a divorce for his fault, marries again, and dies leaving both the divorced wife and the second wife living, the former will take dower in one-third of the whole, unincumbered, and the latter will be entitled to dower in the whole premises, subject to the incumbrance of the first wife’s prior right of dower during the continuance of that right.

      Appeal from the Circuit Court of St. Clair county; the Hon. -William H. Snyder, Judge, presiding.
    Mr. William C. Kueffner, for the appellant:
    Section 2, chapter 52, of the Be vised Statutes, provides that “such (homestead) exemption shall continue after the-death of such householder, for the benefit of the husband or wife surviving. ” The surviving wife takes the homestead. “A wife is a woman who has a husband. ” 2 Bouvier’s Law Dic. 661.
    When Christian Stahl, after the divorce, married Mary Meyers, (now Mary Stahl,) the latter became his wife, and remained so till his death. He could not, under our laws,, have two wives at the same time. The divorce destroyed the-marriage relation between him and Catharine Stahl, and they became strangers to- each other as if they had never been married, except with regard to alimony and dower. The first-wife thereafter had no rights in his property, except such as-the decree for alimony gave her, and her dower rights expressly saved to her by the statute as the innocent party. Rev. Stat. chap. 41, sec. 14.
    ' The law makes no similar saving as to the homestead. It provides: “In case of divorce, the court, granting the divorce-may dispose of the homestead according to the equities of the case.” Rev. Stat. chap. 52, sec. 6.
    The widow' Mary Stahl was entitled to receive for dower one-third of all the land, and not only one-third of two-thirds. Rev. Stat. chap. 41, sec. 1.
    If the land of the husband be subject to an incumbranceparamount to dower, the burthen is to be apportioned between the widow and the owner of the inheritance according-to the relative value of their respective estates. 2 Scribner on Dower, (2d ed.) 696.
    A wddow is entitled to'dower in lands of which her husband died seized, notwithstanding dower had been previously assigned in the same lands to the widow of the husband’s father. On the death of the widow of the father, the widow of the son becomes further entitled to one-third of the portion originally assigned to the former. Beer v. Snyder, 11 Wend. 592.
    This question has, in effect, been passed upon by this court in the ease of Steele v. LaFrambois’ Admr. 68 Ill. 457, where there was a junior and a senior dower right in the same land.
    Mr. W. N. Horner, for the appellees,
    after citing and commenting on sections 1 to 5, inclusive, of chapter 52, and section 16, of chapter 68, contended, from the evidence, that Catharine Stahl was clearly vested with the right of homestead. She has done no act to forfeit or lose it.
    It is against the policy as well as the terms of the Homestead law, to permit the husband to deprive the wife of her right to claim the homestead,—except by removal with his family from the place. Allen v. Hawley, 66 Ill. 164. Vide section 16, chapter 68, of the Eevised Statutes, supra, which is a recent enactment modifying the latter part of the above-decision.
    A husband can not effect an alienation of his family homestead by laches, and thus, by an indirect method, accomplish what he can not do directly. The right is conferred by statute, and can only be divested in the mode provided by statute. Hubbell v. Canady, 58 Ill. 425; Booker v. Anderson, 35 id. 66 ; Haskins v. Litchfield, 31 id. 137; Pardee v. Lindley, id. 174; Mix v. King, 66 id. 145.
    Withdrawal from, by ill-treatment, does not deprive her of' the right. Thompson on Homestead, sees. 73-78.
    A husband can not- deprive her of this right. Conroy v. Sullivan, 44 Ill. 451.
    If a decree of divorce is silent as to homestead, the husband can not maintain ejectment against the divorced wife-in possession. Sellon v. Reed, 5 Biss. 125.

      Divorce by one for the misconduct of the other will not bar •dower in the one who is blameless. Rev. Stat. chap. 41, sec. 14.
    Where two or more widows are to be endowed out of the same messuage, as to the manner of setting out the same see 4 Kent’s Com. (11th ed.) 67, *64; Coke on Littleton, 31; In the matter of Creiger, 1 Barb. Ch. 599; Elwood v. Klock, 13 Barb. 50; Washburn on Real Prop. (2d ed.) chap. 7, pp. 210, 211; Leavitt v. Lamprey, 13 Pick. 382.
    The interposition of a mere possibility, so that it be of a freehold nature, between the right of dower and the inheritance, will prevent a title of dower from attaching. 1 Scribner on Dower, (2d ed.) 246.
    Dower is not allowed where there is an intervening contingent freehold remainder. 1 Scribner on Dower, (2d ed.) ■235-246.
    The inchoate right of dower is an incumbrance. It is a right of property. 2 Scribner on Dower, 3-8.
    The wife’s right to dower is an interest in lands contingent ■during the life of the husband, and attaches on the lands as soon as there is a concurrence of marriage and seizin. Denton v. Nanny, 8 Barb. 618.
    Dower, before assignment, is “an interest in lands.” Finch v. Finch, 10 Ohio St. 501; Lathrop v. Foster, 51 Me. 367.
   Mr. Justice Sheldon

delivered the opinion of the Court:

Catharine Stahl was, on December 31, 1863, married to •Christian Stahl, and lived with him as his wife on a certain eighty-acre tract of land, of which said Christian was seized in fee, until in the year 1882, when, in the month of February, she obtained a divorce from him for extreme and repeated •cruelty, and a decree for alimony of fifteen dollars per month, which, by reason of his death, has abated. (Lennahan v. O’Keefe, 107 Ill. 620.) Philip Stahl, a minor, now about ■seventeen years of age, was the sole issue of the marriage, who has, ever since the divorce, been in the sole custody of the said Catharine. The decree of divorce made no provision with respect to the custody of the child. After the divorce •Christian Stahl continued to reside on said premises. On November 11, 1882, he was married to Mary Meyers, and lived with her as his wife, on the premises, until his death, •on July 26, 1884, and ever since his death she has occupied the premises as his widow. There was no issue of this second marriage. Catharine Stahl, the first wife, and Philip Stahl, ■son of the first marriage, suing by Catharine Stahl, his next friend, filed their bill in chancery, claiming, on the part of said Catharine, dower and homestead in said real estate, alleging that Mary Stahl, the second wife, was entitled to dower in the land that should remain after the said Catharine’s dower and homestead had been set off, and praying that the respective dower and homestead rights might be set off accordingly. Mary Stahl", the second wife, answered, denying that Catharine Stahl was entitled to homestead in the real estate, and filed her cross-bill, setting up the facts of the ease, alleging that she was entitled to dower and to an estate of homestead in the premises, and praying that her dower and homestead might be set off to her. The circuit court decreed that Catharine Stahl was entitled - to a homestead estate in said real •estate of the value of $1000, and to a dower estate in what remained of said premises after said homestead estate had been set off, and that after said homestead and dower estates had been set off to said Catharine Stahl, then the said Mary Stahl was entitled to dower in the land then remaining. Mary Stahl took this appeal.

The circuit court erred in its decree as to homestead. Section 5, chapter 52, of the Revised Statutes of 1874, provides : “In ease of a divorce, the court granting the divorce may dispose of the homestead estate according to the equities of the .case.” Here, the court granting the divorce made no order with respect to the homestead. The disposition of it, therefore, must be as directed by the statute. After the divorce, the homestead estate remained and continued in Christian. Stahl, the householder and owner in fee of the premises. Upon the granting of the divorce, Catharine Stahl’s relation of wife to Christian Stahl was severed,—she then- became entirely disconnected with the homestead estate, and had no right pertaining to any property of Christian Stahl by virtue of having been his wife, except dower saved by the statute, the divorce having been for the misconduct of the husband, and the alimony which was allowed. The Homestead Exemption act provides that no release or conveyance of the homestead estate shall be valid unless the same be in writing,, subscribed by the householder and his or her wife or husband, if having one. Now, if, after the divorce and before his. second marriage, Christian Stahl had been minded to release or convey the homestead, he could have done so by his own deed alone, as he would have had then no wife to join with him in the deed. _Upon death,'the statute declares, “such, exemption (homestead) shall continue after the death of such householder, for the benefit of the husband or wife surviving, so long as he or she continues to occupy such homestead, ” etc. The wife surviving here was Mary Stahl, the second wife, and not Catharine Stahl, the divorced wife. The latter had once-been the wife of Christian Stahl, but she was not his wife-at the time of his death. Our law does not admit the idea of a man having two wives at the same time. The surviving wife of a decedent is the one who was his wife at the time-of his death. Mary Stahl was such one here, occupying the-premises at that time with Christian Stahl, and she is the person for whose benefit the statute says the homestead estate shall continue so long as she continues to occupy the homestead.

We are of opinion, too, the decree was erroneous in respect to the extent of the dower right of the second wife. There is a case of dower where the rule which the court adopted would be the correct one,—as, where a son takes land by descent from his father, subject to the dower of his mother in the same, and her dower is afterwards assigned to her, such assignment relates back to the death of -the father so as to prevent the seizin of the son as of a present estate in the third of the premises assigned to the widow of the father; and the legal effect is to deprive the widow of the son, who dies in the lifetime of his mother, of dower even in the reversion of the third of the estate assigned to the mother for dower. But the ease is different where the father conveys to the son. In such case the son becomes seized of a present estate in the whole of the premises, subject only to the contingent dower right of his mother in one-third thereof if she survives the grantor,—so that upon the death of such grantee during the life of the widow of the grantor, the wife of such grantee is entitled to an estate in dower in the whole premises, subject only to the incumbrance of the prior right of dower in one-third of that estate during the actual continuance of that right. (Dunham v. Osborn, 1 Paige, 634; In the matter of Cregier, 1 Barb. Ch. 598; Bear v. Snyder, 11 Wend. 592.) The rule is laid down to the same effect in 4 Kent’s Commentaries, marg. page 64, as follows: “If A be seized, and has a wife, and sells to B, who has a wife, and the husbands then die leaving their wives surviving, the wife of B will be dowable of one-third of two-thirds in the first instance, and of the one-third of the remaining one-third on the death of the widow of A, who, having the elder title in dower, is to be first satisfied of her dower out of the whole farm. ” And see 1 Washburn on Beal. Prop. marg. page 210; Steele v. La Frambois’ Admr. 68 Ill. 456.

This, we consider, is the rule which should apply here. Christian Stahl was seized of a present estate in the whole premises, subject only to the contingent right of dower of his first wife in one-third thereof; and the second wife is entitled to dower in the whole premises, subject to the incumbrance of the first wife’s prior right of dower during the continuance of that right.

The decree will be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Decree reversed.