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CORNELL UNIVERSITY LIBRARY 
 
 3 1924 084 257 769 
 
The original of tliis book is in 
 tlie Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924084257769 
 
ILLmOIS CASES 
 
 ON 
 
 EQUITY JURISPEUDENCE 
 
 BY 
 
 
 MORTON 8. 
 
 CEESSY 
 
 OF THE Chicago Bar 
 
 AND 
 
 
 PEOFESSOE OF LAW 
 
 IN 
 
 
 JOHN MABSHALL LAW SCHOOL 
 
 PART 
 
 III. 
 
 CHICAGO 
 
 S. D. CHIIvDS & CO. 
 
 1910 
 
Copyright, 1910 
 
 BY 
 
 MORTON S. CRBSSY 
 
PREFACE 
 
 This selection of cases has been collected during an experi- 
 ence of several years in teaching the subject of Equity Juris- 
 prudence in The John Marshall Law School, Chicago, III, 
 and is to be used in connection with the teaching of that sub- 
 ject to supplement and illustrate the text books used. 
 
 It is the first attempt to collect the leading Illinois Equity 
 decisions, and it is hoped it, will be found valuable to other 
 law schools and to attorneys in actual practice in setting forth 
 some of the most important equitable maxims and principles. 
 
 The head notes, arguments, and the names of attorneys 
 have all been omitted, as have also, in certain cases, the state- 
 ment of the case and parts of the opinion, such omission in the 
 opinion being shown by asterisks, thus * * * The omitted 
 parts of the opinions dealt with questions of common law 
 which were not necessary to the decision of the equity point 
 involved. 
 
 I desire to express my appreciation to Edward T. Lee, Dean 
 of The John Marshall Law School and to Morris St. P. 
 Thomas of the Chicago Bar, my predecessor in this depart- 
 ment for many valuable suggestions and assistance in revising 
 the selection of cases. 
 
 Morton S. Cressy. 
 Chicago, December, 1909. 
 
TABLE OF CONTENTS 
 
 CHAPTER I. 
 
 Principles Defining and Limiting the Jurisdiction of Equity. 
 
 Page 
 Section 1. Equity has no jurisdiction over crimes or matters 
 
 of political character 1 
 
 Section 2. Equity has no jurisdiction where there is an ade- 
 quate remedy at law 8 
 
 Section 3. Jurisdiction not divested where there is an enlarge- 
 ment of the legal remedy 19 
 
 Section 4. Equity will retain jurisdiction to award complete 
 
 relief 34 
 
 Section 5. Equity takes jurisdiction to prevent multiplicity 
 
 of suits 33 
 
 CHAPTER II. 
 
 The Maxims of Equity. 
 
 Section 1. Equity regards the substance rather than the form. 49 
 
 Section 2. Equity looks on that as done which ought to have 
 
 been done 56 
 
 Section 3. Equity acts in personam 61 
 
 Section 4. Equality is equity 67 
 
 Section 5. He who seeks equity must do equity 72 
 
 Section 6. He who comes into equity must come with clean 
 
 hands '?''' 
 
 Section 7. Equity aids the. vigilant 86 
 
 Section 8. Equity follows the law 88 
 
 CHAPTER III. 
 
 The Doctrines of Equity. 
 
 Section 1. Equitable estoppel 94 
 
 Section 2. Election 109 
 
 Section 3. Satisfaction , ' 113 
 
 Section 4. Ademption - 134 
 
 Section 5. Conversion IS** 
 
VI • TABI,E OF CONTENTS 
 
 CHAPTER IV. 
 Notice. 
 
 Page 
 
 Section 1. Notice of unrecorded deed 139 
 
 Section 2. Possession as notice 153 
 
 Section 3. Recitals in title papers 157 
 
 Section 4. Notice to agent is notice to principal 160 
 
 Section 5. Notice from recording 170 
 
 Section 6. Lis pendens 175 
 
 CHAPTER V. 
 
 Bona Fide Purchaser. 
 
 Bona fide purchaser 180 
 
 CHAPTER VI. 
 Priorities. 
 
 Section 1. Unequal equities 190 
 
 Section 2. Equal equities 195 
 
 CHAPTER VII. 
 Penalty or Liquidated Damages. 
 
 Penalty of liquidated damages 300 
 
 CHAPTER VIII. 
 Grounds for Equitable Relief. 
 
 Section 1. Accident 203 
 
 Section 2. Mistake of law 204 
 
 Section 3. Mistake of fact 313 
 
 Section 4. Mistake of expression 218 
 
 Section 5. Actual fraud — Misrepresentation 325 
 
 Section 5. Actual fraud — Fraudulent concealment 338 
 
 Section 6. Constructive fraud 247 
 
 Section 7. Fraudulent conveyance 359 
 
 Section 8. Fraud on marital rights 265 
 
 Section 9. Contracts in restraint of trade 368 
 
 CHAPTER IX. 
 Trusts. 
 
 Section 1. Who may be a trustee 274 
 
 Section 3. Creation of trust 286 
 
 Section 3. Words necessary to create a trust. 
 
 Precatory trusts 290 
 
 Section 4. Consideration 306 
 
 Section 5. Nature of cestui qui trust's estate 313 
 
TABLE OF CONTENTS VII 
 
 Section 6. Charitable trusts 322 
 
 Section 7. Resulting trust 338 
 
 Section 8. Constructive trust 347 
 
 Section 9. Duties of trustees 361 
 
 Section la. Removal of trustee , 385 
 
 CHAPTER X. 
 Mortgages. 
 
 Section 1. Estate of mortgagee ^ 390 
 
 Section 2. When deed may be a mortgage 402 
 
 CHAPTER XL 
 Specific Performance. 
 
 Section 1. When entitled to relief in equity 408 
 
 Section 2. Contracts for personal service 415 
 
 Section 3. Statute of Frauds. Part performance 420 
 
 CHAPTER XII. 
 Injunctions. 
 
 Section 1. Against judgment at law 442 
 
 Section 3. Injunction against trespass 449 
 
 Section 3. Injunctions against nuisance 454 
 
TABLE OF CASES 
 
 A 
 
 Pagb 
 
 Anderson v. Armstead, 69 111., 452 106 
 
 B 
 
 Babcock v. McCamant, 53 111., 314 31 
 
 Baldwin v. Sager, 70 111., 503 184 
 
 Barrett et al. v. Hinkley, 134 111., 32; 14 N. E. R., 863 391 
 
 Baxter V. Board of Trade, 83 111., 146 16 
 
 Beach v. Shaw, 57 111., 17 52 
 
 Binns v. LaForge et al., 191 111., 598; 61 N. E. R., 3^3 313 
 
 Borders v. Kattleman, 143 111., 96; 31 N. E. R., 19 233 
 
 Butler V. Butler, 164 111., 171; 45 N. E. R., 436 361 
 
 C 
 
 Carr v. Brennan et al., 166 III, 108 ; 47 N. E. R., 721 153 
 
 Chambers v. Jones, 72 III., 275 72 
 
 City of Chicago v. Chicago City Ry. Co. et al., 233 111., 560; 
 
 78 N. E. R., 890 41 
 
 Corrington, In Re, 124 111., 363; 16 N. E. R., 353 56 
 
 Cope V. Dist. Fair Ass'n of Flora, 99 111., 489 1 
 
 Cornell v. Newkirk, 44 111., App., 487 86 
 
 Cragg V. Levison, 338 111., 69 , 450 
 
 D 
 
 Dady v. Condit, 163 111., 511; 45 N. E. R., 334 344 
 
 Davis et al. v. Stambaugh, 163 111., 557; 45 N. E. R., 770 30O 
 
 Dean and Others v. Long and Others, 133 111., 447; 14 N. E. 
 
 R., 34 157 
 
 Dinwiddle v. Self, 145 111., 290 218 
 
 Doolittle V. Cook, 75 111., 354 170 
 
 Dowie et al. v. DriscoU, 203 111., 480; 68 N. E. R., 56 351 
 
 Doyle V. Teas, 4 Scam (5 111.), 303 135 
 
 F 
 Farmers Loan & Trust Co. v. Lake St. El. R. et al, 173 111., 
 
 437; 51 N. E. R., 55 ■ 274 
 
 Fetrow v. Krause, 61 111., App., 338 121 
 
 Fish V. Leser, 69 111., 394 81 
 
 IX 
 
X tabi,e; of cases 
 
 Page 
 
 Fowler V. Black et al., 136 111., 363 a04 
 
 Freeman v. Hartman, 45 111., 57 365 
 
 Frink v. Cole, 5 Gilm. (10 111.), 339 49 
 
 G 
 
 Gillette V. Wiley, 126 111., 310; 19 N. E. R., 287 94 
 
 Greenwood et al. v. Greenwood et al., 178 111., 387; 53 N. E. 
 
 R., 101 130 
 
 H 
 
 Harper v. Tidholm, 155 111., 370; 40 N. E. R., 575 200 
 
 Helm V. Boyd, 124 111., 370; 16 N. E. R., 85 402 
 
 Herrick v. Lynch, 49 111., App., 657 77 
 
 Herrington v. McCollum, 73 111., 476 175 
 
 Hilt V. Heimberger, 235 111., 235 442 
 
 Hoeffer et al. v. Clogan et al., 171 111., 468; 49 N. E. R., 527 .. 331 
 
 Hunt V. Fowler, 121 111., 269 322 
 
 J 
 
 Johnson v. Gibson and Others, 116 111., 294; 6 N. E. R., 205 61 
 
 K 
 
 Keith et al. v. Henkleman et al., 173 111., 137 ; 50 N. E. R., 692 24 
 
 Kelly et al. v. Galbraith, 186 111., 592 ; 58 N. E. R., 431 27 
 
 Kingman & Co. v. Mowry et al., 182 III., 256; 55 III., 330 259 
 
 Kingsbury v. Burnside, 58 111., 310 290 
 
 Knobloch v. Mueller, 123 111., 554; 17 N. E. R., 696 190 
 
 L 
 
 Labadie v. Hewitt, 85 111., 341 19 
 
 Lantry v. Lantry, 51 111., 458 286 
 
 Lanzit V. J. W. Sexton Mfg. Co., 184 111., 326; 56 N. E. R., 393. . 368 
 
 M 
 
 Mason v. Bauman, 63 111., 76 338 
 
 Massey and Others v. Huntington, 118 111., 80; 7 N. E. R., 369. . 306 
 
 McClure v. Otrich, 118 111., 320; 8 N. E. R., 784 408 
 
 McVey v. McQuality, 97 111., 93 355 
 
 Miller v. Markel, 21 111., 153 79 
 
 Miller v. Whelan, 158 111., 544; 43 N. E. R., 59 325 
 
 Minke v. Hopeman, 87 111., 450 4 
 
 Morrison v. Herrick, 130 111., 631; 22 N. E. R., 537 430 
 
 N 
 
 Nelson v. Pinegar, 30 111., 473 390 
 
 O 
 
 Oehler et al v. Levy, 234 111., 595; 85 N. E. R., 271 459 
 
TABLE O^ CASH;s XI 
 
 P 
 
 Pagb 
 
 Parker v. Benjamin, 53 111., 255 213 
 
 Patten v. Campbell, 70 111., 72 203 
 
 Pond V. Sheehan, 132 111., 313; 23 N. E. R., 1018 432 
 
 Peoples Bk. v. Gridley, 91 111., 457 195 
 
 R 
 
 Richardson v. Eveland et al., 126 III., 37; 18 N. E. R., 308 113 
 
 Richardson v. Gregory, 126 111., 166 ; 18 N. E. R., 777 88 
 
 Roseboom et al. v. Whittaker et al., 133 111., 81; 33 N. E. R., 339.. 67 
 
 Roseman v. Miller, 84 111., 297 180 
 
 S 
 
 Sands V. Sands, 112 111., 225 208 
 
 Seeley et al. v. Baldwin et al., 185 III, 211; 56 N. E. R., 1075 13 
 
 Sheridan v. Colvin, 78 111., 237 2 
 
 Snyder v. Partridge et al., 138 111., 173; 39 N. E. R., 851 160 
 
 Steinmeyer et al. v. Schroeppel, 226 111., 9; 80 N. E. R., 564 214 
 
 Summers et al v. Pligley, 191 111., 193; 60 N. E. R., 969 281 
 
 T 
 
 Tanton v. Keller, 167 111., 129; 47 N. E. R., 276 ■. . . 124 
 
 Thomas v. Whitney, 186 111., 235 ; 37 N. E. R., 808 347 
 
 V 
 
 VanBuskirk et al v. Van Buskirk, 148 111., 9; 35 N. E. R., 383. .. 338 
 
 Village of Dwight v. Hayes, 150 111., 373; 37 N. E. R., 218.... 454 
 Village of Itasca et al. v. Schroeder, 182 111., 192; 55 N. E. 
 
 R., 50 449 
 
 W 
 
 Waterman et al. v. Alden et al., 144 111., 90; 32 N. E. R., 972.. 385 
 
 Wells V. Lemmey, 88 III., 174 8 
 
 White V. Sherman, 168 111., 589; 48 N. E. R., 128 368 
 
 Wilbanks v. Wilbanks, 18 111., 17 109 
 
 Wilkie et al. v. City of Chicago, 188 111., 444; 58 N. E. R., 1004. . 33 
 
 Wilson V. Byers, 77 111., 76 347 
 
 Wollensack v. Briggs, 20 111., App., 50 415 
 
SEC. V] BINNS Z', LA FORGE 31'3 
 
 SECTION 5.— NATURE OF CESTUI QUI TRUST'S 
 
 ESTATE. 
 
 BINNS V. LA FORGE et al. 
 191 111., 598; 61 N. E. R., 383. 
 
 [Supreme Court of Illinois. Oct. 24, 1901.] 
 
 Garrett M. La Forge died in 1891 leaving a last will and 
 testament, which, in part, is as follows: "First. It is my 
 will that all my debts shall be fully paid by my executors, 
 and all notes and accounts or choses in action, of any and all 
 kinds, shall be collected by them as soon after my decease as 
 practicable. They shall also divide my real estate among my 
 heirs, such as can be satisfactorily divided, and sell the balance, 
 and tq make, execute, and deliver to the purchaser or pur- 
 chasers thereof good and sufilicient deeds of conveyance." 
 "Fourth. I give and bequeath to Kate A. Sharp, David H. 
 La Forge and Gertrude M. Talbott nine thousand six hundred 
 dollars ($9,600), to be divided equally among them, in ad- 
 dition to the following bequest : I give, devise and bequeath 
 to the heirs of M. R, La Forge, deceased, one-eighth (%) oi 
 my net estate, less the indebtedness of M. R. La Forge to me, 
 to be divided as follows : One-half to Catherine A. La Forge, 
 his widow, and the balance to be equally divided among his 
 children. Fifth. To my daughter Emily and her children. 
 Harry C. Thompson, Jennie Cutler, and Garrett W. Thompson, 
 and to Kate A. Sharp and David H, La Forge and Gertrude 
 Talhott, the remaining seven-eighths (^) of my estate, to 
 be divided equally, share and share alike, and any indebtedness 
 any of them owe me or my estate shall apply in part payment 
 of their respective shares." "Seventh. My executors are hereby 
 directed and authorized to loan upon or invest in real estate all 
 the share or interest of said Gertrude Talbott under this my 
 will, and pay to her yearly the income of said investment during 
 her life, and at her death to be paid to her child or children, 
 if any survive her. If she dies having no child or children, 
 then the same shall be paid in equal parts to her surviving 
 brother and sister. * * * i hereby nominate and appoint 
 David H. La Forge and Harry C. Thompson executors of 
 
314 BINNS V. LA FORGE [CHAP. IX 
 
 this my last will and testament, in whom having implicit con- 
 fidence it is my wish and order that they shall not be re- 
 quired to give bond. And my executors shall have full power 
 and authority to collect all debts due me, and to execute all nec- 
 essary receipts, releases, and acquittances of any mortgage or 
 other debts due me; and for the purpose of selling my real 
 estate, or any part thereof, they are hereby vested with and 
 shall have full power and authority to make, execute, and 
 deliver deed or deeds of conveyance to the purchaser or pur- 
 chasers, or to any person or persons entitled to the same under 
 this my last will." Said will was duly admitted to probate, 
 and David H. La Forge and Harry C. Thompson, the exe- 
 cutors therein named, duly qualified. David H. La Forge, 
 Kate A. Sharp, and Gertrude M. Talbott are the children of 
 M. R. La Forge, deceased, a son of Garrett M. La Forge de- 
 ceased who died prior to the time of the death of his father. 
 
 In January, 1892, Gertrude M. Talbott and Benjamin S. Tal- 
 bott executed and delivered the following request in writing to 
 the executors of said estate: "To David H. La Forge and 
 Harry C. Thompson, executors of the last will and testa- 
 ment of Garrett M. La Forge, deceased, and trustees under 
 said will : The undersigned, Gertrude M. Talbott and Ben- 
 jamin S. Talbott, her husband, of the county of Logan and 
 state of Illinois (the said Gertrude M. Talbott mentioned in 
 said last will and testament), would respectively request that 
 the principal sum to be invested for the benefit of her, the 
 said Gertrude M. Talbott, during the period of her natural 
 life,. and after her death to her child or children, as provided 
 in and by said will, be invested in the purchase of the south- 
 east quarter (S. E. J4) of section nineteen (19), township 
 twenty (20) north, range four (4) west of the third (3d) P. 
 M., in the county of Logan and state of Illinois at the pur- 
 chase price and sum of twelve thousand dollars ($13,000), 
 which said sum is the fair cash market value of said land, 
 and the said land is fully worth the same ; that the undersigned 
 resided upon said land and know its producing powers and 
 value and know that in no other way could said money be 
 so satisfactorily invested for the best interest of all persons 
 
SliC. V] BINNS V. LA FORGE 315 
 
 now or at any future time interested in said matter ; that, 
 in making said investment at the request of the undersigned, 
 they agree and bind themselves to hold the said trustees and 
 executors free and harmless and clear from all trouble, fault- 
 finding, loss, litigation, and expenses, of every nature, kind, and ' 
 character in the future that could in any manner arise by reason 
 of making of said investment as herein requested and ex- 
 pressly covenant and agree to pay all taxes and assessments 
 that may be at any future time levied upon the said land or 
 any part thereof, and keep the buildings thereon insured at 
 about the value thereof in a good solvent insurance company, 
 and to keep the buildings and fences in good repair, and to 
 so conduct their financial business as to prevent the said lands 
 from being incumbered in any way by mortgages, judgments, 
 or liens of any description, on account of the debts now or at 
 any future time to be contracted by them, the undersigned, or 
 either of them. And it is further expressly agreed and cove- 
 nanted and stipulated that in the event of the undersigned, 
 Gertrude Talbott, failing or neglecting to pay said taxes and 
 assessments levied or to be levied upon the said land, or any 
 part thereof, during her natural life, or allowing or creating 
 any liens upon the same, or any part thereof, then in that event 
 the life estate of the said Gertrude M. T^albott in and to said 
 land shall immediately cease and become terminated, and the 
 said land, and the title thereto, shall revert and rest in said 
 trustees, to wit, the said David H. La Forge and Harry C. 
 Thompson, and they shall be entitled to the immedate posses- 
 sion of the same, and shall have the right to rent said lands 
 and collect the rents thereof, and apply the same to the pay- 
 ment of all valid liens or incumbrances upon and against said 
 lands, and to the necessary repairs of the fences and buildings 
 thereon, and the insurance of said buildings, and to retain 
 out of all of said.moneys coming to their hands the same com- 
 missions that are allowed administrators out of personal prop- 
 erty under the statute law of the state of Illinois, rendering 
 the balance, if anv, to the said Gertrude M. Talbott. In con- 
 sideration of the making of said investment, as aforesaid, the 
 said Gertrude M. Talbott hereby agrees to pay to Said execu- 
 
316 BINNS V. LA FORGg [CHAP. IX 
 
 tors the sum of six per cent, per annum on the said sum of 
 twelve thousand dollars ($12,000) until the said amount of 
 interest, at the rate of six per cent, aforesaid, shall, with the 
 sum in the hands of the said executors and trustees so afore- 
 said to be invested for the use of the undersigned, Gertrude 
 M. Talbott, under the provisions of the said last will and tes- 
 tament, amount to the said sum of twelve thousand dollars 
 ($12,000)." 
 
 Thereupon the following deed was executed by said execu- 
 tors and delivered to Gertrude M. Talbott: "David H. La 
 Forge and Harry C. Thompson, executors of the last will and 
 testament of Garrett M. La Forge, deceased, by virtue of the 
 power vested in them by said last will and testament, and 
 for the consideration of $12,000 and the covenants, conditions, 
 and agreements hereinafter made a part thereof, this con- 
 veyance being made subject thereto, convey and quit-claim to 
 Gertrude M. Talbott, of the county of Logan and state of 
 Illinois, all interest, subject to the conditions and limitations- 
 hereinafter set forth, in the following-described real estate : 
 The southeast quarter (S. E. 34) of section nineteen (19), 
 township twenty (20) north, range four (4) west of the third 
 (3d) P. M., Logan county, Illinois for and during her natural 
 life, and at her death to her child or children surviving her. But, 
 if the said grantee herein dies leaving no children her surviving, 
 then in that event said real estate herein above mentioned and 
 described, and the title thereto and all the interest therein, to 
 revert to and vest in the said parties for the uses and purposes 
 and trusts in said will and testament expressed. This deed is 
 made expressly subject to all the conditions, provisions, agree- 
 ments, covenants, and stipulations contained in the request and 
 paper hereto attached, signed by said Gertrude M. Talbott and 
 her husband, and which is expressly made a part hereof, and 
 this conveyance is made and the title to said land vested in said 
 second party by said first party, and the same received by her 
 upon all said conditions, limitations, covenants, agreements, 
 and stipulations, and expressly subject thereto, and not other- 
 wise ; said above described real estate being situated in the 
 county of Logan and state of Illinois." 
 
SEC. V] BINNS V. LA FORGE 317 
 
 Shortly afterwards, upon a similar request in writing signed 
 by Gertrude M. Talbott and her husband, David H. La Forge 
 and Harry C. Thompson, as executors, conveyed another 160 
 acres of land which they had purchased, and 6 lots in the 
 village of New Holland, to said Gertrude M. Talbott, in con- 
 sideration of $9,600. The deeds conveying said premises con- 
 tained similar provisions to those contained in the deed here-; 
 inbefore set out in full. Gertrude M. Talbott built a dwelling 
 house costing about $3,000 on said lots, the total cost of the 
 house and lots being $3,000. After the execution of these 
 deeds Gertrude M. Talbott took possession of said lands, and 
 leased the same. On October 31, 1898, she leased the south- 
 east quarter of section 19, township 30 north, range 4 west 
 of the third principal meridian, to Samuel G. Baughan, from 
 March 1, 1899 to March 1, 1900, and on November 30, 
 
 1898, she 'assigned said lease to James Ryan to secure 
 the sum of $631.05 due him by her, which was evidenced 
 by a promissory note bearing date November 30, 1898. On 
 June 10, 1899, appellant, Hugh A. Binns, recovered a judgment 
 in the circuit court of Logan county. 111., for $1,000 against 
 Gertrude M. Talbott and Benjamin S. Talbott her husband, 
 upon which execution was issued and returned, "No property 
 found." After June . 14, 1899, judgments were confessed 
 against Gertrude M. Talbott and Benjamin S. Talbott, in 
 amounts aggregating the sum of $13,000. On the 16th day 
 of June, 1899, Gertrude M. Talbott and her husband recon- 
 veyed to David H. La Forge and Harry C. Thompson, execu- 
 tors of the last will and testament of Garrett M. La Forge, de- 
 ceased, all the lands and lots theretofore conveyed to them by 
 said executors. David H. La Forge and Harry C. Thompson, 
 as executors, upon receipt of said conveyance, immediately took 
 possession of the lands, and commenced renting the same and 
 receiving the rents. Gertrude M. Talbott remained in posses- 
 sion of the residence in New Holland. At the September term, 
 
 1899, of the circuit court of Logan county, a bill in chancery 
 was filed by David H. La Forge and Harry C. Thompson, as 
 executors of the last will and testament of Garrett M. La 
 Forge, deceased, against Gertrude M. Talbott, Benjamin S. 
 
318 BINNS V. I,A FORGE [CHAP. IX 
 
 Talbott, James Ryan, and the various judgment creditors of 
 Gertrude M. Talbott and Benjamin S. Talbott, as parties defen- 
 dant, setting up the proceedings as above stated, and praying 
 that the rights of said complainants under the will of Garrett 
 M. La Forge, deceased, and the said several conveyances, 
 be determined, and that the liens of said judgments be re- 
 moved as clouds, upon their title. Afterwards, by order of 
 court, the bill was amended, making the children of Gertrude 
 M. Talbott parties defendant. Answers were filed, and after- 
 wards cross bills were filed by appellant and two other judg- 
 ment creditors, in the nature of creditors' bills. James Ryan 
 also filed a cross bill asking that the rents of the land covered 
 by the lease assigned to him be applied in payment of his debt, 
 to which cross bill answers were filed, and, upon a hearing, the 
 court entered a decree finding that the property set aside by 
 the will of Garrett M. La Forge, deceased, for the benefit of 
 Gertrude M. Talbott, was held in trust by the executors named 
 in the said will ; that said trust was an active and personal 
 trust ; that the trustees were clothed with discretionary power, 
 which could only be exercised by them personally, under the 
 provisions of said will ; that in investing said estate in the 
 real estate described in said bill they were acting within the 
 discretionary power in them vested by the terms of the will, 
 and that they held the same as trustees, for the benefit of Ger- 
 trude M. Talbott and her children, under the limitations and 
 restrictions imposed by the terrhs of the said will ; that such 
 trustees could not divest themselves of the personal respon- 
 sibility attached to said trust by conveying said premises to 
 Gertrude M. Talbott for life and thereby giving her the control 
 and management thereof, and that the said request and deeds 
 were null and void and of no force and effect ; that said Ger- 
 trude M. Talbott, under the terms created by said will, took 
 no interest in the income arising from said estate until the same 
 was produced and placed in the hands of said trustees ; that 
 said trust was created by Garrett M. La Forge to furnish Ger- 
 trude M. Talbott and, her family with a support and main- 
 tenance; that the income from said trust estate, unless there 
 was an excess above what is required to properly and reason- 
 
SEC. V] BINNS V. liA FORGE 319 
 
 ably support her and her family, was not liable to the claim 
 of her creditors, whether on execution, by garnishment, or, 
 in equity, upon creditors' bill ; that the income now in the hands 
 of the trustees is income that has been accumulated during the 
 pendency of this suit, and which Gertrude M. Talbott has been 
 deprived of during that period; that the complainant, Ryan, 
 in the cross bill filed by him, must, as to the income held now 
 in the hands of the trustees, be held to be an equitable assignee 
 of Gertrude M. Talbott by her own voluntary act, and as such 
 has a prior claim to all other creditors complainant in the 
 various cross bills herein, and decreed that $60 per month, 
 as a reasonable sum for the support and maintenance of Ger- 
 trude M. Talbott and her family, be paid to her in person, 
 in installments of $30, on the 1st and 15th of each month, 
 commencing with February 1, 1901 ; that said income, to the 
 extent of $60 per month, shall be held free from all claims 
 upon the same, whether voluntary, by assignment, or involun- 
 tary, as by execution, garnishment creditors' bill or otherwise, 
 and shall be paid to her in person, upon her individual receipt, 
 and that out of the remainder of said income, after the pay- 
 ment of said $60 a month, said trustees first pay the taxes, 
 insurance, and repairs upon said property; secondly, the cost 
 of this suit, including $50 as guardian ad litem fees; thirdly, 
 the amount due James Ryan.; and, lastly, the residue, if any, 
 pro rata to the various judgment creditors, complainants in 
 said cross bills, — from which decree the appellant has prosecu- 
 ted an appeal to this court. 
 
 Hand, J. (after stating the facts). This is an appeal by the 
 complainant in a cross bill in the nature of a creditors' bill, 
 seeking to apply in payment of a judgment against Gertrude M. 
 Talbott and Benjamin S. Talbott, her husband, the income 
 upon certain trust funds in the hands of the executors of Gar- 
 rett M. La Forge, deceased, set aside for the benefit of said 
 Gertrude M, Talbott by Garrett M. La Forge, her grandfather, 
 in his will. 
 
 1. David H. La Forge and Harry C. Thompson, as execu- 
 tors, by virtue of the terms of the will of Garrett M. La Forge, 
 deceased, hold in trust all of the property given to Gertrude 
 
230 BiNNS i: LA FORGE [chap. IX 
 
 M. Talbott by said will, whether the same is real or personal. 
 The execution of the trust thus created requires that said 
 executors, as trustees, retain the possession, control, and man- 
 agement of said estate, and the only interest Gertrude M. 
 Talbott has in said estate is the right to receive from said 
 trustees the yearly income thereof during her life. The trust 
 is an active one, and the trustees, after accepting the trust 
 and taking possession of the property, had no power to delegate 
 such trust, and the attempt to convey the subject-matter there- 
 of to Gertrude M. Talbott was void and of no effect' The case 
 must therefore be considered the same as though said deeds 
 had never been made. In Williams v. Evans, 154 111. 98, 39 
 N. E. 698, Mrs. Williams conveyed her estate to trustees upon 
 condition that they should pay her the income thereof during 
 her life, and upon her death should use the body of the estate 
 with which to purchase a site and erect thereon a church. 
 After the execution of the trust deed and the receipt of the 
 estate the trustees surrendered the estate into the custody of 
 Mrs. Williams. On page 106, 154 111. page 700, 39 N. E., it is 
 said : "Upon the execution and delivery of the trust instru- 
 ment and the property therein described, by Mary Williams 
 to the trustees, the rights of the parties became fixed, and the 
 trustees, after accepting the trust, had no authority to deliver 
 the possession of any of the property named in the trust in- 
 strument to Mrs. Williams, and the fact that they disregarded 
 their duty in this regard did not affect the validity of the 
 transaction as originally made. If there was a complete deliv- 
 ery of the trust instrument, and the property therein described, 
 to the trustees, as we think there was, the subsequent acts and 
 declarations of Mrs. Williams and the trustees caiinot defeat 
 the trust." 
 
 2. Can the income upon the trust fund, which the will 
 provides shall be paid by the trustees to Gertrude M. Talbott 
 during her life, be reached while in the hands of the trustees 
 by her creditors by creditors' bill? We think not, as by 
 statute (1 Starr & C. Ann. St. c. 22 § 49) trust property/'when 
 such trust has, in good faith, been created by, or the fund so 
 held in trust has proceeded from, some person other than the 
 
SBC. V] BINNS V. LA FORGE 321 
 
 defendant himself," is expressly excepted from property which 
 may be reached by a creditors' bill. The trust fund in this case 
 proceeded from Garrett M. La Forge, a person other than 
 Gertrude M. Talbott, and falls within the letter and the spirit 
 of this statute, and is protected. In Re Qua. v. Graham, 187 
 111. 67, 58 N. E. 357, 53 L. R. A. 641, it is said trusts thus 
 created "rest in a large part upon the distinct ground that a 
 creditor is not defrauded, and therefore has no cause of com- 
 plaint, because the owner of property, in the free exercise of 
 his will, so disposes of it that the object of his bounty, who 
 parts with nothing in return, has a sufficient income provided 
 for and applied to his life support." The chancellor, in con- 
 struing this statute, adopted the New York rule, which is based 
 upon an express statute, and held only so much of the income 
 from this trust estate exempt as may be necessary for the main- 
 tenance of the beneficiary, Gertrude M. Talbott, and her child- 
 ren who were dependent upon her for support. Whether or 
 not such rule should be ingrafted upon our statute we need not 
 now consider, as no cross errors have been assigned, and such 
 error,, if any it is, was not prejudicial to appellant, and he 
 cannot complain. 
 
 3. The statute is not designed to protect the trust fund from 
 the voluntary alienation of the cestui que trust, and, there being 
 no restriction in this will, there is no reason why Gertrude M. 
 Talbott might not in equity assign said income, or a part there- 
 of, to James Ryan, as security for a debt which she owed him. 
 This is, in effect, all that was done by the assignment to him 
 of said lease. 
 
 4. The minor children of Gertrude M. Talbott were parties 
 defendant to the original and cross bills, and we think the 
 court properly appointed a guardian ad litem to defend for 
 them, and ordered him paid, as such guardian ad litem, out 
 of the funds in the hands of the trustees. Said minors were 
 interested in the subject-matter of the suit, they being the 
 owners of the body of the estate, subject to the right of their 
 mother to receive the income therefrom during her life, and it 
 was proper their interests therein should be protected by a 
 guardian ad litem. 
 
322 HUNT V. FOWLER [cHAP. IX 
 
 5. The contention of the appellant that he is entitled to a 
 preference over the other cross complainants, by reason of 
 the fact that his cross bill was filed firSt, is without force. 
 The fund and all the parties interested, including the appellant 
 and the other judgment creditors, were brought into court 
 by the original bill. Under such circumstances no one judg- 
 ment creditor, by cross bill, could obtain any advantage over 
 the other judgment creditors by reason of the fact that his 
 cross bill was the one, in point of time, which was first filed 
 with the clerk. 
 
 Neither do we concur in the contention of appellant that the 
 transactions between the trustees and Gertrude M. Talbott 
 amounted to an equitable assignment of the future income of 
 said trust estate for the benefit of her creditors. The language 
 of the request, after stating that the title should revert to the 
 trustees, is : "And they shall be entitled to the immediate pos- 
 session of the same, and shall have the right to rent said lands 
 and collect the rents thereof, and apply the same to the pay- 
 ment of all valid liens, or incumbrances upon and against 
 said lands, and to the necessary repair of the fences and 
 buildings thereon, and the insurance of said buildings,'' 
 etc. This provision was made for the protection and 
 benefit of said trustees, and n6t for the benefit of the creditors 
 of Gertrude M. Talbott, and such creditors can take no bene- 
 fit by reason thereof. 
 
 We find no reversible error in this record. The decree of 
 the circuit court will therefore be affirmed. Decree affirmed. 
 
 SECTION 6.— CHARITABLE TRUSTS. 
 
 HUNT V. FOWLER, 
 lai 111., 269. 
 
 [Supreme Court of Illinois. June 17, 1887.] 
 
 Mr. Justice Sheldon delivered the opinion of the Court : 
 
 This was a bill in chancery, filed by the heirs at law of 
 
 Esther S. Chapman, deceased, against the Attorney General 
 
 of the State, and the executors of the will of the decedent, to 
 
 have a certain portion of the estate left by her, declared to 
 
SEC. Vl] HUNT V. FOWLER 323 
 
 be intestate, and to belong to the complainants, as heirs at law 
 of the decedent. 
 
 The will, executed March 15, 1883, after making sundry 
 bequests to various persons other than the complainants, 
 concluded with this residuary clause: -'All the residue of 
 my estate I devise and bequeath unto the legatees herein- 
 before named, in equal proportions, excepting saidOakwood 
 Seminary and said- Sylvester M. Chapman." Subsequently 
 on April 5, 1885, the testatrix executed a codicil, which con- 
 tained this residuary clause. "All the rest and residue of 
 my estate including that which may lapse for any cause, I 
 direct to be invested or loaned, upon the best terms possible, so 
 as to produce the largest income and said income to be distribu- 
 ted annually among the worthy poor of the city of La Salle, 
 in such manner as a court of chancery may direct." Executors 
 of the will were appointed. The decedent left both real and 
 personal estate. 
 
 The bill alleges that the city of La Salle is situated in the 
 town of La Salle, and includes but a small portion of the 
 territory of the town, and that there is not now, nor has 
 there ever been, in said city, any organization or association, 
 voluntary or otherwise, for the distribution of charity to the 
 poor of the city, and that the municipal authorities have no 
 duties imposed upon them to provide for the poor, and claims 
 that the residuary clause of the codicil is incapable of execu- 
 tion by reason of the uncertainty of the beneficiaries in- 
 tended by the testator, and void, and that, in consequence, 
 all the rest and residue of the estate, both real and personal, 
 after the payment of the general and specific legacies, was 
 intestate estate. A demurrer to the bill was interposed by 
 the Attorney General and the executors, which was over- 
 ruled by the court, whereupon the executors answered, de- 
 nying the invalidity of the residuary clause of the codicil, 
 or that it was incapable of execution, and setting up, that 
 even if such were the case, the rest and residue of the 
 estate must be distributed in accordance with the residuary 
 clause of the will. Thereupon, the bill was amended by 
 making the residuary legatees specified in the will, addi- 
 
334 HUNT W. FOWI<ER [chap. IX 
 
 tional parties defendant. Subsequently, a hearing was had, 
 upon pleadings and proofs, and a decree was entered, find- 
 ing that the residuary clause of the codicil was ineffectual 
 to dispose of the property, but that it nevertheless revoked 
 the residuary clause of the will, and declaring that the real 
 estate of which the testatrix died seized, belonged to the 
 complainants as her heirs at Jaw, and directing that the rest and 
 residue of the personal estate should be distributed to the 
 complainants as intestate estate. From this decree, the 
 Attorney General, the executors, and a portion of the leg- 
 atees specified in the residuary clause of the will, have prose- 
 cuted this appeal. 
 
 There is, in American courts, much diversity of decision 
 upon the subject of charitable trusts. In express private 
 trusts there is not only a certain trustee who holds the legal 
 estate, but there is a certain specified cestui que trust, 
 clearly identified, or made capable of identification, by the 
 terms of the instrument creating the trust. It is an essen- 
 tial feature of public or charitable trusts, that the benefi- 
 ciaries are uncertain, — a class of persons described in some 
 general language, often fluctuating, changing in their indi- 
 vidual numbers, and partaking of a quasi public character. 
 (2 Pomeroy's Eq. Jur. sec. 1018.) In some of the States, 
 the equitable system of distinctively charitable trusts is 
 not recognized, and the courts apply only the rules appli- 
 cable to express private trusts. In other States, the "Stat- 
 ute of Charitable Uses" of 43 Elizabeth, chap. 4, has been 
 adopted or repealed, and thereby decisions have been influ- 
 enced. And in other cases, local legislation or supposed 
 local policy, to more or less extent, enters into adjudica- 
 tions. In another, and, as believed, the larger, portion of the 
 States, the system of charitable trusts as administered in 
 the English court of chancery, in the exercise of its ordi- 
 nary judicial power, prevails, with variation in regard to 
 the element of certainty in the trustee and the object of 
 the charity. A classification of the decisions in the several 
 States will be found in 2 Perry on Trusts, sec 748, in note, 
 and 2 Pomeroy's Eq. Jur. sec 1029, and note. 
 
SEC. Vl] HUNT V. POWLiJR 335 
 
 The prerogative power of the Crown, exercised through 
 the Lord Chancellor, as the representative of the king,, as, 
 where there is a gift to charity generally, without appoint- 
 ment of a trustee, and the bounty is devoted to some par- 
 ticular charity, or where there is a gift to a particular char- 
 itable purpose which cannot be effectuated, and it is ap- 
 plied to some other charitable use, cy pres the original pur- 
 pose, is regarded not as a judicial, but a ministerial, pre- 
 rogative function. This prerogative power, courts in this 
 country do not assume to exercise. 
 
 Were this subject of charitable trusts a new question with 
 us, there would be opened up a wide and interesting field of 
 discussion, in order for the establishment of the proper rule 
 in this regard. But we are saved labor in this respect, from 
 the ground having heretofore been gone over by this court, 
 and the rule applicable to charitable trusts having been es- 
 tablished to be that which is administered in the court of 
 chancery in England, in the exercise of its ordinary juris- 
 diction as a court of equity. This was done in the case of 
 Heuser v. Harris, 42 111. 425, and where it was recognized 
 that the statute of 43 Elizabeth, chap. 4, had been adopted 
 in this State. 
 
 The entire contention in this case arises upon the con- 
 struction, validity and effect of this residuary clause of the 
 codicil. It is insisted, this clause is void for uncertainty as 
 to the beneficiaries. This is not a bequest to charity gen- 
 erally, or to the poor generally, but to the worthy poor of 
 the city of La Salle. The class here is definite — the worthy 
 poor of the city of La Salle — but the individuals of the class 
 to whom the bounty is to be distributed are uncertain. 
 There is always this uncertainty as to individuals in the 
 case of public charities, and it is this feature of uncertainty 
 which distinguishes public charities from private charities, 
 — charitable trusts from private trusts ; and to hold char- 
 itable gifts to be void because of such uncertainty, is to 
 reject this whole distinctive doctrine of charitable trusts. 
 2 Redfield on Wills, 544, (66.) 
 
 In the case of a charitable bequest, it is immaterial how 
 
336 HUNT V. FOWLBR [CHAP. IX 
 
 vague, indefinite and uncertain the objects of the testator's 
 bounty may be, provided there is a discretionary power 
 vested in some one, over its application to those objects. 
 (Domestic and Foreign Missionary Society's Appeal, 30 Pa. 
 St. 425 ; Perry on Trusts, sec 732.) It is denied that there 
 is any such discretionary power here given, and White v. 
 Fisk, 22 Conn. 31, is cited in support of such denial. The 
 bequest in that case was: "Any surplus income that may 
 remain, to the extent of $1,000 per annum, I direct to be 
 expended by my said trustees, for the support of the indi- 
 gent, pious young men preparing for the ministry in New 
 Haven." The decision was, that the gift was void, as the 
 objects of the benefaction were indefinite, and that no 
 power was conferred on the trustees to make them definite 
 by selection. This case, though meeting with seeming ap- 
 proval in Grimes' Exrs. v. Harmon, 35 Ind. 198, has been 
 disapproved by other high authorities. See Perry on Trusts, 
 sees. 713, 720, 748, note 1; 2 Redfield on Wills, (2d ed.) 
 541, note; Hisketh v. Murphy, 36 N. J. Eq.- 304. The lat- 
 ter case especially speaks of White v. Fisk, as a case not 
 likely to be followed. 
 
 In Hisketh v. Murphy, the testator's will empowered and 
 directed the trustees to employ the arinual income of the 
 fund "for the relief of the most deserving poor of the city of 
 Patterson aforesaid, forever, without regard to color or sex ; 
 but no person who is known to be intemperate, lazy, im- 
 moral or undeserving, to receive any benefit from the said 
 fund. It was objected that the gift could not be applied to- 
 its objects, and was void, because the will did not confer 
 upon any one the power of ascertainment of the individuals 
 who should receive the benefit of the bequest. But the 
 court held that the power given the trustee, by the will, to 
 distribute the fund, carried with it, by necessary implication, 
 the power to select the beneficiaries from the designated 
 class, and upheld the bequest. We entirely agree with the 
 criticism there made by Chief Justice Beasley, upon the 
 case of White v. Fisk, that there was a mistaken assump- 
 tion on the part of the court in that case that there was no 
 
SEC. Vl] HUNT V. FOWLER 337 
 
 power to select the objects of the charity, lodged by the 
 testator in the trustees, — that when a power is conferred 
 on the trustees to distribute the fund to members of a class 
 such members having certain qualifications which can be 
 ascertained only by the exercise of judgment and discretion, 
 as the act of distribution cannot be performed except after 
 such ascertainment of the particular beneficiaries, the prin- 
 cipal power to distribute the moneys carries with it the 
 incidental and necessary power of selection. And this, upon 
 the ordinary doctrine that when an act is authorized to be 
 done by a trustee or other agent, every authority requisite 
 to the doing of such act is, by intendment of law, comprised 
 in such grant of power. See Pickering v. Shotwell, 10 Pa. 
 St. 23, that the power in the trustee to act at discretion 
 need not be expressly given, if it can be implied from the 
 nature of the trust. In the later case of Erskine v. White- 
 head, 84 Ind. 357, the decision in Grimes v. Harmon does 
 not seem to be approved in its full extent. 
 
 In Heuser v. Harris, supra, the bequest of money was "to 
 the poor of Madison county,'' the interest only to be used, 
 with no appointment of a trustee. As the county court of 
 Madison county was charged by law with the support of the 
 paupers in the county, it was held, in that particular case, 
 that the poor of the county were its paupers, and that the 
 fund should be held by the county court, to be applied for 
 the latter's support. It is not to be the inference from that 
 case that a charitable bequest to the poor necessarily means 
 to paupers, and that the trust is only to be executed by 
 somebody charged by law with the support of paupers. "A 
 bequest in trust for the poor inhabitants of a particular 
 place, parish or town, is a charitable trust for the poor not 
 receiving parochial or municipal aid and relief as paupers, 
 on the ground that the charity is for the poor and not for 
 the rich, and if it was applied to the maintenance of those 
 supported by the parish, town or county, it would relieve 
 wealthy tax-payers from their taxes, and not materially aid 
 the poor." Perry on Trusts, sec. 698. 
 
 It is said in 2 Redfield on Wills, (2d ed.) 805, that some 
 
338 HUNT V. FowivER [chap. IX 
 
 of the American cases have gone great lengths in carrying 
 into effect the intention of the testator, when there was 
 great indefiniteness in the objects of the trust: "that the 
 want of a trustee, in such cases, is never any obstacle in 
 the way of a court of equity carrying into effect any trust, 
 and more especially one of a charitable character!" 
 
 • Mr. Pomeroy, in speaking of the distinguishing features 
 between charitable and private trusts, says, that in the case 
 of the former, "not only may the beneficiaries be uncertain, 
 but that even when the gift is made to no certain trustee, so 
 that the trust, if private, would wholly fail, a court of 
 equity will carry the trust into effect, either by appointing 
 a trustee, or by acting, itself, in place of a trustee." 2 Pom- 
 eroy's Eq. Jur. sees. 1025, 1026. And see Brown v. Kelsey, 
 2 Cush. 243, and Washburn v. Sewall, 9 Mete. 280. 
 
 There can be no question of the general rule. But it is 
 said it does not apply in a case where there is such indefi- 
 niteness as to beneficiaries as here. Numerous are -the in- 
 stances which might be cited where there was the want oi 
 a trustee, and the court executed the trust in cases of equal 
 indefiniteness as here, as to the objects of the trust. As in 
 McCord V. Ochiltree, 8 Blackf. 15, where the legacy was 
 for the education of pious, indigent youths ; in Bull v. Bull, 
 8 Conn. 47, where the executors were to dispose of the resi- 
 due of the estate "among our brothers and sisters and their 
 children, as they shall judge shall be most in need of the 
 same, this to be done according to their best discretion," 
 and the executors died, never having exercised the power 
 nor executed the trust; in Williams v. Pearson, 38 Ala. 299, 
 where the beneficiaries named were "all the paupers and 
 poor children of two designated 'beats,' whose parents are 
 not able to support them ;" in Howard v. American Peace 
 Society, 49 Me. 288, where the gift was to the suffering poor 
 of the town of Auburn. Where a legacy is given to trustees 
 to distribute in charity, and they all die in the lifetime of 
 the testator, yet the legacy will be enforced in equity. 2 
 Story's Eq. Jur. sec. 1166 . 
 
 An extended collection of cases on the general subject 
 
SEC. Vl] HUNT V. FOWLBR 329 
 
 may be found in note to Hisketh v. Murphy, 35 N. J. Eq. 33, 
 and in 1 Jarman on Wills, 403, in note. Mr. Perry sums up, 
 as the result of the principles and authorities, that a "be- 
 quest for charity generally, * * * or to the poor gen- 
 erally, or to charity generally, with no trustees appointed, 
 will not be carried into effect by the courts in this country." 
 Perry on Trusts, sec. 739. That "if a testator makes a gen- 
 eral and indefinite bequest to charity, or to the poor, or to 
 religion, and appoints no trustee, but plainly refers such 
 appointment to the court, there would seem to be no im- 
 propriety in the court appointing a trustee, according to the 
 plain intent of the donor, leaving such trustee to find his 
 power in the will of the donor. But if a testator 'makes a 
 vague and indefinite gift to charity, and names no trustee, 
 and gives no power to the court to appoint one, there is 
 no power in the American courts to administer such 
 an inchoate and imperfect gift." (Id. sec. 731.) That "it 
 is immaterial how uncertain the beneficiaries and objects 
 are, if the court, by a true construction of the instrument, 
 has power to appoint trustees to exercise the discretion or 
 power of making the beneficiaries as certain as the nature of 
 the trust requires them to be." Id. sec. 733. See, also, 
 2 Story's Eq. Jur. sec. 1169. 
 
 In, the pf-esent case, the testatrix appoints no trustee to 
 distribute the fund, but expressly refers its distribution to a 
 court of chancery. The power of distribution, in our opin- 
 ion, carries with it the power to select the individuals to 
 whom distribution shall be made. The trustee appointed 
 by the court to make the distribution will have the inci- 
 dental power to select the beneficiaries, so that the case 
 stands the same as if the testatrix herself had appointed a 
 trustee to distribute the fund. The trustee to be appointed 
 by the court will, in efifect, be a trustee of her appointment, 
 made through the court of chancery. 
 
 Courts incline strongly in favor of charitable gifts and 
 take special care to enforce them. As observed by Mr. 
 Perry, (sec. 687,) charitable bequests are said to come 
 within that department of human affairs where the maxim. 
 
330 HUNT V. fowi,e;r [chap, ix 
 
 ut res magis valeat, quam pereat, has been, and should be, 
 applied; and further, (sec. 690) that until the statute of 
 distributions (22 Car. 2, chap. 13,) was enacted, the ordi- 
 nary was obliged to apply a portion of every intestate estate 
 to charity, on the ground that there was a general princi- 
 ple of piety and charity in every man. This shows the 
 favor in which charity is held in the law. There is to be 
 the most liberal construction of the donor's intention, in 
 support of a charitable donation. Charities have always re- 
 ceived a more liberal construction than the law will allow 
 in gifts to individuals. (2 Story's Eq. Jur. sec. 1165.) The 
 charity here is not vague and indefinite, but quite specific, — 
 to the worthy poor of the city of L,a Salle. Individuals of 
 the class named will ever be readily found to whom the 
 fund may be distributed. The trust is not difficult of exe- 
 cution, according to the intention of the testatrix. Instead 
 of herself naming a trustee to make the distribution of her 
 bequest, the testatrix -preferred that its distribution should 
 be made by a court of chancery, whose peculiar province it 
 is to effect the administration of trusts, and especially chari- 
 table trusts. There can be no doubt that the execution of 
 the trust by such court would be to effectuate the donor's 
 intention, — the aim which is always sought to be accom- 
 plished. 
 
 Under the principles, and the strong current of authorities, 
 which are properly applicable, we are fully satisfied that the' 
 bequest in question is a valid, charitable gift, and that it 
 should be carried into effect by a court of chancery, as the 
 testatrix expressly willed that it should be. The residuary 
 clause of the codicil being held vaUd, it follows that the 
 complainants take nothing as heirs at law, and are not en- 
 titled to maintain their bill. 
 
 The decree of the circuit court will be reversed, and the 
 cause remanded to that court with directions to dismiss the 
 bill. Decree reversed. 
 
 Ace. Crerar v. Williams, 145 111., 635; Trafton v. Block, 1S7 111., 
 36; Welch v. Caldwell, 226 111,, 488; Kimmerer v. Kimmerer 233 111' 
 327. 
 
SEC. Vl] HOEFFER V. CLOGAN 331 
 
 HOEFFER et al. v. CLOGAN et al. 
 
 171 111., 462; 49 N. E. R., 527. 
 
 [Supreme Court of Illinois. Feb. 14, 1898.] 
 
 Bill by Patrick Clogan against the Holy Family Church 
 
 and others for the construction of a will, and to determine 
 
 the validity of a devise and a bequest made by such will. 
 
 From a decree declaring the clauses of the will containing 
 
 such devise and bequest void, defendants James F. K. Hoeffer 
 
 and others appeal. 
 
 Cartwright, J. Andrew Clogan, of Chicago, died June 
 6, 1893, leaving a last will and testament, which was ad- 
 mitted to probate, and letters testamentary were issued to 
 the executor, James Clogan. The fourth and fifth clauses 
 of the will are as follows : "Fourth. I give and devise unto 
 the Holy Family Church (on West Twelfth street), its 
 successors and assigns, lot 56 in Sharp & Smith's subdi- 
 vision of block 42, in the Canal Trustees' subdivision of 
 the west one-half (W ^2) of the west one-half (W. yi) 
 of the northeast quarter (N. E. }i) of section seventeen 
 (17), town thirty-nine (39) north, range fourteen (14) east 
 of the third' principal meridian, in Chicago, Cook county, 
 Illinois, together with the building and improvements there- 
 on, in trust for the following purposes: To sell the same, 
 and expend the proceeds of said sale in saying masses for 
 the repose of my soul and the souls of my deceased wife, 
 ' Margaret Clogan, my mother-in-law Ellen Hurley, and my 
 brother-in-law, James Hurley. Fifth. I give and bequeath 
 unto the Holy Family Church (on West Twelfth street), 
 the sum of $1,000, in trust to be expended in saying masses 
 for the repose of my soul and the soul of my deceased 
 father, Patrick Clogan, mother, Julia Clogan, and sister, 
 Margaret Clogan." By the will the testator also directed 
 the expenditure of $250 in erecting a monument on his lot 
 in Calvary Cemetery, bequeathed $500. to his sister Mary 
 Daly, and devised certain real estate to his brother, Patrick 
 Clogan, and his nephew, the executor, James Clogan, and 
 by the seventh clause said James Clogan was made residu- 
 ary devisee. On March 17, 1896, said Patrick Clogan pur- 
 
332 HOEPFeR V. CLOGAN [CHAP. IX 
 
 chased from said James Clogan all his interest as residuary de- 
 visee in the property mentioned in the fourth clause of the 
 will, and afterwards filed the bill in this case, alleging the 
 above facts, and averring that there was no society or cor- 
 poration in Chicago, on West Twelfth street, known as the 
 Holy Family Church, but that there was an unincorporated 
 religious society known as the Holy Family Parish, which 
 had a church on West Twelfth street, and that the title 
 to said church was in the appellants, clergymen, who are, 
 respectively, rector, assistant rector, and treasurer of said 
 Holy Family Parish, and their successors, as such, in trust 
 for the purposes of the Society of Jesus,, including the 
 maintenance of the church for the benefit of the Holy 
 Family Parish. The Holy Family Church, James Clogan, in 
 his own right and as executor, Mary Daly, and appellants, 
 were made defendants. The prayer of the bill was that the 
 will should be construed, and the validity of the devise and 
 bequest to be expended in saying masses for the repose of 
 souls should be determined. James Clogan and Mary Daly 
 answered, admitting the allegations of the bill. The amend- 
 ed answer of appellants admitted the facts alleged in the 
 bill, and averred that the church referred to therein was 
 commonly known as the Holy Family Church, and was the 
 only one in Chicago of that name ; that the mass was a sol- 
 emn act of worship according to the belief and practice of 
 the Roman Catholic Church ; that mass was celebrated 
 several times each day at the said Holy Family Church, 
 and that whenever mass was so celebrated the doors of the 
 church were open, and such of the public as might desire to 
 worship at such celebration of mass were admitted to do 
 so. The cause was heard on the bill and answers so filed, 
 and the court decreed the fourth and fifth clauses of the 
 will null and void ; that the title to the lot therein described 
 was vested in Patrick Clogan, as grantee of the residuary 
 devisee ; and that the $1,000 mentioned in the fifth clause 
 should be paid to the residuary legatee, James Clogan, in 
 due course of administration. An appeal to this court was 
 prayed by appellants and allowed by the court. 
 
SISC. VI] HOEPPEE V. CLOGAN 333 
 
 Appellee Patrick Cldgan has moved to dismiss the appeal 
 for want of jurisdiction, and because appellants have no 
 interest in the cause. The purpose of the bill was to settle 
 the question whether the fee-simple title to the lot de- 
 scribed in the fourth clause of the will passed under that 
 clause, or whether the attempted devise was void, and the 
 title passed to the residuary devisee under the seventh 
 clause. The decree of the circuit court held the devise of 
 the freehold by the fourth clause void, and established title 
 in Patrick Clogan. A freehold is involved in the appeal from 
 that decree. Appellants are the officers of the Holy Family 
 Parish, and trustees representing the religious society to 
 which the devise was made. They were made defendants 
 to the bill as representing such society, and their official re- 
 lation to the parish and church makes them proper parties 
 to represent it in the question of the true construction of the 
 will, and the validity ,of the devise and bequest. The mo- 
 tion to dismiss the appeal is denied. 
 
 The devise and bequest were made to the Holy Family 
 Church, in trust for a specific purpose, which was that the 
 church expend the proceeds of the sale of the real estate 
 and the amount of the bequest in masses for the repose of 
 the souls of the persons named. They were not intended 
 as gifts to the church for its general uses, arid any other 
 application than that specified in the will would contravene 
 the purpose of the testator. This being so, it is claimed 
 that the trust is void, because it is a private trust, with the 
 souls of particular deceased persons as beneficiaries, none 
 of whom can come into court and call the trustees to ac- 
 count or enforce its execution, and also for want of a trustee 
 capable of taking legal title to the property. On the other 
 hand,, it is claimed that the devise and legacy are for a char- 
 itable use, within the meaning and spirit of the doctrine 
 on that subject, and, if this position is correct, the rules of 
 law which would invalidate them as an fexpress private 
 trust will not affect their validity. The doctrine of charit- 
 able uses has been repeatedly held to be a part of the law 
 of this sta'te. The equitable jurisdiction over such trusts 
 
334 HOeFFBR V. CLOGAN [CHAP. IX 
 
 was not derived from the statute of charitable uses (43 
 Eliz. c. 4), but prior to and independent of that statute 
 charities were sustained, irrespective of indefiniteness of 
 the beneficiaries, or the lack of trustees, or the fact that 
 the trustees appointed were not competent to take (Vidal v. 
 Girard, 2 How. 127; Heuser v. Harris, 42 111. 425). The stat- 
 ute, however, became a part of the common law of this 
 state. Heuser v. Harris, supra; Andrews v. Andrews, 110 
 111. 233; Hunt v. Fowler, 121 111. 269, 12 N. E. 331,, and 17 
 N. E. 491. The statute of charitable uses of Elizabeth has, 
 since its passage, been considered as showing the general 
 spirit and intent of the term "charitable," and the objects 
 which come within such general spirit and intendment are to be 
 so regarded. The definition given by Mr. Justice Gray in the 
 case of Jackson v. Phillips, 14 Allen, 539, was adopted and ap- 
 proved by this court in the case of Crerar v. Williams. 145 111. 
 625, 34 N. E. 467. It is as follows : "A charity, in a legal sense, 
 may be more fully defined as a gift, to be applied consistently 
 with existing laws, for the benefit of an indefinite number of 
 persons either by bringing their hearts under the influence of 
 education or religion, by relieving their bodies from dis- 
 ease, suffering, or constraint, by assisting them to establish 
 themselves for life, or by erecting or maintaining public 
 buildings or works, or otherwise lessening the burthens of 
 government. It is immaterial whether the purpose is called 
 charitable in the gift itself, if it is so described as to show 
 that it is charitable in its nature." Any trust coming within 
 this definition for the benefit of an indefinite class of per- 
 sons sufficiently designated to indicate the intention of the 
 donor, and constituting some portion or class of the public, 
 is a charitable trust. Among such objects are the support 
 and propagation of religion, and the maintenance of religious 
 services (Andrews v. Andrews, supra), to pay the expense 
 of preaching and salary of rectors (Alden v. St. Peter's 
 Parish, 158 111. 631, 42 N. E. 392), or the preaching of an 
 annual sermon in memory of the testator (Duror. v. Mot- 
 teux, 1 Ves. Sr. 320). The doctrine of superstitious uses 
 arising from the statute (1 Edw. VI. c. 14), under which 
 
SEC. vi] hob;P]?er v. ci^ogan 335 
 
 devises for procuring masses were held to be void, is of 
 no force in this state, and has never obtained in the United 
 States. In this country there is absolute religious equality, 
 and no discrimination, in law, is made between different 
 religious creeds or forms of worship. It cannot be denied 
 that bequests for the general advancement of the Roman 
 Catholic religion, the support of its forms of worship, or 
 the benefit of its clergy, are charitable, equally with those 
 for the support or propagation of any other form of religious 
 belief or worship. The nature of the mass, like preaching, 
 prayer, the communion, and other forms of worship, is well 
 understood. It is intended as a repetition of the sacrifice 
 on the cross, Christ offering Himself again through the 
 hands of the priest, and asking pardon for sinners as He 
 did on the cross ; and it is the chief and central act of wor- 
 ship in the Roman Catholic Church. It is a public and ex- 
 ternal form of worship, — a ceremonial which constitutes 
 a visible action. It may be said for any special purpose, 
 but from a liturgical point of view every mass is practically 
 the same. The Roman Catholic Church believes that Chris- 
 tians who leave this world without having sufficiently expiated 
 their sins are obliged to suffer a temporary penalty in the 
 other, and among the special purposes for which masses 
 may be said is the remission of this penalty. A bequest 
 for such special purpose merely adds a particular remem- 
 brance to the mass, and does not, in our opinion, change 
 the character of the religious service, and render it a mere 
 private benefit. While the testator may have a belief that 
 it will benefit his soul or the souls of others doing pen- 
 ance for their sins, it is also a benefit to all others who may 
 attend or participate in it. An act of public worship would 
 certainly not be deprived of that character because it was 
 also a special memorial of some person, or because special 
 prayer should be included in the services for particular 
 persons. Memorial services are often held in churches, but 
 they are not less public acts of worship because of their 
 memorial character; and in Duror v. Motteux, supra, the 
 trust for the preaching of an annual sermon in memeory of 
 
336 HOEPFER V. CEOGAN [CHAP. IX 
 
 the testator was held to be a charitable use. The mere fact 
 that the bequest was given with the intention of obtain- 
 ing some benefit, or from some personal motive, does not 
 rob it of its character as charitable. The masses said in 
 the Holy Family Church were public, and the presumption 
 would be that the publig would be admitted, the same as at 
 any other act of worship of any other Christian sect. The 
 bequest is not only for an act of religious worship, but it 
 is an aid to the support of the clergy. Although the money 
 paid is not regarded as a purchase of the mass, yet it is 
 retained by the clergy, and, of course, aids in the main- 
 tenarice of the priesthood. 
 
 In the case of Schouler, Petitioner, 134 Mass. 426, it was 
 held that a bequest of money for masses was a good, charit- 
 able bequest of the testatrix, the court said: "Masses 
 are religious ceremonials or observances of the church 
 of which she was a member, and come within the religious 
 or pious uses which are upheld as public charities." So, 
 in Pennsylvania, it has been held that a bequest to be ex- 
 pended in masses for the repose of souls is a religious or 
 charitable bequest under the statute. Rhymer's Appeal, 
 93 Pa. St. 142 ; Seibert's Appeal, 18 Wkly. Notes Cas. 276. 
 A recent case, decided in the Irish courts January 24, 1897, 
 is Attorney General v. Hall. It was unanimously held, 
 both in the exchequer and the court of appeals, that a be- 
 quest for saying masses for the soul of a deceased person 
 was a good charitable bequest. In New York and Wisconsin it 
 has been held that a trust of this character is void for the 
 want of a definite beneficiary to enforce its execution. Hol- 
 land V. Alcock, 108 N. Y. 312, 16 N. E. 305; McHugh v. 
 McCole (Wis.; decided Oct 22, 1897), 72 N. W. 631. But 
 'the decisions in those states are readily distinguishable 
 from the rule in this state. In New York charitable uses 
 were abolished by legislation, and in all valid trusts there 
 must be a definite and certain beneficiary to take the equit- 
 able title, unless the act of 1893, which is said to have resulted 
 from the decision in Tilden v. Green, 130 N. Y. 29, 28 N. 
 E. 880, has enlarged or relaxed the rule as to a definite 
 
SEC. Vl] HOEFFBR V. CI^OGAN 337 
 
 beneficiary. In Wisconsin all trusts are abolished by stat- 
 ute, except certain specific trusts, where there is certainly in the 
 beneficiaries, and in that state bequests have been held 
 to be void which have been uniformly sustained in this 
 court as for charitable purposes. The decision in McHugh 
 v. McCole, supra, was upon the ground that the doctrine 
 of charitable uses was 'not in force in that state, and that 
 a trust, to be sustained, must be of a clear and definite 
 nature, and the benficiary interest to every person therein 
 must be fully expressed and clearly defined upon the face 
 of the instrument. The will in that case gave a certain sum 
 of money to the Roman Catholic bishop of the diocese of 
 Green Bay, Wis., to be used and applied in specified amounts 
 for masses for the repose of testator's soul and the souls 
 of certain named persons. It was held invalid solely on 
 the ground that the provision amounted to a trust which, 
 under the statutes of that state, was invalid. It was said 
 that, if the testator had made a direct bequest of the sum 
 in question to Bishop Messmer, or to any bishop or priest, 
 for masses for the repose of the souls of persons named in 
 his will, it would be valid, and the court said : "We know 
 of no legal reason why any person of the Catholic faith, 
 believing in the efficacy of masses, may not make a 
 direct gift or bequest to any bishop or priest of any sum 
 out of his property or estate for masses for the repose of 
 his soul or the souls of others, as he may choose." The court 
 expressed regret that the intention of the testator could not be 
 given effect because he had put it in the form of a trust provi- 
 sion. So, also, in New York it has been held in several cases 
 that a bequest to a named priest for the saying of masses for 
 the repose of the souls of specified persons is valid. Ruppel v. 
 Schlegel (Sup.) 7 N. Y. Supp. 936; in re Howard's Estate 
 (Surr.) 26 N. Y. Supp. 1111; Vanderveer v. McKane (Sup.) 
 11 N. Y. Supp. 808. The case of Festorazzi v. Catholic Church, 
 104 Ala. 327, 18 South 394, holds that a bequest to that church 
 in the city of Mobile, to be used in solemn mass for the repose 
 of testator's soul, could not be supported as a charitable be- 
 quest. The decision seems to be on the ground that the 
 
338 VAN BUSKIRK V. VAN BUSKIRK [CHAP. IX 
 
 testator's own soul was the exclusive object and bene- 
 ficiary of the trust, and that no public benefit was to be 
 derived from it, and no living person was able to call the 
 trustee to account. We are not able to agree with the con- 
 clusion that there is no benefit to the church or public in 
 such case, and, as we have seen, ■ the ceremonial of the 
 mass is a public action, which can be seen and taken cog- 
 nizance of, so that there is no more difficulty in procur- 
 ing a mass to be said than there is in securing the public 
 delivery of a sermon or a lecture. A bequest for the erec- 
 tion of a public statue of a monument to a distinguished 
 person is a good charitable bequest, and yet such person, 
 if deceased, could not enforce its execution, but the courts 
 could and would do it. We think the devise and legacy 
 charitable, and a rule applicable to trusts is that they will 
 not be allowed to fail for want of a competent trustee. The 
 court will appoint a trustee or trustees to take the gifts 
 and apply them to the purposes of the trust. Heuser v. 
 Harris, supra. The decree of the circuit cotirt is reversed, 
 and the cause is remanded, with directions to proceed in 
 conformity with the views herein expressed. 
 Reversed and remanded. 
 
 Ace. Dormon v. Dormon, 187 III., 154; Madison v. Madison, 306 
 111., 534; Brennam v. Schell, 212 111., 3.56. 
 
 See however Jacksonville Nat. Bank v. Beesley, 159 111., 130 ; Ellis v. 
 Hill, 164 111., 557; Servin v. McGrath, 191 111., 401. 
 
 SECTION 7.— RESULTING TRUST. 
 
 VAN BUSKIRK et al v. VAN BUSKIRK. 
 148 111., 9; 35 N. E. R., 383. 
 
 [Supreme Court of Illinois. Oct. 26, 1893.] 
 Magruder, J., (after stating the facts.) About May 15, 
 1848, Jesse Van Buskirk became the holder, by assignment 
 to himself, of a military land warrant, under which he lo- 
 cated and entered on that day 160 acres of land in his own 
 name, and a patent was issued to him on September 1, 
 1894, The tract of 160 acres lay east of 330 acres then 
 owned by himself and his brother, Thomas Van Buskirk. 
 
SEC. VIl] VAN BUSKIRK I;. VAN BUSKIRk" 339 
 
 He owned the north half of the 320 acres, and his brother, 
 Thomas, the south half thereof. The present bill seeks to 
 establish a resulting trust in the south 80 acres of the 160 acres 
 entered on May 15, 1848, in favor of Thomas Van Buskirk. 
 It is claimed by the appellee that, although the legal title 
 to the 160 acres was taken in the name of Jesse, and was in 
 him at the time of his death, the consideration for the pur- 
 chase of the south half thereof was paid by Thomas. Where 
 one of two parties, who are strangers to each other 
 takes the title to a piece of land, but the other advances 
 the purchase money, a resulting trust will exist in favor 
 of the latter, and the holder of the legal title will be regarded 
 "as the trustee of the party furnishing the money. Mahoney 
 V. Mahoney, 65 111. 406. Where two persons together ad- 
 vance the price, and title is taken in the name of one of 
 them, a trust results in favor of the other to such propor- 
 tion of the property as is equal to the proportion of the 
 consideration contributed by him. Smith v. Smith, 85 111. 
 189; McNamara v. Garrity, 106 111. 384; Springer v. 
 Springer, 114 III. 551, 2 N. E. Rep. 527. The sums severally 
 contributed must be for distinct interests or aliquot parts 
 of the estate. Reed v. Reed, 135 111. 482, 25 N. E. Rep. 
 1095 ; Stephenson v. McClintock, 141 111. 604, 31 N. E. Rep. 
 310. Where two contribute funds, and the proportions do 
 not appear, the presumption is that the proportions are equal. 
 1" Perry, Trusts, § 132. The trust must arise, if at all, at 
 the time of the execution of the conveyance, and when the 
 legal title vests in the grantee. Id. § 133 ; Reed v. Reed, 
 supra ; Stephenson v. McClintock, supra. Such a result- 
 ing trust does not spring from the contract or agreement of 
 the parties, but from their acts. It is not created by con- 
 tract, but by implication of law apart from contract. 1 
 Perry, Trusts, § 134; Donlin v. Bradley, 119 111. 412, 10 N. 
 E. Rep. 11 ; Sheldon v. Harding, 44 111. 68 ; Stephenson v. 
 Thompson, 13 111. 186; Bruce v. Roney, 18 111. 67; Perry 
 V. McHenry, 13 111. 227; Lear v. Chouteau, 23 111. 39. 
 When-the two facts, to wit, payment of the purchase money 
 by one and conveyance of the title thereby purchased to 
 
340 VAN BUSKIRK V. VAN BUSKIRK [CHAP. IX 
 
 another, are found to exist, then the law so construes those 
 two facts as to make them constitute a resulting trust, and 
 for this reason such a trust is said to arise by operation of 
 law. Smith v. Smith, supra; Donlin v. Bradley, supra. 
 The principal estate follows the consideration, and attaches 
 to the party from whom the consideration comes. 2 Pom. 
 Eq. Jur. § 1037. Since the whole foundation of resulting 
 trusts of this class is the ownership and payment of the pur- 
 chase money by one when the title is taken in the name 
 of another, it follows that such trusts may be established 
 by parol evidence. 1 Perry, Trusts, § 137 ; 2 Pom. Eq. Jur. 
 § 1040 ; Donlin v. Bradley, supra. Indeed, our statute of 
 frauds expressly provides that "resulting trusts, or trusts 
 created by construction, implication, or operation of law, 
 need not be in writing, and the same may be proved by 
 parol." Rev. St. c. 59 § 9; 1 Starr & C. Ann. St. p. 1200. 
 The material circumstances to be shown by such parol evi- 
 dence is the source of the consideration paid for the land. 
 The burden of proof is upon the party seeking to establish 
 the trust, and he must prove that the alleged cestui que trust 
 paid the purchase price. 10 Amer. & Eng. Enc. Law, p. 
 29, and cases cited in notes. Such evidence must be "clear, 
 strong, unequivocal, unmistakable," and must establish the 
 fact of the payment by the alleged beneficiary beyond a 
 doubt. 2 Pom. Eq. Jur. § 1040; Green v. Dietrich, 114 111. 
 636, 3 N. E. Rep. 800; Heneke v. Floring, 114 111. 554, 3 
 N. E. Rep. 529; Mahoney v. Mahoney, supra. The admis- 
 sions of the nominal purchaser and grantee in the deed are 
 held to be competent evidence upon this subject. 1 Perry, 
 Trusts, §,137. Such admissions, however, are to be re- 
 ceived with great caution, and are frequently entitled to 
 little weight. Corder v. Corder, 124 111. 229, 16 N. E. Rep. 
 107; 10 Amer. & Eng. Enc. Law, p. 30, and cases cited in 
 notes. We think, however, that there is a clear distinction 
 between proof, of the declarations of the grantee to the 
 effect that he holds the title for another, or has agreed to 
 convey to another, and his declarations or admissions to 
 the effect that another person's money was paid for the land. 
 
SBC. VIl] VAN BUSKIRK V. VAN BUSKIEK 341 
 
 Declarations of the latter class are entitled to more weight 
 than those of the former class, especially when they are 
 corroborated by circumstances and attended by proof of 
 some previous arrangement under which the money was 
 advanced.' 10 Amer. & Eng. Enc Eaw, p. 30; 1 Perry, 
 Trusts, § 137. The admission of a trustee that he purchased 
 certain property with the trust fund is competent evidence 
 to raise a resulting trust for the cestui que trust in that 
 property. Id. § 137, iiote 1, on page 156, referring to Bank 
 v. Tyler, 3 Watts & S. 373. In Ryder v. Emrich, 104 111. 
 470, it was held that the admissions of the grantee in the 
 deed, on repeated occasions and to different persons, that 
 the money of the cestui que trust was paid for the land, 
 were "entirely sufficient to clearly establish that fact." In 
 Stephenson v. McClintock, supra, it was held that, although 
 the verbal declarations of a party are not competent evidence 
 to prove a contract to give another an interest in land held 
 by him. They are competent, in connection with other evi- 
 dence, to prove that he purchased the land with money in 
 part belonging to such other person, and the extent of that 
 part. The death of the nominal purchaser does not affect 
 the admissibility of such parol testimony, whatever effect 
 it may have on its weight. 1 Perry, Trusts, § 138 ; Ryder v. 
 Emrich, supra. 
 
 About 1845, Jesse and Thomas Van Buskirk settled upon the 
 N. E. J4 section 15, entered in 1846 in Jesse's name, and the 
 S. E. J4 section 16, entered in 1846 in Thomas' name. They are 
 described as having lived together upon this tract in a dugout 
 or shanty until some time in 1849 or 1850, when a house was 
 built upon the N. E. %. section 15. They lived in this house 
 together until February 15, 1851, when Jesse was married. 
 Thomas still continued to live with Jesse and his wife until 
 they went to California, in 1852, where they remained three 
 years. During their absence Thomas lived in the house upon 
 Jesse's north 160 acres with renters or tenants, who also 
 occupied it, and, while Jesse was away, looked after the lat- 
 ter's interests, and attended to the farming business. After 
 his brother's return, Thomas continued to live with him until 
 
343 VAN BUSKIRK V. VAN BUSKIRK [CHAP. IX 
 
 some time in 1857, when he married, and built a house upon 
 the S. E. y^ section 15, where he has ever since Hved with his 
 family. 
 
 Complainant examined 12 witnesses. Most of these wit- 
 nesses are old men, over 70 years of age. They testify of 
 conversations and transactions occurring many years before the 
 date of their testimony, but their recollections of these earlier 
 events appears to be clear and distinct. It would be- unprofit- 
 able, nor is it necessary, to discuss and analyze the evidence in 
 all its details. Their testimony satisfies us that the two broth- 
 ers, Thomas and Jesse, were partners in the ownership of 
 their personal property, consisting mainly of cattle and horses, 
 from 1845 to about 1857, and that the 160 acres in section ■ 
 14, which was entered by Jesse in May, 1848, was purchased 
 by him with funds earned in their partnership business, if not 
 with actual partnership funds. The fact of the partnership, 
 and the fact of the purchase of the 160 acres with money 
 eatned in the carrying on of the partnership business, are 
 proven by the repeated admissions of Jesse, and the acts and 
 conduct of the parties. They lived together as single men. 
 They had their horses and cattle together, and fed them with 
 hay, grain and straw belonging to both of them. They held 
 themselves out as partners, and persons dealing with them re- 
 garded them as such. They had an auction sale of horses, 
 and sold them together as joint property. They sold hay, 
 meat, and wood in 1846 as being their partnership property. 
 They bought supplies, and permitted themselves to be charged 
 as partners. Each, and one as well as the other, paid for 
 articles purchased by them and for labor performed for them. 
 As between partners themselves, the partnership may be shown 
 by "their conduct, the mode in which they have dealt with each 
 other, and the mode in which each has, with the knowledge 
 of the other, dealt with other people." 1 Lindl. Patrn, marg. 
 p. 84. In Bowen v. Rutherford, 60 111. 41, we said : "Wheth- 
 er persons are partners inter se or quoad third parties must 
 be established by facts ; by the acts of the party, or by cir- 
 cumstantial evidence, which induce the belief of a partner- 
 ship." There is no evidence that these brothers had any other 
 
SEC. VIl] VAN BUSKIRK V. VAN BUSKIRK' 343 
 
 money than that which was thus earned in the prosecution of 
 their joint business of operating a stock farm. It has been 
 held that even such circumstantial evidence as that the means 
 of the nominal purchaser were so limited that it was im- 
 possible for him to pay the purchase money is admissible for 
 the purpose of showing, in connection with other evidence, 
 the payment of the purchase money by the party seeking to 
 establish the resulting trust. 1 Perry, Trusts, § 137, and cases 
 cited in note 3, on page 155. Where two brothers live to- 
 gether, and work together, for the common store, and agree 
 to have an equal interest in the mutual labors and the prop- 
 erty thereby purchased, one brother, in paying money derived 
 from the proceeds of their joint property and mutual labor for 
 the purchase of land, will be regarded as the agent and trustee 
 of the other. Stephenson v. McClintock, supra ; King v. 
 Hamilton, 16 111. 190. In connection with these acts and 
 circumstances showing the existence of the partnership are 
 the admissions of Jesse, made to nearly a dozen witnesses, 
 sometimes in the presence of his brother, sometimes in his 
 absence, that the 160 acres was bought with money earned in 
 their common business and by their joint labors. The declara- 
 tions and admissions thus made are not overcome by the evi- 
 dence introduced by the defendant below. Ryder v. Emrich, 
 104 111., 470. 
 
 It is claimed that the effect of the evidence showing a 
 purchasewith partnership funds is to give each of the brothers 
 title to an undivided one-half of the 160 acres, and that, as 
 the present bill is not for a partition of the 160 acres, but 
 to establish a resulting trust in the south half thereof, the de- 
 cree below is erroneous, as resting upon a parol agreement to 
 convey the south half, which is in violation of the statute of 
 frauds. There is much force in this position. Smith v. 
 Smith, supra ; Reynolds v. Sumner, 126 111. 58, 18 N. E. Rep. 
 334. A somewhat similar question was presented in Mc- 
 Namara v. Garrity, 106 111. 384, where "Garrity was to pay 
 one-fourth of the purchase money, and McNamara was to pay 
 the other three-fourths thereof, and one-fourth of the land, 
 in a ten-acre strip off the west side thereof, was to belong to 
 
344 VAN BUSKIRK V. VAN BUSKIEK [CHAP. IX 
 
 Garrity, and the balance was to belong to McNamara." It 
 was there held that there was a resulting trust in favor of Gar- 
 rity as to his part of the tract, and that the statute of frauds 
 had no application. It appears that in that case Garrity paid 
 his own fourth of the price, and, with the consent of Mc- 
 Namara, to whom the legal title had been conveyed, took pos- 
 session of his 10 acres, fenced and cleared it, and was in the 
 actual possession of it for more than 20 years. Here the 
 evidence shows that Jesse Van Buskirk took possession of the 
 north 80 acres. Between 1865 and 1879 it is shown that the 
 south 80-acre tract was broken ; that Thomas and his family 
 cultivated parts of it for several years ; and that a lease of it 
 was made by Thomas for three years, with Jesse's consent, to a 
 tenant, who. cultivated it during that time. We do not deem 
 it necessary, however, to hold that there was a parol partition 
 between the two brothers. Such a partition must be followed 
 by a possession in conformity therewith so as to authorize one 
 of the cotenants to file a bill against the other for a con- 
 veyance of the legal title according to the terms of the parti- 
 tion. Tomlin V. Hilyard, 43 111. 300; Shepard v. Rinks, 78 
 111. 188 ; Sontag v. Bigelow, 142 111. 145, 31 N. E. Rep. 674. 
 Whether the possession taken by each of the brothers of the 
 two several , tracts was such an exclusive possession as to 
 amount to a parol partition (17 Amer. & Eng. Enc. Law, p. 
 668, and cases cited in notes) or not, we think the evidence 
 warrants the conclusion that Thomas contributed his one-half 
 of the purchase money towards the purchase of the south 80 
 acres. It is proven that the price at which the latter tract 
 was entered was $1.25 per acre, or $200 for the whole. The 
 land warrant was what was known as a "Mexican land war- 
 rant." The act of congress of February 11, 1847, (9 Stat. 
 125,) under which it was issued, entitled the soldier to receive 
 a warrant for 160 acres, to be located "in one body." This 
 was probably the reason why one entry was made for the 160 
 acres, instead of two entries, each for 80 acres. Although the 
 $200 was earned by their joint efforts, yet the arrangement was 
 that the $100 belonging to Thomas should be applied to the 
 purchase of the south 80, and the other $100, belonging to 
 
SEC. VIl] VAN BUSKIRK V. VAN BUSKIRK 345 
 
 Jesse, should be applied to the purchase of the north 80 acres. 
 Hence, under the reasoning in the McNamara Case, a result- 
 ing trust arose in behalf of Thomas in the south 80 acres, 
 and not in the undivided one-half of the 160 acres. The case 
 presented is not that of a parol agreement to divide land, but 
 of a contribution of the one-half of a specific fund to buy a par- 
 ticular part of a certain tract. 
 
 It is further claimed that the appellee has been guilty of 
 such laches that he is not entitled to relief. Undoubtedly re- 
 sulting trusts may be barred by lapse of time or laches on the 
 part of the supposed cestui que trust. But no certain time 
 can be fixed within which the application for the enforcement 
 of the trust should be made. That lapse of time which will 
 operate as a bar must necessarily be determined by the equitable 
 discretion of the court, and will depend upon the nature and 
 circumstances of each case. Lapse of time will not ordinarily 
 be regarded as a bar where there has been no adverse pos- 
 session of the property by the nominal purchaser, and where 
 he has not repudiated or disavowed the trust, but has admitted 
 it, and where an excuse for or explanation of the delay is fur- 
 nished by the circumstances of the case or the relation of the 
 parties. 1 Perry, Trusts, §§ 141, 238, 239; Harris v. Mc- 
 Intyre, 118 111. 375, 8 N. E. Rep. 182; Reynolds v. Sumner, 
 126 111. 58, 18 N. E. Rep. 334; Ryder v. Emrich, 104 111. 470; 
 McDonald v. Stow, 109 111. 40. Thomas Van Buskirk lived 
 in the most intimate business and family relations with his 
 brother, Jesse, from 1848 to 1857, they occupying the same 
 house, and laboring for and with each other. After Thomas 
 began to live in his own house, in 1857, his brother's farm 
 adjoined his own; their houses were not more than a mile 
 apart ; they saw each' other almost every day ; were on the most 
 friendly terms, and aided each other in the cultivation of 
 their respective farms, and in the gathering and sale of the 
 products thereof. During all this time, whenever the subject 
 was alluded to, Jesse admitted that the south 80 acres belonged 
 to his brother, and promised to deed it to him, and gave ex- 
 cuses for not doing so. There is no reliable evidence that 
 Jesse ever took or held possession of any part of the south 
 
346 VAN BUSKIRK V. VAN BUSKIRK [CHAP. IX 
 
 80 acres during his lifetime. As early as 1865, according to 
 some of the witnesses, — certainly from and after 1870, — ^the 
 mind of Thomas began to fail, so that he was incapacitated 
 from attending to business, and was unable properly to assert 
 his own rights. Finally, on May 16, 1878, he was declared a 
 lunatic by the county court of Carroll county, and has been a 
 lunatic ever since. No conservator seems to have been appoint- 
 ed for his estate, but this suit has been brought for him by 
 a next friend. Speck v. Car Co., 121 111. 33, 12 N. E. Rep. 
 213. His rights cannot be prejudiced by the fact that such 
 next friend did not bring the suit immediately after the dec- 
 laration of lunacy, or immediately after the death of Jesse 
 Van Buskirk, which occurred on June 3, 1879. A lunatic can- 
 not be held accountable for any apparent negligence,- laches, or 
 delay in seeking redress through the courts or otherwise for 
 any wrong that may have been done him with respect to his 
 property, and he is not affected by statutes of limitation, which, 
 but for the lunacy, would bar his rights. Dodge v. Cole, 97 
 111. 338. 
 
 After the court below found that a resulting trust existed in 
 favor of the complainant, and that the legal title was in trust 
 for him, and that he was entitled to a deed of the land, it was 
 referred to a master in chancery to take an account of the 
 rents and profits of said 80 acres from the time of the death 
 of said Jesse to the date of the accounting. The master re- 
 ported that the fair annual cash rental value of the premises 
 was a certain sum per acre, and upon the basis of this finding 
 it was decreed that the widow pay $2,520, and the adopted son, 
 $1,400. We think that this portion of the decree is erroneous. 
 It is equivalent to compelling the defendants to pay what might 
 have been received from the property by the exercise of rea- 
 sonable care and prudence. Such is the basis of accounting 
 where the trustee has been guilty of fraud or misconduct or 
 willful default. But where a trustee has acted in good faith 
 a court of equity will only hold him accountable for what he 
 has actually received, and will not charge him with proceeds 
 or profits which he might have received. 2 Pom. Eq. Jur. § 
 1058, and note ; Barnes v. Taylor, 30 N. J. Eq. 7 ; Greenwood's. 
 
SEC. VIIl] WILSON V. BYERS 347 
 
 Appeal, 92 Pa. St. 181; Hill, Trustees, (Bisp. Ed.) marg. 
 p. 523. There is no evidence that the defendants were in 
 any way at fault, or that they had any notice or knowledge 
 that the property was held in trust by the deceased grantee in 
 the patent. As the legal title was in the deceased at the 
 time of his death, it does not appear that the defendants did not 
 in good faith regard themselves as owners of the property by 
 inheritance or descent; hence they should only have been re- 
 quired to account for the rents and profits actually received by 
 them during the period named, less taxes paid by them, and 
 necessary repairs made by them. The decree is affirmed in so 
 far as it requires the legal title to the land to be conveyed to the 
 complainant, but reversed as to the amounts decreed to be paid 
 upon the accounting, and the cause is remanded to the circuit 
 court, with directions to order an accounting to be stated upon 
 the basis herein indicated. 
 
 SECTION 8.— CONSTRUCTIVE TRUST. 
 
 WILSON V. BYERS. 
 77 111., 76. 
 
 [Supreme Court of Illinois. January Term, 18Y5.] 
 
 Mr. Justice Sheldon delivered the opinion of the Court: 
 The bill in chancery in this case charged that, about April 
 20, 1820, one David Rawlings applied at the Shawneetown 
 land office, in this State, to enter the whole of the south-east 
 quarter of section 34, township 4 north of the base-line range 
 10 east of the third principal meridian, and paid the partial 
 payment thereon then permitted by law; that afterwards, 
 being unable to pay for the whole of said tract, he relin- 
 quished to the United States the east half of the quarter 
 section, retaining the west half; that he assigned his certifi- 
 cate of entry to one James Elliott, who completed the pay- 
 ment for said west half, received a certificate of purchase 
 therefor, and which passed into a patent from the United 
 States to James Elliott, as assignee of David Rawlings, in 
 which patent the land is described as being in township num- 
 
348 WILSON V. BYERS [CHAP. IX 
 
 ber 4 south, instead of north of the base-line; that ElHott 
 afterward sold and conveyed the tract to one Thomas W. Lil- 
 ley, describing correctly in the deed the land as the west half 
 of the south-east quarter of section 34, township 4 north, 
 range 10 east, etc.; that in 1841, Lilley platted part of this 
 tract in town lots, which are now part of the town of Olney, 
 and sold and conveyed several of the lots to the complain- 
 ants; that in February, 1871, Edward S. Wilson, the defend- 
 ant, procured patents from the United States to said west 
 half of south-east quarter of section 34, township 4 north, 
 range 10 east, etc., and claims to own the same; that the 
 patent of Wilson constitutes a cloud on complainants' title, 
 and prays that Wilson be ordered to convey to them, etc. 
 
 The court below, on hearing upon proofs, decreed the relief 
 prayed, and defendant appealed from the decree. 
 
 It is conceded by appellant's counsel that the entry of and 
 payment for public land gives better title, in equity, than a 
 subsequent patent to another person. The important question 
 in the case, then, and the only real subject of dispute, is one 
 of fact ; what tract of land did David Rawlings buy, or intend 
 to buy, of the United States; and, also, what tralct did the 
 United States sell to him? 
 
 The cause was heard below upon an agreed statement of 
 facts, in addition to the documentary testimony, and the de- 
 positions of Alexander and Keefer, former registers of the 
 Palestine and Springfield land offices. 
 
 It appears that the original application by David Rawlings 
 to enter land April 11, 1820, and the certificate of such entry 
 then issued to him at the Shawneetown land office, are lost ; 
 that Michael Rawlings, father of David Rawlings, settled with 
 his family on the west half south-east section 34, town- 
 ship 4 north, range 10 east, third principal meridian, in the 
 fall of 1820; built a house thereon and resided in it, and 
 inclosed part of the tract. His son David lived with him in 
 his family. They lived there till the spring of 1823, when 
 Michael Rawlings sold said tract to James Elliott, who moved 
 into the house and took possession in the fall of 1823, and made 
 additional improvements thereon. Elliott lived there until 
 
sue. VIIl] WILSON V. BYERS 349 
 
 1837, when. he sold and conveyed the said tract to Thomas W. 
 Lilley, describing it correctly in his deed. Lilley took posses- 
 sion and inclosed the whole tract, and lived on the same until 
 his death, in 1869. He platted part of it as an addition to 
 Olney, and many of the lots had been sold by him, among which 
 are those claimed by complainants. Lilley's widow continues 
 to occupy part of said land as her homestead. Since their pur- 
 chase, complainants have been in actual possession of their 
 lots, and have erected buildings on them. Clark D. Still- 
 well, on September 24, 1854, obtained a certificate of entry, 
 at the Shawneetown land office, for the north-west quarter of 
 south-east quarter of section 34, township 4 south, range 10 
 east, third principal meridian, and went on the same in 1855, 
 made some improvements, and has since sold and conveyed 
 said tract to Joseph P. Stillwell. This certificate was, how- 
 ever, cancelled June 12, 1855, by the Commissioner of the 
 General Land Office as interfering with a previous sale of 
 the west half of the quarter to David ■ Rawlings April 11, 
 1820. 
 
 White county, in which the west half south-east quarter 34, 
 4 south, 10 east, third principal meridian, is situated, has sold 
 and conveyed to Joseph P. Stillwell the south-west quarter 
 of south-east quarter 34 4 .south, 10 east, third principal 
 meridian, it having been previously vested in the county as 
 swamp-land, under the act of Congres granting the Swamp- 
 lands; since wiiich sale by the county, both said forties in 
 south-east quarter 34, township 4 south, have been occupied 
 by said Stillwell and his grantees, who have improved the 
 same. 
 
 The west half south-east quarter 34, 4 south, 10 east, third 
 principal meridian, was wild and unoccupied land prior to 
 Stillwell's entry, in 1855. Neither Michael Rawlings, David 
 Rawlings nor James Elliott, ever lived on said last tract of 
 land, or claimed title to it, or lived in White county. Edward 
 S. Wilson, the defendant, is a lawyer of several years' prac- 
 tice, and has been engaged in abstracting titles to land, in 
 Olney, and has lived there several years. 
 
 From the above recited facts, there can be no doubt what 
 
350 WHSON V. BYERS [CHAP. IX 
 
 land Rawlings intended to purchase, and supposed he had 
 purchased, and what land Elliot, as his assignee, intended to 
 complete the purchase of, and supposed he had done so; that 
 it was the eighty-acre tract in 4 north ; and that the defendant 
 was chargeable with constructive notice. of whatever equita- 
 ble rights they and the complainants had thereto. 
 
 But this, of itself, is not enough. The mistake, to be re- 
 lieved against, must have been mutual, and the land officers 
 making sale of the land, as well, must have intended to sell 
 this same tract. Rawlings might have made a mistake in his 
 original application to_ enter the land, and have wrongly de- 
 scribed it as in 4 south; but this original application is lost, 
 as well as the certificate of the entry issued to him, and we 
 have to look to the official records of the land offices for evi- 
 dence upon the point. 
 
 We may first say that, in 1820, when this entry was made, 
 the United States was selling its lands at $3 per acre, one- 
 fourth of the purchase money being required to be paid in 
 cash at the time of the entry, and the balance in annual pay- 
 ments. 
 
 We have, then, in evidence an extract from ledger D of 
 the register's office, Shawneetown land office, where we find 
 that on April 11, 1820, is recorded the fact that on that day 
 "David Rawlings, of Edwards county, Illinois, bought the 
 S. E. Ya of section 34, in township No. 4N., R. 10 E., for 
 $380;' that on the same day he is credited, "By cash $80." 
 In this entry, the letter "N," after the township, is in red ink, 
 and appears above theMine of the rest of the entry. This is a 
 suspicious circumstance, and renders it unsatisfactory what 
 the original entry was. 
 
 We have next the following : 
 
 Receiver's Office, at Shawneetown, 111. 
 11th April, 1820. 
 "Sundries Dr. — To sales of public lands : 
 
 " David Rawlings, for purchase money of S. E. 14 of 
 sect. 34, T. 4 N., R. 10 E., 160 acres, purchased 11th 
 
 April, 1820 $320 
 
 "Cash account Dr. — To sundries : 
 
SEC. VIIl] WILSON V. BYERS 351 
 
 " To David Rawlings, for first installment of purchase 
 money of S. E. 14 sec. 34, T. 4 N., R. 10 E., purchased 
 11th April, 1830, per receipt 7048 $80 
 
 This is a record from journal F of the receiver's office of' 
 the Shawneetown land office, dated 11th April, 1820. 
 
 We have, then, the following : 
 
 "1820, 11th April— 7048— David Rawlings— 1—80— S. E. 
 "34—4 N.— 10 E.— 160." 
 
 This extract is from a book in the register's office of said 
 land office, marked "Registry Receipts," and is the record 
 kept by the register of the receipts given by the receiver, 
 and shows that on the 11th of April, 1820, David Rawlings 
 had presented to him for registry the receipt of the receiver 
 for first payment of $80 for the south-east quarter of 34, 
 township 4 north, range 10 east, 160 acres, and that said 
 receipt was numbered 7048. 
 
 These last two entries in the receiver's and register's books 
 are unexceptionable in appearance, there being no suspicious 
 circumstance of alteration whatever connected with them. 
 
 The above exemplifications from the records of the Shaw- 
 neetown land office constitute all the entries on any of said 
 books relating to this tract of land, from April 11, 1820, until 
 June 25, 1829. On the day last named, James Elliott, assignee 
 of David Rawlings, completed the entry of Rawlings, in ac- 
 cordance with an act of Congress then in force, by relinquish- 
 ing to the United States the east half of the quarter section 
 — describing it, as the record shows, as in 4 south— and pay- 
 ing the t)alance due for the west half, and receiving therefor 
 Shawneetown final certificate number 1150, which also de- 
 scribes the tract as in 4 south. It, however, also describes 
 the tract as purchased by David Rawlings, April 11, 1830, 
 and that Elliot, his assignee, has completed payment of it. 
 The entries of the transaction in the journals of both the 
 receiver's and register's offices of the Shawneetown land office, 
 under date of June 25, 1829, describe the tract as in 4 south, 
 and the patent to Elliot describes it as in 4 south. There is 
 no doubt, from the evidence, that, by the records of the gen- 
 eral land office, at Washington, the west half south-east quarter 
 
352 WILSON V. BYBRS [CHAP. IX 
 
 34, township 4 north, range 10 east, third principal meridian, 
 at this last date and afterward appeared to be vacant. The 
 commissioner of that office informed the register and receiver 
 of the local office, by letter of February 11, 1870, that it so 
 appeared, and directed them to hold the same subject to entry, 
 etc. ; but there is no exemplification in evidence of any record 
 from the general land office except that of Elliott's relinquish- 
 ment and his final certificate, number 1150. There is no evi- 
 dence as to Rawlings original certificate. 
 
 After the entry by Rawlings, April 11, 1820, the Palestine 
 land district .was created from territory of the Shawneetown 
 land district, and the tract in 4 north of the base-line fell in 
 the former district, the south line of the Palestine district 
 being the base-line, and that line being the north boundary 
 of the Sljawneetown land district. 
 
 The Palestine land office was opened in the fall of 1820. 
 As the entry by Rawlings was at the Shawneetown land office, 
 and at the time this tract in 4 north was in that land district, 
 Elliott had to complete the purchase at the Shawneetown office. 
 
 The plat-books and the tract-books of both these offices 
 furnish further evidence that it was the tract in 4 north which 
 Rawlings purchased, and Elliott, his assignee, completed pay- 
 ment for. 
 
 On the plat-books of the Shawneetown land office there is 
 no entry of the purchase by Rawlings of the south-east quar- 
 ter of this section in township 4 south, but, on the contrary, 
 the first entry thereon was the noting on the north-west quar- 
 ter of south-east quarter of 34, 4 south, of the entry of that 
 by Clark D. Stillwell, September 2, 1854, and indicated on 
 the plat by the figures "21,236," that being the number of 
 Stillwell's certificate. No other entry appears on said plat- 
 book until, in pursuance of an order from the Commissioner 
 of the General Land Office, the register of the Shawneetown 
 land office was directed to make entry of approved list num- 
 ber 1 of swamp-lands, opposite each of said tracts, on his 
 books, of the words, "Swamp-land, Act September 28, 1850; 
 approved May 19, 1855, in list 1." In this list of swamp- 
 lands are south half south-east quarter 34, 4 south, 10 east. 
 
SEC. VIIl] WILSON V. BYERS 353 
 
 third principal meridian, and north-east quarter south-east 
 quarter 34, 4 south, 10 east, third principal meridian. This 
 the register complied with, by noting on said plat-book, on 
 said swamp-land tracts, the words, "State, Act 38 Septem- 
 ber, 1850," and also by entering on the tract-book the above 
 words ordered to be inserted by said commissioner ; and thus, 
 with the Stillwell entry, completing the disposition of the 
 whole quarter section south of the base-line. 
 
 Upon the tract-book of the Palestine land office there was 
 the following original entry upon the plat of this tract: 
 "W. H. S. E. 34, 4, 10, David Rawlings, S. T. Cert. 1150;" 
 the above abbreviations standing for west half south-east quar- 
 ter section 34, township 4, range 10; the letters "S. T. Cert." 
 meaning Shawneetown certificate, and the figures 1150, the 
 number of the final certificate under which the entry was con- 
 cluded. 
 
 On the plat of the tract upon the plat-book of the Pales- 
 tine land office was the following original entry: "S. T 
 1150." 
 
 If the tract which Rawlings applied to enter, and Elliott 
 concluded the entry of, were in township 4 south of the base- 
 line, these entries should not appear on the books of the Pales- 
 tine land Office was the following original entry: "S. T. 
 the base-line. 
 
 So, too, had the tract been in 4 south, the fact of the entry 
 should have been noted on the plat-book of the Shawneetown 
 land office, and said book should not have remained wholly 
 blank respecting this quarter section until in 1854, when the 
 entry of the northwest quarter of it by Clark D. Stillwell is 
 noted by the figures 31,236, and subsequently ^he grant of the 
 remainder as swamp-land to the State is noted upon it. 
 
 These original entries upon the Palestine office plat and 
 tract-books were subsequently, in 1870, at the time of Wil- 
 son's entry, erased by the deputy register of the land office 
 at Springfield — to which latter office, in 1855 or 1856, all 
 books and papers of all the other land offices in the State 
 were sent, and they closed — in correction of a supposed mis- 
 take, and an entry of Wilson's purchase was made instead. 
 
354 wii^soN V. BYERS [chap. IX 
 
 It is needless to enlarge upon the evidence. It is palpable, 
 from the proofs furnished by the books of the ShawneetOwn 
 and Palestine land offices, that the tract which the land offi- 
 cers intended to and did sell to Rawlings, April 11, 1820, and 
 which they received final payment for from Elliott, Rawlings' 
 assignee, June 25, 1829, was the west half of south-east 
 quarter section 34, township 4 north of the, base-line, of 
 range 10 east of the third principal meridian, and that 
 in Elliott's relinquishment, Shawneetown final certificate 
 number 1150, and patent, there was a mistake made in the 
 description of the tract, describing it as in 4 south, instead 
 of north. 
 
 It is insisted that Elliott has not paid for the tract in full, 
 because it was in part paid for by Elliott's relinquishment 
 of east half of south-east quarter 34, township 4 south, range 
 10 east, etc., and Elliott had notice to that; but it was the 
 east half south-east quarter 34, township 4 north, etc., which 
 was actually relinquished by Elliott, there being a mistake 
 in describing it as in 4 south. 
 
 It is insisted, too, that there has been such laches as should 
 bar the claim for relief. 
 
 Laches can not be imputed to one in the peaceable posses- 
 sion of land, for delay in resorting to a court of equity to 
 correct a mistake in the description of the premises in one 
 of the conveyances through which the title must be deduced. 
 Mills V. Lockwood, 42 111. 112. The possession is notice to 
 all, of the possessor's equitable rights, and he need to assert 
 them only when he may find occasion to do so. 
 
 The tract was purchased by Wilson, with "Porterfield" 
 scrip, which v*as worth $5 per acre, because applicable to 
 unoffered lands ; and it is insisted that it was erroneous to 
 compel Wilson to convey to complainants the rights held by 
 him under this scrip ; that it was an appropriation of this 
 scrip to complainant's use without consideration. But Wil- 
 son purchased the land with notice and in consequent fraud 
 of the rights of the complainants or their grantor, and held 
 the title which he acquired but as their trustee. 
 
 Whatever the sum he might have paid for the land, it would 
 
SEC. VIIl] MC VEY V. MC QUALITY 355 
 
 in nowise affect complainant's right to a conveyance of the 
 legal title. The decree will be affirmed. 
 
 Decree affirmed. 
 Ace. Hunter v. Denner, 112 111., 568; McVey v. McQuality, 97 111., 
 
 McVEY V. McQUALITY. 
 97 lU., 93. 
 
 [Supreme Court of Illinois. November 26, 1880.] 
 
 Mr. Justice ]Mulke3^ delivered the opinion of the Court : 
 This was a proceeding in chancery commenced by defend- 
 ants in error against plaintiff in error and others, in the 
 Christian county circuit court, on the SOth of October, 1868, 
 for the recovery of certain real estate particularly described 
 in the bill. The venue was subsequently, by consent of 
 parties, changed to Sangamon county. 
 
 The bill in substance charges that one John Grigg, in the 
 year 1850, being seized in fee simple of the north-west of the 
 south-east and five acres on the west side of the south-west 
 of the south-east of section 11, township 15 north, range 1 
 west of the 3d principal meridian, in Christian county, sold 
 the same to John C. Sprouse for $135, Sprouse paying a part 
 of the purchase money in hand and giving his notes in 
 three equal installments for the residue. That Grigg at the 
 same time executed to Sprouse a title by bond by which 
 he agreed to conve}' to him the land upon the payment of 
 the balance of the purchase money. That subsequently 
 Sprouse sold the lands and assigned the bond to one White, 
 and that ^^"hite afterwards transferred the same to Bing- 
 ham, who, in !March, 1862, sold the land and assigned the 
 bond to William McQuality, ancestor of the complainants, 
 who thereupon took possession of the lands and resided 
 thereon till the time of his death, which occurred on the 
 30th of August, 1862. That at the time of his death he 
 left him surviving complainants, his heirs, and Elizabeth 
 McQuality, his widow." That in 1863 the widow, Elizabeth 
 McQuality, paid Grigg the balance due on the land, being 
 about $400, and thereupon procured a deed from Grigg con- 
 
356 MC VEY V. MC QUALITY [cHAP. IX 
 
 veying the lands to John G. Sprouse, who without consid- 
 eration conveyed the lands by quitclaim deed to Elizabeth 
 McQuality. That she in the same year, in consideration of 
 $1000, which was much less than their value, conveyed the 
 lands by quitclaim deed to Jackson McVey. The said lands 
 at the time of their conveyance to McVey were worth $5000, 
 and that he has been in possession of the lands ever since. 
 That McVey, both before and at the time of his purchase, 
 knew that William McQuality at the time of his death was 
 the owner of the equitable title to, and was in possession of 
 said lands, residing thereon, and that the deeds to Sprouse, 
 Elizabeth McQuality and McVey were in fraud of the rights 
 of complainants. That complainants have requested McVey 
 to convey the lands to them, offering to refund such sum of 
 money as was paid to Grigg on account of the purchase 
 money. The bill prays that an account be taken of the rents 
 and profits of the land while in the possession of McVey, 
 and also of what may be due from complainants on account 
 of the purchase money paid to Grigg. McVey, by his an- 
 swer, denies all knowledge either before or at the time of 
 his purchase of the equities of complainants, but admits that 
 he Knew William McQuality, before and at the time of his 
 death, was living on the lands ii) question. The answer 
 further alleges that William McQuality died testate, and 
 that by his will he gave to Elizabeth McQuality, his widow, 
 a life estate in the lands in question, and also that she had 
 an estate of homestead and dower in the lands which she 
 had a right to convey, and that those interests of hers in 
 the lands passed by her deed to McVey. McVey also filed 
 a cross-bill setting up substantially the same facts alleged 
 in his answer, and also the insolvency of Elizabeth Mc- 
 Quality. The latter being a defendant in the cross-bill, 
 made no answer thereto, and a decree pro confesso was 
 taken against her. There was a general denial of the cross- 
 bill on the part of the McQuality heirs. 
 
 On the 8th of November, 1875, a final decree was entered 
 in the cause substantially as prayed for in the original bill, 
 and thereupon the cause was brought to this court by writ 
 
SEC. VIIl] MC VEY V. MC QUALITY 357 
 
 of error and the rendition of that decree is assigned for 
 error. 
 
 A reversal of the decree of the circuit court is asked on' 
 these grounds : First, it is claimed that the making of the 
 title bond by Grigg to Sprouse, and the subsequent assign- 
 ments thereof, as charged in the bill, have not been suffi- 
 ciently proved. We are unable to concur in this conclusion. 
 In view of the whole of the testimony, there can scarcely be 
 a reasonable doubt on this question. Sprouse, in speaking 
 of the bond in question, swears : "I purchased the land 
 from John Grigg. * * * j ^^^ g. bond for the deed, 
 which I assigned to Elizur White about five or six years 
 after it was executed, and gave possession of the land to 
 White, for which he paid me $40.00." Moreover, McVey, in 
 his answer, claims that the bond mentioned in the bill was 
 forfeited by reason of non-payment, which is in effect an 
 admission on the record of the existence of the bond. 
 
 Bingham satisfactorily shows, by his testimony, both the 
 existence of the bond and the assignment of it by him to 
 William McOuality. 
 
 The objection, as argued, looks rather to the admissibility 
 of the testimony than to its probative force. It is urged that 
 the bond itself should have been offered to establish both its 
 existence and the assignment. That the bond itself would 
 have been the best evidence for both these purposes is 
 conceded, but it does not follow that in the absence of any 
 objection to -the admissibility of the testimony, these facts 
 could not be sufficiently established by parol testimony. 
 The evidence was secondary, and if it had been objected to 
 on that ground it would doubtless have been excluded, un- 
 less the proper foundation for its admission had first been 
 laid. 
 
 But the testimony of the witness showing the execution 
 of the bond and the assignments thereon was not objected to 
 on the ground that it was secondary evidence. If that had 
 been done, quite a different question would be presented. 
 
 In the next place, it is earnestly insisted that the evidence 
 does not satisfactorily show that at the time of the convey- 
 
358 MC VEY W. MC QUAUTY [CHAIMX 
 
 ance to McVey he had any' knowledge of the equities of the 
 McQuality heirs. Or, in other words, it is claimed that he 
 is a purchaser for a valuable consideration, without notice 
 of complainants' rights, and, as such, is entitled to the pro- 
 tection of a court of equity. 
 
 The allegation of notice in the bill is a material one, and 
 the onus probandi rests upon complainants. There is iio 
 ground for diversity of opinion as to the measure of proof 
 which the law requires upon this question. It is well estab- 
 Hshed by an unbroken current of authority that where it is 
 sought to defeat a clear legal title of record by one having a 
 mere equitable title, on the ground that the equities of the 
 latter were known to the former at the time of acquiring the 
 legal estate, the allegation of notice must be established by 
 clear and satisfactory proof. The evidence should leave no 
 reasonable doubt of the fact of notice. It is the settled pol- 
 icy of the law to give security to, and confidence in, titles 
 to the landed estates of the country which appear of record 
 to be good. 
 
 On the other hand, it is equally well settled that where a 
 party purchases an estate from one having a mere legal title, 
 knowing that in equity it belongs to another, his purchase, 
 as against the equitable owner, will be deemed fraudulent 
 and void, and he will be treated as a mere trustee of the 
 equitable owner. 
 
 The real question then is, have the defendants in error 
 established the allegation of notice in conformity with this 
 rule, fixing the measure of proof as just stated? 
 
 We shall not review or discuss the testimony on this ques- 
 tion. To do so would lead to great prolixity, without proba- 
 bly any compensating benefit. The court below, by its de- 
 cree, has found that McVey purchased with notice of the 
 rights of the McQuality heirs, and we are unable, after a 
 very careful consideration of all the evidence, to say that 
 the conclusion reached by that court is wrong. 
 
 The- answer of McVey himself admits that he knew that 
 at the time of his death McQuality, together with his family, 
 was residing on the land, and his possession was prima facie 
 
SEC. VIIl] MC VEY V. MC QUAIvI-TY 359 
 
 evidence of ownership at that time, and McVey is con- 
 clusively presumed to know that whatever rights McQuality 
 had in the land not disposed of by will, and of an inheritable 
 character, devolved on his heirs, and his possession being 
 constructive notice of his rights at the time of his death, 
 it was the duty of McVey to have inquired of the heirs and 
 ascertained the extent of their interests. 
 
 Finally, it is claimed that the decree must, at all events, 
 be reversed, on the ground, as is alleged, that whatever may 
 be the rights of the parties with respect to the fee in these 
 lands, Elizabeth McQuality was certainly entitled, under the 
 will of her husband, to a life estate in them, which passed to 
 McVey by her deed, and should have been secured to him in 
 some manner by the decree ; but, on the contrary, the decree 
 deprives him of all rights whatever in the premises. 
 
 This claim is well founded as to the forty-acre tract of the 
 land, but not as to the five acres off the adjoining forty. 
 Under the will of her husband, Elizabeth McQuality clearly 
 had an equitable life estate in the north-west south-east sec- 
 tion 11, township 15, range 1 west of the 3d Principal Me- 
 ridian, subject to her ratable proportion of the unpaid pur- 
 chase money. Upon paying the whole of the purchase 
 money she was not only the equitable owner of the forty-acre 
 tract, but she also thereby acquired a lien on the whole of 
 the premises for their heirs' ratable proportion of the pur- 
 chase money paid by hfer. While, therefore, the deed from 
 Grigg to Sprouse at her instance was fraudulent as to the 
 heirs, so far as the fee was concerned, yet it was not so 
 with respect to her life estate. That, she had a right to 
 dispose of as she pleased, and as the heirs had no inter- 
 est in it, no disposition she might make of it could with pro- 
 priety be regarded as fraudulent as to them. 
 
 Upon the conveyance to Sprouse he became clothed with 
 the legal title to all the land in controversy, which he held in 
 trust for the equitable owners, according to their respective 
 interests. By Elizabeth McQuality's conveyance to McVey 
 he became in like manner vested with the legal title to the 
 whole of the premises. By Sprouse's deed to Elizabeth 
 
360 MC VEY 7'. MC QUALITY [CHAP. IX 
 
 McQuality her equitable life estate became merged in the 
 legal estate, which passed to her in her own right by that 
 deed, and the same was conveyed by her to McVey; so that 
 McVey, by virtue of her deed, became seized of a freehold 
 estate in his own right, during her life, in the forty-acre 
 tract, and also of the fee simple legal estate, subject to such 
 life estate, in the whole of the premises in controversy, in 
 trust for the heirs. 
 
 As to the five acres off the adjoining forty-acre tract, 
 McVey acquired no equitable interest in that by virtue of 
 Elizabeth McQuality 's deed to him, unless by such convey- 
 ance he became subrogated to her right of a lien in equity on 
 the premises of the heirs ratable proportion of the purchase 
 money paid by her, as first stated ; but of this we express no 
 opinion. She had no rights, as is supposed, in the five-acre 
 tract under the homestead law, as it then existed, that she 
 could transfer to any one. Her conveyance and surrender 
 of the premises to McVey were a complete abandonment of 
 the homestead. But outside of this, she had no homestead 
 rights, as the law then stood, which she could enforce as 
 against the heirs. The circuit court, therefore, should, by its 
 decree, have ascertained the heirs' ratable proportion of the 
 purchase money paid by Elizabeth McQuality, and required 
 them to pay the same into court for her or McVey, as their 
 rights might appear, and upon such payment should have 
 compelled McVey to convey to the complainant the five-acre 
 tract absolutely, and the remainder in fee in the forty-acre 
 tract, and, in default of such conveyances by McVey, the 
 master in chancery should have been required to make the 
 same. 
 
 For the reasons indicated, the decree of the court below is 
 reversed, and the cause remanded, with direction to that 
 court to enter a decree in conformity with the views here 
 expressed. 
 
 Decree reversed. 
 
SEC. IX] BUTI^ER V. BUTtJJR 361 
 
 SECTION 9.— DUTIES OF TRUSTEES. 
 
 BUTLER V. BUTLER et al 
 164 111., 171; 45 N. E. R. 426. 
 
 [Supreme Court of Illinois. Nov. 10, 1896.] 
 Baker, J. William Butler died intestate on January 11, 
 1876. He left surviving him three children, — Salome E. But- 
 ler, the appellant; Speed Butler, since deceased; and Henry- 
 Wirt Butler. The sixth clause of the will was as follows : 
 "I do further devise to said Jacob Bunn and John W. Bunn, 
 or the survivor, the sum of twenty-five thousand dollars 
 ($•2.5,000.00), in trust that said trustees or the survivor will 
 invest the same, and keep the same invested, in their discre- 
 tion, and after the payment of taxes and assessments upon 
 said fund, and upon real estate hereinafter devised for the 
 use of my beloved son. Speed Butler, will pay the remainder 
 of the annual income arising therefrom, from time to time, 
 as he may require such payments, to my said son Speed 
 V r, curing the full term of his natural life; and upon the 
 further trust that, after the death of my said son Speed But- 
 ler, the annual income arising from said sum of twenty-five 
 thousand dollars shall be divided into as many parts as my 
 said son Speed shall have heirs of his body surviving him, 
 and including and counting as one of such heirs Jeanie 
 M: Butler, the present wife of the said Speed , Butler, as 
 long and during the time she may remain unmarried and 
 the widow of the said Speed, and will pay to the said Jeanie 
 M. Butler as long as she remains unmarried and the widow 
 of the said Speed, annually, one child's part of the remain- 
 der of the said income, and will annually pay to the guar- 
 dian or guardians of such child or children of the said Speed, 
 to each one child's part of said remaining income, until they 
 respectively arrive at the age of twenty-one years, and will, 
 as such child or children respectively arrive at the age of 
 twenty-one years, pay to each its proportion of said sum of 
 twenty-five thousand dollars and the accumulations thereof, 
 reserving, however, therefrom, a sum sufficient to pay said 
 Jeanie M. Butler said one child's part as long as she may 
 
363 BUTLBR V. BUTI.ER [CHAP. IX 
 
 live unmarried and the widow of t|ie said Speed, and will, 
 upon the death of Jeanie M. Butler, pay over to such child 
 or children as aforesaid, or upon the marriage of the said 
 Jeanie M. Butler will pay the same to such child or children 
 as aforesaid; and upon the further trust that if the said Speed 
 should die, and leave surviving him no child or children, or 
 descendants of child or children, said trustees will pay said 
 sum of twenty-five thousand dollars, with the then accumula- 
 tions thereof, to my general heirs, reserving, however, a sum 
 sufficient to produce said child's part for the use of Jeanie 
 M. Butler as long as sne lives as such widow and unmarried, 
 and will, upon the death or marriage of the said Jeanie M. 
 Butler, pay over such reserved portion to my general heirs." 
 A similar trust was created by _ the will, with the same trus- 
 tees, as to the sum of $50,000 for the benefit of Salome E. 
 Butler, the appellant ; and also a similar trust, with same trus- 
 tees, as to $35,000, for the benefit of Henry Wirt Butler. 
 Still other trusts, both as to specified sums of money and as 
 to specified real estate, were created by the will, and there 
 were devises therein in fee and not in trust ; but for the 
 purposes of this appeal it is unnecessary to particularly men- 
 tion these other trusts and other devises. On February 17, 
 1879, Salome E. Butler, Speed Butler, and Henry Wirt 
 Butler exhibited their bill in chancery in the Sangamon cir- 
 cuit court against said Jacob Bunn and John W. Bunn, 
 ^trustees, and John T. Stuart, executor of the estate of said 
 William Butler, deceased, and such proceedings were had 
 in the cause as that at the May term, 1879, of the court, 
 said Jacob Bunn and John W. Bunn resigned as trustees, 
 and their resignations were accepted by the court ; and upon 
 an accounting it was found by the court that the personal 
 assets of the estate of the testator were insufficient to make 
 the full amount of the money legacies, and thereupon the 
 fund of $35,000.00 provided for in the sixth clause of the 
 will was reduced to $30,001.54. The court having discharged 
 the trustees designated by the testator, it appointed and con- 
 stituted Speed Butler to be trustee under clause 6 of the will, 
 and as such to receive said last-mentioned sum of money, 
 
SEC. IX] BUTLER V. BUTLER 363 
 
 "to hold and deal with the same according to the several 
 trusts and limitations attaching to the same under the tes- 
 tator's will;" and similar decrees made Salome E. Butler 
 and Henry Wirt Butler trustees, respectively, as to the sep- 
 arate funds in which they each, respectively, had life estates. 
 In conformity with the provisions of the decree, the $20,001.51 
 that constituted the fund under said clause 6 of the will nas 
 paid over to Speed Butler. At the time of the death of t'lie 
 testator, and also at the time of the entry of the decree, the 
 appellee Jeanie M. Butler, wife of said Speed, wa.- living, 
 as also were his three, and only three, children, — Jeanie K. 
 Butler (now Frazee), Arnold W. Butler, and Annie L. but- 
 ler (afterwards Loose) ; but neither the wife nor the cliil- 
 dreti were made partiesj to the bill or proceeding ; and at 
 that time said Speed had no other property save the pros- 
 pective income from 129 acres of entailed land. With a por- 
 tion of the trust money received by him. Speed Butler bought 
 from the McCrellis heirs 60 acres of land; and the laugiiagc 
 used in the deed was: "Convey and 'warrant to Speed fi.it- 
 ler, of the county of Sangamon and state of Illinois, trustee 
 for Annie L. Butler, Elizabeth J. Butler and Arnold W. 
 Butler." And with another portion he bought from the Chi- 
 cago & Alton Railroad Company about 5 acre's of land ad- 
 joining the 60 acres; and the deed therefor contained this 
 language : "Conveys and quitclaims to Speed Butler, trustee, 
 Annie L. Butler, Jeanie E. Butler, and Arnold W. Butler." 
 He thereupon began to sink a coal shaft upon the 65 acres 
 of land so purchased, and in so doing exhausted the residue 
 of the money received from the trustees named in his father's 
 will. ' Speed Butler thereupon borrowed from appellant 
 $13,000; and they joined in the execution of an agreement, 
 
 which bore date May , 1881, and was recorded June 11, 
 
 1881; and Speed assumed therein to contract "as trustee 
 of Annie L. Butler, Jeanie E. Butler, and Arnold W. Butler," 
 ahd to sell to appellant the one-fourth interest in the coal 
 mine. Said instrument was before this court in a suit 
 brought against appellant as surviving partner of Speed But- 
 ler, and it was held that she was, as to third parties, a co- 
 
364 buti,e;r v. buti^er [chap, ix 
 
 partner. Bank v. Butler, 149 III. 575, 36 N. E. 1000. And 
 on the same 14th day of June, 1881, said Speed Butler caused 
 to be recorded in the recorder's office a deed bearing date the 
 preceding day, wherein he, naming himself "trustee for Annie 
 L. Butler, Jeanie E. Butler, and Arnold W. Butler," as- 
 sumed to convey and warrant to appellant the one-fourth 
 interest in the mine. Both the agreement and the deed were 
 afterwards retained in his possession ; and it seems that 
 appellant signed the contract without reading it, her brother 
 informing her that it was a security for the $13,000 borrowed 
 from her; and she afterwards, in 1884, loaned him an addi- 
 tional $5,000. The mine was opened and developed during 
 the year 1881, and during that and the three succeeding 
 years Speed Butler took large quantities of coal therefrom. 
 On April 8, 1885, he died, insolvent and very considerably 
 in debt. Since the death of Speed Butler, the appellees, who 
 are the beneficiaries, as reversioners, under the trust created 
 by the sixth clause of the will of William Butler, have been 
 in the possession and control of the mine and of the lands 
 connected therewith, and have received the rents, issues, 
 and profits of the same. Appellant filed her original bill 
 herein on May 12, 1894; and on March 1, 1895, her amended 
 bill, upon which the hearing was had, was 'filed by leave of 
 court. Upon the coming in of the answers and replications, 
 the -cause was submitted to the circuit court upon the plead- 
 ings, exhibits, and testimony, and that court dismissed the 
 original and cross bills for want of equity ; and that decree 
 was subsequently affirmed by the appellate court. 
 
 It is stated by appellant that the suit is for an accounting 
 and recovery by one partner, held liable for partnership debts 
 as a partner, against the parties in possession of the part- 
 nership property. The case seems to have a dual aspect. It 
 is claimed — First, that appellant entered into a co-partner- 
 ship agreement with Speed Butler in a coal-mining venture, 
 and that appellees, having succeeded to the rights of said Speed 
 and being in possession and enjoyment of the partnership 
 property, are liable to account to appellant in respect to sa-d 
 partnership property; and, second, that appellant, having 
 
SBC. IX] butle;r v. butler , 365 
 
 loaned and advanced to Speed Butler moneys which were 
 used in developing the coal mine of appellees, is in equity 
 entitled to a lien for the recovery of such moneys. The wife 
 and children of Speed Butler were cestuis que trustent in the 
 fund created by the sixth clause of the will, and therefore 
 necessary parties to the chancery proceeding wherein ' the 
 trustees named in the will were removed, and a new trustee 
 appointed in their place. Said wife and children not being 
 parties, the appointment made was invalid as to them, and 
 gave to the trustee appointed no authority to make any con- 
 tract or to do any act that would be binding upon their re- 
 versionary rights and interests. The turning of the trust fund 
 over to him was, as to. them, a wrongful diversion of it from 
 the hands of those rightfully entitled to the custody and care 
 of it. It was a specific sum of money that was devised to the 
 trustees, and they were to "keep the same invested in their 
 discretion," and, after the payment of taxes on "said fund" 
 and on certain other mentioned property, pay the income 
 arising therefrom to the life tenant, and, after his decease, 
 to the reversioners in designated proportion, and at the re- 
 spective times specified in the will pay to each reversioner his 
 or her fixed "proportion of said sum and accumulations there- 
 of." It is plain' from the provisions of said clause, and from 
 the language used therein, that it was the intention of the tes- 
 tator that the trustees should invest said money, and keep it 
 invested, as a fund, in interest-bearing securities that were 
 readily convertible into money ; and when Speed Butler used 
 the money in purchasing lands, and in opening the coal mine 
 thereon and in mining operation, such acts were a perver- 
 sion of the fuxid. And this would be so even if it were 
 true (which it is iiot) that he was lawfully, in respect to the 
 rights of appellees substituted as trustee in the place and 
 stead of the testamentary trustees. It was the mandate of the 
 decree appointing him trustee, and under which he received 
 the money, that he should "hold and deal with the same ac- 
 cording to the several trusts and limitations attaching to the 
 same under the said testator's will and the provisions thereof." 
 Appellant was a co-complainant with Speed Butler in the bill 
 
366 BUTLER V. BUTLER [CHAP. IX 
 
 wherein the decree was obtained which took the trust fund 
 out of the hand of the trustees named in the will, and placed 
 it in the possession and under the control of said Butler. 
 She, of course, had full knowledge that none of the appellees, 
 or those to whose interests they have succeeded, were par- 
 ties to the proceeding or bound by the decree entered therein. 
 She, presumably, had full notice of the contents of the will 
 of her father, under which she took and held so many and 
 such large interests, and of the provisions of the decree of 
 court rendered at her instance. The recorded deeds from 
 the McCrellis heirs and from the Chicago & Alton Railroad 
 Company charged her with constructive notice that the trust 
 fund had in part been invested in the lands on which the 
 mine was located. The recitals in the agreement of May, 
 1881, which she signed, show that she therein assumed to 
 deal with Speed Butler "as trustee" of appellees. From the 
 other evidence in the record, and from the evidence as a whole, 
 , there can be no doubt she knew that the moneys that were in- 
 vested in the lands and in the mine were the trust fund created 
 by the sixth clause of the will, and in which the wife and chil- 
 dren of her brother had the reversionary interest. Knowing all 
 this, she was bound to know that, in the absence of express 
 authority, said fund could not be employed in trade or specu- 
 lation, or in the opening and operating of coal mines. She 
 was also bound to take notice that without such special au- 
 thority the trust fund or property could not be embarked in 
 a co-partnership business. The case of Bank v. Butler, 149 
 111., 575, 36 N. E. 1000, which is largely relied on by appel- 
 lant, falls far short of showing that there was a valid part- 
 nership, for the indebtedness of which the... trust property 
 would be liable. That decision merely held that under the 
 agreement signed by Speed Butler and appellant, and the 
 circumstances of the case, she (appellant) was liable as a part- 
 ner for the debt there in question, and as to third parties. 
 It was there expressly said, "No question as to the liability 
 of the trust estate of any cestui que trust arises on this rec- 
 ord." It is wholly immaterial whether, by the deeds from the 
 McCrellis heirs and from the railroad company, the titles to 
 
SEC. IX] BUTLER V. BUTIvER 367 
 
 the several tracts of land vested in Speed Butler, or by force 
 of the statute of uses the complete legal titles vested in his 
 infant children named in the conveyances. As we have al- 
 ready seen, appellant is chargeable with notice of the trust, 
 and of the rights, interests, and equities of appellees in the 
 lands and mining property; and it is the settled doctrine of 
 courts of chancery that cestuis que trustent may pursue the 
 proceeds of trust property, and charge with the original trust 
 any property in which they may be invested, as against all 
 who have actual or presumptive notice of the trust. Breit 
 V. Yeaton, 101, 111. 242. 
 
 It is urged that the trust money was already invested in 
 the lands and in the coal mine, and were exhausted, and the 
 mining plant still incomplete and unproductive, when the 
 money of appellant came to the aid of the enterprise, and, 
 saved the trust moneys from being entirely lost. It is at 
 least doubtful whether the advancement of the money which 
 enabled Speed Butler to finish opening up the mine, and 
 operate it for four years or more, was for the best interest 
 of or beneficial to, the reversioners. Within that time he 
 took out and exhausted the coal under about one-third of 
 the entire tract of the land, and, considering the proximity 
 of the land to the lines of the Chicago & Alton and Wabash 
 Railroads, it may well be questioned whether the comple- 
 tion and working of the mine left the property, after the ex- 
 piration of the life interest of Speed Butler therein, more 
 valuable than it would have been without the expenditure 
 of the moneys of appellant. Besides this, reimbursements 
 for improvements made upon the lands of others, through 
 confidence in a defective title, will not be allowed, except 
 where the true owners are compelled to come into court and 
 seek relief "in equity ; and here it is appellant, and not ap- 
 pellees, that brought suit, and the latter are asking no re- 
 lief. Williams v. Vanderbilt, 145 111. 238, 34 N. E. 476. In 
 contemplation of a court of equity, appellees do not own 
 the land and property as heirs at law of Speed Butler, but 
 as reversioners under the will of William Butler; they do 
 not stand in the shoes of the former, but are cestuis que 
 
368 WHITE V. SHERMAN [CHAP. IX 
 
 trustent, whose rights and interests have been jeopardized 
 and injured by his misconduct; and the acts and doings of ap- 
 pellant were in furtherance of his maladministration of their 
 estate. There is no error in the decree of the circuit court, 
 or in the judgment of the appellate court. They are af- 
 firmed. Affirmed 
 
 WHITE V. SHERMAN. 
 168 111., 589; 48 N. E. R., 128. 
 
 [Supreme Court of Illinois. Nov. 1, 1897.] 
 
 Error to appellate court First district. 
 
 Bill by Francis T. Sherman, James H. Swan, and others 
 against Catherine M. White. From a judgment of the ap- 
 pellate court (62 111. App. 271) modifying a decree for 
 complainants, defendant brings error. Affirmed. 
 
 This is a bill filed on April 15, 1895, by James H. Swan, 
 trustee of the trust estate created by the will of Francis C. 
 Sherman, deceased, and by the children and grandchildren 
 of said testator, against the plaintiff in error, Catherine M. 
 White, as executrix and sole legatee under the will of the 
 late Hugh A. White, deceased, for the purpose of compelling 
 the defendant to account for and turn over to said Swan, 
 as such trustee, certain moneys claimed to be due from said 
 White's estate to said trust estate. The bill seeks to re- 
 cover $29,450, which Hugh A. White, as trustee of the Fran- 
 cis C. Sherman estate, invested in certain railroad stocks 
 in 1888. It also seeks to recover certain sums of money 
 which White is charged with having received as commis- 
 sions pn insurance effected upon the trust property. An an- 
 swer was filed by Catherine M. White on April 16, 1895, 
 to which answer a replication was filed. After -the coming 
 in of the answer the bill was amended, a,nd by agreement the 
 answer as originally filed was to stand as the answer to the 
 bill as amended. On May 16, 1895, the cause was referred 
 to a master in chancery, who took testimony and made a 
 report. In his report the master found against the right 
 of the complainants to recover from the estate of White 
 
SEC. IX] WHITE V. SHERMAN 369 
 
 the original amount paid for the stocks, upon the alleged 
 ground that said complainants were estopped from disavow- 
 ing the acts of the trustee in purchasing said stocks, but the 
 report found that the estate o'f White was chargeable with 
 the commissions on insurance premiums received by him. 
 
 Objections were filed to the report before the master, and 
 exceptions thereto were filed in the circuit court. Upon the 
 hearing before the circuit court upon the exceptions to the 
 master's report, the circuit court entered a decree confirm- 
 ing the report of the master, except that it allowed the estate 
 of White credit for certain membership fees admitted to have 
 been paid by White as a member of a certain underwriters' 
 association, and except that it modified such report in cer- 
 tain minor particulars, not now in controversy. The decree 
 of the circuit court found that it was the duty of Swan, as 
 successor in trust, to receive said railroad stocks and the 
 dividends thereon as the property of the trust estate, and 
 directed that the plaintiff in error, Mrs. White, should in- 
 dorse and deliver the same to him, as such trustee, and that 
 he should accept the same in full satisfaction of any claims 
 on the part of said Sherman estate by reason of the purchase 
 of said stocks by said White. The decree also found that 
 plaintiff in error, as executrix aforesaid, was chargeable with 
 the amount received by White as such commissions, as above 
 mentioned, less such amount paid by him for membership 
 fees as aforesaid ; and plaintiff was ordered to pay over to 
 said Swan $2,596.04:, being the net amount of such commis- 
 sions, less membership fees, as above stated, with interest 
 from April 37, 1894, and the further sum of $145.50, with 
 interest from said date. Upon appeal to the appellate court 
 the latter court affirmed that part of the decree of the cir- 
 cuit court relating to the commissions on insurance premiums, 
 but in all other respects reversed the decree of the circuit 
 court, and remanded the cause, with directions to the circuit 
 court to enter a decree charging plaintiff in error with the 
 $-39,450, invested by said White in railroad stocks, making 
 proper deductions for dividends received thereon, and allow- 
 ing interest, with annual rests, on sums so invested, from 
 
370 WHITE V. SHERMAN [CHAP. IX 
 
 the date of the investment, at the rate of 6 per cent per 
 annum until July 1, 1891, and thereafter at the rate of 5 
 per cent, less the deductions for all dividends received, with 
 like interest, and with directions to order the payment by 
 plaintiff in error to said trustee. Swan, in due course of ad- 
 ministration, of the sum so ascertained, in addition to the 
 sum allowed on account of insurance commissions and in- 
 terest. The present appeal is prosecuted from the judgment 
 so entered by the appellate court. While the case was pend- 
 ing in the appellate court. Swan, the trustee, died; and Ed- 
 ward H. Reed, his successor in trust, having been duly ap- 
 pointed by the decree of the circuit court, was made a party 
 to this cause in the place of said Swan. 
 
 The facts necessary to an understanding of the questions 
 involved in this cause are as follows : 
 
 Francis C. Sherman died testate on November 7, 1870, 
 leaving, him surviving, his widow. Electa Sherman, and his 
 three children, Francis T. SherrAan, George C. Sherman, and 
 Martha S. Marsh, his only heirs at law. The widow, Electa 
 Sherman, has since died; and George C. Sherman, one of the 
 sons, has also since died. The latter at the time of his death 
 left no widow, nor any child, nor any descendant of a child. 
 Francis T. Sherman and Martha S. Marsh are the only 
 surviving children of said testator. Francis T. , Sherman 
 has four children, namely, Frances Ella Marsh, wife of Eben 
 J. Marsh; Lula M. Aldrich, wife of J. Frank Aldrich; Fran- 
 cis C. Sherman, whose wife is Myra Sherman ; and Eaton G. 
 Sherman, a bachelor, Martha S. Marsh has two children, 
 namely, Ida S. Charles, wife of J. Joseph Charles, and Edwin 
 Sherman, whose wife's name is Alida W. Sherman. 
 
 The will of Francis C. Sherman, deceased, provided, among 
 other things, as follows: "(3) I do give, bequeath, and de- 
 vise my real estate in said city of Chicago, known as' the 
 'Sherman House Property,' and described as lots seven (7) 
 and eight (8) in block thirty-four (34) in the original town 
 (riow city) of Chicago, in said county, with the hereditaments 
 and appurtenances, to Joshua L. Marsh of said city, as trus- 
 tee, and to his successors, forever. In trust, however, for the 
 
SEC. IX] WHITE V. SHERMAN 371 
 
 following uses and purposes, and upon the following condi- 
 tions, namely : Upon my death to take possession of said 
 Sherman House property, and collect and receive all the 
 rents, issue, and profits thereof then due or thereafter to 
 become due, and upon the termination in any manner of the 
 , lease of any portion thereof, or upon any portion thereof 
 becoming vacant, to rent the same to such person or, persons, 
 and upon such terms and conditions, as he may think best; 
 provided, and that no lease or demise shall be for a longer term 
 or period than ten years. (4) I do hereby authorize said 
 trustee to insure said property as he may think best, and in 
 case the same, or any portion thereof, shall be injured or 
 destroyed by fire or otherwise, to repair or rebuild the same, 
 and for that purpose to borrow money, if by him thought 
 advisable or necessary, upon such terms and conditions, and 
 for such time and times, and in such amounts, as he may 
 see fit, and to execute and deliver any and all necessary notes, 
 bonds, mortgages, deeds of trust, or other instruments in 
 writing, to secure the payment of the same, upon said Sher- 
 man House property, and to renew or extend the time o» 
 payment of any such loan, or again borrow money for the 
 payment of any such loan, or any I may have made on the 
 same, and secure the same as aforesaid. (5) After the pay- 
 ment of all taxes, rates, and assessments legally levied, as- 
 sessed, or imposed upon said property, and all premiums for 
 insurance, and all interest, as it matures, that may become 
 due upon money borrowed for the purchase, improvement, 
 rebuilding, or repairing of said property, or that may have 
 been borrowed by me and secured on said property, * * 
 * and all reasonable charges and expenses attending the ex- 
 ecution of this trust, I direct my said trustee to appropriate 
 the remainder of such rents, issues, and profita as follows: 
 Until the indebtedness hereinbefore referred to, for the pur- 
 chase, improvement, repairing, or building said property, shall 
 have been fully paid, I direct my said trustee to pay to my said 
 wife, the sum of six thousand dollars per annum, and to 
 each of my children living the sum of three thousand dollars 
 per annum, all payable quarter-yearly, and the remainder to 
 
372 WHITE V. SHERMAN [CHAP. IX 
 
 the payment of said indebtedness. After said indebtedness 
 shall have been fully paid, I direct said trustee to pay to 
 my said wife, while living, one-third of such remainder, and 
 divide the remainder among my children equally, and after 
 her death to divide the whole of such remainder among my 
 children equally. In case of the death of 'any of my said 
 children, the heirs of his or her body, if any, shall in all 
 cases represent him or her, and be entitled to his or 
 her share. It is my desire, and I hereby direct, that my said 
 trustee shall have, hold, and manage said Sherman Housfe 
 property entire and undivided, and appropriate the rents, is- 
 sues, and profits thereof in the manner hereinbefore speci- 
 fied, during the natural life of my said wife and children, 
 and until the death of the last survivor of them, and until 
 the youngest child of any and all of my said children shall 
 become and be of the age of twenty-one years, and then con- 
 vey the same to the heirs of my said children, the heirs of 
 each child representing and being entitled to one equal share. 
 In case of the death, resignation, refusal, or inability to act 
 of said trustee, I hereby direct that a new trustee be ap- 
 pointed by the county court of said county, upon the appli- 
 cation of any person interested, and notice to all the other 
 persons interested, with all the powers of said original trus- 
 tee ; and my trustee, before entering upon the duties of his 
 trusteeship, shall enter into a bond, with good and sufficient 
 security, to be approved by said court, in such sum as said 
 court may determine, payable to some one of my heirs for 
 the benefit of all concerned, conditioned for the faithful 
 performance of the duties of his trust, and file the same in 
 the office of the clerk of said court. (6) I direct that the 
 compensation to be received by any trustee in said will con- 
 templated for the performance of any duty of any kind or 
 description of such trustee, shall not exceed fifteen hundred 
 dollars." 
 
 Joshua L. Marsh, the trustee named in the will, qualified 
 and acted as such until some time in 1875, when he resigned ; 
 and George Taylor and Henry W. Leman, successively, were 
 appointed as his successors. Leman served until July 15, 
 
SEC. IX] WHITE V. SHERMAN 373 
 
 1885, when the circuit court of Cook county, by decree, de- 
 clared the trust vacant, and appointed said Hugh A. White 
 as trustee, under the provisions of the will. White qualified 
 as such trustee in 1886, by entering into a bond in the sum 
 of $50,000, conditioned for the faithful discharge of his 
 duties, and acted as such trustee until March 24, 1894, when 
 he died. When White entered upon the duties of the trust, 
 on October 31, 1886, there was a mortgage upon the Sher- 
 man House property to the Northwestern Mutual Life Insur- 
 ance company of $450,000, payable July 1, 1892. The will 
 required White, after payment of taxes, insurance, interest 
 on borrowed money, etc., to accumulate the rents, and, after 
 paying '$3,000 a year to each of the two children, Francis T. 
 Sherman and Martha S. Marsh, to apply the remainder of 
 the rents to the reduction of said mortgage. As the mort- 
 gage did not mature until July 1, 1893, rents accumulated in 
 the hands of the trustee. White invested some of these ac- 
 crmulated rents in the manner following, to wit : On Feb- 
 ruary 85, 1888, White, the trustee, purchased, with funds 
 belonging to the trust estate, 100. shares of stock of the Chi- 
 cago, Rock Island & Pacific Railroad Company, for $11,300, 
 taking the certificate therefor in his own individual name. 
 This purchase was made through the f^rm of L. A. Carton & 
 Co. On October 27, 1888, White likewise purchased, through 
 the firm of Winchester & Co., an additional 100 shares of the 
 Chicago, Rock Island & Pacific Railroad stock, and 100 
 shares of Missouri Pacific Railroad Company's stock, using 
 for such purchases $18,150 of the funds of said trust estate. 
 The total amount thus paid by White for said 300 shares 
 of railroad stock was $39,450. When White died, on March 
 24, 1894, he still had in his possession these railroad stocks ; 
 but their value had declined so that their market value at 
 the time of his death was only about $15,500, and they have 
 been declining in value ever since. On April 23, 1894, Fran- 
 cis T. Sherman filed his bill in the circuit court of Cook 
 county, making his children, and his sister and her children, 
 and plaintiff in error, the defendants thereto; praying the 
 court to appoint a new trustee, under the will, as the sue- 
 
374 WHITE V. SHERMAN [CHAP. IX 
 
 cesser of said Hugh A. White, deceased, and also praying 
 that plaintiff in error, Catherine M. White, should be required 
 to account with such trustee in reference to said trust estate. 
 On the next day (April 24, 1894) a decree was entered, by 
 consent, finding, among other things, that White, in his life- 
 time had made payments on said mortgage amounting to 
 $170,000, so that on January 1, 1894, there remained due 
 thereon the principal sum of $280,000 ; that, an extension of 
 the mortgage was also procured on July 1, 1892, until July 
 1, 1902, with the privilege of paying off the balance of the 
 mortgage in installments of not less than $20,000 on the 1st 
 day of January in each year, after first giving 60 days' notice of 
 his intention so to do; and which said consent decree ap- 
 pointed said James H. Swan to be the trustee of said Sher- 
 man estate, under said will, as successor in trust to said White 
 and ordered that within a certain time said Catherine M. 
 White, executrix as aforesaid, should turn over to said Swan 
 all the papers, deeds, leases, books, and documents of .the 
 estate held by her, and pay over all moneys of the estate in 
 her hands, and account with said Swan, so appointed as trus- 
 tee. On April 25, 1894, Swan filed his bond, which was duly 
 approved, and entered upon his duties as such trustee. Mrs. 
 White turned over to Swan part of the papers, etc., pertain- 
 ing to said estate, and paid to him the sum of $7,791.83, be- 
 longing to said estate. But plaintiff in error claims that said 
 300 shares of railroad stock belonged to said trust estate, and 
 should be charged thereto at the cost thereof. She offers to 
 transfer to said Swan, as trustee, the certificate of stock, in 
 payment of said sum of $29,450 used by White from the 
 funds of the Shermart estate for the purchase thereof. The 
 present bill seeks to compel plaintiff in error to pay over the 
 full amount of $29,450, which her husband invested in the 
 purchase of said stock. Said Swan, as successor in trust, re- 
 fuses to receive the depreciated stocks from plaintiff in error, 
 and claims that White's estate is liable for the original cost 
 thereof. 
 
 Magruder, J. (after stating the facts). The questions in- 
 volved in this case relate to the liability of the estate of Hugh 
 
SEC. IX] white; v. SHERMAN 375 
 
 A. White, deceased, growing out of his purchase of 300 shares 
 of railroad stocks with the funds of the Sherman trust estate, 
 and growing out of his collection of commissions upon pre- 
 miums paid by him for insurance upon the property of the 
 trust estate. Did White, as trustee of the Sherman estate, 
 have the right, or was he authorized, to invest the funds of 
 the estate in the railroad stocks in question? Did White, 
 as such trustee, have the right to appropriate to his own use 
 such commissions so as aforesaid received by him? 
 
 1. The will of Francis C. Sherman is silent as to the mode 
 of investing the accumulating rents prior to, the date for the 
 application thereof upon the mortgage resting upon the prop- 
 erty. Where there are no express directions in the instru- 
 ment creating the trust, and no statutory provisions, in re- 
 lation to the character of the securities in which trust funds 
 may be invested, a trustee cannot invest such funds in stocks, 
 bonds, or other securities of private business corporations. 
 In England, trustees are required to invest trust funds in 
 real estate securities or in the public securities of the Brit- 
 ish government. In this country the same requirement, in 
 regard to making investments in real estate securities, or gov- 
 ernment securities, is generally recognized by the courts. At any 
 rate, "all speculative risks are forbidden. 3 Pom. Eq. Jur. § 
 1074. The rule is that in the investment of trust funds the trus- 
 tee must not only act in good faith, and use sound discretion 
 and reasonable vigilance, but where he is appointed by a court, 
 and is acting under the directions of a court, he must select 
 such securities as the court will approve. 11 Am. & Eng. 
 Enc. Law, p. 814. In the case at bar the evidence shows that 
 the railroad stocks in which the trustee White invested the 
 trust funds of the Sherman estate were very fluctuating and 
 speculative. In fact, one of the witnesses speaks of them 
 as bei.ig "wild-cat" securities. The speculative character of 
 these securities was well known to the trustee White. White 
 dealt in such stocks through brokers for more than six years 
 before his death, buying and selling the same to the amount 
 of about $2,000,000. The amount of money, however, which 
 actually changed hands in the buying and selling of said 
 
376 WHITE V. SHERMAN [CHAP. IX 
 
 Stocks of the actual cash value of $2,000,000 was only about 
 $50,000. After he made his first purchase of these stocks, on 
 February 25, 1888, towit, of the 100 shares of Chicago, Rock 
 Island & Pacific Railroad stocks, and before he made his sec- 
 ond purchase, on October 27, 1888, such stocks had begun 
 to decline. The 100 shares first purchased were bought at 
 $113 per share, but in July, 1888, such had declined in value 
 to a sum less than $107 per share. Notwithstanding this 
 decline, White in October made another mvestment m the 
 same class of securities, by purchasing an additional 100 shares 
 of said Chicago, Rock Island & Pacific Railroad stock. 
 
 2. The evidence is clear that all the railroad stocks so 
 purchased by White were purchased in his own individ- 
 ual name, and not by him as trustee of the estate. The cer- 
 tificates made out when the stock was issued to him were 
 made out in his own name, and he appeared upon the books 
 of the company issuing the stock as the individual owner 
 thereof, and not as the owner thereof in trust for the estate 
 of which he was the trustee. In all his communications with 
 the beneficiaries in the trust for whom he was acting, whether 
 such communications were made to them orally or by writ- 
 ten report, he concealed or failed to mention the fact that 
 the stocks stood in his own name. When a trustee has in 
 fact converted trust funds to his own use, or, without au- 
 thority, has invested the trust funds in any other property 
 into which such funds can be distinctly traced, the cestui que 
 trust has an election either to follow the same into the new 
 investment, or to hold the trustee personally liable for the 
 breach of trust. 2 Story, Eq. Jur. §§ 1262, 1263; Breit v. 
 Yeaton, 101 111. 242. Whatever the actual intention of the 
 trustee may be, the weight of authority seems to be that, 
 where he invests trust money in his individual name, he com- 
 mits a breach of trust which subjects him to the same lia- 
 'bility as if there had been a willful conversion to his own use. 
 Morris v. Wallace, 3 Pa. St. 319; Stanley's Appeal, 8 Pa. 
 St. 431; McAllister v. Com., 30 Pa. St. 536; 2 Pom. Eq. 
 Jur. § 1079; Gilbert v. Welsch, 75 Ind. 557; Naltner v. 
 Dolan, 108 Ind. 500, 8 N. E. 289, and cases cited ; De Jarnette 
 
SEC. IX] WHITE V. SHERMAN 377 
 
 V. De Jarnette, 41 Ala. 708. The doctrine is a familiar one 
 that every presumption is indulged against the trustee who 
 has personal dealings with the trust. Where the conduct of 
 the trustee in relation to the trust property is fraudulent in 
 its tendency as well as in its nature, its consequences, if in- 
 jurious, are imputed to the trustee personally, and his estate 
 will be held liable therefor. 27 Am. & Eng. Enc. Law, pp. 
 193, 196. The authorities are uniform to the effect that the 
 trustee may not deposit the trust funds in his own name. 
 When he has converted the trust funds to his own use by 
 investing them in his own name, he will be held to a strict 
 accountability for the conversion, and the trust will follow 
 the investment, at the option of the cestui que trust. In such 
 cases a strict accounting will be exacted from him. 87 Am. 
 & Eng. Enc. Law, pp. 160-163; MacDonnell v. Harding, 7 
 Sim. 178 j Massey v. Banner, 1 Jac. & W. 241; 2 Pom. Eq. 
 Jur. § 1076; Jenkins v. Walter, 8 Gill & J. 218; Summers 
 V. Reynolds, 95 N. C. 404; Syne v. Badger, 92 N. C. 706; 
 Brown v. Dunham, 11 Gray, 42 ; WilHams v. Williams, 55 
 Wis. 300, 12 N. W. 465, and 13 N. W. 274. It is said that 
 Mr. White's books showed the purchase of these stocks with 
 trust funds, and that he reported the same to the heirs, and 
 that, therefore, he would be precluded from claiming them 
 as his individual property. This would undoubtedly be 
 true if the beneficiaries were claiming that they, and not 
 he, were the owners of the stocks ; but it is optional with the 
 beneficiaries either to take the stocks, or to call for the 
 amount originally invested therein, unless they are estopped 
 by acquiescence or ratification. 
 
 3. It is, however, claimed by plaintiff in error that the 
 complainants herein are estopped from questioning the in- 
 vestments made by White in these railroad securities, upon 
 the alkged ground that they had knowledge of such invest- 
 ments, and acquiesced in them. Such acquiescence and 
 knowledge are sought to be established by the testimony of 
 the stenographer who had been in the service of Mr. White 
 in his lifetime, and by the contents of certain reports relating 
 to his management of the trust, which he submitted to the 
 
378 WHITE V. SHERMAN [CHAP. IX 
 
 beneficiaries therein semi-annually. It is not, nor can it be, 
 claimed that any of this testimony in regard to acquiescence 
 is binding upon the trustee Reed, or his predecessor, the 
 trustee Swan, who were appointed long after the death of 
 White. Even though a trustee may have acted with the best 
 intention, yet, if the trust estate has been wasted by his 
 own breach of trust, there can be no question as to his lia- 
 bility, unless the beneficiary sanctions or acquiesces in the 
 wrong, with full knowledge of the facts or of his rights in 
 the premises. In order to bind a cestui que trust by acqui- 
 escence in a breach of trust by the trustee, it must appear 
 that the cestui que trust knew all the facts, and was ap- 
 prised of his legal rights, and was under no disability to 
 assert them. Such proof must be full and satisfactory. The 
 cestui que trust must be shown, in such case, to have acted 
 freely, deliberately, and advisedly, with the intention of con- 
 firming a transaction which he knew, or might or ought, with 
 reasonable or proper diligence, to have known, to be impeach- 
 able. His acquiescence amounts to nothing if his right to 
 impeach is concealed from him, or if a free disclosure is not 
 made to him of every circumstance which it is material for 
 him to know. He cannot be held to have recognized the 
 validity of a particular investment unless the question as to 
 such validity appears to have come before him. The trus- 
 tee setting up the acquiescence of the cestui que trust must 
 prove such acquiescence. The trustee must also see to it 
 that all the cestui que trustent concur, in order to protect 
 him from a breach of trust. If any of the beneficiaries are 
 not sui juris, they will not be bound by acts charged against 
 them as acts of acquiescence. The trustee cannot escape the 
 liability merely by informing the cestuis que trustent that he 
 has committed a breach of trust. The trustee is bound to 
 know what his own duty is, and cannot throw upon the 
 cestuis que trustent the obligation of telling him what such 
 duty is. Mere knowledge and noninterference by the cestui 
 que trust before his interest has come into possession do not 
 always bind him as acquiescing in the breach of trust. As 
 a general rule, acquiescence by a tenant for life or by a cestui 
 
SEC. IX] WHITE V. SHERMAN 
 
 379 
 
 que trust for life will not bind the person entitled to the 
 remainder.- Zimmerman v. Fraley, 70 Md. 561, 17 Atl. 560; 
 Kerr, Fraud (Bump's Ed.) pp. 297, 299-301; 2 Pom. Eq! 
 Jur. § 1083, note; 1 Perry, Trusts, §§ 285, 467; Kerr, Fraud 
 (Bump's Ed.) p. 312.; Association v. Siddal, 3 De Gex, F. 
 & J. 58. Imperfect information wilfbe regarded as equiva- 
 lent, to concealment, and a person is not estopped by his 
 silence when there is no positive duty or opportunity to 
 -speak; nor will mere delay, short of the period fixed as a 
 bar by the statute of limitations, preclude the assertion of 
 his equitable rights. Phillipson v. Gatty, 7 Hare, 516 ; Bisph. 
 Hill, Trustees, 526; 7 Am. & Eng. Enc. Eaw, p. 13, note, 
 and cases cited; 1 Perry, Trusts, § 467; Gibbons v. Hoag, 95 
 111. 69; Board of Sup'rs of Henry Co. v. Winnebago Swamp 
 Drainage Co., 52 111. 458. 
 
 Some testimony was introduced tending to show that early 
 in the year 1887 Mr. White called some of the beneficiaries in 
 the trust to his ofiice, and brought up the question as to how the 
 rents should be temporarily invested before the arrival of 
 the period for their application upon the mortgage. At this 
 interview all the beneficiaries were not present. Three of 
 them were absent. Two of them 'at that time were under age. 
 Only two, to wit, the two children of the testator, were en- 
 titled to any portion of the income from the rents. The 
 grandchildren of the testator were mere remainder-men. We 
 do not deem it necessary to enter into a discussion of the 
 question whether the remainder was a vested or a contingent 
 remainder. It is said that Mr. White then made some state- 
 ment about the difficulty of lending the money for short 
 periods by making real estate loans or call loans, and sug- 
 gested something about buying railroad stocks. The testi- 
 mony upon this subject is that of one witness, who was a 
 stenographer of Mr. White. It is not clear as to the ex- 
 tent to which he communicated with the beneficiaries upon 
 the subject of investing in railroad securities, but it is clear 
 that he was told by one of the beneficiaries present to use 
 his own judgment in regard to the matter. This statement 
 by one seems to have been concurred in by all the others who 
 
380 WHITE V. SHERMAN [CHAP. IX 
 
 were present. He was not thus authorized by them to invest 
 in railroad securities. They did not choose, and were not 
 bound, to exercise any judgment upon the subject. He had 
 control of the estate, and the matter of investment was en- 
 tirely within his own discretion, subject to the rules of law. 
 In saying to him that he should use his own judgment, they 
 merely said to him what the law had already said to him. 
 They refused to take any responsibility in the matter. We 
 cannot see that there was anything in the interview in 1887 
 upon this subject which amdunted to any authorization to him 
 to invest the funds of the estate in railroad stocks. The 
 stenographer who testified to this interview says that Mr. 
 White took the stocks in his own name so as not to be 
 obliged to apply to the court in case he should desire to sell 
 them. The reason given for not wishing to make such appli- 
 cation to the court was that it might be necessary to dispose 
 of the stocks quickly, and an application to the court would 
 create delay. We do not regard this reason for taking se- 
 curities in his own name as sufficient. He was a trustee 
 appointed by the court in accordance with the provisions of 
 the will, and it was his duty to call for the directions of the 
 court, when necessary, and 'to act under the orders of the 
 court, when necessary. It was not, therefore, proper for him 
 to put himself in such' a position as would relieve him from 
 the necessity of asking the directions of the court. As to 
 the reports which Mr. White made to the heirs semi-annually 
 we concur with the appellate court, which says in its opinion, 
 in regard to these reports, "That the reports were misleading 
 must be apparent to any one who, without other information, 
 should examine them." These reports concealed the fact 
 that the securities had been taken in Mr. White's name, and 
 also concealed the fact that the securities were steadily de- 
 clining in value all the time. The appellate court further 
 says : "In his report of July 1, 1888, which was the report 
 next following the purchase of the first 100 shares of the 
 Rock Island stock, it was made to appear that he had bought 
 for the estate some stock in that company, — but without speci- 
 fying how many shares,^to the amount of $11,300, and had 
 
SEC. IX] WHITE V. SHERMAN 
 
 381 
 
 received a dividend thereon. In his report of January 1, 1889, 
 which was the one next following the purchase of the 100 
 shares in the Missouri Pacific Company, and another like 
 number of shares in the Rock Island Company, he made no 
 mention of having purchased these stocks; but, presumably 
 in order to account for the money paid for them, his report 
 stated as follows : Td. Winchester & Co., acc't loan, voucher 
 No. 249, $18,150.00.' In that same report, under the head- 
 ing of 'Investments and Assets,' he stated : 'To cash invested 
 in railroad securities, $39,450.00.' This amount of $29,450 
 was the aggregate of his stock purchases, as already stated; 
 and it is 'carried along in all subsequent reports, down to and 
 including July 1, 1890, under the heading of 'Investments,' 
 as 'cash invested in railroad securities.' From this date it 
 is successively called 'cash invested in R. R. stock,' and 'in- 
 vested in stocks,' until, in the last report of January 1 1894, 
 it is denominated, under the heading of 'Resources,' as 'Sun- 
 dry railroad stocks, (cost) $29,450.00.' Wherever in ' the 
 reports there occurs a statement of receipts from the rail- 
 road companies, it is usually as 'interest,' but is sometimes 
 mentioned as 'dividends.' In none of the reports is it stated 
 except inferentially, that any Missouri Pacific stock had ever 
 been bought for the estate, or was held by it; and in but one 
 report (that of July 1, 1893) was it ever stated how many 
 shares of stock in either company was owned by the estate: 
 * * * With reference to the $18,150 now known to have 
 been invested in Missouri Pacific and the second lot of Rock 
 Island shares, and the certificates of which were taken in 
 White's individual name, there seems never to have been 
 any full disclosure thereof made by White. The report which 
 accounted for the money they cost showed on its face a loan 
 of that sum. It would seem to be hardly susceptible of any 
 . other reading by a person of ordinary understanding, and that 
 it would be so interpreted by an expert bookkeeper is shown 
 by the testimony of the expert who examined the reports in 
 connection with Mr. White's books of account, and testified 
 that the report showed a loan, instead of a purchase, and 
 that White's books showed the same, although it was other- 
 
383 WHITE ^'. SHERMAN [ CHAP. IX 
 
 wise conclusively proved that no such loan was ever made. 
 We are unable to comprehend how the furnishing of such 
 information can be regarded as coming within the rule that 
 demands full information of all that is material to be given 
 to one against whom estoppel by confirmation and acquies- 
 cence is invoked." We fully approve of the views thus ex- 
 pressed by the appellate court in their opinion in reference to 
 the reports in question. There is absolutely nothing in this 
 record to show that, when fully informed of these investments 
 in railroad securities, the parties in interest did not object 
 to the same and disapprove of the same. They are incompe- 
 tent witnesses, and could not testify in this case. As to the 
 report of July 1, 1899, upon which so much stress is laid, 
 that report merely states what the trustee had already done. 
 It does not ask the beneficiaries to advise him what he shall 
 do. The fact that he stated to them what he had done is not 
 evidence that they approved of what he had done. The re- 
 mainder-men cannot be estopped by the receipt of dividends 
 upon the stocks, because no such dividends were ever paid 
 to them. Nor is it apparent that such dividends entered into 
 the sums of $3,000 per year which were paid to the life 
 tenants. So far as it is shown to the contrary, such divi- 
 dends may have been applied, with other money, in payment 
 of the mortgage. Consequently we do not think that any 
 acquiescence can be inferred from the receipt by the parties 
 interested of dividends on the stock. The evidence does not 
 show that the question of the liability of the trustee for these 
 investments was ever raised, as between the trustee and the 
 beneficiaries. Kerr, Fraud (Bump's Ed.) 301, and cases 
 cited. The only positive testimony in this, case is that show- 
 ing the breach of trust. The testimony introduced to show 
 ratification or acquiescence in such breach is in the nature of 
 inference only. Upon the whole, our conclusion is that the 
 act of the trustee in investing the funds of the estate in these 
 speculative securities cannot be justified on the ground of 
 acquiescence or ratification on the part of the parties inter- 
 ested. 
 
 4. It is objected that plaintiff in error has been charged 
 
SEC. IX] WHITE V. SHURMAN 383 
 
 with compound interest. We think that she is chargeable with 
 interest at legal rates, with annual, rests, on the sums invested 
 by said White in said stocks, from the dates of the invest- 
 ments, less deductions for all dividends received, with like 
 interest. This rule, adopted by the appellate court, does jus- 
 tice to the parties, and is in accordance with the settled 
 policy of equity. Hough v. Harvey, 71 111. 72; Hughes v. 
 People, 111 111. 457; Lehman v. Rothbarth, 159 111. 370, 43 
 N. E. 777. 
 
 5. The plaintiff in error was liable for the full amount 
 of the commissions shown to have been received by her hus- 
 band on insurance premiums paid by him out of the trust 
 funds. He joined a certain underwriters' association, for the 
 purpose of getting a commission upon such premiums. He 
 was paid a commission of 7J4 per cent, on the premiums paid 
 by him for insurance on the Sherman House, and concealed 
 that fact from the beneficiaries. The law does not allow a 
 trustee to retain any personal gain which he may obtain in 
 such a manner as subjects him to the temptation of placing 
 himself in a position which may be hostile to the interests of 
 the estate, whether the estate is actually injured or not, 
 as a matter of fact. The fact that he was receiving commis- 
 sions might have subjected him to a temptation to place a 
 larger line of insurance than was necessary on the trust prop- 
 erty. It is not essential that the estate has suffered a loss from 
 what he has done. It is sufficient that he has gained a profit. 
 Whether the contract was beneficial or injurious to the estate 
 is wholly immaterial. An agent is only entitled to commis- 
 sions upon a faithful performance of all the duties of his 
 agency. One of these duties is to render to his principal 
 statements of all money received and profits made through his 
 agency. Fish v. Seeberger, 154 111. 30, 39 N. E. 983 ; Hoyt v. 
 Shipherd, 70 111. 309: 37 Am. & Eng. Enc. Law, 187, 194, 196; 
 1 Perry, Trusts, § 309 ; 2 Pom. Eq. Jur. § 1075; Gillett v. 
 Peppercorne, 3 Beav. 78. It was proper to deduct from the 
 commissions received by White the fees which he paid to the 
 underwriters' association in order to maintain his membership 
 therein. The law only charges him with the profits which 
 
384 WHITE V. SHERMAN [CHAP. IX 
 
 he made out of the trust estate. These profits consisted of 
 the commissions, less what he paid for membership fees. 
 
 6. It is said on behalf of the plaintiff in error that the 
 appellees herein are estopped by reason of a finding made 
 in the decree entered on April 24, 1894. That decree finds 
 among other things, that White "faithfully discharged his 
 duties as such trustee of said estate until the 24th of March, 
 1894, when he departed this life." The point is made that 
 the validity of White's acts in investing in the railroad se- 
 curities cannot be questioned in this present suit, because 
 he was found by such decree to have fathfully discharged 
 his duties. The finding in question is merely in the reciting 
 part of the decree, and is not part of the final order therein. 
 The decree in question was entered by consent. The object 
 of the bill filed on April 23, 1894, was to obtain the appoint- 
 ment of a trustee in the place of White, who had died. Swan 
 was finally appointed his successor - in trust, but Swan or 
 Reed, the main complainant in this suit, was not a party to the 
 suit begun on April 23, 1894. It is true that the decree of 
 April 24, 1894, appointed Swan successor in trust. But the 
 latter decree did not involve the question as to the liability 
 ' of White's estate to account for the money invested in the 
 railroad securities. Such liability was not a question in issue 
 in the suit in which the decree was rendered. Former adjudi- 
 cation, to constitute a bar, must have been on what was act- 
 ually in issue, and the determination of which was essentially 
 to the judgment. 6 Am. & Eng. Enc. Law, 794, note 4; 21 
 Am. & Eng. Enc. Law, 233 ; Riverside Co. v. Townshend, 
 120 111. 9, 9 N. E. 65. We are of the opinien that the mere 
 preliminary recital in the decree of April 24, 1894, that White 
 had faithfully discharged his duties as trustee, does not pre- 
 clude the complainants in the present suit from questioning 
 the validity of the investments here under consideration. The 
 judgment of the appellate court is affirmed. Affirmed. 
 
 Ace. Perm v. Pogler, 182 111., 76 ; Hentz v. Dennis, 216 111., 487. If 
 beneficiaries received and retain purchase money they can not disaffirm 
 a conveyance by the Trustee. Dickso v. New York Biscuit Co., 211 
 111., 468. 
 
SEC. X] WATERMAN V. AI^D^N 385 
 
 SECTION 10.— REMOVAL OF TRUSTEE. 
 
 WATERMAN et al v. ALDEN et al. 
 144 111., 90; 32 N. E. R., 972. 
 
 [Supreme Court of Illinois. Jan. 19, 1893.] 
 
 Appeal from appellate court, second district. 
 Bill by Robert W., Charles, Albert H., and James D. Water- 
 man, Sarah J. and Kate D. Moulton, Ellen L. Thomas, Caro- 
 line W. Syme, and J. Frank Wells, legatees under the will 
 of James S. Waterman, deceased, for themselves and all 
 others similarly situated who may join therein, against Phi- 
 lander M. Alden, George S. Robinson, Sarah E., Mary J. 
 Clayton, Charlotte and Caroline M. Waterman, Lizzie Chase, 
 and Jennie Kinney, to obtain an accounting from said Alden 
 and Robinson, to have them removed as trustees under said 
 will, and for* other relief. A decree was rendered, from 
 which the complainants appealed to the appellate court. That 
 court affirmed the decree, and complainants again appeal. Re- 
 versed. 
 
 Wilkin, J. On the 28th day of November, 1870, James S. 
 Waterman executed his last will and testament, by which he 
 gave his wife one-third of all his estate, and a specific leg- 
 acy of $5,000 in trust for the use of one Nellie Farnhdon. 
 The rest of his estate was disposed of by the following re- 
 siduary clause : "I give, devise, and bequeath all the rest, 
 residue, and remainder of my estate, both real and personal, 
 to the said Philander M. Alden and George S. Robinson, 
 * * * the executors of this, my last will and testament, 
 hereinafter nominated and appointed, in trust for the use and 
 benefit of my brothers and sisters, to wit, [naming them] 
 to have and hold, manage and control, the same for such 
 purpose, for and during the term of twenty-one years from 
 and after the date of my decease, and during the continuance 
 of said trust estate, as aforesaid, to receive, collect, and pay 
 over to my said brothers and sisters above named the net 
 income and profits thereof, in equal portions to each, annually, 
 the child or children of a deceased brother or sister to take 
 the same portion the father or mother would have taken if 
 
386 WATERMAN V. ALDfiN [CHAP. IX 
 
 living; and, at the expiration of said twenty-one years after 
 my decease, I give, devise, and bequeath to my said brothers 
 and sisters, their heirs and assigns, forever, the said rest, 
 residue, and remainder of my estate, both real and personal, 
 to be equally divided between them, share and share alike, the 
 child or children of any deceased brother or sister to take 
 the same share the father or mother would have taken if liv- 
 ing, and, in case of the death of any of my said brothers 
 or sisters leaving no issue, the share of such brother or sister 
 would have taken if living to be equally divided among my 
 surviving brothers and sisters." The testator died July 19, 
 1883, and on the 24th of the same month said will was duly 
 admitted to probate in the county court of De Kalb county, 
 whereupon said Alden and Robinson were qualified, and took 
 upon themselves the duties of executors and trustees, as in 
 and by the will provided. The estate was very large, being 
 inventoried at about $531,000 consisting of farm lands, and 
 other real estate to the value of $127,513.70, and the balance 
 in cash, notes and accounts, stocks, etc. The widow declined 
 to take under the will, and her husband having left no child 
 or children, or descendants of such, one-half of the entire 
 estate, real and personal, was partitioned and set off to her, 
 as provided by the statute in such case. The administration 
 was still pending and undetermined in said county court at the 
 filing of this bill. Said Alden and Robinson had reduced a part 
 of the trust property to possession, and made a partial distribu- 
 tion of the proceeds thereof to the beneficiaries, when on the 
 9th of June, 1887, Robert W. and Charles Waterman, surviv- 
 ing brothers of the testator, and certain children of deceased 
 brothers and sisters, claiming under said residuary clause, 
 began this action in the circuit court of said De Kalb county 
 against Alden and Robinson, to compel them to render an 
 account of their • trusteeship, to charge them with certain 
 losses to the trust estate by reason of their negligent and 
 wrongful conduct in and about the management of the same, 
 and to have them removed as such trustees, and others ap- 
 pointed in their stead. After protracted litigation a final de- 
 cree was rendered in the cause by the circuit court of L,ee 
 
SEC. X] WATERMAN V. ALDEN 
 
 387 
 
 county, to which it had been removed. The complainants car- 
 ried the record to the appellate court of the second district 
 by appeal. There both parties assigned errors, and an extended 
 statement of the case, with a very carefully prepared opinion 
 by Cartwright, J., was filed, (42 111. App. 294,) affirming the 
 decree of the circuit court in all respects. This appeal is from 
 that judgment of affirmance. The record is unusually volumi- 
 nous, and the argument of counsel on behalf of appellants has 
 taken an almost unlimited range. It would be impossible to 
 even casually notice all the points made, without extending 
 this opinion to an unreasonable length. For a full statement 
 of the facts of the case we refer to the opinion of the appellate 
 court. We also concur in the conclusion reached by that court, 
 as set forth in said opinion, except as hereinafter indicated. 
 
 The points more particularly pressed upon our attention are : 
 First, the circuit court erred in refusing to remove appellees 
 as trustees ; second, the circuit court erred in refusing to hold 
 said trustees personally liable for the loss of the "Marsh in- 
 debtedness;" third, the circuit court erred in its division of 
 the costs and expenses of the litigation. The parts of the 
 final decree relating to these assignments of error are as 
 follows: "It is further ordered, adjudged, and decreed that 
 the motion of complainants, filed herein on the 17th of July, 
 1890, for the removal of Alden and Robinson as trustees, 
 be overruled." "And it is further ordered, adjudged, and 
 decreed that this court has no jurisdiction to investigate the 
 charge against said Alden and Robinson or either, on account 
 of any alleged loss growing out of the failure of the Sycamore 
 Marsh Harvester Man'f'g Co., the Marsh Binder Man'f'g Co., 
 C. W. Marsh, and W. W. Marsh, or either, or two or more, 
 of them, or the alleged neglect of the said Alden and Robin- 
 son to collect or secure the payment of obligations owing by 
 them, or some of them, to the estate of James S. Waterman, 
 dec'd." "It is further ordered, adjudged, and decreed that 
 the expenses of this litigation be paid up to October 15, 1889, 
 as found by said master's report, to wit: $3,869.71, and the 
 attorneys' fees and attorneys' expenses in this cause paid or 
 incurred since October 15, 1889, as enumerated, and shown 
 
388 WATERMAN V. AI^DgN [CHAP. IX 
 
 by the testimony of D. J. Carnes and William Lathrup, heard 
 in open court, up to July 19, 1890, to wit : $1,348.27 to be allowed 
 said trustees in their accounts when they shall have actually 
 paid the same, and shall be charged to the principal fund, less 
 one-fourth part of the gross attorneys' fees therein included, 
 which one-fourth part is found by the court to be $988.62, 
 and which one-fourth part said trustees are ordered to bear 
 personally, leaving $4,229.36 to be charged to the principal 
 fund. This decree shall not be construed as allowing or dis- 
 allowing any other expense of this litigation paid or incurred 
 by said trustees since October 15, 1889. And it is further 
 ordered and decreed that the costs of this proceeding be taxed 
 as follows, — that is to say, that two-thirds thereof be paid 
 by the trustees, as such, out of the principal fund in their 
 hands, and one-third of said costs out of the distributable 
 income going to the complainants, and that in taxing the 
 costs the clerk allow $500 paid by stipulation on file herein 
 to Mason B. Ivoomis, and $360 paid by said trustees to Sher- 
 wood Dixon, as special masters, also payment by them of 
 $15.40 for witness fees, and $312.80 for depositions; which 
 sums, so far as paid by them, except that paid Master Dixon, 
 are shown by his report to have been paid, and embraced 
 in the items of $3,869.71 costs of this litigation. The clerk 
 will also tax, as part of the complainant's costs herein, the 
 sum of $392.86, paid by complainant for taking depositions ; 
 also $47.40 for certified copies of record, $2.50 for service of 
 subpoenas, $8 witness fees paid by complainants' solicitor. 
 The clerk will also tax the usual taxable costs incurred by 
 either party." We will consider the foregoing questions in 
 the order named, referring to the facts appearing in the rec- 
 ord especially applicable thereto. 
 
 There is no difficulty in finding the legal measure of care 
 arid diligence required at the hands of trustees in the man- 
 agement of a trust estate. Cases may be found holding that, 
 inasmuch as no compensation can be allowed them when not 
 expressly provided for, they can only be held liable for losses 
 which result from their gross negligence of willful miscon- 
 duct; but the rule undoubtedly is that they must discharge 
 the duties of their trust to the best of their skill and ability, 
 
SEC. X] WATERMAN V. AI,DEN 389 
 
 "with such care and diligence as men fit to be intrusted with 
 such matters may fairly be expected to put forth in their 
 own business of equal importance." 2 Story, Eq. Jur. § 
 1368b; 3 Pom. Eq. Jur. § 1070. The evidence in this case 
 clearly shows, and in fact it is admitted, that appellees were, 
 prior 'to the filing of this bill, guilty of some negligence in and 
 about the management of the trust property. First, they 
 wholly failed to keep proper accounts of the trust funds, and 
 of their dealings with the same, as will more fully appear 
 hereafter. In the second place, Robinson gave little or no 
 attention to the business, being much of the time absent from 
 the state. It will not do to say, as is attempted, that his 
 personal attention was not necessary to the proper manage- 
 ment of the business, in view of the fact that numerous letters 
 were written him by Alden, complaining of his continued ab- 
 sence, and demanding his presence and attention to the estate. 
 Finally, general negligence was shown in failing to promptly 
 collect or secure claims due the estate, especially owing by the 
 Marsh Manufacturing Companies. It does not follow neces- 
 sarily that, because of these acts of negligence, a court of 
 chancery should remove them. Courts of equity have a very 
 broad jurisdiction over trust estates and trustees, and will 
 remove the latter for a failure, through neglect or from will- 
 fulness, to perform their duties, or will compel them to carry 
 out the trust which -they have been appointed to and have ac- 
 cepted, as shall appear, under all the circumstances of a given 
 case, for the best interest of the estate and all parties inter- 
 ested in the same. In 3 Story, Eq. Jur. § 1389, it is said: 
 "It is not, indeed, every mistake or neglect of duty or inac- 
 curacy of conduct of trustees which will induce courts of 
 equity to adopt such a course, [remove the trustees,] but the 
 act or omission must be such as to endanger the trust property, 
 or .to show a want of honesty, or a want of proper capacity 
 to execute the duties, or want of reasonable fidelity." The 
 dereliction of duty on the part of these trustees seems to have 
 resulted from mere negligence rather than willfulness, and we 
 are of the opinion that the chancellor was justified, on the 
 whole record, in refusing to remove them. 
 
CHAPTER X. 
 
 MORTGAGES. 
 
 SECTION 1.— ESTATE OF MORTGAGEE. 
 
 NELSON V. PINEGAR. 
 30 111., 473. 
 
 [Supreme Court of Illinois. January Term, 1863.] 
 
 Breese, J., It is objected against the decree in this case, 
 that no proof was exhibited of the mortgage and decree, and 
 the subsequent proceedings under it. The answer of all the 
 defendants except Brebner, the mortgagor, neither admitted 
 nor denied the allegations of the bill in these particulars, and 
 the rule is well settled in this court, that the material allega- 
 tions of a bill in chancery, not admitted or denied by the 
 answer, must be proved by the complainant. This rule will 
 be applied in all proper cases, but this is not one demanding its 
 application. The complainant claims land as mortgagee in 
 fee of Brebner, one of the defendants, and the execution of 
 the mortgage and its forfeiture are fully admitted by him. 
 He was the only person having an interest in the land, and he 
 admits "the sale and conveyance of it. This mortgage, and 
 the proceedings under it in chancery, whereby it was fore- 
 closed and the premises sold, are made exhibits in the bill by 
 reference. They are a part of the files and records of the court 
 that heard the cause, and were examined and considered by 
 the court, as the decree expressly states. For the purposes of 
 this case, the allegations of the complainants were sufficiently 
 proved. 
 
 But if the proceedings to foreclose were not proved, still a 
 case is made out against the defendants by the exhibit of thg. 
 mortgage alone. The complainant, as mortgagee of the land, 
 was the owner of the fee as against the mortgagor and all 
 
 390 
 
SEC. l] BARRETT V. HINKLEY 391 
 
 claiming under him. He had the jus in re as well as ad rem, 
 and being so, is entitled to all the rights and remedies which 
 the law gives to such an owner. Delehay v. Clement, 3 Scam. 
 202; Vansant v. Almon, 23 111. 33; Carroll v. Ballance, 26 
 111. 17. 
 
 That the owner of land has a right to an injunction to stay 
 waste being committed upon it, it is unnecessary to argue. A 
 mortgagee of the fee, has the same right. Robinson v. Lit- 
 ton, 3 Atkins, 209 ; Brady v. Waldron, 2 Johns. Ch. 148, and 
 this, in a State where courts do not hold the mortgagee to be 
 the owner of the fee. If but a mere security for the debt, an 
 injunction is allowed to prevent a deterioration of that security. 
 The same doctrine obtains in Connecticut. Cooper v. Davis, 
 15 Conn. 561. And in Maryland. Salmon v. Claggett, 3 
 Bland Ch. R. 126 ; and there, when the mortgage debt was not 
 due. Murdock's case, 2 id. 461. 
 
 It is, on the whole, doubtful, if the mortgagee, before pos- 
 session taken, as any other remedy except by injunction, to 
 prevent waste. On the other facts, the proof was sufficient. 
 The decree is affirmed. 
 
 Decree affirmed. 
 
 Ace. William v. Chicago Exhibition Co., 188 III., 19. 
 
 BARRETT et al v. HINKLEY. 
 124 111., 32; 14 N. E. R., 863. 
 
 [Supreme Court of Illinois. January 19, 1888.] 
 Mulkey, J. Watson S. Hinkley, claiming to be the owner in 
 fee of the land in controversy, on the twenty-sixth day of 
 February, 1885, brought an action of ejectment in the su- 
 perior court of Cook county against the appellants, George D. 
 Barrett, Adalina S. Marrett, William H. Whitehead, and 
 others, to recover the possession thereof. There was a trial 
 of the cause before the court without a jury, resulting in a 
 finding and judgment for the plaintiff, and the defendants 
 appealed. The evidence tends to show the following state 
 of facts: In 1870, Thomas Kearns was in possession of the 
 land, claiming to own it in fee-simple. On August 3d of that 
 
393 BARRETT V. HINKtEY [CHAP. X 
 
 year he sold and conveyed it to William H. W. Cushman for 
 the sum of $80,000. Cushman gave his four notes to Kearns 
 for balance of purchase money, — one for $12,500, maturing 
 in 30 days; three for $16,875 each, maturing, respectively, in 
 two, three, and four years after date, — and all secured by a 
 mortgage on the premises. The notes seem to have all been 
 paid but the last one. In 1878, Kearns died, and his widow, 
 Alice Kearns, administered on his estate. Previous to his 
 death, however, he had hypothecated the mortgage and last 
 note to secure a loan from Greenebaum. Subsequently, and 
 before the commencement of the present suit, Greenebaum, 
 in his own right, and Mrs. Kearns, as administratrix of her 
 husband, for value, sold and assigned by a separate instru- 
 ment in writing the mortgage and note to the appellee, Wat- 
 son S. Hinkley. This is in substance the case made by plain- 
 tiff. The defendants showed no title in themselves or any one 
 else. The conclusion to be reached, therefore, depends upon 
 whether the case made by the plaintiff warranted the court 
 below in rendering the judgment it did. 
 
 It '"is claimed by appellants, in the first place, that much 
 of the evidence relied on by appellee to sustain the judg- 
 ment below was improperly admitted by the court, and va- 
 rious errors have been assigned 'upon the record questioning 
 the correctness of the court's rulings in this respect. They, 
 however, go further, and insist that, even conceding the facts 
 to be as claimed by appellee himself, they are not sufficient 
 in law to sustain the action. As the judgment below will 
 have to be reversed on the ground last suggested, it will not 
 be necessary to consider the other errors assigned. We pro- 
 pose to state as briefly as may be some of the reasons which 
 have led us to the conclusion reached. In doing so, it is per- 
 haps proper to call attention at the outset to some considera- 
 tions that should be steadily kept in mind as we proceed, 
 and to which we attach not a little importance. 
 
 It is first to be specially noted that this is a suit at law, 
 as contradistinguished from a suit in equity. It is brought 
 to enforce a naked legal right, as distinguished from an equit- 
 able right. The plaintiff seeks to recover certain lands, the 
 
SEC. l] BARRETT V. HINKI^EY 393 
 
 title whereof he claims in fee-simple. To do this he is bound 
 to show in himself a fee-simple title at law, as contradistin- 
 guished from an equitable fee. Fischer v. Eslaman, 68 111. 
 78; Wales v. Bogue, 31 111. 464; Fleming v. Carter, 70 111. 
 286; Dawson v. Hayden, 67 111. 53. Has he done this? He 
 attempts to derive title remotely through the mortgage from 
 Cushman to Kearns, but upon what legal theory is not very 
 readily perceived. His immediate source of title, however, 
 seems to be Mrs. Kearns, as administratrix of her husband, 
 and Greenebaum, as pledgee of the note and mortgage. The 
 instrument through which he claims is lost or destroyed, and 
 all we know concerning its character is what the plaintiff 
 himself says about it. As to its contents, he does not pretend 
 to state a single sentence or word in it, but characterizes it as 
 an assignment, and gives the conclusions which he draws 
 from it in general terms only. After stating his purchase of 
 the note and mortgage in January, 1880, he says : "The as- 
 signment was from Mrs. Kearns, the administratrix of 
 Thomas Kearns' estate, and Elias Greenebaum, the banker. 
 At the time of the purchase, a separate writing was given to 
 me, — a full assignment. * * * it was a very explicit as- 
 signment, or full assignment, of the note and mortgage, and 
 the land, the property, and all the right and title to the land." 
 It will be observed, the instrument is throughout character- 
 ized as an assignment only, which does not, like the term 
 "deed" or specialty, signify an instrument under seal. A 
 mere written assignment, founded upon a valuable considera- 
 tion, is just as available for the purpose of passing to the 
 assignee the equitable title to land as an instrument under 
 seal. Such being the case, we would clearly not be warranted 
 in inferring that the assignment was under seal, from the 
 simple fact that the witness gives it as his opinion that the 
 instrument was "a full assignment" of the land, which is 
 nothing more than the witness' opinion upon a question of law. 
 There not being sufficient evidence in the record to show 
 that the assignment was under seal, it follows that, even con- 
 ceding the legal title to the property to have been in Mrs. 
 
394 BARRETT V. HINKLEY [CHAP. X 
 
 Kearns and Greenebaum, or either of them, it could not have 
 passed to the appellee by that instrument, and, if not by it, 
 not at all, because that is the only muniment of title relied on 
 for that purpose. This conclusion is of course based upon the 
 fundamental principle that an instrument inter partes, in 
 order to pass the legal title to real property, must be under 
 seal. But this is not all. Even conceding the sufficiency of 
 the assignment to pass the legal title, the record, in our opin- 
 ion, fails to show that the assignors, or either of them, had 
 such title; hence there was nothing for the assignment to 
 operate upon, so far as the legal estate in the land is con- 
 cerned. Having no such title, they could not convey it. Nemo 
 plus juris ad alienum transferre potest, quam ipse habit. That 
 the legal estate in this property was not either in Greenebaum 
 or Mrs. Kearns at the time of the assignment to plaintiff is 
 demonstrable by the plainest principle of law. Let us see. 
 Thomas Kearns was the owner of this property in fee. He 
 conveyed it in fee to Cushman. The latter, as a part of the 
 same transaction, reconveyed it by way of mortgage to 
 Kearns. By reason of this last conveyance, Kearns became 
 mortgagee of the property, and Cushman mortgagor. Ac- 
 cording to the English doctrine, and that of some of the states 
 of the Union, including our own', Kearns, at least as between 
 the parties, took the legal estate, and Cushman the equitable. 
 According to other authorities, Kearns, by virtue of Cush- 
 man's mortgage to him, took merely a lien upon the property 
 to secure the mortgage indebtedness, and the legal title re- 
 mained in Cushman. For the purposes of the present in- 
 quiry, it is not important tb consider just now, if at all, which 
 is the better or true theory. It is manifest, and must be 
 conceded, that the legal estate in the land, after the exe- 
 cution of the mortgage, was either in the mortgagee or mort- 
 gagor, or in both combined. Such being the case, it is equally 
 clear appellee, to succeed, must have deduced title through one 
 or both of these parties. This could only have been done by 
 showing that the legal title had, by means of some of the 
 legally recognized modes of conveying real property, passed 
 from one or both of them to himself. This he did not do, 
 
SBC. l] BARRETT V. HINKI^EY 396 
 
 or attempt to do ; indeed, he does not claim through them, nor 
 either of them. Not only so; neither Mrs. Kearns nor 
 Greenebaum, through whom appellee does claim, derives title 
 through any deed or conveyance executed by either the mort- 
 gagor or mortgagee; nor does either of them claim as heir 
 or devisee of the mortgagor or mortgagee. 
 
 As the assignment of the note and mortgage to appellee 
 did not, as we hold, transfer or otherwise affect the legal 
 title to the land, it may be asked, what effect, then, did it 
 have? This question, like most others pertaining to the law 
 of mortgages, admits of two answers, depending upon whether 
 the rules and principles which prevail in courts of equity 
 or of law are to be applied. If the latter, we would say none; 
 because, as to the note, that could not be assigned by a sep- 
 arate instrument, as was done in this case, so as to pass the 
 legal title. Ryan v. May, 14 111. 49 ; Fortier v. Darst, 31 IJl. 
 213; Chickering v. Raymond, 15 111. 362. As to the mort- 
 gage, it is well settled that could not be assigned like ne- 
 gotiable paper, so as to pass the legal title in the 'instrument, 
 or clothe the assignee with the immunity of an innocent holder, 
 except under certain circumstances which do not apply here. 
 Railway Co. v. Loewenthal, 93 111. 433 ; Hamilton v. Lubukee, 
 51 111. 415 ; Olds v. Cummings, 31 111. 188 ; Mclntire v. Yates, 
 104 111. 491 ; Fortier v. Darst, 31 111. 213. But that the mort- 
 gagee, or any one succeeding to his title, might, by deed in 
 the form of an. assignment, pass to the assignee the legal as 
 well as the equitable interest of the mortgagee, we have no 
 doubt, though there is some conflict on this subject. 2 Washb. 
 Real Prop. 115, and authorities there cited. Yet the assign- 
 ors, in the case in hand, not having the legal title, as we have 
 just seen, could not, by any form of instrument, transmit it 
 to another. If, however, the rules and principles which ob- 
 tain in courts of equity are to be applied, we would say that, 
 by virtue of the assignment, the appellee became the equit- 
 able owner of the note and mortgage, and that it gave him 
 such an interest or equity respecting the land as entitled him 
 to have it sold in satisfaction of the debt. 
 
 There is perhaps no species of ownership known to the law 
 
396 BARESTT V. HINKLEY [CHAP. X 
 
 which is more complex, or which has given rise to more di- 
 versity of opinion, and even conflict in decisions, than that 
 which has sprung from the mortgage of real property. By 
 the common law, if the mortgagor paid the money at the 
 time specified in the mortgage, the estate of the mortgagee, 
 by reason of the performance of the condition therein, at 
 once determined, and was forever gone, and the mortgagor, 
 by mere operation of law, was remitted to his former estate. 
 On the other hand, if the mortgagor failed to pay on the 
 day named, the title of the mortgagee becanie absolute, and 
 the mortgagor ceased to have any interest whatever in the 
 mortgaged premises. By the execution of the mortgage, the 
 entire legal estate passed to the mortgagee, and, unless it was 
 expressly provided that the mortgagor should retain posses- 
 sion till default in payment, the mortgagee might maintain 
 ejectment as well before as after default. This is the- view 
 taken by the common-law courts of England, and which has 
 obtained, with certain limitations, in most of the states of the 
 Union, inclliding our own, in which the common-law system 
 prevails. In Carroll v. Ballance, 26 111. 9, which was eject- 
 ment by the mortgagee against the assignee of the mortgagor, 
 to recover the mortgaged premises, this court thus states the' 
 English "rule on the subject: "In England, and in many of the 
 American states, it is understood that the ordinary mortgage 
 deed conveys the fee in the land to the mortgagee, and under it 
 he may oust the mortgagor immediately on the execution and 
 delivery of the mortgage, without waiting for the period fixed 
 for the performance of the condition, [citing Coote, Mortg.' 
 339; Blaney v. Bearce, 3 Greenl. 132; Brown v. Cram, I'N. 
 H. 169; Hobart v. Sanborn, 13 N. H. 226; Paper-Mills v. 
 Ames, 8, Mete. 1.] And this right is fully recognized by 
 courts of equity, although liable to be defeated at any mo- 
 ment in those courts by the payment of the debt." Again, in 
 Nelson v. Pinegar, 30 111. 4-81, which was a bill by mortgagee 
 to restrain waste, it is said : "The complainant, as mortgagee 
 of the land, was the owner in fee, as against the mortgagor 
 and all claiming under him. He had the jus in re, as well 
 as ad rem, and being so , is entitled to all the rights and reme- 
 
SEC. l] BARRETT V. HINKLEY 397 
 
 dies which the law gives to such an owner." So, in Oldham v. 
 Pflegar, 84 111. 102, which was ejectment by the heirs of the 
 mortgagor against the grantee of the mortgagor, this court, 
 in holding the action could not be maintained, said : "Under 
 the rulings of this court, the mortgagee is held, as in England, 
 in law the owner of the fee, having the jus in re, as well 
 as the jus ad rem." In Finlon v. Clark, 118 111. 32, 7 N. 
 E. Rep. 475,' the same doctrine is announced, and the cases 
 above cited are referred to with approval. Taylor v. Adams, 
 115 111. 570, 4 N. E. Rep. 837. Courts of equity, however, from 
 a very early period, took a widely different view of the mat- 
 ter. They looked upon the forfeiture of the estate at law, 
 because of non-payment on the very day fixed by the mort- 
 gage, as in the nature of a penalty, and, as in other cases of 
 penalties, gave relief accordingly. This was done by allow- 
 ing the mortgagor to redeem the land on equitable terms at 
 any time before the right to do so was barred by foreclosure. 
 The right to thus redeem after the estate had become absolute 
 at law in the mortgagee was called the "equity of redemption," 
 and has continued to be so called to the present time. These 
 courts, looking at the substance of the transaction, rather 
 than its form, and with a view of giving effect to the real 
 intentions of the parties, held that the mortgage was a mere 
 security for the payment of the debt; that the mortgagor was 
 the real beneficial owner of the land, subject to the incum- 
 brance of the mortgage; that the interest of the mortgagee 
 was simply a lien and incumbrance upon the land, rather than 
 an estate in it. In short, the positions of mortgagor and 
 mortgagee were substantially reversed in the view taken by 
 courts of equity. 
 
 These two systems grew up side by side, and were main- 
 tained for centuries without conflict or even friction between 
 the law and equity tribunals by which they were respectively 
 administered. The equity courts did not attempt to control 
 the law courts, or even question the legal doctrines which 
 they announced. On the contrary, their force and validity 
 were often recognized in the relief granted. Thus, equity 
 courts, in allowing a redemption after a forfeiture of the legal 
 
398 BARRETT V. HINKLEY [cHAP. X 
 
 estate, uniformly required the mortgagee to reconvey to the 
 mortgagor, which was of course necessary to make his title 
 available in a court of law. In maintaining these two sys- 
 tems and theories in England, there was none of that con- 
 fusion and conflict which we encounter in the decisions of 
 the courts of this country; resulting, chiefly, from a failure 
 to keep in mind the distinction between courts of law and of 
 equity, and the rules and principles applicable to them respec- 
 tively. The courts there, by observing these things, kept the 
 two systems intact, and in this condition they were trans- 
 planted to this country, and became a part of our own sys- 
 tem of law. But other causes have contributed to destroy 
 that certainty and uniformity which formerly prevailed with 
 us. Chiefly among these causes may be mentioned the statu- 
 tory changes in the law in many of the states, and the fail- 
 ure of the courts and authors to note those changes in their 
 expositions of the law of such states. Perhaps another fruit- 
 ful source of confusion on this subject is the fact that in many 
 of the states the common-law forms of action have been abol- 
 ished by statute, and instead of them a single statutory form 
 of action has been adopted, in which legal and equitable rights 
 are administered at the same time, and by the same tribunal. 
 Yet the distinction between legal and equitable rights is still 
 preserved, so that, although the action in theory is one at law, 
 it is nevertheless subject to be defeated by a purely equitable 
 defense. Under the influence of these statutory enactments 
 and radical changes in legal procedure, by which legal and 
 equitable rights are given effect and enforced in the same suit, 
 the equitable theory of a mortgage has in many of these states 
 entirely superseded the legal one. Thus, in New York it is 
 said, in the case of Trustees, etc., v. Wheeler, 61 N. Y. 88, 
 "that a mortgage is a mere chose in action. It gives no legal 
 estate in the land, but is simply a lien thereon ; the mortgagor 
 remaining both the legal and equitable owner of the fee." 
 Following this doctrine to its logical results, it is held by the 
 courts of that state that ejectment under the Code will not 
 be at the suit of the mortgagee against the owner of the equity 
 of redemption. Murray v. Walker, 31 N. Y. 399. In strict 
 
^^^- 1] BARRBTT V. hinkli;y 399 
 
 conformity with the theory that the mortgagee has no estate 
 m the land, but a mere Hen as security for his debt, the courts 
 of New York, and others taking the same view, hold that 
 a conveyance by the mortgagee before foreclosure, without 
 an assignment of the debt, is in law a nullity. Jackson v. Cur- 
 tis, 19 Johns. 325; Wilson v. Troup, 2 Cow. 231; Jackson 
 v. Willard, 4 Johns. 41. And this court seems to have recog- 
 nized the same rule as obtaining in this state, in Delano v. 
 Bennett, 90 111. 533. 
 
 The New York cases just cited, and all others taking the 
 same view, are clearly inconsistent with the whole current 
 of our decisions on the subject, as is abundantly shown by 
 the authorities already cited. The doctrine would seem to be 
 fundamental that if one sui juris, having the legal title to 
 land, intentionally delivers to another a deed therefor, con- 
 taining apt words of conveyance, the title at law, at least, will 
 pass to the grantee ; but for what purposes or uses the grantee 
 will hold it, or to what extent he will be able to enforce it, 
 will depend upon circumstances. If the mortgagee conveys 
 the land without assigning the debt to the grantee, the latter 
 would hold the legal title as trustee for the holder of the mort- 
 gage debt. Sanger v. Bancroft, 12 Gray, 367 ; Barnard v. Eaton 
 2 Cush. 304; Jackson v. Willard, 4 Johns. 40. It is true, 
 the interest which passes is of no appreciable value to the 
 grantee. Thus, in the case last cited. Chancellor Kent, in 
 speaking of it says : "The mortgage interest, as distinct from 
 the debt, is not a fit subject of assignment. It has no determi- 
 nate value. If it should be assigned, the assignee must hold 
 the interest at the will and disposal of the creditor who holds 
 the bond." In Wait's Actions and Defenses (volume 4, p. 
 565) the rule is thus stated: "By the common law, a mort- 
 gagee in fee of land is considered as absolutely entitled to the 
 estate, which he may devise or transmit by descent to his 
 heirs." In conformity with this view, Pomeroy, in his work 
 on Equity Jurisprudence, (volume 3, p. 150,) in treating of 
 this subject, says: "In law, the mortgagee may convey the 
 land itself by deed, or devise it by will, and on his death 
 intestate it will descend to his heirs. In equity, his interest 
 
400 BARRETT V. HINKLEY [CHAP. X 
 
 is a mere thing in action, assignable as such, and a deed by 
 him would operate merely as an assignment of the mortgage; 
 and in administering the estate of a deceased mortgagee a 
 court of equity treats the mortgage as personal assets, to be 
 dealt with by the executor or administrator." We have al- 
 ready seen that under the decisions of this court, and by the 
 general current of authority, a mortgage is not assignable at 
 law by mere indorsement, as in the case of commercial paper. 
 But, on the other hand, the estate and interest of the mort- 
 gagee may be conveyed to the holder of the indebtedness, or 
 even of a third party, by deed with apt words of conveyance; 
 and the fact that it is in form an assignment will make no 
 difference. 3 Washb. Real Prop. 115, 116. Such an assignee, 
 if owner of the mortgage indebtedness, might, no doubt, 
 maintain ejectment in his own name for his own use. Or the 
 action might be brought in his name for the use of a third 
 party owning the indebtedness. Kilgour v. Gockley, 83 111. 
 109. So, in this case, if the action had been brought in the 
 name of Kearns' heirs for the use of Hinkley, no reason is 
 perceived why the action might not be maintained. 
 
 It must not be concluded, from what we have said, that 
 the dual system respecting mortgages, as above explained, 
 exists in this state precisely as it did in England prior to its 
 adoption in this country, for such is not the case. It is a 
 conceded fact that the equitable theory of a mortgage has, 
 in process of time, made in this state, as in others, material 
 encroachments upon the legal theory which are now fully 
 recognized in courts of law. Thus, it is now the settled law 
 that the mortgagor or his assignee is the legal owner of the 
 mortgaged estate, as against all persons except the mortgagee 
 or his assigns. Hall v. Lance, 25 111. 377 ; Emory v. Keighan, 
 88 111. 4:83. As a result of this doctrine, it follows that, in 
 ejectment by the mortgagor against a third party, the defend- 
 ant cannot defeat the action by showing an outstanding title 
 in the mortgagee. Hall v. Lance, supra. So, too, courts of 
 law now regard the title of a mortgagee in fee in the nature 
 of a base or determinable fee. The term of its existence is 
 measured by that of the mortgage debt. When the lat- 
 
SEC. l] BARRETT V. HINKLEY 401 
 
 ter is paid off, or becomes barred by the statute of limitations, 
 the mortgagee's title is extinguished by operation of law. Pol- 
 lock V Maison, 41 111. 516; Harris v. Mills, 28 111. 44; Gib- 
 son V. Rees, 50 111. 383. Hence the rule is well estabHshed at 
 law, as it is in equity, that the debt is the principal thing, and 
 the mortgage an incident. So, also, while it is indispensable 
 in all cases to a recovery in ejectment that the plaintiff show 
 in himself the legal title to the property as set forth in the 
 declaration, except where the defendant is estopped from 
 denying it, yet it does not follow that because one has such 
 title he may under all circumstances maintain the action; and 
 this is particularly so in respect to a mortgage title. Such 
 title exists for the benefit of the holder of the mortgage in- 
 debtedness, and it can only be enforced by an action in 
 furtherance of his interests; that is, as a means of coercing 
 payment. If the mortgagee, therefore, should, for a valuable 
 consideration, assign the mortgage indebtedness to a third 
 party, and the latter, a*Eter default in payment, should take 
 possession of the mortgaged premises, ejectment would not 
 lie against him at the suit of the mortgagee, although the legal 
 title would be in the latter, for the reason it would not be in 
 the interest of the owner of the indebtedness. In short, it 
 is a well-settled principle that one having a mere naked legal 
 title to land in which he has no interest, and in respect to 
 which he has no duty to perform, cannot maintain ejectment 
 against the equitable owner, or any one having an equitable 
 interest therein, with a present right of possession. This case, 
 with a slight change of the circumstances, would afford an 
 excellent illustration of the principle. Suppose the present 
 plaintiff had obtained possession under his equitable title to 
 the note and mortgage, and the heirs of Kearns, who had the 
 legal title, had brought ejectment against him, the action 
 clearly could not have been maintained, for the reasons we 
 have just stated. But it does not follow, because such an ac- 
 tion would not lie against him, that he could, upon a mere 
 equitable title, maintain the action against others. Cottrell v. 
 Adams, 2 BiSs. 351-353, 9 Myers, Fed. Dec. 240. The ques- 
 tion in that case was almost identical with the question in 
 
402 Hfil^M V. BOYD . [chap. X 
 
 this, and the court reached the same conclusion we have. See, 
 also, Speer v. Hadduck, 31 111. 439. 
 
 For the reasons stated, the judgment of the court below is 
 reversed, and the cause remanded for further proceedings 
 not inconsistent with this opinion. 
 
 Ace. Krause v. Wolte, 217 HI., 298; Bsker v. Heffernan, 159 III. 38; 
 Lightcap v. Bradley, 186 111., 510; Compare Kransz v. Nedelhofen, 193 
 111., 477; Walker v. Warner, 179 111., 16. 
 
 SECTION 2.— WHEN DEED MAY BE A MORTGAGE. 
 
 HELM V. BOYD. 
 124 III., 370; 16 N. E. R., 85t 
 
 [Supreme Court of Illinois. March 27, 1888.] 
 
 Magruder, J. The first question is whether the deed from 
 appellee and her husband to her father, John J. Helm, was 
 an absolute conveyance or a mere mortgage security. The 
 statute says : "Every deed conveying real estate, which shall 
 appear to have been intended only as a security in the nature 
 of a mortgage, though it be an absolute conveyance in terms, 
 shall be considered as a mortgage." Starr & C. Ann. St. c. 
 95, entitled "Mortgages," § 12, p. 1636. A deed absolute on 
 its face may be shown by parol to be a mortgage. The law 
 will, however, presume, in the absence of proof to the con- 
 trary, that such a deed is what it purports to be, — an absolute 
 conveyance. The party who claims an absolute deed to be a 
 mortgage must sustain his claim by proof sufficient to over- 
 come this presumption of the law. Before a deed absolute in 
 form will be held to be a mortgage, the evidence must be clear, 
 satisfactory, and convincing. It must be made to appear 
 clearly that such a conveyance was intended to be a mortgage 
 at the time of its execution. The question is one of intention, 
 to be ascertained from all the circumstances. Sharp v. Smith- 
 erman, 85 III. 153 ; Bartling v. Brasuhn, 102 111. 441 ; Bentley 
 V. O'Bryan, 111 111. 53; Workman v. Greening, 115 111. 477, 
 4 N. E. Rep. 385. 
 
 An examination of the testimony is necessary iji order to see 
 what the real intention of the parties was. It is not clear from 
 
^'EC. U] HELM V. BOYD 403 
 
 the evidence whether appellee's mother died before or after 
 July 1, 18:4. But it is admitted by counsel on both sides 
 that John J. Helm had a life-interest as tenant by the curtesy 
 in the one-seventh part of the premises in question, which 
 appellee inherited from her deceased mother. When she 
 deeded her one-seventh interest to her father, on January 
 10, l>>-3, she was only 20 }-ears old, and had been married 
 only about six months. Appellee swears that her father pro- 
 posed to her to advance -$1,000 to her husband, James S. Boyd, 
 to start him in business ; that her father said he did not want 
 the land, and that the payment of the 81,000 was merely an 
 advancement made to help her and her husband, and that it 
 would all come back to her; that he told her the land had 
 been left to her by her mother, and should all come back to 
 her and her children; that she never asked her father for 
 money when he proposed to advance money on the land; that 
 she never offered to sell the land to him, and he never offered 
 to buy it; that when she signed the deed he said to her: 
 'You and Jim are young yet, and I merely do this to have 
 a little jurisdiction over it. As for the deed being recorded, 
 there shall never be a scratch of the pen against your prop- 
 erty. As far as the 81,000 is concerned I will make that right 
 with the other children;" that in July, 188-5. when she learned 
 that her father had recorded the deed from her, and had made 
 ^a deed of the land to her brother, the appellant, she asked 
 him about it, and he replied : "I transferred to Jimmy Helm 
 under the same conditions that I got it from you, and he is 
 to let you have it back. I did it to keep Annie [the second 
 wife] and her children from getting a foothold; * * * 
 your brother will do what is right;" that when she made the 
 deed to her father, she did not know how much land she 
 owned or was conve}ing, or anj-thing about its value; that 
 an hour after she made the deed, her father paid $-500, and 
 the balance in small amounts from time to time : that there 
 was no agreement between her and her father about paying 
 him the $1,000," etc. 
 
 James S. Boyd swears that in November and December, 
 1881, and again about January 1, 1883, John J. Helm proposed 
 
404 HELM V. BOYD [chap. X 
 
 to advance money to him to go into business by buying an 
 interest in a printing office, and said he would take a quit- 
 claim deed on Helen's portion of the property, and let them 
 have $1,000, part of which he would pay next morning; that 
 "he requested me to explain the matter to my wife; he said 
 for me to have no fears, for the amount would all come back 
 to us children, and he would make it satisfactory with the 
 other children ;" that John J. Helm "ssrtd he took the deed to 
 have a little jurisdiction. over us and the amount he advanced 
 us, as we were both young, and that the deed should never 
 be recorded;" that he talked with his wife, and told her to 
 do what she thought best, and she said she was satisfied her 
 father would "stick to what he says;" that the next morning 
 he told Mr. Helm his wife "was willing to get or borrow the 
 money;" that neither he nor his wife knew the amount or 
 value the deed called for; that he never offered to sell his 
 wife's land to her father, nor asked him to furnish money to 
 go into business with ; that when the deed was made Mr. 
 Helm said : "I merely advanced this much money on the 
 place ; * * * eventually this will all come back to her ; I- 
 will see that it is made up to the other heirs ;" that his wife's 
 father never stated that he expected the $1,000 to be paid back 
 to him, and never asked for it. 
 
 Annie V. Helm, widow of John J. Helm, and step-mother 
 of appellee, swears that her husband told her, before Mrs. 
 Boyd made the deed to him, that he wanted to get the deed 
 to keep them from disposing of the land to Mr. Gray (the 
 brother of Helm's first wife ;) .that after her husband received 
 the deed, he said he intended to give it back to appellee, and 
 merely wanted to get it in such a way that she could not dis- 
 pose of it; that he never had the deed recorded on that ac- 
 count ; that appellant wrote to his father, advising the latter 
 to get a deed from Helm to prevent the land going into Gray's 
 hands, and that such letter was sent to Mrs. Malcom East- 
 wood, (appellant's sister,) to prevent it from falling into the 
 wrong hands; that on the evening before 'she and her hus- 
 band conveyed the premises to appellant, her husband said to 
 her : "He [appellant] wants me to make that property over 
 
SEC. Il] _ HEI,M V. BOYD 405 
 
 to him, and I don't want to do it;" that she (witness) did not 
 want to sign the deed to James, and reminded her husband 
 of his promise to give the land back to Helm, and he said that 
 "Jimmie would make it all right with her." 
 
 Jane Kelton swears: "A short time before John J. Helm 
 made the deed fo James M. Helm for said lands I heard 
 said John J. say Jimmie would hold the property for Ella the 
 same as he had, and Mrs. Helm objected to doing it." 
 
 George W. Cline, the attorney who drew the deed made by 
 appellee to her father, swears, that before the deed was exe- 
 cuted John J. Helm told him that he wanted the deed so that 
 he could control the property, and keep Boyd from disposing 
 of it "if he got to drinking;" and that he was afraid Gray 
 might get hold of it; that Helm also told him that the prop- 
 erty would go to Ella at his death, and that "he did not want 
 it to get mixed up with his other property." . 
 
 The testimony of Catherine A. Wintermute confirms the 
 evidence of appellee and Annie V. Helm in several particulars. 
 
 There is considerable amount of testimony in the record as 
 to the value of the land. After a careful examination of it, 
 we are satisfied that appellee's one-seventh interest in the 
 property, notwithstanding the fact that it was an undivided 
 interest, and subject to her father's life-estate, was worth very 
 much more than $1,000 when she made the deed to her father, 
 and when the latter made his deed to appellant. 
 
 Appellant testified as follows : "About the first of 1885 said 
 John J. Helm told me he had bought Mrs. Boyd's share of her 
 mother's estate; that he had advised her not to sell it, and 
 told her that at his death the property would be worth more 
 than she could then realize on it on account of his life-estate; 
 that she insisted on his buying it, and said .if he did not she 
 would sell to some one else ; that he bought the property to 
 keep it from falling into other hands, and paid her $1,000 for 
 it, and that he had to borrow money to pay for it. He pro- 
 posed that I buy it from him at the same price to prevent Mrs. 
 Helm No. 2 and her children getting a foothold in my estate." 
 
 Mary W. Helm, a sister of appellant and appellee, testified 
 on behalf of appellant as follows: "I heard a conversation 
 
406 HBLM V. BOYD [CHAP. X 
 
 between father and complainant, in which he advised her not 
 to sell her interest in said lands. He told her it would be 
 worth more at his death than she could get for it then. She 
 wanted $1,200, and he told her he could not give more than 
 $1,000; that he did not think anyone would give more than 
 that when they could not get possession until he died. She 
 said she would rather have the money then, to buy a home- 
 stead. They were on the front porch, and I was in the hall. 
 I think this was in July, 1881. I also heard pa tell Mr. Boyd 
 that he thought Ella was very foolish to sell her land." 
 
 John J. Helm, Jr., and J. R. Eastwood testified as to declara- 
 tions of John J. Helm, to the effect that he purchased the prop- 
 erty; but, as these declarations were made in his own favor, 
 and in the absence of appellee, they were clearly incompetent. 
 
 The circuit judge found that the deed from. appellee to her 
 father was a mere security, and we are unable to say that the 
 evidence does not sustain his finding. The relation in which 
 John J. Helm stood to his daughter naturally gave him great 
 influence over her. The price which he is claimed by appel- 
 lant to have paid her for her property was greatly below its 
 real value. Her statement that he promised not to record 
 the deed is confirmed by the fact that such deed, although 
 executed on January 10, 1882, was not, as a matter of fact, 
 recorded in White county, until June 9, 1884, nor in Wabash 
 county until January 31, 1885. It is true that she did not 
 agree to pay back the $1,000 at a definite time. Her father 
 would appear to have held out to her the idea that she would 
 get enough from his estate to pay back the $1,000, or that 
 there would be enough coming to her from his estate to can- 
 cel the indebtedness of $1,000. Still, the impression made by 
 the evidence is that, if he did not actually practice a fraud 
 upon her, he induced her to deed to him her property under 
 the belief that in some way it was to come back to her, and 
 that she was not to be troubled about repaying the amount 
 advanced to her. We said in Workman v. Greening, supra: 
 "If it shall appear, no matter what the form of the transac- 
 tion, that the conveyance is in fact but an indemnity or se- 
 curity, it will be held a mortgage ; and the character of Ha- 
 
SEC. Il] HELM V. BOYD 407 
 
 bility against which indemnity is intended, or the kind or 
 dignity of indebtedness intended to be secured, is important.' 
 
 The next question is whether appellant had notice of ap- 
 pellee's rights when he received the deed from his father of 
 his sister's one-seventh interest. There is testimony that he 
 had actual notice of such rights. Mrs. Helm, who is a disin- 
 terested witness, swears that when she and her husband were 
 having a conversation about her signing the deed to appellant, 
 and while she was reminding him of his promise to give the 
 land back to appellee, and was refusing to sign the deed he 
 wanted her to sign, the appellant was in the adjoining room 
 or hall, ^nd called out to his father "Make her sign it," — 
 showing that he heard the conversation. 
 
 The decree directs that there shall be returned to appellant 
 the $1,000 which he paid to his father, with interest thereon, 
 subject only to the deduction of rents received by him from 
 the property. We think the decision of the court below does 
 justice between the parties. The decree of the circuit court 
 is affirmed. 
 
 Ace. Fisher v. Green, 142 111., 80 ; Mry v. Mry, 158 III., 209 ; Bingett 
 V. Osborne, 173 111., 227 ; Williams v. Williams, 180 111., 360 ; Henton v. 
 Gamed, 198 111., 479 ; Ganno v. Mohr, 209 111., 180. 
 
CHAPTER XI. 
 
 SPECIFIC PERFOEMANCE. 
 
 SECTION 1.— WHEN ENTITLED TO RELIEF 
 IN EQUITY., 
 
 McCLURE V. OTRICH and Another. 
 118 111., 320; 8 N. E. R., 784. 
 
 [Supreme Court of Illinois. October 7, 1886.] 
 
 Mulkey, J. This is an appeal from a decree of the circuit 
 court of Alexander county dismissing a bill in equity filed 
 therein by the appellant, Caroline V. Mc'Clure, as devisee 
 under the will of her late husband, Thomas J. McClure, de- 
 ceased, against the appellees, Charles L. Otrich and his infant 
 son, Thomas J. M. Otrich, the former being the late husband, 
 and the latter the son and only heir of Mary Otrich, a de- 
 ceased daughter of the said Thomas J. McClure by a former 
 wife, to compel the specific performance of an alleged contract 
 of sale, by the said Mary Otrich to the said Thomas J. Mc- 
 Clure of certain real estate particularly described in the bill. 
 We perceive no difficulty in the case, either as to the law or 
 the facts. The land embraced in the contract, which is sought 
 to be enforced as to a part thereof in this proceeding, consists 
 of two tracts of 53 and 80 acres, respectively, and constitutes 
 a part of what is known as the McClure homestead. These 
 two tracts originally belonged to Polly McClure, the first wife 
 of Thomas J. ]\lcClure. She died intestate prior to 1853, 
 leaving her surviving Mary McClure, an infant daughter and 
 only child. Her father, as tenant by the curtesy, occupied and 
 cultivated these lands as part of the home- farm until his 
 daughter Mary's intermarriage with appellee Charles L. 
 Otrich, which occurred in March, 1878. About the time of 
 this event McClure commenced negotiations with his daugh- 
 
 408 
 
SEC. l] MC CtURE V. OTRICH AND ANOTHER 409 
 
 ter for the purchase of her reversionary interest in the two 
 tracts in question. ' After several interviews on the subject, an 
 understanding was reached between them in the month of 
 November, 1878, by which the daughter agreed to exchange 
 her interest in said lands for a place in that vicinity, belong- 
 ing to her father, known as the "James Farm," and $1,000 
 in cash, to be paid at the following harvest. The James 
 farm consists of 160 acres, and its rental value is shown to be 
 some seven or eight hundred dollars per annum. 
 
 In pursuance of this agreement, McClure, on the twelfth of 
 November, 1878, by the direction of his daughter, made and 
 delivered to her husband, Charles L. Otrich, a deed for the 
 James ^ farm, who thereupon took possession of the premises, 
 and from thence hitherto has had the undisputed control of 
 the same. On the thirtieth of July, 1879, McClure paid to 
 Otrich, with his wife's consent, $1,000, the balance due her 
 under this agreement, being in full performance of the con- 
 tract of purchase on his part. The conveyance by Otrich and 
 wife to McClure, of her interest in the home farm, was not 
 made at the time of the execution of McClure's deed to 
 Otrich, for the reason, as is shown by the testimony, the 
 parties, did not know the description of the land. 
 
 The matter was put ofif and neglected, from time to time, 
 until finally Mrs. Otrich died without its having been made 
 at all, leaving her surviving appellee Thomas J. M. Otrich, her 
 only child and heir at law. Her death occurred in March, 
 1880, at the town of Anna, in Union county, where she had 
 resided with her husband from the date of her marriage to 
 the time of her death. The fact of her living at a distance, 
 in another _ county, may, to some extent, account for her neg- 
 lect and ultimate failure to make a conveyance to her father, 
 as she should have done. 
 
 Thomas J. McClure died testate on the twenty-third of 
 August, 188.2. By his last will and testament he devised the 
 53-acre tract in question to his widow, the appellant, and the 
 west 40 of the 80-acre tract to Claud McClure, an infant son 
 by his last wife. The east 40 of the 80-acre tract was left, 
 doubtless by inadvertence, undisposed of by McClure's will. 
 
410 MC CIvURi; V. OTRICH AND ANOTHER [CHAP. IX 
 
 and the record shows in this case there was another suit in the 
 court below which was heard and determined together with 
 this, the object of which was to settle the rights and claims 
 of appellees and the children of McClure by his second wife 
 to the two 40's just mentioned. 
 
 The foregoing facts, so far as material to the relief sought, 
 are properly set forth in the bill, and were, in our opinion, 
 sufficiently proved upon the hearing, t is difficult, there- 
 fore, to conceive upon what grounds the court below 
 denied the relief prayed; for it is very clear none of the 
 objections urged by counsel for appellees justify the action 
 of the court in dismissing the complainant's bill, and denying 
 all relief. 
 
 The defense interposed by the answer was a simple denial 
 of the making of the contract set up in the bill, and a claim 
 that the James farm and $1,000 were merely a gift from Mc- 
 Clure to his son-in-law. Although the statute of frauds is 
 referred to in the argument by appellees' counsel, and is urged 
 as a defense to the bill, yet no such defense is interposed, or 
 even so much as referred to, in the pleadings, and consequently 
 that question is not involved in the case. Lear v. Chouteau, 
 23, 111. 39 ; Warren v. Dickson, 27 111. 115. 
 
 The decree, therefore, in view of the pleadings and proof, 
 we regard as manifestly unjust. It not only deprives the com- 
 plainant of all right and claim to the 53-acre tract of land, but 
 leaves Otrich in the absolute possession and ownership of the 
 James farm, to say nothing of the $1,000 paid by McClure 
 on the exchange. It is clear Otrich's title to this farm is abso- 
 lute at law, and if the widow and heirs are not entitled to 
 equitable relief as to it, they are simply without remedy. As 
 this farm is clearly shown by the weight of evidence to have 
 been conveyed to Otrich upon the faith of his wife's agi^ee- 
 ment to convey her interest in the home place to McClure, it 
 surely would be a travesty on legal justice, and wholly incon- 
 sistent with the great principles by which courts are univers- 
 ally controlled in administering equitable relief, to permit 
 Otrich to thus keep that farm, and his son to retain his moth- 
 er's interest in the home farm. We cannot give our sanction 
 
SEC. l] MC CLURE V. OTRICH AND ANOTHER 411 
 
 to the proposition that the arms of equity are too short to 
 reach such a case. 
 
 It is not to be understood from what is here said that we 
 regard the decree below erroneous because the court did nof 
 cancel and set aside the deed for the James farm. On the 
 contrary, as will appear further on, we think it very clear 
 no such a decree, under the bill as framed, could have been 
 ■properly entered. What is said in this connection is for the 
 purpose of bringing prominently to view the manifestly in- 
 equitable consequences that would result from a denial of the 
 relief prayed, and thus furnishing the most cogent of reasons 
 why it should be granted. It is claimed, however, by appel- 
 lees' counsel that the contract sought to be enforced is not 
 sufficiently proved. This claim is based chiefly on the alleged 
 incompetency of two of complainant's witnesses, namely, Vir- 
 ginia Finley and Caroline S. McClure, daughters of McClure 
 by appellant, his second wife, and complainants in the other 
 case, which was submitted with this, as heretofore stated. It is 
 true the controlling question is the same in both cases, namely, 
 whether the contract alleged to have been made between Mc- 
 Clure and his daughter Mrs. Otrich is sustained by the evi- 
 dence, and, if so, whether a court of equity, under the circum- 
 stances shown, should specifically enforce its execution. The 
 mere fact that the question is the same in both cases is clearly 
 insufficient to render the witnesses incompetent. The true 
 test in every case, where the testimony of the witness is 
 challenged on the ground of interest is, as stated by Green- 
 leaf in his work on evidence, "that the witness will either gain 
 or lose by the direct legal operation and effect of the judg- 
 ment, or that the record will be legal evidence for or against 
 him in some other action." Vol. 1, §§ 389, 390. That this 
 rule is substantially correct, is fully sustained by other text 
 writers, and the decided cases. 1 Phil. Ev. (S.d Ed.) 119-126; 
 Bennington v. Hethington, 16 Serg. & R. 193 ; Bent v. Baker, 
 3 Term R. 27. 
 
 Tested by these authorities, nothing could be clearer than 
 that the witnesses in question are competent, and their testi- 
 mony must therefore be considered in connection with that 
 
412 MC CLURE Z/..OTRICH AND ANOTHER [CHAP. IX 
 
 of the other witnesses in determining the rights of the parties. 
 It is manifest that, so far as the 53-acre tract is concerned, 
 which is alone in controversy in this suit, it is to them ^ mat- 
 ter of no legal consequence whatever whether a specific exe- 
 cution of the contract is decreed or not. If it is not decreed, 
 the infant son of Otrich will take it, subject to his father's 
 dower. On the other hand, if the complainant is successful, 
 she will take it absolutely in her own right. So that in neither 
 event would these witnesses take or lose anything. To the 
 suggestion they would be interested to the extent of the al- 
 ternative relief asked, we perceive no force in it. The al- 
 ternative prayer is that if the court cannot .grant the relief 
 prayed, that it will order and decree unto complainant "such 
 compensation as the facts and circumstances of the case re- 
 quire, embracing, if necessary, the cancellation of the deed 
 of November 12, 1878." It is sufficient to say that there is 
 nothing in the case made by the bill, or the proofs, either 
 with or without the testimony of those two witnesses, upon 
 which compensation could be allowed. The bill is not framed 
 with a double aspect, evoking to compensation, there is no 
 claim, either by appellant or appellees, that any of the lands 
 involved in the controversy are not just what they were rep- 
 resented to be in the negotiations between McClure and his 
 daughter; nor does either party pretend that there has been 
 any fraud, overreaching, or misapprehension on the part of any 
 one connected with the transaction. Hence there is not the 
 slightest foundation for the compensation theory. If this bill 
 had been filed to rescind and set aside the contract now sought 
 to be enforced, together with the deed made in pursuance 
 thereof, and the two witnesses in question had been called 
 to prove the facts relied on for a rescission, there would be 
 some force in the position of appellees ; but, as it is, there is 
 none. In that case they would have been called to testify in 
 their own ' interest ; for, if the suit proved successful, they 
 would have been entitled, as heirs of McClure, to a part of the 
 estate recorded. But, looking at the case in hand from that 
 aspect, we find it directly the reverse of the one suggested. 
 Here the witnesses were called to prove a state of facts which, 
 
SEC. i] MC CLURE V. OTRICH AND ANOTHER 413 
 
 if true, would clearly defeat any proceeding they might com- 
 mence to have the contract and conveyance in question set 
 aside,— the only possible way in which they could success- 
 fully assert any claim to the James farm. This shows con- 
 clusively that these witnesses were called to testify against 
 their own interest, in so far as the case may be considered 
 from the aspect suggested. 
 
 While we are satisfied there is really nothing in the objec- 
 tion, in any point of view, this affords a complete answer to 
 it from appellees' own stand-point; for it is well settled that 
 the rule which disqualifies a witness not a party to the record 
 does not apply to one who is called to testify against his own 
 interest, as was the case here. 1 Greenl. § 410. 
 
 The point is also made that Mrs. Finley and Caroline S. 
 McClure should have been made parties to the bill, and that 
 they were omitted merely for the purpose of making them 
 witnesses in the cause, which the law will not permit, and 
 that, for the purpose of determining their competency, they 
 must be treated as parties. We fully recognize this principle, 
 but it has no application whatever to the facts in this case. 
 As has already been shown, these witnesses had no interest, 
 either present or prospective, in the subject-matter of this 
 suit. Under the bill and proofs, no decree could have been 
 rendered either for or against them, and no relief was asked 
 of them. It would therefore have been altogether improper 
 to have made them parties to the bill. 
 
 As already indicated, counsel for appellees has treated the 
 case as though the statute of frauds had been interposed as 
 a defense, and his argument seems ta assume that the question 
 to be determined is whether the facts established show 
 such performance by McClure as to take the case out of the 
 statute, and, doubtless, the court fell into the same error, — 
 otherwise there is no- accounting for its action ; for, leaving the 
 statute of frauds out of view, no rule is better settled than 
 that it is just as much a matter of course for courts of equity 
 to grant specific performance of a contract for the conveyance 
 of land, where it is valid at law, fairly entered into, and unob- 
 jectionable in any of its features which address themselves to 
 
414 MC CLURE V. OTRICH AND ANOTHER [cHAP. IX 
 
 the judicial discretion of the chancellor, as it is for a court of 
 law to award damages for a breach of a like contract. And 
 in such case a court of equity is equally bound with a court 
 of law to grant the appropriate relief, when properly applied to 
 for that purpose. Here, as already seen, it is not claimed or 
 pretended that the contract in question is objectionable in any 
 particular whatever, and the evidence clearly shows there is 
 no foundation for any such claim. The appellees simply deny 
 the existence of the contract, and urge in argument merely 
 that, not being in writing, it is obnoxious to the statute of 
 frauds. The courts of one or two of the states hold, it is true, 
 that the statute may be availed of under a general denial of 
 the plaintiff's right, such as was set up in the answer in this 
 case; but the general and more reasonable doctrine on the 
 subject, and that to which this court is fully committed, is that 
 the statute, to be made available, must be pleaded. 
 
 But, even if the statute had been interposed in a proper man- 
 ner, we think it clear there was such a performance on the 
 part of McClure as would have taken the case out of the 
 operation of the statute; for, as already shown,, to deny the 
 relief in this case would be to aid by inaction the perpetra- 
 tion of a palpable fraud on the complainant, as devisee of her 
 husband. It is true, the mere payment by the purchaser of 
 a moneyed consideration will not, of itself, take a case out 
 of the statute, where that defense has been pleaded ; but that 
 is not the case here. Mrs. Otrich and her husband quietly 
 stood by, and permitted McClure to convey to the latter, in 
 part performance of his contract, a valuable farm, which the 
 grantee is still holding and enjoying, and now the only thing 
 appellees propose to do is to turn the devisees and heirs of Mc- 
 Clure over to a court of law, to make what they can in the way 
 of damages out of the broken contract, while the appellees, 
 between them, propose to hold all the lands involved in the 
 controversy. Even if the statute of limitations had not al- 
 ready run at law, is it not manifest the legal remedy would not 
 be so efficacious, — indeed, would be wholly inadequate? The 
 proposition seems too clear to admit of serious discussion. 
 
 The decree of the court below is reversed, and the cause 
 
SSC. Il] ' WOLMSACK V. BRIGGS 415 
 
 remanded, with directions to the circuit court of Alexander 
 
 county to set aside the order dismissing the bill, and to enter 
 
 a decree for the specific performance of the contract as therein 
 
 prayed. Reversed and remanded. 
 
 Ace. Koenxg v. Dohm, 209 111., 468; Fowler v. Fowler 204 111 82- 
 Clayton V. Semen, 233 111., 435. ' ' 
 
 SECTION 2.— CONTRACTS FOR PERSONAL 
 SERVICE. 
 
 WOLLENSACK v. BRIGGS. 
 20 111., App. 50. 
 
 [Appellate Court, First District. June 23, 1886.] 
 
 Bill by Wollensak, appellant, against Briggs, appellee, for 
 specific performance and discovery. On demurrer. 
 
 Bailey, P. J. "It is manifest that the bill in this case, in 
 its entire scope and purpose, is a bill to compel the specific per- 
 formance by the defendant of certain contracts between him 
 and the complainant. By these contracts the defendant under- 
 took to produce and construct, by his labor, skill, and invent- 
 ive genius, . certain improved machinery for manufacturing 
 speaking-tubes. Said machines, as the bill alleges, were to em- 
 brace and embody various new and useful improvements and 
 inventions made and to be made by the defendant. No de- 
 tails or specifications are given in the contracts as to the form, 
 material, structure, principle, or mode of operation of the pro- 
 posed machines, all these matters being left wholly to the judg- 
 ment and discretion of the defendant. Indeed, it is difficult 
 to see how it would have been possible to give any specifica-' 
 tioris and details of the machines, as some, and perhaps many, 
 of them had as yet no existence in the minds of the contracting 
 parties, but were to be invented and developed by the defend- 
 ant by means of subsequent thought, study, and experiment. 
 
 "There are at least two insuperable reasons why these con- 
 tracts cannot be specifically enforced in equity. The first 
 is that courts of chancery will not entertain bills to compel 
 the specific performance of contracts for personal services. 
 Especially is this true where the services stipulated for require 
 
416 WOIvLENSACK V. BRIGGS [CHAP. IX 
 
 the exercise of mechanical skill, intellectual ability, and the 
 exercise of judgment. Although some cases may be found 
 in the earlier reports holding contrary doctrine, the rule, as 
 we have stated it, is now well settled. Among the various 
 applications of the rule to be found in the reports the follow- 
 ing may be noticed : 
 
 "In Baldwin v. Society for the Diffusion of Useful Knowl- 
 edge, 9 Sim. 395, by an agreement between the plaintiff and 
 defendant, the former, in consideration of certain payments 
 to be made to them by the latter, were to have the exclusive 
 right of engraving and publishing a series of maps and draw- 
 ings to be furnished to them, from time to time, by the latter. 
 The court refused to restrain the defendant from acting in 
 violation of the agreement, as it could not compel the defendant 
 to furnish the drawing, and therefore could not decree the 
 specific performance of the agreement. 
 
 "In Clarke v. Price, 2 J. Wils. Ch. 157, the court refused to 
 decree the specific performance of a contract by which the 
 defendant agreed to compose and write reports of cases ar- 
 gued and determined in the court of exchequer, to be pub- 
 lished by the plaintiff. In pronouncing the decision the L,ord 
 Chancellor said : 'The only means of enforcing the execution 
 of this agreement would be to make an order compelling Mr. 
 Price to write reports for the plaintiff, which I have not the 
 means of doing. If there be any remedy in this case, it is 
 at law.' 
 
 "The same rule is applied to an agreement by a person to 
 act at a theater. Kemble v. Kean, 6 Sim. 333 ; Lumley v. 
 Wagner, 1 De Gex, M. & G. 604; Hamblin v. Dinneford, 3 
 Edw. Ch. 529. In the case last cited the court says : 'The 
 difficulty is how to compel specific performance. The court 
 cannot oblige the defendant to go to the theater and there per- 
 form particular characters. Imprisonment for contempt 
 would be the consequence of his refusal, and this would de- 
 feat the performance sought to be enforced. See, also, Ford 
 V. Jermon, 6 Phila. 6. 
 
 "In Stocker v. Wedderburn, 3 Kay & J. 393, the plaintiflf 
 being the owner of certain letters patent, entered into a writ- 
 
SEC. Il] WOLLESACK V. BRIGGS 417 
 
 ten agreement with other persons to form a joint stock com- 
 pany for the purpose of working the patents, he agreeing on 
 his part to sell the patents to the company on certain terms, 
 and take all requisite measures for obtaining patents in for- 
 eign countries, and to give his whole services to the company 
 for two years, and to do his best to improve the invention, 
 and to impart such improvements to the company; and it 
 was held that the plaintiff could not obtain specific perform- 
 ance of this agreement against his co-promoters, because, from 
 the nature of his own part of the agreement, the court could 
 not compel specific performance of it by him. See, also, Weibb 
 V. England, 29 Beav. 44, where the rule above stated is held 
 to apply to a contract to work as an apprentice, or to instruct 
 as a master, and Booth v. Pollard, 4 Younge & C. Ch. 61, where 
 it is applied to a contract to work quarries or coal mines. 
 
 "Another rule applicable to the specific performance of con- 
 tracts, to which courts of equity have uniformly adhered, is 
 that a bill for that purpose will not be maintained unless the 
 contract sought to be enforced is certain and definite in its 
 terms and in all its parts. Shenandoah Val. R. Co. v. Lewis, 
 76 Va. 833; achmeling v. Kriesel, 45 Wis. 325; Nichols v. 
 Williams, 22 N. J. Eq. 63 ; Colson v. Thompson, 2 Wheat. 336 ; 
 Los Angeles, etc., Ass'n v. Phillips, 56 Cal. 539; Bowman v. 
 Cunningham, 78 111. 48; 1 Story, Eq. Jur. § 767; Fry, Spec. 
 Perf. § 317 et seq., and authorities cited. 
 
 "The foregoing rule, especially in its application to a case 
 like the present, is so well stated and discussed in Blanchard 
 y. Detroit, L. & L. M. R. Co., 31 Mich. 43, that we feel justified 
 in quoting at length the following language from the opinion 
 of the court: 'The jurisdiction of equity in specific perform- 
 ance proceeds on the supposition that the parties have not 
 only agreed, as between themselves, upon every material mat- 
 ter, but that the matters so agreed upon are of such a nature, 
 and the subjects of enforcement so delineated or indicated, 
 either directly or by reference to something else, or so raised 
 to view by legitimate implication, that the court can and may 
 collect, and in their proper relations, all essential elements and 
 proceed intelligently and practically in carrying into execution 
 
418 WOLLENSACK V. BRIGGS [CHAP. IX 
 
 the very things agreed on and standing to be performed. If, 
 however, it appears, either that the things to be performed 
 are in their nature incapable of execution by the court, or 
 that needful specifications are omitted, or that material mat- 
 ters are left by the parties so obscure or undefined, or so in 
 want of details, or that the subjects of the agreement are so 
 conflicting or incongruous, that the court cannot say whether 
 or not the minds of the parties met upon all essential par- 
 ticulars, or, if they did, they cannot say exactly upon what 
 substantial terms they agreed, or trace out any practical line 
 where there minds met, the case is not one for specific per- 
 formance. As the court does not make contracts for parties, 
 so it never undertakes to supply material ingredients which 
 they omit to mention, and which cannot be legitimately con- 
 sidered as having been within their mutual contemplation 
 And where the party to perform is left by the agreement with 
 an absolute discretion respecting material and substantial de- 
 tails, and these are therefore indeterminate and unincorpo- 
 rated until by his election they are developed, identified, and 
 fixed as constituents of the transactions, the court cannot sub- 
 stitute its own 'discretion, and, so by its own act, perfect and 
 round out the contract.' 
 
 "If a court of equity should attempt to order a specific 
 execution of the contract in this case, it is manifest that insur- 
 mountable obstacles would immediately present themselves. 
 It would be impossible for the court to specify or describe 
 in its decree the machines to be constructed, their form, ma- 
 terial, or structure, or if it attempted to lay its mandate upon 
 the defendant to proceed with the invention and construction 
 of the machines stipulated for, it could never know with cer- 
 tainty whether its order was obeyed. If it should attempt to take 
 the execution of the contract into its own hands, it would be 
 met with equal difficulties. Its officer charged with the per- 
 formance of its decree would be powerless. The court would 
 thus find itself unable either to compel the defendant to exe- 
 cute the contract, or to cause it to be executed through any of 
 the agencies, by means of which courts of chancery ordinarily 
 enforce their decrees. 
 
SEC. Il] WOLLESACK V. BRIGGS 419 
 
 "It is urged, however, by the counsel for the complainant, 
 that a portion of the relief sought, viz., that the defendant be 
 required to show and exhibit to the complainant the plans 
 and drawings of said machines heretofore prepared by him, 
 and make disclosure and discovery to him of the principle and 
 structure of the machines already built, is not in the nature 
 of decreeing a specific performance of the contracts and there- 
 fore does not come within the principles above discussed. In 
 this we think counsel are mistaken. This particular measure 
 of relief, with which it is now suggested that they may be con- 
 tent, seems to us clearly to be nothing less than a partial exe- 
 cution of the contracts. The defendant's undertaking was 
 not merely to construct and deliver to the complainant certain 
 machines, but to embody in such machines various improve- 
 ments and inventions already made, and yet to be made, by 
 him. Obviously, the principal thing sought by the complain- 
 ant, and secured to him by the contracts, was the defendant's 
 improvements and inventions. The mere construction of two 
 machines, after their invention had been achieved, was quite 
 secondary, and relatively of little importance. These improve- 
 ments and inventions were to be assigned and transferred to 
 the complainant, and such transfer and assignment involved, 
 as a necessary and principal element, a complete disclosure 
 and discovery to him of the principle and structure of the ma- 
 chines, so as to enable him to avail himself of said inventions 
 and discoveries. Compelling the defendant to make the disclos- 
 ure and discovery asked for, and to place in the complainant's 
 hands plans and drawings of the machines, would be giving 
 him all the substantial and really valuable benefits of the con- 
 tracts, and would be for all substantial and valuable purposes 
 a specific execution of the contracts. 
 
 "We do not perceive that the case is at all changed by the 
 fact, averred in the bill, that the complainant, on being shown 
 the plans and drawings prepared by the defendant, approved 
 and was satisfied with the machines which they purported to 
 represent, and so informed the defendant. While, by the 
 terms of the contracts, the complainant was not bound to pay 
 the defendant the stipulated price until he approved, accepted, 
 
420 MORRISON V. HERRICK [CHAP. IX 
 
 and was satisfied with the machines, the question, after all, 
 is whether the machines built or partially built by the defend- 
 ant, and of which he prepared plans and drawings, were 
 really and in fact the machines contemplated by the contracts ; 
 for, if they were not, the plaintiff's approval imposed upon 
 the defendant no obligation to deliver them to him. So far as 
 the bill shows, those machines when completed, may have 
 proved failures equally with the first one built, which did not 
 seem to work. Unless they were capable of operating in the 
 manner, and of producing the results, stipulated for, they 
 cannot be held to be the machines contemplated by the con- 
 tracts, and the complainant had no right to claim them. 
 
 "If, therefore, the court had undertaken to compel the de- 
 fendant to make discovery of the principle and structure of the 
 machines built, it would still have been uncertain whether the 
 improvements and inventions thus disclosed were the ones con- 
 templated by the contract. Under such circumstances a spe- 
 cific performance will never be awarded. 
 
 "We are of the opinion that the demurrer to the bill was 
 properly sustained, and the decree will therefore be affirmed." 
 
 Affirmed same case 119 III., 453. Ace. Clark v. Trent, 183 111., 239. 
 
 SECTION 3.— STATUTE OF FRAUDS— PART 
 PERFORMANCE. 
 
 MORRISON et al. v. HERRICK et al. 
 130 111., 631; 22 N. E. R., 537. 
 
 [Supreme Court of Illinois. Oct. 31, 1889.] 
 Appeal from appellate court, first district. 
 Bailey, J. In this case, Harry Herrick and Charles K. Her- 
 rick filed their bill in chancery against Edward W. Morrison 
 to compel the specific performance by him of an oral agree- 
 ment alleged to have been made on or about June 1, 1884, for 
 a lease for a term of five years from May 1, 1885, of a cer- 
 tain store and basement known as "No. 115 East Madison 
 Street," Chicago. George A. Miner and others, comprising 
 the firm of Miner, Beal & Co., were also made parties defend- 
 ' ant ; it being alleged that said Morrison had fraudulently exe- 
 
SEC. Ill] MORRISON V. H^RRICK 421 
 
 CLited to them a lease of said premises, and had entered into 
 an unlawful and fraudulent conspiracy with them to eject the 
 complainants therefrom, and to deprive them of their right 
 to the possession and enjoyment thereof. The bill prayed that 
 said lease to Miner, Beal & Co. be held to be subject to the 
 complainants' rights, and inoperative as against them, and that 
 said Miner, Beal & Co. be restrained from interfering with 
 the complainants' possession of said premises. Defendant 
 Morrison answered, denying said oral agreement, and setting 
 up the statute of frauds, and also admitting that he had de- 
 mised said premises, together with certain other premises 
 thereto adjoining, to Miner, Beal & Co., for the term of five 
 years from May 1, 1886. Miner, Beal & Co. answered, and filed 
 their cross-bill, asserting the vaHdity of said lease to them, and 
 the priority of their rights thereunder, and praying that the 
 complainants in the original bill be decreed to surrender and 
 deliver up said premises to them. A demurrer to the cross- 
 bill was sustained, and the cause coming on for hearing, as 
 to the original bill, on pleadings and proofs, a decree was 
 rendered in accordance with the prayer of said bill. Said 
 decree was affirmed by the appellate court, and the record is 
 now brought here on appeal from that court. 
 
 It appears that Edward W. Morrison is, and for many years 
 has been, the owner of a four-story business building on the 
 northeast corner of Clark and East Madison streets, Chi- 
 cago. The first story of said building is divided up so as to 
 be used by several occupants for mercantile purposes; there 
 being in addition to one or more stores on the corner, not in 
 controversy here, three stores fronting on East Madison street, 
 known as "Nos. 113, 115, and 117," and a double store front- 
 ing on Clark street, known as "131 and 133." For several 
 years prior to the time said oral agreement is alleged to have 
 been made, the complainants had occupied No. 115 East Madi- 
 son street as a hat and cap store, under yearly leases executed 
 by Morrison to them, and at the date of said oral agreement 
 they were occupying it under a written lease for the term com- 
 mencing May 1, 1884, and ending April 30, 1885; the rent 
 J !,„;„„ <fx nnn n^vahle in monthlv installments of $250 
 
 rese 
 
 rved being $3,000, payable in monthly 
 
4:22 MORRISON V. HERRICK [CHAP. IX 
 
 each. The allegations of the bill in relation to the making of 
 the oral agreement, and the circumstances connected there- 
 with, are, in substance, that the complainants, during the time 
 they had occupied said premises, had been doing a flourishing, 
 profitable, and constantly increasing business, and that they 
 and their place of business had become widely known to the 
 public; that for the purpose of retaining their position, and 
 competing successfully with rival establishments, and of still 
 further extending their business and patronage, it became 
 very desirable that they should make extensive and costly im- 
 provements in their store, provided they could obtain a further 
 lease for a sufficient length of time to warrant such expendi- 
 ture; that they so informed said Morrison, and proposed to 
 him that if he would grant to them a lease of said premises for 
 a term of five years, to commence at the expiration of their 
 then existing lease, they would make certain extensive and 
 permanent improvements in said store, and would also put in 
 new and expensive cases and fixtures, thus rendering it as 
 fine if not the finest and most beautiful and attractive hat and 
 cap store in the city of Chicago ; that said. Morrison approved 
 of and assented to said proposition, and that it was thereupon 
 agreed between him and the complainants that he would exe- 
 cute to them a further lease of said premises for the term of 
 five years, beginning on the 1st day of May, 1885, and con- 
 tinuing until the 30th day of April, 1890, at a yearly rental of 
 $3,000 for the first year, payable in monthly installments of 
 $250, and at a yearly rental of $3,300 for each of the four re- 
 maining years, payable in monthly installments of $275 each. It 
 appears from the evidence, without any material controversy, 
 that, shortly after the time this agreement for a lease is al- 
 leged to have been made, the complainants proceeded to make 
 their proposed improvements; those of a permanent charac- 
 ter consisting of expensive panel work- upon the ceiling, fresco 
 painting on the walls, remodeling the front doors and win- 
 dows, and putting in stained or cathedral glass ; costing, in all, 
 about $1,700. They also constructed new cases of hardwood 
 and plate glass, fitted and adapted to the store, with pulleys 
 to raise and lower the doors and sashes, and also plate glass 
 
SH;C. hi] MORRISON V. HERRICK 423 
 
 mirrors, fitted and adapted to the spaces which they were to 
 occupy on the walls; the total expense of such fixtures being 
 about $3,300. To make room for these fixtures, those pre- 
 viously in use, and which cost $700, were removed and dis- 
 posed of for only $150 ; that being all they would bring. A 
 new furnace and new gas-fittings were put in, at a cost of 
 about $490. These expenditures were all made during 'the 
 months of July and August, 1884. The time occupied in fit- 
 ting up the store in the manner above indicated was from four 
 to six weeks, and during that time the complainants' business 
 was largely, if not wholly, interrupted, thus causing them con- 
 siderable additional loss. 
 
 The evidence in relation to the alleged contract for a lease 
 is in some degree conflicting, but after giving it careful con- 
 sideration, we are of the opinion that it is sufficient to warrant 
 the finding of the chancellor that such contract was in fact 
 made. We are not disposed to attempt an analysis of said 
 evidence in detail, but shall content ourselves with the gen- 
 eral statement that four witnesses testify positively to the 
 making of the contract, viz., Isaac Gardner, Louis Kohn, and 
 the complainants, and their testimony is to the effect that, 
 some time in the latter part of May or the first part of June, 
 1884, they and the defendant Morrison were together in the 
 complainants' store, and that a conversation was then and 
 there had between Morrison and the complainants, in which 
 the complainants stated their desire to fit up their store so as 
 to make it one of the most attractive in Chicago, by putting 
 into it elaborate and costly improvements and fixtures, at an 
 expense, as they then estimated, of from $6,000 to $10,000, 
 and that they would do so provided they could get from Mor- 
 rison a lease for the term of five years from the expiration 
 of their then existing term; that Morrison thereupon agreed 
 with the complainants, in view of their proposed heavy ex- 
 penditures, to give them a lease of said premises from May 
 1, 1885, to April 30, 1890, the rent to be $3,000 ^for the first 
 year, and. $3,300 per year for the four remaining' years. The. 
 testimony of these witnesses is corroborated, in some degree 
 at least, by the> evidence of several witnesses, who testify to 
 
424 MORRISON V. HERRICK [CHAP. IX 
 
 certain subsequent admissions of Morrison, both express and 
 implied, which tend to show that he had rented said premises to 
 the complainants for a term of several years. One of the com- 
 plainants also testifies that about May 1, 1885, he was noti- 
 fied to go to Morrison's office to sign the lease, and that on 
 going there he was presented with the draft of a lease for 
 only one year, which he refused to sign, and that Morrison, on 
 his attention being called to the fact that the draft was not 
 in accordance with the agreement, said that it was his clerk's 
 mistake, and that he would have it corrected. Defendant 
 Morrison, on the other hand, testifies that no such contract 
 as that alleged by the complainants was made, and that no 
 such conversation as that testified to by their witnesses ever 
 took place. His testimony, however, received but little, if any, 
 corroboration from the other witnesses. It is in direct con- 
 flict with that of all those who claim to have been present 
 at the time the contract is said to have been made ; and the 
 only mode in which his counsel have undertaken to bolster 
 up his testimony is by indulging in somewhat captious criti- 
 cisms upon the account of the transaction given by the com- 
 plainants' witnesses, and by urging the improbability that busi- 
 ness men like the complainants would be content to rely, in so 
 important a matter, upon the mere oral agreement of their 
 lessor. 
 
 The chancellor who tried the cause, and who saw and heard 
 the witnesses, reached the conclusion that the testimony of 
 the complainants and their witnesses in relation to the con- 
 tract was true; and the record, so far as we can see, furnishes 
 no ground which can justify us in holding the contrary. Be- 
 yond what has already been stated, no effort seems to have 
 been made by the complainants, prior to the commencement of 
 their suit, to obtain from Morrison the execution of a lease 
 in pursuance of his oral agreement. They claim to have been 
 on very friendly, and even intimate, terms with him, and that 
 they therefore trusted him more implicitly than they would 
 have done under other circumstances. On the 30th day of 
 April, 1885, the complainants' term under their former lease 
 expired, but they remained in possession, and continued to 
 
SEC. Ill] MORRISON V. HERRICK 425 
 
 pay Morrison at the rate of $3,000 per year. They claim that 
 their possession on and after May 1, 1885, was under the oral 
 lease for five years ; while Morrison and the other defendants 
 insist that the complainants, by remaining in possession, 
 merely assumed the position of tenants holding over under 
 their former lease. It appears that for several years prior 
 to May 1, 1885, Miner, Beal & Co. had been occupying No. 
 117 East Aladison street, and also Nos. 131 and 133 Clark 
 street, as a clothing store, under leases from Morrison. In 
 the summer of 1885, desiring to enlarge their establishment, 
 they entered into a negotiation with Morrison for a lease for 
 a term commencing May 1, 1886, of the premises then occu- 
 pied by them, and also of Nos. 113 and 115 East Madison 
 street. These negotiations resulted, about September 1, 1885, 
 in the execution by Morrison to Miner, Beal & Co. of a writ- 
 ten lease demising to them all of the foregoing premises for 
 the term of five years from May 1, 1886. The complainants 
 seem to have had no notice of said negotiations, or of the re- 
 sulting lease, until a considerable time after the lease was 
 executed, and then, having heard of them by rumor, they made 
 inquiries, and ascertained the facts^ and shortly afterwards 
 they brought this suit. 
 
 Regarding the oral contract for a lease as sufficiently proved, 
 the question arises whether such part performance has been 
 shown as will take it out of the statute of frauds. The rule 
 is well settled in courts of equity that oral contracts for the 
 sale of lands will be enforced where they have been so far 
 performed by one party that to permit the other party to re- 
 pudiate them would of itself be a fraud. The doctrine is that 
 equity will not permit a suitor to make use of the statute 
 against frauds as a means of perpetrating fraud, for the reason 
 that to do so would be to defeat the very purpose for which the 
 statute was enacted. Popham v. Eyre, Lofift, 808; Clinan 
 V. Cooke, 1 Schoales & L. -JS. As said by Mr. Story : "The 
 distinct ground upon which courts of equity interfere in cases 
 of this sort is that otherwise one party would be enabled to 
 practice a fraud upon the other, and it could never be the 
 intention of the statute to enable any party to commit such 
 
436 MORRISON V. HERRICK [CHAP. IX 
 
 fraud with impunity. Indeed, fraud, in all cases, constitutes 
 an answer to the most solemn acts and conveyances ; and the 
 objects of the statute are promoted, instead of being obstruct- 
 ed, by such a jurisdiction for discovery and relief." 1 Eq. 
 Jur. § 759. Various acts of part performance have been held 
 sufficient to take a contract out of the statute; and, among 
 others, the authorities all agree that taking and retaining pos- 
 session by the purchaser, with the consent of the vendor, and 
 making valuable improvements, constitute such part perform- 
 ance as will justify -a court of equity in enforcing the oral 
 contract. 2 Reed, St. Frauds, § 574, and authorities cited. 
 And it. is also held by many of the authorities that possession 
 alone, without payment or other acts of ownership, is a suffi- 
 cient part performance. Browne, St. Frauds, §• 467, and au- 
 thorities cited. Making valuable improvements for which the 
 use of the land is not an adequate return, and which cannot 
 be compensated for in damages, is a strong circumstance of 
 part performance ; and the making of such improvements has 
 been held to be sufficient in itself when the possession is not 
 of a satisfactory character. Shilliber v. Jarvis, 8 De Gex, 
 M. & G. 79 ; Pfiffner v. Railroad Co., 23 Ivlinn. 343 ; 2 Reed, 
 St. Frauds, § 588. "It has been said that nothing was to be 
 considered part performance of a contract for land which did 
 not include a change of possession in the land ; but this would 
 seem to be a merely arbitrary proposition, for there may be, 
 obviously, many acts done by the vendor or purchaser under 
 such a contract which would, from their irrevocable charac- 
 ter, and from the situation in which they would leave the 
 party performing,' demand' the specific enforcement of the con- 
 tract.". Browne, St. 'Frauds, § 466. 
 
 It is undoubtedly the rule that acts of part performance, 
 whatever they may be, must refer exclusively to the contract, 
 and be such as would not have been performed but for such 
 contract. They must be such as cannot be explained consist- 
 ently with any other contract than the one alleged; that is 
 to say, they must refer to, result from, and be done in pursu- 
 ance of, such contract. If, therefore, possession is relied upon 
 as an act of part performance, it must be possession under 
 
SEC. Ill] MORRISON V. HERRICK 437 
 
 the contract sought to be enforced. The continuance of pos- 
 session taken before the contract was made is accordingly not 
 usually held to be sufficient.' 2. Reed, St. Frauds, § 585. This 
 rule applies especially to cases where the previous holding is 
 under a lease; for, as the tenant may lawfully continue in 
 possession until notice to quit, such continuance in possession 
 is presumptively referable to the lease. It has therefore been 
 sometimes questioned whether, as between landlord and ten- 
 ant, part performance is possible; but the better doctrine 
 would seem to be that one continuing in possession is at lib- 
 erty to prove, if he can, that his possession after the termina- 
 tion of the former lease is under the oral contract. The ex- 
 penditure of money by the tenant in making improvements on 
 the premises, on the faith of the oral agreement for a lease, 
 may be viewed, not only as constituting of itself part perform- 
 ance sufficient to take the case out of the statute, but as fur- 
 nishing strong, if not conclusive, evidence that the possession 
 is continued under the oral contract, and not under the origfi- 
 nal lease. On the subject, it is said by Mr. Browne: "It is 
 always regarded as strongly confirmatory of the right of a 
 plaintiff, seeking the specific execution of a verbal contract 
 for an estate in land, that he has proceeded upon the faith 
 of the contract, and with the knowledge of the vendor, to 
 expend money in improving the land. In cases of purchasers 
 who were, before and at the time of the contract, tenants of 
 the same land, * * * it is often conclusive of the nature 
 and animus of their continued possession; thus serving to ex- 
 plain and define one act of part performance by means of a 
 superadded and corroboratory act. The propriety of admit- 
 ting this expenditure of money in improvements as a reason 
 for enforcing the contract is much more clear upon the equit- 
 able view of preventing fraud than is that of admitting the 
 taking or delivery of possession ; for, in many cases such im- 
 provements are carried to that point that they are quite inca- 
 pable of being compensated in damages." Browne, St. Frauds, 
 § 487. In Mundy v. Jolliffe, 5 Mylne & C. 167, a tenant who 
 went into possession of premises under a former lease ob- 
 tained from his landlord an oral contract for a renewal of 
 
428 MORRISON V. HJiRRICK [cHAP. IX 
 
 his lease for a further term, said contract stipulating, among 
 other things, for the making of certain improvements on the 
 demised premises. The tenant continued in possession, and, 
 after the stipulated improvements were made, brought his 
 bill for a specific performance of said contract; and it was 
 held, as a matter about which there could be no doubt, that a 
 sufficient part performance was shown. In Pfifiner v. Rail- 
 road Co., 23 Minn., 343, it was held that the making of a sub- 
 stantial improvements pursuant to an oral agreement to con- 
 vey the land improved, by a vendee, who was in possession 
 prior to and at the time of the agreement, is such a part 
 performance as takes the agreement out of the statute of 
 frauds. In Shillibeer v. Jarvis, 8 De, Gex, M. & G. 79 the 
 lessee under an oral agreement for a lease was wrongfully, 
 and without the authority of the lessor, let into possession, 
 but, being in possession, made certain repairs stipulated for in 
 the agreement ; and it was held that while the possession, be- 
 ing unauthorized, would not be deemed a part performance, 
 the making of the repairs was sufficient to take the case out 
 of the statute; that, if the delivery of possession had been 
 authorized by the lessor, there would have been two acts of 
 part performance. In Tate v. Jones, 16 Fla. 216, a tenant in 
 possession under a lease entered into an oral agreement with 
 his landlord for a purchase of the demised premises. After 
 making the agreement, he continued in possession, and made 
 valuable improvements on_ the premises ; and it was held that 
 the improvements constituted a sufficient part performance. 
 See, also, Ewins v. Gordon, 49 N. H. 444; Wills v. Stradling, 
 3 Ves. 381. 
 
 In the present case the evidence clearly shows the making 
 of valuable and costly .improvements by the complainants, and 
 also that said improvements were made under and in reliance 
 upon the oral agreement for a lease for a further term of five 
 years. These improvements may, in the light of the author- 
 ities above cited, be held to be of themselves a sufficient part 
 performance to take the case out of the statute. But this is 
 not all. The expenditures made by the complainants by way 
 of improvements serve to explain and characterize their sub- 
 
SEC. Ill] MORRISON V. HERRICK 439 
 
 sequent holding over after the termination of their former 
 lease. Presumptions are thereby raised which are sufficiently 
 cogent to overcome the ordinary presumption that a tenant 
 holding over does so under his former lease. It is against all 
 ordinary probability that after having expended $6,000, or 
 over, in reliance upon, and in performance of, the agreement 
 for a lease of five years, they were content to assume the at- 
 titude of mere tenants holding over; thus placing themselves 
 in a position where their landlord would be at liberty to termi- 
 nate their tenancy absolutely at the expiration of the first year, 
 and thus deprive them, without the possibility of adequate 
 recompense, of much the larger part of the benefit to be de- 
 rived from their expenditures. But we are not without other 
 and direct evidence that their possession after April 30, 1885, 
 was held, so far, at least, as any election on their part could 
 make it so, under the agreement for the five-year lease. On 
 or shortly after May 1, 1885, when presented by Morrison 
 with the draft of a lease for one year, and requested to sign 
 it, they refused to sign on the distinct ground that they were 
 entitled to a lease for five years. This was an assertion of 
 their right to possession under the oral contract, and a re- 
 pudiation of any other tenancy, and evidence that, so far 
 as their intention went, the possession was held by them, after 
 the expiration of the former lease, under the oral contract. 
 Morrison, according to the testimony of the complainant to 
 whom the draft on the one-year lease was presented, admitted 
 that the lease was so drawn by mistake, and promised to have 
 it corrected. This admission and promise may be taken as a 
 recognition of the position assumed by the complainants, and 
 as evidence of an assent to their possession in the character 
 in which they claimed to hold it. 
 
 But it is insisted that the doctrines above enunciated are 
 not in harmony with the previous decisions of this court. We 
 are referred to Wood v. Thornly, 58 111. 464, where it is 
 claimed a different rule is laid down. In that case a father 
 entered into a verbal contract with his two sons, in which he 
 agreed, in consideration of their past services, and for the 
 further consideration, among other things, that they would 
 
430 MORRISON V. HERRICK [CHAP. JX 
 
 furnish him a permanent home so long as he should live, to 
 convey to them certain land. The conveyances were 
 drawn up, but, before they were signed, some misunderstand- 
 ing arose, in consequence of which the father refused to exe- 
 cute them, or to be bound by the contract. The sons had 
 lived on and worked the land for several years after attain- 
 ing their majority, and after the refusal of their father to 
 make said conveyances they continued as before in possession 
 of the land, working it as their own, paying the taxes and re- 
 taining the proceeds for their own benefit, until the death of 
 their father. The evidence failed to show that they were in- 
 duced by the contract to make any improvements on the land 
 over and above what were required by ordinary husbandry, 
 and for which they were amply compensated by the rents and 
 profits. In the course of the opinion it was said : "To con- 
 stitute such performance as will avoid the statute, it must 
 clearly and distinctly appear that the party entered into pos- 
 session under the agreement itself, and was allowed and in- 
 duced to make expenditures of money, and to make valuable 
 and permanent improvements. The mere possession of land 
 under a parol agreement of sale, even with the superadded 
 fact of valuable improvements, will not be deemed part per- 
 formance, if the possession was obtained otherwise than under 
 the contract." Specific performance was denied on the ground 
 that the possession was not shown to have been taken under 
 the oral contract. As no improvements appear to have been 
 made the question did not arise as to whether, or how far, 
 the making of valuable permanent improvements in pursuance 
 of the contract might not of itself have constituted part per- 
 formance, or served to explain and give character to the pos- 
 session, so as to prove that possession was in fact being held 
 under the oral contract, though originally obtained in some 
 other way. Very much the same thing may be said of Padfield 
 V. Padfield, 92 111. 198, where the foregoing language of the 
 opinion in Wood v. Thornly was cited with approval. That 
 was also a case of a contract between father and son ; and the 
 evidence, both as to possession and improvements, was sub- 
 stantially the same as in Wood v. Thornly. No improvements 
 
SEC. Ill] MORRISON V. HERRICK 
 
 431 
 
 being shown, the case was decided on the ground that pos- 
 session was not shown to have been taken in pursuance of the 
 contract. What was said in relation to improvements was 
 in no way necessary to the decision of the case. In Pickerell 
 V. Morss, 97 111. 320, the sole question was whether possession 
 was held under the oral contract; the legal effect 'of improve- 
 ments put upon the land in pursuance of the contract not be- 
 ing presented. Kaufman v. Cook, 114 111. 11, was decided 
 upon the ground that, at the time the possession was taken and 
 the improvements made, the contract relied upon was one 
 which would not have been binding even if it had been in 
 writing. In none of the foregoing cases was the question 
 now before us presented for decision; and remarks made in 
 those , cases having an apparent bearing upon said question 
 cannot be regarded as authority. 
 
 The remaining questions in the case will require but few 
 words. It is, claimed that Miner, Beal & Co. took their lease 
 without notice, actual or constructive, of the oral agreement 
 between Morrison and the complainants, and that they should 
 therefore be preferred as bona fide purchasers for value. To 
 this claim there seem to be two sufficient answers. In the 
 first place, so long as the complainants must be deemed to have 
 been in actual possession under their oral contract at the time 
 the lease to Miner, Beal & Co. was executed, we see no reason 
 why such possession should not be deemed constructive no- 
 tice to them of the complainants' rights. In the second place, 
 it does not appear that Miner, Beal & Co., at the time they 
 are shown to have received actual notice of the oral contract 
 with the complainants, had paid any rent or expended any 
 money under the lease to them. The term of their lease did 
 not commence to run until May 1, 1886 ; and the bill in this 
 case had been filed, and Miner, Beal & Co. had entered their 
 appearance in the suit, a considerable time prior to that. There 
 is no evidence that Miner, Beal & Co., at the time they were 
 charged with full knowledge of the averments of the bill, had 
 paid out a dollar, either by way of rent or otherwise, on the 
 faith of Morrison's lease to them. Nor are we able to see 
 any force in the charge that the complainants were guilty of 
 
432 POND V. SHivEAN [CHAP. IX 
 
 laches in enforcing their rights. They were in possession, and 
 in full enjoyment of their rights, under the oral contract, and 
 they were under no legal duty to bring any suit in respect to 
 said rights, at least until they were in some way apprised of the 
 fact that they were about to be threatened or denied. Very 
 promptly after the corriplainants discovered that Morrison had 
 repudiated his oral agreement, and executed a lease to Miner, 
 Beal & Co., was this suit instituted. The mere fact that the 
 complainants were content to trust to Morrison's oral agree- 
 ment, however unbusiness-like it may have been to do so, 
 was not laches. Morrison alone could not interpose the statute 
 of frauds. The complainants had a right to rely upon his oral 
 promise, and the fact that they did so furnishes no ground of 
 complaint, either to him or to Miner, Beal & Co. After a patient 
 examination of the entire record, and giving an attentive con- 
 sideration to the various suggestions of counsel, we are of the 
 opinion that the decree of the circuit court is sustained by the 
 evidence. The judgment of the appellate court affirming said 
 decree will be affirmed. 
 
 Ace. Bright v. Bright, 41 III., 97; Martin v. Martin, 170 111., 639; 
 Dunn V. Birkshire, 175 111., 243; Ashelford v. Wilier, 194 III., 493; Pas- 
 quav V. Pasquay, 235 111., 48 ; distinguished in Koch v. Nat. Union Bld'g 
 Ass'v, 137 111., 497. 
 
 POND V. SHEEAN et al. 
 132 111., 312; 23 N. E. R., 1018. 
 
 [Supreme Court of Illinois. March 29, 1890'.] 
 
 Appeal from circuit court, Jo Daviess county; John D. 
 Crabtree, Judge. 
 
 Craig, J. This was a bill in equity, brought by Hattie Pond, 
 to set aside the last will of Bradner Smith, deceased, and to 
 enforce the specific performance of a parol agreement alleged 
 to have been made on or about the 1st day of December, 1857, 
 between Marshall B. Pierce, father of complainant, and Brad- 
 ner Smith, under which the complainant claims all the prop- 
 erty, both real and personal, which the said Bradner Smith 
 owned at the time of his death. The bill sets out the con- 
 tract, substantially, as follows: "Bradner Smith, after con- 
 
SEC. Ill] POND V. SHEEAN 433 
 
 sultation with his wife, Mary Smith, and with her full con- 
 sent and approval, in order to induce oratrix's father to con- 
 sent to the separation, and permit her to become a member of 
 the family of said Bradner Smith, made a proposition to your 
 oratrix's father that if he would permit them, the said Bradner 
 and wife, to take your oratrix to their home, and would per- 
 mit her to assume the name of 'Smith,' instead of 'Pierce,' 
 and allow her to live with them as their child, the said Brad- 
 ner Smith, in consideration thereof, would give your oratrix 
 at his death [amended to read 'at their,' viz., Bradner and 
 Mary Smith's, 'death'] all his property— real, personal, and 
 mixed — that he might have in his name, or under his con- 
 trol, at the time of decease ; that, in consideration of the prom- 
 ises, her father consented and agreed to said proposition, and 
 then and there entered into a contract with said B. Smith, 
 with the knowledge and consent of his wife, Mary Smith, that 
 oratrix should go and live with them, as their child, assume 
 the name of 'Smith' instead of 'Pierce,' take the place of their 
 child, live with them as such, and, in consideration thereof, 
 at the death of said B. Smith [amended to read 'at their death, 
 namely, Mary and Bradner Smith, instead of 'at his death'] 
 all of his estate — real, personal, and mixed — was to become and 
 be the property of your oratrix ; that, in compliance with said 
 contract, oratrix then and there, to wit, December 1, 1856, 
 did leave her father's home, and go to the home of B. Smith 
 and wife, and became a member of their family, and assumed 
 the name of 'Smith' instead of 'Pierce,' and was known as 
 'Smith' from thence until oratrix's marriage, and oratrix faith- 
 fully carried out her part of said contract, and was a true and 
 faithful child of said Mary and B. Smith during their lives, 
 and performed her part of above contract." It is also al- 
 leged that complainant lived with the Smiths, under said agree- 
 ment, until she was 39 years of age, when she was married 
 to Dr. Frederick L. Pond. It is also alleged that Mary Smith 
 
434 POND V. SHEEAN [chap. IX 
 
 died May 21, 1885, and that Bradner Smith died March 31, 
 1887. It is also alleged that "in violation of said contract," 
 etc., "and in fraud of your oratrix's rights in the premises, B. 
 Smith was induced, December 19, 1885, to execute a purported 
 will, and on January 7, 1887, shortly before his death, executed 
 a purported codicil thereto, as appears by copies attached to 
 Exhibits A and B, by which will and codicil he deprived ora- 
 trix of any part of his property whatever ; that Bradner Smith, 
 at the time of executing said purported will and codicil, was 
 weak in mind, and in his dotage, and by reason of said condi- 
 tion was induced, in fraud of oratrix's rights, to execute the 
 same." The complainant sets out in the bill a list of prop- 
 erty, — real, personal, and mixed — owned by the deceased at 
 the time of his death, valued at $30,000. The bill then prays 
 that the will and codicil may be declared null and void; that 
 complainant be declared to be the owner and entitled to the 
 possession of the personal property and notes ; and that deeds 
 may be executed conveying the lands to her. The executor 
 and devisees under the will put in answers to the bill in which 
 they deny the making of the alleged contract, and plead the 
 statute of frauds thereto. They also denied all the substan- 
 tial allegations of the bill. A cross-bill was also filed by one 
 of the legatees, Clara A. Smith; but, as that has no bearing 
 on the decision of the case, it is not necessary to set out its 
 contents here. Replication having been filed, the cause pro- 
 ceeded to a hearing on the pleadings and evidence, and the 
 court entered a decree dismissing the bill for want of equity ; 
 and the complainant appealed. 
 
 The complainant's mother was a sister of Mary A. Smith, 
 the wife of Bradner Smith. She died May 10, 1854, when 
 complainant was about two years old. Bradner and Mary 
 Smith had no children of their own, and soon after the death 
 of complainant's mother they took complainant to their home ; 
 and she there remained until the second marriage of her 
 father, July, 38, 1856, when she returned home to her father. 
 It seems that during the two years residence of complainant 
 with the Smiths they became very much attached to her, and 
 made an effort to arrange with complainant's father for her 
 
SEC. Ill] POND V. SHEEAN ' 435 
 
 return to their home. Pierce, the father of complainant, re- 
 sided at Savanna, and the Smiths at Galena. The contract 
 under which complainant was taken into the Smiths' family- 
 was claimed to be proven by one witness, — who was present 
 when .the contract was made, — Mrs. Pierce, now the widow 
 of complainant's father. She stated that she was married, 
 July 28, 1866, to Marshall B. Pierce, who at the time of their 
 marriage had six children ; Hattie, the youngest, being four 
 years old at the time. "She continued to reside in our family 
 six or eight months after our marriage. At the end of that 
 period of eight months, arrangements were made by my hus- 
 band, Marshall B. Pierce, with Bradner Smith and Mary A. 
 Smith, his wife, through Mary A. Smith, with respect to the fu- 
 ture care, custody, nurture, and services of the complainant, 
 Hattie Pond, then Pierce, by which they were to keep her, and 
 raise her as their own child, giving her the advantage of a good 
 education, and were to leave her their property, whatever it 
 was, when they were done with it, in consideration of the 
 future care, nurture, and services of the complaint. This 
 agreement was entered into at our house in Savanna. I was 
 present when the arrangement was made. I think it was 
 in 1857. I don't know that any one was present except Mr. 
 Pierce, myself, and family. Mrs. Smith made the contract « 
 on the part of Bradner Smith and herself. They resided at 
 Galena at that time. Mrs. Smith at that time said, concern- 
 ing when Hattie, the complainant, was to have the property of ' 
 the Smiths, that she was to receive the property when they 
 were done with it; she was to have all they had. She had 
 always expected to take Hattie, but never had claimed her 
 until Mr. Pierce was married, when she thought she ought 
 to have her. Mary A. Smith meant by that expression, 'when 
 they were done with it,' referring to their property at their 
 death. Marshall Pierce, my husband, and I, supposed them 
 to refer to the death of Mr. and Mrs. Smith. After the ar- 
 rangement was entered' into as above, Mrs. Smith took the 
 complainant home with her to Galena." The declarations of 
 the Smiths, on different occasions during the time that Hat- 
 tie resided with them, were proven by several witnesses, to 
 
436 POND V. SHEEAN [chap. IX 
 
 the effect that what they had would be hers when they were 
 through with it; that she would be an heir, etc., — ^but no per- 
 son now living heard the contract except Mrs. Pierce, whose 
 evidence is given above. At the time the arrangement relied 
 upon was made, Smith owned real and personal property; and 
 as heretofore shown, he owned real and personal property 
 at the time of his death. Mary Smith, the wife of Bradner, 
 'died May 21, 1885 ; and the latter died March 31, 1887. There 
 is no controversy in regard to the fact that complainant, from 
 the time she was 4 years of age until she married, at the age 
 of 39, on October 10, 1880, resided with the Smiths as a mem- 
 ber of their family. She was boarded, clothed, and educated 
 by them ; and at the same time she performed such services 
 as is usual in a family occupying the position in society that 
 the Smiths occupied. So far as appears, she was treated as 
 a child, and no doubt performed the same services, and re- 
 ceived the same advantages, in education, clothing, and other 
 respects, that she would have received if she had been a child 
 of the Smiths. Whether Bradner Smith, in raising com- 
 plainant from infancy to womanhood, in clothing and educat- 
 ing her, in aiding her to consummate an advantageous rr-ar- 
 riage, in giving her property, did all that, in morals, he should 
 have done, is not a question which we are called upon to de- 
 termine. The complainant seeks by her bill the specific per- 
 formance of a parol contract. Under the contract she claims 
 personal property, choses in action, and real estate ; but, as 
 she never was in possession of any of the property under the 
 contract, the statute of frauds being pleaded, is she entitled 
 to a decree? While other questions are involved, this is the 
 most important one. 
 
 The law may be regarded as well settled that a parol con- 
 tract for the sale of lands will be enforced where the purchase 
 money has been paid, possession taken under the contract, and 
 lasting and valuable improvements made on the lands. Stevens 
 V. Wheeler, 25 111. 309 ; McNamara v. Garrity, 106 111. 387 ; 
 Fitzsimmons v. Allen, 39 111. 440; Laird v. Allen, 82 111. 
 43. So, also, where the owner of real estate makes a parol 
 promise to his child to convey lands to him, and relying on 
 
SEC. IIlJ POND V. SHUEAN 437 
 
 such promise, the child goes into possession of the lands, and 
 makes valuable and lasting improvements, such a promise rests 
 upon a valuable consideration, and may be enforced in equity. 
 Kurtz V. Hibner, 55 111. 514. In the case last cited, it was 
 held that no important distinction exists between such a prom- 
 ise and a sale. But we are aware of no well-considered case hold- 
 ing that a court of equity will decree the specific performance 
 of a parol agreement to convey lands where the purchaser has 
 not entered into possession under the contract ; but on the other 
 hand, this court has held in a number of cases that possession 
 under the contract must be established in order to take the 
 case out of the statute of frauds. Wood v. Thornly, 58 111. 
 465. In the case cited it is said : "To constitute such perform- 
 ance as will avoid the statute, it must clearly and distinctly 
 appear that the party entered into possession under the agree- 
 merft itself. * * * The mere possession of land under 
 a parol agreement of sale, even with the superadded fact of 
 valuable improvements, will not be deemed part performance, 
 if the possession was obtained otherwise than under the con- 
 tract." In Temple v. Johnson, 71 111. 14, the question arose 
 whether full payment of the purchase money, without taking 
 possession of the premises, was sufficient to take a (jase out of 
 the statute of frauds; and in disposing of the question it is 
 said: "In the case of Fitzsimmons v. Allen, 39 111. 440, it 
 was held that the payment in full of the purchase money, and 
 the possession of the property purchased, took the case out 
 of the statute of frauds. This is the greatest relaxation of the 
 requirements of the statute that has been made by this court, 
 nor do we incline to go any further in that direction." While 
 the decisions of the various courts are not entirely uniform, 
 the general rule seems to be, as stated by Story in his work 
 on Equity Jurisprudence, § 761, that the general ground upon 
 which courts proceed to execute parol contracts for part per- 
 formance, as the governing rule, is "that nothing is to be 
 considered as a part performance which does not put the party 
 into a situation which is a fraud upon him, unless the agree- 
 ment is fully performed," and he says that, although formerly 
 a payment of the purchase money was considered a sufficient 
 
438 POND Z^. SHEEAN [chap. IX. 
 
 part performance to take the case out of the statute, the rule 
 is now otherwise settled; and in this he is fully sustained by 
 the adjudged cases both in the British and American courts. 
 In Ferbrache v. Ferbrache, 110 111. 210, this court again held 
 that by the statute of frauds all contracts for the transfer of 
 title to land must be in writing; and, to take a case out 
 of the statute, it is indispensable that the contract shall be es- 
 tablished by competent proof, to be clear, definite, and une- 
 quivocal in all its terms, and that possession shall have been 
 taken of the land under the contract, and payment of the pur- 
 chase money made. See, also, Kaufman v. Cook, 114 111. 13 ; 
 and Clark v. Clark, 122 111; 388, 13 N. E. Rep. 553 ; Gorham 
 v. Dodge, 122 111. 528, 14 N. E. Rep. 44. A case much in 
 point is Wallace v. Long, decided by the supreme courtof In- 
 diana, and reported in 105 Ind. 522, 5 N. E. Rep. 666. In 
 that case a child seven years old was taken under an agree- 
 ment that, if she would live with decedent and her husband 
 until their death, they would make her their heir, and at 
 their death they would will her their entire estate. Property, 
 real and personal, was left, of the value of $6,000 ; but no 
 will was made as per the contract. In deciding the case, it is 
 said: "If the statute of frauds presents no obstacle to the 
 enforcement of the contract, then, so far as the record dis- 
 closes, none exists. . It cannot, of course, be denied that if the 
 contract had been in writing, or if, in pursuance of an oral 
 contract, the plaintiff had been put in complete possession, and 
 she had otherwise fully performed on her part, specific per- 
 formance could have been enforced. It would then have pre- 
 sented a case analogous in principle to Mauck v. Melton, 64 
 Ind. 414. * * * This much has been said to show that 
 the only impediment in the way of a specific enforcement of 
 the contract involved in this case is the statute of frauds. 
 When the title to property * * * jg to be acquired by 
 purchase, the statute of frauds will operate upon and affect 
 the contract, in precisely the same manner, whether the con- 
 sideration for the purchase is to be paid in services, money, 
 or anything else. In either case, such a contract, being in 
 parol, and entirely executory, cannot be enforced by either 
 
SEC. Ill] POND V. SHEEAN 439 
 
 party. That the evidence in this case tends to, support the 
 view that it was the purpose of the intestate to make pro- 
 vision for the plaintiff's ward by a will, may be conceded; 
 but, as the agreement to do so was never manifested in writing, 
 signed by her, and as it involved an agreement for a sale of 
 real estate, and for the transfer of personal property, * * * 
 such agreement was subject to the operation of the statute of 
 frauds equally with all other agreements, for like sales. Be- 
 cause the agreement was not withdrawn from the operation 
 of the statute by part performance, it cannot be specifically en- 
 forced ; neither can it be the foundation of an action for dam- 
 ages." It will be observed that in the case cited, while the 
 agreement was one of the same character as the agreement 
 involved here, the same rule was held to apply as if it was a 
 mere verbal sale of real estate, where no possession had been 
 taken under the contract. 
 
 In view of the authorities, we are able to arrive at but one 
 conclusion ; and that is that the contract relied upon, resting 
 in parol, is within the statute of frauds, and void. Conceding 
 that complainant was taken into; the family of the Smiths 
 under an arrangement as testified to by Mrs. Pierce, and 
 that they were to leave her their' property when they were 
 done with it, "in consideration of the future care, nurture, and 
 services of complainant, and treating the surrender of com- 
 plainant by her father, and such services as she may have 
 rendered, as a payment for the property agreed to be given 
 her, still, as she never,, obtained possession of any of the prop- 
 erty under the contract, under the authorities the agreement, 
 resting in parol, was void by the statute of frauds, and cannot 
 be enforced in a court of equity. It is imposing no hardship 
 upon parties, where the title to real property is involved, to 
 require their contracts to be reduced to writing ; and it is the 
 safer rule. Where the terrhs and conditions of a contract de- 
 pend upon the recollection of witnesses after the lapse of many 
 years, as is the case here, there is always much uncertainty in 
 regard to what the contract really was ; and, where the title to 
 real property is involved, no rule ought to be adopted which 
 will encourage the making of such contracts. There are cases 
 
440 POND V. SHBEAN [chap. IX 
 
 cited in appellant's brief which seem to lay down a different 
 rule, and which seem to support appellant's position; but we 
 have not the time to review them here, nor do we think it 
 would serve any useful purpose to do so. It is sufficient to say 
 that the cases referred to are not in harmony with the prin- 
 ciple announced by the decisions of this court, and we are not 
 inclined to follow them. 
 
 But it is contended in the argument that the services ren- 
 dered by complainant, and the facts as they appear from the 
 record, that the whole course of her subsequent life was 
 changed in consequence of the agreement, prevent the Smiths 
 from relying on the statute of frauds. In other words, by 
 the acts of performance, complainant would suffer an injury 
 amounting to a fraud unless relief is granted under the con- 
 tract. The rule on this subject is laid down in Wallace v. 
 Rapplye, 103 111. 231, and the cases there cited. But we do 
 not regard the acts of performance proven in this case such 
 as would authorize a court in holding that complainant has 
 suffered an injury amounting to a fraud unless she is granted 
 relief. When the father of complainant consented that she 
 might enter the Smith family, he was a man in very moderate 
 circumstances. He had a wife and six or seven children to 
 support, and for several years relied upon a salary, as clerk 
 of a steamboat on the Mississippi river, for the support of him- 
 self and family, while, on the other hand, Bradner Smith was 
 in good circumstances, — alleged to be worth $40,000. He had 
 no family but himself and wife. He -was therefore in a con- 
 dition to afford complainant many advantages in her rais- 
 ing and education that she would not receive if she resided 
 with her parents. So far, therefore, as being placed- in a 
 worse condition on account of the agreement, it is without 
 foundation. Indeed, the manner in which complainant was 
 raised and educated, and the marriage she subsequently con- 
 tracted through the influence of the Smiths, seem to show that 
 her condition in life was improved, rather than injured, by the 
 arrangement. 
 
 It will, however, be observed that complainant seeks by 
 her bill to recover personal property as well as real estate; 
 and it may be claimed that as to the personal property the 
 agreement is not within the statute. The contract, however, 
 
SEC. Ill] • POND V. SHEEAN 441 
 
 must be regarded as an entirety ; and, if void as to real es- 
 tate, it must also be held void as to personal property. This 
 is a rule of law well established. Myers v. Schemp, 67 111. 
 469. The decree of the circuit court will be affirmed. 
 
 Ace. Wright v. Raften, 181 111., 464; Koenig v. Dohm, 209 111., 468. 
 
CHAPTER XII. 
 INJUNCTIONS. 
 
 SECTION 1.— AGAINST JUDGMENT AT LAW. 
 
 HILT V. HEIMBERGER. 
 235 111., 235; 85 N. E. R., 304. 
 
 [Supreme Court of Illinois. June 18, 1908.] 
 
 Mr. Justice Carter delivered the opinion of the court: 
 The chief contention urged by appellant is that a court 
 of equity is without authority to interfere to set aside the 
 judgments in question; that on the facts shown in this rec- 
 ord appellees were each properly served in the assumpsit 
 suits, and having neglected to make their defense cannot 
 have the aid of equity to relieve them from the consequences 
 of such failure. In order ,to pass on this question it is nec- 
 essary to review the evidence as to the question of service 
 in the assumpsit cases. 
 
 It appears that shortly after the death of Joseph Hilt 
 litigation of various kinds arose between appellees and their 
 sisters concerhing the division of their father's estate, which 
 had been probated in St. Clair county. The land in ques- 
 tion is situated in Madison county. Appellees, previous to 
 the litigation now in question, had been cited to appear be- 
 fore the probate court of St. Clair county to answer certain 
 inquiries with reference to property they might have, be- 
 longing to said estate. A partition suit with reference to 
 property not here in question had been instituted against . 
 ajppellees in the circuit court of Madison county. The at- 
 torneys of appellees, who did not live in Madison couilty, 
 had employed a law firm at Edwardsville, the county seat 
 of Madison county, to watch the docket for them in the 
 partition suit and to file any pleadings that might be sent 
 
 443 
 
SEC. l] HlVr V. HEIMBERGER 443 
 
 them. The Edwardsville attorneys had never talked with 
 appellees or had anything to do with the trial of the cases 
 and were only employed in the limited manner suggested. 
 The partition suit was set for hearing on May 15, 1906. 
 Previous to that date the respective attorneys of appellees 
 and appellant had interviews about the settlement of the 
 litigation, and appellant's attorneys testified that they told 
 the attorneys for appellees that they expected to start a ven- 
 dor's lien suit and also assumpsit suits. Appellees' attor- 
 neys state that they were told that a vendor's lien suit was 
 to be started but were told nothing as to the assumpsit suits. 
 Appellees were told by their attorneys shortly before May 
 15, 1906, that when they went to Edwardsville concerning 
 the partition suit they would undoubtedly be served with a 
 summons in a vendor's lien suit, but the evidence is clear 
 that they were told nothing with reference to the assumpsit 
 suits. On May 15, while the partition suit was in progress, in 
 the circuit court at Edwardsville and appellee Charles Hilt was 
 seated with his attorneys at one of the tables provided for 
 counsel in the court room, a deputy sherifif of the county 
 called him a few feet to one side, read to him in a low tone 
 certain papers and gave him a copy of the summons in the 
 vendor's lien suit. Hilt testified that the deputy read to him 
 in so low a tone that he did not understand what was said; 
 that he expected to be served in the vendor's lien suit and 
 understood the names Hilt and Heimberger. The deputy 
 testified that he told Charles Hilt that he was serving him 
 with summons in two suits, but Hilt insists that he did not 
 so understand. The deputy testifies, however, that while he 
 was reading the summons the presiding judge looked over 
 towards him, and that he stopped for a moment and then 
 shortly after went on reading, apparently in a lower tone. 
 One of Hilt's counsel, who was sitting at the table with him, 
 noticed that he had been called aside, and just as the deputy 
 sherifif finished readinf and handed Hilt the copy, the attor- 
 ney stepped back a few *'eet to where they were and asked 
 Hilt what the trouble was, and Hilt answered, — loud enough 
 as the lawyer thought, for the deputy sheriff to hear, — that he 
 
444 HILT V. HEIMBBRGER [CHAP. XII 
 
 was being served with a summons in the vendor's lien suit 
 about which they had talked. After the deputy had served 
 Charles Hilt he served the other appellee, Henry Hilt, in 
 substantially the same manner, in another part of the court 
 room. Henry Hilt's testimony is to the effect that he did 
 not hear what was read to him; that he only caught, now 
 and then, a word, and that as the copy was served on him 
 in the vendor's lien suit he thought that was the same pro- 
 ceeding in which the summons was being read to him. The 
 wife of each appellee was also served in the vendor's lien 
 suit, in the court room. Several witnesses were called on 
 the question of service by both sides in this litligation. None 
 of them heard what was read by the deputy sheriff, and 
 some of them were not over eight or ten feet away. Two 
 young ladies, seventeen or eighteen years old, — one a step- 
 sister of the appellees and the other a niece, — testified that 
 they saw the deputy read from two papers to each of the 
 appellees. One of the attorneys for appellant claims that 
 the deputy read aloud enough so as to disturb the court pro- 
 ceeding, and on that account he looked back and saw him 
 reading. Apparently all the witnesses to what happened 
 at the time of the alleged service of the summons are inter- 
 ested in this litigation, either as attorneys or as relatives 
 of the parties litigant. We think, however, that the evidence 
 as to what took place is in substantial agreement, except as 
 to just what and how loud the deputy sheriff read. No one 
 outside of himself claims that he read loud enough so they 
 could hear what he read. 
 
 Counsel for appellees were given the copies of the sum- 
 mons in the vendor's lien suit and took steps to defend it, 
 but their testimony, as well as that of their clients, is that 
 none of them knew anything about the assumpsit suits and 
 therefore nothing was done towards filing an appearance or 
 defending. The first that appellees knew about those suits, 
 according to their testimony, (and this is not contradicted 
 in any way excefyt by the testimony of the deputy sheriff 
 that he read the summonses loud enough for them to hear 
 and told them that they were served in two suits,) was when 
 
SEC. l] HII,T V. HEIMBERGER 445 
 
 they were told by a neighbor, some time in July, 1906, that 
 their farm was advertised for sale, whereupon they saw their 
 attorneys and the matter was looked up. The summonses 
 in the assumpsit suits were returnable on May 28, 1906. June 
 30, 1906, a default was entered for $1500 in each case against 
 the respective appellees. It appears that when the default 
 was asked on June 20, the judge knowing there had 
 been litigation between the parties, called the attention of 
 the local attorneys in Madison county who were represent- 
 ing appellees' attorneys in the former litigation to the fact 
 that a default was about to be taken, and that they told him 
 they had nothing to do with the assumpsit suits and knew 
 nothing about them. There is some attempt made to show 
 that the regular counsel for appellees knew of these default 
 judgrt^pnts before the May term had closed, but their testi- 
 mony is positive to the effect that they knew nothing about 
 the matter until after the term had been finally adjourned 
 and the land advertised for sale. The evidence in the record 
 does not contradict them on this point. 
 
 The deputy sheriff's return on these summonses in the 
 assumpsit suits indicated that they had been properly served. 
 The rule is established that the return of an officer cannot 
 ordinarily be contradicted. This rule is founded on public 
 policy, for the protection of innocent persons in legal pro- 
 ceedings, although there are cases which are excepted. 
 (Brown v. Brown, 59 111. 315.) The sheriff's return of 
 service does not import absolute verity, but is only prima 
 facie evidence of the truth of the matters therein stated. 
 (Sibert v. Thorp, 77 111. 43; Hickey v. Stone, 60 id. 458.) 
 Where the -rights of third persons have been acquired in 
 good faith, the return of an officer showing the service of 
 summons cannot be contradicted, but as against parties ac- 
 quiring rights with notice of the facts the return is not con- 
 clusive. (Jones V. Neely, 82 111. 71.) In a proper case a 
 false return may be set aside in equity. (Waterbury Nat. 
 Bank v. Reed, 231 111. 246, and cases there cited.) In 
 Story's Equity Jurisprudence (vol. 2, — 13th ed.— sec 887), 
 the rule on this subject is stated as follows: "In regard to 
 
446 HItT V. HEIMBERGBR [CHAP. XII 
 
 injunctions after a judgment at law, it may be stated as a 
 general principle that any facts which prove it to be against 
 conscience to execute such judgment, and of which the in- 
 jured party could not have availed himself in a court of 
 law, or of which he might have availed himself at law but 
 was prevented by fraud or accident, unmixed with any fraud 
 or negligence in himself or his agents, will authorize a court 
 of equity to interfere." (Higgins v. Bullock, 73 111. 305.) 
 The mistake, if any, in this case is one of fact. A mistake 
 of fact resulting in the recovery of a judgment may be ground 
 for the interposition of equity in enjoining or setting 
 aside such judgment. Pomeroy's Eq. Jur. (3d ed.) sec. 871; 
 2 Freeman on Judgments, (4th ed.) sec. 508a. 
 
 In the case of Owens v. Ranstead, 22 111. 161, this court 
 had under discussion an equity proceeding in which th* facts 
 and principles involved were very similar to the ones here 
 under consideration. It was there held that the return of 
 an officer is only prima facie evidence of the facts therein 
 stated, and that on a proper case made, (such as a judg- 
 ment shown to have been obtained by a false return and with- 
 out any notice to the defendant,) equity will relieve against 
 the effects of such return. In that case appellee had 
 two summonses served on him at the same time by the dep- 
 uty sheriff and he understood that only one was served, only 
 one copy being left with him. ' It would unduly extend this 
 opinion to state at length the facts in that case, but a refer- 
 ence to the decision will show that they are substantially "on 
 all-fours'' with those in this case. The decision has been 
 quoted many times and the principles there laid down have 
 always received the approval of this court. 
 
 In Kochman v. O'Neill, 202 111. 110, this court on a bill 
 in equity, sanctioned the setting aside by the trial court of 
 a judgment by default ift a damage suit, stating (p. Ill) : 
 "Service of summons or an appearance is necessary to enable 
 a court to render a personal judgment against a defendant, 
 and the attack upon the judgment in this case was on the 
 ground that there was a want of jurisdiction over the per- 
 son of Mrs. O'Neill for want of such service or appearance. 
 
SEC. l] HILT V. HEIMBERGER 447 
 
 A judgment may be set aside where a court has failed to ac- 
 quire jurisdiction of the person of the defendant. (Owens 
 V. Ranstead, supra; Grand Tower Mining Co. v. Schirmer, 
 64 111. 106.) Where the want of jurisdiction does not ap- 
 pear on the face of the record it may be shown by evidence 
 outside of the record, provided the evidence is clear and sat- 
 isfactory and the rights of third parties have not intervened. 
 A sound public policy, the security of litigants and the sta- 
 bility of legal proceedings demand that the return of the sworn 
 officer shall not be set aside or impeached except upon satis- 
 factory evidence. Every presumption in favor of the return 
 is indulged, and it will not be set aside upon the uncorrobo- 
 rated testimony of the party upon whom service purports to 
 have been made. (Davis v. Dresback, 81 111. 393.) Justice, 
 however, requires that the rules should not be so strict as 
 to prevent all relief against a return which is untrue through 
 fraud, accident or mistake, and if it is clear from the evi- 
 dence that the defendant has not been served the judgment 
 should be set aside." The return in that case showed on its 
 face that the summons had been properly served, but the evi- 
 dence indicated that it had been served on the daughter instead 
 of the mother. 
 
 As was said in Owens v. Ranstead, ^supra, the testimony 
 of appellees as to what took place at the time of the al- 
 leged service in the assumpsit- suits is natural and "impresses 
 strongly the belief that it was" as stated by them. "At any 
 rate, they might well have been misled from all the facts as 
 they are now detailed." The rights of third parties have 
 not intervened in this case. It appears that when the deputy 
 sheriff started to read his first summons to Charles Hilt he 
 attracted the attention of the court and some of the coun- 
 sel, and there is some testimony that the court rapped for 
 order. Naturally the deputy sheriff would drop his voice at 
 this time. We thing the weight of the evidence tends strongly 
 to show that he did not read the summonses distinct and loud 
 enough so appellees could understand what he was reading. 
 Certainly if he did not read loud enough so they could hear 
 he did not comply with the law and it must be held to be 
 
448 HILT V. HEIMBERGER [CHAP. XII 
 
 no service. There is nothing in this record indicating that 
 appellees were trying to avoid service. There appears to 
 have been no necessity for the deputy to have read the sumr- 
 mons to them in the court room, in the midst of court pro- 
 ceedings. Such a practice is not to be commended. Un- 
 doubtedly, if the trial judge's attention had been called to what 
 was actually going on he would have instructed the deputy 
 to serve his papers after the court had adjourned. Under 
 such circumstances and surroundings one would hardly ex- 
 pect defendants to understand fully what the deputy sheriff 
 read. Both of appellees are laboring men of little education, 
 as was the appellant in the Owens case, supra. They had 
 very Httle experience in court matters, and apparently their 
 only experience in litigation was that which had grown out 
 of the settlement of their father's estate, and they both testi- 
 fied that in all other cases where they had been served with 
 summons they had been served with a copy. The actions 
 of appellees and their counsel are in entire harmony with 
 what they claim they understood as to the assumpsit suits 
 and inconsistent with any other theory. On this record it 
 is clear that the appellees have a meritorious defense to the 
 actions in assumpsit and that they have had no chance of 
 presenting such defease. They should be given that opportunity, 
 (Wilday v. McConnel, 63 111. 278; How v. Mortell, 38 id. 
 478; Kochman v. O'Neill, supra;) upon the ground that 
 "courts of equity have jurisdiction to decree a new trial at 
 law where a judgment has been obtained by * * * mis- 
 take." Foote v. Despain, 87 111. 28. 
 
 We think the weight of the evidence tends to show that they 
 did not understand that the summons in assumpsit were being 
 read to them and that they were not legally served. The 
 judgment of the appellate court in each case is affirmed. 
 
 Judgments affirmed. 
 
SBC. Il] VII^LAGE OF ITASCA V. SCHROEDgR 449 
 
 SECTION 2— INJUNCTIONS AGAINST 
 TRESPASS. 
 
 VILLAGE OF ITASCA et al. v. SCHROEDER. 
 ' 182 111., 192; i5i5 N. E. R., SO. 
 
 [Supreme Court of Illinois. Oct. 19, 1899.] 
 
 Appeal from circuit court, Dupage county; Charles A. 
 Bishop, Judge. 
 
 Injunction by Ernest C. Schroeder against the village of 
 Itasca, impleaded with William Wischsteadt and others. There 
 was a decree for complainant, and defendants appeal. Af- 
 firmed. 
 
 Craig, J. (after stating the facts). It is first contended by 
 appellant that the trial court erred in taking jurisdiction of 
 the case,— that appellee had an adequate remedy at law. It 
 is argued by appellant that equity will not enjoin a threatened 
 trespass, and the case of Goodell v. Lassen, 69 111. 145, is 
 cited in support of this doctrine. What was said in that case 
 is still the doctrine held by this court,— 4hat, "before a court 
 of equity would lend its aid to enjoin a mere trespass, the 
 facts and circumstances must be alleged in the bill, from 
 which it may be seen that irreparable mischief will be the re- 
 sult of the act complained of, and that the law can afford 
 the party no adequate remedy. Livingston v. Livingston, 6 
 Johns. Ch. 497." The facts set out in the bill in the case at 
 bar come clearly within the rule laid down by this court in 
 that case. The allegation, in substance, is that certain trus- 
 , tees of the village of Itasca, and certain persons named as 
 defendants, are changing the roadbed of Main street, and 
 are about to enter upon complainant's property, and will re- 
 move his fences, plow up his field, and cut his standing trees, 
 and permanently damage complainant's said lands ; that cer- 
 tain mernbers of the village of Itasca have made threats that 
 they will remove, or cause the removal of, the fence constitut- 
 ing the easterly line of the said property; that he planted a 
 row of trees, 40 or more in number, along the line of his 
 property on the east, and which have since grown up to large 
 and magnificent trees, beautifying and greatly adding to the 
 
450 VII^LAGE Of ITASCA V. SCHROEDER [CHAP. XII 
 
 value of his property ; and that, if the proposed change of the 
 street as contemplated and now in progress of being carried 
 out is made, said trees will have to be cut down and removed, 
 causing large and irreparable injury to complainant. In City 
 of Joliet v. Werner, 166 111. 34, 46 N. E. 780, we said, quot- 
 ing from High on Injunctions (page 41) : " 'When a munici- 
 pal corporation threatens to remove plaintiff's fences- as an 
 alleged encroachment upon a street, plaintiff having for thirty 
 years been in the undisturbed possession of the premises, the 
 city having used no portion thereof for a street, and offering 
 no compensation to the plaintiff, and no means of adjusting 
 his compensation for the property to be taken, an appropriate 
 case is presented for relief by injuction.' High, Inj. § 584. 
 A city may be restrained from encroaching upon the property 
 of a private citizen, even under the pretense of preventing 
 the obstruction of a street. Id. §§ 349, 1247, 1272, 1274; 
 Carter v. City of Chicago, 57 111. 283 ; City of Peoria v. Johns- 
 ton, 56 111. 45." See, also. City of Mt. Carmel v. McClintock, 
 155 111. 608, 40 N. E. 829, and Commissioners v. Green, 156 
 111. 504, 41 N. E. 154. These cases fully sustain the action 
 of the trial court in issuing an injunction to prevent what the 
 facts and circumstances set out in the bill show would be an 
 irreparable injury. * * * 
 
 CRAGG V. LEVISON. 
 238 111., 69; 87 N. E. R.* 121. 
 
 [Supreme Court of Illinois. Dec. 15, 1908.] 
 
 Mr. Justice Farmer delivered the opinion of the Court. 
 
 Without further multiplying decisions, (and many others 
 are to be found,) the jurisdiction of equity to interfere by 
 injunction where the suit is between two persons , only, to 
 restrain the repetition of trespasses by the same person 
 where the complainant's title is admitted or has been estab- 
 lished in an action at law, seems well established by author- 
 ity. The mere fact, however, that a complainant's right 
 has been established af law is not always sufficient to justify 
 the exercise of this jurisdiction. The authorities hold that 
 
SEC. II ] CRAGG V. LBVISON 451 
 
 the circumstances and character of the threatened injury 
 must be considered, and in a proper case, where the right 
 of the complainant has been estabhshed at law, equity will 
 afford relief by injunction. In such case the fact that the 
 suit is between two persons, only, is not, of itself, sufficient 
 to justify the deiiial of the writ. To some extent the appli- 
 cation for the writ of injunction is addressed to the sound 
 discretion of the chancellor, and while the power to grant it 
 has always been considered an extraordinary one, which 
 should not be abused, it is not controlled by technical legal 
 rules. Somes of the rules applicable to the exercise of the 
 power are so well settled as to be as binding on courts as 
 are the rules of law "in any case, but in a measure the appli- 
 cation for the exercise of the power to grant injunction is 
 addressed to the conscience and 60und discretion of the chan- 
 cellor. While courts would not be justified in exercising 
 this power contrary to established rules, neither are they 
 obliged to shut their eyes to the demands of justice because 
 under the particular circumstances presented no general rules 
 authorizing the issuing of the writ may be found, where 
 there are none forbidding it. The jurisdiction of courts of 
 equity to issue writs to restrain the commission of trespasses 
 is not confined to cases where the injury is irreparable be- 
 cause the defendant is insolvent or because the injury goes 
 to the destruction of the estate or inheritance. We have 
 seen from the cases above cited that a bill to enjoin repeated 
 trespasses, which would require numerous and successive 
 suits in an action at law if the plaintiflf were remitted to that 
 remedy, and where the amount recoverable would be dis- 
 proportionate to the vexation and expense attending the litiga- 
 tion, may be maintained. In such cases it is said the remedy 
 at law is inadequate. In section 496 of Pomeroy's Equitable 
 Remedies it is said: "The jurisdiction of equity to restrain 
 continuous or repeated trespasses rests on the ground of 
 avoiding a repetition of similar actions. It is a basis of juris- 
 dictiori that is frequently found in cases where the injury is 
 also irreparable. Very often, indeed, the injury is irrepara- 
 ble only because it is continuous or repeated when it would 
 
453 CRAGG V. LEVISON [CHAP. XI 
 
 not be if temporary, and in such cases the injunction will is- 
 sue as a matter of course. * * * jf ^j^g plaintiff's legal rem- 
 edy may be vexatious, harassing, and hence inadequate, when 
 he recovers substantial damages, still more would it seem to be 
 so when his recovery is only nominal. When the trespasses 
 complained of are caused by the separate acts of individuals 
 a multiplicity of suits may be caused to plaintiff either be- 
 cause the defendants are numerous or because a single de- 
 fendant does the same or similar acts repeatedly. ' The prin- 
 ciple involved in all such cases is the same and injunctions 
 should issue, and when the basis of the multiplicity of suits 
 which plaintiff fears is that the defendants are numerous all 
 authorities agree in granting the injunctions, but when it is a 
 case of a single defendant who, by repeating his acts of tres- 
 pass, makes it necessary for plaintiff to pursue his legal rem- 
 edy only by a succession of actions, the decisions are curiously 
 diverse. It is held in a small group of cases that this is not 
 the kind of multiplicity of suits which equity enjoins, but that, 
 instead, an injunction is proper only when different persons 
 assail plaintiff's right. The other view, and the one sus- 
 tained alike by the weight of authority and by principle, is, 
 that if a defendant manifests a purpose to persist in perpe- 
 trating his unlawful acts, the vexation, expense and trouble 
 of prosecuting the actions at law make the legal remedy 
 inadequate and justify a plaintiff in coming into equity for 
 an injunction." In Watson v. Sutherland, 5 Wall. 74, it 
 was said : "It is not enough that there is a remedy at law. 
 It must be plain and adequate, or, in other words, as prac- 
 tical and eiRcient to the ends of justice and its prompt ad- 
 ministration as the remedy in equity." In section 1357 of 
 Pomeroy's Equity Jurisprudence it is said: "If the tres- 
 pass is continuous in its nature, if repeated acts of wrong 
 are done or threatened, although each of these acts, taken 
 by itself, may not be destructive and the legal remedy may 
 therefore be adequate for each single act if it stood alone, 
 then, also, the entire wrong will be prevented or stopped by 
 injunction on the ground of avoiding a repetition of similar 
 
SEC. Il] CRAGG V. LEVISON 453 
 
 actions. In both C5ases the ultimate criterion is the inad- 
 equacy of the legal remedy." 
 
 Our investigations have satisfied us that the weight of 
 the more recent decisions sustains the conclusions we have 
 reached that the bill in this case made a proper case for the 
 exercise of the equitable jurisdiction invoked. There was 
 no allegation that complainant's title had been established in 
 an action at law, but that was unnecessary. By demurring 
 to the bill defendant admitted her title. In such case there 
 is no necessity for a resort to an action at law to establish 
 it and a court of equity will not require resort to such ac- 
 tion. (Pomeroy's Eq. Jur. sec. 852.) As the case is pre- 
 sented on this record, defendant admits that complainant 
 owns and is in possession of the premises, and that he, with- 
 out any right whatever, has repeatedly entered upon them 
 and committed trespasses and intends to continue to do so ; 
 in effect, that without any claim of right whatever he has 
 used, and intends to continue to use, appellant's premises as 
 if they were his own, and that he has prevented, and will 
 continue to prevent, her from enjoying the lawful use and 
 possession of her" own premises in the manner she desires 
 and has the right to use them. His defense is, conceding 
 all of this to be true, the complainant has a right of action 
 against him at law to recover the damages she has sus- 
 tained and will yet sustain from repeated trespasses. It 
 may be admitted that the injuries are such as may be com- 
 pensated in an action for damages, still the injuries are of 
 such character that, while exceedingly annoying and vexa- 
 tious, the actual damages recoverable would be so small 
 as to be disproportionate to the expense and vexation at- 
 tending the litigation. But it is insisted, as was said by 
 Chancellor Kent in Jerome v. Ross, that smart money may 
 be recoverable in such cases, and this, with the costs, would 
 be sufficient punishment to prevent a repetition of the un- 
 lawful acts. In the numerous authorities we have examined 
 no such distinction is made in any other case. The quota- 
 tion in Boston and Maine Railroad Co. v. Sullivan, supra, 
 
454 VII.LAGI; OF DWIGHT V. HAYBS [CHAP. XII 
 
 from Sir W. M. James, L. J., is, we think, a sufficient and 
 complete reply to this contention. 
 
 As the question is presented in this record, we can see 
 no good reason, in principle or upon authority, for requir- 
 ing complainant to try the uncertain experiment of actions 
 at law, that threaten to be numerous, for the protection of 
 her admitted rights in the enjoyment of her property before 
 permitting her to claim the protection of a court of equity. 
 Clearly, under the state of this record, to hold that com- 
 plainant is entitled to the writ of injunction does not de- 
 prive defendant of or prejudice him in any right he has, for 
 he does not claim any right. 
 
 We are of opinion the circuit court erred in sustaining 
 the demurrer and dismissing the bill, and that the Appellate 
 Court erred in affirming that decree. 
 
 The judgment of the Appellate Court and the decree of 
 the circuit court will be reversed and the cause remanded to 
 the circuit court, with directions to overrule the demurrer. 
 
 Reversed and remanded, with directions. 
 
 SECTION 3.— INJUNCTIONS AGAINST 
 NUISANCE. 
 
 VILLAGE OF DWIGHT v. HAYES. 
 150 111., 273; 37 N. E. R., 218. 
 
 [Supreme Court of Illinois. May 8, 1894.] 
 
 Appeal from appellate court, second district. 
 
 Bill for injunction by John A. Hayes against the village 
 of Dwight. Defendant obtained a decree dismissing the bill, 
 which was reversed by the appellate court. Defendant ap- 
 peals. Affirmed. 
 
 Bailey, J. This was a bill in chancery, brought by John A. 
 Hayes against the village of Dwight, to restrain the village 
 from constructing a system of sewers so that the same will 
 discharge the sewage of the village into Gooseberry creek, a 
 stream of water running through the complainant's land. The 
 complainant owns and resides on a farm, containing about 312 
 acres, situated in Grundy county, and adjoining the south 
 
SEC. Il] VILLAGE OF DWIGHT V. HAYES 455 
 
 line of the county. The village of Dwight is an incorporated 
 village, having a population of about 1,600, and situated in 
 Livingston county, and about a mile or a mile and a half 
 south of the south line of Grundy county. Gooseberry creek 
 has its headwaters several miles south of Dwight, in two sep- 
 arate branches, one of which runs through the village, the 
 two forming a junction about a half mile below on the land 
 of David McWilliams, and running thence in a northerly 
 direction across the complainant's land, which adjoins that 
 of McWilliams on the north, and emptying into Mazon creek. 
 Gooseberry creek, as the evidence shows, is a stream in which 
 water constantly flows, except during certain portion of the 
 dry weather in summer, and during that time it contains pools 
 of water at different places along its channel, sufficient in 
 quantity and of sufficient purity to furnish drink for cattle 
 and other domestic animals kept by the owners of the lands 
 through which it flows. The complainant, as it appears, oc- 
 cupies and uses his land as a stock farm, and has been ac: 
 customed, for many years, to use the creek for watering his 
 stock, and he has also been accustomed, during the winter 
 season, to take from it his supply of ice for use during the 
 summer. In the summer of 1892 the village of Dwight com- 
 menced the construction of a system of sewers, which were to 
 be so constructed as to discharge the sewage of the village 
 into Gooseberry creek at a point on the land of McWilliams, 
 a short distance below the confluence of the two branches 
 of the creek. The complainant thereupon filed his bill to 
 restrain the village from discharging the sewage from its pro- 
 posed systems of sewers into the creek, alleging that there was a 
 constant supply of living water in the creek, sufficiently pure 
 and good for stock ; that the complainant was using his farm as 
 a stock farm, and relied upon the waters of the creek for the 
 purpose of watering his stock; that he cut the ice therefrom, 
 and stored the same at his residence for the use of his family ; 
 and that the discharge of the sewage into the creek would ren- 
 der the water thereof unfit for the domestic uses above referred 
 to, and would also cause noxious odors to spread over the com- 
 plainant's farm, and about his place of residence, thereby ren- 
 
456 VII,I,AGi; OF DWIGHT V. HAYUS [CHAP. XII 
 
 dering the same unhealthful and uncomfortable as a place in 
 which to live, and so would cause irreparable damage to the 
 complainant's premises and place of residence, and would create 
 a nuisance. On the filing of the bill, an injunction pendente 
 lite was awarded as prayed for, and, an answer and replication 
 having been afterwards filed, the cause was heard on plead- 
 ings and proofs, and at such hearing a decree was entered 
 by the circuit court dismissing the bill at the complainant's 
 costs for want of equity, but without prejudice to the com- 
 plainant's right to prosecute an action at law. On appeal by 
 the complainant to the appellate court, the decree was re- 
 versed, and the cause remanded, with directions to the cir- 
 cuit court to enter a decree in favor of the complainant mak- 
 ing the injunction perpetual. From the judgment of reversal, 
 the village of Dwight now appeals to this court. * * * 
 
 While some of these witnesses seem to be of the opinion 
 that no serious pollution of the water would result, and no 
 nuisance be created, we concur in the opinion of the appellate 
 court that the decided preponderance of the evidence sus- 
 tains the conclusion that the water would thereby become 
 so polluted as to render it unfit for domestic use, or for the 
 drink of domestic animals ; and this view is strongly rein- 
 forced by the inherent probabilities of the case. Such being 
 the case, there can be no doubt, as it seems to us, as to the 
 right of the complainant to relief in equity. As said by Mr. 
 High, in his treatise on Injunction (section 810) : "Fre- 
 quent ground of application for the preventive aid of equity 
 is found in cases of the pollution of water by the flow of sew- 
 age from towns or cities into streams whose waters are thereby 
 injured and rendered unfit for use. In cases of this nature the 
 preventive jurisdiction of equity is well established, the gen- 
 eral doctrine being that the fouling or pollution of water in a 
 stream by such sewage constitutes a nuisance, and affords 
 sufficient ground for relief by injunction. In conformity 
 with this doctrine, the owners of land upon the banks of a 
 river below a city may enjoin the city authorities from pollut- 
 ing the river by sewage." * * * 
 
 The decree of the circuit court dismissing the bill is sought 
 
SEC. ii] vili^agb; of dwight v. hayes 457 
 
 to be sustained on the ground that, before the complainant is 
 entitled to an injunction, he must bring his suit at law, and 
 have his right determined by a jury. While it is a general 
 rule, and one which was formerly enforced with very consid- 
 erable strictness, that, before a court of equity will interfere 
 by injunction to restrain a private nuisance, the complainant 
 must establish his right in a court of law, that rule has in 
 modern times been somewhat relaxed. In Oswald v. Wolf, 
 129 111. 200, 21 N. E. 839, in discussing this branch of equity 
 jurisdictiorj, we said: "Even this power was formerly exer- 
 cised very sparingly, and only in extreme cases, at least until 
 after the right and question of nuisance had been settled at 
 law. While in modern times the strictness of this rule has been 
 somewhat relaxed, there is still a substantial agreement among 
 authorities that, to entitle a party to equitable relief before 
 resorting to a court of law, his case must be clear, so as to 
 be free from all substantial doubt as to his right to relief." 
 We are disposed to think that the complainant's case is one 
 which within the rule as thus laid down, entitles him to an 
 injunction, without having first established his right at law. 
 None of the substantal facts upon which his rights rested 
 are controverted. His title to and possession of the land 
 across which the creek in question runs, and the intention of 
 the village to construct it's systems of sewers, and discharge 
 its sewage into the creek a few rods above his land, are ad- 
 mitted. It is true some witnesses are produced who express 
 the opinion that the proposed discharge of the sewage of the 
 village into this stream will not have the effect of materially 
 polluting the water, in the creek, but, in our judgment, little 
 weight is to be given to the testimony of witnesses who at- 
 ' tempt to swear contrary to known and established natural 
 laws. That the sewage of a village of 1,600 inhabitants dis- 
 charged into a small stream, will materially pollute the water 
 of the stream, and render it unfit for domestic use, for at 
 least a few rods below the point of discharge, is a proposition 
 too plain and too thoroughly verified by ordinary experience 
 and observation to admit of reasonable doubt. That such 
 disposition by the village of its sewage will create and con- 
 
458 VII,I<AGB OF DWIGHT V. HAYES [CHAP. XII 
 
 stitute a nuisance per se is a proposition too plain for serious 
 question. The case of WaHle v. Reinback, 76 111. 323, was a 
 bill in equity for an injunction to restrain a threatened nui- 
 sance, the nuisance consisting of constructing a privy on a 
 lot adjoining that of the complainant, within 8 feet of the 
 .complainant's dwelling house and cellar, and within 20 feet 
 of the well from which the complainant and his family were 
 supplied with water for drinking, cooking, and other domestic 
 purposes. It was urged by the defendant, that before an in- 
 junction could issue in a case of that character, it was nec- 
 essary that it should be previously determined by a jury in 
 a trial at law that a nuisance in fact existed. This contention 
 was overruled, the court citing in support of its judgment, 
 among various other authorities, the following passage from 
 Kerr on Injunctions: "The court will not, in general, inter- 
 fere until an actual nuisance has been committed; but it may, 
 by' virtue of its jurisdiction to restrain acts which, when com- 
 pleted, will result in a ground of action, interfere before 
 any actual nuisance has been committed, where it is satisfie'd 
 that the act complained of will inevitably result in a nuisance." 
 It was accordingly held that a privy so constructed and lo- 
 cated as to corrupt the water of a well used for domestic pur- 
 poses, or so near the complainant's dwelling house as to annoy 
 him in the proper enjoyment of his property, constituted a 
 nuisance per se, and that no preliminary declaration of that 
 fact by a jury was necessary to give a court of equity juris- 
 diction. We are satisfied that the same rule should be applied 
 Here. The discharge of the sewage of the village into the 
 creek, thereby corrupting the waters of the stream as it flows 
 across the complainant's land, would create a nuisance per se, 
 and the complainant was therefore clearly entitled to an in- 
 junction restraining the creation of such threatened nuisance. 
 
 Judgment of appellate court affirmed. 
 
 Ace. Rohh V. Village of La Grange, 158 111., 21 ; Barrett v. Mf. 
 Greenwood Cem. Ass'n, \59 111., 385; City of Kewanee v. %tley, 204 
 111., 402. 
 
SEC. Ill] OgHLER V. I^EVY 459 
 
 OEHLER et al. v. LEVY. 
 234 111., 585; 85 N. E. R., 271. 
 
 ]Supreme Court of Illinois. June 18, 1908.] 
 
 This was a bill in chancery filed in the superior court of 
 Cook county by the complainants, Oehler and Reichhold, 
 against defendant, Charles Levy, to restrain Levy from main- . 
 taining a nuisance upon certain premises situated in the city 
 of Chicago which belonged to him and which adjoined prop- 
 erty owned by the complainants. * * * 
 
 The trial court held that the complainants- were not entitled 
 to an injunction restraining the defendant from keeping horses 
 upon the said premises, on the ground that the building of 
 the defendant had been erected and used as a place for stabling 
 horses prior to the time of the erection of complainants' flat 
 building, but held complainants were entitled to have, and so 
 decreed, the stable upon said premises kept in a sanitary 
 condition, and to have the use of profane and obscene lan^- 
 guage by defendant's employes while upon the said premises 
 discontinued. The defendant prosecuted an appeal to the 
 Appellate Court of the First district, and the complainants 
 assigned cross-errors. That court reversed the decree of the 
 superior court upon the ground that the decree was so indefi- 
 nite that it could not be enforced, and remanded the cause to 
 that court, with directions to enter a decree perpetually en- 
 joining the defendant from maintaining, or permitting to be 
 maintained, on the property of the defendant, a stable for 
 horses in such numbers or in such manner as to produce 
 noise sufficient habitually to disturb the sleep or comfort of 
 the dwellers in building owned by the complainants, or so 
 as to produce odors or gases deleterious to the health or com- 
 fort of the dwellers in said building, or to so conduct busi- 
 ness on said premises as to cause, by the noise and loud talk- 
 ing incident thereto, habitual disturbance to the health, -sleep, 
 or comfort of said dwellers. From that judgment of the Ap- 
 pellate Court Charles Levy has prosecuted an appeal to this 
 court, and errors and cross-errors have been assigned upon 
 the record by the respective parties to this appeal. 
 
 Hand, J. (after stating the facts as above). The first con- 
 
460 OEHtER V. I.EVY [chap. XII 
 
 tention made by the appellant is that the Appellate Court 
 erred in holding that he was guilty of maintaining a nuisance 
 upon his premises. The evidence clearly shows that appel- 
 lant was the owner of and in possession of the premises ad- 
 joining the flat building of appellees ; that he kept upon the 
 premises about 20 head of horses; that he failed to remove 
 the manure and urine deposited by said horses upon said 
 premises at such times and in as such a manner as to prevent 
 offensive odors from arising therefrom, which penetrated the 
 several flats in the building of complainants, and contaminated 
 the air therein, and caused disease and sickness among the 
 occupants of said building; and that the horses kept in said 
 building, and the men who cared for and drove them, when 
 in and about said building, made a great deal of noise in the 
 nighttime, which prevented the occupants of said flat build- 
 ing from sleeping, and that the rental value of said premises, 
 by reason of the misconduct of the defendant in the particu- 
 lars hereinbefore pointed out, was greatly reduced. 
 
 In Wahle V. Reinbach, 76 111. 322, 337, it was said: "What- 
 ever is offensive, physically, to the senses, and by such offen- 
 siveness makes life uncomfortable, is a nuisance." And 
 in Wente v. Commonwealth Fuel Co., 232 111. 526, 533, 83 
 N. E. 1052 : "If a business is offensive to such a degree as 
 to materially interfere with ordinary physical comfort, meas- 
 ured, not by the standard of persons of delicate sensibilities 
 and fastidious habits, but by the habits and feelings of ordi- 
 nary people, and the damages are of a nature which cannot 
 be adequately compensated for in an action at law, a court 
 of equity will grant an injunction." And in Chicago, Milwau- 
 kee & St. Paul Railway Co. v. Darkle, 148 111. 226, 233, 35 
 N. E. 751 : "It cannot be doubted that at common law mere 
 noise in the immediate vicinity of the premises, and especially 
 of the dwelling house of a landowner, may be of such char- 
 acter as to constitute an actionable nuisance, remediable by 
 an action on the case for damages or by injunction." And in 
 High on Injunctions (3d Ed.) § 780: "The use of a build- 
 ing adjoining plaintiff's in a large city, as a stable and the 
 keeping of horses therein, causing annoyance and loss to plain- 
 
SEC. Ill] OEHLER V. LEVY 461 
 
 tiff in his busitiess as a lodging house keeper, constitutes such 
 a nuisance as will be enjoined. So the keeping of horses in 
 a stable adjoining plaintiff's premises, and the noise resulting 
 therefrom, with the fact of moisture and dampness passing 
 through from defendant's stable to plaintiff's wall, afford 
 sufficient ground for relief by injunction." And it has been 
 held that damages resulting from sickness and discomfort 
 caused by inhaling unwholesome vapors and enduring the 
 foul stenches originating from conditions similar to those 
 created by defendant are of such a character as not to be 
 adequately compensated for in an action at law, and afford 
 the basis of equitable relief by way of injunction. Wahle 
 V. Reinbach, supra. We think it clear, in view of the evidence 
 found in this record, and the law as announced in the text 
 books and adjudicated cases, that the Appellate Court prop- 
 erly held the appellant guilty of maintaining a nuisance upon 
 his premises. 
 
 It is next contended by the appellant that the Appellate 
 Court erred in holding that appellees were entitled to an in- 
 junction, as the appellant had not been held to be guilty of 
 maintaining a nuisance in an action at law. It hks been re- 
 peatedly held by this court that where the legal right of a com- 
 plainant in a bill for an injunction is clearly shown and the 
 unlawful use of the defendant's property which injured the 
 complainant's property is clearly settled, the complainant will 
 be granted relief without a prior determination in a suit . at 
 law that the defendant's use of his property constitutes a 
 nuisance. Wahle v. Reinbach, supra; Wente v. Common- 
 wealth Fuel Co., supra. In the Wente Case, 232 111. 533, 83 
 N. E. 1052, it was said : "Where the legal right of a complain- 
 ant is clearly established and the Unreasonable and unlawful 
 use by the defendant of its property to the injury of the com- 
 plainant is also clearly proved, it is not necessary that the 
 question should firfet be determined in a suit at law." And 
 in the Wahle Case, which was a bill to enjoin the defendant 
 from constructing a privy within a few feet of- the complain- 
 ant's dwelling bouse aild well, the court, on page 337 of 76 
 111. said: "Manifestly no remedy in an actioH at law would 
 
■±62 OEHI<ER V. LEVY [chap. XII 
 
 be adequate in a case like the present. Upon what basis 
 could the damages be estimated for the sickness or discom- 
 fort caused by inhaling the unwholesome vapors, drinking the 
 impure water, and enduring the foul stenches' originating from 
 a structure of the description and relative, location complained 
 of? And to say that such a nuisance must be suffered to be 
 created and continued until its character shall be formally 
 determined at law would seem to be but little better than a 
 mockery of justice to him whose residence is affected by it." 
 The facts alleged in complainant's bill in this case were prac- 
 tically undisputed, and, as was said in the Wahle Case, to 
 require complainants and their tenants to inhale the unwhole- 
 some vapors, endure the foul stenches arising frorn the offen- 
 sive matter allowed to accumulate in and about said stable, and 
 deprive them of their rest at night by reason of the noise of 
 30 head of horses quartered within a few feet of their sleep- 
 ing apartments and the profane and obscene language of ap- 
 pellee's employes uttered immediately beneath their windows, 
 until the character of the place maintained by the appellant 
 was formally determined in an action at law, would, indeed, 
 be a "mockery of justice" to complainants and their ten- 
 ants. The Appellate Court committed no error in holding 
 that it was not necessary that the complainants should have 
 established that appellant was maintaining a nuisance upon 
 his premises in an action at law before they could maintain 
 a bill to enjoin the further maintenance of the nuisance 
 shown by the evidence in this case to exist upon said prem- 
 ises. * * * 
 
 It is assigned as cross-error that the Appellate Court erred 
 in declining to direct the superior court to enter a decree re- 
 quiring the appellant to remove the driveway from across 
 the sidewalk in front of his premises, which connected his 
 stable with the street. Th€ appellees did not specifically pray 
 for such relief, and it is not averred in the bill or shown by 
 the proof that the af>pellees are specially damaged by reason 
 of the construction of said driveway. It has often been de- 
 cided to be the law of this state, that for an o*bstruction to 
 streets not resulting in special injury to the individual the 
 
SEC. hi] oijhler v. levy 463 
 
 public only can complain. McDonald v. English, 85 111. 332; 
 City of Chicago v. Union Building Ass'n, 102 111. 379, 40 
 Am. Rep. 598; Barrows v. City of Sycamore, 150 111. 588, 
 37 N. E. 1096; 25 L. R. A. 535, 41 Am. St. Rep. 400; Gut- 
 tery v. Glenn, 201 111. 275, 66 N. E. 305 ; Hamilton v. Semet 
 Solvay Co., 227 111. 501, 81 N. E. 538. 
 
 It is also assigned as cross-error that the Appellate Court 
 erred in not directing the superior court to enter a decree 
 enjoining the appellant from keeping any horses in his build- 
 ing or upon the premises adjoining the property of the ap- 
 pellees. The nuisance created by the appellant consisted in 
 the manner of the use of his premises ; and while the direc- 
 tion to the superior court by the Appellate Court, when in- 
 corporated in the decree of that court, practically will .pro- 
 hibit the appellant from maintaining his stable upon the said 
 property, theoretically it does not. The Appellate Court was 
 not, as it states in its opinion prepared to hold as a matter 
 of law — and neither is this court — ^that a stable may not be 
 kept in a residence district of a large city in such manner 
 that it would not be regarded as a nuisance, and for that 
 reason it refused to direct the superior court to enter a decree . 
 enjoining the appellant from keeping any horses in his build- 
 ing or upon his premises. In this we think there was no 
 error. 
 
 Finding no reversible error in this record, the judgment of 
 Appellate Court will be afifirmed. 
 
 Judgment afiSrmed.