« ForrigeFortsett »
sion in the city of Chicago, both of which lots were subject to a mortgage that had been foreclosed, the decree amounting to $6,178.58; that said part of lot 1 was sold and bid off by the defendant Vanek for the full amount Of the mortgage indebtedness and costs, thereby discharging said defendant's lot 2, Worth the sum of $12,000, from the mortgage lien, which lot should have contributed to the payment of the same; that the complainant's lot should only have been charged with the payment of one-third of said indebtedness, that being its full proportion thereof according to the relative Value of the lots, and that in equity lot 2 should have contributed $4,000 and said part of lot 1 only the balance of Said decree. The prayer was for contribution and subrogation on that basis. The defendant Vanek demurred to the bill, which demurrer being OVerruled he elected to Stand by the same, and thereupon the bill was taken as Confessed and a decree pro confesso entered for the complainant. The other defendants anSWered the bill, and the cause was referred to a master in chancery to take the evidence and report his conclusions. On October 28, 1901, a decree was entered dismissing the bill as to all Of the defendants except this appellant, and Subsequently the complainant Voluntarily dismissed the bill as to him. Afterwards, and during the same term, complainant moved the court to reinstate the cause, and permit him to file an amended bill, which motion was allowed upon his paying all of the costs to that date, and a rule was at the same time entered upon the defendant Vanek and his wife to plead, anSWer or demur thereto within 30 days. Vanek and Wife moved to dismiss the amended bill, which motion being overruled they filed a demurrer to the Same, which was sustained, and COmplainant then Obtained leave to file What he terms an engrOSSed amended bill against Vanek and wife alone. They again demurred, and their demurrer WaS SuStained and the amended bill dismissed for want of equity. Senft prayed an appeal to the Appellate Court for the First District, and the decree of the superior court was affirmed. 110 Ill. App. 117. He then prosecuted a further appeal to this court, and on April 20, 1904, the judgment of the Appellate Court was reversed, and the cause remanded to the Superior court, with directions to proceed in accordance With the Views expressed in the opinion. 209 Ill. 361, 70 N. E. 720. In the report of the case as considered and decided by this court Will be found an extended statement of the facts and they need not be further repeated here. The cause being redocketed, the Superior court decreed that the appellant and his wife execute a special warranty deed to said part of lot 1 to appellee upon his paying them $237.64, with interest from August 16, 1900. The latter decree having been affirmed by the Appellate Court, this appeal is prosecuted.
Mancha Bruggemeyer, for appellant. Charles Wesely (Zeisler, Farson & Friedman, of counsel) for appellee.
WILKIN, J. (after stating the facts.) Appellant contends that upon the filing of the mandate of this Court in the Superior court that court should have entered an order overruling the demurrer and ordering the appellant to answer the bill, and that it was error to render a final decree Without SO doing, and that only in default of an answer Could it Order the bill to be taken aS COnfeSSed; also, that it was error on that hearing to render a decree without proof.
As shown by the foregoing Statement of facts, the appellant filed a demurrer to the last amended bill, which was sustained and the bill dismissed for Want of equity, and that decree was affirmed by the Appellate Court, but reversed by this court. In the consideration of the case When it was before us we considered fully all the prior proceedings, and held that the appellee had the right to redeem his property by the payment of $237.64. In that decision the rights of the parties were fully considered, the law of the case settled and the superior court directed to proceed in accordance with the views therein expressed. The usual practice in Such case Would have been, On the redocketing of the cause to overrule the demurrer and enter a rule on the appellant to answer the bill; but that practice was not necessary in the absence of anything to show that the defendantasked leave to anSWer. In the Case Of Bruschke v. Nord Chicago Schuetzen Verein, 145 Ill. 433, 34 N. E. 417, We Said (page 443 of 145 Ill., page 419 of 34 N. E.): “It is assigned as error that the court below, upon overruling the demurrer to the bill, did not grant leave to answer Over. The correct practice on overruling a demurrer to the bill is not to render a decree, but to make an Order requiring the defendant to anSWer, and if he does not do so, to take the bill as Confessed. We have held, however, that the question whether a defendant should be ruled to answer was one of discretion, and would not be reviewed in this Court.” Miller V. Davidson, 3 Gilman, 518, 44 Am. Dec. 715; Roach v. Chapin, 27 Ill. 194; Wangelin v. Gee, 50 Ill. 459. In the Wangelin Case it was said (page 470) : “Upon the point made by appellants that the court proceeded to a decree on overruling the demurrer, there was no irregularity in that, as the record shows the defendants elected to abide by the demurrer, and if they had not so elected it was not necessary the court should have ruled them to answer, but could proceed at once to a decree.” The court, by rendering the decree, in effect Overruled the demurrer, and the objection is that before taking the bill for confessed, it Should have made an Order upon the defendant to answer. This was not necessary under the foregoing authorities, and, as said, whether such an order should be made by the Court of its own motion was one of discretion, not reviewable in this court. Of course, if the defendant had asked leave to answer, the court would have had no discretion, as a general rule, to deny the motion. In this case the record fails to show that any such request Was made by the defendant. Manifestly no injury resulted to him by the practice adopted by the Court. As We have before stated, the law of the case had been determined by this court, and the rights of the parties fixed, by Which, On the reinstatement of the case in the Superior court it could do nothing but enter a decree accordingly.
The Contention that it was error to render the decree without formal proof is also withOut merit. When the original bill was an: swered by the defendants other than appellant the CauSe Was referred to the master to take the evidence and report the Same, with his conclusions. His report was filed, and a decree entered in accordance thereWith. That decree Was Subsequently Vacated by reaSon of appellee dismissing the bill and filing an amended bill against appellant alone. UpOn his appeal to this court We found the relative Values Of the two lots and that the appellee should be entitled to redeem his lot by the payment of $237.64. The record on this appeal does not purport to contain any Of the testimony, and in that respect is not a complete record of the proceedings in the cause. We will therefore presume that there WaS Sufficient evidence On Which to base the decree. Moreover, it nowhere appears in this record that the defendant sought to have the case referred to the master to take evidence or offered to introduce any testimony upon the hearing.
There is no reversible error in the record, and the judgment of the Appellate Court Will be affirmed.
(222 Ill. 46)
JACKSON V. JACKSON. (Supreme Court of Illinois. June 14, 1906.)
1. DEEDS – CONSIDERATION – SUFFICIENCY MARRIAGE. Marriage is a good consideration for a deed. [Ed. Note.—For cases in point, see vol. 16, Cent. Dig. Deeds, $30.] 2. SAME – CONSIDERATION-PARTIAL FAILURE - CANCELLATION - RESTORING CONSIDERATION. Where a man deeded land to a Woman in consideration of marriage, and her promise to be a kind and dutiful wife, but she failed to so conduct herself, there was but a partial failure of consideration, and equity would not decree rescission, as the wife could not be put in Statu quo.
Appeal from Superior Court, Cook County; Joseph E. Gary, Judge.
Suit by Charles F. Jackson against Emma E. Jackson. From a decree dismissing the bill, complainant appeals. Affirmed.
Edward O'Bryan and Carl T. Murray, for appellant. John Leo Fay, for appellee.
HAND, J. This was a bill in chancery filed by the appellant against the appellee, in the superior court of Cook county, to set aside a deed made by the appellant to the appellee On March 23, 1904, to certain improved real estate situated in the city of Chicago, and Which deed was recorded in Cook county. The case was tried in open court, and a decree entered dismissing the bill for want of equity, and this appeal has been prosecuted to reverSe Said decree.
The appellant, at the time of the execution of the said deed, was a widower 63 years of age, and the appellee a widow about 20 year'S his junior. About a year and six months prior to the date of the deed, the parties, in company With an adopted daughter of each, Set up housekeeping in a house located upon a part of the property conveyed by said deed. Soon thereafter the appellant proposed marriage to the appellee. The appellee declined to entertain his proposition of marriage unless he would convey to her his real estate,. which consisted of two 25-foot lots; one of which was improved with a flat building and the other with a small cottage, and which were of the value of about $9,000, and were incumbered by a mortgage to the amount of $4,000. While the appellant appears to have been exceedingly anxious to marry the appellee, he declined for a time to accede to her demands as a condition precedent to their marriage. In the meantime a man more nearly the age of appellee commenced to pay her attention, When the appellant again pressed his suit, whereupon the appellee said to him he knew her terms, and if he Would comply therewith she would marry him. The appellant then agreed to convey said real estate to the appellee if she would send her other suitor away and marry him. Then they went to a lawyer, who prepared a deed from appellant to appellee conveying to her said property; also a release to appellee from appellant of all interest in her property, present and future, and all claim upon her for Support, and the same were executed by appellant and delivered to appellee and the deed was recorded. Within a few days the parties were married and their relation for a time was harmonious. Within a few months, however, trouble arose between the appellee and the adopted daughter of appellant. The appellant espoused the cause of his adopted daughter, and trouble having occurred between the appellant and appellee, he demanded of appellee that she reconvey to him the real estate Which he had prior to their marriage conveyed to her. The appellee declined to comply with the demand of the appellant, and from that time forward the quarrels and bickerings between the parties increased. The appellee at one time left the appellant and remained a Way from
him two weeks. They then were reconciled, and she returned to their home, where she remained for a time, when the parties had further trouble and again Separated, and the appellant filed this bill and the appellee filed a bill against him for divorce. The cases were consolidated, and upon the hearing the bill for divorce was also dismissed. The theory of the appellant is that at the time he made said deed to the appellee she agreed not only to marry him, but that She Would be a kind and dutiful Wife to him, and that she would use the property and the ir come thereof for the benefit of both and for the maintenance of appellant in his old age, and that subsequent to their marriage she repudiated said agreements by mistreating the appellant and his adopted daughter, and by claiming to be the absolute 0Wner of said real estate free from any claim or interest therein of the appellant. The record clearly shows that the consideration for said deed was the agreement of appellee to marry appellant, and that a lawful marriage Was consummated between the parties shortly ..after the execution and delivery of the deed. It is uniformly held that marriage is a good consideration for a deed. In Otis V. Spencer, 102 Ill. 622, on page 630, 40 Am. Rep. 617, this court said: “Marriage, from the earliest period of the common law, has ever been held to be a sufficient consideration to Support a conveyance of land, and Such conveyances have ever been regarded as entitled to as full protection as conveyances made On the most ample pecuniary considerations.” It is, however, urged that appellee at the time she received the deed, promised to be a kind and dutiful wife, and to use the property for the joint benefit of herself and the appellant, and to support the appellant in his old age, and that she having failed to keep said agreements, the consideration for said deed had failed, and that the presumption Obtains that the appellee obtained the title to said premises with thefraudulent intent to deprive appellant of his title thereto, and that he was entitled to a decree rescinding said deed and restoring the title to Said premises to him. If the contention of the appellant was borne out by the record there would be only a partial failure of consideration, and a court of equity will not ordinarily decree a rescission of a contract where there is only a partial failure of consideration. Selby V. Hutchinson, 4 Gilman, 319; Leopold V. Salkey, 89 Ill. 412, 31 Am. Rep. 93; Ballance V. Vanuxem, 191 Ill. 319, 61 N. E. 85. Especially is this true where the party ££ainst whom rescission is sought cannot be placed in statu quo. Doane v. Lockwood, 115 Ill. 490, 4 N. E. 500. We think it clear from an examination, of the testimony found in this record that the appellant agreed to convey the property in question to the appellee in consideration that She WOuld mar!y him; that he made the conveyance freely and Voluntarily, and that after the convey
ance Was made a marriage was consummated between them in pursuance of their agreement, which existed at the time the deed was executed, and that they lived happily together for a time, when they disagreed, and that after the disagreement occurred between them the appellant insisted that the property be reconveyed to him. Whether there was any consideration other than that of marriage moving from the appellee to the appellant for the conveyance, and Whether said consideration had failed, Were questions of fact upon which the testimony was conflicting. The chancellor heard and saw the Witnesses, and was in a better position than we to determine where the truth rested. While the appellant Was perhaps foolish to part with his property, he appears to have advisedly done so, and he is not now in a position to reclaim it, as he cannot restore the appellee to the unmarried state in Which he found her at the time he conveyed the title to her.
It is insisted by the appellant that the case of Hursen V. Hursen, 212 Ill. 377, 72 N. E. 391, 103 Am. St. Rep. 230, is decisive of this case. The deed set aside in that case Was one between husband and Wife and WaS Without consideration, and its execution Was obtained through fraud practiced upon the husband by the wife, and the relief granted in that case rests upon equitable considerations which do not obtain in this case. It is therefore, in principle, not like the case at bar.
The decree of the superior court will be aflirlmed.
(222 Ill. 139) PIESER et al. v. MINKOTA MILLING CO. (Supreme Court of Illinois. June 14, 1906.)
1. APPEAL—REIIEARING-TIME FOR MOTION. Rule 27 of the Appellate Court for the First District, providing that a petition for rehearing shall be filed within 10 days after the decision is entered of record, applies only to a decision finally determining the cause, and does not prevent the renewal of a motion to strike a bill of exceptions more than 10 days after a decision on the original motion. 2. EXCEPTIONS, BILL OF-TIME FOR FILINGEXTENSION. Where, on the entry of a judgment on June 22d, 30 days was allowed within which to file a bill of exceptions, but none was filed within that time, an order entered on August 13th nunc pro tunc as of July 22d, allowing addi£l time for filing the bill of exceptions, was VOIC[. 3. APPEAL—BILL OF EXCEPTIONS – STRIKING FROM RECORD. Where it appeared, on appeal to the Appellate Court, that the bill of exceptions was not presented for signature within the time allowed by law, the Appellate Court had power to strike the bill from the record, though no motion was made in the circuit court to strike it. Appeal from Appellate Court, First Dis
trict. Action by Isaac Pieser and others against the Minkota Milling Company. From a judgment of the Appellate Court, affirming a judgment in favor of defendant, plaintiffs appeal. Affirmed.
D'Ancona & Pflaurn, for appellants. Charles Cheney Hyde and Charles B. Elder, for appellee.
SCOTT, C. J. Appellants sued appellee in the circuit court of Cook county in assumpsit. A trial resulted in a judgment, entered at the June term On June 22, 1904, in favor of appellee. Appellants prayed an appeal on that day to the Appellate Court for the First District, which was allowed upon filing an appeal bond within 20 days and bill of exceptions within 30 days. The bond was filed within the time limited. The time for filing the bill of exceptions expired on July 22, 1904, during the July term of the circuit court. On August 13th, being the last day of the July term of the circuit court, no bill of exceptions having up to that time been presented to the judge of the circuit court, and no order extending the time for filing a bill of exceptions having been made or applied for prior to that date, an order was entered in that court nunc pro tunc as of July 22, 1904, allowing 30 days additional time for filing a bill of exceptions. To the entry of this order appellee objected. Further extensions of time Were thereafter made, and the bill of exceptions was finally presented to the judge of the circuit court and signed and sealed on October 1, 1904, within the period limited by the last extension. After the case Was docketed in the Appellate Court, it was assigned to the branch court, and appellee moved that court to strike the bill of exceptions from the transcript of the record on the ground that the order made on August 13, 1904, extending the time for filing the same, was illegal and Void. This motion Was denied on JanYlary 27, 1905, and On November 14th of that year the judgment of the circuit court was affirmed. On November 28, 1905, a rehearing was granted upon the petition of appellants. Thereupon appellee, on January 2, 1906, again moved the court to strike the bill of exceptions from the transcript of the recOrd, basing the motion upon the same reason as that urged in its support when it was originally made. The case of Hill v. City of Chicago, 218 Ill. 178, 75 N. E. 766, having been decided by this court after the original motion was denied, the branch court, on January 30, 1906, entered an order striking the bill of exceptions from the transcript Of the record. In the absence of a bill of exceptions, the errors relied upon did not appear from the transcript of the record, and the Branch Appellate Court accordingly again affirmed the judgment of the circuit court, and appellants bring the record here for review.
It is first urged that the second motion to strike the bill of exceptions from the transcript of the record amounted to an applica
tion for a rehearing of the original motion, and that, not having been made within the time limited by the rules of the Appellate Court for the First District, the branch court was without power to consider the motion when presented the second time Rule 27 of the rules of practice of the Ap. pellate Court for the First District of Illi. nois pertains to applications for rehearings, and provides that a petition shall be filed within 10 days after a decision is entered of record. We are Satisfied from an examination of this rule that the decision therein referred to is a decision finally determining the cause, and the order disposing of the original motion to strike the bill of exceptions was not a decision of that character. There was, therefore, nothing in this rule to prevent the Branch Appellate Court considering this motion when it was the second time presented. From an examination of the authorities, We conclude that the rule in this state in reference to the presentation of a bill of exceptions is this: It must be presented for signature and seal during the term at which the cause is disposed of, or Within such further time as shall be limited by the court by an order entered during that term, provided, however, that, if the court shall be in session at any succeeding term before the expiration of such further time, the court may, prior to the expiration of that further time and during such succeeding term, make another order extending the time within which the bill of exceptions may be filed; but if the term at which the cause was disposed of is adjourned, and thereafter the period first fixed for filing the bill expires without an order providing for an extension being made, the court, subsequent to the expiration of that period, is Without jurisdiction to make an order extending the time within which the bill may be presented. United State Life Ins. Co. V. Shattuck, 159 Ill. 610, 43 N. E. 389, Hill V. City of Chicago, supra. The case last cited is identical in principle with the one at bar, although there the question arose in regard to the filing of an appeal bond, but the power of the court to extend the time within which an appeal bond may be filed is neither greater nor less than its power to extend the time within Which a bill of exceptions may be filed. Appellants rely principally upon the case of Plotke v. Chicago Title & Trust Co., 175 Ill. 234, 51 N. E. 754. That case was, in Hill v. City of Chicago, Supra, distinguished from the case then under consideration, and the same distinction obtains here. It follows that the order of the circuit court made on Auggust 13, 1904, was void. It is also contended by appellants that the Branch Appellate Court had no power to consider this matter, for the reason that no motion was made in the circuit court to strike the bill of exceptions from the record. In Support of this position our attention is called to the cases Of Wilder W. House, 40 Ill. 92; Underwood v. Hossack, 40 Ill. 98; Village of Hyde Park v. Dunham, 85 Ill. 569; and Plotke v. Chicago Title & Trust Co., supra. In each of the first three of these cases it did not appear from the transcript of the record but that the bill of exceptions was presented to the judge to be signed and sealed within the time limited by the court, and in the Plotke Case it appeared from the transcript, under the law as Stated in that case, that the appeal bond had been filed in due time. In the case at bar it appeared that the bill of exceptions WaS not presented to the judge of the court for his signature and Seal until after the time within which it should, under the law, have been presented to him. Under these circumstances a motion to Strike the bill Ot exceptions, or a transcript thereof, from the transcript of the record, may be properly made and allowed in the Appellate Court, although no such motion has been made in the court in which the bill of exceptions was originally filed.
The judgment of the Branch Appellate Court Will be affirmed.
(222 Ill. 113)
JOSEPH N. EISENDRATH CO. v. GEBHARDT et al.
(Supreme Court of Illinois. June 14, 1906.)
1. MECHANICS’ LIENS-STATUTES—CoNSTRUCTION. A statute allowing a mechanic’s lien is in derogation of the common law, and strict compliance with its terms is essential. [Ed. Note.—For cases in point, see Vol. 34, Cent. Dig. Mechanics' Liens, § 5.]
2. SAME—RIGHT TO LIEN—WHAT STATUTES GOVERN. The statute allowing a mechanic's lien, which is in force on the date of the execution of a contract for Work in the construction of a building, governs as to the right to a lien and the time for bringing suit to enforce it. [Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Mechanics' Liens, §§ 2, 9, 10.]
3. SAME—TIME TO ENFORCE LIEN–STATUTES. Under Laws 1895, p. 225, relating to a mechanic's lien, it is essential that, within four months from the date on which the final payment becomes due and payable according to the terms of a contract, a suit should be brought to enforce the lien, or the claim be filed in the circuit court. [Ed. Note.—For cases in point, see vol. 34, '' Dig. Mechanics' Liens, §§ 190–207, 456–
4. SAME. A contract for work in the erection of a building provided that the work should be complete by July 1st, that payments should be made on certificates of the architect, final payment to be made within 30 days after the contract was fulfilled, and authorized the architect to make additions or deductions from the contract price on account of alterations in the work and to find the balance due and give his certificate therefor. The final certificate of the architect was given October 5th. Held, that a bill to enforce the lien filed December 16th was in time, under laws 1895, p. 225, providing that
a suit to enforce a lien must be brought with# four months after the final payment becomes Ule. "I SAME—CONTRACTS SUFFICIENT TO CREATE AIEN. A contract for work provided that it should be completed by a specified date, and that final payment should be made within 30 days after the contract was fulfilled, and authorized the architect to make additions or deductions from the contract price on account of alterations in the work and to find the balance due and give his certificate therefor; payments being made on certificates of the architect. Held that, though the final payment, according to the terms of the contract, did not become payable until the certificate was given, the contract specified the time for the completion of the work and a definite time when final payment £ be made, rendering it sufficient to create a llen.
6. SAME—TIME TO SUE-AMENDED BILL—EFFECT.
An original bill to enforce a mechanic's lien was filed in time. An amended bill, filed after the expiration of the time, set forth the same cause of action, involving the same property, building, work, price, parties, and the date and amount of the architect’s certificate. Held, that the amended bill did not state a new cause of action, and limitations had not run against it.
Appeal from Appellate Court, First DiStrict.
Suit by John Gebhardt and others against the Joseph N. Eisendrath Company. From a decree of the Appellate Court, affirming a decree for plaintiffs, defendant appeals. Affirmed.
Frank F. Reed and Adams & FrOehlich, for appellant. Ernest Saunders, for appellees.
CARTWRIGHT, J. On December 16, 1903, appellees filed in the Superior court of Cook county their bill of complaint against appellant to enforce a mechanic's lien for masonry Work and materials therefor, furnished in the erection of a factory Warehouse in the city of Chicago. On March 11, 1904, appellant answered the bill, admitting the ownership of the premises, but denying that it made the alleged contract for the Work Or that the same was performed, and denying the right to a lien. A replication to the answer was filed, and the cause was referred to a master in chancery. On November 10, 1904, an amended bill was filed, to which appellant demurred generally and Specially. The court Overruled the demurrer, and, appellant having elected to stand by it, the amended bill was taken as confessed, the Order of reference Was Vacated, and the court heard evidence and entered a decree establishing a mechanic's lien for the sum of $1,671.11 and costs. On appeal to the Appellate Court for the First District the decree was affirmed, and this further appeal was prosecuted.
The first three propositions of counsel for appellant are correct: First, the statute allowing mechanics’ liens is in derogation of the common law, and Strict compliance with the statute is essential (Pugh Co. V. Wal