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too clear for argument that a resulting trust of this kind can only arise where the purchase money is shown to have belonged to the alleged cestui que trust, which fact must be clearly alleged and proved. The trust arises, if at all, at the time the deed is taken, and upon the facts then existing." The decree must be, and is, reversed, and the cause remanded. Reversed and remanded.

AUBURN STATE BANK et al. v. BROWN et al.

(Supreme Court of Illinois. April 21, 1898.) EXECUTORS-ACCOUNTING INVENTORY

DESCRIPTION.

Certain executors affixed an appraised value to an insufficient description, which they intended to represent certain land which testator had owned. Subsequently they conveyed the land to the parties entitled to take under the will, and reported to the court. Held, that they had "accounted for" the land, within Rev. St. c. 3, § 70, permitting a creditor not presenting his claim within two years to subject property not accounted for to the payment thereof.

Appeal from appellate court, Third district. Action by the Auburn State Bank and another against William T. Brown and another, executors of the will of George S. Brown, deceased, to subject certain land to the payment of certain claims. Judgment for plaintiffs, and defendants appealed to the appellate court, which reversed the judgment, and plaintiff's appealed to the supreme court. Affirmed.

Peebles, Keefe & Peebles, for appellants. Rinaker & Rinaker, for appellees.

BOGGS, J. Appellants held demands against the estate of George S. Brown, deceased, who died testate in Macoupin county, Ill., but did not exhibit said demands to the county court of said Macoupin county, wherein the estate of the said deceased was pending for settlement, until after the expiration of the period of two years from the date of the letters testamentary. They insisted the deceased died seised of the title to the N. 1⁄2 of the N. 1⁄2 of the S. E. 4 of the S. W. 4, and the N. W. of the N. E. 4, and 17 acres off of the east side of the N. E. 4 of the N. W. 14, all in section 23, township 12 N., range 8 W., in Macoupin county, containing 67% acres, and that said lands were not inventoried or accounted for by the executors of the last will and testament of the deceased, and therefore they are entitled to have the same sold for the purpose of paying their claims. They petitioned the county court for an order requiring the executors of said estate to cause said lands to be devoted to the payments of their claims, but the court denied the prayer of their petition. The appellees, as executors of said will, filed an inventory purporting to be a full and complete inventory of all the property, real and personal, which belonged

to the deceased. An attempt was made to include and describe these lands in the inventory at an appraised value of $6,145. The description is, however, defective, in that the town and range in which the tracts are situated are not given. The contention of appellants is that the description of the tracts is for that reason so uncertain as to render it wholly void. Parol evidence was received showing that the deceased owned the land in question, and had it in possession at the time of his death, and that he owned no land in any other town and range in Macoupin county, Ill. Aside from any question as to the description of the land, we think it was proven that the tracts in question were "accounted for" by the executors. It appeared the will of the deceased authorized and empowered the executors (the appellees) to divide and partition the property, real, personal, and mixed, of the deceased, between certain persons designated in the will, and that in pursuance of such power the executors, within the period of two years after the grant of letters to them, allotted the tracts in question to certain of said parties, and executed proper deeds of conveyance, as executors, conveying said lands to such parties, and that the lands passed into the possession of the persons to whom they were so conveyed. The executors made report of their acts and doings as executors to the county court, which included a report of such allotment and conveyance of said lands; and said report, so far as said allotment and conveyance were concerned, was approved by the court. After the report had been approved, and after the expiration of the two years, the appellants exhibited their claims, and were awarded judgment, recoverable out of subsequently discovered property.

Section 70, c. 3, of the Revised Statutes, entitled "Administration," provides that "all demands not exhibited within two years, as aforesaid, shall be forever barred, unless the creditors shall find other estate of the deceased not inventoried or accounted for by the executor or administrator, in which case their claims shall be paid pro rata out of such subsequently discovered estate." The meaning of the words "accounted for," as applied to the case in hand, is that the property in question has been devoted by the executors to the purposes of the proper and due administration of the estate, in pursuance of the will of the deceased. Even though the description in the inventory ought to be deemed insufficient, yet, as an appraised value was affixed to whatever the description intended to represent, it availed to create a liability on the part of the executors to answer and account therefor. Their action in the matter of allotting the land to parties entitled to take under the will, and conveying it and delivering possession to such persons and making report thereof to the court, constituted an accounting for the land, within the meaning of the statute. The law and the will of the de

ceased operated upon the land, and it was not unadministered or "unaccounted for" property. The personal assets of the estate were ample to pay all claims exhibited within two years, and, in addition. much more than sufficient to pay the claims of the appellants; and there was no reason why the executors should not have, within the two years, allotted and divided the land in accordance with the desire of the testator, as expressed in the will. Having done so, we cannot coneeive that upon any sound reasoning it can be urged that it was not accounted for by the executors. If accounted for, it is immaterial whether or not it was inventoried. The judgment of the appellate court is affirmed. Judgment affirmed.

CHAMBERS v. PREWITT et al. (Supreme Court of Illinois. April 21, 1898.) MORTGAGE TO SURETY-CONSTRUCTION-RES JUDICATA-CESTUI QUE TRUST.

1. The situation, condition, and mutual relations of the parties to a mortgage may be shown to make clear what from the language might be uncertain.

*

2. A mortgage is given to secure, not merely the mortgagees as sureties, nor them and the notes described alone, but as well all other debts of the mortgagor J., for which the mortgagees were liable as sureties or guarantors; the recitals being "that the mortgagors, J. and A., his wife, mortgage * to D. and B., to secure the payment of the following [four notes given to a bank], the following described real estate, * which * * notes have by said J. been duly executed, * * and the payment * 串串 of which has been guarantied * * *by the said D. and B.; and when each and all of which shall have been duly paid by said J., together with any other sums for which D. and B. * may be liable, either as surety or guarantor of and for the said J., the said D. and B. shall * * reconvey the said * premises to

the said J."

*

3. Decree in suit to foreclose mortgage given to secure the mortgagees as sureties of the mortgagor and all debts of the mortgagor for which the mortgagees were liable as sureties, which decree was taken by default against the mortgagors, and provided that the proceeds be used to pay one of the creditors, is not res judicata against other creditors not parties to the suit, as they do not claim under and through the mortgagees, but derive their right directly from the mortgage, which cannot be prejudiced by any act or default of the mortgagees, to whom they bear the relation of cestuis que trustent.

Error to appellate court, Third district.

Suit by Pattie S. Prewitt and others against John I. Chambers and others. A decree for complainants was affirmed by the appellate court (71 Ill. App. 119), and defendant Chambers brings error. Affirmed.

Edward P. Kirby, for plaintiff in error. Patton, Hamilton & Patton, for defendants in

error.

PER CURIAM. The appellate court for the Third district affirmed the decree of the circuit court of Sangamon county in this case, and the following opinion, which expresses 50 N.E.-10

the views of this court in the case, was delivered by Mr. Justice Pleasants:

"In March, 1885, John P. Smith borrowed of George and Hiram Wilson, partners, $22,500, giving his notes therefor, and executing a mortgage upon his farm of 770 acres, in Sangamon and Morgan counties, to secure their payment. Afterwards he became indebted to the Central Illinois Banking & Savings Association (commonly known as the 'Central Bank') of Jacksonville, on notes and overdrafts, for the payment of which his brothers, James D. and Lloyd B. Smith, were sureties, and which, on February 2, 1893, upon an accounting between the parties, were agreed to amount in all to $34,500. Thereupon he made his four notes,-one for $4,500, at three months, and three for $10,000 each, at six, nine, and twelve months, respectively, from that date,-with interest at 7 per cent., payable to his own order, which he indorsed and delivered to William E. Veitch, as cashier of said bank. In connection with the making and delivery of these notes, though at a later date,-April 13, 1893,-in pursuance of a previous agreement of the parties concerned, James D. and Lloyd B. Smith executed to the bank a separate contract guarantying their payment, and John P. Smith and wife executed to them a second mortgage of his said farm, the material parts of which are as follows: The mortgagors, John P. Smith and Anna Smith, his wife, mortgage and warrant to James D. Smith and Lloyd B. Smith to 'secure the payment of the following described promissory notes, to wit, [here follows a description of the four notes given to the bank as above stated], the following described real estate: [Here follows a description of the lands],-all of which above-described notes have by the maker, the said John P. Smith, been duly executed, indorsed, and delivered to bona fide holders for valuable consideration, and the payment of each and all of which have been guarantied to the holders thereof by the said James D. Smith and Lloyd B. Smith; and when each and all of which shall have been duly paid by said John P. Smith, together with any other sums for which James D. Smith and Lloyd B. Smith, or either of them, may be liable, either as surety or guarantor of and for the said John P. Smith, the said James D. Smith and Lloyd B. Smith shall and will reconvey the said above-described premises to the said John P. Smith, or to his heirs or assigns. Dated the 13th day of April, A. D. 1893. J. P. Smith. [Seal.] Anna Smith. [Seal.]'

"This mortgage was delivered by the attorney for the bank, who prepared it and the guaranty contract, in the latter part of May, 1893, to the mortgagee, James D. Smith, at his house in Island Grove, Sangamon county, for his firm, and by him given back to the attorney to be deposited in the bank. Before and when it was delivered the mortgagor was indebted to appellees Pattie S. Prewitt, Annie L. Johnson, and William M. Warren upon his

notes held by them, respectively, on each of which the mortgagees were sureties; and these notes, together with those given to the bank, constituted the entire amount of his indebtedness. A bill was filed to the Novem

ber term, 1893, of the circuit court of Sangamon county to foreclose the Wilson mortgage, to which the mortgagors and the second mortgagees were made parties defendant and duly served with process. While that suit was pending, appellant, Chambers, and William E. Veitch, who had been appointed receivers of the bank, obtained leave to be made defendants also, and filed with their answer a cross bill against the complainant and all of the original defendants in the original bill. In the latter, as in their answer, they set up the several transactions above stated between John P. Smith, his brothers named, and the bank; that none of the notes of said John P. Smith held by the bank had been paid; that the mortgage to his brothers was given especially to secure their payment, and had been redelivered by the mortgagees to the bank for that purpose, and that the receivers hold said notes and mortgage as assets of the bank, with authority to institute suits for their collection; and prayed that an account be taken of the amount thereon, that they be subrogated to all the rights of said mortgagees, that John P. Smith be required to pay them the amount found due, and that in default thereof the mortgage be foreclosed, the land sold, the equities of the different parties interested determined, and the proceeds of the sale applied to the payment of said four notes in the order of their maturity. The original defendants failed to answer either the original or cross bill, both of which were therefore taken as confessed by them, and on final hearing a decree was entered on December 16, 1893, finding the amount due on the Wilson mortgage to be as claimed, and declaring it a first lien on the mortgaged premises, and on the cross bill that the second mortgage was given for the benefit of the bank, subrogating the receivers to the rights of the mortgagees therein, ascertaining the amount due on the said four notes, and ordering that the premises be sold and the proceeds applied, first, to the satisfaction of the Wilson mortgage, and, second, to the payment of the amount found due on the four notes held by the receivers in the order of their maturity. The mortgaged premises were not of value sufficient to pay the mortgage debts. They were not sold under the decree, but the receivers obtained from John P. Smith a deed releasing his equity of redemption in consideration of the surrender to him of all the claims of the bank against him.

"At the September term, 1894, the appellees herein, James D. Smith, Lloyd B. Smith, Pattie S. Prewitt, Anna L. Johnson, and William M. Warren, exhibited in the circuit court of Sangamon county their bill in chancery against John P. Smith, Anna Smith, his wife,

and the receivers named, setting up the two mortgages, the decree upon the bill and cross bill in the Wilson case, the conveyance from John P. Smith to the receivers, and their possession of the mortgaged premises, alleg. ing that when the second mortgage was executed the complainants Prewitt, Johnson, and Warren, respectively, were creditors of the mortgagor on his notes upon which the mortgagees were liable as sureties, and under said mortgage were entitled to share pro rata with the bank in the proceeds of the mortgaged premises over and above the amount necessary to satisfy the Wilson decree, and praying that an account be taken of the amounts so due them, respectively, and a decree against John P. Smith for the payment thereof, and that in default of such payment the mortgaged lands be sold, and the surplus proceeds, after the payment of Wilson, be applied pro rata to the amounts due to the bank and to said other creditors. The defendant Smith was defaulted and the bill taken pro confesso against him. The receivers answered, contesting the claim of said complainants Prewitt, Johnson, and Warren. In the meantime, under a stipulation between the complainants and defendants, part of the lands were sold by the receivers, and certain notes given for the purchase money placed in the hands of Edward P. Kirby to await the final determination of the suit. The circuit court held that the complainants Prewitt, Johnson, and Warren were entitled to share in the surplus proceeds, and directed Kirby to collect and pay over said notes to them, respectively, pro rata. Veitch having resigned, John I. Chambers was, by order of the court, permitted to prosecute an appeal as receiver alone, and accordingly he brings the record here for review.

"The contending parties were and are alike creditors of John P. Smith, for whose claims, respectively, his brothers, James D. and Lloyd B. Smith, were also liable as guarantors or sureties. In view of this contingent liability, and to protect them ultimately against loss by reason of it as far as he thereby might, he executed to them the mortgage in question. The creditors are seeking to reach this security as a means of satisfying their claims; the receiver, representing the bank, insisting upon priority, and the others upon equality pro rata. It seems to be well settled that whether creditors can so avail of a mortgage or other security given by a debtor to his surety depends upon the purpose for which it is given. If that be purely personal, as only to indemnify the surety, they cannot do so until he is actually damnified, or, at least, has become absolutely liable for the debts; for they must claim through him by subrogation, and until then he himself has no remedy upon it. 2 Brandt, Sur. (2d Ed.) § 326; Insurance Co. v. Reeder, 18 Ohio, 46; Osborn v. Noble, 46 Miss. 449, and cases there cited. But if given for the better security of the debts themselves, as for their payment

by the principal debtor or to provide the surety with means to pay them in case of his default, then, although the purpose is also to indemnify the surety to the same extent, a trust attaches to the security for the benefit of the creditors indicated, to which the court will give effect. Moses v. Murgatroyd, 1 Johns. Ch. 119; Paris v. Hulett, 26 Vt. 308; Homer v. Bank, 7 Conn. 484; Osborn v. Noble, supra; Eastman v. Foster, 8 Metc. (Mass.) 19; Aldrich v. Blake, 134 Mass. 582; Plaut v. Storey, 131 Ind. 46, 30 N. E. 886; Brandt, Sur. §§ 282-285.

"The controversy here is mainly over the construction of the mortgage. For appellant the contention is that it was given as security for the notes held by the Central Bank, and only as indemnity to the sureties on the others; and appellees, admitting the provision for the bank notes as claimed, insist that the same was made for theirs. Appellant bases his construction upon the terms of the instrument, and the points of expression claimed to show a distinction made between these debts, as summarized by counsel, are the full description of the bank notes only; the express statement that it was given to secure their payment; that they are the first mentioned; the definite statement of the liability of the mortgagees as sureties thereon; and the fact that no other obligations of the mortgagors are mentioned as actually existing. The truth of these recitals is undisputed, but, so far as they may seem to distinguish the bank debt in its favor, they are made insignificant by the parol proof, which shows that the mortgage was given at the instance of the bank alone, whose claim was more than three times as large as all the others combined; that it was drawn under the direction of its cashier, in the absence of the parties thereto and by its own attorney, who had its notes, and so could describe them fully, and knew by information of the mortgager that other notes against him were then outstanding on which his brothers were liable as sureties, but did not know any further particulars, and for that reason only, as he testified, did not put them in. John P. Smith testified that besides the notes involved in this suit there was no paper out against him on which his brothers were sureties. Other parol evidence, the admission of which was objected to and is assigned for error, was to the effect that for a considerable time before the instrument in question was executed the cashier and attorney were pressing Smith to make a mortgage directly to the bank to secure its notes, which he persistently refused to do, on the sole ground that he was indebted on other paper, also signed by his said brothers as sureties, which he should secure as well, but expressed his willingness to execute such a mortgage as he now understands this to be; that when it was shown to him by the cashier he made some objection and wanted explanation, for which he was referred to the attorney, who testified that the

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explanation wanted was of the defeasance, and that Smith asked him 'whether it furnished indemnity and security for all his paper.' He must have known that his answer was understood to be affirmative, for upon it Smith consented to execute the mortgage as it was drawn and now appears.

"If, and so far as, this or any parol evidence tended to vary or conflict the plain meaning of the written instrument, it was not proper to be considered, and there is no presumption that any such was considered by the court; but so far as it tended to identify the subject-matter referred to by it in general terms, or, by showing the situation, condition, and mutual relations of the parties to it, makes clear their meaning by the language used, which from it alone might be uncertain, it would be competent. The court, in order the better to understand it, in such case will seek to place itself in their situation. Wilson v. Roots, 119 Ill. 379, 10 N. E. 204; Burgess v. Badger, 124 Ill. 288, 14 N. E. 850; Bank v. Waterman's Estate, 30 Ill. App. 535. The bank was not a party to it, but claimed it had a certain meaning to its advantage. Could it well complain of the court's knowing, and holding as the true construction, what the parties themselves alike intended and understood by it, if it was reasonable, though not clear from the language itself? Id.

"But we see nothing uncertain in the terms of the contract. Its meaning seems unmistakable, needing no aid upon any point from parol evidence and making no room for construction. With that meaning the testimony objected to is entirely in harmony. The expressions referred to and relied on as favoring the bank's view of it could not give to that creditor any priority of right over others whose claims are by it placed in the same category, so far as respects the moral obligation, legal liability, and actual intention of the mortgagor.

"The purpose of a mortgage is most certainly manifested by the condition on which it is to become void, for its whole and sole purpose is to secure the performance of that condition. Other parts should be considered in connection with it, to assist, if necessary, in the ascertainment of its meaning. But nowhere in the one before us is there a word expressive of a purpose to indemnify the sureties, as distinct from that of securing the debt or in addition to it. Though drawn by a learned and able lawyer, it contains no language technically or commonly employed to express a contract for indemnity. Certainly, the performance of the condition would have indemnified them, and, because that effect was certain and palpable, a distinct purpose of the mortgagor to produce it must be admitted as a necessary implication from the statement of their contingent liability for the debts. That implication, however, is just as true of the claims of the bank as of the appellees, and therefore

gives no precedence to either. Allowing it all the force of an expressed purpose to indemnify the sureties, it would not bar the claim of either of those creditors to share in the proceeds of the security as a cestui que trust, if the mortgage was given to secure the debt also. That it was so given is conclusively shown by the condition, which provided that the mortgaged premises should be reconveyed to the mortgagor, his heirs or assigns, 'when each and all of which [being the four notes held by the bank] shall have been duly paid by said John P. Smith [the mortgagor and principal debtor], together with any other sums for which said James D. Smith and Lloyd B. Smith [the mortgagees and sureties], or either of them, may be liable on, either as surety or guarantor of and for the said John P. Smith.' Under the class description naming the principal debtor and sureties, the notes held by appellees could be as easily and certainly identified as if the date, payee, amount, when due, and rate of interest of each had been added; for it includes, without exception, all debts of the class so described. This condition would be broken by default of the mortgagor in the due payment of any such debt, and the mortgage subject to foreclosure, though the surety had not been damnified, or had been discharged from liability by some statute of limitation, or by an extension of the time of payment by the creditor without the consent of the surety, or otherwise, and whether the mortgage was executed when or after the debt was contracted, or the creditor had or had not any knowledge of its existence. The proceeds of the foreclosure sale would be applied, in due proportion, on the unpaid debt, and such application would be made by the mortgagees, not of their own will, but by force of the mortgage. Thus, it is shown by its terms and operation that the mortgage, whatever else may have been an ultimate object, was a provision for the payment alike of all the debts referred to, by the mortgagor, or out of his means as far as they would go, and that the mortgagees were trustees for the creditors. The notes held by the appellees, respectively, were all given before the mortgage was executed, and matured later than any or some of those held by the bank. Both the attorney and the cashier knew of the existence of some such indebtedness as, for all purposes of security, was linked to the notes it held, by terms as plain as could be used,-'together with,'-and so were put upon inquiry as to its amount and other particulars, which would have led to certain and definite information. The bank, therefore, cannot justly complain of any wrong done by giving due effect, in the interest of appellees, to the instrument prepared by its own representatives, and which was, in our opinion, to protect and secure on equal terms, pro rata, all the notes involved in this suit. It is further contended that the decree on the

cross bill in the Wilson case is res judicata against appellees Prewitt, Johnson, and Warren, though they were not parties to the suit, because they claim under and through James D. and Lloyd B. Smith, who were. But they do not so claim. The relation they sustain to them is not that of privies in estate, but of cestuis que trustent. Their right is derived directly from the mortgage, and the trustees were powerless, by any act or default of their own, to release or prejudice it. For the reasons stated the decree will be affirmed."

The judgment of the appellate court is affirmed. Judgment affirmed.

WATERS v. PEOPLE.

(Supreme Court of Illinois. April 21, 1898.) CRIMINAL LAW-SUFFICIENCY OF EVIDENCE-ALIBI -CREDIBILITY OF WITNESSES-INSTRUCTIONS. 1. An instruction that, if the jury believed any witness for the defense had testified falsely as to any material fact, his entire testimony, except as corroborated, might be disregarded, is erroneous, as calling attention only to witnesses for the defense.

2. Where the testimony to prove an alibi and that of accomplices to prove the crime are in direct conflict as to the whereabouts of the accused up to the time of its commission during the night in question, an instruction that evidence of an alibi is not entitled to consideration unless it appear that accused was elsewhere during the actual time of the commission of the crime is error, as removing such evidence from consideration as affecting the credibility of the state's witnesses.

3. Accused was convicted of burglary solely on the testimony of three accomplices already convicted. One of them had stated under oath that he alone was guilty. He and another had admitted that they testified in the hope of receiving a parole or pardon as reward. At the trial all swore that accused was with them during the night the crime was committed, from half past 7 o'clock almost continuously until after its commission, between 1 and 4 in the morning, in which he participated. Three relatives of the accused and three other persons testified that from 7 until 9 o'clock he was with them, at his stepfather's house. He then left. but returned before 10, and was with five of them until after 11 o'clock. His half-brother and another stated that he was in bed in the same room with them until 1 o'clock. Held that, in view of instructions as to credibility of witnesses which were prejudicial to the accused, a conviction was unwarranted.

Error to circuit court, Fulton county; Jefferson Orr, Judge.

Albert Waters was convicted of burglary, Reversed. and he brings error.

H. W. Masters, for plaintiff in error. E. C. Akin, Atty. Gen., D. C. Hagle, C. A. Hill, and B. M. Cheperfield, for the People.

PHILLIPS, J. At the March term, A. D. 1897, of the Fulton county circuit court, the plaintiff in error was jointly indicted with Frank Maple, Frank McGrew, and Edward Farris for the burglary of the store of one N. S. Wright, at Canton, Ill., on the night of the 11th, or the morning of the 12th of January, A. D. 1897. Frank Maple, one of the defend

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