no difference that the decree dismissing the bill on its merits was not entered until after the present bill was filed. The conditions of the bond do not require that the damages should be assessed in the chancery suit, or before suit is brought on the bond. It is sufficient that the damages are assessed in the suit on the bond itself. It appears from the language of the statute that damages may be assessed even while the injunction suit is pending. Section 12 of the injunction act provides that, in all cases where an injunction is dissolved by any court of chancery in this state, the court, after dissolving such injunction, and before finally disposing of the suit, upon the party claiming damages by reason of such injunction suggesting, in writing, the nature and amount thereof, shall hear evidence, and assess such damages as the nature of the case may require, and to equity may appertain, to the party damnified by such injunction, and may award execution to collect the same. Said section 12 also contains the following proviso, to wit: "Provided, a failure so to assess damages shall not operate as a bar to an action upon the injunction bond." The fact that no damages are awarded on the dissolution of the injunction is no obstacle to a recovery on the bond. Linington v. Strong, 8 Ill. App. 384; Hibbard v. McKindley, 28 Ill. 240; Brown v. Gorton, 31 Ill. 416; Mix v. Vail, 86 Ill. 40.

Damages are recoverable on an injunction bond whenever the injunction has been vacated, either wholly or in part; and any order of court relieving any part of the subject-matter of the injunction from the operation of the injunction is, as to such part, a dissolution of the injunction. Brackenbush v. Dorsett, 138 Ill. 167, 27 N. E. 934. The question when and how damages are assessed against the complainant in a chancery suit is not important here, because this is really a suit on the bond, although the assessment of damages was made in equity; and the only question is whether there has been a breach of the conditions of the bond. Kohlsaat v. Crate, 144 Ill. 14, 32 N. E. 481. Whether the assessment of damages is proper or not when an injunction is dissolved upon demurrer to the bill, or upon motion to dissolve, will depend upon the question whether the services of the attorney, sought to be assessed as damages, have special reference to the injunction, or are in general defense of the suit. Where counsel fees are necessarily incurred in procuring the dissolution of an injunction, they may be allowed as damages. When, however, they are incurred in defeating the suit generally, they cannot be assessed as damages. Walker v. Pritchard, 135 Ill. 103, 25 N. E. 573. In the case at bar the decree of the court below finds that the appellees here retained counsel immediately upon the filing of the bill in the case of Peterson v. Brabrook Tailoring Co., mentioned in the bond and in the pleadings herein, to obtain the dissolution

of said injunction; that said counsel charged to appellees, and, prior to the filing of this bill, appellees paid for, the services of said counsel, in procuring the dissolution of said injunction, the sum of $1,000; and that said sum was the usual and customary charge for services of that character, and was a fair and reasonable charge for the services rendered by said counsel in procuring such dissolution. This finding is fully sustained by the evidence, and states what is necessary to sustain a charge for attorney's fees, as an element of damages upon an injunction bond. 3. It appears that on April 3, 1891, the appellees entered into a stipulation with the principal obligor, Peterson, to which the sureties, Keith and Stanton, were not parties, by the terms of which stipulation the sheriff was to keep the money due on the executions until the motion for a receiver was determined. This motion was made about March 27, 1891, and was disposed of June 29, 1891. It is claimed by counsel for appellants that this stipulation in some way changed the liability of the principal obligor, Peterson. and therefore discharged the sureties. This contention, also, is without force. The stipulation referred to did not change the contract evidenced by the bond, nor was the liability of the principal obligor in the bond for the damages occasioned by the injunc tion varied in any respect. His liability remained exactly as it was before the stipulation was made. It is true that on account of the stipulation the failure of the complainants to get their money on May 5, 1891, when the injunction was dissolved, was not due to the injunction; but the court did not assess against appellants, as damages, interest on the money in the sheriff's hands after May 5, 1891. The interest assessed against them as damages was for the period. only, during which the injunction was in force, and not for the period covered by the stipulation in question. In Brackenbush v. Dorsett, supra, it was held that an order, by stipulation, modifying an injunction, does not change the liability of the principal or surety, so as to discharge the latter.

After a careful examination of the whole record, and after a careful consideration of all the numerous points made by counsel for the appellants in his brief, we discover no sufficient reason for interfering with the decree of the court below. Accordingly the judgment of the appellate court, and the decree of the superior court of Cook county, are affirmed. Judgment affirmed.

RONAN v. BLUHM.1 (Supreme Court of Illinois. April 21, 1898.) EQUITY-REPORT OF MASTER -EVIDENCE-ERROR -BILL-NOTICE.

1. Where a bill is referred to a master to take and report the proofs and his conclusions

1 Rehearing denied June 10, 1898.

of law and fact, if an inspection of the evidence by the court is necessary in order to determine the exceptions to his report, his failure to return the evidence with the report is a fatal error.

2. Where a bill was referred to a master to take proofs and report conclusions, an instrument in writing was put in evidence tending to relieve the witness of all interest in the cause, and enable him to testify. Held, that the failure of the master to return the instrument with his report was fatal error.

was

3. The question to be determined on the issues raised by a petition that a final decree in chancery be opened, and that petitioner be allowed to answer, and by his answer, whether, on consideration of the evidence produced in support of the answer, and of that which was adduced before the former master on which the original decree was entered, the original decree should be set aside or altered. Held, that the master erred in excluding from consideration the bill on which the decree was rendered, the decree, and the proof reported by the former master in support of it.

4. Where a decree in chancery, taken by default, is opened, and one of defendants allowed to answer, if on the retrial the original bill and decree were proper for consideration in determining the competency of a witness on the second trial, both should be received in evidence.

5. It is not requisite to the sufficiency of a bill in chancery to set aside a conveyance on the ground that the grantor was non compos that the bill should contain an offer or allege a readiness to return the consideration for the convey

ance.

6. Where the grantee of premises conveys them to a third person, while his grantor is in possession thereof, such third person takes the conveyance with full notice of all the rights and equities in the premises of the original grantor.

Appeal from circuit court, Cook county; Elbridge Hanecy, Judge.

Bill in chancery by Annie Ronan and others against Mary F. C. Bluhm, asking that a former order of dismissal of a bill to set aside a conveyance be opened, and defendant be ordered to answer. Defendant answered,

and filed a cross bill. The issues under the bill and cross bill were referred to a master, who reported in favor of defendant, on which the court entered a decree for defendant on her cross bill, from which complainants appealed. Reversed.

One Thomas Ronan, in 1865, became the owner of the west half of lot 10, block 4, in School Section addition to the city of Chicago, and resided thereon from thence forward until his death, which occurred in 1888. On the 25th day of April, 1882, said Ronan conveyed said property to one Thomas Carbine. Carbine dia not receive possession of the property, and on the next day after receiving the deed therefor conveyed it to the appellee, his daughter. Two days thereafter Mary Ronan, a daughter of the said Thomas Ronan, filed a petition in the county court of Cook county, alleging the said Thomas Ronan was, and for a period of more than two years prior thereto had been, a confirmed drunkard, and was, and for that period had been, by reason of said drunkenness and unsoundness of mind thereby produced, in

capable of managing or caring for his estate, and praying the petitioner might be appointed conservator for her said father. Such proceedings were had in the said county court as that said Thomas Ronan was declared an habitual drunkard, and incapable of managing his estate, and the said Mary was appointed his conservator, and received letters empowering her to act in that capacity. On the 2d day of June, 1882, the said Mary, as such conservator of her said father, filed a bill in chancery in the circuit court of said county against said Thomas Carbine and the appellee, the prayer whereof was, the said deeds to Carbine, and from Carbine to the appellee, should be set aside and vacated. At the December term, 1882, a decree was entered in the cause, which recited that the court had jurisdiction over the said defendant Carbine by personal service of summons, and that appellee, Bluhm, was a nonresident of the state of Illinois, and had been duly and legally notified of the proceedings by publication, as provided by statute, and that neither came, either by plea or answer, and adjudged both to be in default and that they be deemed to have confessed the bill, and directed that the cause be referred to Henry Walker, master in chancery, to take and report the proof. Proofs were taken and reported by the master, and on the 12th day of January, 1883, a decree was entered finding that the allegations of the bill were supported by the proofs, and that complainant was entitled to the relief prayed; that the deeds from Ronan to Carbine, and from Carbine to the appellee, were null and void, and ordering appellee, Bluhm, to reconvey the premises to the said Thomas Ronan within a specified time, and that the master should convey in case of her failure. In pursuance of this decree, and the failure of the appellee, Bluhm, to convey, the master, Henry Walker, executed a deed conveying the Afterproperty to the said Thomas Ronan. wards said Carbine entered a motion to set aside the default as to him, but the motion was overruled. Within a few days thereafter appellee, Bluhm, appeared in said court, and filed her petition under the provisions of section 19, c. 22, Rev. St., entitled "Chancery," to be allowed to file her answer to the said bill, and to be heard touching the matters of the decree entered against her. The prayer of the petition was granted, and the said appellee, Bluhm, given leave to file an answer within 20 days from the 21st day of May, 1883, but it does not appear from the record whether she filed an answer. No further proceedings were had in the matter until the 22d day of June, 1886, at which time, on the motion of the appellee, an order was entered that the suit should be dismissed for want of prosecution, but the order was vacated at the same term of the court.

On the 24th day of February, 1888, said Thomas Ronan died, leaving three children,

viz. Mary (now Mary Cron); Annie, the appellant herein; and Michael Ronan, an insane son, who was at the time of the death of his father confined in the insane hospital at Kankakee. The death of said Thomas Ronan was suggested to the court, but no steps were taken to make his heirs parties to the proceeding. On the 6th day of July, 1892, on motion of the appellee, an order was entered that the suit be dismissed for want of prosecution. On the 2d day of August, 1893, the appellants, Annie Ronan, and the said Mary Cron (formerly Ronan), and Michael Ronan (the latter being insane, and appearing by Annie Ronan, his next friend), filed a bill in chancery against the appellee, Bluhm. The bill set out the death of the said Thomas Ronan, that complainants were his only heirs, and recited the legal proceedings herein before mentioned, and prayed that the order of dismissal entered as aforesaid should be opened, and the complainants allowed to take the place of the said conservator, and that the said appellee, Bluhm, should be ordered to answer the bill in accordance with the leave granted to her upon her petition, and that in default of such answer the former decree against her should be in all things confirmed. It was also alleged in the bill that the bill on which said decree against Carbine and appellee was entered alleged that appellee paid nothing to Carbine as consideration for the conveyance to her, and that such deed was made only for the purpose of covering and secreting the interest of Carbine, and preventing the conservator of Ronan from recovering such title, and, in effect, that Carbine remained the real owner of the premises, the deed to appellee being only colorable. The appellee appeared, and filed a demurrer to the bill, but the demurrer was overruled, and leave given her to answer in 30 days. She failed to comply, and on the 26th day of January, 1894, a default was entered against her, and a decree entered setting aside the order of dismissal and confirming the former decree. On the 9th day of April of the same year, on the application of the appellee, Bluhm, the decree last referred to was set aside, and she filed an answer. Replication was filed to the answer, and on the 26th of May, 1894, the cause was referred to George M. Rogers, as master, to take and report the proofs, together with his conclusions on the law and the evidence. Afterwards, on the 25th of January, 1896, leave was given said appellee, Bluhm, to file a cross bill. The allegations of the cross bill are that the complainant in the cross bill received the deed from Carbine in good faith and as the owner of the property; that the said cross complainant was a resident of the state of Illinois in the years 1882 and 1884, and that the attempt to get a decree against her as a nonresident was fraudulent, and such decree void; that Thomas Ronan, during his lifetime, had possession of said

premises, and his children, since his death, have retained the possession, and have paid no rent therefor; that the cross complainant paid all the taxes thereon; and the prayer is that the title to the property be quieted in the cross complainant, and that she be put in possession thereof. A demurrer to the cross bill was overruled, and answer thereto filed. The answer, in substance, denies the allegations of the cross bill, and alleges the said appellee was a nonresident, or was concealed, so that her residence could not be known. Replication to the answer was filed, and the issues under the cross bill were also referred to the said master, Rogers, to take and report the proofs, with his conclusions of law and fact. The report of the master as to his conclusions of law and fact was filed on the 8th day of May, 1897, together with the exceptions of the appellant and her co-complainants. The exceptions were (1) that said Thomas Carbine, who testified before the master as a witness for appellee, was incompetent to testify as to transactions with Ronan, or as to any other alleged circumstance alleged to have occurred during the lifetime of said Ronan; (2) that the master erroneously excluded the former decree in the case against said Carbine and appellee, and also the report of the former master and the evidence taken before such former master, upon which such prior decree was pronounced; (3) that the master should have reported a finding affirming the former decree and recommending the cross bill be dismissed. The report of the master was not accompanied by the testimony taken by him, and a further exception was taken and filed by the appellant on that ground; but the court, over the objection of appellant, ordered the cause to be submitted for trial upon the finding of the master, without the evidence taken by the master, and such evidence was not on file, and not produced on the hearing. It appeared from the master's report that the said Thomas Carbine was produced, and, over the objections of the appellant, was allowed to testify as a witness. The master reported the objection to the competency of Carbine, and that he found from the evidence of Carbine, if it was competent to be considered, that the compensation paid to Thomas Ronan for the lot "was not so unconscionable as to be inequitable"; 'that the appellee, Bluhm, was a resident of the state of Illinois at the time in question; that the Ronans had retained possession of the property, and that no attempt had been made to interfere with their possession. The report further recited that, after the testimony of said Carbine had been concluded, the solicitor for the appellee offered in evidence an instrument in writing (to quote from the report) "dated August 1, 1893, in which said Mary F. C. Bluhm and her husband released said Carbine from any liability which might arise by reason of said deed; and said Carbine, being recalled,

swore that all of his previous testimony was true." The master reported as his conclusion of law that Carbine was a competent witness, and that, it being established by the testimony of Carbine that appellee, Bluhm, was not a nonresident of the state at the time the original bill was filed against her, the decree entered in the case on service by publication was void, and neither the decree, nor any of its recitals, nor any evidence preserved in the record of that case, was proper to be considered by him as entitled to any weight as against the appellee, Bluhm, and that he refused to receive the same in evidence for any purpose. It also appeared from the recitals of the report that double payment of taxes was made by the Ronans and by Carbine, and that Carbine testified that the payments made by him were with the money belonging to the appellee, Bluhm, and that Carbine further testified that he "sent down and demanded the rent about once a year," but never got any. Upon consideration of the recitals and findings of the master's report the court entered a decree finding the appellee was a resident of the state at the time in question, and that the decree rendered against her in the proceeding on service by publication was null and void; that no money had ever been tendered or offered by or on behalf of Thomas Ronan or any of the complainants in return for the money received from the said Carbine; and that the said Ronan and the complainants have occupied the premises since the date of the deed to Carbine; and decreeing the appellee, Bluhm, was the owner of the premises in controversy and entitled to the relief asked in the cross bill; that appellee should be let into the possession of the premises in 30 days; and that the appellant and her co-complainants should pay the costs.

This is an appeal from such decree.

H. C. Noyes, for appellant. Story, Russell & Story, for appellee.

The

BOGGS, J. (after stating the facts). cause having referred to the master to take and report the proofs and his conclusions on points of law and fact, the proofs taken by the master should have been submitted with his report. But whether the omission is a fatal error depends upon whether an inspection of the evidence by the court was necessary in order to determine as to the exceptions to the report. Whether the instrument in writing which the master deemed sufficient to relieve the witness Carbine of all liability because of the covenants in his deed to the appellee was effectual for that purpose made it necessary the instrument should be consulted by the court in order to determine whether it operated to remove the interest of the witness. The finding of the master (which was not excepted to) that the order dismissing the original proceeding for want of prosecution had no operation to set

aside or affect the final decree which had been previously entered in the case was correct. But we think the master erred in excluding from consideration the bill upon which the decree was rendered, the decree, and the proof reported by the former master in support of it. The question to be determined upon the issues which were raised by the petition of the appellee that the said final decree be opened, and she be allowed to answer and be heard, and by her answer, was whether, upon consideration of the evidence produced by the appellee in support of her answer and of that which was adduced before the former master on which the original decree was entered, the decree should be set aside, altered, or changed. Whittaker v. Whittaker, 151 Ill. 266, 37 N. E. 1017. Moreover, we think the bill and the decree were proper for consideration in determining the competency of the witness Carbine, and also in determining as to the weight or value of his evidence if he was found competent to testify.

It was alleged by the appellant and her co-complainants in the bill exhibited by them that the bill filed by the conservator, and on which the prior decree was entered, alleged the conveyance of the premises in question from the witness Carbine to his daughter, the appellee, was without consideration, and was executed for the purpose of placing the apparent title in the appellee, and covering and concealing the interest of the said Carbine in the said property. This was, in effect, an averment that the said Carbine was the real owner of whatever interest in the premises it should be determined was conveyed by the deed made by the said Thomas Ronan. The witness Carbine was made defendant to the said bill filed by the said conservator, and was personally served with summons to make answer thereto. He failed to appear and answer, but made default, and thereby confessed the truth of the material allegations made therein against him. It was, therefore, competent to produce the bill and the decree, for the purpose of showing said Carbine was interested in the result of the proceeding aside from the interest which the appellee conceded, and to remove which she introduced the said instrument in writing before referred to. If the bill and the decree sustained the claim that the title held by the appellee was merely colorable, and held by her for the benefit of Carbine, then Carbine should have been held, for that reason, incompetent to testify; and, if he was found competent to testify, the allegations of the bill and the decree showing the same had been taken as confessed by him were competent to be considered as tending to impeach his testimony. It appears from the report of the master that his findings on questions of fact are based almost entirely upon the testimony of Carbine. Indeed, as we understand the report, no other witness than Carbine was examined before the mas

ter. This competency, and the weight and value of his testimony if competent, were therefore questions of vital importance to the appellant.

It is urged the original bill filed by the conservator of the said Thomas Ronan and the bill filed by appellant and her co-complainants are both fatally defective, in that in neither is an offer made to return the amount paid by Thomas Carbine to Thomas Ronan as the consideration for the execution of the conveyance of the lot in question. The argument is, it is indispensable to the right of recovery under either bill that it should appear the complainants had previously tendered a return of the purchase money, or should have averred in the bill a readiness, ability, and willingness to repay same. Α number of the decisions of this court are cited as in support of the argument. We have examined the cases so cited. They were bills in chancery to set aside sales of lands for taxes, and have little, if any, application to the principle involved in the case at bar; and even in that class of cases it is not the rule that the bill must aver a prior tender of the amount paid by the purchaser for taxes, etc., or that a bill is fatally defective if it does not contain an averment that the complainant is ready and willing to pay the same. The omission of an averment that complainant was willing and ready to pay, even in a bill to redeem from a tax sale, mortgage, etc., would but leave the bill obnoxious to demurrer, and, if an answer should be filed to such a bill, relief would not be denied upon the hearing because of the defect in the bill, but would be granted upon equitable terms to be declared by the decree. The doctrine that a contract may not be rescinded by the court except the party in whose interest the rescission is awarded shall restore that which was received by virtue of the contract, is applicable, in general, only to contracts made by persons compos mentis, and under no disability. Whether it is applicable, or, if applicable, to what extent it should be modified to meet particular cases where persons non compos have received money or property as the consideration for an agreement, has been much discussed by text writers, and is the subject of many not altogether harmonious judicial decisions. The rule which seems to commend itself to our sense of justice, and which is supported by what we conceive to be the weight of authority, is that a completed contract of sale of lands by a grantor who is insane, but has not been judicially declared insane, for a fair consideration in money or property, to a grantee who entered into the contract without fraudulent intent, and without knowledge or notice of the disability of the grantor, will not be set aside in favor of the grantor or his representatives unless the purchase price be returned, or the property parted with by the grantee be restored. Scanlan v. Cobb, 85 Ill. 296; Busw. Insan. §§

413, 414. If the grantee, with notice of the incapacity of the insane grantor to manage his estate, invests such grantor with the possession of money or property in exchange for lands, and said money or property, by reason of the mental incapacity of the grantor, is wasted and lost, or if the grantee, with such knowledge, obtains a conveyance of lands from such a grantor for a consideration so inadequate as to be inequitable, and to evince that it was his intention to take advantage of the infirmity of the grantor and defraud him, such a grantee would have no standing to invoke the equitable rule that "he who asks equity must do equity," and demand that under the operation of that maxim a court of equity should refuse to set aside the conveyance except upon the imposition of such terms as would amply protect him from any loss. Such a rule would be but to guaranty that, though the attempt to fraudulently procure the property of an insane man might fail, yet the perpetrator of the attempt would be protected by law from any loss in the transaction. It is proper we should remark, in answer to the discussion upon the point, that as it is conceded by all parties that the said Thomas Ronan did not deliver possession of the premises in question to the grantee, Carbine, but remained in the open and exclusive occupancy thereof, the appellee, Bluhm, is deemed, as matter of law, to have taken the conveyance from Carbine with full notice of all the rights and equities of said Ronan in the premises. Railroad Co. v. McCullough, 59 Ill. 166; White v. White, 89 Ill. 460; Ford v. Marcall, 107 Ill. 136. The decree will be reversed, and the cause remanded, with directions to the court to set aside the report and findings of the master in chancery and the order of reference to the master, and permit the parties to produce their testimony anew, and to proceed otherwise in conformity with this opinion. Reversed and remanded.

MOORE v. JENKS.1

(Supreme Court of Illinois. April 21, 1898.) EXECUTION-SETTING ASIDE SALE-APPEALPARTIES.

1. Where a grantee pendente lite is not allowed to be made party, the grantor may appeal, though he conveyed all his interest.

2. Execution sale to the judgment creditor will not be set aside on the ground of fraud merely because a sum collected from collateral after rendition of judgment, but before the sale, was not credited on the execution; the judg ment creditor not knowing of the collection, which was made by one who was attorney for him and the judgment debtor, and who claimed the money for services rendered the judgment debtor.

Appeal from appellate court, First district. Cross bill by Anson B. Jenks, one of the defendants in a mortgage foreclosure suit,

1 Rehearing denied June 10, 1898.