of L. & C. H. Bull in the sum of six thou- | ty for the indebtedness in said trust-deed desand dollars, made his certain contract in scribed, with all the rights and immunities writing' with them for the payment of the incident to such position. Said defenses are, same in three years after date, with interest in short, as follows: First. That the contract thereon, payable semi-annually, at the rate of indebtedness set up in the bill, and claimed of nine per cent. per annum, till due, and to be secured by said trust-deed, is not the ten per cent. thereafter, which said contract contract of indebtedness described in said in writing, or so much of it as remained un-trust-deed, but another and essentially differpaid at the time the bill was filed, consisted ent contract of indebtedness, and therefore is of a promissory note, with divers recitals and not, and never was, secured by said trustconditions therein, and two original interest deed. Second. If said two contracts of incoupons, Nos. 5 and 6, thereto attached. debtedness should be construed to be one and (True copies of said note and coupons, the same contract of indebtedness, and to be marked, respectively, Exhibits A, B, and secured by said trust-deed as against the plainC,' are attached to, filed with, and made tiffs in error, as sureties aforesaid, in respect parts of the bill.) That on the same day, of the said property, then the contract of the March 29, 1873, said Charles A. Savage, El- extension of the credit alleged in the bill, withvey W. Savage, and Anna Wells, to secure out the knowledge or consent of the plaintiffs the said contract of indebtedness, executed in error, or either of them, as alleged in the the said trust-deed. (A true copy of said answer, released and discharged said property trust-deed, marked Exhibit D,' is attached from the lien of said trust-deed. Third. If, in to, filed with, and made a part of the bill.) the opinion of the court, said premises were That afterwards said firm of L. & C. H. Bull not released from the lien of said trust-deed by assigned said contract of indebtedness, or said extension contract, then William T. Savrather the parts thereof that remained un-age, at the time said contract of indebtedness paid, without recourse, by their indorsements matured, being fully informed of the utter on the said note and two coupons, respect- insolvency of Charles A. Savage, the princiively. That afterwards, when said principal pal debtor, and having at the same time withsum became due, (exclusive of grace,) March 29, 1876, William T. Savage extended the credit on the same to April 1st, 1878, and attached to said original contract four additional interest coupons, numbered 7, 8, 9, and 10, executed by the said Charles A. Savage to cover the interest to accrue during said extension. (True copies of said extension coupons, marked, respectively, Exhibits E, F, G, and H,' are attached to, filed with, and made a part of the bill.) Each of said interest coupons, original and extension, has a forfeit or penalty clause added, that if not paid at maturity it shall bear interest from maturity at the rate of ten per cent. per annum. That afterwards, in June, 1879, all of said instruments (said note, two original coupons and four extension coupons) were merged in a judgment of the circuit court of said Adams county, against said Charles A. Savage, for $8,652.78, in a suit at law of said William T. Savage against said Charles A. Savage. That said William T. Savage, as holder of said contract of indebtedness, under the provision of said trust-deed, paid taxes, $344.18, and insurance, $363.50, on the premises in controversy. That said note and interest, and said judgment, and said disbursements for taxes and insurance, and arrears of interest thereon, are due and unpaid, etc. That Elvey W. Savage died July 19, 1873, the owner of record of the premises in said trust-deed, whereby the trustees in said trust-deed became ousted of their power to sell," etc.

6

The defenses set up in the answer of the plaintiffs in error to the bill are mainly based upon the alleged facts that the property in controversy was and is the property of the plaintiffs in error; and that, by virtue of the trust-deed, it occupied the position of a sure

in his power and control a sufficient amount of the funds and assets of said Charles A. Savage to fully discharge said contract of indebtedness, and having a perfect right to so apply said funds, and failing and neglecting so to do, these circumstances in connection with other affirmative acts of the said William T. Savage, done at the time and shortly thereafter, indicative of bad faith towards said sureties, operated to release, and did release, said premises from the lien of said trust-deed. Fourth. If, in the opinion of the court, neither of the above defenses prove available, then a series of transactions between said William T. Savage and said Charles A. Savage themselves alone, or in conjunction with others, extending from April 21, 1875, to May 26, 1876, inclusive, and including said assignment, said extension, and said neglect to discharge said contract of indebtedness with said Charles' own funds, all fully set up in said answer, and all done and suffered in bad faith toward said sureties, and all done with the fraudulent design and purpose of removing then and forever all the property and assets said Charles had in the world from the reach of said sureties for the payment of the debt for which their property was bound as aforesaid, to the great damage and injury of said sureties, had the effect in law to, and did in fact, discharge said premises from the lien of said trust-deed.

A cross-bill was filed, which is but an amplification of the answer. It charges that none of the defendants in error have, in fact, any interest in or claim upon said premises in controversy; but, if either of them has any such claim, interest, or lien, such claim, interest. or lien is subject and subordinate to the title and rights of the plaintiffs in error therein. Asks that said trust-deed be de

clared and decreed canceled, and for naught | until the last payment of interest, which is held; that the trustees therein be required to to be made for the remaining period on the cancel the same of record; that the title of the day of the maturity of the said note, accordplaintiffs in error to the premises described in ing to interest coupons thereto annexed. And said trust-deed be decreed by the courts to be in and by said note it is further provided that superior and paramount to all and every of the holder thereof may extend the time for the claims of each and every of the defend- the payment of the whole, or any part thereants in error upon the same premises. The of, on the maker executing coupons for intercross-bill was taken as confessed against de-est to accrue thereon during such extension, fendants in error Minerva, Merrick, Edward Wells, Edward H. Buckley, Arathusa Woodruff, and the board of education of the city of Quincy, Ill., and decree entered. Answer was filed by the other defendants thereto, putting in issue its allegations.

The cause was heard on bill, exhibits, answer, cross-bill, answer, and proofs, and the court decreed that the cross-bill be dismissed, and that complainant have foreclosure as prayed in and by original bill; and that decree was affirmed on appeal to the appellate court of the third district. The record comes to this court by error on the judgment of the appellate court affirming the decree of the circuit court. Other facts material to an under-contract,-and so the coupons are themselves standing of the case are stated in the opinion of the court.

coupons the words "with the current rate of exchange on New York." There are two plainly sufficient answers to this: First. These words are by no language of the deed of trust, or of the note which it secures, required to be inserted in the coupons. It is required that "both principal and interest" shall be paid "at the banking house of L. & C. H. Bull, in Quincy, Illinois, with the current rate of exchange on New York;" but this is the language of the note only, and it is nowhere required that such language, or any part of it, shall be embodied in the coupons. Second. The omission of this language in no wise tends to change and enlarge the burden of the mortgagors, and they cannot, therefore, complain of it.

power. The trustees, it is conceded, took but a naked power. But this clause was intended to affect the substantial right of the debtor and the creditor. As is contended by counsel for appellants, the extension of the time of payment of the debt without the consent of the surety would operate to release the surety; and so, on like principle, here such extension would release the mortgage. That could not concern the trustees, but it would materially injure the creditor. prevent that, (that is, to construe for the benefit of the creditor the lien of the mortgage,) this power was inserted,--a power, not to the trustees, but to the debtor and creditor, to continue the mortgage as they extended the time for the payment of the money; and so it is a power coupled with an interest, and not revoked by the death of the mortgagor. Walker v. Denison, 86 Ill. 142.

gal holder of the said promissory note, the | Gibert v. Railroad Co., 33 Grat. 599. It is principal sum therein mentioned, with the suggested that there is omitted from those interest to accrue thereon, * * * * or as the said principal or interest may become payable by virtue of any extension of time for the payment of said note which may be made as therein provided, and of the interest coupons to be in that case thereto annexed, * * * then, and in that case, this deed shall become and be void, and the property hereby conveyed shall be released, at the proper cost and charge of the said party of the first part, and their legal representatives But if the said Charles A. Savage, his heirs, executors, or administrators, shall fail to pay, or cause to be paid, to the said party of the third part, or to the legal holder of said note, any of the principal sum payable thereby, or any installment of interest thereon, at the respective times when the said principal sum, 3. It is further objected that the powor any installment of interest thereon, shall er to extend the time of payment was a naked become due and payable by the tenor and ef-power, and that it was revoked by the death fect of said note and said original interest of Elvey W. Savage. In our opinion, this is coupons, respectively, or as the said princi- a misapprehension of the character of the pal, or any part thereof, or interest thereon, may become payable by virtue of any extension of time for the payment of said note, or any part thereof, which may be made as therein provided, and of the interest coupons to be in that case thereto annexed, *** then, and in such case, this deed shall remain in full force and virtue, and the said promissory note, with the interest accrued thereon, and all moneys which may have been advanced and paid by the said party of the third part, or the legal holder or holders of said note, for the purposes herein before expressed, with the aforesaid interest thereon, shall thereupon, each and every of them, in respect to and for the purposes of the trust hereby created, become and be presently due and payable; and the said parties of the second part, or the survivor of them, or the executors or administrators of such survivor, may thereupon at once proceed to sell the property 4. It is contended that when the note hereby conveyed." Second. Counsel for appel- secured by this mortgage matured appellee lants insist that the only discretion given to had it within his power to have applied asthe holder of the note is to fix the rate of inter- sets of Charles A. Savage, in his hands, in est reserved within the limits prescribed, and full discharge of the debt, but failed to do so, providing that the coupons shall bear inter- and diverted such assets to other purposes. est after that date at the rate of 10 per cent. This is claimed to be proved by a transaction per annum is beyond the power conferred by between appellee and Charles A. Savage on the mortgage, and hence that it cannot be the 26th of November, 1875, whereby appellee held to secure such a contract. But the exe- purchased of Charles A. Savage 10 quarter cuting of a coupon is the executing of an in- sections of land in Nebraska, and to secure strument which, ex vi termini, bears interest the payment of the purchase money gave him after maturity,-if no rate is expressed, 6 his promissory note for $10,000, payable on per cent.; and at the date of executing these demand, on which a credit of $2,000 was incoupons any rate not exceeding 10 per cent. dorsed. The following are stipulated to be might be fixed by agreement of the parties. the facts in regard to this transaction: "AftHarper v. Ely, 70 Ill. 581; Humphreys v. er the deed of C. A. Savage to W. T. Savage Morton, 100 Ill. 602. And so, under a famil- of these Nebraska lands was recorded in iar rule applicable to such cases, authority to Gage county, Nebraska, where they are loexecute coupons necessarily implies author-cated, Jonas B. Aiken, a creditor of said ity to fix the rate of interest they shall bear Charles, commenced suit against him in the after maturity at any sum not prohibited by law; and it is held that a coupon is a part of the debt covered by the mortgage which secures its bond. Daniel, Neg. Inst. § 1491a;

To

district court of said Gage county, Nebraska, by attachment, and levied on these lands for the payment of his debt. That while said suit was pending said W. T. Savage deeded

with one of certain officers of the corporation. Held, that corporate stock might be attached by leaving an attested copy of the writ of attachment with the proper officer of the corporation.

Appeal from appellate court, first district. Tenney, Driggs & Hawley, for appellant. Gregory, Booth & Harlan, for appellee.

these lands to Olivia T. Savage, wife of said Charles. That said Aiken prosecuted his said suit to judgment and execution, under which said lands were sold by the sheriff of said Gage county to said Aiken, and a deed of the same was executed to him by said sheriff. That thereafter said Olivia T. Savage brought suit in said district court against said Jonas B. Aiken and others, to set aside said sheriff's deed and remove the cloud thereby created from her said title derived from said Wm. T. Savage. That said Aiken set up the defense in said suit that said deeds of C. A. Savage to W. T. Savage, and V T. Savage to Olivia T. Savage, were made with due notice, and without consideration, and were covinous, fraudulent, and void, and sustained said defense; the suit being decided adversely to said Olivia. That said Olivia appealed the case to the supreme court of Nebraska, when a final decision was made adversely to said Olivia, as reported in 11 Neb. 323, 9 N. W. Rep. 83." No reason is apparent why, under these facts, William T. Savage should be charged with these lands in the present suit. It does not appear but that the claim of Aiken exceeded their entire value; and it is upon appellants to show a failure in duty by appellee to apply property to the payment of this note. They have not done so; and it is therefore unnecessary to consider the questions so elaborately dis-quashing the levy, and giving judgment cussed in the argument before us in regard to the payment claimed to have been made for these lands.

5. Argument is pressed upon us to the effect that appellee should be charged with the value of a certain house and lot on Broadway, in Quincy. This is not set up in the answer, and therefore, if sustained by evidence, could not now be considered. But we may remark that in our opinion it is not sustained by the evidence.

There is much evidence in this record to which we deem it unnecessary to make any reference. The entire evidence has been carefully considered, and after such consideration we are unable to say that there is any error in the record for which the judgment of the appellate court should be reversed. It is therefore affirmed.

MAGRUDER, J. This is an attachment suit brought in the superior court of Cook county on October 18, 1888, by the appellant against Nathan Corwith and Nathan Corwith, Jr. The sheriff levied the writ upon a large amount of property, and, among other things, upon 91 shares of stock in the Chicago Dock Company, a corporation organized under the laws of Illinois. The return of the sheriff shows that he delivered an attested copy of the attachment writ to the secretary of the company, an officer in charge of its books and papers. The appellee filed an interpleader, claiming to own the stock, alleging that said stock was not subject to attachment, and asking that the levy be set aside and vacated. Appellant filed its answer to the interpleader, traversing the allegations thereof. Afterwards appellee moved to set aside the levy of the writ, so far as it affected the shares of stock, on the ground that stock in a corporation is not liable to be attached under our statute. This motion was sustained, and an order was entered

against appellant for costs. This order has been affirmed by the appellate court, and from such judgment of affirmance an appeal is taken to this court.

The only question which the record presents for our consideration is this: Are shares of stock in an incorporated company subject to attachment under the laws of this state? Section 52, c. 77, Rev. St., being "An act in regard to judgments and decrees, etc., (Starr & C. Ann. St. 1410,) provides that "the share or interest of a stockholder in any corporation may be taken on execution, and sold as hereinafter provided." Section 53 of the same act is as follows: "If the property has not been attached in the same suit, the officer shall leave an attested copy of the execution with the clerk, treasurer, or cashier of the company, if there is any such officer; otherwise, with any officer or person having

SHOPE, C. J., took no part in the decision the custody of the books and papers of the of this case.

(131 Ill. 92)

UNION NAT. BANK v. BYRAM.1 (Supreme Court of Illinois. Nov. 2, 1889.)

CORPORATIONS-STOCK-ATTACHMENT.

Rev. St. Ill. c. 11, § 8, provides that writs of attachment shall be executed upon the debtor's "lands, tenements, goods, chattels, rights, credits, moneys, and effects." Chapter 77, $$ 52-54, provide that shares of corporate stock may be taken on execution and sold like goods and chattels, when they have been previously attached, and that when they have not been so attached the officer shall leave an attested copy of the execution

1Reported by Louis Boisot, Jr., of the Chicago

bar.

corporation. And the property shall be considered as seized on execution when the copy is so left, and shall be sold in like manner as goods and chattels." Section 54 is as follows: "If the share is already attached in the same suit, the officer shall proceed, in seizing and selling it on the execution, in the same manner as in selling goods and chattels." Section 57 is as follows: "If the shares or interest of the judgment debtor had been attached in the suit in which the execution issued, the purchaser shall be entitled to all the dividends which have accrued after the attachment."

The language of sections 53, 54, and 57 plainly indicates that the legislature intended

to subject to attachment the same shares of stock which were liable to be taken on execution. The method of proceeding under the execution is made to depend upon the question whether an attachment has or has not been issued and levied in the suit. The attested copy of the execution is only to be left with the officer named in section 53 in case the stock has not been attached. By the terms of section 54, such copy is not to be left after the issue of execution, if the stock has already been attached. In the latter case the sheriff "shall proceed in seizing and selling" the stock. The word "seizing," as used in section 54, refers to the exhibition of the execution by the sheriff to the officer of the company who keeps a record of the shares of the stockholders, so as to obtain a certificate of the shares of the judgment debtor, as provided in section 55. In People v. Manufacturing Co., 99 Ill. 355, it was said: "It is provided in section 53 that when the officer holding the execution has delivered to a proper officer of the corporation an attested copy of the execution,' the property shall be considered as seized on execution;' and this, although it has not as yet been actually seized, as it must be before sale, by means of the provisions contained in section 55; and thus a constructive levy may be accomplished before the actual seizure,-before the sheriff comes into possession of the certificate mentioned in that section." Why does section 54 dispense with the constructive seizure mentioned in section 53, and provide only for the actual seizure specified in section 55? Because the share is "already attached" in the same suit.

shall be deemed personal property." Morawetz on Private Corporations says: "In most of the states it is provided by general law that shares in a corporation shall be treated as personal property. * * * They have been held to be personal property' subject to tax laws, and to pass as personal property' under a will." Sections 224, 225. While shares, independently of the certificates of shares, cannot be considered as either goods, wares, or merchandise, within the meaning of the statute of frauds, yet certificates of shares may be considered goods and merchandise, within the meaning of that statute. Id. § 226. The words "rights" and "effects" can certainly be held to embrace within the scope of their signification the shares of a stockholder in an incorporated company. The rights of a shareholder are rights of contract, or, in technical language, choses in action. Such a right is "an equitable right to have the entire property managed in accordance with the charter, and, after the dissolution of the company, to have the assets reduced to cash and distributed." Mor. Priv. Corp. §§ 200, 224, 225. In l'eople v. Manufacturing Co., supra, we said: "The property of a stockholder consists of his right to a share in the net assets of the corporation, proportionate to the number of shares to which he has title." Bouvier defines a "right" as "a well-founded claim." Whatever may be the correct definition of the word "rights," as used in section 8, it refers to some kind of property interest, which is incorporated in its character, and not to that species of property which is capable of being actually and corporeally seized by the sheriff. It is claimed that the attachment act, and "Effects" are defined to be property or the act in regard to judgments and execu-worldly substance," and as denoting "proptions, contain no provision that stock shall be subject to attachment, and that, if they do contain such provision, they provide no mode of levying an attachment upon stock. We think that an examination of the two acts will show this claim to be unfounded. The attachment act, (chapter 11, Starr & C. St. 308,) and the act in regard to judgments, etc., went into effect on the same day, July 1, 1872; the former having been approved December 23, 1871, and the latter on March 22, 1872. It is proper, therefore, to construe to be so. When section 8 of the attachment them together in order to determine their act making use of terms which are broad meaning. Section 8 of the attachment act enough to embrace shares of stock is careprovides that the "officer shall, without de- fully studied in connection with said seclay, execute such writ of attachment upon tions 53, 54, and 55, it is evident that the the lands, tenements, goods, chattels, rights, latter sections refer back to said section 8, credits, moneys, and effects of the debtor, or and point to it as the provision for attaching upon any lands," etc. This provision, as corporate stock, which is assumed to exist. well as the other provision hereafter referred Nearly 20 years before July 1, 1872, this court to, should receive a liberal construction. had said in Newhall v. Buckingham, 14 Ill. Bank v. Hanchett, 16 N. E. Rep. 907; Rail- 405: "Under our statute, whatever is the road Co. v. Crane, 102 Ill. 249. Its words subject-matter of seizure and sale on execuare comprehensive enough to include the in- tion may be taken in the proceeding by atterest of a stockholder in a corporation. It tachment, and held subject to sale on the will not be questioned that an attachment judgment that may be recovered." There is may be levied upon personal property. Sec- no such difference between the statute now tion 7 of the general incorporation act of this in force and the statute of 1845, which was state provides that "the shares of stock***in force when the Newhall Case was decided,

erty in a more extensive sense than goods." 1 Bouv. Law Dict. 579; 1 Schouler, Pers. Prop. § 16. A share of stock cannot be regarded otherwise than as "property," nor can it be said that it is not "worldly substance." By the use of the word "attached" in sections 53, 54, and 55, as above quoted, the legislature assumed that provision had already been made for attaching shares of stock. It will not be presumed that this assumption was a mistaken one, unless it clearly appears