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nouncing a contrary doctrine are in point. They go no further than to hold that, as between the trustee and cestui que trust, the former cannot defend against the claim of the latter to the trust fund because he has wrongfully mingled it with his persona. moneys, but that the owner of the trust fund may in such case enforce a lien for the same against the entire mass, placing the burden upon the trustee to distinguish between the different funds. When, however, the trustee is insolvent and his estate has been transferred to an assignee. all of his creditors become interested parties; and, on the authority of the foregoing decisions, where the identity of the trust fund is lost, all creditors. including the owner of the trust fund, must share alike. There is a conflict in the authorities as to whether the assignee in such a proceeding is the representative of the creditors, or the mere agent of the assignor; but we think there can be no question but that the creditors of the insolvent, upon filing their claims, become interested in the assigned assets, and this is manifest from the provisions of our statute securing to them the right to object to the claims of each other. It is also insisted that under the repeated decisions of this court the assignee gets only such title to the property of the insolvent as he had prior to the assignment, and therefore a trust fund does not pass to him. But the very question here is whether or not the trust fund here claimed can be distinguished so that it can be specifically appropriated to the object of the trust, or whether it has been so blended in the mass of the insolvent's property that it cannot be ascertained. It was said in Kip v. Bank. 10 Johns. 61 (a bankruptcy proceeding): "It is a rule well settled by the authorities cited by the counsel for the plaintiffs that no estate vests in the assignees of a bankrupt but that of which the bankrupt had the legal and equitable title. Property that he held in trust never passes by the commission, and if that property consists of goods remaining in specie, or of notes and other choses in action, the cestui que trust is entitled to the property, and not the creditors at large. The only check to the operation of the rule is when the property is converted into cash by the bankrupt, and has been absorbed in the general mass of the estate, so that it cannot be followed or distinguished. It is the difficulty of tracing the trust money which has no earmark that prevents the application of the rule."

Counsel for appellant lay much stress upon what they conceive to be the injustice of permitting a trustee to enlarge his own estate by an appropriation of funds belonging to his cestuis que trustent, and depriving the latter of the right to pursue the trust fund into a general mass with which it has been confounded, to the extent of enforcing a lien upon the whole mass for the satisfaction of his claim. It must not, however, be forgotten that in cases like this the rights of third par55 N.E.-34

ties are involved, and it is upon the ground that they, and not the trustee himself, are entitled to protection, that the law as above stated has been announced by this court. As to the decisions of other courts, the most favorable view to appellant's contention is that they are in conflict. It is enough to say here that in view of our own decisions heretofore rendered, clearly announcing the doctrine adopted by the county and appellate courts. we are not now inclined to adopt a different rule. The judgment of the appellate court will be affirmed. Judgment affirmed.

(182 Ill. 645)

RAGAIN v. STOUT.1 (Supreme Court of Illinois. Oct. 16, 1899.) TRESPASS-PLEADING-LICENSE-EVIDENCE

Where plaintiff had brought trespass against defendant, who had entered on a strip of land extending along the boundary line le tween their lands, claiming such strip as tis own, a plea of license admits plaintiff's posses sion and defendant's entry, and leaves only the issue of consent.

Error to circuit court, Johnson county.

Trespass by Granville E. Stout against George W. Ragain. Judgment for plaintiff. and defendant appeals. Affirmed.

Prior to June 18, 1883, appellee owned 10 acres of land in Jolinson county, being the E. 1⁄2 of the N. E. 4 of section 23, and the W. 11⁄2 of the N. W. 4 of section 24, in townsh.p 12 S., range 3 E. On the above-mentioned date appellee conveyed to John S. Whiteside the W. 2 of the N. W. 4 of section 24, above named. In December, 1885, Whiteside conveyed the 80 acres to the appellant. Prior to the first conveyance above mentioned, a survey of the line between sections 23 and 24 was made, and a rail fence placed on the line of the survey. Subsequently to the first made, which conformed to the first survey. conveyance mentioned another survey was The survey as thus made was recognized and treated as the line between the two tracts, and about 1890 a new division fence was made between the two tracts, each owner making one-half thereof. In May, 1895, a highway was being laid out along the south line of appellee's tract, and a surveyor was employed to make a survey of this highway, and in determining the line of the highway he made a survey of the line between the two tracts above described, and by the survey made the line some 10 or 12 feet west of the former surveys, making it to that extent on appellee's land. After the conveyance first above mentioned, and up to this period when the survey was made of the highway. the rail fence had been treated as being on the line by appellee and his grantee, Whiteside, as also by appellee and appellant; and when they constructed the fences, in 1890, on the same line on which the rail fence had been, each continued to occupy and was in 1 Rehearing denied December 8, 1899.

possession of the land on their respective sides to the fence. Subsequently to the survey, as made at the time the highway was laid out, appellee had two surveys made by the county surveyor, who in each case located the line substantially the same as the two surveys that had been made before the highway was surveyed, and which had been acted on in building the fences. Appellant had the same surveyor who surveyed the highway again survey the line, and he again located it some 10 or 12 feet on appellee, the same as by his former survey. Appellant cleared up the strip of land to the extent of 10 or 12 feet in width on appellee's land, and while engaged in the work was by appellee ordered to desist therefrom, and to cease clearing up the same; but, ignoring appellee's objection, he continued the work, when again appellee went to him, and forbade his clearing up or working up the timber cut down by him. The appellant declared his purpose of constructing a fence on the line of the survey that was made on appellee's land some 10 or 12 feet, when appellee brought this action before a justice of the peace, and recovered judgment, which was appealed to the circuit court of Johnson county, where a trial was had. No written pleadings were had, but the action is clearly trespass by the plaintiff, and the defense was license and liberum tenementum. On trial, a verdict and judgment were entered for appellee for nominal damages, and appel lant prosecutes an appeal to this court.

Thos. H. Sheridan, for plaintiff in error. Whitnel & Gillespie, for defendant in error.

It

PHILLIPS, J. (after stating the facts). cannot be doubted that the appellee was in the quiet and peaceable possession of the land on the west side of the fence as it had stood prior to the institution of the suit, and that that possession was invaded by appellant. This, of itself, standing alone, would make a prima facie case against the appellant. As a matter of defense, the appellant insists that he entered by the license and permission of appellee. Such a defense admits possession in plaintiff, and that defendant did the act complained of, and simply puts in issue whether the act was done with plaintiff's consent. Such a license as claimed by appellant carries no interest in the realty, and is revocable, at the will of the person who grants the license. Woodward v. Seely, 11 Ill. 157; Kimball v. Custer, 73 Ill. 389; Simpson v. Wright, 21 Ill. App. 67; Stoddard v. Filgur, Id. 560. Without entering into a discussion of the question as to whether the appellant originally entered by the license of appellee, the uncontradicted evidence shows that, even if a license was ever granted, it was revoked by the appellee, and appellant forbidden to further prosecute the work or to further trespass on him, but that, regardless of the act of the appellee, the appellant continued to clear up the land, and refused to

desist from so doing, and declared a purpose of clearing up the land and to remove his fence to what he claimed was the line. Even if appellant lawfully entered on the land at the commencement of the work, his continuing to work after the license was revoked would constitute him a trespasser, so that, under the claim of license, no defense could exist in favor of appellant.

There is no question but that the title was in the respective parties to the tracts of land, respectively, claimed by them, and such title is shown by the record. The controversy in reality is over the question as to what constitutes the true line of the survey. Four surveys were made by three different surveyors, who placed the line at the point where the fences were constructed. One of these surveys was made prior to 1883, another was made when appellant's grantor was the owner of one tract, and two others were made after 1895. Two surveys were made by the same surveyor, who placed the line at the point where it is contended by appellant that it should be established. There is conflict in the testimony on this question of fact, but from an examination of the record it is clear that the weight of evidence is with the finding of the jury, and clearly authorizes the verdict and judgment as entered. There is nothing in the record that would authorize us to disturb the verdict on this question.

Complaint is made as to the giving and refusing of instructions. A great many instructions were given on each side as to the different phases of the case, and without entering into an extended discussion of these instructions, which would extend this opinion to an unreasonable length, it is sufficient to say that the instructions, as a series, correctly stated the law and were not misleading. The judgment of the circuit court of Johnson county is affirmed. Judgment affirmed.

(182 Ill. 444)

WEIR v. MOWE et al.1 (Supreme Court of Illinois. Oct. 16, 1899.) ASSIGNMENTS FOR BENEFIT OF CREDITORS— JUDGMENT RES JUDICATA - PROCEEDINGS AGAINST ASSIGNEE APPEARANCE-EFFECTPLEADING-FINDINGS-ASSIGNEE'S REPORT. 1. Since, under the voluntary assignment act, county courts have exclusive jurisdiction of assets assigned for the benefit of creditors, a circuit court has no jurisdiction to decree that certain assets held by an assignee were not the property of his assignor, but belonged to a cestui que trust; and hence such decree was not res judicata of such question in subsequent proceedings in the county court.

2. Creditors who had proved their claims against an insolvent's estate, and were not made parties to a proceeding by the guardian of an insane person against the insolvent and his assignee, to enforce an alleged preferred claim against the insolvent's estate for trust property appropriated by him, are not bound by a decree in such proceeding.

3. Since the assignee for the benefit of creditors does not represent creditors who have filed their claims, but his assignor, for the distribu

1 Rehearing denied December 13, 1899.

tion of his assigned estate, the appearance of the assignee in a proceeding by the guardian of a cestui que trust to have his claim declared preferred in the settlement does not bind such creditors, or make them parties to the proceeding.

4. Where the petition in a proceeding by a guardian against an insolvent and his assignee to have a claim for trust property appropriated by the insolvent declared entitled to a preference, in distribution of the assigned estate, contained no averment that such trust fund had been kept separate by the insolvent, or was in any way distinguishable from other assets held by the assignee, a finding that such fund was contained in certain of the assigned assets, and ordering the payment of the fund from the proceeds thereof, not being responsive to any allegation or issue contained in the petition, was er

roneous.

5. Where, after assignment, notes were delivered on behalf of an insolvent in settlement of an alleged preferred claim against the insolvent's estate, it was not error to charge the assignee with the amount of such claim, where he treated the notes as assets in his hands, and asked allowance for full payment of the claims in his report.

Appeal from appellate court, Fourth district.

Application by Marshall W. Weir, as assignee for Henry Seiter, an insolvent, for the approval of his final report, to which Richard Mowe and others excepted. From a decree denying such petition, plaintiff appeals. From an order of the appellate court affirming the judgment of the county court (81 Ill. App. 287), the assignee appeals. Affirmed.

Turner & Holder, for appellant. Horner & Winkelmann, for appellees.

WILKIN, J. This is an appeal from the appellate court for the Fourth district. The questions involved grow out of an assignment proceeding in the county court of St. Clair county, in which appellant, M. W. Weir, was appointed assignee of the insolvent estate of Henry Seiter. As in the case between the same parties involving a claim in favor of Lucetta Nichols, the contention of appellant is that the county and appellate courts erred in holding that a claim in favor of Lucius D. Turner, conservator for James H. Riggin, was not entitled to preference, as a claim for trust funds, over the general creditors of Henry Seiter. It appears from the opinion of the appellate court that there the appellant insisted upon two reasons why the judgment of the county court disallowing that claim should be reversed: First, because the trust fund. which amounted in this case to $14,181.42, was never the property of Seiter, and therefore did not pass to his assignee; and, second, that a certain decree entered in the circuit court of St. Clair county was binding upon all the parties to that proceeding, and was res judicata as to the claim in question in this case. The first of these reasons is, in substance, the grounds of reversal urged in the case involving the Nichols claim, and what we have said in the opinion filed in that case must be held to dispose of the same here.

The second ground of reversal is based upon the fact that the circuit court of St. Clair county, upon a petition filed by Turner, as conservator of Riggin, against Seiter, and Weir as his assignee, after the asignment of December 10, 1895, entered a decree to the effect that the claim here in question was entitled to preference in the settlement of the assigned estate, and ordering the assignee to pay the same in full out of the overdrafts due the bank, as soon as the same should be collected. The appellate court, in its opinion by Worthington, J., we think has disposed of that question properly, in the following language:

"The only remaining question to be considered is the effect of the decree of the circuit court made June 20, 1898, upon the petition of Turner against Seiter, and Weir, as assignee. If the circuit court had jurisdiction, as against appellees, to decide upon the priority of claims against the Seiter estate in the hands of the assignee by virtue of the deed of assignment, or to decide that certain assets in the hands of the assignee, scheduled by Seiter as his property, and so inventoried by the assignee, were not his property, but were the property of James H. Riggin, and therefore subject to the claim of Turner as trustee, then this question is res judicata, and the decree of the circuit court is binding, not only upon the assignee, but upon the county court and upon all the creditors of Seiter. When the assignee took possession of the assets of Seiter, the county court had exclusive jurisdiction in controlling their application in the payment of claims. It had power to pass upon the character of claims, to investigate liens, and to equitably adjust priorities, to the same extent that a court of chancery might do. Any other construction of the assignment law would open the door to confusion and conflicts of jurisdiction. There may be special instances, as in the enforcement of a mechanic's lien, in which a circuit court may have jurisdiction to enforce the lien when the property of a debtor is in the hands of an assignee; but there must be reasons for these special instances, growing out of the character of the lien, or because it cannot be enforced except in the circuit court. The decisions of the supreme court of this state clearly establish this doctrine. The case of Freydendall v. Baldwin, 103 Ill. 330, is a leading case upon this point, and has been repeatedly followed. It is there said: "Thus, it is seen that the whole management of the estates of insolvent debtors, under voluntary assignments, is committed to the jurisdiction of county courts, and by section 14 full authority and jurisdiction are given to such courts in regard to such matters. How the trust funds in the hands of the assignee are to be paid over and distributed are matters for the determination of the county court where such proceedings are pending, and its judgments and orders in that respect can only be reviewed as the judgments and decrees of

other courts of competent and original jurisdiction are reviewable by appellate courts. It was entirely competent for the general assembly to confer such jurisdiction on county courts, and their jurisdiction in such matters is too manifest to be disputed. Certainly a court of chancery will not assume jurisdiction on a bill to interfere and direct how the county court shall distribute a fund over which it has full and complete jurisdiction by positive statute unless under special circumstances.' To the same effect are Hanchett v. Waterbury, 115 Ill. 220, 32 N. E. 194; Farwell v. Crandall, 120 Ill. 70, 10 N. E. 672, and 11 N. E. 519; Wilson v. Aaron, 132 Ill. 238, 23 N. E. 1037; Newman v. Bank, 156 Ill. 530, 41 N. E. 156; Manufacturing Co. v. Caldwell, 136 III. 163, 26 N. E. 599; Osborne v. Williams, 34 Ill. App. 423; Brown v. Stewart, 159 Ill. 212, 42 N. E. 793. In Clark v. Burke, 163 Ill. 334, 45 N. E. 235, it is said: 'We have held in Freydendall v. Baldwin, 103 Ill. 330, Hanchett v. Waterbury, 115 Ill. 220, 32 N. E 194, and other cases, that the county court, under these provisions, has complete control over the settlement of assigned estates, and that other courts have no power to interfere with the exercise of that jurisdiction. In other words, the county court, in the settlement of insolvent estates, under this statute, is not, as seems to be assumed by counsel for appellant, a court of limited jurisdiction, but, on the contrary, in such matters is not only a court of general, but of exclusive, jurisdiction.'

"It follows from this construction of the assignment law that the circuit court was without authority to interfere with the distribution of the Seiter assets in the hands of the assignee. Nor do we think, even if it were held that this was one of the special cases in which it might assume jurisdiction, that its decree was binding upon appellees. An examination of the petition and decree discloses these facts: Neither appellees nor any of the general creditors of Seiter were parties to this proceeding, nor were they in any way represented in it. Seiter, by his deed of assignment, passed to his assignee the legal and equitable title of all the property scheduled, including overdrafts, absolutely and beyond his control. Browne-Chapin Lumber Co. v. Union Nat. Bank, 159 Ill. 458, 42 N. E. 967. Nothing that he might say or do subsequent to the assignment could affect the title or character of any asset so conveyed. The general creditors were not then represented by Seiter. Weir, the assignee, was not the agent of the general creditors. He was the agent of Seiter for the distribution of the assets in his hands as assignee. Bouton v. Dement, 123 Ill. 142, 14 N. E. 62; Hanford Oil Co. v. First Nat. Bank of Chicago, 126 Ill. 584, 21 N. E. 483. He did not, therefore, represent the general creditors. Appellees, as general creditors, had an interest in the assets in the hands of the assignee from the date of proving their claims. Levy v. Bank, 158 Ill. 88, 42 N. E, 129; Gibson v. Rees, 50 Ill. 383.

They were therefore entitled to be represented in any proceeding that affected their interests. If not represented in such proceeding, they were not concluded by any judgment or decree entered in it. Neither would such judgment or decree, or any finding of fact stated in it, be competent evidence against them in any subsequent proceeding. In Brush v. Fowler, 36 Ill. 53, it is said: 'We understand the doctrine to be universally recognized that no one can be injuriously affected by a judgment or decree of any court who was not a party to such judgment or decree.' To the same effect is Broom, Leg. Max. § 758; 1 Greenl. Ev. § 523; Schulz v. Schulz, 138 Ill. 665, 28 N. E. 808. Neither can it be said that appellees are privies, so as to be bound by the appearance of either Seiter or of his assignee, After the date of the assignment, December 10, 1894. neither of them could do or say anything that would affect the interests of appellees. appellees. The evidence shows that the petition of Turner to the circuit court was filed. not only after the assignee had taken posses sion of the estate, but also after notice to creditors to file claims had been given, and also after both Turner and appellees had filed their claims. Appellees were not then privies to either Seiter or Weir, and so not represented by them.

"It may be said further that the finding upon which the decree is based, namely, that the overdrafts represented the Riggin fund, is not based upon any issue tendered in the petition. It is a finding of fact where there is no allegation to warrant the finding. After alleging the appointment of Seiter as trustee, and his failure to turn over the fund to Turner, the petition alleges: 'Your petitioner further represents that the said Henry Seiter on the 10th day of September, 1894, made, executed, and delivered to Marshall W. Weir a deed of assignment, assigning and transferring to said Weir all of the property, real and personal, of him, the said Henry Seiter, for the benefit of the creditors of said Seiter, including the funds of said James H. Riggin, insane, in the hands of said Seiter, trustee, as aforesaid.' And again, in the prayer of the petition: "That upon a hearing hereof the said Henry Seiter may be ordered to pay and turn over to your petitioner the trust fund so found to be in his hands; that in case the said Henry Seiter has transferred and turned over to his assignee, the said Marshall W. Weir, the said trust fund, intermingled and mixed with his individual property, then he, the said Weir, may be ordered and adjudged and decreed to turn over and pay to your petitioner the said trust fund in full, with legal interest thereon from January 14, 1895, out of the first funds coming into his hands as such assignee, and that your petitioner may be decreed to have a first and prior lien upon all the funds in the hands of Weir, as assignee, for the payment of the trust fund.' It will be seen from these quotations from the petition that there is no averment in it that

the Riggin fund had been kept separate by Selter, or was in any way separate and distinguishable from other assets in the hands of his assignee, or that it was represented by any overdrafts. Yet the finding in the decree is 'that between the 7th day of February, 1894, and December 10, 1894, there was paid out of the bank of Henry Seiter & Co., in overdrafts, to sundry customers of said bank, the sum of $23,546.07; that in said overdrafts was included the said trust fund belonging to James II. Riggin'; and further finds that Weir, as assignee, is collecting such overdrafts, together with the assets of Seiter. The decree orders that Weir, as assignee, pay to Turner, the trustee, the sum of $14,025.59, with interest from January 14, 1895, or such part thereof as he can realize out of the assets in his hands designated as 'overdrafts,' and that said sum of $14,025.59, included in said assets as overdrafts, is the property and funds of said trust fund belonging tɔ said Riggin, etc. In other words, without its having been so alleged in the petition, the decree finds that $14,025.59, being the Riggin fund, is a part of $23,546.07 owed by debtors to Seiter, and represented by overdrafts on the Henry Seiter & Co. Bank, in the hands of assignee. It invades the jurisdiction of the county court, which alone has authority to direct the distribution of the insolvent's estate, by ordering that $14,025.59 of these overdrafts should be applied in payment of the Riggin fund. As the county court, in the case at bar, rightly holds that there is no evidence before it to show that the Riggin fund is embraced in the overdrafts, there results the natural conflict and confusion in administration which an interference by one court claiming jurisdiction with another court having jurisdiction is likely to cause.

"This further fact appearing in evidence is proper to be noted: Both Turner, the trustee, and Weir, the assignee, are sureties on Seiter's bond, as trustee, for $25,000. Turner petltions to have the Riggin fund declared a lien, and entitled to priority of payment. Weir and Seiter respond. The petitioner and the respondent Weir are both sureties on Seiter's bond. Seiter is interested to protect his bondsmen. All parties to the petition, then, are interested in having $14,025.59 taken out of the fund in the assignee's hands for the payment of general creditors and applied specially in payment of the claim for which Turner and Weir are sureties. No one interested in opposing the petition is made a party. It is not easy to imagine a proceeding in which both complainant and defendants would more heartily and harmoniously desire the same decree.

"We conclude, then, that the decree of the circuit court was not competent evidence to prove that the Riggin fund was embraced in the overdrafts; that, the court being without Jurisdiction, its decree is not binding upon the county court, the assignee, or upon appellees; that the evidence in the case at bar fails to show that the overdrafts include the Riggin

fund, but does show that this fund was mixed and mingled with the money in the Seiter Bank, and is incapable of separation or identification."

It is claimed by counsel for appellant, in their brief, that the county court could not legally make an order charging the assignee with the $14,181.42, because, as is said, th.it money never came into his hands. It appears that, by a certain agreement between creditors of Seiter, he was to make good certain overdrafts to the bank. He was assisted in doing so by friends, who paid a certain amount in cash, and gave their notes for the balance. It seems that the cash was received by the assignee, but it is claimed that the notes were delivered directly to Turner in satisfaction of this Riggin claim. While it is therefore tre that the assignee did not actually receive the notes amounting to the $14,181.42, it is shown by his report and the proceedings in the county court that he treated them as assets in his hands, and claimed credit for the payment of the claim in full. We find no sufficient reason for disturbing the judgment of the appellate court, and it will accordingly be affirmed. Judgment affirmed.

(182 III. 4.3)

EAST ST. LOUIS CONNECTING RY. CO. v.
CITY OF EAST ST. LOUIS.1
(Supreme Court of Illinois. Oct. 16, 1899.
STREET RAILROADS-RIGHTS IN STREETS-
FORFEITURE OF GRANT-LACHES.

The complainant and its co-grantee were authorized by an ordinance to operate a street railway over certain streets for a nominal consideration. The ordinance was repealed within a week after its passage, and the consideration ordered to be returned. For 10 years thereafter neither grantee attempted to exercise any rights under the grant, and apparently acquiesced in its revocation, during which time the city doubled in population, extended its streets, erected a public school building abutting on one of the streets, and citizens built residences along the same. Held, that complainant's delay was such gross laches that equity would not restrain the city from preventing: the building of the road.

Error to appellate court, Fourth district.

Bill for injunction by the East St. Louis Connecting Railway Company against the city of East St. Louis. of East St. Louis. From a judgment of the appellate court (81 Ill. App. 109) affirming a judgment of the district court dismissing the bill, complainant brings error. Affirmed.

Charles W. Thomas, for plaintiff in error. B. H. Canby and Forman & Browning, for lefendant in error.

PER CURIAM. The opinion of the appellate court for the Fourth district, by Creighton, J., is as follows:

"This was a bill in chancery in the St. Clair circuit court by appellant against appellee praying for an injunction restraining appellee,

'Rehearing denied December 13, 1899.

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