ther alleges that when the proceedings were | volved,' was to submit the matter upon petition commenced before Judge De Selm the child had actually been transferred to the Faheys and the proceedings before Judge Pam had been 'finally determined.' He admits that after the termination of the proceedings before Judge Pam he and McDonnell, as attorneys for Roy Burr, filed the habeas corpus petition before Judge De Selm in Kankakee county, and alleges that on the hearing he 'informed the court fully and accurately of the prior proceeding relevant to the cause.' He sets forth as 'Exhibit B' to his answer a transcript of the proceedings before Judge De Selm, showing what statements he made at that hearing. This exhibit does not disclose that the court was advised of the prior adoption proceeding or of the entry of the adoption decree. He further alleges that he did not obstruct or interfere with the 'process' of the superior court at any time; that in filing said petition before Judge De Selm he acted in the 'sincere belief' that he had the right, and it was his duty, to seek to maintain the status of the child as established by the order of Judge Miller and to seek a determination before Judge De Selm of the question whether Judge Pam had not exceeded his power and jurisdiction in restoring the child to the Faheys, in view of the fact that Judge Miller's order was then in force and effect and had not been reversed, and that he 'had no intent to conceal' any material fact from Judge De Selm. He further alleges that in thus questioning the jurisdiction of Judge Pam he 'did not intend to reflect' upon the superior court or said judge; that he was not contemptuous or disrespectful to the court in any way; that he believed that the justice of the cause was with the child's father, who was a fit person to have the custody of the child; that the father and the grandmother were nearer and dearer to the child than the Faheys, the uncle and aunt of the child's mother, and that it would be for the child's best interest that the father be given its custody; and that he at all times had the greatest respect for the dignity of said superior court. for habeas corpus 'to the circuit court of Kan. kakee county'; that he assisted in the preparation of said petition, ‘and in said petition alleged that said Robert Burr was not detained by virtue of any judgment or decree of any court of competent jurisdiction'; that said allegation was 'general in form' and 'was not intended to conceal' the fact of the entry of Judge Pam's order, but 'seemed to respondent to be just as efficient to raise the question to be presented' as though the proceedings before Judge Pam and his order had been set up in detail and in full, and at the time said petition was drafted it was respondent's 'understanding and intention' that 'the question of the validity' of Judge Pam's order would be presented to Judge De Selm so that he might pass upon it; that respondent was present on January 12 at the hearing before Judge De Selm, at which time McCaffrey 'informed the court fully and accurately of the prior proceedings relevant to the cause,' as appears from said transcript of the proceedings ('Exhibit B'); that in filing said petition before Judge De Selm as an attorney for Roy Burr respondent 'acted in the sincere belief' that he had the right, and it was his duty, to seek to maintain the status of the child as it had been established by the order of Judge Miller, and that he had the right before Judge De Selm to seek the determination of the question whether Judge Pam by his order had not exceeded his power and jurisdiction, and that he (McDonnell) 'had no intent to conceal' from Judge De Selm any fact material to the determination of the question, and that he (McDonnell) gave to said circuit court 'all of the information pertinent to the inquiry there that came to his mind relevant to the issues there presented.' He further states that in thus questioning the jurisdiction of Judge Pam he did not intend to reflect upon said superior court or said judge; that in doing said matters and things he was not contemptuous or disrespectful in any way, and that he had had the greatest respect for the dignity of said superior court. "Similar allegations are contained in the an- "In the contempt order in question the court swer of Frank McDonnell. He states, in sub-made full findings of fact, and further found, in stance, that he knew nothing about the litiga- substance, that the child was not then in its tion concerning the custody of the child until jurisdiction; that neither respondent had offerJanuary 9, 1923, when he was employed by Mc-ed to disclose its whereabouts or to assist the Caffrey; that the latter informed him of all prior proceedings and what he (McCaffrey) had observed from his examination of said transcript on file in this Appellate Court; that after several conferences with McCaffrey, and after examining many legal authorities, he 'concluded' that Judge Pam had no power or jurisdiction to review or in any manner impair the order entered by Judge Miller, which then stood unvacated and unreversed; that he did not interfere at any time with the deliberations of Judge Pam or the 'process' of the court; that on January 10, 1923, after Judge Pam had entered his order, the child was given into the custody of the Faheys, and thereby the proceedings before Judge Pam were 'finally determined'; that it then appeared clear' to respondent that it was proper to test in some manner which of the two orders (Judge Miller's or Judge Pam's order, both of the superior court) was entitled, as a matter of law, to respect and obedience, and that 'the only expeditious way of determining that question, and the only way that would be of practical consequences to the parties in court in restoring it to the Faheys; that said circuit court of Kankakee county was not advised of said adoption proceedings in the county court; that the habeas corpus writ was issued by said circuit court by virtue of the allegations contained in the petition; that respondents, at the time they filed the habeas corpus petition in said circuit court, well knew of said adoption proceedings and that the petition in said adoption proceedings had been amended before the adoption decree had been entered by the county court, and that the filing of the petition in said circuit court of Kankakee county by respondents 'without making to said court a full disclosure in said petition, or otherwise, of all the facts, constituted an obstruction to justice and to the orderly administration of justice'; that the maintenance and prosecution of said cause by the respondents, as attorneys for said Roy Burr, constituted an abuse of the process of the court, an open violation of the decree of this court and a breach of the duties which said respondents owed to this court, as attorneys and counselors of this court, and that said re PEOPLE v. BURR spondents, Eugene McCaffrey and Frank McDonnell, are in contempt of this court.' "Since the entry of the contempt order in question this Appellate Court (in said writ of error suit prosecuted to reverse Judge Miller's order) on June 26, 1923, reversed Judge Miller's said order. In the opinion (case No. 28292, not yet published) this court held, in substance, that the county court in the adoption proceedings had power and jurisdiction to enter the adoption decree, and that Judge Miller was without power to enter his order awarding the custody of the child to the father in a habeas corpus proceeding." Miller. We are not impressed with the answer of plaintiffs in error that when they presented the petition to Judge De Selm they informed him of all matters they felt he should know or that were relevant to the relief asked. The petition simply alleged petitioner was the father of the child, that the child was restrained of his liberty by John and Mary Fahey, and that he was not detained by virtue of any judgment or decree of any court of competent jurisdiction. It further alleged that in August, 1922, in a proceeding in the superior court of Cook county, the custody of the child was awarded petitioner by Judge No mention was made in the petition of the adoption proceeding in the county court nor of the fact that a writ of error had been sued out of the Appellate Court to review the judgment of Judge Miller and that the writ had been made a supersedeas, nor was any mention made in the petition of the proceeding before and judgment of Judge Pam. At the hearing before Judge De Selm the morning of January 12 it was developed that a writ of error was pending for review in the Appellate Court of Judge Miller's judgment and that a supersedeas had been granted, and Judge De Selm was informed of the proceeding before and judgment of Judge Pam, but no mention was made in any manner of the adoption proceeding. Judge De Selm questioned the petitioner, and he testified he was the father of Robert Burr; that his wife secured a divorce in 1917 and the court awarded her the custody of the child; that there was no charge in the bill that the petitioner was an untit person to have the custody of the child; that the mother and child went to the Faheys and lived there until the wife's death; that the child was kept by the Faheys until the order of Judge Miller in August, 1922. Petitioner testified after the death of his wife the Faheys refused to give him the custody of the child and secreted him away where petitioner could not find him, but he finally got possession of him by order of Judge Miller and Judge Pam awarded his custody to the Faheys. [2] It seems rather absurd to say the failure of plaintiffs in error to inform Judge De Selm of the adoption proceeding or refer to it in any way was because of their belief it was irrelevant and unimportant. We cannot In a habeas corpus proceeding for the custody of a child, the order of a court having jurisdiction is final and binding upon the parties under the same facts and so long as the same conditions exist as did at the time the order was made. Upon that subject this court said in Sullivan v. People, 224 Ill. 468, 79 N. E. 695: "Chapter 65 of the Revised Statutes purports to cover the whole subject of the law in relation to habeas corpus. It creates a complete code of procedure, prescribing what the petition shall contain, the form of the writ and how it shall be served, and providing for the return and hearing. It not only fails to provide for an appeal but contemplates second applications and writs, and places limitations upon the power of the court on a second writ which are inconsistent with the intention to allow an appeal. If it should be held that the statute authorizes an appeal, the right would be an absolute one, by which the execution of the order would be stayed and an illegal detention might perhaps be continued contrary to the intent of the Habeas Corpus Act. An order in a habeas corpus proceeding for the custody of a child is held to be final for the purpose of a writ of error only in the sense that the parties are concluded under the particular circumstances existing when the order is made. The order is final when pronounced but may not be final at any subsequent time, and its finality afterward is to be determined, not from its character, but from extrinsic proof. If there is any change in the conditions and circumstances the order is not final or conclusive and the parties are free to try the issue again upon a second application." See, also, Cormack v. Marshall, 211 Ill. 519, 71 N. E. 1077, 67 L. R. A. 787, 1 Ann. Cas. 256. The petition presented to Judge Pam did allege a change in conditions and circumstances of the child. The petition presented to Judge De Selm did not. The changed circumstances set out in the petition before Judge Pam were that the child, Robert Burr, had been removed from the jurisdiction of the court to Kankakee county; that his father was residing in Chicago, was an unfit person to have the custody of the child, and was not situated so he could properly provide for, maintain, and care for the child: that he had abandoned the boy and the boy was not receiving proper care and treatment. Judge Pam had jurisdiction of the parties and of the subject-matter of habeas corpus, and whether he had the power to render the particular judgment he did render did not depend wholly upon whether Judge Miller had jurisdiction to render the judgment he rendered. We have seen the authorities hold that in a habeas corpus proceeding for the custody of a child the parties are not bound by a previous judgment if there is a change in circumstances and conditions but are at liberty to try the issue at a second application. Whether Judge Pam was correct in rendering the judgment he did render, it was not void even though it may have been erroneous. The judgment might have been reviewed upon writ of error, but could not be reviewed by another habeas corpus proceeding in another court of the same jurisdiction where the facts, circumstances, and conditions remain the same. People v. Siman, 284 Ill. 28, 119 N. E. 940. When all the acts and conduct of plaintiffs in error are considered, we cannot escape the conclusion that they intentionally sought to embarrass and obstruct the administration of the law and justice. The fact that about a month after Judge De Selm issued the writ he recalled it, set aside the order awarding the custody of the child to the petitioner, and awarded its custody to the Faheys strongly indicates, if it does not show conclusively, that he would not have issued the writ and made the order if he had been ful ly informed of all the facts. Plaintiffs in error resisted the motion to set aside the judgment. The order to restore the custody of the boy to the Faheys, it is conceded, was not complied with, and his whereabouts are unknown to the Faheys. Plaintiffs in error claim they should not be held responsible for the failure of their client to return the boy to the Faheys. The conclusion is warranted from all the facts that plaintiffs in error, in disregard of the dignity and authority of the court, intentionally sought to embarrass and obstruct the administration of justice. Even if they believed, as they now assert, that justice was with their client, there was an orderly way to proceed to secure it. [3, 4] If the acts of a person charged with contempt of court are inconsistent with his alleged intention, and if the acts charged and proved or not denied amount to a contempt, the answer alleging the party charged intended no contempt will not purge him. People v. Severinghaus, 313 Ill. 456, 145 N. E. 220; People v. Seymour, 272 Ill. 295, 111 N. E. 1008. An attorney's zeal to serve his client should never be carried to the extent of causing him to seek to accomplish his purpose by a disregard of the authority of the court or by seeking to secure from a court an order or judgment without a full and frank disclosure of all matters and facts which the court ought to know. Unless lawyers, who are officers of the court, show respect to its orders and judgments, how can it be expected that laymen will do so? While the judgment against plaintiffs in error is to them a serious matter and it is an unpleasant duty to affirm it, we would feel recreant to our duties and obligations to the profession and the public if we approved acts of lawyers like those of plaintiffs in error in this case. Courts and lawyers do make mistakes and err in judgment, but we cannot regard the acts of the plaintiffs in error simply as a mistake or error in judgment. The judgment is affirmed. Judgment affirmed. (147 N.E.) (316 I11. 155) DUNN, J. The Appellate Court for the First District affirmed a judgment of the superior court of Cook county adjudging the plaintiffs in error, Eugene McCaffrey and Frank McDonnell, guilty of a contempt of court and sentenced each of them to imprisonment in the county jail for ten days and to pay a fine of $500. They sued out a writ of error to review the judgment of the Appellate Court and also applied for a writ of certiorari, which was allowed and issued. A judgment has been rendered this day on the writ of error which affirms the judgment of the Appellate Court and disposes of the litigation. (No. 16077) 147 N. E. 47. This writ will therefore be dismissed. Writ dismissed. (316 Ill. 196) FIRST LUTHERAN CHURCH OF PONTIAC v. ROOKS CREEK EVANGELICAL LUTHERAN CHURCH. (No. 15346.) (Supreme Court of Illinois. Feb. 17, 1925. Rehearing Denied April 8, 1925.) I. Estoppel 52-"Waiver" is relinquishment of known right and legal defense. "Waiver" is legal defense, and is intentional relinquishment of a known right; both knowledge of right and intent to relinquish being essential. 3. Deeds 164-Grantee's title is not divested because condition subsequent is or becomes impossible of performance. Estate vested in grantee by deed is not divested because condition subsequent contained in deed was or becomes impossible of performance or is illegal, or its performance is prevented by grantor, or impossibility of performance occurs through act of person for whose benefit condition was made. 4. Deeds 164-That performance of condition subsequent has become no longer possible does not excuse performance unless arising from act of person for whose benefit condition was made. Breach of condition subsequent is not excused because fulfillment has become no longer possible, unless this impossibility of performance arises from act of person for whose benefit condition was made. 5. Injunction 26 (9)-Defendant in eject ment suit after breach of condition subsequent held without legal remedy as affecting right to enjoin suit. Church which accepted conveyance of land on condition that it "be and remain connected with the H. Lutheran Synod," which for ten years delayed performance of such condition until its performance had become impossible, held without adequate remedy at law as affecting its right to enjoin prosecution of ejectment suit. 6. Injunction 118(4)—Bill to enjoin ejectment in suit by one church against another held to state facts warranting the relief sought. Petition, in suit by one church to enjoin ejectment action by another against it, which alleged that defendant had conveyed the property involved to plaintiff on condition that it (plaintiff) "be and remain connected with the H. Lutheran Synod" and had acquiesced in plaintiff's delay in connecting itself with such synod until performance of such condition had become impossible by dissolution of the synod, held to show facts constituting an equitable defense not available at law, and warranting the relief sought. 8. Estoppel 52-"Estoppel in pais" defined. [Ed. Note. For other definitions, see Words Estoppel by matters "in pais" is an indisand Phrases, First and Second Series, Waiv-putable admission arising from circumstances er.] 2. Injunction 118(3)-Allegations in petition to enjoin ejectment suit for breach of condition subsequent in deed held not to show defendant's waiver of performance of such condition. Allegations, in petition by one church to enjoin another from prosecuting ejectment suit to recover possession of property previously conveyed based on breach of condition subsequent, that grantee church "be and remain connected with the H. Lutheran Synod," held not to show a waiver by defendant of performance of such condition subsequent. that party claiming benefit of it has in good faith been induced to change his position to his substantial prejudice by voluntary intelligent action by party against whom it is alleged. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Estoppel in Pais.] 9. Injunction ~26(9)—On showing that plaintiff is without equity and that defendant has no legal defense, suit in ejectment may be enjoined pending equitable determination of defendant's rights. Ejectment suit, wherein it appears that defendant has no defense at law and that plain For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes tiff is in equity and conscience estopped from any claim to recover the premises, may be enjoined in equity suit by defendant until his rights are established or determined to be unfounded. Appeal from Circuit Court, Livingston County; Stevens R. Baker, Judge. Suit by the First Lutheran Church of Pontiac against the Rooks Creek Evangelical Lutheran Church. From decree of dismissal, complainant appeals. Reversed and remanded, with directions. all at a cost of about $7,000, of which $3,000 was raised by subscriptions among its members and in part among the members of appellee. The church was later dedicated. During the year 1914 appellant installed a and in 1916 erected a parsonage on the prempipe organ in the church at a cost of $1,200 ises at a cost of $5,000, by subscriptions by its members and some by the officers and members of appellee, and to secure the remaining $1,600 has mortgaged the premises. The appellant did not belong to the Hauges Synod on the date of the deed and has never livery of the deed asked or demanded that Adsit, Thompson & Herr, of Pontiac, for joined it. Appellee at no time after the deappellant. Tuesburg, Wilson & Armstrong, of Pontiac, appellant join said synod. for appellee. DUNCAN, C. J. The circuit court of Livingston county sustained a demurrer to the bill, as amended, of the First Lutheran Church of Pontiac, appellant, to enjoin the Rooks Creek Evangelical Lutheran Church, appellee, from prosecuting an ejectment suit brought by appellee against appellant in that court to recover possession of certain real estate in Pontiac and dismissing the bill for want of equity. The First Lutheran Church of Pontiac has prosecuted this appeal. The material allegations of the bill as amended are in substance the following: On March 6, 1907, appellee, a religious corporation, conveyed by warranty deed the property in question to appellant. The deed, except the certificate of acknowledgment, is set out in hæc verba in a former decision of this court in the ejectment suit (Rooks Creek Lutheran Church v. First Lutheran Church, 290 Ill. 133, 124 N. E. 793, 7 A. L. R. 1422), to which reference is made for the purposes of this suit. About the date of the deed appellant went into possession of the premises and has continued in the possession of the same since that time. It was agreed and understood by appellant and appellee that the grantee should pay a mortgage of $1,600 as part of the consideration for the deed. Appellant, through its officers and members, raised the money by subscription to pay the mortgage and solicited some of the officers and members of appellee, who contributed to the payment of the mortgage. Appellee, through its officers and members, admitted its inability to maintain the property and pay the mortgage and proposed the organization of an independent Lutheran church in Pontiac to take over the church property deeded. The premises were improved with an old building which was not modern in any particular, and the property was not then worth to exceed the amount of the mortgage. Appellant remodeled the church building, put a foundation and basement thereunder, installed a heating plant and modern lighting conveniences, put a new roof on it, and redecorated the interior, On May 22, 1911, at a special meeting called for the purpose, appellant revised its constitution by adding thereto article 4. In that article it recognized the necessity of maintaining a connection with a Lutheran body to secure the services of ordained pastors in good standing, for the disciplining of its pastors, and to secure the preaching of the Lutheran doctrine and administering the sacraments in accordance with the teachings of the Word of God and the confession of the Lutheran church. Because its membership was made up of various nationalities, coming from different Scandinavian and other Lutheran synods, it was expressed in article 4 that it was deemed expedient to remain for a time as an independent organization synodically, as a number of its members were not then favorable to a connection with a synod, provided that such action should not be construed as a repudiation of the clause in the deed that the church. "be and remain connected with the Hauges Synod." Appellant in said article stated that it was organized as an independent Lutheran church, but that that idea was abandoned in order to obtain the donation by appellee of the church property, subject to the condition that appellant assume the indebtedness thereon and to the other condition that it become and remain connected with the Hauges Synod, and that it was the sense of appellant that it would comply with the latter condition as soon as it could consistently do so without its peace and unity being endangered. It also by resolution provided the way and manner in which it should determine the appropriate time for applying for admission to said synod; that it was constantly thought and hoped by many of its members that it would in time become affiliated with the Hauges Synod without danger to its peace and unity, but that in 1917 the Hauges Synod voluntarily ended its exist│ence of all of which facts appellee had full knowledge as they occurred and has at all times by its conduct encouraged appellant to make expenditures and continue its existence out of said synod until such time as conditions would warrant joining without danger to its peace and harmony, and therefore |