(145 N.E.) probably a Buick, come out of the alley aljoining the store, turn on the main street, proceed north to the first intersecting street, and then turn east. Al Schmitz, a banker at Carrollton, testified that he kept a Ford sedan at Frech & Andrews' garage, in that city, and that on the morning after the burglary the car was missing, except that the rear cushion had been left in the garage, D. F. Mach, a deputy sheriff, testified that he found a Ford sedan in Madison the following day, that it lacked the rear cushion, and that he delivered the automobile to its owner, Al Schmitz. The foregoing is a summary of the evidence offered in behalf of the people. The plaintiff in error testified that he had resided in St. Louis all his life; that he was married and conducted a restaurant and soft drink parlor in that city; that he was at his place of business on the evening of February 23, 1923, until after 11 o'clock, when he returned home, and that he remained there until the following morning; that he was not at Carrollton, or in the store. of Carmody Bros., on the 23d or 24th of February, nor had he ever been in Carrolton until about a week after his arrest, when he was taken there by the authorities; that when the officers came to his place of business about 15 persons were present, all of whom the officers searched for concealed weapons; that he did not know whose bundle it was that lay on the counter; that there is an old barn in the rear which contains certain rooms; that he did not use the barn, but sublet it; that Bayha, who was employed by him as a porter and slept in the barn, introduced two men named Smith and Powers, to whom the plaintiff in error first let space in the barn for a garage and later the room which the officers searched; that Bayha had the key to the room, and the plaintiff in error had nothing in it when the officers came; that some of the rooms in the barn were locked, and the officer asked for the keys; that plaintiff in error called the owner, who responded and opened his side; that the officer then asked for the key to a certain shed, and the plaintiff in error fetched his key ring from the cash register, but did not have the proper key; that he obtained the key from Bayha and then opened the shed; that the suits of clothes were lying on the floor back of the door, and he had never seen them before; that the liquor must have be longed to Smith and Powers; that Bayha left in a few days, and the witness has never seen him since; that Smith and Powers never returned, nor has he heard from them; that he did not sell any clothing belonging to Carmody Bros. to Kretzer, or to any other person, nor did he receive any money from Kretzer for a suit of clothes; that he did not know Bayha was selling the clothing, and that he had nothing to do with it. Edward E. Behnken, a detective of St. Louis, testified that he, accompanied by Officers Borlinghaus and O'Connell, on March 3, 1923, at about 8:40 p. m., went to a soft drink parlor conducted by Wieland at 4359 South Broadway; that they announced they were police officers and searched those present for concealed weapons; that Kretzer was standing near the bar, leaning on a package; that the witness asked him what it contain ed, to which Kretzer replied that he did not know, that the package was not his, and that he had nothing to do with it; that the witness requested Kretzer to open the package, which he refused to do, but upon a second request he opened it and a suit of clothes was disclosed, of which Kretzer denied ownership; that the witness made a search of the premises, and in the barn to the rear found several small rooms, some of which were open and others locked; that Wieland first denied that he had the key, but after the owner appeared, who said that Wieland had it, and after a threat by the witness that he would obtain a search warrant, Wieland produced several keys and unlocked the door of the room, in which were found pans containing home brew and alcohol, and behind the door six suits of clothes; that Wieland first said that he did not know how the clothes got there and then that one Powers put them there, but that he did not know Powers, nor where he could be found; that the clothes were brought into the soft drink parlor and examined, and the name of Carmody Bros. was found in the inside pockets; that Kretzer said he had just entered the place to get a glass of root beer, but during the trial ad- Bernard Kretzer, a codefendant, testified mitted he had gone there to buy a cheap suit that on the evening in question he, with one of clothes; that the witness had Kretzer put Knable, called at Wieland's saloon; that he the coat on and it fit him; that Bayha had never been there, nor had he ever seen claimed to be a porter and cook for Wieland, Wieland before; that he ordered root beer and that he slept in the barn which contain- and a ham sandwich; that he did not talk to ed the room where the clothes were found; Wieland about clothes, nor buy any from that the witness arrested Wieland, Kretzer, him; that Knable introduced Bayha to Kretand Bayha, but afterwards Bayha disap- zer; that Bayha sought to sell Kretzer a peared, and that Wieland still conducts his suit of clothes, inquired about the size, said business in St. Louis, but that no person by that he thought he had one that would fit, the name of John Powers could be found, repaired to the shed, and brought back a although search had been made for him. suit, for which Kretzer paid him $15; that Officers Borlinghaus and O'Connell testified Kretzer asked whether the suit was stolen, to substantially the same as Officer Belinken. | which Bayha replied that he need not worry about it, and that he (Bayha) would refund the money if the suit did not fit; that the suit was in the package on the bar in front of Kretzer when the officers came, and that Kretzer did not give the plaintiff in error any money for it. which he believed to be a Buick, emerge from the alley adjoining Carmody Bros.' store at about half past 2 o'clock in the morning. Mach, the deputy sheriff, found a Ford sedan on the following day at Madison, which car belonged to and was recovered by Schmitz, the Carrollton banker. No testimony was offered that any person had seen the plaintiff in error before, at, or after the Elizabeth Hefty, the mother of the plaintiff in error, testified that her son was married, and that he, with his wife and two children, resided with her; that he slept in | burglary in Carrollton, or at any point bea room adjoining hers, and that he was home during the night the burglary was committed. Edward Hagner, a teamster, testified that he resided in St. Louis and was acquainted with Wieland; that on the night of February 23, 1923, he was in Wieland's establishment until after 10 o'clock; that when he left Wieland was still there, and that he roomed upstairs and had seen Wieland every night for nearly a year prior to his arrest. The foregoing is the substance of the evidence on the trial in behalf of the plaintiff in error. There is no direct proof of participation by the plaintiff in error in the burglary and larceny. A week after the burglary had been committed three police officers of St. Louis entered his place of business in that city and searched those present for concealed weapons. In making this search they found Kretzer, a stranger to Wieland, standing at the bar, leaning on a package, which, when opened, was found to contain a suit of clothes bearing the name of Carmody Bros. Kretzer testified that Bayha asked him to buy a suit, inquired the size, and said he thought he had one that would fit. Kretzer asked whether the suit had been stolen, whereupon Bayha assured him that he need not worry about it. Bayha went to the barn and returned with a suit of clothes. Kretzer paid him $15 for it, which, after the arrest, was refunded by Bayha. Wieland was the lessee of the first floor of the building in which he conducted his business, and also of a part of the barn in the rear. He sublet a portion of the barn. Bayha slept in the barn, and was employed by Wieland as a porter, but his duties occupied only part of his time, and he had leisure for other enterprises. Officer Behnken testified that Kretzer told him that he bought the suit of clothes from Bayha, but that he paid Wieland for it. Both Kretzer and Wieland deny that Kretzer paid Wieland for the suit. Wieland, Kretzer, and Rayha were arrested, but Bayha disappeared shortly afterwards and has never returned. The weight of the evidence, we believe, shows that Kretzer bought the suit of clothes from Bayha, and that the suits which were found behind the door of the room in the barn were in the custody of Bayha rather than of the plaintiff in error. The place of business of Wieland in St. Louis, Mo., is more than 60 miles distant from Carrollton, Ill., where the burglary was committed. Fred Edwards saw an automobile, tween that city and St. Louis. He testified that he left his place of business on the night of February 23, 1923, between 11 and 12 o'clock; that he went to his home and remained there until the next morning; and that at the time of his arrest he had conducted the restaurant and soft drink parlor in St. Louis about 19 months, prior to which he had been engaged in the ice and coal business. His mother, Elizabeth Hefty, testified that he was at home during the night the burglary was committed. While both of these witnesses are interested, their testimony is in a measure supported by that of Edward Hagner, who lived above Wieland's place of business, and who stated that he called there on the night in question, saw Wieland, and when he left, at about 10 o'clock, Wieland was still in charge. It seems highly improbable that the plaintiff in error could close his place of business shortly before midnight, depart for Carrollton, over 60 miles away, and after arriving there break into Frech & Andrews' garage and steal a Ford sedan, then take from Baltz Bros. a flashlight, follow it by the theft of a screwdriver from Pranger & Borlin, and finally steal from Carmody Bros.' store a large quantity of merchandise, as the state argues, by half past 2 o'clock in the morning. To travel the required distance on a night in February and to break into four places of business, stealing something from each, would seem to require more time than the facts in the case allow. [1, 2] A reviewing court should give due weight to the verdict of the jury, and a judgment of conviction ought not to be reversed simply because the evidence is conflicting. It is the duty and province of the jury to consider the evidence, and where it is sufficient to warrant a conviction this court will not usurp the functions of the jury, by substituting its judgment upon the weight and credibility of conflicting testimony. People v. Zammuto, 280 Ill. 225, 117 N. E. 454; People v. Freeland, 284 Ill. 190, 119 N. E. 928. But a verdict of guilty must be supported by evidence, and where it is apparent that the verdict is not based upon evidence proving the guilt of the accused it is the duty of the court to set aside the judgment based upon it. People v. Bolik, 241 ìll. 394, 89 N. E. 700: People v. Rischo, 262 IIL 596, 105 N. E. 8; People v. Zammuto, supra; People v. Freeland, supra; People v. Aiello, 302 Ill. 518, 135 N. E. 62. (313 Ill. 473) (145 N.E.) WHITAKER et al. v. SCHERRER et al. (No. 16127.) [3] We cannot regard the evidence in this, F. J. Steger, E. J. Costigan, and Charles L. record as sufficient to establish the guilt of Kraft, filed their bill in the circuit court of the plaintiff in error beyond a reasonable St. Clair county against Leo J. Scherrer, P. doubt. The trial court should have granted J. Soucy, and Charles P. Wise, for the partihim a new trial. The judgment of the cir- tion of certain land in that county and for incuit court of Greene county is therefore re- cidental relief. The bill alleges that Edwards versed, and the cause remanded. Whitaker, Horace J. Eggmann, F. J. Steger, Reversed and remanded. and Leo J. Scherrer, purchased certain land adjacent to the city of East St. Louis in 1903 for approximately $217,000. The title to the property was taken in the name of Charles L. Kraft by deeds which were duly recorded. The purchase was made in the following proportions; Whitaker 35/55, Eggmann 5/55, Steger /55, and Scherrer 10/55. $55,000, part of the purchase price, was paid in cash, and the payment of the balance was secured by a mortgage, which has since been paid and discharged. Kraft, with the consent of the purchasers, by deed dated June 29, 1903, conveyed the land to the Illinois State Trust Company in trust. He also executed and delivered to the trustee at the same time a warranty deed to the property. The deed of trust recites, among other things: (Supreme Court of Illinois. Oct. 28, 1924.) I. Partition 22-Agreement not to partition may be implied. Agreement not to partition need not be expressed, but may be implied. 2. Partition 22- Not allowed where it would destroy terms or plan of agreement between joint adventurers. Where partition would destroy terms or plan of agreement between joint adventurers in purchase and sale of land, partition will not be allowed. 3. Partition 26-Assignor of certificate of interest in land held not precluded from objecting to partition. Owner of certificate of interest in realty held in trust for him and coadventurers, who assigned same to judgment creditor to secure money due on judgment, on payment of which assignee agreed to satisfy it of record, and make conveyance if necessary, continued to be owner of certificate, with right to object to partition, and attempted levy, sheriff's sale, and conveyance of his interest were ineffectual. 4. Trusts 61(1)-Trust in realty for purchasers held not dissolved by decree against one of them. Trust in property, purchased as joint adventure by beneficiaries for resale in parcels, held not dissolved by decree against one of them, especially in absence of levy thereunder on any trust property, as such decree could merely charge his interest in proceeds of sale. "It is my object and intention that the title to the real estate above described is by deed and this agreement vested in the Illinois State Trust Company as trustee, in fee simple ab- · solute, and that I, the said Charles L. Kraft, have no title in or to the said real estate or any interest in the same, but only in the rents derived from the same and in the proceeds which may be derived from the sale of any of the above-described real estate; that this deed is intended as an active trust, vesting the title in the said real estate in said trust deed, and that I, the said Charles L. Kraft, shall not, under section 3 of the Conveyance Act of the state of Illinois, have or derive any interest or title in or to said land. The proceeds of the sale of the real estate above described, and the rents that may accrue, shall be divided into fifty-five (55) equal parts, and said interests are represented by five (5) certificates of interest, as follows: [Nos. 1, 2, 3, and 4 for 55 each, and No. 5 for 3555, are here scheduled.] And said certificates of interest are hereby made personal property, the same as the pro Appeal from Circuit Court, St. Clair Coun- ceeds of the sale would be, and my interests ty; George W. Crow, Judge. Suit by Edwards Whitaker and others against Leo J. Sherrer and others. From a decree of dismissal, complainants appeal. Affirmed. are fully and entirely represented by said certificates of interest, which are in words and figures as follows: [Here form of certificate is inserted, which sets forth that is entititled to fifty-fifths of the proceeds of the sale of the real estate held in trust; that upon the surrender of the certificate, properly D. E. Keefe and S. W. Baxter, both of assigned, a new certificate or certificates for East St. Louis, for appellants. Thomas L. Fekete, Jr., of East St. Louis, and Charles P. Williams, of St. Louis, Mo. (Bates, Williams & Baron, of St. Louis, Mo., of counsel), for appellees. the same interest will be issued in lieu thereof; and that the new certificate or certificates are subject to the terms and conditions of the trust agreement.]" The deed of trust provides that Kraft, as the owner of the certificates of interest, shall DE YOUNG, J. Edwards Whitaker, the pay all taxes, interest on, and principal of Illinois State Trust Company as trustee, and the incumbrance, keep all improvements inEdwards Whitaker, Mrs. H. B. Collins and sured in the name of the trustee, and pay the St. Louis Union Trust Company as trus- the premiums therefor, care for the property, tees of the estate of H. B. Collins, deceased, | make repairs, and collect the rents; make a For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 145 N.E.-12 of the property, and ordered him to pay to the three complainants 45/55 of $10,000, or $8,181.81, which he (Scherrer) had improperly retained as commission. The decree further found that Scherrer had pledged his 10/55 interest in the property to Prosper J. Soucy, who was entitled to reimbursement of the amount due him from the interest of Scherrer, and that after Soucy's claims should be satisfied, Scherrer's interest should be charged with said sum of $8,181.81; that a part of the purchase price remained due to Orthwein, and it was ordered that when the last payment should be made on the incumbrance, the balance still due Scherrer as commission should be deducted from the residue of the purchase price, and paid to the trustee for the benefit of the three complainants and Scherrer, in the proportions of their respective interests. The bill further alleges that: Charles P. Wise, one of the defendants, on September 16, 1915, recovered a judgment against Scherrer for $2,760.07. An execution was issued and levied and the detailed report to the trustee on the 1st day | among other things, found that Scherrer had of January, or at any other time if required acted as the agent of Orthwein in the sale by it, setting forth the moneys collected, the sums paid for taxes, insurance, and repairs, and the balance on hand, which report shall be signed by the holders of certificates rep resenting a two-thirds interest, and if objection be made thereto or to the management of the property, the trustee may refuse to accept the report, and remove the certificate holders from such management, but until, in its discretion, it revokes such appointment, the trustee appoints Kraft, the holder of the original certificates, and his assigns, to care for the property. Additional provisions of the deed of trust are: The trustee is authorized, without the consent of the certificate holders, to take such action as it shall deem proper for the preservation of the property, and to enable it more effectually to carry out the intentions of the instrument. In the event of the failure of any certificate holder to pay his share of taxes, insurance, interest, or principal, then any other certificate holder, or the trustee, may pay the same, and the sum paid, with interest at 7 per cent., shall become a prior lien upon, and be deduct-property held in trust was sold by the shered from, the share of the proceeds of any sale payable to the delinquent certificate holder. The trustee shall sell and convert the land into money whenever so authorized in writing by the owners of two-thirds interest in the proceeds of sale. The certificates of interest shall be transferable by assignment, upon which the trustee shall issue new certificates in lieu of those canceled. The trus-er, died, and his estate is in charge of his tee shall keep a record of all issues and transfers of certificates, which shall be open to the inspection of the holders, and it shall receive the proceeds of all sales and make distribution thereof, first, by retaining its fixed fees and compensation, and then, in the order named, by paying all taxes, insurance premiums, interest, principal, and any sum due in caring for the property, and finally by making payment of the balance to the certificate holders in the proportions of their interests as evidenced by the certificates. It is further alleged in the bill that: The trustee accepted the trust, and immediately after the issuance of the original certificates they were assigned by Kraft to Whitaker, Eggmann, Steger, and Scherrer. Certain portions of the land have been sold and conveyed by the trustee. In the purchase of the property Scherrer concealed from Whitaker, Eggmann, and Steger, the fact that he acted as the agent for the original owner, William D. Orthwein, and that he was to receive from Orthwein a commission for making the sale. Instead of actually contributing $10,000 as his share of the cash payment on account of the purchase price, that sum was deducted from his commission. A bill for an accounting was afterwards filed by Whitaker, Steger, and Eggmann against Scherrer and others, and in that suit a decree was entered which, iff. No redemption was made from the sale, and Wise obtained a sheriff's deed to the interest of Scherrer in the property. By virtue of such conveyance Wise claims to be the owner of Scherrer's interest in the land, except such parts as have been sold. Eggmann transferred his certificate to different persons, and H. B. Collins, a certificate hold widow, Edwards Whitaker, and the St. Louis Union Trust Company as trustees. The Illinois State Trust Company desires to be relieved of its trust, and it has been mutually agreed between the trustee and the owners of more than three-fifths of the equitable interests in the property that a bill for partition should be filed. The answer of Charles P. Wise admits the recovery of the judgment in his favor against Scherrer for $2,760.07, and the levy, sale, and issuance of the sheriff's deed, as alleged in the bill, and claims that he (Wise) is the owner of the 10/55 interest which Scherrer had in the property, except the parts conveyed since he obtained his deed. The amended answer of Scherrer denied that he acted as agent for the original owner of the land, or that he had any contract for commissions for making a sale of the property; avers that under the deed of trust his sole interest, and that of the complainants other than the trustee, is personal property and not land, and that partition will not lie and ought not to be granted because it would be contrary to the intention of the parties and in contravention of the deed of trust; denies that Wise claims to be the owner of the interest of Scherrer in the trust property; avers that his (Scherrer's) interest was always of so equitable and personal a char (145 N.E.) readily conveyed, and the interest of each beneficiary was represented by a certificate easily transferable. Kraft took title to the property at the request of the purchasers, and by their consent conveyed it to the Illinois State Trust Company in trust. He sets forth, in the instrument creating the trust, that it is his object and intention that the title to the property shall be vested in the trustee in fee simple, and that he has no title to or any interest in the property, but only in the rents and the proceeds of sales. The rents to be derived from, and the proceeds of sales of the property are divided into 55 equal parts, originally represented by 5 acter that it was incapable of being levied | erty was kept intact, any parcel sold was upon or seized by virtue of an execution issued upon a judgment at law; avers that pursuant to an agreement dated August 11, 1917, Scherrer assigned to Wise, as trustee, his 10/55 interest in the proceeds of the sale of the trust property to insure the payment, first, to Wise of the money due him, with interest; second, to Wise of his expenses in the transaction; third, of a note held by Margaret McNulty; and fourth, of the residue to Scherrer, and that, after payment of the amount due him, Wise agreed to satisfy the judgment and to execute the deeds and assignments that might be necessary; denies that the trustee is desirous of being relieved of its trust and that the owners of three-certificates of interest to evidence the refifths of the equitable interests in the proceeds of sale have any right to control the conduct of the trustee; and avers that the real purpose of the complainants, other than the trustee, is, by an early sale of the prop-pressly declares that they are made personal erty to deprive him of any interest therein by causing its sale as an integer, which will require for its purchase so large a sum of money as to render him incapable of participating in the bidding at the sale in partition, Prosper J. Soucy in his answer denies that the complainants have any interest in the trust property subject to partition, or that the sheriff made any levy upon any interest therein pursuant to the judgment in the case of Wise v. Scherrer, or that by virtue of any execution or levy any interest in the trust property was sold or conveyed to Wise. The complainants filed exceptions to those portions of the answer of the defendant Scherrer which denied the right of partition. These exceptions were overruled by the court and the complainants elected to stand by their exceptions. The court thereupon dismissed the bill for want of equity. This appeal followed. No replication was filed to any of the answers. Both parties to this suit agree that the only question at issue is whether the property involved is subject to partition. spective contributions to the cash payment made on account of the purchase price of the property. These certificates were delivered to the purchasers, and the deed of trust ex property, and that the several interests are fully and entirely represented by the certificates. The form of the certificate is set forth in the deed of trust, and recites that the holder is entitled to his proportion of the proceeds of the sale of certain real estate, and not of the real estate itself; that upon the surrender of a certificate, properly assigned, a new certificate, or certificates for the same interest, will be issued in lieu thereof, and that the certificates, whether issued originally or subsequently to take the place of canceled certificates, are subject to the terms and conditions of the deed of trust. The trustee appointed Kraft as agent to care for the property, but it has, in its discretion, the power to remove him and to appoint another. It can, without the consent of the certificate holders, take such action as it may deem proper for the preservation of the property, and to enable it more effectually to carry out the intent of the instrument creating the trust, and it is authorized, if any certificate holder fails to pay his share of the carrying charges, to advance the money necessary therefor, in which case the adThe purchase of the property was a joint vancement, with interest, will become a prior adventure, undertaken by the parties for the lien upon the share of the defaulting certifiprofits which they expected to realize from cate holder in the proceeds of any sale of the sale of the land in smaller parcels. To trust property, and not upon any part of the accomplish their purpose it was advanta- property itself. The trustee is required to geous, if not necessary, to avoid questions make conveyances whenever thereunto directwhich might grow out of a proper or equita-ed by the owners of two-thirds of the interble division of the land among the purchas-ests in the proceeds of sale, and the form of ers, as well as complications which might such authorization recites that the holders arise from litigation, or from death if the “desiring to obtain our respective interests parties participating in the venture took in the proceeds of the sale" of a certain parcel and retained the title to the land in their own of land (describing it) request its sale and names. In addition to these considerations, conveyance by the trustee. The certificates the extent and nature of the property, the of interest are made transferable by assigndisproportionate contributions to the investment. In the event of any sale, the order of ment, and the necessity of facility in making distribution of the proceeds by the trustee is conveyances all contributed to the creation of specified, and after provision is made for its the trust. By means of the trust the prop-compensation, the payment of taxes, liens, in |