(145 N.E.)

with the proviso omitted; but in the Crane | Case the instruction ended with this sentence: "This is the offense charged in the first count of the indictment." The reason for holding the instruction bad in the Crane Case was because of the last sentence in the

instruction. The statute now under consideration provides for two different offenses in the first part of the act, which are, in substance, the taking and attempting to take immoral, improper, or indecent liberties with a child of either sex under the age of 15 years, with the intent aforesaid. The section also includes other charges or crimes, and it was serious error in the Crane Case to inform the jury that they were to understand that any one of the crimes named in the statute was charged in the first count of the indictment. There is no such language in the instruction with which we are now dealing. It was error to give the instruction that was given in this case. Only the part of the statute pertaining to the crime charged in the indictment should have been quoted or given in this instruction, but we regard it as harmless, because in this case the defendant was proved guilty of the completed crime of taking indecent liberties, etc. In the Crane Case it was matter of seriousness to tell the jury that the defendant would be guilty of taking indecent liberties, etc., if the evidence should show that he only attempted to take such indecent liberties and in that attempt was thwarted. The punishment for all of the offenses described in the statute is one and the same, but they are not the same crime. The crime charged in this case was proved. The instruction, therefore, in this case contained mere surplusage, which had no effect to prejudice the rights of the defendant.

The judgment of the criminal court is affirmed.

Judgment affirmed.

(314 I11. 226)

BAKER et al. v. SALZENSTEIN et al. (No. 14716.)

(Supreme Court of Illinois. Oct. 20, 1924. Petition for Rehearing Stricken Dec. 3, 1924.)

1. Homestead 96-Purchaser in possession not entitled to homestead as against vendor. An occupant of land under a contract of purchase is not entitled to a homestead as against his vendor.

2. Homestead 96-Purchasers in possession not entitled to homestead as against pledgee of contract following pledgee's payment of balance due under contract following vendor's declaration of forfeiture.

Where purchasers in possession of land assigned the contract to a bank to secure the

payment of a loan, and the bank, on vendor's declaration of forfeiture, purchased the property by payment of the balance due under the contract, the purchasers were not entitled to a homestead as against the bank, since the bank, on protecting its rights, stood in the place of the vendor.

3. Subrogation 22-One who is compelled to pay purchase money to protect his rights stands in place of vendor.

One who is compelled to pay all the purchase money to protect his rights under the contract of purchase stands in the place of the vendor.

4. Pledges 51-Failure to require purchaser's assignee to foreclose on theory that assignment constituted a mortgage held imma. terial in view of decree giving purchasers opportunity to redeem.

Where purchasers' assignment of contract complied with Conveyance Act, § 1, and was executed for a valuable consideration, but was made as security for a note. and where the assignee purchased the land from vendor on vendor's declaration of forfeiture prior to maturity the contract, the failure of the court in an acof note. by payment of the balance due under tion involving the rights of the parties to require the assignee to foreclose on theory that the assignment was in effect a mortgage held immaterial, in view of decree giving purchasers an opportunity to redeem, thereby treating it as a pledge.

5. Payment 16(1)-Execution of note in place of existing obligation does not satisfy obligation unless made and accepted as payment.

The giving of a note in the place of an existing obligation does not of itself operate as a satisfaction of the original obligation unless made and accepted as payment thereof.

6. Vendor and purchaser 180-Whether note was accepted as payment of installment held question of fact depending on intention of parties.

Whether plaintiff's note to vendor was given and accepted as payment of installment held a question of fact depending upon the intention of the parties.

7. Vendor and purchaser 93-Nonpayment of note accepted in payment of installment not ground for forfeiture of rights under contract.

Where purchaser's note is made and accepted by vendor as payment of installment, the original obligation is satisfied, and the vendor cannot declare a forfeiture for purchaser's failure to pay note when due.

8. Vendor and purchaser

93-Cancellation of note accepted in payment of installment would entitle vendor to declare forfeiture for nonpayment of installments.

Where purchaser's note was accepted by vendor in payment of installment due under contract, the subsequent cancellation of the note did not entitle vendor to declare a forfeiture for nonpayment of installments.

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9. Vendor and purchaser 180-Vendor's re-rectly in controversy, but as to all matters ceipt held to show acceptance of note in pay- germane thereto, though some rights may be ment of installments. legal.

Under this contract Harry and Frank Baker, together with their families, took possession of the premises and farmed the same thereafter. It appears that the Bakers were at times in arrears with the payments provided for in the contract, and that the same were made by special arrangements by giving notes to the vendor. From time to time after making the contract Harry Baker borrowed money from the defendant in error the Commercial Trust & Savings Bank of Springfield, which loans by the month of June, 1921, amounted to $8,500. On the 9th day of that month he was desirous of securing a further loan of $5,500. The bank declined to advance the additional sum without addi

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(145 N.E.)

signed the contract to the bank as security for such loan, and that the unpaid sums on the contract, with the loan, amounted to the sum of $22,120.15. The decree directed that, unless the plaintiffs in error, or some one or more of them, pay said sum on a short day therein fixed by the court, the trustee of the bank should be put into immediate possession, and that in case they did make such payments they should have the right to continue the future payments under the contract to the bank as holder of the legal title by reason of the conveyance from the original vendor. Plaintiffs in error prayed an appeal, which was allowed on filing a bond in the sum of $30,000. Failing to file such bond within the time decreed by the court, they bring the cause here by writ of error.

Plaintiffs in error, aside from their contention that the vendor did not have the right of forfeiture when he attempted to declare the same, nor at the time they filed their bill (which contentions will be hereinafter considered), also urge that it was unnecessary for the defendant in error bank to pay the vendor, Smith, the whole of the unpaid purchase price in order to protect itself under the assignment. The chancellor found, as a matter of fact, that such purchase was necessary, and his finding appears to be supported by the record.

tional security for the same and the amount [ plaintiffs in error by valid conveyance asalready borrowed. Harry Baker then represented to the bank that he had an interest in the land in question, and offered to assign his contract and his right in the land for the purpose of securing the amounts advanced and the loan then sought. He also offered to give a chattel mortgage on his growing crops, farm machinery, and live stock. This loan of $14,000 was effected by the bank taking his note for $14,000 secured by a chattel mortgage dated June 10, 1921, and due one year after date, and on the 18th day of June Harry Baker and Kate Baker executed an assignment of their rights under the contract of purchase. This the record shows was as a further security for the loan of $14,000. On presentation of the contract entered into by Harry Baker and his father, Frank Baker, as vendees, it was discovered that Frank Baker had assigned all interest which he had in the contract to Kate Baker, his wife. For this reason she signed the assignment of the contract to the bank. It also appears that in March, 1921, the payment under the contract, amounting to $3,000, was not paid when due. There were also interest and other charges, amounting to $2,442, which were unpaid, and on April 23, 1921, Harry Baker paid $3,000 and gave his note to the vendor for the sum of $2,442. This note was due in 60 days, but was not paid, and on November 1, 1921, the vendor served notice that he had elected to declare the contract forfeited for failure to make the payments due on March 1, 1921, and demanded possession of the premises on January 1, 1922. The vendor thereafter sold the premises to the de-er or the wife of Harry Baker. An occupant fendant in error bank and conveyed the same by quitclaim deed for the balance due and unpaid on the contract and on said $2,442 note, amounting to $37,213.85. This sum was paid by the bank, the deed being executed to Emanuel Salzenstein as trustee for the bank. Previous to notice of forfeiture of the contract by the vendor, Frank and Harry Baker, in October, 1921, filed their voluntary petitions in bankruptcy in the federal court and were adjudged bankrupts. They remained, however, in possession of this farm until the proceedings to evict them by forcible entry and detainer were started. On February 20, 1922, the day before the hearing on the forcible entry and detainer suit, they filed a bill in this case for injunction. Salzenstein, as trustee, filed his answer thereto, and also his cross-bill, praying that the whole proceedings be passed upon and the rights of the parties be adjudicated with reference to the possession of the premises, and praying immediate possession thereof. The issues were made up and the cause heard by the chancellor in open court, who rendered a decree reciting findings of fact, and holding that Salzenstein, as trustee, was owner of the premises; that the plaintiffs in error were indebted to the defendant in error bank in the sum of $14,000, money loaned and due; that the

[1-3] Plaintiffs in error contend that the assignment was not valid for the reason that they had a homestead interest in the land which was not assigned, as the assignment was not signed by the husband of Kate Bak

of land under a contract of purchase is not entitled to homestead as against his vendor. Stafford v. Woods, 144 Ill. 203, 33 N. E. 539; Watson v Saxer, 102 Ill. 585; Allen v. Hawley, 66 Ill. 164; Hurd's Rev. St. 1921, c. 52, § 3.

Plaintiffs in error concede this to be true so far as the original vendor is concerned, but contend that trustee Salzenstein does not stand in the same relation to the contract. The rule is that any one who is compelled to pay all the purchase money to protect his rights under the contract of purchase stands in the place of the vendor. Blue v. Blue, 38 Ill. 9, 87 Am. Dec. 267.

[4] It is also urged that the assignment of plaintiffs in error to the bank was not valid as an assignment, but as a mortgage, and that the bank should have proceeded to foreclose the mortgage. While the assignment in question complies with section 1 of the Conveyance Act (Hurd's Rev. St. 1921, c. 30, § 1), and was executed for a valuable consideration, it was, as the record shows, executed and delivered as a security for the payment of the note, which was not due by its terms at the time of the purchase of the vendor's interest by the bank. The court, however, gave the assignors opportunity to redeem this contract, thereby treating it as a pledge.

[5-7] Plaintiffs in error make the further

The language for which the note is given, "to satisfy installment due March 1, 1921, and prior year," is clear and unambiguous, and plainly shows the intention to accept the note in payment of the amount due under the contract. This being true, the cancellation of the note could not reinstate the claim for amount due March 1, 1921, as an unpaid installment under the contract. The vendor therefore had no right, at the time he de

of the filing of the bill herein, no installment having in the meantime become due, plaintiffs in error were entitled to the injunction prayed.

contention that the note for $2,442 given to the vendor, Smith, was, with the payment of the $3,000 made on April 23, 1921. a payment in full of all charges due on the contract up to March 1, 1921, including interest, and that when the vendor served notice that he had elected to forfeit the contract for failure to make the payment due on March 1, 1921, and demanded possession, he was wholly without right to declare the contract forfeited; that the note was given and accept-clared a forfeiture, to do so, and at the time ed as a discharge of the March 1, 1921, payment; that since the forfeiture was attempted prior to the accruing of another payment on the contract it was declared without right; and that, as the bill in this case was filed on February 19, 1922, no further payments had become due, and plaintiffs in error at the time of the filing of the bill were entitled to the relief prayed. The rule in this state is that the giving of a promissory note in the place of an already existing obligation does not, of itself, operate as a satisfaction of the original obligation unless it is made and accepted as payment thereof. Whether or not it was so given and accepted is a question of fact which depends upon the intention of the parties. Boulter v Joliet Nat. Bank, 295 Ill. 594, 129 N. E. 513. If such note is made and accepted for such purpose, the former obligation is satisfied. Belleville Savings Bank v. Bornman, 124 Ill. 200, 16 N. E. 210; Jansen v. Grimshaw, 125 Пl. 468, 17 N E. 850.

It is not denied that the note for $2,442 was not paid when due, but it is contended that that fact did not give the vendor a right to declare a forfeiture. If the note was made

and accepted as payment of the sum due March 1, 1921, under the terms of the contract, this is true. That question was a ques

tion of fact.

[8, 9] Defendants in error argue that there was no intention on the part of the vendor to accept the note in payment of the amount due under the contract, and that this is shown by the fact that the note of April 23,

1921, was canceled. Whether or not the note was, after its delivery and acceptance, canceled is not material in determining the question as to how and for what purpose it was made and accepted.

The record shows that on April 23, when the note was executed and the sum of $3,000 cash was paid, the vendor executed and delivered the following receipt:

"April 23, 1921.

"Received of Harry Baker $3,000, to apply on contract dated Oct. 25, 1917, for purchase of land in Talkington township, balance of past installments now past due, with interest thereon, $2,442, for which note is given to satisfy installment due March 1, 1921, and prior year."

It seems clear from the language of this receipt that it was the purpose of the vendor to accept the note in payment of the amount due on March 1, 1921, under the contract.

[10] While in a suit at law the rights of the parties are determined as of the time of the beginning of the suit, a decree in chancery is a determination of the rights of the parties to the suit according to equity and good conscience, and where relief is granted by a decree in equity it is such as the nature of the case, the law and the facts demand, not at the time of the inception of the litigation but at the time the decree is entered therein. Superior Oil & Gas Co. v. Mehlin, 25 Okl. 809, 108 Pac. 545, 138 Am. St. Rep. 942; Randel v. Brown, 43 U. S. (2 How.) 406, 11 L. Ed. 318; Peck v. Goodberlett, 109 N. Y. 180, 16 N. E. 350; 10 R. C. L. 559. The decree in this case was entered April 17, 1922. By the contract in evidence a payment of $3,000, with interest upon deferred payments, amounting to $1,625, became due March 1, 1922, which payment had not been made at the time of the rendition of the decree.

[11, 12] It is the doctrine of equity that where there is any ground of equity jurisdiction, a court of equity having acquired equitable jurisdiction to grant equitable relief will retain the case to do complete justice between the parties. Miller v. Rowan, 251 Ill. 344, 96 N. E. 285; McIntyre v. McIntyre, 287 Ill. 544, 122 N. E. 824. It was complete justice between the parties, to retherefore proper for the court, in order to do quire plaintiffs in error, in accordance with the defendants in error's cross-bill, within a short day fixed by the court, to pay to defendants in error any amounts due and unpaid upon the contract of purchase - by plaintiff in error at the time of the rendition of the decree, and such amount, if any, as was then due from plaintiffs in error to defendants in error by reason of the assignment from plaintiffs in error to defendants in error within a time found by the court, and to decree that in default of such payment all plaintiffs in error's right, title, and interest under the terms of such contract should in equity be forfeited and the legal and equitable title to the real estate declared vested in Salzenstein as trustee, he being vested with all the rights which Smith originally had under the contract of October 25, 1917.

(145 N.E.)

county, with directions to enter a decree requiring plaintiffs in error to pay to or for the use of the Commercial Trust & Savings Bank of Springfield such sum as such court may find to be due from plaintiffs in error, if any, by virtue of the contract of purchase from Smith, and also directing plaintiff in error Harry Baker to pay such sum, if any, as may be found due by virtue of the indebtedness secured by the assignment from plaintiffs in error to Salzenstein within a short day to be fixed by the court, and that in the event of the failure to so pay said sum of money within the time fixed by the court, all their right, title, and interest under the terms of the vendor's contract be in equity forfeited, and the legal and equitable title to said real estate declared to be vested in the holder of the legal title, Salzenstein, in trust for the use and benefit of the Commercial Trust & Savings Bank of Springfield, and, if in the meantime plaintiffs in error have been dispossessed of said premises, that they be restored to the possession thereof upon making such payments, and that the court enter a money decree in favor of Salzenstein, for the use and benefit of the bank, for the amount, if any, found due upon the $2,442 note, with award of ex

[13] The court included in the amount | manded to the circuit court of Sangamon which it required plaintiffs in error to pay to defendants in error the amount of the note payable to the Commercial Trust & Savings Bank of Springfield, to secure which the assignment was made, which note, according to the evidence, was not then due. At the time of such assignment of the premises possession was not delivered by plaintiffs in error, nor by the terms of the contract were they under any obligation to deliver up possession of such premises prior to default in paying the note after it became due, and the court should not have included the amount of such note, prior to its becoming due, in the amount which it required plaintiffs in error to pay to redeem the premises. [14] The court also included in the amount required for redemption the amount of the note for $2,442 and interest, heretofore mentioned. As we have seen, this note was not a note given in pursuance of the contract of purchase for the real estate, but was a note given as a payment upon such contract price. It was not secured by a vendor's lien, nor was it in any other manner a lien upon the premises in question, and should not have been included in the amount required for redemption by the decree. While at the time of the transfer of the premises from Smith to Salzenstein this note for $2,442 was not assigned by Smith to Salzenstein, but was by Smith marked canceled, and it remained in his possession up to the time of the trial, the evidence shows that the amount of this note and interest were included in the amount paid to Smith, and that it was the intention of the parties that all claims which Smith had against

ecution therefor.

Reversed and remanded, with directions.

FARMER, J., dissents.

(314 III. 213)

BALEY v. STRAHAN et al. (No. 15911.)

(Supreme Court of Illinois. Oct. 28, 1924. Rehearing Denied Dec. 4, 1924.)

plaintiffs in error should be included in the
purchase. Salzenstein, as trustee for the
bank, therefore became the equitable owner
of the note in question, and the note, al-I.
though not directly involved therein, was a
matter germane to the litigation; and it is
likewise a well-known rule that when a

court of equity acquires jurisdiction for
one purpose it acquires it for all purposes,
and will do full and complete justice between
all the parties and determine all their rights,
not only with reference to the matters di-
rectly in controversy, but as to all matters
germane thereto. It makes no difference
that some of these rights may be in the na-
ture of legal rights which otherwise could
not be enforced outside of a court of law.
Wehrheim v. Smith, 226 Ill. 346, 80 N. E.
908; 10 R. C. L. 370. While defendants in
error were not entitled to have the amount
of this note included in the amount required
for redemption, they were entitled in this
action to a money decree for the same, with

award of execution.

For the errors indicated the decree of the circuit court is reversed, and the cause re

Wills 470-Intent in any particular provision, as ascertained from whole will, given effect, if legally possible.

Court will consider will and all its parts in relation to each other, to ascertain testator's fect to such intent, if possible, consistently intent in any particular provision, and give ef

with law.

2. Remainders 42-Particular estate and remainder may vest at same time and subsist together.

Term "remainder" is relative, and implies prior disposition of some part of estate, but particular estate and remainder constitute one whole, are carved out of same inheritance, and may both vest at same time and subsist together.

3. Wills 634(16)-Effect of condition precedent and condition subsequent stated.

If condition to which estate in remainder

is subject is subsequent, estate vests immediately, subject to be divested by happening of condition; but, if precedent, remainder cannot vest until contingency has happened.

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