(317 ill. 184)

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Since there was no valid ordinance au-6. Judgment Om785(2)-Judgment creditor's thorizing the improvement, it is unnecessary rights, with notice, attach only to debtor's into consider the other objections made to the

terest. confirmation. Village of Bellwood v. Latrobe Judgment creditor's rights, where he has Steel & Coupler Co., 238 Ill. 52, 87 N. E. 66. notice, attach only to property interest of judgThe judgment of the county court is re

ment debtor in property. versed.

Thompson, J., dissenting.
Judgment reversed.

Appeal from Circuit Court, Peoria County ;
Charles V. Miles, Judge.

Bill by the Union Bank of Chicago, in aid

of judgments, against Frank E. Gallup and UNION BANK OF CHICAGO V. GALLUP

others. Decree for complainant, and defendet al. (No. 16480.)

ants appeal. Reversed in part and remand

ed, with directions. (Supreme Court of Illinois. April 24, 1925.

Van Natta & King, of Chicago, for appelRehearing Denied with Modification

lants. June 9, 1925.)

Church, Haft & Robertson, of Chicago, and 1. Appeal and error Om 1022(1)-Findings of

Kirk & Shurtleff, of Peoria, for appellee. master adopted by chancellor are not binding on reviewing court.

STONE, J. The appellee filed its bill in Findings of master adopted by chancellor, the circuit court of Peoria county in aid of while prima facie correct, are of advisory na two certain judgments procured on February ture only, and all facts are open for considera- 10, 1920, against the appellant Frank E. tion in first instance by trial court and on ap- Gallup, each by confession, on judgment peal by reviewing court.

notes dated May 31, 1919. One judgment

was for $3,016.67 and the other for $3,225. 2. Vendor and purchaser Omw 232(1)-Posses.

sion of third person constructive notice to The bill alleges that Frank E. Gallup was purchaser of possessor's rights.

the owner of 160 acres of land in Peoria Where one purchases land of another, of section 18, township 11 north, range 8,

county, described as the northeast quarter which is at time of purchase in actual, open, exclusive, and visible possession of a third east of the fourth principal meridian, experson, such possession is constructive notice cepting therefrom the right of way of the to purchaser of possessor's rights at time of Atchison, Topeka & Santa Fé Railway Compurchase.

pany, which crosses this land east and west,

near the middle of the tract; that on the 3. Judgment Em785(2) - Judgment creditor 21st of January, 1920, prior to the entry of

stands in relation of subsequent purchaser, the judgments, Frank E. Gallup fraudulentas respects notice of third person's rights.

ly conveyed this property to his son, Frank Judgment creditor stands in relation of a S. Gallup, for the purpose of defrauding his subsequent purchaser, as far as notice of rights creditors and preventing a levy on and sale of third person in actual and visible possession of such real estate to satisfy executions isof land of another is concerned.

sued on these judgments. The bill prays

that the deed, so far as the complainant is 4. Judgment Cww785(2)-Vendor and purchaser

m232(2)—Second party's possession not no-concerned, be set aside and declared null tice to purchasers or judgment creditors, and void, and that the complainant be auwhere record owner also in possession.

thorized to proceed to sell the land under Possession of second party is not notice levy and execution. The defendants to the to purchasers or judgment creditors of rights bill answered, and the cause was referred which he claims in premises, where record own

to the master in chancery, who heard the er is also in possession, but, to constitute no evidence and reported. His conclusions were tice, must be exclusive and unequivocal. that the deed from Frank E. Gallup of Jan

uary 21, 1920, to Frank S. Gallup, was a 5. Judgment ww785(2)-Possession of pur- fraud upon creditors, and he recommended

chaser held sufficient to put subsequent judge the same be set aside. The chancellor overment creditor of record owner on inquiry as

ruled exceptions to the master's report and to his rights.

entered a decree in accordance with the Possession under contract of purchase, al recommendations therein. leged to be fraudulent as to creditors, held suf

The appellants defended against the bill, ficient to put subsequent judgment creditor of record owner on inquiry as to his rights, though

on the ground that on February 25, 1919, prior to contract he had been a tenant of record prior to the making of the notes upon which owner, where thereafter bis possession was

the judgments herein were based, Frank E. exclusive; it being immaterial whether record Gallup by a written contract sold the north owner claimed to own property.

80 of this 160 acres of land, which is the

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Feoria arter

(148 N.E.)
tract north of the railroad, to Frank S. , while in cases where witnesses are produced
Gallup for $200 per acre. The provisions and examined in open court, the finding of
of that contract were that Frank S. was to the court will not be disturbed, unless it is
pay the sum of $4,000 to his father on or be manifestly and clearly against the weight of
fore July 1, 1919, and was to assume and the evidence, such is not the rule as to find-
pay off a $11,000 mortgage covering the en- ings of a master in chancery; that in any
tire farm. The contract also provided that, case the facts are found by the court, and,
when these payments, and the $1,000 balance while the master's report is prima facie cor-
on the purchase price, were paid, a deed rect, it is of an advisory nature only; that
should be delivered. As to the south tract, all facts are open for consideration, in the
amounting to approximately 67 acres, the de- first instance by the trial court, and in case
fense was that, a short time after the mak- of appeal, by the reviewing court; that,
ing of the written contract, an oral contract without regard to the finding of the master
was entered into between the parties by upon any particular question of fact, the
which Frank S. was to take over the bal- ultimate and final question in this court is,
ance of the farm at same price per acre. Was the decree rendered by the chancellor

The appellants urge here, first, that the the proper one under the law and the evi-
possession of Frank S. Gallup, under the dence?
written and oral contracts with his father, In considering the record in this case, the
was sufficient to put the appellee on inquiry evidence is naturally divided into two parts:
as to his rights under his contracts as to That relating to the written contract for the
both the north and south tracts. They fur- | north 80 of this farm, and that relating to
ther claim that the evidence shows complete the oral contract for the sale of the south
payment of the contract price prior to the 67 acres.
making of the deed on January 21, 1920. It is undisputed that Frank S. Gallup had

The undisputed evidence is that Chauncey been a tenant on the north 80 of this land
Gallup, father of Frank E. and grandfather for a number of years prior to making the
of Frank S. Gallup, at one time owned this written contract and since that time has
land. Upon his death the land became the farmed all of it. It appears from the evi-
property of Frank E. Gallup and Hattie E. dence that in 1918 his father, Frank E.,
White, his sister. About the time of the had a sale and disposed of his farm imple-
making of the written contract of sale be- ments and equipment, and that, since that
tween Frank S. and his father, Frank E., time, he has not farmed any portion of the
the latter purchased the rights of Hattie E. premises. It is also shown that there is a
White in the land, and it was for this pur- house on each of these two tracts of land;
pose that the mortgage of $11,000 was plac-one on the 80 acres north of the railroad,
ed upon the farm. There is no controversy where Frank S. has lived for a number of
as to the bona fides of the written contract, years, and the other on the southeast cor-
nor can there be, as the same was entered ner of the 67-acre tract south of the rail-
into nearly three months before the making road, in which Frank E. has lived for a num-
of the notes on which the judgments in ber of years, with the exception of one year
question were based. It is also conceded when he resided in Peoria. The testimony
that Frank S. paid some money to Frank E., of neighbors shows that, for a portion of the
but it is urged that the cross-examination of time in which Frank S. lived on the north
the appellants shows that their story as to 80 and his father on the 67-acre tract, the
the payment of the purchase price of the former farmed the north part and the lat-
land by Frank S. to his father is untrue, and ter the south part. The witness Frank
that it, in fact, appears from such evidence Burns testified that he worked for both
that the deed was fraudulent. The master Frank S. and Frank E. Gallup; that the
so found.

former lived on the north side of the rail[1] The appellee urges that the master hav- road and the latter on the south side; that ing seen and heard the witnesses, and his the former paid the witness for work done conclusions having been adopted by the chan- by him on the north side of the railroad and cellor, this court is bound by them, unless the latter for his work on the south side; such conclusions are clearly against the that in the fall of 1919 Frank S. had corn weight of the evidence. Numerous cases are on both sides of the track. cited in support of this proposition. It was, [2, 3] The appellants contend that the poshowever, held in Chechik v. Koletsky, 311 session of Frank S. Gallup was notice to the III. 433, 143 N. E. 66, 33 A. L. R. 742, that, appellee of his rights, while the appellee while such has been stated to be the rule argues that Frank S. having been in posin certain cases there cited, that rule is not session as tenant, his possession was that the law, and the opinion cites with approval merely of Frank E. The rule is that, where Corbly v. Corbly, 280 I11. 278, 117 N. E. 393; one purchases land of another which is at Kelly v. Fahrney, 242 Ill. 240, 89 N. E. 984; the time of the purchase in the actual, open, and Fairbury Agricultural Board v. Holly, exclusive, and visible possession of a third 169 III. 9, 48 N. E. 149, where it is held that, person, such possession is constructive no

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tice to the purchaser of all the rights what- , $11,000 mortgage, has been paid. It is eviever of the possessor of the land at the time dent from checks and canceled notes introof the purchase. Mauvaisterre Drainage duced in evidence, which the undisputed tesDistrict v. Frank, 313 Ill. 431, 145 N. E. 131; timony of both Frank S. and Frank E. shows Carr v. Brennan, 166 Ill. 108, 47 N. E. 721, were paid by the former, that a considerable 57 Am. St. Rep. 119; Farmers' Nat. Bank sum of money was paid by Frank S. to his v. Sperling, 113 Ill. 273; Coari v. Olsen, 91 father. His father says it is all paid, and, Ill. 273; 2 Sugden on Vendors (8th Am. Ed.) while the evidence does not, in our opinion, 343. A judgment creditor stands in the re show that this is true as to all of the land, lation of a subsequent purchaser, so far as it is evident from the corroborated statenotice is concerned. German-American Bankments of Frank S. and Frank E. that an v. Martin, 277 Ill. 629, 115 N. E. 721.

amount equal to the balance of the purchase [4-6] The evidence shows that Frank s. price of the north 80 acres of land over and Gallup was a tenant of his father, so far as above the mortgage of $11,000 on the whole concerns the south 67 acres of the land, up farm has been paid. We are of the opinion, to the time of the oral contract, if there was therefore, that, as to the north 80 acres of one, and that his father was likewise living this farm, the chancellor erred in setting on those premises. Frank S., therefore, could aside the deed of January 21, 1920. As to not be said to have had exclusive possession the south 67 acres, however, the case of of the south 67 acres of this land at the Frank S. is by no means so strong. His time the judgments were entered. Where father is shown to be in possession of this the record owner of property is in possession south 67 acres and living on it. While not and a second party is likewise in possession, actively engaged in farming at the time the the possession of the latter is not notice to notes were made and the judgments thereon purchasers or judgment creditors of rights entered, he was living there, and, with the which he may claim in the premises, but his exception noted, had been doing so for a numpossession, in order to be such notice, must ber of years. The evidence shows that, after be exclusive and unequivocal. Gray v. Lamb, the making of these notes, checks were given 207 Ill. 258, 69 N. E. 794; Stone v. Cook, 79 to him by different grain dealers as the Ill. 424. So far as the north 80 is concerned, purchase price of grain, and, while it is conhowever, it is evident, from the existence tended by the appellants that these payof the written contract entered into between ments for grain were made to him at the diFrank S. and his father, that thereafter the rection of Frank S, as part payment of the possession of Frank S. was not that of tenant land purchased, we are not convinced that of his father, but was exclusive possession the evidence so shows. under his contract of purchase. We are of We are of the opinion that exclusive possesthe opinion, therefore, that such possession sion of the south tract is not shown to have of the north 80 acres of this farm on the been in Frank S., and that his possession, part of Frank S. was notice of his rights un- therefore, was not notice to judgment credider his contract, sufficient to put a subse-tors of his claims in the land; nor do we quent purchaser or judgment creditor on in- think that the evidence shows that payment quiry as to what his rights actually were. of the purchase price of the south tract is Certainly, with such notice, a judgment cred- shown to have been completed. His alleged itor could not sell under execution any por- oral contract for the purchase of that tract tion of this farm which Frank E. would have must therefore be held to be subject to the no right to sell, had no judgments existed. lien of these judgments. The chancellor was In other words, a judgment creditor's rights, therefore right in setting the deed aside, so where he has notice, attach only to the prop- far as it affected the south 67 acres of land. erty interest of the judgment debtor in the The decree will be affirmed in part and reproperty, and, under this written contract, versed in part, and the cause remanded, with it is clear that the elder Gallup would have directions to enter a decree setting aside the had no right to dispose of the 80-acre tract deed of January 21, 1920, as to that porof this farm, and whether he claimed to tion of the farm lying south of the railroad, own it or not does not affect the validity of as against appellee's judgment. his contract of sale to his son, Frank S. Reversed in part and remanded, with di

The testimony of both Frank S. and Frankrections. E. Gallup is that the entire purchase price of both these tracts of land, aside from the THOMPSON, J., dissenting.


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(148 N.E.) (317 III. 197)

8. Statutes em 77 (4)-Prohibition Act not spe. STATE v. ZIMMERMAN. (No. 16529.)

cial legislation in violation of Constitution. (Supreme Court of Illinois. April 24, 1925. Prohibition Act held not special legislation, Rehearing Denied June 9, 1925.) violative of constitutional rights, as it applies

to whole class who maintain nuisances of char1. Intoxicating liquors Om 258–Proceeding to acter defined. restrain main nance of liquor nuisance is not criminal.

9. Intoxicating liquors Om 274–Bill to enjoin Proceeding to restrain maintenance of liq liquor nuisance, sufficient. uor nuisance under Prohibition Act, is not

Bill to enjoin liqdor nuisance, under Prohicriminal proceeding, so as to be governed by bition Act, as defined in section 21 as place Const. art. 6, § 33, requiring that it be carried where intoxicating liquor, defined in section 2, on in name and by authority of people of the is manufactured, sold, kept, or bartered, parstate and concluded against their peace and ticularly describing property on which nuisance dignity.

existed, stating its public and common charac. 2. Jury w 13(21)-Punishment for contempt ter, and maintenance by accused, held sufficient. without jury trial held not violative of Constitution.

10. Intoxicating liquors w279 Petition,

charging contempt in violation of injunction Punishment for contempt for violation of

to restrain liquor nuisance, sufficient.
injunction against maintaining liquor nuisance,
under Prohibition Act, § 25, without trial by

Petition, charging contempt for violation of jury, held not violative of Const. III. art. 2, så injunction against liquor nuisance, which stated 5 and 9, and Const. U. S. Amends. 5 and 6, issuance of preliminary injunction, service of guaranteeing right to trial by jury.

writ on accused, and his acts in violation of in

junction, held sufficient. 3. Intoxicating liquors am 279—Contempt order held not void for failure to fix beginning and 1. Intoxicating liquors En 279 Jurisdiction termination of imprisonment.

over accused in contempt proceedings, ob

tained without issue of warrant for arrest. In contempt proceedings for violation of injunction against maintaining liquor nuisance, In contempt proceedings for violation of inorder adjudging defendant guilty and fixing im- junction against liquor nuisance, where tempoprisonment for 90 days held valid as against rary injunction writ was personally served on contention that it failed to fix beginning and accused, hearing as to making it permanent was termination of imprisonment.

postponed on his motion, and citation issues

upon petition in contempt proceeding was per4. Intoxicating liquors en 6-General Assem-sonally served, the hearing in which was post

bly has power to declare violation of liq: poned on his motion, and where he finally apuor law nuisance and at same time provide peared in person, producing witness and testifor indictment of offender.

fying in his own behalf, court had jurisdiction General Assembly has power to declare of his person without issuance of warrant for that any place maintained for violation of lig- arrest. uor law shall be common nuisance and abated, and at same time provide for indictment and trial of offender.

Error to Circuit Court, Lake County ;

Claire C. Edwards, Judge.
5. Constitutional law e305-Jurisdiction to
abate liquor nuisance consistent with due pro-

Martin Zimmerman was adjudged guilty cess of law.

of contempt, and he brings error, Affirmed. Equity jurisdiction to abate places main

James G. Welch, of Waukegan (E. V. Ortained in violation of liquor laws, as nuisances, vis, of Waukegan, of counsel), for plaintiff is consistent with due process of law.

in error. 6. Contempt Om61(3) - Punishment for con

Oscar E. Carlstrom, Atty. Gen., Ashbel V. tempt may be sustained irrespective of wheth- Smith, State's Atty., of Waukegan, Virgil Lo er imposed pursuant to legislative act or by Blanding, of Springfield, and George C. Dixcourt's inherent power.

on, of Dixon (Sidney H. Block, of Waukegan, Punishment for contempt may be sustained of counsel), for the State. without inquiring whether imposed pursuant to legislative act or by virtue of court's inherent power,

DE YOUNG, J. A bill for an injunction

under the Prohibition Act (Laws of 1921, p. 7. Intoxicating liquors Ow279-Statutory limi

tation of power to punish for violation of in: 681) was filed in the circuit court of Lake junction restraining liquor nuisance, not con- county on May 7, 1924, in the name of the

people of the state of Illinois, by Ashbel V.

Smith, state's attorney of that county, Limitation in Prohibition Act, $ 25, on court's inherent power to punish, for contempt,

against Martin Zimmerman and Henry Herviolation of injunction, granted pursuant to act,

man. The bill alleges that a certain parcel Would not be considered in absence of showing of improved real estate situated in the vilthat court in its determination was restrained lage of Antioch, Lake county, particularly by those limitations.

described, is used and maintained by ZimFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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merman as a place where intoxicating liq-, are: (1) That the proceedings under the
uor, as defined by section 2 of the Prohibi- Prohibition Act in which he was adjudged
tion Act, is manufactured, sold, kept, or guilty of contempt of court constitute a
bartered in violation of the provisions of the criminal prosecution ; (2) that as a criminal
act; that the premises and all intoxicating prosecution the proceedings are governed by
liquor kept and maintained therein are a section 33 of article 6 of the Constitution,
"public nuisance" as defined and declared by and from their inception should have been
section 21 of the same act; that Zimmerman carried on in the name and by the authority
is the owner and proprietor of the business of the people of the state of Illinois and con-
conducted on the premises; that Herman cluded against their peace and dignity; (3)
has the title of record thereto; and that that section 25 of the Prohibition Act, which
unless restrained Zimmerman will continue provides that the court may summarily try
to keep, maintain, and use the premises as a and punish the defendant for the violation of
place where intoxicating liquor is manufac- any injunction granted pursuant to the pro-
tured, sold, kept, and bartered in violation visions of the act, violates the fifth and
of, and as a common and public nuisance as ninth sections of the second article of the
defined in, section 21 of the act. The prayer state Constitution and the Fifth and Sixth
was for process directed to the sheriff com- Amendments to the federal Constitution,
manding him summarily to abate the nui- which guarantee the right of trial by jury;
sance, for a temporary injunction pendente (4) that the General Assembly has no power
lite, and for a permanent injunction upon to regulate the procedure or to prescribe the
the final hearing. The bill was verified by punishment for the violation of an injunc-
the state's attorney and supported by the tion granted pursuant to the provisions of
affidavit of C. A. Brune. Upon the filing of the Prohibition Act; (5) that the act is spe.
the bill a temporary injunction was granted, cial legislation violative of the constitutional
and the writ was served on defendants on rights of the plaintiff in error; (6) that the
the same day. Notice was immediately giv- original bill of complaint and the petition to
en the defendants by the state's attorney adjudge him guilty of contempt failed to
that he would on May 19, 1924, ask to have charge an offense; (7) that the court had no
a preliminary hearing on the question wheth-jurisdiction of his person because no war-
er the temporary injunction should be dis- rant was issued for his arrest; and (8) that
solved or continue in effect until the final the order adjudging him in contempt of
hearing of the cause. The preliminary hear-court is void because it fails to fix the be-
ing was, upon motions made by the defend- ginning and termination of his imprison-
ants, postponed until the first day of the suc- ment.
ceeding October term; but the successive or [1-3] The first, second, third, and eighth
ders provided that the temporary injunction contentions were determined adversely to
should remain in effect during such post- plaintiff in error in State v. Froelich, 316
ponements. On September 3, 1924, a peti-Ill. 77, 146 N. E. 733. It is therefore un-
tion in the name of the people of the state of necessary to consider them here.
Illinois, by the state's attorney, was filed in [4-7] The General Assembly has the pow-
the cause. This petition charged that since er to declare that any place kept and main-
the issuance of the temporary injunction, tained for the illegal manufacture and sale
and while the same was in effect, beer con- of intoxicating liquors shall be deemed a
taining more than one-half of 1 per cent. of common nuisance and be abated as such and
alcohol by volume had been found in the at the same time to provide for the indict-
premises on draught; that it was sold to ment and trial of the offender. One is a
customers; that Zimmerman was in charge proceeding against the property used for un-
of the premises; and that he knew that the lawful purposes, while the other seeks to
intoxicating liquor was being sold. The punish the guilty party. Equity jurisdic-

prayer of the petition was for a citation tion to abate such nuisances is consistent
· against Zimmerman commanding him to with due process of law. Mugler v. Kansas,

show cause why he should not be held in 123 U. S. 623, 8 S. Ct. 273, 31 L. Ed. 205; contempt of court for violating the injunc- Stead v. Fortner, 255 Ill. 468, 99 N. E. 680. tion. Such a rule was entered and the cita- In certain states this jurisdiction is express. tion was issued and served upon Zimmerman ly conferred on courts of equity, but a staton September 4, 1924. He filed no answer toute is not necessary to enable them to exerthe petition. On the hearing upon the petition cise a jurisdiction which is of ancient origin the testimony of witnesses was offered. The and exists a part from any statute. Enactcourt found that Zimmerman had violated ments of that character are no more than the temporary injunction and adjudged him legislative declarations of an existing juguilty of contempt and fixed his punishment risdiction. Stead v. Fortner, supra. This at imprisonment in the county jail of Lake court has imposed or sustained punishment county for 90 days. He seeks a review by for contempt without inquiring whether the this writ of error.

authority was exercised pursuant to a legis. The contentions of the plaintiff in error lative act or by virtue of the court's inherent

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