(148 N.E.) Lester E. Williams and Charles P. R. Macaulay, both of Chicago, for plaintiffs in er. ror. Frank Greskowiak and Ewart Harris, both of Chicago, for defendants in error. Suit by John Penkala and another againstchase price of the premises was $3,150, which Jan Tomczyk and another. Decree for com- is a fair and reasonable price, and defendplainants on demurrer, and defendants bring ants paid complainants $150 as earnest monerror. Reversed in part and remanded, with ey upon the purchase price and were to pay directions. the balance by assuming a mortgage of $1,000 giving a note secured by second mortgage for $1,000, and by paying the remainder of $1,000 in cash. Defendants have only paid the $150 upon the purchase price, have not assumed the first mortgage, which now stands unpaid and unreleased, have not given a note secured by second mortgage for $1,000, and have not paid the $1,000 cash by them to be paid. The recording of the deed is a fraud upon complainants and the same was secured by defendants without any considèration, and no delivery of the same was made by complainants to defendants. Unless defendants are restrained by order of the court from selling, conveying, incumbering, or in any manner disposing of or affecting the title to the premises and from exercising any acts of ownership over the same, complainants will be irreparably damaged and their rights and interests in the premises lost. The prayer of the bill follows. DUNCAN, C. J. Defendants in error, John Penkala and wife, Agnieszka (herein called complainants), filed their bill in the circuit court of Cook county against Jan Tomczyk and wife, Anna (herein referred to as defendants), praying to have a certain deed declared null and void and a cloud on their title; that defendants may be ordered to deliver up possession of the premises to complainants; and that they be restrained by injunction from selling, mortgaging, or otherwise incumbering or disposing of the premises or any part thereof; and for general relief. Defendants filed a demurrer to the bill, which was overruled by the court, and failing to further answer, as directed by the court, a decree was entered granting the specific prayer of the bill, and further ordering and decreeing that the rights of the defendants under and by virtue of the contract of sale be declared extinguished for their failure to perform it, and that the $150 earnest money mentioned in the bill be forfeited and awarded to complainants for the failure of defend-cupied. ants to perform the alleged contract. The record is brought to this court for a review by writ of error. The facts stated in the bill and admitted by the demurrer are the following: Complainants are the owners in fee of lot 29 in Fitch's resubdivision of lot 26 in Sheffield's addition to Chicago, and were such owners on October 3, 1922, and on and prior to July 15, 1922. On July 15, 1922, they entered into a contract of sale of the premises with defendants for the sum of $3,150, subject to an incumbrance of record described in the contract of sale. Defendants refused and failed to perform their part of the contract, and on October 4, 1922, complainant John Penkala offered to defend ants to perform his contract. Penkala had in his possession at that time a deed to defendants executed by complainants and which was to be delivered to defendants upon their performance of the contract. By inadvertence and mistake upon the part of Penkala the deed was left at the house of defendants after tender of performance had been made by him and after defendants had refused on their part to perform the contract. Defendants thereafter, by themselves or their agents, fraudulently recorded the deed October 5, 1922, in the recorder's office of Cook county, and now falsely and fraudulently pretend to own the premises. The agreed pur148 N.E.-5 In the demurrer filed by defendants it is specially averred that the bill did not allege that defendants threatened or intended to incumber or dispose of the real estate; that the complainants did not offer thereby to return the $150; and that it did not appear therefrom that complainants are in possession or that the property is vacant and unoc [1] The first contention of defendants is that the bill was demurrable because it fails to show that the complainants were in possession or that the premises were unoccupied, etc. The rule that a bill to remove a cloud must show that the complainants are in possession, or that the premises are vacant and unoccupied, is only applied where that relief is the sole object of the bill. It does not apply where the primary relief sought is upon other grounds, although clouds are sought to be removed from the title as incident to the other relief granted. Blake v. Blake, 260 II. 70, 102 N. E. 1007. The primary relief sought by the bill in this case is to have the deed set aside and declared void on the ground of fraud and want of delivery. The rule invoked by defendants has no application to this case, in which fraud is charged and that there has been no delivery of the deed; the other relief being merely asked as incidental relief. Clay v. Hammond. 199 Ill. 370, 65 N. E. 352, 93 Am. St. Rep. 146; Ward v. Clendenning, 245 Ill. 206, 91 N. E. 1028; Nowakowski v. Sobeziak, 270 Ill. 622, 110 N. E. 809. [2-5] Defendants also contend that the bill does not allege the specific facts constituting the fraud charged against defendants. We think this is a misapprehension of the facts set forth in the bill. The bill alleges that Penkala went to defendants' house and offered to perform the contract of sale on his part; that defendants refused, and that at that time Penkala had with him the deed, signed by himself and wife, conveying to defendants the property, which deed he inadvertently and by mistake left at their house; that defendants thereafter, without performing their part of the contract, had the deed recorded and falsely and fraudulently contended that they owned the premises. These are sufficient facts, if taken to be true, to conclusively show a fraud on the part of de fendants and that there was no delivery of the deed to them. The facts set forth in the bill are also sufficient to entitle the complainants to the specific relief prayed in the bill. Courts of equity have jurisdiction, in cases where fraud is practiced, and particularly in cases to set aside deeds obtained by fraud, as in this case. The fact that complainants may have had a remedy at law by ejectment is not to be considered as taking away from a court of equity the jurisdiction exercised in this case, and which is one of a class of cases of which equity courts always take cognizance. [6, 7] It is generally discretionary with the court, in cases of this character, to grant a temporary injunction to preserve the subjectmatter in controversy in its then condition, and this is done, without determining any question of right, to prevent the further perpetration of a wrong or the doing of any act wherein the right in controversy may be materially injured or endangered. 1 High on Injunctions (3d Ed.) § 4 et seq. The court properly allowed the temporary injunction, and there is no error in the decree making the injunction permanent. [8, 9] The history of the wrong committed by defendants began with their act of appropriating the deed unintentionally left with them by Penkala and having the same recorded as a deed to them, there being no delivery of it. The allegations in the bill setting out the contract of purchase and sale were merely preliminary facts leading up to a proper statement of the subsequent wrong committed, and against which, alone, relief was prayed by complainants. The merits or demerits of that contract of purchase and the real rights of the parties thereunder are not subjects of litigation in this case and are not intended to be, so far as shown by the allegations in the bill. The fact that the contract was not set out in hæc verba in the bill is of no consequence, and the fact that the deed did not correctly recite the amount of the consideration, or that it is not in proper form, or that it improperly grants the premises free from the lien of the taxes for 1921, do not, as contended by defendants (conceding that defendants are right in these contentions), affect the merits of this lawsuit. Defendants cannot in one breath claim title under the deed and in another make the claim that the deed was not in conformity with the contract and rely on the latter ground to defeat relief in this case. If they desired to make the contention that they were entitled to specific performance of the contract of purchase, that the deed tendered was not in proper form, and that they were entitled to a deed, etc., they should have answered the bill and set up their rights by cross-bill or otherwise. The only question on the bill as framed and opposed by the demurrer of defendants is whether or not complainants were entitled to the relief prayed and granted, and we do not think there can be any question that the court's decree, so far as it related to the relief prayed, is sustained by the facts admitted by the demurrer. It was not necessary for complainants to tender back the $150 paid in order that they might have the relief prayed. They were entitled to be put in the same position they were in at the time defendants unlawfully appropriated the deed. It may be they are not entitled, under the contract of purchase, to retain this sum; but they are entitled to have relief against the fraud perpetrated without returning such sum. [10] For the reasons stated, the court erred in decreeing that the rights of the defendants in said contract of sale be extinguished and the sum paid as earnest money on the 'contract of purchase be forfeited, and awarded to the complainants as liquidated damages for failure of defendants to perform the contract. No such relief was prayed specifically in the bill and no facts were stated therein warranting any such relief. The decree should therefore be modified by striking therefrom the erroneous part of the decree, and that will be the order of this court. The decree of the circuit court is in part affirmed and in part reversed and the cause remanded, with directions that the decree be modified as herein indicated. It is further ordered that the costs in this court shall be paid equally by the parties. Reversed in part and remanded, with directions. (317 Ill. 191). (148 N.E.) PEOPLE v. STOVER. (No. 16495.) (Supreme Court of Illinois. April 24, 1925. Rehearing Denied June 9, 1925.) 1. Criminal law 528-Admission of codefendants' written statements in evidence over defendant's objection held erroneous. Where written statements of codefendants concerned, not only burglary and larceny which defendant was charged with, but other criminal offenses with which he was not concerned, their admission in evidence over his objection was error. lips, Harry T. Sheetz, and Owen Stover with burglary and larceny. The defendants were arrested, and, after motions to quash the indictment had been overruled, entered pleas of not guilty. On the day of the trial three of the defendants withdrew their pleas of not guilty and entered pleas of guilty, and the trial proceeded against Stover alone, resulting in a verdict finding him guilty of larceny, fixing the value of the stolen property at $80, finding his age to be 20 years, and recommending that clemency be shown him. After a motion for a new trial had been overruled the defendant asked to be ad 2. Criminal law 1169(7) — Admission of co-mitted to probation, and his request was redefendants' written statements in evidence ferred to the probation officer, who subseheld without prejudice to defendant. Where defendant, by his own statement, was guilty of larceny, error in admission of written statements of his codefendants, as to crimes in which defendant was not concerned was without prejudice to defendant. quently made a report recommending admission of the defendant to probation. The state's attorney objected to the report, and the court sustained the objection and denied probation, overruled a motion in arrest of judgment, and entered judgment on the ver 3. Criminal law 1134(1)-Object of review dict, sentencing the plaintiff in error to the of judgments of trial courts stated. Object of review of judgments of trial courts is, not to determine whether record is free from error, but to ascertain whether just conclusion has been reached, founded on competent and sufficient evidence, after trial in which no error has occurred prejudicial to defendant's rights. 4. Criminal law 1165(1) Defendant, proved guilty by his undenied confession, cannot complain of trial error where verdict does not fix penalty or grade of crime. state reformatory under the indeterminate law. The plaintiff in error has sued out a writ of error to reverse the judgment. On Sunday night, March 2, 1924, the building of Abe Levin, in Sycamore, in which he was conducting a junk business under the name of Sycamore Iron & Metal Company, was broken open and an acetylene welding and cutting torch, together with hose connections, regulators, and tanks containing acetylene gas and oxygen gas, was taken. When Levin and his employees came to the building on Monday morning they discovered the larceny, which they reported to the sheriff, and the three codefendants of the plaintiff in error were arrested. The plaintiff in error lived with his father at Maple Park, a town a few miles from Sycamore, where he worked in a plant of the Bowman Dairy Determination of trial court on question of Company. On Wednesday morning the sherprobation is matter of discretion which Su-iff went to Maple Park and in the barn of preme Court has no power to review. Defendant, fully proved guilty by his own confession, which he does not deny or attempt to invalidate, cannot complain of error, where verdict of guilty has nothing to do with fixing penalty or grade of crime. 5. Criminal law 1001, 1147-Determination of trial court on question of probation not reviewed. Error to Circuit Court, De Kalb County; William J. Fulton, Judge. the plaintiff in error's parents found two revolvers-one in Stover's automobile, and the other in the haymow. He also found the torch and regulators-a part of the property taken from Levin's building, which Stover Owen Stover was convicted of larceny, and had taken in his automobile and hid in the he brings error. Affirmed. James W. Cliffe, of Sycamore, and Harvey Gunsul, of Aurora (Olney C. Allen, of Aurora, of counsel), for plaintiff in error. Oscar E. Carlstrom, Atty. Gen., Cassius Poust, State's Atty., of Sycamore, Virgil L. Blanding, of Springfield, and Charles F. Mansfield, of Monticello (L. Frank Moudry, of Sycamore, and Harris D. Fisk, of De Kalb, of counsel), for the People. DUNN, J. An indictment of five counts was returned by the grand jury at the June term, 1924, of the circuit court of De Kalb county, charging Carl Johnson, William Phil barn. He brought the torch and regulators back to the jail and in the afternoon again went out to Maple Park, arrested Stover, and brought him back to jail. On the way back he asked Stover what part he took in the burglary at Abe Levin's, and Stover told him that he was there with his car; that he took the boys down to Levin's sheds; that they were all armed with revolvers; and that he stayed on the outside. He said he did not know just what he was doing-he was there to be a guard of some kind, and he stood there as a guard. He said he had taken the torch; that they had asked him to take the torch and hide it some place, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes and Johnson asked him to take the gun hement would have to be reversed for this and had the .45 army revolver-and asked him other errors occurring on the trial. The verif he would not hide it for him; so he took dict, however, does not rest on this evidence, the torch and the gun and took them down but is amply supported by other competent, to Maple Park to his father's barn and hid unquestioned evidence from the mouth of them for him. William Joslyn, who accom- the plaintiff in error himself. His statement panied the sheriff on this trip to Maple Park made to the sheriff, whose testimony is corwhen Stover was arrested, also testified to roborated by Joslyn and is in no way conthis conversation. tradicted, was that on the Sunday night of the burglary, about 9 o'clock, he was at home when two of the defendants came to the house and told him that the defendant Sheetz, who was his cousin, wanted to see him over at Sycamore; that he went to Sycamore and first saw Sheetz in the restaurant; that he had one of the revolvers in his automobile that night and had it with him down at Levin's; that he went there and stood outside of Levin's place and acted as a guard; that he took a part of the stolen property home with him that night in the automobile and concealed it. These must be taken as facts proved, and they establish the guilt of the defendant of burglary and larceny. After returning to the county jail the state's attorney and his assistant talked with all four of the defendants in the jail in the presence of the sheriff and Joslyn. The assistant state's attorney asked him questions and took notes about what had happened on the night of the burglary. He questioned each of them, and on the completion of the conversations the questions asked of each defendant were laid on the sheriff's desk and separated, and the assistant state's attorney then left the jail, and in about half an hour came back with a typewritten form of everything that the defendants had said during the conversation. The assistant state's at torney read each paper that he had in his hand to the defendants, one at a time, and asked each of them if there were any corrections that might be made in the statement before he signed it. Each of the defendants signed the paper, and so did the sheriff. No promise or threat was made to secure the signing of the statements, and the state's attorney told the defendants that if there were any things misstated or incorrect in the state-own statement was guilty of burglary. There ment he was about to read he wanted them to stop him from reading and he would make the correction. [1] The statement concerned, not only the burglary of Levin's building by the four defendants, but other criminal offenses committed by Stover's three codefendants in which he was not concerned. This statement was admitted in evidence on Stover's trial against his objection. The objection to it should have been sustained, for while, so far as it was Stover's own statement, it was competent against him, it was incompetent so far as the statements of his codefendants were concerned. Their statements were mere hearsay, not made under the sanction of an oath or subject to cross-examination, and were not admissible against Stover either as to the burglary, which was the subject-matter of the indictment or the other crimes mentioned in the statement. [3, 4] The object of the review of judgments of trial courts by courts of appellate jurisdiction is not to determine whether the record is free from error, but is to ascertain whether a just conclusion has been reached, founded upon competent and sufficient evidence, after a trial in which no error has occurred which might be prejudicial to the defendant's rights. This defendant on his was no evidence of a single fact tending to raise any doubt of his guilt except evidence of his good character, and this, in face of his own admission as to the facts, could not possibly raise a doubt of his guilt. Therefore the incompetent evidence, which would have been sufficient to reverse the judgment if there had been any attempt to show a valid defense, was not prejudicial to the defendant, who did not attempt to present a defense. A defendant who is fully-proved guilty by his own confession, which he does not deny or attempt to invalidate, has no right to complain of error in the trial where the verdict of guilty has nothing to do with the fixing of the penalty or the grade of the crime. Error is also assigned on certain instructions given, but the same answer applies to this assignment of error as the assignments in regard to the admission of evidence. The confession of the defendant, which was competent, required a verdict of guilty, and this record contains no error which could reverse the judgment under such circumstances. [2] The statement was offered as a whole and objection was made to it. A part of it was incompetent, and therefore the objection should have been sustained. No offer was [5] It is argued that the court should have made of such part of the statement only as admitted the defendant to probation, and was competent. The overruling of the objec- that the refusal to do so was an abuse of tion to this statement and its admission in discretion. The right to admit to probation evidence are assigned as error. If there were rests in the discretion of the judge hearing the slightest doubt of the defendant's guilt or the case. The defendant on the trial proved, any conflict in the evidence as to any ma- without contradiction, an excellent character terial matter affecting his guilt, the judg-for honesty and as a peaceable, law-abiding (148 N.E.) [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Local Improvement.] 3. Appeal and error 901-Court of review will not search record for error not disclosed by abstract. While a court of review will sometimes search the record for the purpose of affirming a case, it will not search the record for error not disclosed by the abstract. 4. Statutes 184, 205-Construction requires determination of legislative intention from language of act as whole, considered with object of statute. citizen. He was only 20 years old, and his fits diffused by it throughout the municipality, codefendants were about the same age. On being a "local improvement." the application for probation it appeared that he was the third of a family of nine children, all of whom were living with their parents except the oldest daughter, who was married. He had always lived at home except one year when he was working for the Bowman Dairy Company at Pingree Grove. His wages were $39 a week, and he helped willingly, right along, with the support of the family. His father had no other income but his wages. Both he and his wife testified that without the aid of the plaintiff in error they could not get along and support the children. He had never been charged with any violation of the criminal law, and the superintendent of the Bowman Dairy Company, for which he had been working for two years, testified that he would continue to employ him if he were paroled. The statute provides that applications for release on probation may, in the discretion of the court, be granted, if it shall appear to the satisfaction of the court, both that there is reasonable ground to expect that the defendant may be reformed, and that the interest of society shall be subserved. Whatever might be our Only public highways outside of corporate judgment on these questions, the determina- limits of municipality are to be taken over by tion of them is not left to us but to the dis-under its sole control and jurisdiction, in view state department of public works and to remain cretion of the trial court, which we have no of Laws 1913, p. 534, § 32, section 9 as amendpower to review. The judgment will be affirmed. (317 Ill. 203) VILLAGE OF GLENCOE v. HURFORD. (No. 16362.) (Supreme Court of Illinois. April 24, 1925. 1. Municipal corporations 269 (1) Park commissioners held not to have succeeded to jurisdiction over road when consents not obtained. Lincoln Park commissioners held not to have succeeded, under Laws 1913, p. 443, § 1, to jurisdiction of the village of Glencoe, as to that part of Sheridan Road running through the village, where the required consent of the property owners abutting on the road was not obtained and the commissioners never assumed control of and management over the road. 2. Municipal corporations 282(2)-Widen ing of street held "local improvement." Widening of street held a local improvement, as distinguished from a general improvement, where such widening, while improving the street for general travel, would be a particular advantage to the immediate locality and increase the value of the property specially assessed; an improvement enhancing the value of adjacent property, as distinguished from bene It is the duty of a court in construing a legislative act to attempt to determine legislative intention from the language of the act, when all of its provisions are taken together and considered with reference to the purpose for which the act was enacted. 5. Highways 105(1)-Only public highways outside of corporate limits of municipality are to be taken over by state department of public works and to remain under its sole control and jurisdiction. ed by Laws 1921, p. 786, and section 11 as amended by Laws 1923, p. 561, and Bond Issue Act 1917, § 12, and State Road and Bridge Act, § 9, and State Highway System Act 1921, §§ 7, 11, 12. 6. Eminent domain 19-When right of eminent domain conferred on state department of public works and buildings may be exercised, stated. The right of eminent domain conferred upon the state department of public works and buildings by State-Aid Act 1913, Bond Issue Act 1917, and State Highway System Act 1921, to alter and relocate roads, may be exercised only for purposes public in their nature and where the benefits derived by its exercise are diffused by it throughout the community. 7. Eminent domain 55-When city or village may exercise right of eminent domain conferred upon it under Local Improvement Act, stated. The power of eminent domain conferred upon a city or village by the Local Improvement Act may be exercised only where the public improvement enhances the value of adjacent property, as distinguished from benefits diffused throughout the municipality. 8. Eminent domain 121-Property acquired by eminent domain exercised by department of public works and buildings is to be paid for by state, and that acquired by city or village by special assessment. Property acquired through the exercise of eminent domain by the state department of public works and buildings pursuant to Eminent For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |