(146 N.E.)

issued and placed in the sheriff's hands with, premises through or under the defendant, 12 $10,638.33, for the purpose of making re- months from the sale within which to redemption from the master's sale of Septem- deem therefrom. No redemption was made ber 3, 1920. A certificate of redemption was by any person defined in, or within the time issued and filed for record September 28, prescribed by, section 18. If such redemp1921. The sheriff made a levy, and on Oc- tion is not made, section 20 of the same act tober 25, 1921, the property was sold to Mar- provides that any decree or judgment credimor for $16,074.16. The appellant on the tor, his executors, administrators, or assame day, October 25, 1921, surrendered his signs, may, after the expiration of 12 months master's certificate of sale to the sheriff, and within 15 months after the sale, redeem and received from him the redemption money the premises in the manner there prescribed. deposited by Marmor. No further redemp- When a foreclosure suit is instituted certain tion having been made, the sheriff, on De- statutory rights attach: First, for the benefit cember 30, 1921, delivered his deed to Mar- of those directly interested in the land; and mor, and it was filed for record on January secondly, for the benefit of judgment cred14, 1922. itors. The statutory provisions which confer these rights cannot be disregarded. If an instrument is a mortgage when delivered, it continues to be such, with its incidents, until the right of redemption is barred by some mode recognized by law. Parties cannot, even by express stipulations in a mortgage, destroy or cut off the right of redemption. Bearss v. Ford, 108 Ill. 16; Halbert v. Turner, 233 Ill. 531, 84 N. E. 704; De Voigne v. Chicago Title & Trust Co., 304 Ill. 177, 136 N. E. 498.

Default having been made in the payment of the note for $40,000, dated May 28, 1914, Richard L. Williams, on December 19, 1921, filed his bill in the circuit court of Cook county for the foreclosure of the trust deed which secured its payment. To this bill appellant, his wife, Marmor, and others were made parties defendant. Appellant filed an affidavit and an answer to the bill. In the affidavit he set forth the proceedings to foreclose the junior trust deed, the contract with Meyerowitz, and the execution, delivery, and recording of the quitclaim deed to appellant pursuant thereto; and he asserted his ownership of the equity of redemption in the property and the invalidity of the redemption by Marmor, because (a) the foreclosure proceedings had merged with the title; (b) Marmor was not a bona fide purchaser without notice or a bona fide judgment creditor of Marion; and (c) Marmor had not offered to refund to appellant the money paid by him for the quitclaim deed. Appellant in his answer averred that he had instituted an ejectment suit against Marmor and others to adjudicate the title to the property, and asked that proceedings in the pending foreclosure suit be stayed until the suit in ejectment had been determined. Marmor answered the bill, claiming title by virtue of his sheriff's deed. The complainant filed a repliIcation to Marmor's answer. The cause was referred to a master in chancery, whose report was approved and a decree of foreclosure and sale entered. From that portion of the decree which found that Marmor was the owner of the equity of redemption in the property, and that appellant had no right, title, or interest therein, the appellant prosecutes this appeal.

[1] Appellant's first contention is that by the contract with Meyerowitz and the ensuing quitclaim deed appellant merged the lien of the second mortgage and of the master's certificate of sale issued to him in the suit to foreclose it, with the fee-simple title, and in consequence extinguished the foreclosure proceedings, so that there was nothing from which Marmor could redeem. Section 18 of chapter 77 of the Revised Statutes gives the right to any defendant, his heirs, administrators, assigns, or any person interested in the 146 N.E.-10

[2-4] The purchaser of land at a master's sale pursuant to a decree of foreclosure is not by his purchase or the certificate of sale issued to him vested with the title to the land, but acquires the right to receive the redemption money, if redemption is made within the time and in the manner prescribed by the statute, or, in case no redemption is so made within that period, then to receive a master's deed. Sutherland v. Long, 273 Ill. 309, 112.N. E. 660. A master's certificate of sale does not purport to convey title, but describes the premises purchased, the amount paid therefor, and the time when the purchaser will be entitled to a deed if no redemption be made. Smith's Stat. 1923, c. 77, § 16; Lightcap v. Bradley, 186 Ill. 510, 58 N. E. 221; Allison v. White, 285 Ill. 311, 120 N. E. 809. Both before and after the sale under a foreclosure decree the owner of the equity of redemption has the same estate in the land. Lightcap v. Bradley, supra; Bradley v. Lightcap, 202 Ill. 154, 67 N. E. 45; Etna Life Ins. Co. v. Beckman, 210 Ill. 394, 71 N. E. 452. The acquisition of that estate or interest by the holder of the certificate of sale prior to the expiration of the period of redemption does not destroy the right to redeem by any person entitled thereto by the statute. Moreover, in the instant case the right of Marmor to redeem was recognized by appellant, for after he had acquired, and while he owned, the interest of Meyerowitz in the property, he surrendered his certificate of sale, and accepted the redemption money deposited by Marmor. Hence there was no merger, as appellant contends, of the lien of the second mortgage or of the certificate of sale with the fee-simple title.

[5] But appellant contends, even if there

ion.

were no merger, and the foreclosure proceed- land, but exists solely by statute. Heinroth ings were kept alive for redemption purpos- v. Frost, 250 Ill. 102, 95 N. E. 65; Level v. es, Marmor was not a bona fide judgment Goosman, 285 Ill. 347, 120 N. E. 758; Garden creditor without notice, but was acting in City Sand Co. v. Christley, 289 Ill. 617, 124 collusion with Marion, who had no furthur N. E. 729. The facts shown by the record title to the premises, for the purpose of de- are not of such a character as to vitiate the priving appellant of the benefits of his trans-judgment recovered by Marmor against Maraction with Meyerowitz. The master's sale occurred on September 3, 1920, and appellant became the purchaser. Meyerowitz, the owner of the equity of redemption, had, by statute, until September 3, 1921, to redeem. On December 17, 1920, he entered into the contract with appellant and Richard L. Williams, pursuant to which the property was conveyed to appellant, and by the contract Meyerowitz's right of redemption was limited (Supreme Court of Illinois. Dec. 16, 1924.

to May 1, 1921, or shortened by 4 months and 2 days. The deficiency decree in appellant's favor was satisfied, and Meyerowitz was paid out of moneys in the receiver's hands. Appellant paid nothing to Meyerowitz. By the satisfaction of the deficiency decree and the redemption from the master's sale, nothing remained due and owing to appellant. Whether Marmor had actual or constructive notice of the contract and the quitclaim deed, or whether he could have compelled appellant to accept the redemption money, is not material to a decision of this case. Appellant surrendered his certificate and accepted the money. Redemption may be made by one who has no legal right to redeem, if the holder of the certificate of sale accepts the money deposited for redemption. 2 Jones on Mortgages (7th Ed.) § 1055a; Smith v. Jackson, 153 Ill. 399, 39 N. E. 130; Pearson v. Pearson, 131 Ill. 464, 23 N. E. 418. As between himself and appellant, Marmor became a redemptioner, and entitled to all the rights as such.

If

[6, 7] Marion was in need of money, and Marmor lent him $600. He took his debtor's note for $5,000 as security, upon the advice of his attorney that he could redeem the property if it should become necessary for his protection. It is not denied that Marion actually borrowed $600 from Marmor. the indebtedness was bona fide, the fact that the judgment was confessed for the express purpose of enabling the creditor to effect a redemption from the sale of the property constitutes no legal or equitable objection to prevent redemption. Strauss v. Tuckhorn, 200 Ill. 75, 65 N. E. 683; Kufke v. Blume, 304 Ill. 288, 136 N. E. 678. The owner of an equity of redemption has the right to confess judgment for a bona fide indebtedness for the purpose of enabling a creditor to redeem. Kufke v. Blume, supra. The judgment may be recovered upon an indebtedness incurred subsequently to the expiration of the debtor's period of redemption. Kerr v. Miller, 259 Ill. 516, 102 N. E. 1050. The right of the judgment creditor to redeem does not depend upon any lien on the

The decree of the circuit court will be affirmed.

Decree affirmed.

(315 Ill. 199)

PETERSON v. INDUSTRIAL COMMISSION et al. (No. 15967.)

Rehearing Denied Feb. 5, 1925.)

I. Master and servant 361-Employer may be liable for compensation, though not exclusively engaged in hazardous occupation.

Under Workmen's Compensation Act, § 3, par. 8, one may be liable for compensation though not exclusively engaged in one of hazardous occupations enumerated.

2. Master and servant 363-Farmer operating sawmill on farm and his employee held within Compensation Act.

Workmen's Compensation Act, § 3, par. 8, though liberally construed as to farmers, does not exempt a farmer who engages in an independent, extrahazardous occupation from liability for compensation, and held, farmer operating sawmill on farm for manufacture of railroad ties and lumber, and employee engaged to assist in its operation, were within act. 3. Master and servant 405 (5)—Evidence held insufficient to sustain finding of partial dependency of parents.

Evidence of dependency of parents on deceased held insufficient to sustain finding of partial dependency within Compensation Act.

(146 N.E.)

visions of the Workmen's Compensation Act | knocked him down. Death followed in about of Illinois. (Smith-Hurd Rev. St. 1923, c. 48, an hour. Deceased was there waiting for $138-172). A hearing was had before an orders. arbitrator, who found that the applicants were entitled to receive compensation from plaintiff in error for partial dependency and fixed the amount of such compensation. The Industrial Commission affirmed the arbitrator's award. The case was then taken to the circuit court of Kankakee county on writ of certiorari, where the decision of the Industrial Commission was confirmed, and the record is now here for review upon writ| of error.

"my nephew" erased not probated.

Where testator, who had six nephews, obliterated, after publication of will, name of devisee following words "my nephew," the will will not be probated, in absence of proof of nephew originally named; the failure to prove the name being a failure as to a material part of the will.

5. Wills 290-Presumption that destruction by heir was beneficial to such heir is presumption of fact only.

disputed testimony was that he was depend- | favor of person whose name was so substituted, ent upon deceased for support at the time in absence of publication after alteration. of his death; that they got their living from 4. Wills 306-Will with name following the farm and depended upon deceased; that that was what got them along; that deceased contributed of his earnings to the home; that he got the benefit of the labor of deceased to make his living; that deceased did two-thirds of the labor on the farm; that witness has had rheumatism for seven or eight years; that plaintiff in error paid deceased weekly wages, which were given to Susie Bagby; that the wages always went into the items of family expense. Bagby testified that while deceased was working for him he never paid him any wages but gave him his board, clothing, and some spending money. This evidence consists almost entirely of conclusions and not of statements of evidentiary facts. It does not disclose what receipts Bagby had from the 352 acres which he was farming, or what his disbursements were with reference thereto. It does not disclose whether or not he had other property. His income and the amount of his expenditures are not shown. There is not sufficient competent evidence in the record upon which to base a finding of partial dependency within the meaning of the Compensation Act.

The judgment of the circuit court is reversed, and the cause remanded to the Industrial Commission.

Reversed and remanded.

(315 III. 244)

CANTWAY v. CANTWAY et al. (No. 16109.) (Supreme Court of Illinois. Dec. 16, 1924.

Rehearing Denied Feb. 6, 1925.)

1. Wills 290 Testator presumed to have substituted name of devisee for another with intent to revoke will as originally made.

Where will which remained in testator's possession was found among his papers partially canceled by erasure of name of devisee and substitution of other name, the presump

tion is that cancellation and substitution were
acts of testator, done with intention of revok-
ing will as originally made.
2. Wills

297(3), 305-Rule as to competency of declarations of testator in proving contents of destroyed or lost will stated.

Evidence as to declarations of testator is competent to corroborate direct evidence of witnesses testifying from their own knowledge as to contents of lost or destroyed will, but are not of themselves sufficient to prove contents of will.

3. Wills 197-Will did not become effective in favor of substituted devisee, in absence of publication after alteration.

Where testator after publication of will erased name of devisee and substituted another's name, the will did not become effective in

Presumption that destruction of will by heir at law was beneficial to such heir is a presumption of fact only, and not sufficient to establish other person's claim that he had been originally named as sole beneficiary. 6. Wills 306-Evidence held insufficient to prove name of original devisee erased by testator.

Evidence held insufficient to prove name of original devisee erased by testator after publication without publication after alteration.

Error to Circuit Court, Kankakee County; Arthur W. De Selm, Judge.

Petition by William W. Cantway, for probate of will of Noel Cantway, opposed by Dell Cantway and others. Petition denied and petitioner brings error. Affirmed.

Robert V. Baker, of Kenosha, Wis., and E. P. Harney, of Momence, for plaintiff in

error.

Miller & Streeter and Granger, Nourie & Granger, all of Kankakee, for defendants in error.

DUNN, J. The circuit court of Kankakee county having denied the petition of William W. Cantway for the probate of an alleged will of Noel Cantway, a writ of error has been sued out to reverse the judgment.

Noel Cantway was a resident of Momence in Kankakee county. He died on the 5th day of December, 1921. He was about 70 years old, had never been married, and his heirs were a brother, five sisters, and five nephews and five nieces, who were the children of his deceased brother, Mitchell Cantway. He left property, real and personal, amounting to about $75,000. Administration was granted on his estate by the county court, and a nephew, Mitchell E. Cantway, was appointed administrator. Soon after, he and his attorney, V. A. Parish, were searching for an abstract to get a correct description of the real estate in order to make an inventory, when they found in a bundle of Noel's papers, which the administrator had brought to the attorney's office, a will sealed up in an envelope, which Noel had executed on January 10, 1889. The will was all in the

(146 N.E.)

handwriting of Noel, and aside from the] on a farm about four and a half miles from formal parts was in these words:

"First-I give and bequeath to my nephew, Joseph C. Cantway, all my real estate to be accepted and received by him, and also I give and bequeath all of my personal estate, goods and chattels, of what nature or kind it may be, hereby revoking all former wills by me made."

There was an attestation clause setting forth a full compliance with the requirements of the statute, signed by J. J. Kirby and C. H. Lisman as witnesses. The name "Joseph C. Cantway" was written over an erasure which had been made in the will as

originally written. The erasure was so thorough that it was impossible to discover from the paper what name had originally been written there. There was no interlineation and no other erasure in the will. The name "Joseph C. Cantway" was written in much blacker ink than the rest of the will, and was in the handwriting of Noel. Joseph was a brother of Noel. He had no nephew of that name. After Parish had taken the will to Kirby, who was the only surviving witness, and learned that he knew nothing about the change in it, he advised the administrator and Joseph C. Cantway that he was of the opinion the will was not valid and that the estate was intestate. Joseph consented to have the will destroyed, and it was burned by the administrator after Parish had made a copy of it.

Momence, and William W. Cantway lived
with them. The farm was Noel's. After the
father's death William continued to live
with his grandmother until she died. Noel
was a barber, and followed his trade in a
shop on the ground floor of a building he
owned. He lived in the second story, over
old when his grandmother died, and was
the shop. William was about 10 or 12 years
lived with his uncle Noel until he was 18
crippled. He then went to Momence, and
or 19 years old, when he went first to Chi-
cago and afterward to Kenosha, where he
has since lived, returning, however, at fre-
quent intervals to Momence.
between Noel and the plaintiff in error re-
sembled somewhat that of parent and child,
and always continued to be of a friendly

character.

The relation

[1] Proof was made by J. J. Kirby of the execution of the will in full compliance with the requirements of the statute. He did not read the will, but simply signed as a witness. The other witness has been dead for

several years. Kirby saw the original will
after Noel Cantway's death, when it was
shown to him by Parish. Since the will had
remained in the testator's possession until
his death, and was found among his papers
partially canceled by the erasure of the
name of the devisee and the substitution of
another name,
the presumption is that such
cancellation and substitution were the acts
of the testator, done with the intention of
revoking the will as originally made. Bur-
ton v. Wylde, 261 Ill. 397, 103 N. E. 976;
Griffith v. Higinbotom, 262 Ill. 126, 104 N.
E. 233, Ann. Cas. 1915B, 250; Holler v.
Holler, 298 Ill. 418, 131 N. E. 663.

The plaintiff in error's contention is that from the erasure of the plaintiff in error's name and the substitution of that of Joseph C. Cantway it will be presumed that the revocation of the devise to the plaintiff in error indicated by the alteration was intended to take effect only in case of the alteration's taking effect as a devise to Joseph, and, since the devise to Joseph cannot take effect because the will was not republished after the alteration, the will must remain as originally drawn and the devise to the plaintiff in error remain unaffected by the attempted change, and the plaintiff relies upon the case of Wolf v. Bollinger, 62 Ill. 368, as sustaining that view.

William W. Cantway was a nephew of Noel Cantway, the illegitimate son of his sister. At his request Parish furnished him a copy of the will. On December 4, 1923, he filed a petition in the county court of Kankakee county stating that Noel Cantway had died, leaving a will which had been destroyed after his death, setting forth a copy of the alleged will, which was the same as the copy the petitioner had received from Parish, except that it contained the name "William W. Cantway" instead of the name "Joseph C. Cantway." The petition further alleged that the will was destroyed by the heirs of Noel, or some of them, and before it was destroyed the name of William W. Cantway had been erased from the will and the name of Joseph C. Cantway, one of the heirs, had been substituted in place of it, and that the petitioner was the sole legatee and devisee under the will. The names of the heirs of the deceased were set forth in the petition, notice of hearing was given, and upon such hearing the county court de- [2, 3] The original name in the will havnied probate of the alleged will. The peti- ing been so completely erased that it was imtioner appealed to the circuit court, where possible to make out what it had been, the there was another hearing and an order de- plaintiff in error undertook to prove by evinying probate. It is this order which the dence outside the instrument itself that his petitioner seeks by a writ of error to re- name was originally written in the docuverse, and the writ is sued out of this court ment. He introduced the testimony of sevbecause the will purports to devise a freehold eral witnesses to show that Noel Cantway estate in land. had made statements to them that he had Noel Cantway's father and mother lived willed all his property to the plaintiff in