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(146 N.E.) wagon roads, air shafts, turn-outs, switches, the land for an unlimited time to the extent reservoir, ditches, and drains they may find that the same were necessary for the workit necessary or convenient to construct upon ing of the mine. A grant of such a writing or across said tract of land for the proper is in legal effect a conveyance of a freehold mining of said coal, provided the same shall not

estate, Watford Oil & Gas Co. v. Shipman, be located within a garden inclosure or in any way interfere with dwelling houses or other | 233 Ill. 9, 84 N. E. 53, 122 Am. St. Rep. 144; buildings; also the use of land for piling coal Bruner v. Hicks, 230 Ill. 536, 82 N. E. 888, or culm, and for preparing and forwarding the 120 Am. St. Rep. 332; Ohio Oil Co. v. coal to be mined under this agreement, to-Daughetee, 240 Ill. 361, 88 N. E. 818, 36 L. gether with the right to take, without charge, R. A. (N. S.) 1108. In the instrument in from said land all the earth and other material, writing in question it was provided : except timber, required in the construction of a railroad through said tract, or reservoir for “That the party of the first part shall pay water thereon; and it is further agreed and all taxes on the land hereby leased and that the understood that the party of the second part, said party of the second part shall pay all taxes his successors and assigns, shall have the on his buildings and improvements; and the said right to rebuild, reconstruct, or remove any or party of the second part, his successors and all the buildings, fixtures, appurtenances, and assigns, hereby covenants and agrees to pay improvements during the continuance of this the said party of the first part or his legal agreement, and until the coal in the adjoining representatives the sum of 3 cents per ton for and contiguous lands that can be worked out every ton of 2,000 pounds of good, clear, merform these openings, slopes, shafts, and tun-chantable mine run coal taken from said abovenels shall have been worked out, the removal described lands, the said three cents per ton of buildings, fixtures, and appurtenances and for coal mined as aforesaid to be due and pay. improvements to be made within a reasonable able only on the 1st day of the second month time after the coal in and under the lands shall succeeding the month for which the royalty have been exhausted."

shall have accrued. It is further agreed and

understood that after the first year the said (2-5) Coal under the soil is real estate, party of the second part, his successors and capable of being conveyed and held by title assigns, shall pay to the party of the first

part or his grantees or heirs an annual rent in fee in one person while the right to the of $1 per acre until actual mining operations surface is in another. The owner of land

are commenced, either upon the lands hereby may convey the coal and mineral rights and leased or upon adjoining and contiguous lands reserve the surface, or convey the surface through which the coal herein intended to be and reserve the mineral. When such a con- conveyed may be mined and removed; that is vefance is made, two separate estates exist, to say, the party of the second part, bis suc

cessors and assigns, shall pay annually on the and each may be conveyed or devised, or

1st day of January to said party of the first will pass by descent, each is subject to part, his grantees or heirs (who shall be legaltaxation, and each is real estate. Big Creek ly entitled to the fee-simple ownership of the Coal Co. v. Tanner, 303 Ill. 297, 135 N. E. lands), the sum of $1 for each acre of the tract 433. A lease of the right and privilege to out of which no coal at that time shall have take away coal from the lessor's land is been mined and removed, and all payments of the grant of an interest in the land, and not rent so made shall be credited and allowed

as advanced payment of royalty of 3 cents per a mere license to take the coal. Consolidat

ton of 2,000 pounds reserved as aforesaid, and ed Coal Co. v. Peers, 150 ml. 344, 37 N. E. shall be deducted without interest installments, 937. Calame v. Paisley, 296 Ill. 618, 130 not exceeding at any one time, when deducted, N. E. 310. Estates or interest in lands are one-half of the whole sum due in the monthly of two kinds: Estates of freehold and es- payments for the royalty from which said intates of less than freehold. A freehold es

stallment is deducted. And it is furthermore tate is defined as any estate of inheritance or agreed that, if at any time the said party of for life in either a corporeal or incorporeal be in default and fail to pay any

the second part, his successors or assigns, shall

sum due hereditament existing in or arising from for royalty, as aforesaid, for the term of 30 real property of free tenure. 10 R. C. L. 647. days after written demand therefor by the Estates less than freehold are, as the term party legally entitled to demand and receive signifies, estates or interests in land less the same, the party of the second part, his than a freehold, and are of three kinds: Es

successors and assigns, shall forfeit all right tates for years, estates at will, and estates

to mine or otherwise hold and enjoy the said at sufferance.

tract of land, and after such default and de

mand, as aforesaid, the party legally entitled The instrument in question in this case to the ownership of said land in fee may at conveyed from the lessor to the lessee an once, or at any time thereafter, enter into the interest in the lessor's land, and, while this exclusive possession therof, and hold the same interest was subject to be forfeited upon a

free and discharged of every and all claims of certain contingency expressed in the writing, the party of the second part, his successors this interest was not an estate for years, at and assigns, or other legal representatives.

And it is further agreed and understood that will, or by sufferance, but by the lease in

the party of the second part or their assigns question the lessee was given the unlimited are to commence sinking shaft or building a right to go upon the land in question and railroad upon the above-described lands, or mine for coal, and also given divers specif- lands adjacent to or in the vicinity thereof, 1c easements into and over the surface of and from which the coal under said lands

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can be mined and taken out, within 12 months | ary, A. D. 1906, by William T. Fowler, lessor, from the date of this agreement, prospecting to G. H. Goodall and C. A. Gent, lessees, leasof these lands to be completed within 6 months ing to them [describing the 200 acres), which from the date of this agreement. And it is said lease has been assigned to you, there befurther agreed that the party of the second came due on the 1st day of January, A. D. part, its successors or assigns, after they have 1919, and there is now due and unpaid, the sum commenced sinking shaft, shall continue in of two hundred ($200) dollars. You are heregood faith until the coal is reached and actual by notified that, unless the said amount is mining operations begun, unless prevented by paid to me within thirty (30) days from the strikes, lockouts, or other unavoidable acci- date of the service of this notice on you, I dents; it being further understood that said shall consider the lease forfeited and at an party of the second part, their successors and end." assigns, shall begin taking out coal from the above lands within 3 years from the date here The amended bill further alleged that the of. In the event coal is not taken out by the defendant failed to pay either of said sums end of the third year from the date of this of $200 and $40, or any part thereof, and lease, all payments of annual rental of $1 per acre, as aforesaid, including the annual rent that on September 12, 1919, the lessor serfdue at the end of the third year hereafter, ed a written notice on the defendant that shall not be considered as advanced royalty, the lease had been forfeited by its terms, but shall be paid to said lessor as bonus, and and that there was then due and unpaid. as compensation for the prolongation of the after notice and demand, the sum of $240, time within which to begin mining said coal, and that the lessor had elected to forfeit which said payments after the end of the second year shall not be deducted from the month the lease, and declared the same forfeited ly payments of royalty as above set forth.” and at an end, pursuant to said notice and

demand. Demand was also made to have The lands described in the lease consisted the lease released of record, and notice was of two tracts of land, separated by a 40- given that, unless the demand was complied acre tract. One tract contained 40 acres with within 60 days, proceedings to comand the other tract contained 200 acres. pel the release would be commenced. The In the amended bill of complaint it is al- bill alleged that defendant did not comply leged that in the month of June, 1909, the with said demand and that therefore the lessees or assigns began taking out coal suit was brought. from the 40-acre tract, but that they had at

[6] The only provisions contained in the inno time made any attempt to begin mining strument in question for a forfeiture was for operations on the 200-acre tract, or upon a failure to pay royalty, and it will be noany lands contiguous or adjacent thereto. ticed from the allegations of the bill that The amended bill further alleged that on

the sums of $40 and $200 claimed to be due January 1, 1919, there became due under January 1, 1919, and demanded of defendthe terms of the lease from defendant in ant by the lessor on August 1, 1919, were error to the lessor, as an annual rental for sums which were claimed to be due for rent, the 40-acre tract, the sum of $10, and that and not for royalty. While there is an allethe lessor on the 1st day of August, 1919, gation in the bill that at times defendant served upon the defendant a written notice had deducted one-half of the royalty, there and demand as follows:

is no allegation in the bill as to the amount "Pursuant to the terms of a mining lease of such deductions, nor was any notice or made and executed on the 12th day of Febru- demand for the same served on defendant ary, A. D. 1906, by William T. Fowler, lessor, in error in accordance with the terms of to G. H. Goodall and C. A. Gent, lessees, leas: the instrument, and the lease cannot be held ing to them [describing the 40 acres), which said lease has been assigned to you, there be- to have been forfeited by reason of nonpay. came due on the 1st day of January, A. D. ment of royalty. By the instrument in ques1919, and there is now due and unpaid, the tion royalties and rents are each defined sum of forty ($10) dollars. You are hereby and they are each distinct from the other. notified that, unless the said amount is paid The notice of forfeiture of September 12, to me within thirty (30) days from the date of the service of this notice on you, I shall 1919, was based on the demands of August

1, 1919, and these demands were demands consider the lease forfeited and at an end."

for rent, and not for royalties, and could It was also alleged in the amended bill not serve as the basis for the forfeiture of that on January 1, 1919, there became due to the instrument in question, by which a freethe lessor as an annual rental, and as com- hold was conveyed. pensation for the prolongation of the time [7] It is contended by plaintiffs in error in which to begin mining coal, the sum of that defendant in error never having at: $200 on the 200-acre tract, and that in con- tempted any mining operations with refersequence of the defendant's refusal to pay ence to the 200-acre tract, this failure was the same the lessor served on the defend- a breach of the contract, and that plaintiffs ant on August 1, 1919, a notice and demand in error had a right to forfeit the same for in writing, as follows:

that reason. Whether under the terms of “Pursuant to the terms of a mining lease the instrument in question plaintiffs in ermade and executed on the 12th day of Febru-ror had such right is immaterial, as there is

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(146 N.E.) no allegation in the bill that the lease was 7. Attorney and client Om38—Effect of canons forfeited on account of such breach, and of ethics of the American Bar Association the notice of forfeiture places the forfeiture

stated. upon a different ground.

Canons of ethics of the American Bar As[8] Upon the hearing of the demurrer all sociation are not binding obligations, though the allegations of the bill were to be taken they constitute a safe guide for professional most strongly against the pleader. The

conduct in cases in which they apply, and an amended bill having failed to show that attorney may be disciplined by the Supreme

Court for not observing them. plaintiffs in error were entitled to relief, the court properly sustained the demurrer. 8. Attorney and client en 113—Attorney reThe decree of the circuit court is affirmed.

quired to disclose adverse retainers to proDecree affirmed.

spective client.

It is attorney's duty to disclose to prospecDUNCAN, C. J., and FARMER and DUNN, tive client every adverse retainer and every pri

or retainer which may affect the discretion of JJ., dissent.

the client.
9.' Attorney and client Om 130-Attorney's un-

disclosed possession of invalid deed from tes(315 Ill. 293)

tator held not to preclude recovery of comHUNTER V. TROUP et al. (No. 16350.) pensation.

Attorney's possession of invalid deed from (Supreme Court of Illinois. Dec. 16, 1924. testator, without disclosure thereof to execuRehearing Denied Feb. 10, 1925.)

tors, held not to preclude recovery of compen. 1. Trial em 178–Evidence taken in light most sation for services rendered executors. favorable to plaintiff, on defendant's motion Duncan, C. J., and Thompson, J., dissenting. for directed verdict.

A motion to instruct a jury to find for the Appeal from Appellate Court, Second Disdefendant is in the nature of a demurrer to trict, on Appeal from Circuit Court, Kankathe evidence, and the evidence and all reason- kee County; A. W. De Selm, Judge. able inferences arising therefrom must be tak

Suit by W. R. Hunter against H. H. Troup en most strongly in favor of the plaintiff.

and others. Judgment for defendants was 2. Appeal and error Cw927 (7)–Evidence fa- affirmed by the Appellate Court, and plainvorable to plaintiff only considered, in review- tiff appeals. Reversed and remanded. ing action of court in directing verdict for de.

See, also, 226 Ill. App. 343. fondant.

Green & Palmer, of Urbana, and W. H. In reviewing action of court in directing a verdict for defendant, the Supreme Court will Dyer, of Kankakee (Henry I. Green and Oris not weigh the evidence, but will look only at Barth, both of Urbana, of counsel), for apthat which is favorable to the plaintiff.

pellant.

Walter C. Schneider, pro se, and Miller & 3. Attorney and client 166(3) Evidence Streeter, all of Kankakee, for appellees. held to establish prima facie case for attorney, in action for compensation. In attorney's action for services rendered

HEARD, J. At the May, 1920, term of the the estate of a decedent, evidence as to serv- circuit court of Kankakee county appellant ices and value thereof held to make out a prima brought suit in assumpsit against appellees. facie case for the attorney.

Appellees filed to appellant's declaration a

plea of the general issue, with notice of spe. 4. Judgment 725(1)-Judgment not conclu- cial matters of defense. A jury trial was sive as to immaterial fact found.

had, resulting in a directed verdict for apIn order that a judgment may be conclu- pellees, and a judgment thereon in favor of sive evidence of the fact sought to be estab- appellees and against appellant in bar of the lished by it, it must appear that the same fact, action and for costs. An appeal was taken to not only was in issue and determined in the the Appellate Court for the Second district, former suit, but that it was a material fact where the judgment of the circuit court was therein.

atfirmed, a certificate of importance granted, 5. Judgment w725(1)-Finding of facts not and an appeal, which has been perfected, alnecessary to uphold judgment does not con- lowed to this court.

Appellant's declaration consisted of the A finding of facts not necessary to uphold common counts and a special count, alleging a judgment does not conclude the parties in a his employment as an attorney at law by subsequent suit.

appellees to render professional services for 6. Trial was 178-On motion for directed ver. them in and about the business of the estate dict, court can only consider competent evi- of Madeline E. Huling, deceased, of which dence,

appellees and W. I. Holcomb, now deceased. On motion for directed verdict, the court were executors, an acceptance of the employcan only consider competent evidence.

ment, and the rendition of services to them For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

146 N.E.-21

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as such attorney until May 1, 1917. The no- , to the executors in and about the matter of tice of special matters of defense relied upon the estate from July 1, 1914, to April 19, 1917. by appellees, so far as they pertain to the Five attorneys, practicing in Kankakee, question here involved, was that, at the time placed 'the value of appellant's services at appellees employed appellant and during the from $4,000 to $5,000. This evidence made period when he rendered the services sued out a prima facie case for appellant. for, appellant was not free and able to rep [4, 5] The only other evidence in the case resent appellees solely and without prejudice, was a decree entered in the circuit court of because at and during said time he secretly Kankakee county at the January term, 1921, claimed to have title to and rights and inter- in the case of H. H. Troup and Walter C. ests in the homestead premises belonging to Schneider, executors of and trustees under the estate of Mrs. Huling, which alleged title, the last will of Madeline E. Huling, against rights, and interests were adverse to, and W. R. Hunter, Anna M. Kerr, Zula F. Hunter, conflicted with, the title, rights, interests, and and the Young Women's Christian Associaduties of appellees, and that neither of ap- tion of Kankakee, Ill., which is said by both pellees at the time of the employment of ap- parties to be the decree which was under pellant, nor at any time during the period consideration by this court in Troup v. Hunservices were rendered by him, had any ter, 300 Ill. 110, 133 N. E. 56. This decree knowledge of such claim, and that appellant and the findings and recitals contained therefalsely and fraudulently concealed from ap in have been treated by both parties upon pellees the fact that he had or claimed such this appeal as competent evidence, and as interest in said real estate, and that appellees evidence proper to be considered by this court had no knowledge of such claim until Septem- on this appeal. What the issues were in the ber 20, 1919, when appellant recorded an al- former case is not disclosed by the evidence leged deed, dated December 9, 1908, by which in this case, and we have no means of asMrs. Huling purported to convey to him the certaining, so far as the evidence in this case said homestead premises, and that during all is concerned, whether or not the findings and of said period when the services were ren- recitals contained in the decree were matedered appellant led appellees to believe that rial to the issues in that case. In order that the premises were owned by Mrs. Huling at a judgment may be conclusive evidence of the the time of her decease, and were part and fact sought to be established by it, it must parcel of the estate owned by her at the time, appear that the same fact, not only was in of her death, and passed to appellees by vir- issue and determined in the former suit, but tue of her will, and led and caused them to that it was a material fact therein. A findtreat said real estate as such, to the injury of ing of facts not necessary to uphold a forsaid estate.

mer judgment does not conclude the parties. [1, 2] A motion to instruct the jury to find Even though a decree in express terms profor the defendant is in the nature of a de- fesses to find a particular fact, yet, if such murrer to the evidence, and the rule is that fact was immaterial and the controversy did the evidence so demurred to, in its aspect not turn upon it, the decree will not conclude most favorable to the plaintiff, together with the parties in reference to that fact. 15 R. all reasonable inferences arising therefrom, C. L. 980.

must be taken most strongly in favor of the [6] Upon the hearing of a motion for a di

plaintiff. The evidence is not weighed, and rected verdict, the court can only consider all contradictory evidence or explanatory cir- competent evidence, and, the competency of cumstances must be rejected. The question the record in question not having been shown presented on such motion is whether there is by the evidence in this case, we could propany evidence fairly tending to prove the erly reverse the judgment of the Appellate plaintiff's declaration. In reviewing the ac- Court without considering any of the other tion of the court of which complaint is made, questions discussed by the parties on this we do not weigh the evidence; we can look appeal, but, as the case must be remanded only at that which is favorable to appellant. for a new trial and some of the same quesYess v. Yess, 255 Ill. 414, 99 N. E. 687; Mc- tions may again arise, we have deemed it Cune v. Reynolds, 288 Ill. 188, 123 N. E. 317; proper to discuss them. Lloyd v. Rush, 273 Ill. 489, 113 N. E. 122. Assuming, as has been done by both par

[3] Appellant testified that Madeline E. ties, that the judgment in question and the Huling died testate June 30, 1914; that on findings of fact and recitals therein contained July 1, 1914, appellees, who knew that they were competent evidence, and also assuming had been nominated as executors by her last that the same could be considered by the cir. will and testament, with W. I. Holcomb, came cuit court upon the motion to instruct the to appellant's office and retained him, he be- jury to find for the defendant and by this ing an attorney licensed by the Supreme court upon appeal, the question arises whethCourt of this state to act as their attorney in er or not, applying the rules above stated the matter of her estate; that thereafter ap with reference to motions of this character, pellant prepared the petition for probate of the court erred in directing the jury to find the will, and rendered professional services the issues for appellees. Applying those rules

(146 N.E.) to the evidence in this case, including the de- , preparation of an order entered in the councree above mentioned, the evidence shows ty court on October 10, 1914, in which the that for many years prior to the death of title and possession of the homestead propMadeline E. Huling appellant had been her erty were found to be held by the executors confidential legal adviser; that he performed and trustees, by assisting in the preparation legal services and advanced moneys for her of a petition filed by the executors in the to the amount of $5,000; that she did not county court, asking leave to rent the homedesire to pay cash for the same, and, in lieu stead and assisting in the preparation of an thereof, in 1908 she executed to appellant a order authorizing them to rent the same, by deed for the homestead premises, reserving assisting in attempts by the executors to sell to herself a life estate therein, as security the premises, including the preparation by for her indebtedness; that this deed was kept appellant of the copy for an advertisement by appellant until 1913, when he returned it in the newspaper in which the premises were to her and received from her, in its stead, her offered for sale by the executors; that during note for $5,000, payable to appellant at the the period of his employment he at no time death of Mrs. Huling; that some time before made any claim to the premises, or evinced Mrs. Huling's death she gave this deed back any intention of so doing; that his employto appellant, telling him that she wanted to ment ended in 1917; that in 1919 he examindo all she could to prevent her brother and ed the proceedings in the estate and found sister, who were her only heirs, from getting that the executors had been paid $2,000 for the property; that she told him that he should their services, as provided for by the will, take the deed, and, if the will was set aside and that they had paid out $1,300 or $1,400 he should put the deed upon record and then for their bonds, and in addition thereto each deed the property to some charitable institu- had drawn out $1,000 additional for their tion that would fight them to a finish; that services; that he contended that the execushe told appellant that, in case the will was tors had sold certain real estate for less than sustained, he should keep the deed and it was worth, and he thereupon determined "watch things, and if my estate is adminis- that there was not enough money going to be tered and goes according to my wishes you left to carry out the provisions of the will can destroy it or give it to the trustees, but, and erect an old people's home, and that if in your judgment things are not going as there was no attempt, as far as he could diswould suit me, if I knew it, then I want you cover, to close up the estate; that by her will to do with it just as you think I would do, Mrs. Huling bequeathed to various charitable if I were here;" that appellant then put the institutions sums aggregating $120,000, and deed in his safe, where it remained until aft- directed the executors and trustees named in er Mrs. Huling's death; that prior to her her will to form a charitable corporation, to death she gave to appellant the sum of $2,000, be known as the "Madeline E. Huling Home to be used by him in sustaining her will and for Poor, Aged, Worthy Persons,” and to pay seeing that its provisions were carried out; over to said corporation the residue of her that at the time of his employment by appel-estate, to be used by the corporation for the lees they knew that he had been acting as the maintenance of a charitable institution to be confidential legal adviser and attorney in fact located at Kankakee; that the will further of Mrs. Huling; that at the time of his em- provided that, if for any reason the scheme ployment by appellees he informed them with could not be carried out practicably, the exreference to the secret $2,000 fund, and with ecutors and trustees should select some other reference to other preparations which had charitable institution already in existence been made at his suggestion for the purpose and pay the money over to it; that on Sepof furnishing evidence in favor of the valid-tember 20, 1919, such corporation had not ity of the will in case of a will contest; that been formed, and the executors and trustees he did not at that time inform them that he did not have sufficient money and property had the deed in question in his possession; for the maintenance of such home; that on that he did not, at that time intend to use September 20, 1919, Hunter recorded the war. the deed, if the will were probated and its ranty deed, dated December 9, 1908, signed provisions carried out; that he did not then, by the testatrix, conveying to himself the or at any time during his employment by ap- homestead, and simultaneously filed for recpellees, claim to have any personal interest ord a quitclaim deed dated September 19, in the deed or in the premises , described 1919, conveying the property from him to the therein, but, on the contrary, it was his inten- Young Women's Christian Association of tion that the premises described in such Kankakee, a charitable organization which deed should be administered as a part of the was then occupying the premises. estate of the deceased; that this intention The deeds from Mrs. · Huling to appellant on the part of appellant is evidenced by the and from appellant to the Young Women's facts that he took part in the preparation of Christian Association were held invalid the inventory of the estate, in which the (Troup v. Hunter, supra), for the reason that premises described in the deed were listed as there had not been an unconditional delivery belonging to the estate, by assisting in the of the deed from Mrs. Huling to appellant.

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