ST. CLAIR CO. IL
COURT RECORDS
 

"Reports of cases argued and determined in the Supreme Court of the State of Illinois" ("Illinois Reports" [Vol.] 5 SCAMMON) by J. Young Scammon, Vol.5, pg.575 to 580 (California State Law Library, Sacramento, 12/2003)
      ISAAC LETCHER appellant v. EDWARD NORTON appellee; Supreme Court of Illinois, at Springfield; 5 Ill. 575; 4 Scam. 575; December, 1843, Decided.
      Appeal from Madison. THIS cause was heard in the Madison circuit court at the June term, 1843, before the Hon. JAMES SEMPLE and a jury. (MAD: arguments of counsel not included here)
      THOMAS, Justice, delivered the opinion of the court: The record in this case discloses the following state of facts, viz.: A fieri facias issued by the clerk of the circuit court of St. Clair county, and directed to the sheriff of Madison county for execution, in favor of the appellee and against one James Duncan and one Rescain Ayres, was levied by the said sheriff on certain goods and chattels in the possession of the said James Duncan, and as his property. The appellant claimed the said property, and thereupon a trial of the right of property being had, according to the form of the statute in such case made and provided, and a verdict found for the appellant, the appellee took the case by appeal into the circuit court of the said county of Madison, where there was a trial de novo, and verdict and judgment for the appellee. This case now comes by appeal into this court, for the reversal of that judgment.
      The appellant, on the trial in the court below, claimed the property in controversy by virtue of it mortgage thereon, executed to him by the said James Duncan, dated the 4th day of April, 1842, and purporting to be executed to secure the payment of a certain promissory note, of even date therewith, also executed by the said James Duncan to the said appellant, and payable eighteen months after date. After the reading of the said note and mortgage in evidence, and proving that they were executed at the same time, and referred to each other, the appellant offered to prove by one J. G. Cameron (the subscribing witness to said mortgage), that at the time of the execution of the said note and mortgage, it was agreed between the parties thereto, that the said James Duncan (the mortgagor) was to remain in possession of the said property until the maturity of the said note, and default in the payment thereof: and that he (the said witness) was instructed, in writing the said mortgage, to express such agreement therein, and intended doing so, and inserted the following words for that purpose, viz: "And until default be made in the payment of the said sum of money, said property to remain and continue in the quiet and peaceable possession of the said goods and chattels, and the full and free enjoyment of the same;" using the word "property" by mistake for the name of "James Duncan." This evidence, on motion of the appellee's counsel, was rejected by the court, and thereupon the appellant's counsel excepted to the opinion of the court.
      The counsel for the appellant then offered to prove by the same witness, that one "William E. Start testified on a former trial, between the said parties, of this cause, that a good and valuable consideration was paid by Letcher to Duncan, at the time of the execution of the said mortgage, and likewise that he (Starr) was agent of said Letcher, at the time of making said mortgage; and that said Starr is since dead; and that said Start was cross-examined by Sawyer, now one of the counsel for Norton, here;" which testimony was objected to by the appellee's attorney, and rejected by the court; and appellant excepted.
      Exceptions were also taken by the appellant to divers opinions of the court in rejecting certain depositions taken on behalf of the said appellant; in overruling the appellant's motion for a continuance, on account of the exclusion of the said depositions; in giving to the jury divers instructions asked for by the appellee's counsel; in refusing to give other instructions requested by his, the said appellant's attorney; anti in overruling his, the said appellant's, motion for a new trial.
      The various orders and opinions of the circuit court, excepted to on the trial, are now assigned for error; but we deem it unnecessary to go into an investigation of all the various questions sought to be presented for our consideration by the assignment of errors. A very brief examination of several of the errors assigned will suffice to dispose of this case.
      First, then, in regard to the rejection of the proof offered by the appellant of the evidence given by Starr, the deceased witness, on the former trial of this cause. The proposition was to prove that the witness, since deceased, swore to certain facts specifically stated, and therefore came within the rule requiring the words of the deceased witness to be proven. It was, however, urged, in argument, that the testimony of Starr, that the mortgage was executed for a valuable consideration was immaterial, as the consideration of the said mortgage had not been attacked in evidence by the appellee; but that position is sufficiently contradicted by the fact, that on the application of the appellee's counsel, the court instructed the jury that "if they believe, from the evidence, that the deed of mortgage was made without any valuable consideration, they were bound to find for the defendant" (the appellee). The court manifestly erred in rejecting the said testimony.
      Again, as to the construction put upon the mortgage in question, by the court, and the exclusion of the testimony offered by the appellant, to explain the supposed mistake in its phraseology, without expressing any opinion as to the admissibility of the proposed evidence, in explanation of the said mortgage, we entertain no doubt that the intention of the parties to that instrument, that Duncan (the mortgagor) should remain in possession of the mortgaged goods until default in the payment of his note, was sufficiently expressed by its own terms, to have superseded the necessity of any such proof. To test the correctness of this view of the subject, let the words of the mortgage be referred to. In the condition of that instrument the following language is used, viz: "And he, the said party of the first part, for himself, his executors, administrators, and assigns, doth covenant and agree to and with the said party of the second part, his executors, administrators, and assigns, that in case default should be made in the payment of the said sum above mentioned, then it shall and may be lawful for, and he, the said party of the first part, doth hereby authorize and empower the said party of the second part, his executors, administrators, and assigns, with the aid and assistance of any person or persons, to enter the dwelling house, store, and other premises, and such other place, or places as the said goods and chattels are, or may be placed in, and take and carry away the said goods and chattels; and to sell and dispose of the same, for the best price they can obtain; and out of the money arising therefrom, to retain and pay the said sum above mentioned, and all charges touching the same, rendering the overplus (if any) unto him, or to his executors, administrators, or assigns. And until default be made in the payment of the said sum of money, said property to remain and continue in the quiet and peaceable possession of the said goods and chattels, and the full and free use and enjoyment of the same." Could any extrinsic evidence be reasonably required to prove that it was the intention of the parties to the mortgage, in which the foregoing language is used, that the title of the property should be separated from its possession? Why should the mortgagor authorize the mortgagee, on default of payment of the note of the former, to enter upon and seize the mortgaged property, if at the time of the execution of the mortgage, he (the mortgagee) was intended to and did take possession of it? Such a construction of the mortgage would do violence to its provisions. The mortgage then does contain authority to the mortgagor to retain possession of the property in dispute until the happening of a certain contingency. To have authorized him expressly, in so many words, to do so, could not have more certainly expressed the intention of the parties that he should do so. If it were susceptible of a doubt, it might be otherwise; but it is not. Then, whether parole evidence was legally admissible, to explain the alleged mistake in the mortgage, or not, the language, in connection with that in which it is supposed to exist, does fully explain it; and the whole instrument, for the correct interpretation of any part of it, must be taken together.
      In this view of the subject, the court erred in refusing to instruct the jury, on the request of the appellant's attorney, that "they (the jury) must be satisfied, from the evidence produced on the trial, that the note and mortgage deed were executed with a fraudulent intent, or they must find a verdict for the claimant (the appellant); for fraud cannot be presumed, but must be proved." The action of the court in refusing to give that instruction was predicated on the supposition that the retention of the mortgaged property by Duncan (the mortgagor) rendered the transaction fraudulent per se, and therefore not susceptible of explanation by proof of fairness and honesty of purpose on the part of the said mortgagor. This view of the matter was incorrect. The retention of the goods by the mortgagor was consistent with the deed, and, as I have already shown, was authorized by its terms. This case then comes within the decision of this court, in the case of Thornton v. Davenport et al. 1 Scam. 297, and it was consequently competent for the appellant to prove the transactions to be fair and honest. This, as we have seen, he proposed to some extent to do, by proving by legal testimony, that the mortgage was executed for a valuable consideration, etc., but was prohibited by the court from doing so, If such evidence, offered by him and erroneously excluded by the court, had been admitted, and he had there superadded proof that the debt acknowledged by the note and mortgage of Duncan to be due from the latter to him (the said appellant) was actually and bona fide due, his title to the property in dispute would have been fully established.
      For these errors, and without any examination of other points raised by the assignment of errors, the judgment will be reversed, and the cause remanded to the circuit court of Madison county, for further proceedings not inconsistent with this opinion.
 

"Reports of cases determined in the Supreme Court of Illinois; from November term 1855 to June term 1856, both inclusive" by E. Peck, Vol.XVII; Illinois Reports, Vol.17, pgs.59 to 63 (California State Law Library, Sacramento, 2/2004)
      ANDREW CHRISTY, Plaintiff in Error, v. JAMES PULLIAM, Defendant in Error; Supreme Court of Illinois, at Mount Vernon; 17 Ill. 58 [59]; November, 1855, Decided.
      Error to St. Clair.
      THIS was an action of ejectment, to recover the possession of a certain tract of land situate in St. Clair county. Declaration contains but one count; plaintiff claims an estate in fee in said land.
      The cause was tried by the court and jury. Plaintiff showed a connected title of record from the United States to one Joseph Ogle, and produced the last will of said Joseph Ogle, duly proved, which will contained the following provisions: "Also I give and bequeath to the above named Lucy Ogle, to have and to hold during her natural life, the land that I now own and reside on, to occupy and use the said land in the same way as it would be lawful for her to do if the title were full and complete in her," and in subsequent part of will, the provision, viz.: "The land not included in above bequeath, (referring to lands in controversy,) I give and bequeath to my beloved wife, Lucy Ogle, to dispose of at her death to any person she may think best to live with and take care of her," and then offered to introduce a deed from Lucy Ogle, the widow of Joseph Ogle, deceased, conveying the lands sued for to the plaintiff, having proved by one Duncan, that the land sued for was not included in the special bequest referred to in said will, which said deed was by the court excluded from the jury.
      The plaintiff then called one Absalom Badgly, and offered to prove by him that the defendant came into the possession of the premises under a lease from the grantor of the plaintiff, and asked the following question: "Do you know of James Pulliam, the defendant, having paid rent to Lucy Ogle, the grantor of the plaintiff?" which question the court would not permit the witness to answer.
      The plaintiff then offered to prove by said witness that the defendant rented the land in controversy of Lucy Ogle, who was the grantor of the plaintiff, and that the relation of landlord and tenant existed between them, also to prove that said Lucy Ogle has conveyed her interest in said land to said plaintiff, all of which the court refused to let plaintiff prove, and thereupon the jury found a verdict pro forma for the defendant, of not guilty, at August term, 1855, of the St. Clair Circuit Court, BREESE, Judge, presiding.
      The plaintiff moved a new trial, which was overruled.
      [opinion] SCATES, C. J. The testator provided for the payments of his debts and funeral expenses out of his personalty and gave the remainder to his wife forever. He also devised to his wife the land upon which he lived, viz.: "To have and to hold during her natural life the land that I now own and reside on, to occupy and use the said land in the same way as it would be lawful for her to do if the title were full and complete in her." He further devised, at the death of his wife, two other tracts, a forty and a thirty-five acre tract, to certain nephews, by metes and bounds, (which by codicil he revoked as to them and gave to another nephew,) and then proceeded: "and the land not included in the above bequeath, I give and bequeath to my dearly beloved wife, Lucy Ogle, to dispose of at her death to any person she may think best to live with her and take care of her." The will was proved Sept. 21, 1846. On the 12th of June, 1854, Lucy Ogle executed a deed in fee of these lands to plaintiff. The court excluded this deed in evidence and refused evidence of a tenancy of defendant under the grantor. Upon these rulings arise the questions before us.
      The first clause recited devises a life estate in her of the homestead tract; the second does not devise the lands, but creates a general power of appointment in fee, without special or particular conditions or directions as to the time, mode or manner of doing so, or restriction in appointing an estate less than a fee, or in executing it at different times, for different parts of the land, or quantum of interest. "To dispose of at her death," might import a limitation as to time and the mode by will, were not the sense and intention as to time and the mode by will, were not the sense and intention of the testator so clearly manifested by the remainder of the sentence. But it is very clear that the object of the power was for the benefit of the devisee of it, to enable her, in her discretion, to make provision for her sustenance and comfort until her death, for which purpose the power enables her to dispose of the land "to any person she may think best to live with her, and take care of her." The literal reading would lead us to an absurd conclusion and make nonsense. The testator never contemplated such an idea as restricting the power to the time of her death, for it would then imply that the person receiving the land would have "to live with her, and take care of her" after he had received, it, in order to return the consideration for it, in the "care" provided for. To avoid this absurdity, we must understand, under such a restriction of the power, that the purchaser under it, must bestow, in advance, enduring her life-time the "care" intended, which means, not only attentions, but moneys, maintenance, and all necessaries of life, and trust to her execution of the power in his behalf at her death; and should she fail, neglect or refuse its execution, it might be very questionable whether equity would interpose for his relief, by supplying a want of it in his behalf. We must therefore, seeing so plainly an intention by the power, to make provision for her maintenance according to her own discretion, give it full effect by forbearing such restrictions as might wholly defeat a purpose so grateful to the heart of a dying husband.
      The same rules of construction govern contracts and wills, and are framed and adopted to ascertain the intention which is to govern.
      When the mode of executing the power is not defined, it may be executed by deed or will, or other simple writing, if sufficient to convey the subject matter of it. And the power need not be referred to in the instrument executing it.
      The manner of execution here by deed, the time, and the quantity of estate, are all within the terms and intention of this will and we are therefore, left to the inquiry of the grounds of its exclusion in evidence.
      We remark, in the first place, that the exclusion of the evidence of a tenancy of defendant under the grantor, with the view of estopping him from denying title in plaintiff as her grantee, was proper; for while we recognize the law as correctly laid down on that subject, we think it has no application here, as will be apparent from the principles which govern a case like this.
      It is not the case of an ordinary conveyance, nor like it in its effects; but the doctrine of powers has its peculiarities.
      Plaintiff, as appointee under the power, derives his title, not under the person exercising the power, but from the will; the deed operates as the direction of a use, and he takes in the same manner as if the use had been limited to him by the will. And this deed of appointment relates back to and takes effect from the will; and he takes under the testator, and not Mrs. Ogle, who merely executed it by his direction. And this was carried so far in Roach et al. v. Wadham, 6 East's Rep. 289, that Watts, who had the power of appointment, with a limitation over to him in fee, on default of appointment, rendering rent to plaintiff, one of the parties to the creation of the power as part owners of the estate, discharged the land from his covenant to pay this rent to plaintiffs, which covenant run with the land; and the appointee took the land free of the rent, by the appointment of Watts, but not by conveyance from him, and was consequently, not subject to his covenant to pay the rent. But this relation back to the creation of the power is not to be understood, nor will it overreach intervening rights.
      This is not a naked power, but is coupled with a beneficial interest in the devisee of it; and her exercise of it will, if practicable, be upheld.
      The plaintiff has set forth, according to the statute, the estate he claims, which is a fee, and can recover no less estate. The deed conveys a fee -- and there is no proof in the record that the lands described in the deed and declaration are the homestead, in which the grantor took a life estate as devisee under the will.
      The question, therefore, does not arise upon this record as to the effect of the execution of the power upon the life estate in the homestead. The land described may be the same, in whole or in part; but as the will did not describe it by numbers, and no witness has deposed to its identity, we can not identify it.
      The plaintiff must recover, according to his allegations, a fee or nothing. Ballance v. Rankin, 12 Ill. 420; Rawlings v. Bailey et al., Ill. 178. But the evidence offered by him will prima facie support his allegations, and should, therefore, have been admitted.
      Judgment reversed and cause remanded for new trial.
      Judgment reversed.
 

"Reports of cases determined in the Supreme Court of Illinois, during the years 1861 and 1862" by E. Peck; Illinois Reports, Vol.27, pgs.209 to 215 (California State Law Library, Sacramento, 2/2004)
      ISAAC A. LETCHER, WILLIAM HADLEY, et al., Plaintiffs in Error, v. JAMES L. D. MORRISON, Defendant in Error; Supreme Court of Illinois, at Springfield; 27 Ill. 208 [209]; January, 1862, Decided.
      ERROR to Madison.
      THIS bill was filed by defendant in error, December 31, 1852, and sets forth that Edward Norton, on the 14th day of April, 1842, recovered a judgment in the St. Clair Circuit Court, against James Duncan, since deceased, and Rescarick Ayres, for $2,000. That just previous to the recovery of said judgment, and during the existence of the indebtedness, Duncan, with the intent to defraud said Norton, on the 22nd day of December, 1841, confederating with Isaac A. Letcher, conveyed to him the south-east quarter of section No. 20, except twentysix acres out of the south-west corner of the said south-east quarter, containing 133 83/100 acres; also, the north-west quarter of Section 28, except five acres out of the south-east 250 corner, containing 155 acres -- both in Township 3 north, Range 8 west, in Madison county, Illinois -- upon the expressed consideration of three thousand two hundred and twenty-five dollars.
      Bill charges, that in fact there was no consideration paid by Letcher to Duncan; that the conveyance was fraudulent; that Letcher did not take possession of said lands, and never exercised any acts of ownership over the same, except to place his deed on record; but that Duncan, the grantor, up to the time of his death, retained possession, and used the lands for his own benefit.
      That on the 21st day of January, 1845, and while said judgment was in full force, etc., the said James Duncan and Isaac A. Letcher confederating with one John Duncan, (a brother of James, and who lived with, and who was wholly dependent upon the bounty of James, and who was destitute of any means), the said Letcher, at the solicitation of James and John, executed a deed to John for the said premises, upon an expressed consideration of twenty-five hundred dollars.
      The bill charges, that no consideration was paid by John to Letcher; that the conveyance was made to defraud said Norton; that John never exercised any authority or control over said premises, until after the death of James, except that he resided thereon as a member of the family of said James Duncan.
      That James Duncan departed this life, intestate, July 14th, 1846; that Charles Cook, public administrator of Madison county, administered upon the estate of James Duncan; that after the death of James, John occupied the premises to the time of his death, January 30, 1848; that letters of administration were duly granted to William Hadley on his estate.
      The bill further charges, that various writs of fi. fa. were issued upon said judgment; and a sufficient sum of money made to reduce the amount upon the judgment to the sum of $737.63, with costs; which amount was due September 23, 1850, the date of the sale hereafter mentioned; that there was no other property or estate out of which the amount due on said judgment could be made.
      That at the time of issuing the fi. fa. of date June 17, 1850, more than one year had elapsed since the death of the said James; and that said Norton had given notice in writing to the said Cook, administrator, for more than three months, of his intention to sue out a pluries.
      That on the 17th day of June, 1850, execution issued from the clerk's office of the Circuit Court of St. Clair county, directed to the sheriff of Madison county, and was by him levied on the lands which the said James Duncan had, as in bill stated, fraudulently conveyed to the said Letcher, as the property of the said James; that said lands were sold on the 23rd day of September, 1850, to the defendant in error, -- the south-east quarter of Section 20, containing 133 83-100 acres, for the sum of five hundred dollars, and the north-west quarter of Section 28, for the sum of two hundred and thirty-seven dollars and thirty-seven cents, being the amount then due on said judgment; certificate executed; and the lands not having been redeemed, the sheriff of Madison county executed and delivered to him a deed therefor, May 11, 1852.
      The bill further charges, that since the recovery of the said judgment, the said Rescarick Ayres has not had property or estate out of which the said judgment could have been made; and that he has refused to pay the amount due upon said judgment, or any part thereof.
      The bill further charges, that Norton was unable to collect the whole amount of said judgment, except in the manner set forth in the bill; that personal estate of James Duncan was insufficient.
      The bill prays, that the said deeds from James Duncan to Isaac A. Letcher, and from Isaac A. Letcher to John Duncan, may be set aside and esteemed for naught; and that the title be vested in defendant in error.
      At the August term, 1853, defendants filed their demurrer to the bill, which was sustained, and leave given defendant to amend.
      The answer of Mary Metcalf, disclaims all interest in the property mentioned in the bill; had sold all her interest in the estate of her brother, John Duncan, previous to the filing of the bill of complaint.
      The answer of Isaac A. Letcher, believes it to be true that Norton obtained judgment as in the bill set forth; admits that James Duncan conveyed to him the tracts of land in the bill described, and at the time there stated. The conveyance was for a full and valuable consideration -- the same as set forth in the deed; that at the time of the conveyance, he was a man of means, worth at least the sum of ten thousand dollars, and could on short notice have raised the sum of thirty-two hundred dollars. That the consideration of the deed from Duncan to himself ($3,225), was made up as follows: As early as the year 1828, he commenced advancing money to James Duncan, and from that time to 1841, he continued to make advances to him, and became liable for certain debts of Duncan to various persons -- to Edward Chouteau, of St. Louis, since deceased, Joseph Sanbern, then of St. Louis, now of Quincy, Illinois, John O'Blennis, of St. Louis, John Darniel, of St. Louis, and William Atkins of Madison county -- which he paid for said Duncan. That at the date of said deed, Duncan owed him about twenty-five hundred dollars, and he was liable, as indorser of notes of Duncan, to an amount of some eight hundred dollars more, which he afterwards paid. That the consideration of $3,225, expressed in the deed, was bona fide, and actually paid by him to the said Duncan, and to other persons for him. Denies that the conveyance was made to him by Duncan to defraud Norton, or any other person; but to secure to him a bona fide debt. He further states, that Duncan paid him rent while he owned the lands; paid in corn, pork, and other articles of personal property. That he made the conveyance to John Duncan for the true and full consideration of twenty-five hundred dollars, which said John Duncan paid to him. He denies all fraud or combination with James or John Duncan, to defraud said Norton; that on his part the transaction was bona fide and honest. That he was willing to sell said lands for $2,500, and did so, as it certainly was his right, and received the money, and personal property which was equivalent to money, from the said John Duncan. That he did not know James Duncan in the transaction. Is ignorant of proceedings under judgment; supposed judgment was long ago satisfied. Knows nothing of the pecuniary ability of Ayres.
      The answer of William Hadley admits the recovery of judgment by Norton against Duncan and Ayres. Admits conveyance by James Duncan to Letcher for $3,225; denies that it was fraudulent. Admits that James Duncan resided on one of the tracts of land after the conveyance; but whether as tenant paying rent, or in what capacity, is ignorant. Admits the conveyance from Letcher to John Duncan; denies that the conveyance was made without consideration, or made to defraud Norton. States that John Duncan after the conveyance to him, exercised acts of ownership over the lands; that he cultivated some part of the land himself, and rented parts to others. Denies that John was wholly dependent upon the bounty of his brother James; and denies that he was destitute of any means or pecuniary ability; believed that John had money; denies all combination between Duncan and Letcher to defraud Norton; admits that James Duncan departed this life at the time stated in the bill, and that Charles Cook, as public administrator, took out letters upon his estate. He admits that John Duncan occupied and enjoyed the premises from the time of his purchase until he died, as his own. He admits that letters of administration were granted him on the estate of John Duncan; that, as such administrator, he obtained an order from the Circuit Court of Madison county, at the (blank) term, 1852, to sell the lands belonging to John Duncan, deceased. That under said order, he sold the south-east quarter of Section 20, Township 3 north, Range 8 west, at public auction, to Jonathan Duncan, for $800, and has made him a deed therefor -- fully believing, and now believing, that the fee simple title was in his intestate, He further states, that he has been informed, and verily believes, that the judgment recovered by said Norton, was fully paid and satisfied long before the sale made by the sheriff of Madison county to the defendant in error, and that fact was known to him before he made his purchase, He further states, that on the 15th day of March, 1849, James Bishop, one of the heirs of John Duncan, became indebted to him in the sum of $85, and to secure the same, executed a mortgage on all his interest in said estate, recorded March 20, 1849; and Robert E. Duncan, another of the heirs, was indebted to him in the sum of $65, and executed to him a mortgage on all his interest in said estate, of the same date, recorded March 20, 1849. That said debts have not been paid, or any part thereof, and insists upon superior lien.
      The answer of Charles Skinkle states, that he purchased from Jonathan Duncan all his interest and title in the lands described in the bill, for a valuable consideration without notice.
      To which several answers replications were filed.
      Decree pro confesso, as to the defendants failing to answer. The proof sustained the allegations of the bill.
      The decree, after reciting the exceptions taken to various depositions, decreed that the exceptions taken by the complainant to the deposition of Isaac A. Letcher be sustained; that the exceptions of the defendants to the answer of John Keenan to the 26th direct interrogatory be sustained; and the remaining exceptions of said defendants are overruled. That the deeds front James Duncan to Isaac A. Letcher, and from said Letcher to John Duncan, as set forth in the bill, be taken and deemed as fraudulent and void, as against the said complainant, and those claiming title though or under him. That the title to the said property be vested in the complainant, and the defendants be forever barred, etc. Decree for costs against defendants. By agreement, cause to be heard at Springfield.
      The receipt of Mr. Koerner, referred to in the opinion, is as follows:
      "Received, April 4, 1854, of William Hadley, administrator of the estate of John Duncan, deceased, the sum of two hundred and eighty-two dollars and fifty cents, being in full allowance of claim in the probate court of Madison county against said estate, with interest to date. The money being the proceeds arising from the sale of the following described tract of land: the south-east quarter of Section 20, Town 3 north, Range 8 west. Sold under an order of the Circuit Court of Madison county, as the land of said John Duncan, deceased. GUSTAVUS KOERNER, Attorney for James L. D. Morrison."
      [opinion] CATON, C. J. * The transfer from James Duncan to Letcher and from him to John Duncan, was so manifestly fraudulent, that we shall waste no time in discussing the evidence on that subject.
      (* footnote. -- Mr. Justice Breese did not sit at the hearing of this case, or take any part in the decision of it.)
      Was it necessary that a new notice should be given to the administratrix whenever an alias or pluries or subsequent execution was taken out? Section three, of chapter forty-seven, Rev. Stat., declares it shall be lawful to issue execution against estates of deceased persons; "Provided, however, the plaintiff or plaintiffs in execution, or his or their attorney, shall give to the executor or administrator, if there be any, of such deceased person or persons, at least three months' notice in writing, of the existence of such judgment, before the issuing of execution." We can find nothing in the language or the reason of this statute requiring more than one notice, no matter how many executions may be issued for the collection of the judgment. The statute does not even require the creditor to state in his notice, that he intends to issue an execution upon the judgment; much less to state the time when he will issue it; but all that is required, is to notify the administrator of the existence of the judgment. The object of the law evidently was, to prevent the creditor from collecting his judgment by execution, while the administrator was ignorant in fact of the existence of the judgment. But after that fact was made known to him, in the mode required by the law, the judgment creditor has placed himself in the same position of right, as if the judgment debtor were still living, and the administrator is bound to take notice of everything that is thereafter done, which the debtor himself would be required to notice if living.
      The only remaining question is, whether the receipt given by Koerner to the administrator, for the plaintiff, is an estoppel upon him. We do not think that even if this receipt had been given by Morrison himself, well knowing that the money had been raised by the administrator of John Duncan by the sale of this very land as the estate of John Duncan, that it would estop Morrison from setting up his claim to it. Had Morrison induced the administrator to sell it, and induced the purchaser to buy it, as the estate of John Duncan, then indeed would a court of chancery forever shut his mouth, so that he should never assert his claim to it, by reason of such a fraud practiced on the purchaser. But so far as this record shows, he knew nothing of this sale, at least till after it was completed, and the purchase money had passed into the hands of the administrator, as a part of the assets of the estate. It thus became a part of the general fund, and had to be distributed to the creditors of the estate generally. It does not appear even that it was sold specially to pay this debt, and if it did, the law says to the purchaser, caveat emptor.
      But more than this, Koerner was only authorized to receive this money generally for Morrison, and to give a general receipt therefor, and there is not a shadow of pretense for saying that he was authorized to sign any paper which should operate as a release of his interest in, or claim to this land, which, for aught that appears, was quite foreign to his mind when he requested Koerner to collect this money for him.
      The judgment must be affirmed.
      Judgment affirmed.
 

"Reports of cases at law and in chancery argued and determined in the Supreme Court of Illinois, containing remaining cases decided at November term 1865, January term 1866, and a few omitted cases decided at April term 1864" by Norman L. Freeman; Illinois Reports, Vol.39, pgs.392 to 401 (California State Law Library, Sacramento, 2/2004)
      WILLIAM HADLEY v. JAMES L. D. MORRISON; Supreme Court of Illinois, Second Grand Division; 39 Ill. 392; January, 1866, Decided.
      APPEAL from the Circuit Court of Clinton county; the Hon. SILAS L. BRYAN, Judge, presiding.
      In 1841, James Duncan conveyed certain lands in Madison county to Isaac A. Letcher; and, in 1845, Letcher conveyed the same land to John Duncan, who occupied the premises until his death, which occurred on the 30th of January, 1848. Letters of administration were granted on John Duncan's estate to William Hadley. Afterward, one of the heirs of John Duncan conveyed her interest to Jonathan Duncan, and he conveyed to Charles Shenkle.
      In the mean time, in April, 1842, Edward Norton recovered a judgment against James Duncan and one Ayers for $2,000 and costs in the St. Clair Circuit Court. Execution issued on said judgment against James Duncan, and a balance thereof left unsatisfied. After James Duncan died, an execution was issued on the same judgment, and levied on said lands, which were sold in pursuance of such levy on the 23d of September, 1850. James L. D. Morrison became the purchaser, and on the 11th of May, 1852, he obtained a sheriff's deed.
      In 1853, Morrison exhibited his bill in chancery in the Madison Circuit Court, for the purpose of setting aside the deed from James Duncan to Letcher, and also the subsequent conveyances, alleging that they were made in fraud of the rights of the creditors of James Duncan. In October, 1860, Morrison obtained a decree setting aside those deeds as fraudulent and void. On the 9th day of June, 1862, Morrison commenced an action of assumpsit against Hadley to recover for money alleged to have been received by him for rents and profits of the land, and for money received for timber sold therefrom.
      It appears that Hadley had leased the land in question to different tenants for nine or ten years before the commencement of this suit, and that, for a portion of that time, the rents amounted to $250 a year. At some times Hadley claimed the land, and at others he claimed that he was the agent of Duncan's heirs, or of Shenkle. He sold some timber from the land, and gave to different persons permission to use the fallen timber thereon. It does not appear that Hadley ever recognized Morrison's title.
      Morrison recovered a judgment against Hadley in this action, for $1,262, from which Hadley took this appeal.
      The principal question presented is, whether Morrison was entitled to his action at law against Hadley under these circumstances.
      Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:
      This was an action of assumpsit, and the declaration contained a count for use and occupation of lands, and the usual money counts. A trial was had on the general issue, and resulted in a judgment in favor of plaintiff below for the sum of $1,262, and costs of suit. A motion for a new trial was entered and was overruled by the court. Exceptions were taken, and defendant below brings the cause to this court by appeal, and assigns for error the overruling of the motion for a new trial and the rendition of the judgment in favor of plaintiff below.
      It appears from the evidence that the appellee, in the year 1853, filed a bill in equity against appellant, as administrator of John Duncan, and the heirs of Duncan and other persons, for the purpose of setting aside deeds of conveyance for the lands, for the use of which it is claimed the rents accrued, made by one James Duncan to one Letcher, and by him conveyed to John Duncan, to defraud the creditors of James Duncan. The bill charges that John Duncan occupied the premises after he received a conveyance from Letcher until the time of his death. That letters of administration were granted on his estate to appellant, who claimed to have some interest in the lands. That execution was issued against James Duncan, in his life-time, on a judgment rendered against James Duncan and one Ayres, and in favor of Norton, which was transferred to appellee by assignment, and that a part of the judgment remained unsatisfied. That after his death execution was regularly issued and the lands sold by the sheriff to appellee, who afterward received a deed from the sheriff. Appellant filed an answer to the bill, a hearing was had, and a decree was rendered setting aside the deeds from James Duncan to Letcher, and from the latter to John Duncan, as fraudulent and void as to appellee.
      It also appears that appellant leased the farm to different tenants for nine or ten years before this suit was brought, that the premises rented a portion of that time for $250 a year. At some times appellant claimed the land, and at others he claimed that he was the agent of Duncan's heirs, or of Shenkle. That he sold some timber from the farm, and gave permission to different persons to use fallen timber from the farm. There is no evidence in the record, that appellant ever leased the premises of appellee, or in any manner recognized his title to the land. On the contrary, appellant claimed in his own right, or the right of others, for whom he claimed to act.
      It has been repeatedly held by this court that an action for use and occupation cannot be maintained, unless the relation of landlord and tenant is shown to have existed during the occupancy. That relation may, however, be shown by express contract, or it may be implied from circumstances. Dudding v. Hill, 15 Ill. 61; Ballentine v. McDowell, 2 Scam. 28; McNair v. Schwartz, 16 Ill. 24; Greenup v. Vernor, 16 Ill. 26. In the last two of these cases it was held, that when a person enters into possession under a contract to purchase, and refuses to perform the contract, the owner cannot recover in assumpsit for use and occupation. In the last named case it was also held that where a vendor remains in possession, after sale and conveyance, a tenancy cannot be implied, so as to authorize the vendee to recover for use and occupation. It then follows that as the relation of landlord and tenant was not shown, appellee could not recover under this count, at the common law.
      There having been shown no tenancy, and the relation of landlord and tenant not existing, if a right of recovery exists it must be alone by force of a statutory provision, as rents could not be recovered at the common law where the occupancy was tortious. The right being for a recovery of damages merely, an action of tort was the only remedy, and neither debt nor assumpsit would lie to recover such damages.
      The general assembly, for the purpose of obviating the hardships frequently suffered by the common law rule, and the act of 1845, on the 20th of February, 1861, Session Laws, 176, adopted an act to extend the remedy given by the former act to all cases where a purchase had been made and possession given, and the purchaser failed to complete the purchase, and in cases where the land was sold under execution or decree of court, and the defendant failed to surrender possession after the time for redemption had expired. It declares that in such cases the action of debt or assumpsit, for use and occupation, may be sustained.
      In the case of Jackson v. Warner, 32 Ill. 331, this court held, that this was a remedial statute, and as such must be construed liberally, that the remedy may be advanced and not narrowed or crippled in its provisions. We there said, that, to understand the scope of a statute purporting in its title to amend another, we must know what the provisions of the act amended were; for what cases it provided; what defects had been observed in its operation; and we must understand how they were designed to be remedied by the amendatory act. In other words, what was the mischief, and what was the remedy proposed? By the act of 1845, the action of debt or assumpsit for use and occupation could only be maintained where the relation of landlord and tenant was expressly shown, or facts were proved from which that relation could be inferred. In the administration of justice, it was found that in many cases great hardships occurred where the entry was not tortious but lawful, and the person thus acquiring possession, when it was unjust and inequitable for him to retain the possession without paying rent to the owner, was held not liable, and it was obviously to remedy this evil that this amendatory act was adopted.
      Under the former act, a person entering under a contract of purchase, and failing to complete it, although he may have entered according to the agreement of the parties, was not in as a tenant, nor could that relation be implied. He was in as a purchaser. So of a debtor, where land was sold under an execution or decree of a court, retaining possession after the time for redemption had expired. He was not, in any sense of the term, a tenant, nor had he entered as a wrong-doer, but it was nevertheless unjust and inequitable that he should use and occupy the premises after they had ceased to be his lands, without making compensation to the owner. These cases are enumerated in the amendatory act, and no question can of course arise as to them; but are other cases, falling within the mischief of the old law, and fully within the reason of the amendatory act, to be governed by its spirit, as though enumerated by it? We think they should.
      When the Circuit Court acquired jurisdiction of the suit in equity, the complainant should have prayed an account for rents and profits, but failing to do so, he was estopped from subsequently filing a bill for that purpose. Equity had no original jurisdiction to state an account of rents or profits in this case, but, having acquired jurisdiction to set aside the conveyance for fraud, had the bill been properly framed, the account might have been stated and complete justice been done. It then follows that, when this statute was enacted, plaintiff below had no right of recovery either at law or in equity. And, to hold that under this statute he might recover, would be to confer upon him a right which he did not previously possess. Such an act is unauthorized by the Constitution; and had this statute so provided, in terms, it would have been inoperative; but it does not, nor will we give it such a construction.
      The legislature did not design to confer rights, but only to enable parties, in the mode provided, to recover existing rights. Had plaintiff below not been precluded from recovering in equity, by omitting to pray an account in his bill, it might have been otherwise. The statement of such an account not being equitable, had the decree in that case been rendered after the passage of that law, the party would have had his choice of remedies, by an action at law to recover rent after the conveyance was set aside, or to have had the account taken under the bill. But the decree having been rendered before the passage of the law, and the party then having no action at law or right of recovery, the statute could confer no such right. To hold that a recovery could be had in this case, under the statute, would be to hold, not that a new remedy was given for the recovery of an existing right, but to hold that a new right was conferred, and also a remedy for its recovery. This was not designed, nor could it have been done.
      The judgment of the court below must be reversed and the cause remanded.
      Judgment reversed.
 

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