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to be printed under the authority of said United States, any state or territory, shall be evidence in all courts and places in this state, of the acts therein contained." Under this section the printed statutes of Iowa purporting to be printed under the authority of said state were clearly admissible in evidence. The word "purporting” means what appears on the face of the instrument. It means the apparent, and not the legal, import. 23 Am. & Eng. Ency. of Law (2d Ed.) 527. Here it appeared, and the title page expressly stated, that the statutes offered in evidence were published by authority of the state of Iowa. This was all that the law requires. The copy of the deed offered should have been admitted in evidence, which, taken in connection with the proof of possession, was prima facie proof of title, and sufficient to warrant a decree in favor of appellant in the absence of countervailing proof of a better title in the appellees. Glos v. Gerrity, 190 Ill. 545, 60 N. E. 833; Hughes v. Carne, 135 Ill. 519, 26 N. E. 517. The only evidence of title in appellee Jacob Glos was the tax deed, which, as we have seen, is void. The deed from Jacob Glos to Emma J. Glos, his wife, for a one-third interest in this lot, conveys nothing, since Jacob Glos had no title except as above stated.

The decree of the superior court is reversed, and the cause remanded to that court for further proceedings in conformity with the views herein expressed.

Reversed and remanded,

tion requiring the jury to believe, in order to defeat recovery, that plaintiffs knowingly executed the release without fraud of defendant or its agent, was not subject to the criticism that it did not include the theory of defendant that the agent borrowed the money of plaintiffs, or was to account personally to them; such theory having been included in an instruction given at defendant's request. 4. SAME-ASSUMING FACTS-AGENCY.

Where an action involves the acts of defendant's agent, and the agency is proved, and not disputed, an instruction is not erroneous because it assumes the existence of the agency.

[Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, SS 432-434.] 5. INSURANCE-REPRESENTATIONS BY AGENTLIABILITY OF COMPANY.

Where the agent of an insurance company, in making payment of a claim under a policy, made false representations, whereby he obtained a release on payment of part in cash, and giving his personal note for the balance, the company was liable for his acts. 6. APPEAL AND ERROR-HARMLESS ERRORINSTRUCTIONS.

An instruction, though not strictly applicable, is not ground for reversal, where it is not unfavorable to appellant. 7. SAME-ISSUES IN LOWER COURT-MATTERS NoT PRESENTED.

Defendant cannot contend for the first time on appeal that a release given by plaintiff was binding on a court of law.

Appeal from Appellate Court, Second District.

Action by Nicholas J. Sherman and another against the Hartford Life Insurance Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

John Fitzgerald and Kraus, Alschuler & Holden, for appellant. Darnell & Lawbaugh and George M. Popham, for appellees.

(223 Ill. 329) HARTFORD LIFE INS. CO. V. SHERMAN

et al. (Supreme Court of Illinois. Oct. 23, 1906.) 1. APPEAL AND ERROR_REVIEW-DECISION OF APPELLATE COURT-QUESTIONS OF FACT.

The determination of the Appellate Court that a verdict was not against the weight of the evidence is final, and not reviewable by the Supreme Court. 2. INSURANCE PAYMENT OF LOSS-INSTRUCTIONS.

In an action to recover the balance alleged to be due on an insurance policy, it appeared that defendant had sent to its agent two checks for $2,000, each payable to plaintiffs ; that the agent paid plaintiffs the sum of $2,141, and gave them his personal note for $1,859, representing that defendant would be liable thereon, and would pay the same. Held, that an instruction that one of the things to be proved was that defendant had not paid plaintiffs more than $2,141 was not misleading because the payment was made in checks, and not in money, and was made through the agent, and not directly to plaintiffs. 3. TRIAL-INSTRUCTIONS-SUFFICIENCY AS A WHOLE.

In an action to recover the balance alleged to be due on an insurance policy, it appeared that defendant had sent to its agent two checks for $2,000, each payable to plaintiffs; that the agent paid plaintiffs the sum of $2,141, and gave them his personal note for $1,859, representing thrt defendant would be liable thereon, and would pay the same. Thereupon plaintiffs executed a release and satisfaction of their claim under the policy. Held, that an instruc

CARTWRIGHT, J. Appellant, the Hartford Life Insurance Company, being indebted to appellees, Nicholas J. Sherman and Mary A. Sherman, his wife, in the sum of $4,000 upon a policy of insurance upon the life of their deceased son, Ray Sherman, sent by mail to its agent, Peter Becker, at Somonauk, who solicited and obtained the insurance, two checks for $2,000 each, payable, one of them, to the order of Mary A. Sherman, and the other to the order of Nicholas J. Sherman, and two receipts for $2,000 each, to be signed by them, respectively. By the letter the agent was advised that the receipts must be signed and the policy surrendered before the delivery of the checks, and that claims were paid through agents as a favor to them to aid them in soliciting new business, and therefore they were not allowed to make any charge for expenses against the claimant or the company. On October 14, 1901, Becker went in the morning to a bank at Somonauk and exhibited the two unindorsed checks, and said that he was going out to fix up the matter with the Shermans. He said he would take the checks out and get them indorsed and return them to the bank, and thereupon the bank gave him two drafts for $1,000 each on the First National Bank of Chicago and $1,859 in cash. He went to the farm of the Shermans, about 14 miles from Somonauk, and told them that he had come to settle up the insurance matter for the company. As a resuit of his negotiations with them he gave to each of them one of the drafts of the Somonauk bank for $1,000, one-half of the amount due them. He had secured from them insurance on another son, Earle Sherman, for $5,000, and the first premium amounted to $141. This premium was credited on the amount due from the insurance company, and Becker gave to Nicholas J. Sherman a note, signed by himself, for $1,859, payable to the order of said Nicholas J. Sherman 412 months after date, with interest at 512 per cent. He then returned to the bank and deposited to his own credit the two checks for $2,000 each sent to him to settle the claim, and each bore the apparent indorsement of the payee. The next day he mailed to the insurance company a letter inclosing the policy for $4,000, and the two receipts sent him by the company for $2,000 each, one of which purported to have been signed by Mary Sherman, and the other by Nicholas J. Sherman. The insurance company paid the checks sent by it to Becker, and the drafts of the Somonauk bank were paid. The note for $1,859 signed by Becker was not paid, and this suit was brought in the circuit court of Kendall county by appellees, against appellant, to recover the balance alleged to be unpaid on the policy, There was a verdict for appellees, followed by judgment, which was affirmed, on appeal, by the Appellate Court for the Second District.

The plaintiffs, in their testimony at the trial, denied that they, or either of them, indorsed the checks for $2,000 each or signed the receipts running to the defendant. Their testimony was to the effect that Becker told them the defendant could not pay the whole policy at that time; that it could only pay $2,000, and had only sent that amount to him; that it had had heavy losses, was pressed for money, and wanted a little time; that he thereupon produced the two drafts of the Somonauk bank for $1,000 each, and a receipt for $4,000; that Nicholas J. Sherman asked how it was that the receipt was drawn for $4,000, when only $2,000 was paid; that Becker quieted his apprehensions by telling him that the policy must be surrendered and the receipt given before he could do anything about a settlement, and that it would be all right and he would see that the company paid the balance; that Nicholas J. Sherman asked Becker what he would have to show that the company owed him, and Becker said that he would give his note; that Becker told both the Shermans that the note would be all right and would be just as much the note of the Hartford Life Insurance Company as though the officers themselves signed it; that Nicholas J. Sherman then signed the

receipt for $4,000, and Becker, having secured the receipt and the policy, was about learing, when Sherman said that he must have something to show that the company owed him; that Becker then figured the balance, after deducting the first premium of $141 on the other policy; that Sherman then produced a blank note and filled it up for that sum, and Becker signed it, and that Becker said if they wanted the money before it was due, to write and let him know, and he would see that the Hartford Life Insurance Company paid it. There was no contradictory evidence as to the representations of Becker or what occurred at the farm, but there were letters from Nicholas J. Sherman to Becker, at Makanda, Ill., tending to prove that the plaintiffs looked to him personally for payment of the note. The other evidence for the defendant consisted of the opinions of witnesses that the alleged signatures of the Shermans, which they had denied, were genuine, and the testimony of one of the witnesses to handwriting that Mr. Sherman admitted the signature to the $2,000 receipt, purporting to be signed by him, to be genuine. Sherman and his attorney both denied that such an admission was made. Counsel for both parties have argued at great length the controverted questions of fact; one side contending that the verdict was against the clear preponderance of the evidence, and the other insisting that it was fully justified by the evidence, and but a small part of either argument pertains to any matter cognizable in this court. The question whether the finding of the jury was against the weight of the evidence has been finally settled by the judgment of the Appellate Court.

The court gave at the request of the plaintiffs three instructions. The third, which related to the measure of damages, is not objected to, but it is contended that the first and second were wrong. The first stated at considerable length the things which it was necessary for the plaintiffs to prove in order to recover; and one of the things to be proved was that the defendant had not paid to the plaintiffs more than $2,141. It is argued that this clause was misleading, because the payment was made in two checks of $2,000 each, and not in money, and was made through Becker, and not directly to the plaintiffs. We do not see how the jury could have supposed from this instruction that, if payment was made in the checks and through Becker, it was not a payment. It is further contended that the instruction was erroneous in requiring the jury to believe, in order to defeat a recovery, that the plaintiffs knowingly and understandingly executed and deliv. ered a release and satisfaction of their claim without fraud of the defendant or its agent. It is said that even if the Shermans never knowingly signed the receipts or delivered them, yet, if they made an arrangement with Becker whereby they took his personal note, there would be no right of recovery. It may be that there would have been some basis for this criticism if no other instructions had been given, but the tenth instruction given at the request of the defendant informed the jury as to the law if the jury believed, from the evidence, that the plaintiffs used part of the proceeds of the insurance policy by loaning the same to Becker. It is not necessary that the instructions on one side shall include the theory of the opposite party as to the facts, and it was therefore unnecessary that the instructions asked by the plaintiffs should include the theory that Becker borrowed the money of them, or was to account personally to them for the balance unpaid.

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Another objection to the instruction is that it assumed that Becker was defendant's agent. There was no such assumption in the instruction. But if it should be conceded that there was, it would not be erroneous on that account, since the fact that Becker was defendant's agent in obtaining whatever receipt was obtained was proved, and not disputed. The receipts which defendant insisted were signed were sent to Becker for the purpose of obtaining the signatures, and the checks with which to make payment were intrusted to him; and the rule is that, where the acts of an agent will bind his principal, his representations, declarations, and admissions respecting the subject-matter will also bind the principal, if made at the same time and constituting a part of the res gesta. Story on Agency, 134; Linblom v. Ramsey, 75 Ill. 246; 1 Am. & Eng. Ency. of Law (2d Ed.) 1141. If any false representations were made by Becker in executing the authority conferred upon him, such representations were binding on the defendant. The fact that Becker was the agent of defendant in making payments was not disputed, but the claim of the defendant was that his false representations and fraudulent acts were unauthorized because not within the scope of his agency. Counsel also say that the instruction omits from the hypothesis of fact the indorsement by appellees of the two drafts for $2,000 each, and shifts the burden of proof as to them. It was not a part of plaintiffs' theory of the case that they made the indorsements, which they denied, and the instruction did not attempt to advise the jury as to the burden of proof. The third instruction asked by the defendant, and given, informed the jury that fraud is never presumed, and that fraud of an agent is never imputed to the principal unless committed under the direction of the principal or within the scope of the agent's authority. Thirteen instructions were given at the instance of the defendant, which fully covered every defense claimed by it. The jury were advised that if Becker made fraudulent and untruthful statements and representations, defendant was not responsible for them, nor bound thereby, unless made within the scope of his agency; that he could bind the principal only when acting within

the scope of his authority; that a person dealing with an agent does so at the risk of being required to show that the agent has the authority to do the particular thing which he assumes to do as agent; that if Becker was not authorized to make the false and fraudulent representations alleged, and his conduct was not such as to justify plaintiffs in believing that he had authority to make them, the defendant was not bound; and that if Nicholas J. Sherman executed the receipt in full, and knew that it was a receipt and release, the jury had no right to find a verdict in favor of plaintiffs, or either of them, and, in such a case, the verdict should be in favor of defendant.

The second instruction given at the request of the plaintiff's related to the legal effect of taking the note of a third party by a creditor, and it is conceded that in ordinary cases the instruction would be correct. The instruction was not, perhaps, strictly applicable to the case made by the plaintiffs, since they both testified that the note was given and taken as the note of the company under the assurance that it bound the defendant to the same extent as if executed by one of its officers. We do not think, however, that the instructions, viewed as a whole, were unfavorable to the defendant, or that they afford any ground for reversing the judgment.

The last point stated in the brief of the counsel for appellant is that if the plaintiffs, or one of them, executed and delivered a release of the cause of action, it could not be set aside in a court of law, and that chancery alone would have jurisdiction to set it aside. That question was not raised in any manner in the trial court. If the doctrine invoked has any application to a receipt which is admitted to be genuine, it could not be availed of here for the first time, and in this case plaintiffs claimed that the receipts were not signed by them or either of them.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

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FARMER and VICKERS, JJ., took no part in the decision of this case.

(222 Ill. 543) MOFFET v. TARWELL. (Supreme Court of Illinois. Oct. 23, 1906.) MORTGAGES-RELEASE BY MERGER-INTENTION OF PARTIES.

Whether a merger results from the uniting of the fee with a mortgage estate in the same person depends upon the intent and interest of the parties. The presumption is that a merger was not intended by the grantee when the mortgage is essential to his security as against an intervening title or lien, and such presumption is not overcome by the fact that he canceled and surrendered the notes and mortgagc.

[Ed. Note.-For cases in point, see vol. 35, Cent. Dig. Mortgages, $8 819, 820.]

Appeal from Appellate Court, Third District.

Suit by John V. Farwell, Jr., against Alva C. Moffet. Defendant appeals from a decree of the Appellate Court, affirming a decree for complainant. Affirmed.

Ed. D. Henry, for appellant. J. Marshall Miller and A. L. Hamilton (Layman & Morrisey, of counsel), for appellee.

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FARMER, J. On the 18th day of March, 1891, John A. Crain and wife executed a mortgage to Charles B. Farwell on certain lots in Waverly, Morgan county, Ill., to secure a note for $5,000, bearing interest at 8 per cent. and due one year after date. The title to the lots was in Mrs. Crain. She died some year and a half later, leaving a will, in and by which she devised the said lots to her husband, John A. Crain. In January, 1899, the Drovers' National Bank obtained a judgment against Crain in the county court of Morgan county for $564.11, and caused execution to issue thereon within a year from the date of the judgment, which was returned not satisfied. Subsequently $73 was paid on the judgment, and, on March 4, 1902, the judgment was assigned by the bank to Thomas Crain, who, on October 14, 1902, assigned it to plaintiff in error. February 17, 1902, John A. Crain executed a deed for said lots to Charles B. Farwell. The deed recited that John A. Crain, "in consideration of the canceling of a certain promissory note and mortgage in favor of the grantee herein and $1 in hand paid, conveys and quitclaims to Charles B. Farwell lots 1 and 2," etc. The deed also contained covenants that the grantor warranted and would defend "against any estate, interest, or claim of heirs, claimants, administrators, and executors of himself or his late wife.” On April 22, 1903, Charles B. Farwell and wife conveyed the premises by quitclaim deed to defendant in error, John V. Farwell, Jr.

The amended bill filed by defendant in error, after setting up the facts as herein above related, averred that the defendant was threatening to have an execution issued on his judgment and levy the same on the lots in controversy. The bill then alleged that the deed from Crain to Charles B. Farwell was in lieu of the mortgage security and made to avoid the expense and delay incident to foreclosure proceedings, and prayed that the judgment held by plaintiff in error, as assignee, be declared a junior lien, and subject to the deed from Crain to Farwell, and that the plaintiff in error be required to redeem as a judgment creditor within such time as the court might fix, by paying such sum as the court should find the premises to be worth, and that, upon his failure to re

, forever barred and enjoined

the purpose and effect of the deed from Crain to Charles B. Farwell, and avers it was said Farwell's intention in receiving the conveyance to cancel, discharge, and satisfy the mortgage debt, whereby the judgment of plaintiff in error became a prior lien upon the premises in question, and admitted that defendant was threatening and endeavoring to have the same satisfied out of a sale of the lots under execution on said judgment. The cause was heard in the circuit court upon a stipulation of facts, wherein, among other things, it was agreed that upon the delivery of the deed from Crain to Charles B. Farwell the note and mortgage mentioned were canceled and delivered to Crain, but no release or satisfaction was made of record unless it was contained in the deed. It was also agreed that, at the time of the delivery of the deed to Farwell, and at the time of the trial, the lots were not worth more than $2,000; 'that Crain was insolvent, and was so known to be to the grantee when he made the deed, and that the amount due on the note and mortgage above the value of the property was about $4,000; that plaintiff in error purchased the judgment after the deed from Crain to Farwell was recorded and with actual knowledge of its contents. It is also stipulated that “the deed given by Crain and received by Charles B. Farwell was in satisfaction of the indebtedness represented by said note and mortgage and given in lieu of the mortgage security, and to avoid the expense and delay incident to foreclosure proceedings on said mortgage,” and that Charles B. Farwell and wife conveyed the premises by quitclaim deed to defendant in error. The circuit court found and decreed that there was due on the mortgage indebtedness to Farwell about $6,000, and that Crain executed the deed to him in lieu of the mortgage security, and to avoid the cost and delay incident to foreclosure proceedings; that Crain was insolvent, and that at the time he made the deed to Farwell, and at the time of the trial of the cause, the property described in the mortgage and deed was worth $2,000. The court further found that there $ was no merger; that the lien of plaintiff in error by virtue cf the judgment was subject to the rights of defendant in error, and decreed that plaintiff in error might redeem the premises by paying defendant in error, within three months from the date of filing the decree, $2,000, with interest thereon at 5 per cent.; and upon his failure to do so, he and all persons claiming by, through or under him, be forever barred, foreclosed, and perpetually enjoined from asserting said claim in any manner or form against the said premises. On appeal to the Appellate Court the decree of the circuit court was affirmed, and the case is brought here by writ of

from asserting any "lien vora claim oni said The principal question in this record is,

premises by reason of said judgment. The answer denies the allegations of the bill as to

whether, by the acceptance by Charles B. Farwell of a deed from Crain, the mortgage

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became merged in the fee, and ceased to be record by the mortgagee upon the receipt of a a prior lien on the premises as against the deed to the mortgaged premises. See, also, judgment held by plaintiff in error. Wheth- Farrand v. Long, supra. We have already er a merger results from a greater and less seen that the law presumes a mortgagee to estate uniting in the same person depends have intended to keep his mortgage alive. upon what will best subserve the purposes of In 1 Jones on Mortgages (3d Ed.) § 873, it is justice and the intention of the parties. This said: “It is presumed as a matter of law court has held the question always to be one that the party must have intended to keep of intention, and that the interests of the on foot his mortgage title when it was esparties and their intentions are controlling sential to his security against an intervening considerations. Richardson v. Hockenhull, title or for other purposes of security; and 85 Ill. 124. "The intention is the controlling this presumption applies although the parties, consideration, where it has been made known through ignorance of such intervening title or can be inferred from the acts and conduct or through inadvertence, have actually disof the party, and the court will look into all charged the mortgage and canceled the notes." of the circumstances of the case to ascertain Of course, such presumption of the law could his real intention. If it appears that he in- not prevail if a contrary intention appeared

from the evidence. No such contrary inexclusively upon his newly acquired title, the tention appearing from the evidence in this incumbrance is regarded as extinguished and case, the judgment of the Appellate Court is cannot afterward be set up to strengthen and affirmed. support that title. If no intention has been The time for redemption allowed plaintiff manifested, equity will consider the incum- in error by the decree of the circuit court will brance as subsisting or extinguished, as may be extended to three months from the date of be most conducive to the interests of the filing this opinion. party." Campbell v. Carter, 14 Ill. 286.

Decree affirmed. Edgerton v. Young, 43 Ill. 464, it was held that whether a merger resulted from a greater and less estate meeting in the same person

(222 Ill. 639) depends upon the intent and interest of the

NOBLE V. TIPTON et al. parties, and that a court of equity will keep

(Supreme Court of Illinois. Oct. 23, 1906.) alive both estates if it appears necessary to the ends of justice to do so. It was

APPEAL-REMAND-PROCEDURE BELOW.

Where, on appeal, the Supreme Court held said in Shippen v. Whittier, 117 Ill. 282, 7

that a deed was never delivered during the N. E. 642: “The conveyance of the mort- lifetime of the grantor, and was null and void, gagor's estate to the mortgagee does not oper

and the cause was remanded, with directions ate as a merger, in equity, unless it was

to proceed in conformity with the views express

ed in the opinion, the trial court properly refused intended to have that effect." These prin- to allow an amendment alleging that the deed in ciples are sustained by Lowman v. Lowman, question was intended as a testamentary disposi118 Ill. 582, 9 N. E. 245, Shaver v. Williams,

tion, and entered judgment without a retrial. 87 Ill. 469, and Farrand v. Long, 184 Ill. 100, Appeal from Circuit Court, Carroll County; 56 N. E. 313.

0. E. Heard, Judge. Three things are relied upon by plaintiff in Action by Elizabeth Tipton and another error as establishing the intention of Charles against Thomas Noble and others. From a B. Farwell, at the time of taking the deed,

decree in favor of complainants, defendant to be to relinquish all right and interest under TI nas Noble appeals. Affirmed. the mortgage and rely solely upon the deed, namely, the acceptance of the special war

C. L. Hostetter, for appellant. Ralph E. ranty deed, the cancellation and delivery to

Eaton, for appellees. Crain of the note and mortgage, and the paragraph in the stipulation of facts that HAND, J. This was a bill in chancery filed the deed was received in satisfaction of the on the 15th day of June, 1904, in the circuit indebtedness represented by the note and court of Carroll county, by Elizabeth Tipton mortgage and in lieu of the mortgage se- and Ada Ostandere, against the other sons curity, and to avoid the expense and delay

and daughters of John Noble, deceased, who of foreclosure. We are of opinion the evi- died testate in said county on May 22, 1904, dence in this record does not show Farwell's to set aside a deed bearing date August 24, intention to have been to release all claim 1897, from John Noble to his son Thomas and right under the mortgage and rely solely Noble, purporting to convey to said Thomas upon the deed. There is nothing in the deed Noble 503.56 acres of farm lands located from Crain to him from which such intention in said county, on the ground said deed had is necessarily to be inferred, nor does the not been delivered by said John Noble to delivery to Crain of the canceled note and Thomas Noble in the lifetime of said John mortgage prove that such was his intention Noble, and for the partition of said lands and purpose. This court held in Richardson among the three sons and six daughters of v. Hockenhull, supra, that such an intention said John Noble. Thomas Noble answered was not proven by the surrender of the note said bill and filed a cross-bill, in which crossand the release of the mortgage upon the bill he alleged, as he had alleged in the an

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