The Northeastern Reporter

force, while the other construction would render it wholly frivolous and ineffectual, and thereby frustrate the object which the contracting parties intended to accomplish by it.

The maxim, "Ut res magis valeat, quam pereat," applies. The constitution of the state, in section 5 of article 13, provides as follows: "All railroad companies receiving and transporting grain in bulk or otherwise, shall deliver the same to any consignee thereof, or any elevator or public warehouse to which it may be consigned, provided such consignee, or the elevator or public warehouse, can be reached by any track owned, leased or used, or which can be used by such railroad companies." This provision was reenacted in section 3 of the act of April 25, 1871 (Rev. St. 1874, p. 814). In Hoyt v. Railroad Co., 93 Ill. 601, we said: "Where a railroad company has given no license or permission to another company to use their tracks, then such tracks never become a part of the line of road of the other company"; and also said: "Under the evidence in this record, there is no pretense for saying that it [Chicago, Burlington & Quincy Company] has a license from the Alton Company, and the testimony of the president of that company rebuts any such presumption." And herein the case at bar is easily distinguished from the Hoyt Case. The record in the present case not only shows that there is a physical connection between the tracks of the Madison & Northern Company and those of the Alton Company, on the tracks known as "interchange tracks," between Mary street and Halsted street, in the city of Chicago, but it also shows the tripartite agreement of October 1, 1891, wherein the latter company covenanted and agreed with the Madison & Northern Company and the Santa Fé Company, severally, that it would receive all cars loaded with grain, consigned to the National Elevator or to the Chicago & St. Louis Elevator, which shall be brought to Chicago by said two last-named parties, respectively, over their respective lines of railroad, and which shall be delivered by them, or either of them, to the Alton Company upon its side track to be constructed for that purpose between Mary street and Halsted street, and that it will cause all such cars to be transferred to and delivered at either of said elevators to which the same may be consigned. This contract, for all the substantial purposes of the contract between the Madison and the Santa Fé Companies and the two elevator companies, makes the Alton tracks to the elevators "tracks which can be used by such railroad companies," and virtually parts of their respective lines of road. Under its contract and the law of this state, it is the duty of the Chicago, Madison & Northern Railroad Company to deliver to these two elevators.

or cause to be so delivered, all grain brought over its lines to Chicago, whether consigned to either of said elevators at the point of shipment, or otherwise directed to be delivered to either of them by the owner or consignee while the grain is in the possession of said railroad company.

It is claimed that the Chicago & Alton Railroad Company is a necessary party to this suit; that, it not being a party, the court cannot make a decree which will be binding upon that corporation; and that a court of equity will not interfere, either by way of injunction or by decree of specific performance, to compel the performance of the agreement, since it is not in the power of the defendants to obey the order of the court. We are inclined to the opinion that the Alton Company, although probably a proper, is not a necessary, party to the suit. It is not a party to the contract to enforce which the suit is prosecuted. The Madison & Northern Company and the Santa Fé Company contracted with appellees "to deliver and to arrange for and procure all necessary accommodations and concessions from the Chicago & Alton Railroad Company" to carry out the agreement that is sought to be enforced. In the absence of allegations and proof to the contrary, it is to be presumed that they have complied with their agreement in that regard. Indeed, from the tripartite agreement which is in evidence, from the fact that the tracks known as the "interchange tracks," were constructed by the Alton Company for the express purpose of enabling it to perform its part of that contract, from the fact that the Santa Fé Company has delivered or caused to be delivered by the Alton Company, uniformly, and from day to day, any and all grain ordered from their tracks to either of the two elevators, and from other facts in the record, it would seem that there is no reason for anticipating any difficulty from the Alton Company. And the appellate court did not direct a decree against the Alton Company. Its rights, if any, are in no way jeopardized. When the objection of the nonjoinder of a party is not taken by demurrer or by plea or by answer, such objection receives little favor from the courts, and in such a case, to be of avail, it must appear that the decree will have the effect of depriving the party omitted of his legal rights. Washburn & M. Manuf'g Co. v. Chicago Galvanized Wire Fence Co., 109 Ill. 71. We understand it to be in accord with correct chancery practice that the corporation of Murry Nelson & Co., improperly joined as a party complainant, was directed by the appellate court to be dismissed out of court prior to the entry of final decree in favor of the other complainants. The judgment of the appellate court is in all things affirmed. Affirmed.

FRANKLIN v. McDONALD et al.1 (Supreme Court of Illinois. Oct. 29, 1894.)

APPEAL-JURISDICTION-FREEHOLD.

Where a complainant prays as against -one defendant relief that involves a freehold, and as against another relief that does not, an appeal by him from a decree which grants him relief as against the former defendant but not as against the latter does not involve a freehold, within the meaning of the statute regulating appeals.

Appeal from superior court, Cook county; W. G. Ewing, Judge.

Bill by Lesser Franklin against the Loan & Investment Company of North America, James A. McDonald, and another, to set aside certain conveyances as clouds on his title. Complainant obtained a decree for only part of the relief prayed for, and he appeals. Appeal dismissed.

Newman & Northrup, for appellant. Bates & Harding, for appellees.

BAKER, J. Lesser Franklin, appellant, filed his bill in equity, and made the Loan & Investment Company of North America, R. S. Tuthill, trustee, and James A. McDonald defendants thereto. The suit, as between appellant and McDonald, involved a freehold; but as between appellant and the Loan & Investment Company and its trustee the only question was whether or not the freehold estate in the hands of appellant was liable to the lien of a certain deed of trust executed to Tuthill as trustee, to se-cure an indebtedness due from McDonald to the company. In respect to the controversy between complainant and McDonald the decree of the superior court of Cook county was in favor of the former, but in respect to the controversy between him and the company and its trustee it was against him. From that portion of the decree that was in favor of the Loan & Investment Company and Tuthill, appellant took this appeal, and his assignments of error question the decretal orders in that portion only.

It is insisted by appellees that the appeal should have been taken to the appellate -court, and that this court is without jurisdiction to entertain it. This insistence must prevail. We have held in several cases that, where a freehold is involved in the original decree, but not in the points assigned for error, the appeal should be to the appellate court, and not to this court. Cheney v. Teese, 113 Ill. 444; Walker v. Pritchard, 121 III. 221. 12 N. E. 336; Malaer v. Hudgens, 130 Ill. 225, 22 N. E. 855; Moore v. Williams. 132 Ill. 591, 24 N. E. 617. The appeal is dismissed, at the cost of appellant. Leave is given him to withdraw the record abstract and briefs from the files, so that he may, if he shall be so advised, sue out a writ of error from the appellate court. Appeal dismissed.

1 Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

A transfer of personal property by an absolute bill of sale cannot be shown by parol evidence to be an assignment for the benefit of creditors, since all such assignments must be by written instrument expressly declaring the trust.

Appeal from appellate court, First district. Petition by Robert P. Price and James E. Keith against Charles A. Laiug and others to have a certain bill of sale declared a general assignment. Petitioners obtained a decree, which was reversed by the appellate court. 50 Ill. App. 324. Petitioners appeal. Aflirmed.

Cratty Bros. and Jarvis & Cleveland, for appellants. E. C. Crawford, for appellees.

BAKER, J. Isaac F. Laing and George Laing were partners as merchants under the firm name of I. F. Laing & Co., and were doing business at 229 South Water street, Chicago. They were indebted to Charles A. Laing, brother of George, in the sum of $9,925.38, and to John H. Laing, son of Charles A., and nephew of George, in the sum of $2,300. The firm became insolvent and unable to continue business. Late in the day of July 5, 1892, I. F. Laing & Co. executed and delivered to Charles A. and John H. Laing a bill of sale conveying to them for the expressed consideration of $12,200 all the property of the firm, and Charles A. and John H. Laing surrendered the notes which they held for the two sums first above Chicago. Theye were indebted to Charles A. and John H. took possession of the property, and began to do business under the name of C. A. Laing & Son. Robert P. Price and James E. Keith were creditors of I. F. Laing & Co., and filed in the county court of Cook county a petition to have the bill of sale declared to be an assignment for the benefit of the creditors, upon the allegation that at the time of the execution of the bill of sale it was understood and agreed between the parties to it that, after paying the debts which it was given to pay, then "the surplus, if any, should be turned over to the attorney of said Laings for the benefit of other creditors of said Isaiah F. and George Laing." It is now a matter of dispute between the parties to this litigation whether the evidence proves such allegation. But in the view we take of the case, it is unnecessary to determine that dispute. The county court entered an order finding that I. F. Laing & Co. had made a voluntary assignment for the benefit of their creditors, and removing Charles A. Laing and John H. Laing as assignees, and appointing Matthew P. Gilbert as assignee, and directing him to take im

1 Reported by Louis Boisot, Jr.. Esq., of the Chicago bar.

force, while the other construction would render it wholly frivolous and ineffectual, and thereby frustrate the object which the contracting parties intended to accomplish by it.

It is claimed that the Chicago & Alten Railroad Company is a necessary party to this suit; that, it not being a party, the court cannot make a decree which will be binding upon that corporation; and that a court of equity will not interfere, either by way of injunction or by decree of specific performance, to compel the performance of the agreement, since it is not in the power of the defendants to obey the order of the court. We are inclined to the opinion that the Alton Company, although probably a proper, is not a necessary, party to the suit. It is not a party to the contract to enforce which the suit is prosecuted. The Madison & Northern Company and the Santa Fé Company contracted with appellees "to deliver and to arrange for and procure all necessary accommodations and concessions from the Chicago & Alton Railroad Company" to carry out the agreement that is sought to be enforced. In the absence of allegations and proof to the contrary, it is to be presumed that they have complied with their agreement in that regard. Indeed, from the tripartite agreement which is in evidence, from the fact that the tracks known as the "interchange tracks," were constructed by the Alton Company for the express purpose of enabling it to perform its part of that contract, from the fact that the Santa Fé Company has delivered or caused to be delivered by the Alton Company, uniformly, and from day to day, any and all grain ordered from their tracks to either of the two elevators, and from other facts in the record, it would seem that there is no reason for anticipating any difficulty from the Alton Company. And the appellate court did not direct a decree against the Alton Company. Its rights, if any, are in no way jeopardized. When the objection of the nonjoinder of a party is not taken by demurrer or by plea or by answer, such objection receives little favor from the courts, and in such a case, to be of avail, it must appear that the decree will have the effect of depriving the party omitted of his legal rights. Washburn & M. Manuf'g Co. v. Chicago Galvanized Wire Fence Co., 109 Ill. 71. We understand it to be in accord with correct chancery practice that the corporation of Murry Nelson & Co., improperly joined as a party complainant, was directed by the appellate court to be dismissed out of court prior to the entry of final decree in favor of the other complainants. The judgment of the appellate court is in all things affirmed. Affirmed.

FRANKLIN v. McDONALD et al.1 (Supreme Court of Illinois. Oct. 29, 1894.)

APPEAL-JURISDICTION-FREEHOLD.

Where a complainant prays as against one defendant relief that involves a freehold, and as against another relief that does not, an appeal by him from a decree which grants him relief as against the former defendant but not as against the latter does not involve a freehold, within the meaning of the statute regulating appeals.

Appeal from superior court, Cook county; W. G. Ewing, Judge.

Newman & Northrup, for appellant. Bates & Harding, for appellees.

BAKER, J. Lesser Franklin, appellant, filed his bill in equity, and made the Loan & Investment Company of North America, R. S. Tuthill, trustee, and James A. McDonald defendants thereto. The suit, as between appellant and McDonald, involved a freehold; but as between appellant and the Loan & Investment Company and its trustee the only question was whether or not the freehold estate in the hands of appellant was liable to the lien of a certain deed of trust executed to Tuthill as trustee, to secure an indebtedness due from McDonald to the company. In respect to the controversy between complainant and McDonald the decree of the superior court of Cook county was in favor of the former, but in respect to the controversy between him and the company and its trustee it was against him. From that portion of the decree that was in favor of the Loan & Investment Company and Tuthill, appellant took this appeal, and his assignments of error question the decretal orders in that portion only.

It is insisted by appellees that the appeal should have been taken to the appellate -court, and that this court is without jurisdiction to entertain it. This insistence must prevail. We have held in several cases that, where a freehold is involved in the original decree, but not in the points assigned for error, the appeal should be to the appellate court, and not to this court. Cheney v. Teese, 113 Ill. 444; Walker v. Pritchard, 121 III. 221. 12 N. E. 336; Malaer v. Hudg-ens, 130 Ill. 225, 22 N. E. 855; Moore v. Williams, 132 Ill. 591, 24 N. E. 617. peal is dismissed, at the cost of appellant. Leave is given him to withdraw the record abstract and briefs from the files, so that he may, if he shall be so advised, sue out a writ of error from the appellate court. Appeal dismissed.

The ap

1 Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

PRICE et al. v. LAING et al.1

(Supreme Court of Illinois. Oct. 29, 1894.) ASSIGNMENT FOR BENEFIT OF CREDITORS - WHAT CONSTITUTES-PAROL EVIDENCE.

Appeal from appellate court. First district. Petition by Robert P. Price and James E. Keith against Charles A. Laiug and others to have a certain bill of sale declared a general assignment. Petitioners obtained a decree, which was reversed by the appellate court. 50 Ill. App. 324. Petitioners appeal. Allirmed.

Cratty Bros. and Jarvis & Cleveland, for appellants. E. C. Crawford, for appellees.

1 Reported by Louis Boisot, Jr.. Esq., of the Chicago bar.

mediate possession of the property. On appeal to the appellate court this order and decree was reversed, and the cause was remanded, with directions to dismiss the petition at the cost of Price and Keith; whereupon Price and Keith prosecuted this appeal to this court.

In Weber v. Mick, 131 Ill. 520, 23 N. E. 646, this court said in substance that at the time the voluntary assignment act of 1877 was passed, and for many years before, voluntary assignments for the benefit of the creditors constituted a class of conveyances or transfers of property well known in this and other states, and were as precisely and definitely known by that name as were any of the other classes of instruments by which property may be conveyed or transferred, such as deeds of conveyance of real property or chattel mortgages; and that such assignments have always been understood to be instruments voluntarily executed by failing debtors by which they assign to some person as assignee or trustee the whole, or sometimes the bulk, of their property, to be by such assignee or trustee distributed among the assignor's creditors in satisfaction of their demands. In Burrill on Assignments (chapter 9), it is said that every assignment in trust may be considered as composed of two principal parts, a transfer and a trust or trusts; and also said that in general assignments made by insolvent debtors a writing of some kind is always required, not only as a security against fraud and collusion, but as a necessary means of giving effect to the assignments themselves; and further said that in some cases very informal writings have been pronounced sufficient as assignments. Like doctrine is announced in 1 Am. & Eng. Enc. Law, pp. 855, 856. In Farwell v. Cohen, 138 Ill. 216, 28 N. E. 35, and 32 N. E. 893, a very informal written instrument was held to be a voluntary assignment for the benefit of creditors. It, however, transferred property, and declared a trust. In Bank v. Reigart, 4 Pa. St. 477, a deed of absolute conveyance and a declaration of trust, in separate instruments, were held to be an assignment. See, also, Shubar v. Winding, 1 Cheves, 218; Hall v. Marston, 17 Mass. 575; and Johnson v. Whitwell, 7 Pick. 71. In Farwell v. Nilsson, 133 Ill. 45, 24 N. E. 74, this court said that the act of 1877 contemplates no such thing as a constructive assignment, and that, before the county court gets jurisdiction, an actual assignment must be made; and further said that there must be the execution of an instrument, in whatever form, which creates a trust for the benefit of creditors. And in Farwell v. Cohen, 138 Ill. 216, 28 N. E. 35, and 32 N. E. 893, we said that an assignment already made is a preliminary requisite to the exercise of any jurisdiction whatever by the county court, and that the sole power of that court is to supervise and regulate the administration of a trust pre

viously created by the act of the assignor. But it is urged by appellants that a trust in personal property may be created and proved by parol evidence, and a long list of authorities is cited as sustaining that proposition. We have no question that the general doctrine is as stated. That rule, however, is not decisive of the point here at issue. As we have already seen, the general rule is that the voluntary assignment of an insolvent debtor for the benefit of his creditors is required to be contained in a writing of some kind. And as already stat

ed, we said in the Nilsson Case, supra, "there must be the execution of an instrument, in whatever form, which creates a trust for the benefit of the creditors." And, moreover, the act itself contemplates an assignment in writing only. This must be so, for it makes provision for an inventory of property and a list of creditors to be annexed to the assignment, and also makes provision for the acknowledgment and recording of the assignment. And it is im material whether these provisions are regarded as directory or mandatory, because the fact that the assignment is spoken of in the act as an instrument that may be acknowledged and recorded and have an inventory of property and a list of creditors annexed to it shows that it must necessarily be in writing. The declaration of trust is as much an essential part of an assignment for the benefit of creditors as is the conveyance or transfer of property. It, of course, needs no citation of authorities to show that the title to personal property, goods, and chattels may be transferred by parol without any writing, and may be proved by oral testimony. The claim and the logic of appellants would lead to this result: that a writing is not essential to establish either the transfer of title or the declaration of trust, and therefore neither are prerequisites to a verbal assignment for the benefit of creditors, and such an assignment may rest wholly in parol. A result such as this is not in consonance with the common understanding and practice in the mercantile and business community, with the doctrine laid down in the books, with the adjudged cases, or with the evident intent of the leg islature as indicated by the provisions of the act.

The act contemplates no such thing as a constructive assignment. It was so said in the Nilsson Case and in other cases. The words "constructive assignment" specify this: that in the absence of a deed, instrument, or writing transferring property to a person or persons in trust for the benefit of creditors the court, upon proof of certain acts, declarations, and admissions or other matters in proof, will deduce therefrom a conclusion that an assignment for the benefit of creditors was intended, and out of the facts so proven make and construct for the parties an assignment which the parties never made for themselves. For example,

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