Mapes v. Scott

Mr. Justice Craig delivered the opinion of the Court: This is an appeal from a judgment rendered in the circuit court of Morgan county, in an action of ejectment, in which the plaintiffs in the action recovered the possession of the premises described in the declaration. The action was commenced by summons issued October 20, 1874, returnable to the November term of the Morgan circuit court. At the November term, 1876, and on the 14th day of November, the defendants served notice on the plaintiffs that they would, on that day, enter a motion for a change of venue. A petition was presented and the motion made. At the same time the plaintiffs entered a cross-motion, that the petition should only be allowed upon terms to be imposed by the court, as provided by section 11, Rev. Stat. 1874, p. 1094, which provides that the order for a change of venue may be made subject to such equitable terms and conditions as safety to the rights of the parties may seem to require, and the judge, in his discretion, may prescribe. Upon the hearing of the motion, the court made an order granting the change of venue on condition that defendants execute a bond in the sum of $500, conditioned to secure the plaintiffs in the payment of rent for the premises, in the event of a recovery by them. The defendants refused to execute a bond, as required, and excepted to the ruling of the court. Where a petition for a change- of venue is filed in a civil case and the petitioner complies with the requirements of the statute, the court has no discretion in deciding whether or not the venue of the case shall be changed. The statute on this point is imperative. The Knickerbocker Insurance Co. v. Tolman, 80 Ill. 106. But under the section of the statute, supra, the order for a change of venue may be made subject to such equitable terms as safety to the rights of the parties may require, and the judge, in prescribing the terms and conditions, must exercise a sound discretion. The only question, therefore, to be determined is, whether the circuit court, in deciding upon the application, exercised a proper discretion, or were the terms imposed an abuse of that discretion conferred by the statute. The exercise of a discretion can not be held to be ground for a reversal of the judgment unless there was an abuse of the discretionary power of the court which was clearly prejudicial to the rights of the petitioners. On the hearing of the motion the plaintiffs filed an affidavit, from which it appeared that the plaintiffs bought the premises in controversy from parties who obtained title from the defendants, or some of them; that the use of the premises is worth to the plaintiffs $600 annually; that two of the defendants reside out of the State, and the other defendants have no real or personal property out of which the rents, or damages for withholding the possession of the premises, could be recovered should they succeed in the action of ejectment; that the cause had once been tried, resulting in favor of the plaintiffs. It also appears from the affidavit that the plaintiffs have been subjected to a loss of not less than $600 annually since the commencement of the suit, by being deprived of the use of the premises. How, if this affidavit was true, and its truth was not contradicted on the hearing of the motion, was there such an abuse of discretion exercised by the court in requiring the defendants to execute a bond in the penal sum of $500 to secure the payment of the rent of the premises, as would justify a reversal of the judgment upon the ground that the court had abused a discretionary power conferred by the statute? We think not. If the defendants were defending the action in good faith, and had a meritorious defence, it would have been an easy matter to have complied with the order of the court, and the bond would have imposed no liability upon them. If, on the other hand, the defence was interposed for delay merely, then it was but right that they should be required to give some guaranty that at the end of the litigation a reasonable rent for the use of the premises should be paid. While the court had no power to impose arbitrary terms as a condition to granting a change of venue, such as would defeat the right conferred by the statute, in a case of this character, yet when the terms are equitable, and such as impose no great hardship upon the party, unless the statute which gives the circuit court the power is to be disregarded, we perceive no ground upon which it can be held that the court exceeded the powers given by the statute in making the order that was made in this case.. At two subsequent terms of court the application for a change of veuue was renewed, but as the notice given of the intended application was insufficient, the court did not err in-overruling the petitions. It is also insisted that the court erred in admitting in evidence an exemplified copy of a patent from the United States to John P. Tefft, for the reason that the range, county and State are omitted in the description of the premises. The description of the land in the patent is as follows: The west half of the south-west quarter of section nine, in township fifteen north, range ten west, in the district of lands offered for sale at Springfield, Illinois. As respects the range, the objection has no foundation in fact. As to the county, it is not essential that it should be named. In regard to the State, we had not supposed, when the patent specifies that the land was in the district of lands offered for sale at Springfield, Illinois, that there could be any uncertainty as to the location. The plaintiffs, in their chain of title, read in evidence a deed from James Dunlap to Seely and Holland for an undivided half of the land in question. Afterwards Seely and wife conveyed to Holland an undivided one-fourth part of the same. It is insisted that this does not vest Holland with an undivided half. We perceive no ground for a doubt on this question. Seely and Holland obtained a deed for an undivided half. Each then had an undivided fourth, and when Seely conveyed the undivided fourth, his deed passed all the interest he had in the premises. The plaintiffs, in establishing their chain of title, offered in evidence two certain deeds made to the First Sational Bank, Jacksonville. It is insisted by the defendants that these deeds should have been excluded—that the bank could not take and convey real property. Testimony was introduced tending to prove that the bank acquired the property in paymentof a pre-existing debt. There can be no doubt in regard to the right of a national bank to acquire real estate in satisfaction of a pre-existing indebtedness. In Mapes v. Scott, 88 Ill. 352, this point was expressly decided. But, independent of this view, the right of the bank to acquire the property could not be raised in this collateral manner. Conveyances to a national bank must for all purposes be regarded as valid until called in question by a direct proceeding instituted for that purpose by the government, as held in National Bank v. Mathews, 8 Otto, 621. As this decision of the Supreme Court of the United States involves a construction of an act of Congress, it is paramount and must prevail. It is also contended that the judgment is fatally defective in not specifying the particular estate recovered. By the averments'in the declaration the plaintiffs claim to own the premises in fee. The jury by their verdict found the defendants guilty, and that plaintiffs are owners in fee of the premises described in the declaration. The verdict of the jury was in strict conformity to the statute, which requires the verdict to specify the estate established on the trial. Section 32 of chapter 45, Ejectment, provides that the judgment shall be that plaintiff recover the possession of the premises according to the verdict of the jury. The judgment entered here was as follows: “It is therefore ordered by the court, that the said plaintiffs are entitled to, and shall have and recover of and from the said defendants, the possession of the premises described in the declaration, to-wit.” Now, while the judgment here entered is not in strict conformity to the requirements of the statute, and may be regarded as technically defective, yet, when the verdict and judgment are considered together, there can be no doubt in regard to what the judgment of the court was, and when that is apparent and the finding is correct in law, a judgment will not be reversed on account of some technical defect. Minkhart v. Hankler, 19 Ill. 47. Some other questions of minor importance have been raised, but we see no substantial merit in them, and it will not be necessary to consider them here. The judgment will be affirmed. Judgment affirmed.