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5. GUARDIAN AND WARD (§ 108*)-SALE OF his brother, the defendant Oscar D. Blake, PROPERTY PURCHASE BY GUARDIAN to acquire title to the property and defraud THROUGH AN INTERMEDIARY-SUBSEQUENT his wards. In pursuance of the fraudulent PURCHASERS-RIGHTS. arrangement the premises were struck off to Oscar D. Blake for $1,750, and the sale was reported on the same day to the county court. The report stated that the entire purchase price was paid in cash, and the report was immediately approved, and on the

A purchaser of property with notice that a guardian has wrongfully acquired it from himself as a trustee, while going through the form of a proceeding to sell the property, takes it subject to the same equities as when it was in the guardian's hands, and cannot be regarded as a bona fide purchaser.

[Ed. Note.-For other cases, see Guardian and

Ward, Cent. Dig. §§ 369, 395-398; Dec. Dig. § same day of the sale the guardian executed 108.*] a deed to the supposed purchaser. On the same day Kyle H. Blake, for an alleged consideration of $375, quitclaimed to Oscar D.

Dunn, J., dissenting. Appeal from Circuit Court, Gallatin Coun- Blake his interest in the real estate as surty; William H. Green, Judge.

Bill by Henry H. Blake and others, infants, suing by their next friend, against Oscar D. Blake and others to set aside a guardian's sale of certain land. From a judgment in favor of complainants, defendants appeal. Affirmed.

William T. Pace, of Mt. Vernon, and M. E. Lambert and D. M. Kinsall, both of Shawneetown, for appellants. Roedel & Roedel, of Shawneetown, for appellees.

CARTWRIGHT, J. The circuit court of Gallatin county overruled demurrers of the appellants, Oscar D. Blake, Joseph Rendleman, Mildred Rendleman, A. S. Wyatt, and the Old People's Home of the St. Louis German Conference of the Methodist Episcopal Church, to the amended bill filed against them and Kyle H. Blake by the appellees, Henry H. Blake, Harry C. Blake, and Bessie M. Blake, infants, suing by their next friend, by which the appellees asked the court to set aside the sale of their lands by their guardian, Kyle H. Blake, and the guardian's deed, subsequent deeds, and a mortgage. The appellants having elected to stand by their demurrers, and Kyle H. Blake having been defaulted, a decree was entered in accordance with the prayer of the bill, and the case was brought to this court by appeal.

The facts alleged in the bill and admitted by the demurrers are as follows: Kyle H. Blake, the father of complainants, was appointed their guardian by the county court of Gallatin county on May 16, 1909, and gave a bond in the sum of $500, with sureties who are insolvent. He filed his petition in the county court for an order to sell the real estate of his wards, the complainants, and on July 6, 1909, presented to the court an alleged bond in the penal sum of $2,500, dated June 26, 1909, and purporting to be executed in compliance with the statute requiring an additional bond in case of a sale of real estate. The bond was approved by the court and ordered filed, but the signatures of the sureties and the justice were all forged by the guardian. The court entered a decree for sale of the interests of the complainants in the property, and a sale was made on August 7, 1909. The guardian conspired. with

viving husband of the complainants' mother, from whom they inherited the land. On August 19, 1909, Oscar D. Blake and wife conveyed the property to Kyle H. Blake for an expressed consideration of $1,800, and that deed and the guardian's deed were both recorded at the same time, on August 26, 1909. No money or other consideration passed between the guardian and his brother at ei. ther transaction, and the statement in the report that the amount of the bid had been paid was false. On September 29, 1909, Kyle H. Blake executed a mortgage on the land to the defendant A. S. Wyatt to secure his promissory note of the same date for $800, payable five years from October 1, 1909, with 7 per cent. interest, and on October 29, 1909, that mortgage was assigned to the Old People's Home of the St. Louis German Conference of the Methodist Episcopal Church, a corporation. On August 31, 1911, Kyle H. Blake conveyed the property to the defendant Joseph Rendleman for a consideration of $900, and on the same day Rendleman and his wife executed their bond for a deed, conditioned that if Kyle H. Blake should pay his promissory note of the same date for $900, due 12 months after date, with 7 per cent. interest, and all taxes on the land, then Rendleman would execute to him a deed, but in default of payment of the note and interest at maturity the bond was to become void. On September 6, 1911, Joseph Rendleman conveyed the real estate to his wife, the defendant Mildred Rendleman, and on December 4, 1911, Kyle H. Blake made a deed of the property to his brother, Oscar D. Blake, for the consideration of $3,500, subject to the mortgage made to Wyatt and the note of $900 mentioned in the bond. Kyle H. Blake received the rents for 1910 and Oscar D. Blake the rents for 1911, and the property was sold for taxes in that year, and was unredeemed when the bill was filed. Kyle H. Blake left the state for parts unknown, leaving no property in the state or elsewhere, so far as known to complainants.

[1] One point made by the demurrers was that the bill did not show that the land was vacant and unoccupied, or was in the possession of the complainants. The rule that a bill to remove a cloud must show one or the

tion as against the forged bond, but that is not all which affects their titles. They are chargeable with knowledge of the law and of those things appearing of record in the chain of title. It is the duty of a purchaser of land to examine the record, and he is

other of such facts only applies where that, ticipant in the fraud, are entitled to protecis the sole object of the bill, and does not apply where the primary relief is sought upon other grounds, although clouds are removed from the title as incident to the relief granted. Clay v. Hammond, 199 Ill. 370, 65 N. E. 352, 93 Am. St. Rep. 146; Ward v. Clendenning, 245 Ill. 206, 91 N. E. 1028. chargeable with notice of whatever is shown The bill in this case was filed to set aside the guardian's sale for a violation of the law and his duty, and, that being the primary purpose, the objection taken by the demurrers was not good.

[2] Trustees and others sustaining a fiduciary relation cannot deal on their own account with the subject-matter of their trust, and this rule applies to guardians. The law will not permit a guardian to place himself in a position which creates a conflict between his interest and duty, and necessarily what he cannot do directly he cannot do indirectly. A guardian, therefore, cannot purchase from himself or at his own sale; and this is so regardless of the fairness of the sale or the adequacy of the price, but every such purchase will be set aside at the election of the ward. Thorp v. McCullum, 1 Gilm. 614; Lagger v. Mutual Union Loan & Building Association of Chicago, 146 Ill. 283, 33 N. E. 946; Hannah v. People, 198 Ill. 77, 64 N. E. 776; Brinkerhoff v. Brinkerhoff, 226 Ill. 550, 80 N. E. 1056; 39 Cyc. 366.

[3] Section 28 of chapter 64 of the Revised Statutes of 1874, as amended by act in force July 1, 1877 (Laws of 1877, p. 114), which was in force at the time of the proceedings, provided that the county court should make no order for a sale by a guardian until he should have executed and filed a bond as therein provided. The bond filed by Kyle H. Blake was forged, but was approved by the court. The statute forbade the entry of the decree until a bond had been filed, and therefore the filing of a bond was a jurisdictional prerequisite to judicial action by the court. But it appeared from the face of the record that the statute had been complied with. Any one deriving title through a sale by a guardian, who cannot sell land without a decree of a court, must ascertain that there was a decree by a court having jurisdiction, but is not required to look beyond the question of jurisdiction. He will be protected if the facts necessary to give the court jurisdiction appear on the face of the record. Fitzgibbon v. Lake, 29 Ill. 165, 81 Am. Dec. 302; Mulford v. Stalzenback, 46 Ill. 303; Conover v. Musgrave, 68 Ill. 58; Mulford v. Beveridge, 78 Ill. 455. Everything appeared fair on the face of the record, and the fact that the bond was forged did not affect those subsequently dealing with the property.

[4] Those who dealt with the property, except Oscar D. Blake, who was an active par102 N.E.-64

by the record. Brookfield v. Goodrich, 32 Ill. 363; Buchanan v. International Bank, 78 Ill. 500; Silsbe v. Lucas, 36 Ill. 462. It was the duty of any party dealing with this land to take notice of the record of the court and of the recorder's office. The record was before them, and it was their duty to examine it, and they are charged with knowledge that the sale was made to Oscar D. Blake and the property conveyed by him to the guardian within a few days and the two instruments filed for record at the same time. Whatever is notice enough to excite attention and put the party on his guard and call for inquiry is notice of everything to which such inquiry might have led, and every unusual circumstance is a ground of suspicion and prescribes inquiry. Whatever is suffi. cient to put a party upon inquiry which would lead to the truth is in ail respects equal to and must be regarded as notice. Chicago, Rock Island Pacific Railway Co. v. Kennedy, 70 Ill. 350; Russell v. Ranson, 76 Ill. 167. One having notice of such facts as would put a prudent man on inquiry. is chargeable with the knowledge of other facts which he might have discovered by diligent inquiry. Morrison v. Kelly, 22 Ill. 609, 74 Am. Dec. 169; White v. Kibby, 42 Ill. 510; Ogden v. Haven, 24 Ill. 57; Henneberry v. Morse, 56 Ill. 394; Harper v. Ely, 56 Ill. 179; Slattery v. Rafferty, 93 Ill. 277; Parker v. Merritt, 105 Ill. 293; Citizens' Nat. Bank v. Dayton, 116 Ill. 257, 4 N. E. 492; Harris v. McIntyre, 118 Ill. 275, 8 N. E. 182; Chicago & Eastern Illinois Railroad Co. v. Wright, 153 Ill. 307, 38 N. E. 1062.

[5] The necessary inference to any person with ordinary intelligence would be that the sale to the brother and subsequent conveyance to the guardian were mere jugglery, by which the guardian intended to obtain, and did obtain, the property of his wards. The purchaser of property with notice that a guardian has wrongfully acquired it from himself as a trustee, while going through the form of a proceeding to sell the property, takes it subject to the same equities as when it was in the guardian's hands, and in this case the record was sufficient notice of the wrongdoing of the guardian. The sale was voidable at the election of the complainants. The decree is affirmed. Decree affirmed.

DUNN, J., dissenting.

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[Ed. Note.-For other cases, see Drains, Cent. Dig. §§ 5, 6; Dec. Dig. § 14.*]


The circuit court, by appointing commissioners pursuant to a petition to establish a drainage district, assumed jurisdiction over the lands described therein, and could not refer to the commissioners a question of law as to the jurisdiction over a part of the land.

[Ed. Note.-For other cases, see Drains, Cent. Dig. §§ 5, 6; Dec. Dig. § 14.*]


The want of the court's jurisdiction in drainage proceedings could not be obviated by the fact that the court's action might not be


[Ed. Note.-For other cases, see Drains, Cent. Dig. §§ 5, 6; Dec. Dig. § 14.*]

Appeal from Union County Court; Monroe C. Crawford, Judge.

Action by James Lingle against Thomas Adams and others. From a judgment for defendants, plaintiff appeals. Affirmed.

James Lingle, of Jonesboro, for appellant. R. J. Stephens, of Murphysboro, for appellees.

CARTWRIGHT, J. On February 16, 1912, a petition was filed in the circuit court of Union county, praying for the organization of the Preston Drainage-Levee District under the act to provide for the construction, reparation, and protection of drains, ditches, and levees across the lands of others for agricultural, sanitary, or mining purposes, and to provide for the organization of drainage districts (Laws of 1879, p. 120), and the several acts amendatory thereof. Notice was given of filing the petition, the court acquired jurisdiction and appointed commissioners, and the district was in the process of formation. On January 16, 1913, a petition was filed in the county court of said county to organize a district, to be called Clear Creek Drainage and Levee District, under the provisions of the same act, with its amendments. That petition contained a list of owners of lands in the proposed district, with a description of the lands, containing over 39,000 acres, and including over 8,000 acres of the Preston Drainage-Levee District, which was being organized in the circuit court. The appellees, Thomas Adams and others, moved the county court to dismiss the petition for want of jurisdiction, showing by their motion that the circuit court had acquired jurisdiction of a substantial portion of the lands described in the peti

tion. The facts stated in the motion were admitted to be true, and the court sustained the motion, and dismissed the petition. The appellant, James Lingle, who was one of the petitioners in the county court, appealed.

have concurrent jurisdiction to [1] The circuit court and county court have concurrent jurisdiction to organize drainage districts under the act in question, and, where two courts have concurrent jurisdiction, the court which first acquires jurisdiction retains it to the end of the proceeding, to the exclusion of the other court. Mail v. Maxwell, 107 Ill. 554; Howell v. Moores, 127 Ill. 67, 19 N. E. 863; Newman v. Commercial Nat. Bank of Peoria, 156 Ill. 530, 41 N. E. 156. The circuit court having obtained jurisdiction over the lands of the proposed Preston Drainage-Levee District for the purpose of organizing such district, that jurisdiction was exclusive, and the county court had no power over them.

[2, 3] The appellant admits, in argument, that the circuit court had jurisdiction over more than 8,000 acres of the land embraced in his petition to the county court, and that no other court could acquire jurisdiction of these lands; but he insists that the county court had jurisdiction of the petition because under the act the commissioners might alter the boundaries and exclude those lands. He says that it is not to be assumed that would include the lands of which the circuit the commissioners, in reporting to the court, court had jurisdiction, or that the court would approve such a report, and that a report of this kind, and an order approving it, would be equally void. By appointing commissioners in pursuance of the petition, the court would assume jurisdiction over the lands therein described, and could not refer to the commissioners a question of law as to jurisdiction over a part of the lands. The owners of lands of which the circuit court had jurisdiction could not be required to answer in another court as to the formation of a district including their land, and, where the court has no jurisdiction to act at all, the objection of want of jurisdiction cannot be obviated by saying that perhaps, in the end, the court may not do any harm. The court did right in dismissing the petition.

The judgment is affirmed.
Judgment affirmed.


(260 Ill. 43)


In disposing of legal questions arising on the record of a writ of error to review a judgment of the Appellate Court, the Supreme Court must assume that all facts which the evidence fairly tends to prove have been tablished by the Appellate Court in favor of

the contention of the successful party on that, negligence in combination with the negligence appeal. of the fellow servant acting as a vice principal. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 449-474; Dec. Dig. § 190.*]

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4302-4311, 4331; Dec. Dig. 1091.*]



While a master is not an insurer of the competency of his servants, he is nevertheless bound to exercise ordinary care to employ only such as are fairly skillful and competent, and if he fails therein, and an injury results to a coemployé through the negligence or incompetency of a fellow servant, the master will ordinarily be liable.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 336; Dec. Dig. § 170.*]




A servant is presumed to accept responsibility for an injury which is caused by one of the ordinary risks of the employment; and hence negligence cannot be predicated on an order which merely exposes him to such a risk. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 648-651; Dec. Dig. § 222.*]

Appeal from Superior Court, Cook County;
Error to Appellate Court, First District, on
Theodore Brentano, Judge.


Action by Richard McMahon against Louis S. Owsley, receiver of the Suburban RailWhile a master's negligence in the employ-road Company. A judgment for plaintiff was ment of incompetent servants is not ordinarily affirmed by the Appellate Court (176 Ill. one of the usual risks of the employment which a servant assumes by his contract of hiring, App. 144), and defendant brings error. yet where the servant continues to work with versed and remanded. such incompetent servants after he becomes aware of their incompetency, and injury results to him from the negligence or unskillfulness of the incompetent servants, the injured servant will have assumed the risk and may not re


[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.*]



Plaintiff, a street car conductor, on bringing his car to the barn on his last trip was ordered to take the car to the end of the route and return to the barn. His motorman left at the barn, and the general night foreman took

his place to run the car to the end of the line and return. Plaintiff protested against the foreman running the car and told him that he was not a motorman and did not know how to run it, but the foreman insisted and, while operating the car on the return to the barn, was guilty of negligence by which plaintiff was thrown from the car and injured. Held, that plaintiff, having voluntarily consented to finish the trip with the foreman as motorman, with knowledge of the latter's inexperience as a motorman, assumed the risk.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.*]



Zane, Morse, McKinney & McIlvaine, of Chicago, for plaintiff in error. H. J. Toner and David K. Tone, both of Chicago, for defendant in error.

VICKERS, J. Richard McMahon recovered a judgment in the superior court of Cook county for $6,250 against Louis S. Owsley, receiver of the Suburban Railroad Company, for personal injury. The Appellate Court for the First District affirmed the judgment below, and the record has been brought to this court by certiorari.

At the close of defendant in error's evi

dence, and again at the close of all the evidence, plaintiff in error requested the court to direct a verdict in his favor, which the court refused, and the action of the court in this regard is relied upon as the principal error for a reversal.

The amended declaration upon which the case was tried contained four counts. The first, second, and fourth counts are substantially the same and charge that plaintiff in error permitted Andrew Johnson to discharge the duties of motorman, and that said Johnson was incompetent, unskillful, NEGLIGENCE OF PRINCIPAL and inexperienced in that line of work, and COMBINED WITH THAT OF FELLOW SERVANT. Plaintiff, a suburban railroad conductor, consented to finish his trip from the car barn to the end of the line and return with the night foreman acting as motorman, who plaintiff knew was not an experienced, motorman. the return trip to the barn the foreman instructed plaintiff to go into the car and make out his trip sheet and bring it out to him, which plaintiff did, returning to the front platform, and as he was handing the foreman his cash and the trip sheet he was thrown from the car and injured by the foreman's negligent operation thereof. Held, that the foreman's act in directing plaintiff to make out his trip sheet and deliver it on the front platform was not negligence of the foreman acting as a vice principal; and hence plaintiff could not recover on the theory that the foreman's order was a concurring proximate cause within the rule that a master is liable for the negligence of a fellow servant where the injury results from such

that, through the incompetent and careless
operation of a car by the said Johnson, the
defendant in error was thrown from the car
and injured. The third count of the amend-
ed declaration alleged that it was the duty
of plaintiff in error to establish and main-
tain a light as a signal or warning at the
intersection of
of Fifty-Second avenue and
Twenty-Second street, and that a light pre-
viously maintained at said place had been
negligently removed, and that in conse-
quence of the darkness the accident happen-
ed which caused the injury. There is no
serious contention on behalf of defendant
in error that the judgment below can be
sustained under the third count of the
amended declaration. The right of recov-

ery, if any exists, must rest upon the case, line over which the car should return to stated in the other three counts of the dec- the barns. It appears from the evidence laration.

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The material facts established by the testimony are as follows: Defendant in error was a conductor on an electric railroad owned by the Suburban Railroad Company, but at the time of the accident it was being operated by plaintiff in error as receiver. The Chicago terminus of the railroad line was at the corner of Forty-Eighth avenue and Harrison street. On the evening of September 1, 1907, defendant in error was a conductor on a car which ran from La Grange to the Chicago terminus. The car barns were located at the corner of Harlem avenue and Twenty-Second street. These barns were on the line over which the car in charge of defendant in error passed in its trip from La Grange to the Chicago end of the line. The car in charge of defendant in error reached the car barns about midnight. Here the regular motorman left the car and went to his home. A man by the name of Whitsel was in charge of the car barns during the day. It was his duty to give instructions in regard to the operation of cars from the barns and he was a general foreman over all the men whose cars ran into the barns. Whitsel went off duty at 6 o'clock in the evening and Andrew Johnson took his place and was in charge of the barns during the night. He seems to have had the same powers during the night that Whitsel exercised during the day. When the motorman on defendant in error's car left it at the barns, there was no other regular motorman there to take his place. The car was due to run down to the Chicago end of the line (a distance of four miles) and return to the barns, at Twenty-Second street. Johnson, the night foreman, took charge of the car as motorman, for the purpose of running it down to the end of the line and back. Defendant in error testifies that he protested against Johnson running the car and told him he was not a motorman and did not understand how to run the car, but that Johnson insisted he would show him that he could run the car properly. Johnson contradicts this statement and says that defendant in error made no objection to his operating the car. All the passengers left the car at the corner of Forty-Eighth avenue, and the only persons left on the car on its return trip to the barns were the motorman and conductor. It appears that there were two routes, by either of which the return trip to the barns could be made. Defendant in error testified that before the car was started on the return trip Johnson said, "We are going down Fifty-Second street this trip." Defendant in error said, "Why not go on Harrison street?" Defendant in error testified that the Fifty-Second avenue route was rough between Sixteenth and Twenty-Second streets. Johnson denies that

that the nearest point the car would pass defendant in error's home was at the corner of Austin avenue and Twenty-Second street, which is about one mile and a half east of the car barns and that distance nearer the home of defendant in error than the barns were. The expectation was that defendant in error would leave the car at Austin avenue and go home. The return trip of the car was made at a speed of about 25 miles an hour. There were no passengers to get on or off the car and no stops were necessary. The car ran west on Harrison street, turned into Fifty-Second avenue, and slowed down at Twelfth street for a crossing. It ran to Sixteenth street and stopped. At this point the car had to cross a railroad track. Defendant in error got off the car to see if the railroad crossing was clear. Finding it clear he signaled Johnson to come on, and as the car crossed the track he stepped on the front platform and stood near Johnson. Johnson asked him if he had his trip sheet made out, and he said he had not. He testifies that Johnson said, "You go in and make it out right there; make out the trip sheet; Mr. Whitsel says he wants to put you on for a big day to-morrow, and I want you to make the statement out and come out again." 'Defendant in error then went into the car and went to the rear, made out his trip sheet, and returned to the front end of the car, opened the door, and went out into the vestibule and took a position by the side of Johnson. He testifies that he asked Johnson whether he was ready for the money and the trip sheet, and upon being answered in the affirmative he gave Johnson two bills and the trip sheet, and then put his hand into his pocket to get the additional sum in change which was required to balance up his trip account. At this time Johnson exclaimed, "Look out!" and the car, then running at the rate of about 25 miles an hour, struck the switch curve at the corner of Twenty-Second street and Fifty-Second avenue, and defendant in error was thrown across the vestibule and out through the open door at the left-hand side, falling upon the track and receiving the injuries complained of. He was assisted by Johnson back to the car and brought to the car barns. Johnson gives a somewhat different version of the transaction. He says that defendant in error came out on the front platform when he was slacking up the speed of the car by shutting off the power at Twenty-Second street, and that defendant in error poked him in the ribs and offered him the money and trip sheet, and that he took his hand off the brake to get the money, which caused him to lose control of the car.

[1] In disposing of the legal questions arising on the record, we must assume that all

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