Paige, 122, 23 Am. Dec. 773, Chancellor Walworth said: "It is only in cases where the person advancing money to pay the debt of a third party stands in the situation of a surety, or is compelled to pay it to protect his own rights, that a court of equity substitutes him in the place of the creditor, as a matter of course, without any agreement to that effect. In other cases the demand of a creditor, which is paid with the money of a third person, and without any agreement that the security shall be assigned or kept on foot for the benefit of such third person, is absolutely extinguished." In the case at bar there was no obligation on the part of Chandler or Chandler & Co. to pay these coupons. They were not holders of any junior lien which it was necessary for them to protect. They were not creditors of Bennett and Smith, nor was there any necessity for them to satisfy the lien of any prior creditor in order to protect any interest of their own. It follows that they were purely and simply volunteers. It is true that Frank R. Chandler was named as successor in trust in the trust deed securing the principal and interest notes. It is also true that he was the agent who sold the securities to Mrs. Green, and was also her agent to collect the interest coupon notes when they became due, and to keep the taxes and insurance premiums upon the premises paid up in the event of the failure of the mortgagors to pay the same. But they were not authorized, by their relations in these respects to the property, or to the owner of the securities, to step in, and pay off the interest coupons in the place and stead of the debtors themselves. It has been said that "a stranger within the meaning of this rule is not necessarily one who has had nothing to do with the transaction out of which the debt grew. Any one who is under no legal obligation or liability to pay the debt is a stranger, and, if he pays the debt, a mere volunteer." 24 Am. & Eng. Enc. Law (1st Ed.) p. 283, note; Suppiger V. Garrels, 20 Ill. App. 625. Inasmuch, therefore, as Chandler was a mere volunteer, he was not subrogated in any way to the rights of Mrs. Green as the holder of the coupons in question.

Nor can we see any way by which Chandler can be held to be the purchaser or assignee of such interest coupons. These coupons were payable to the order of Mrs. Green, and they were never indorsed by her to Chandler & Co. Chandler & Co. had no authority to indorse her name upon the back of these interest coupons merely because they were agents to collect the coupons, and because the coupons were in their possession for such collection. Mechem, Ag. §§ 392, 398, 406. Their indorsement was never authorized by her. If there had been any agreement between Mrs. Green and Chandler & Co. by the terms of which Chandler & Co. were to hold the coupons as uncanceled se

curities to be kept alive for their benefit, another question would arise. But the evidence shows that there was no such agreement, nor even any knowledge on the part of Mrs. Green that the money remitted was the money of Chandler & Co. A different question might arise if there had been any understanding between Chandler & Co. on the one side, and Bennett and Smith, as the debtors or makers of the coupons, on the other, that Chandler & Co. were to advance the money for Bennett and Smith to pay their debt for them, and thereby be entitled to keep the coupon notes alive, and enforce them against the property. But the proof shows that there was no such arrangement, and also shows that Bennett and Smith knew nothing about the advance of money so made by Chandler & Co. to Mrs. Green. In Pearce v. Coal Co., 121 Ill. 590, 13 N. E. 561, we held that a trustee in a deed of trust given to secure coupon bonds, who furnished the money for the payment of certain of the coupons, is not entitled to be subrogated to the rights of a coupon holder against the trust property. In the latter case, where a corporation gave its bonds with interest coupons secured by a deed of trust, and the trustee, at the request of an officer of the corporation, paid the first set of coupons, and took them up, it was held that such coupons became extinguished, and could not be enforced by the trustee so paying the same, and that they ceased to be a lien on the mortgaged property; and it was there said: "The rule is that the demand of a creditor, which is paid with the money of a third person, without any agreement that the security shall be assigned or kept on foot for the benefit of such third person, is absolutely extinguished." In Bank v. Craig, 63 Ohio St. 374, 59 N. E. 102, 52 L. R. A. 872, 81 Am. St. Rep. 639, it was held that, where a negotiable promissory note is indorsed for collection, and sent to the place of payment, the person receiving such note with such indorsement has no power to sell or transfer the note. His power is limited to collection. Where a person receiving such note remits the amount thereof out of his own funds to the owner as though he had in fact collected the note, such transaction is a payment and extinguishment of the note, and not a transfer thereof. If such payment is made with the assent of the maker, he becomes liable as for money paid to his use, or liable on the note as a reissued note; but as to a maker who does not assent to such payment there is no liability, either on the note or for money paid to his use. In the latter case, also, it was held that a person making such payment is, as to nonassenting makers, a volunteer, and not entitled to subrogation; it being there said: "The indorsement was a restricted one, and the bank had no authority to do more than receive payment, and it could not keep the note alive, after payment, for any purpose. Payment, even by a volunteer, was the death of the

note. A person who volunteers to pay the note of another cannot, by such payment, make himself the owner of the note without the knowledge and consent of the holder thereof. He cannot act both as buyer and seller at the same time, bargaining with himself. • * The doctrine of subrogation has no application to payments made by a mere volunteer, and the bank in this case was purely a volunteer. There was no lien or security in the case to be kept alive by subrogation."

Counsel for defendants in error cite in support of their contention the case of Ketchum v. Duncan, 96 U. S. 659, 24 L. Ed. 868, and other cases based upon and following Ketchum v. Duncan. The latter case, however, when its facts and reasoning are carefully examined, does not support the contention of defendants in error. In Ketchum v. Duncan, supra, it was said: "It is undoubtedly true that it is essential to a sale that both parties should consent to it. We may admit, also, that where, as in this case, a sale, compared with payment, is prejudicial to the holder's interest by continuing the burden of the coupons upon the common security, and lessening its value in reference to the principal debt, the intent to sell should be clearly proved." If it is essential to a transfer or sale of such coupons as these that both parties should assent to the sale, then there was no valid sale or transfer in the case at bar, because there is no claim that Mrs. Green, the holder of the coupons, assented to their sale or transfer to Chandler & Co. Moreover, it appeared in Ketchum v. Duncan, supra, that the holders of the coupons knew that the money which was advanced was not paid by the debtor, and that Dun. can, Sherman & Co., who paid the money, were purchasing the coupons with their own funds, intending to hold them. In the case at bar, however, Mrs. Green did not know that the money remitted to her was not paid by the debtors; nor did she know that Chandler & Co. were purchasing the coupons with their own funds, intending to hold them. It furthermore appears in the case of Ketchum v. Duncan, supra, that the company which executed the coupons was informed that it was the intention of the party advancing the money to pay them, and make a purchase of the coupons, and the consent of the company was given to such purchase. It is not claimed in the case at bar, nor could it be claimed, that Bennett and Smith, the debtors, were informed of, or knew anything about, the intention of Chandler & Co. to purchase these coupons, nor did they ever give their consent to such purchase. That the foregoing is a correct interpretation of the case of Ketchum v. Duncan is shown by the references made to it by the supreme court of the United States in subsequent cases, notably the cases of Wood v. SafeDeposit Co., 128 U. S. 425, 9 Sup. Ct. 131, 32 L. Ed. 472, and Morgan's L. & T. R. & S.

S. Co. v. Texas Cent. R. Co., 137 U. S. 196, 11 Sup. Ct. 61, 34 L. Ed. 625. In Wood v. Safe-Deposit Co., supra, the court said: “In Ketchum v. Duncan stress was laid on these circumstances, viz.: That the persons alleged to have paid the coupons had no connection with the company issuing the coupons, or interest in it; that they had repeatedly and publicly notified the holders of the bonds and coupons that the coupons were to be purchased, not paid; and that the coupons were carefully received and preserved uncanceled."

In view of the law as laid down in the authorities above referred to, and in many other authorities not here mentioned, it is impossible to escape the conclusion that in this matter Chandler & Co. were mere volunteers, and therefore not entitled to be subrogated to the rights of the holder of these coupons, and that they were never purchasers or assignees, in any way, of the coupons, so as to be entitled to enforce them. In one aspect it may seem inequitable that these plaintiffs in error should receive the benefit of a payment which they themselves did not make, but the result cannot be avoided unless the established rules of law are to be set aside and ignored. The decree of the court below, so far as it granted to Hetty H. R. Green, the holder of the principal note and the unpaid coupons, a foreclosure of the trust deed in question, is correct, but so far as that decree granted relief to Chandler by allowing him to enforce a lien against the premises in respect to the coupons paid by him the decree is wrong, and must be reversed. In view of the conclusion thus reached, it will be unnecessary to notice the other objections made to the decree. Accordingly, the judg ment of the appellate court and the decree of the circuit court are reversed so far as they grant relief upon Chandler's cross-bill, but are affirmed so far as they grant relief to the holder of the principal note and the unpaid coupon notes.

Partly affirmed, and partly reversed.

COOMBS v. PEOPLE.

(198 III. 586)

(Supreme Court of Illinois. Oct. 25, 1902.) TAXATION-LIABILITY-EVIDENCE OF OWNER. SHIP - ADMISSIBILITY - SALE FOR DELINQUENT TAXES PROPER PROCESS-ESTOPPEL TO SHOW DEFECT.

1. Revenue Act (3 Starr & C. Ann. St. 1896, p. 3502) § 232, providing that the person to whom property is assessed for taxation shall be regarded prima facie as the owner, does not preclude proof by the people in debt for taxes of defendant's ownership, though the property was assessed to some one else.

2. Revenue Act (Starr & C. Ann. St. 1896, p. 3480) § 194, relating to sales of realty for taxes, provides that the clerk shall on the day of sale examine the list of lands against which judgment has been rendered, and see that all payments have been properly noted, and shall then make a certificate that the record is correct, and that judgment has been rendered against the lands listed, which certificate constitutes the pro

cess for the sale. Held, that a sale on August 22d under a certificate made July 20th was void, and a purchaser thereunder did not become the owner of the lands so as to be liable for subsequent taxes.

3. Accepting and recording the deed made pursuant to such sale did not estop the purchaser, when sued for subsequent taxes, from proving the defect in the sale proceedings, and that in consequence he was not the owner of the property.

4. But as such deed was good color of title, and, under Revenue Act (Starr & C. Ann. St. 1896, p. 3494) § 226, could not be canceled on the former owner's application until reimbursement of the purchaser for all of the taxes paid, the purchaser was not obliged to waive all benefit under the deed in order to be permitted to show that by reason of the defect in the sale proceedings he was not the owner.

Appeal from circuit court, Cook county; Elbridge Hanecey, Judge.

Debt for taxes by the people of the state of Illinois against Hiram Coombs. From a judgment for plaintiff, defendant appeals. Reversed.

Gage & Deming, for appellant. Robert S. Iles, Robert D. Martin, and Stillman B. Jamieson, for appellee.

BOGGS, J. This is an appeal from a judgment rendered against the appellant in the sum of $818.02 in an action in debt brought by the people of the state of Illinois against him, under section 230 of chapter 120, entitled "Revenue," to recover general taxes alleged to be due on lots Nos. 74 and 75, in block 34, in Canal Trustees' subdivision of section 7, town 39, range 14, in Cook county, which lots were forfeited to the state in the year 1900 for the taxes for the years 1895, 1896, 1897, 1898, and 1899. It was indispensable to the right of the people to recover that it should be proven that the appellant was the owner of the lots on the 1st day of May in 1895, 1896, 1897, and 1898, and on the 1st day of April, 1899. Bowman v. People, 114 Ill. 474, 2 N. E. 484. Section 232 of the revenue act (3 Starr & C. Ann. St. 1896, p. 3502) declares that the person to whom real estate or personal property is assessed for taxation shall be regarded prima facie as the owner. peared in the proof in the case at bar that the lots in question were not assessed to the appellant, but to "A. Dreschler Est." The appellee insisted this provision of the statute was for the benefit and convenience of the people, and did not preclude proof in behalf of the people that the appellant was the owner of the lots. This insistence we regard as correct. To establish that the appellant was the owner of the lots, the people introduced a certified copy of a deed executed on the 16th day of September, 1890, by the county clerk of Cook county, purporting to convey the lots to the appellant as the purchaser thereof at a public sale of the real estate delinquent for taxes, made in said county on the 16th day of September, 1887, and also a certificate of the recorder of deeds 64 N.E.-67

It ap

showing the deed was recorded on the 19th day of September, 1890. It was stipulated by appellant that he had never executed a deed of conveyance to the lots, and that no judgment had been recovered against him by which any interest which might have been invested in him by virtue of said tax deed had ever been taken from him. There was no further proof relative to the title or ownership of the lots. The word "owner," as applied to land, has no fixed meaning which can be declared to be applicable under all circumstances and as to any and every enactment. It usually denotes a feesimple estate (Wright v. Bennett, 3 Scam. 258; Illinois Mut. Fire Ins. Co. v. Marseilles Mfg. Co., 1 Gilman, 236); but it has been defined to include one who has the usufruct, control, or occupation of land with a claim of ownership, whether his interest be an absolute fee or a less estate (17 Am. & Eng. Enc. Law [1st Ed.] 299, 300). There is no proof in this record that the appellant has. or ever had, the possession or control of the lots, or either of them, or that he has enjoyed the rents, issues, or profits therefrom. If the judgment can be upheld, it must be upon the ground that the production of the tax deed for the lots, and the concession that whatever title thus passed to him still remained in him,' established that he owned an absolute title in fee simple to them.

The appellant introduced in evidence a certified copy of the certificate made by the clerk to constitute the process of sale under section 194 of the revenue act (Starr & C. Ann. St. 1896, p. 3480) for the sale of lands and lots against which judgment and order of sale for delinquent taxes was entered in the year 1887, being the sale upon which his tax deed rested. It appeared from this certificate that the clerk, in 1887, made and filed the certificate required to be made by him by said section 194 of the revenue act, not on the 22d day of August, the day advertised for the sale as required by the provisions of said section, but on the 20th day of July, 1887, some two months prior to the day of sale. Section 194 requires that the clerk shall, on the day fixed for the sale, examine the list of lands and lots against which judgment has been rendered, and see that all payments which may have been made are properly noted thereon, and shall then make the certificate that the record is correct and the judgment was rendered against all the lands and lots on the list. A certificate of the clerk, attested and sealed on the day of the sale, constitutes the process for the sale of lands and lots for taxes. The provisions of the section that the certificate of the clerk shall be made on the day of the sale is mandatory. The certificate made in July prior to the sale in August was insufficient to authorize the sale of the lots, and a deed taken under a sale so made could not avail to pass title to the purchaser. Kepley v. Scully, 185 Ill. 52, 57 N. E. 187. A

valid judgment against the land and a valid process for the sale thereof are indispensable, in addition to the deed, to establish title. Gage v. Thompson, 161 Ill. 403, 43 N. E. 1062; Ames v. Sankey, 128 Ill. 523, 21 N. E. 579; Gage v. Cara her, 125 Ill. 447, 17 N. E. 777. The evidence therefore disclosed the tax title received by appellant did not invest him with the ownership of the lots. That he received a tax deed and placed it upon the records did not estop him to show the deed was defective. It was good color of title, and he had the right to retain it as such, and as a basis of title, under the limitation laws of the state. The record of the deed constituted a cloud upon the true title to the lots, and the deed and record thereof could not be canceled by a court on the application of the owner of the lots, except upon repayment to the holder of the tax deed of the taxes paid, etc. Revenue Act, § 226 (Starr & C. Ann. St. 1896, p. 3494). Appellant was therefore not required to disclaim all benefit from the tax deed in order he should not be deemed estopped to deny, in defense of this proceeding, that he was the owner of the lots. judgment must be and it is reversed, and the cause remanded.

Reversed and remanded.

(198 Ill. 365)

The

SUPREME LODGE MUT. PROTECTION v. GELBKE.

(Supreme Court of Illinois. Oct. 25, 1902.) LIFE INSURANCE SUICIDE-SANITY-RATION

AL INTENT.

1. Where an insurance certificate was granted on the terms that if the death of insured should be by his own suicidal act, sane or insane, the company should not be liable, and the insured did take his own life, the company was not liable, unless the insured, when he committed suicide, was in such a state of mind as to be unconscious of the physical nature of the act which caused his death; and it was error to instruct that plaintiff could recover unless the insured, at the time of his death, was capable of forming a rational intent, and that he did, with rational intent, commit suicide.

Appeal from appellate court, First district. Action by Fredericka Gelbke against the Supreme Lodge Mutual Protection on a life insurance certificate. From a judgment of the appellate court (100 Ill. App. 190) affirming a judgment for plaintiff, defendant appeals. Reversed.

Cratty Bros., Jarvis & Latimer, for appellant. E. F. Herrmann, J. Kent Green, and E. M. Winston, for appellee.

CARTWRIGHT, J. The branch appellate court for the First district affirmed a judgment for $2,165, recovered by appellee in the superior court of Cook county against appellant upon a membership certificate issued to Louis Gelbke, for the payment of the amount

1. See Insurance, vol. 28, Cent. Dig. §§ 1159, 1160.

of one assessment, not exceeding $2,000, to his wife, the appellee, after his death, upon the condition that he had complied with the charter, constitution, laws, and rules of the order, and with the stipulation that the rights of the beneficiary should be determined by the charter, constitution, laws, rules, and regulations of the order in force at the time the sum due should be payable. The briefs and arguments on both sides, although entitled in this court, bear internal evidence of being addressed almost wholly to the appellate court, and are devoted largely to controverted questions of fact, even including the question whether the damages awarded were excessive. We shall, of course, not attempt to examine controverted questions of fact, and we do not deem it necessary to consider some of the legal questions argued by counsel, for the reason that they have little, if any, materiality under the evidence contained in the record. The defense was that the death of Louis Gelbke was caused by his own suicidal act, and that defendant was thereby exempted from liability by virtue of its contract with him. When the certificate was issued, there was no provision in the charter, constitution, laws, or rules of defendant against death from suicide. By-laws were subsequently adopted providing that there should be no liability upon the death of a member if such death was due to his suicidal act, whether at the time he was sane or insane, but in such a case there should be refunded to the beneficiary a sum equal to the assessments paid, with interest at 4 per cent. These by-laws were offered in evidence by the defendant, and objected to by plaintiff because they were adopted at meetings of the supreme lodge held in other states than Missouri, by which state the defendant was incorporated, and the objection was sustained. It was proved, however, that Gelbke was suspended for a failure to pay assessments, and was reinstated on his written application dated September 27, 1897, containing the following agreement on his part: "In consideration of my being reinstated as a member, I further agree to be bound by the laws of the order now in force, or as they may be hereafter amended or enacted, and that, should my disability or death be caused by or result, directly or indirectly, by my own suicidal act, sane or insane, neither myself nor any of my beneficiaries shall be entitled to participate in the widows' and orphans' protection fund; nor shall my beneficiary or beneficiaries have any claim in case my death shall result from or depend upon any disease or injury which I may have had, acquire, or receive prior to my being readmitted as a member in your order, if readmitted to beneficiary membership, and my benefit certificate restored to me." There was no evidence of fraud or misrepresentation on the part of the defendant respecting the suspension or the reinstatement, and no evidence

*

*

*

tending to show that Gelbke was not entirely capable of protecting his own interests and of entering into the agreement. He did not question the suspension or the validity of it, and was reinstated in consideration of his application and the representations therein contained. It was contended by the defendant that Gelbke was not insane at the time of his death on May 24, 1898, but, if he was insane at that time, his mental derangement related solely to suspicions which he entertained concerning the fidelity of his wife. There was no evidence tending to show general incapacity to contract at the time of the reinstatement.

On May 30, 1898, plaintiff gave defendant notice of Gelbke's death, and of her claim against the defendant, in which she stated the cause of death as follows: "The cause of death was from poison taken while temporarily insane, as shown by the inclosed certificate of death issued by the board of health and by a certified copy of the coroner's inquest, hereto attached." The finding at the inquest, attached to the notice and referred to above, was that Gelbke "came to his death on the 24th day of May, 1898, from carbolic acid poison, said poison taken with suicidal intent while temporarily insane." The evidence for the defendant tended to prove that he took it intentionally, with full consciousness of the physical nature of the act, and intending to take his life by that means. Plaintiff's claim was that Gelbke was insane, and that he did not intentionally take his own life. The evidence tended to show that he had a violent and groundless jealousy of his wife, amounting to an insane delusion, and that his unfounded suspicion of her was the moving cause of his suicidal act. The defendant asked the court to give the jury an instruction to the effect that, although Gelbke, at the time of his death, was insane, yet if he was capable of forming an intention, and that he did intentionally commit suicide, the plaintiff could not collect more than the amount of the assessments, with 4 per cent. interest thereon.

The court changed

the instruction, and gave it to the jury as follows: "The court instructs you in this case that, though you may believe from the evidence that Louis Gelbke, at the time of his death, was insane, if you further believe from the evidence that, irrespective of such insanity, Louis Gelbke, at the time of his death, was capable of forming a rational intent, and that he did with rational intent commit suicide, then the plaintiff in this case cannot recover any greater sum than amount of assessments paid by Louis Gelbke during his lifetime, with four per cent. interest thereon." The material change in the instruction was by adding the qualification that the intent which Gelbke was capable of forming must be a rational one, and that he did with rational intent commit suicide.

The question of the proper interpretation of provisions in policies or certificates against

self-destruction has been much discussed, and has arisen in various forms. In the case of Lodge v. Wieting, 168 Ill. 408, 48 N. E. 59, 61 Am. St. Rep. 123, there was a certificate containing the provision that the beneficiary should only be entitled to the amount paid in if the insured should "commit suicide." In construing that language we accepted and adopted the rule stated by the supreme court of the United States in Insurance Co. v. Terry, 15 Wall. 580, 21 L. Ed. 236, and approved by a majority of the state courts, as follows: "If the death is caused by the voluntary act of the assured, he knowing and intending that his death shall be the result of his act, but when his reasoning faculties are so far im paired that he is not able to understand the moral character, the general nature, consequences, and effect of the act he is about to commit, or when he is impelled thereto by an insane impulse which he has not the power to resist, such death is not within the contemplation of the parties to the contract, and the insurer is liable." The agreement in this case is not the same as in that one, but provides for exemption from liability if the death of Gelbke should be caused by his own suicidal act, whether sane or insane, leaving nothing open, by its terms, except the question whether it was his act. The act of an insane man is not morally his act, so as to impose moral responsibility, or render him amenable to the criminal law, because he is unable to understand his duties and obligations or to form a criminal intent; but the act would be his in fact if it was the result of his volition, although under a delusion. The suicidal act of an insane man is intentional if it is voluntary, with the purpose to take his own life, and with knowledge that such will be the effect of the act. The provision rendered the certificate void if Gelbke committed suicide, unless he was in such a state of mind as to be unconscious of the physical nature of the act which caused his death. 19 Am. & Eng. Enc. Law (2d Ed.) 76. The supreme court of the United States had occasion, in the case of Bigelow v. Insurance Co., 93 U. S. 284, 23 L. Ed. 918, to distinguish such an agreement as this one from a mere stipulation for exemption in the case of suicide. That was a suit on two policies on the life of Henry W. Bigelow, and there was an agreement that there should be no liability if he should die by suicide, sane or insane. The court held that the clause was entirely valid, and exempted the insurer if the death was by the voluntary act of the insured, with consciousness of the physical nature of the act, and he intended by such means to cause his death. The decision was that a person, although insane, might take his own life with a set purpose to accomplish that object, and, if he did so, although insane, the insurer was not liable under the agreement in question. The same interpretation is maintained in Association v. Sargent, 142 U. S. 691, 12 Sup. Ct. 332, 35 L. Ed. 1160. The