efforts to sell must, under the circumstances, have been known to Heaton, and he entered no protest against them, nor made any objection thereto. There is testimony showing that Heaton always recognized appellee as the owner of the land in his conversations with his neighbors upon the subject. It is true that during the years while Heaton was in possession of the land, from December, 1883, to the time of his death, he made certain improvements upon the premises; but, after a careful examination of the evidence, we are satisfied that these improvements were only such as a tenant in occupancy of premises would naturally make, in order to keep the premises in repair. Clark v. Clark, 122 Ill. 388, 13 N. E. 553. Appellee swears that one of the terms of the occupancy by Heaton was that he was to keep the premises in repair.

The decree of the circuit court seems to have been based upon the proposition of settlement made by appellee in his answer, and not upon a consideration of the merits of the case. The proposition which was made by appellee in his answer was that he would allow the widow of Heaton to have the premises, provided a sale of them could be made for enough to reimburse him what he had expended upon them and interest upon such amount. This offer of settlement, however, was based upon the condition that the transaction was to be closed on or before March 1, 1900; but it was not closed within the time limited. We concur with the following statement upon this subject made by the appellate court in its opinion (page 28, 100 Ill. App.): "The proposition made by Gaines was practically an offer to settle the suit and save the costs. He had a right to prescribe his own terms in making such an offer. The proposition was explicit that the transaction should be closed by March 1, 1900, but it was not until fifteen months after the expiration of the limitation made that the offer was accepted by defendants in error, if, indeed, there was any acceptance. the meantime the proofs had been taken, expenses had been incurred for solicitor's fees, and the cause had been determined by the master in favors of Gaines. The offer had expired by its own terms, and defendants in error had no right after that length of time to accept it. The court had no authority, at the time when the offer is claimed to have been accepted, to extend the time of compliance with it to November 1, 1901; neither did it have authority to allow interest at the rate of five per cent. per annum, as provided for in the decree, when the offer provided for the payment of interest at the rate of seven per cent. per annum. In no event could Gaines have been properly held by the decree to be bound by terms other than those named in his offer. Carpenter v. Plagge, 192 Ill. 82, 61 N. E. 530."

In

After a careful examination of the whole record, we are satisfied that the judgment of

1. The action of the court in appointing a receiver on the application of the grantee in a deed of trust, pending foreclosure, where the deed pledges the rents and profits, and authorizes the appointment of a receiver in case of default, and where the grantor failed to observe his agreement to keep the building, in which the property chiefly consisted, insured, and suffered interest due and unpaid to accumulate, is not erroneous, especially where the grantor is permitted to retain possession of the homestead and other parts of the premises to be rented for his support.

2. A receiver appointed pending an action of foreclosure of a deed of trust containing a stipulation for the appointment of receiver "during the pendency of the suit" is properly permitted to continue in possession after the decree of foreclosure, and before the sale of the premises.

Appeal from appellate court, First district. Bill by the Illinois Trust & Savings Bank against F. R. Bagley and others to foreclose a deed of trust. From a decree of the appellate court (100 Ill. App. 251), affirming a decree for plaintiff, defendant F. R. Bagley appeals. Affirmed.

Thomas E. D. Bradley and Hutchinson, Neiger & Kimbark, for appellant. James C. Hutchins and Max Baird, for appellee.

CARTER, J. The appellee brought its bill in the circuit court of Cook county to foreclose a deed of trust, as a mortgage on real property, securing a promissory note for $40,000, given for borrowed money, and 10 interest coupon notes. Soon after answer and replication were filed, the court, on application of the complainant, appointed a receiver to collect the rents during the pendency of the suit. The cause was referred to the master, who reported the evidence and recommended a decree as prayed. After overruling exceptions, the court entered a decree finding the amount due, and ordering, in default of payment within a specified time, a sale of the property. The appellate court, on appeal of the mortgagors, the Ryans, and the appellant, Bagley, a tenant, affirmed the decree, and Bagley has taken this further appeal to this court, and has assigned here as the principal error relied on the appointment of the receiver. The deed of trust contained a release and waiver of homestead, "and all right to retain possession of said premises after any default in payment, or a breach of any of the covenants or agreements contained in the deed." It also contained this provision: "If default be made in the payment of said indebtedness, or of any part thereof, or the interest thereon, or any part

thereof, at the time and in the manner above specified for payment thereof, or in case the buildings or improvements on said premises shall be destroyed or materially injured, or in case of waste or breach of any of the covenants or agreements herein contained, then and in either such case the whole of said principal sum and interest shall thereupon, at the option of the legal holder or holders thereof, become immediately due and payable, and on application of the legal holder of said promissory notes, or either of them, it shall be lawful for the said grantee or his successor in trust to enter into and upon, and take possession of, the premises hereby granted, or any part thereof, and such legal holder, in his own name or otherwise, may file a bill in any court having jurisdiction thereof, against the said party of the first part, their heirs, executors, administrators, and assigns, to obtain a decree for the sale of the whole or any part of said premises for the purposes herein specified, and the court may then appoint a receiver to collect the rents during the pendency of the suit." There had been default in the payment of two installments of interest, and appellee, shown by the evidence to have been the legal holder of the securities, elected to declare the entire debt to be immediately due and payable, in accordance with the terms of the deed, and thereupon filed the bill in this case. The record discloses that the chancellor did not appoint a receiver when first applied for by the complainant, but deferred action for a few months, until the unpaid interest had accumulated to the amount of about $3,800, and the holder of the securities had expended upwards of $300 to keep the building insured, which the mortgagor had covenanted to keep insured, which covenant he had broken. The motion was then allowed, and the receiver appointed to collect the rents, except of the part used as a homestead by the mortgagors, and another portion which yielded them $40 as rent per month. The possession of these portions the mortgagors were allowed to retain. We are unable to discover any error in the decree appointing the receiver. By the express provisions of the deed of trust, the mortgagors waived their right to retain possession after any default in payment, or after breach of any of the covenants in the deed. It also provided that the legal holders of the notes might file a bill, in any court having jurisdiction, to obtain a decree for the sale of the property, and that the court might appoint a receiver to collect the rents during the pendency of the suit. Nothing more has been done than the parties stipulated for in their deed. The effect of the deed was to pledge the rents for the payment of the debt as fully as the property itself, and to make the pledge effectual, the appointment of a receiver to collect them was stipulated for. Such a provision in the mortgage created a valid lien on the rents, which equity will enforce, without regard to the question of insolvency of the mortgagors.

First Nat. Bank of Joliet v. Illinois Steel Co., 174 Ill. 140, 51 N. E. 200; Bridge Co. v. Heidlebach, 94 U. S. 798, 24 L. Ed. 144; Trust Co. v. Shepherd, 127 U. S. 494, 8 Sup. Ct. 1250, 32 L. Ed. 163; 1 Jones, Mortg. (5th Ed.) § 771.

It is not meant, however, to be said that a court of equity will appoint a receiver simply because such appointment is stipulated for in the mortgage. The court is not bound to enforce such a provision where it is not necessary to enforce the lien on the rents and profits for the payment of the mortgage debt. But it has been held that such an agreement in the mortgage is entitled to weight in determining whether the power of the court to make the appointment should be exercised or not. Keogh Manufacturing Co. v. Whiston (Sup.) 14 N. Y. Supp. 344. In view of the specific pledge of the rents and profits, and the stipulation for the appointment of a receiver, and in view of the uncertainty whether at the foreclosure sale the property would bring an amount sufficient to satisfy the debt, and in view of the fact that the mortgagors had failed to observe their agreement to keep the building, in which the property chiefly consisted, insured, and had suffered interest due and unpaid to accumulate to a large amount, we are of the opinion the chancellor did not err in appointing a receiver. As has been seen, the mortgagors were permitted by the order to retain possession of a certain part of the premises for a homestead, and other parts to be rented for their necessary support.

Complaint is also made that the receiver was continued in possession after the decree of foreclosure was rendered, and it is insisted that the deed provided for a receiver only during the pendency of the suit, and that the suit was not pending after such decree. The suit was still pending. There had been no sale, and there were further necessary steps to be taken in the cause. Besides, it could not be definitely known until the sale whether the property would satisfy the debt or not.

Other questions of a very technical nature are raised by the briefs, but they are without merit and require no discussion.

The decree must be affirmed. Decree affirmed.

(199 Ill. 71)

WILLIAMSON COUNTY v. FARSON et al. (Supreme Court of Illinois. Oct. 25, 1902.) BONDS-PAYMENT-NOTICE-INTEREST

NOMINAL DAMAGES.

1. Three publications in a paper, within six days prior to the time for payment of semiannual interest on negotiable bonds, long past due, that the bonds will be paid and interest will cease then, is not such notice as will stop interest on that date, unless the holders have actual notice, though the money for their payment be deposited at the place specified in the notice for their payment.

2. Failure of defendants to deposit money for payment of bonds, as they had agreed, makes them liable for nominal damages only; they having paid all bonds presented, and there

is the amount for which the defendants in error are sought to be held liable by reason of their failure to make the deposit with the American Exchange National Bank as per their agreement with plaintiff in error.

The bonds in question were negotiable, interest-bearing securities, long past due, and while outstanding continued to draw interest. Being due, the plaintiff in error had the right, at any time, to pay them, upon reasonable notice to the holders thereof; but a notice published three times within six days prior to February 1, 1895, it is clear, would not be reasonable notice, and would not stop the interest on that date, unless the holders of the bonds had actual notice of such call, even though the money was on deposit at the place where it was stated in the call the bonds would be paid. Read v. City of Buffalo, 74 N. Y. 463. There is no evidence in this record that any of the holders of the 39 bonds received notice of the call prior to July 1, 1895, and, if they received no notice of such call, they were not bound to present their bonds for payment on or before February 1, 1895, or, as a penalty, forfeit the interest thereon. The statute under which the bonds were issued provided they might be made payable outside of the state of Illinois, and they were made payable by their terms at the American Exchange National Bank, in the city of New York, while the call was to present the same for payment at that bank, or at the office of the defendants in error in said city. While the defendants in error had agreed to depos it the funds in the bank, a failure so to do would not make them liable for more than nominal damages, unless by reason of such failure the plaintiff in error suffered substantial damages. As we have seen, the publication of the call alone did not stop the interest running upon the bonds. If the evidence showed that the bonds, or any of them, were presented for payment under the call to the bank prior to February 1, 1895, and that they were not paid for want of funds at that place, and by reason of their nonpayment plaintiff in error had been forced to pay interest thereon after February 1, 1895, a different case would be made. No such proof was offered, but it does appear that the defendants in error took up and paid all of said bonds so soon as they were presented for payment, either at the American Exchange National Bank, or at the office of the defendants in error. It is therefore apparent that the state treasurer was not forced to pay said interest by reason of the fact that the deposit was not made in accordance with the agreement of defendants in error. defendants in error did not agree to take up the old bonds. They only agreed to place the money on deposit with the bank to pay the same, with interest to February 1, 1895, when presented. This they, in effect, did. The fact that 39 of the bonds were not presented before the July interest had accrued

The

and been paid by the state treasurer was no fault of defendants in error.

The appellate court held that as the state treasurer paid the interest on 39 bonds from January 1 to July 1, 1895, and the defendants in error had in their hands the funds of plaintiff in error with which to pay the interest thereon for the month of January, the defendants in error should refund to it one month's interest thereon. As no cross-errors have been assigned, the defendants in error must be held to be content with such holding.

Finding no reversible error in this record, the judgment of the appellate court will be affirmed. Judgment affirmed.

(198 III. 265)

GRIMME v. GRIMME. (Supreme Court of Illinois. Oct. 25, 1902.) INSURANCE-MUTUAL BENEFIT SOCIETY-PAY. MENT OF BENEFITS-STATUTES.

1. Rev. St. Mo. 1879, §§ 970, 972 (Rev. St. Mo. 1889, §§ 2821, 2823), permitted corporations for beneficial purposes, and declared that such corporations might provide for the aid of "the families, widows, orphans," or other dependents, of deceased members. Laws Mo. 1897, p. 132, § 1, enacted that payments of death benefits should be to the families, heirs, or "blood relatives," or affianced husband or wife, of a deceased member. Section 2 provided that such associations, wherever organized, now doing business in the state, might continue such business, provided they complied with the provisions regulating annual reports, etc. Section 15a enacted that any such society might avail itself of the benefits of section 1 by amending its constitution or articles of association, or reincorporating thereunder. Held, that a fraternal order, with provisions for death benefits, which was doing business prior to the act of 1897, and which continued to operate thereafter, complying with section 2 of said act, by making reports, etc., but not amending its constitution under section 15a, was governed as to payment of benefits according to the laws prior to 1897, and not according to the act of 1897, and a father who was not a dependent of a deceased member could not be a beneficiary.

Appeal from appellate court, First district. Bill of interpleader by the Supreme Lodge Order of Mutual Protection against Martha and George Grimme, praying the determination of their conflicting claims as beneficiaries under an insurance certificate. From a decree of the appellate court (101 Ill. App. 389) affirming a decree in favor of Martha Grimme, said George Grimme appeals. Affirmed.

This is an appeal from a judgment of the appellate court for the First district affirming a decree of the superior court of Cook county in favor of appellee. The Supreme Lodge Order of Mutual Protection filed a bill of interpleader in the superior court of Cook county, making appellant and appellee defendants, praying that their conflicting claims to the proceeds of the benefit certificate issued by the order to William F. Grimme, deceased, might be settled, and admitting its liability to the amount of $1,719.20. Wil

liam F. Grimme applied for membership in the Order of Mutual Protection on October 10, 1890, stating in his application, among other things, that he agreed to be bound by the laws of the order as they then existed or as they might thereafter be amended; and in his statement to the medical examiner he again agreed to comply with the charter, constitution, and by-laws of the order as then in force or as might thereafter be enacted, and that the last benefit certificate issued to him should be the only one in force. On this application the supreme lodge issued a benefit certificate to him on October 14, 1890, in which it promised, upon his death, to pay the amount of one assessment, not to exceed the sum of $2,000, to his wife, Martha Grimme, unless the certificate should be by him revoked. The certificate contained this condition: "The express condition upon which this certificate is issued is that the rights of the above-named beneficiary or beneficiaries shall be determined by the charter, constitution, laws, rules, and regulations of the order in force at the time that the sum due hereunder is payable." Afterward, on June 6, 1900, he made application to the supreme lodge to have this certificate canceled, and a new one issued in its place, payable one-half to his father, George Grimme, and one-half to his wife, Martha Grimme, and stating that he was unable to return the former certificate, because it was not in his possession. A new certificate was granted to him on June 7, 1900, with the beneficiaries named as requested. One of the conditions of this certificate was "that the rights of the above-named beneficiary or beneficiaries shall be determined by the laws of the order in force on the day of the death of the member." William F. Grimme died intestate June 22, 1900, leaving no descendants, and his wife claimed the whole amount of the benefit. The court awarded her the entire fund payable under the last certificate, on the ground that appellant, George Grimme, was not eligible as a beneficiary, which decree the appellate court affirmed.

The Supreme Lodge Order of Mutual Protection was incorporated under the laws of Missouri; its articles of association or charter, and the order of court granting it a certificate, having been filed in the office of the secretary of state March 21, 1880. Amendments thereto, made according to law, were filed May 7, 1880, and May 24, 1884. The order was reincorporated and its charter and certificates were filed December 4, 1894. The amended charter of 1880 and the new charter of 1894 are substantially the same, and contain this identical paragraph: "Art. 2, § 1. The objects of this order shall be: Second, to provide means, from the proceeds of assessments upon its members, wherewith to assist its sick and disabled members, and for the relief and aid of the families, widows, orphans, or other dependents of its deceased members."

*

64 N.E.-69

Charles Lane, for appellant. James R. Ward, for appellee.

CARTER, J. (after stating the facts). The decision of this case involves interpretation and construction of the statutes of Missouri. When the order was incorporated, and down to and including the year 1899, the statutes of that state contained substantially the provision that any number of persons, not less than three, who shall have associated themselves by articles of agreement, in writing, as a society or organization for benevolent, fraternal, beneficial, or educational purposes, may be consolidated into a corporation: provided, always, that the purpose and scope of the association be clearly and fully set forth. Rev. St. Mo. 1879, § 970; Rev. St. Mo. 1889, § 2821; Rev. St. Mo. 1899, § 1394. It was also provided that such associations and societies should be permitted to include in their corporate powers the privilege of providing for the relief and aid of the families, widows, orphans, or other dependents of their deceased members. Rev. St. Mo. 1879, § 972. Section 2823 of the Revised Statutes of Missouri of 1889 is substantially the same, except that it reads, "other kindred dependents." To render operative this permission to include in their corporate powers the privilege of providing for such benefits as just stated, it was provided in the Revised Statutes of Missouri of 1879, by section 973, and in the Revised Statutes of Missouri of 1889, by section 2824, that any society theretofore or thereafter incorporated under the provisions of the act might avail itself of the benefits of the "foregoing section" (that is, section 972 in the revision of 1879, and section 2823 in that of 1889) by amendments to its constitution or articles of association. 1897 the legislature of Missouri passed a fraternal benefit act, which, in section 1, defined fraternal beneficiary associations under the act, and contained this provision: "Payment of death benefits shall be to the families, heirs, blood relatives, affianced husband or affianced wife of or to persons dependent upon the member." This section took the place of section 972 of the Revised Statutes of 1879 and section 2823 of the Revised Statutes of 1889. It was retained in the Revised Statutes of Missouri of 1899, but there numbered 1408; the sections in the last revision having been arranged in a different order from preceding revisions.

In

It will be observed that this act of 1897 materially changed and enlarged the class of persons who might take as beneficiaries, and is broad enough to include the appellant, the father of the member, while the class as named in the beneficiary certificate here in question, and in the statute when the certificate was issued, did not include those standing in that relationship to the member by virtue of such relationship, only; and the first and principal question in the case is whether the disposition of the fund