Walker v. Coleman.

I

had been arranged that the note should be made payable to me. told him I didn't care how they fixed the matter; that I wanted to sell the Wilcox farm and the Kansas land, and they could do what they pleased with the balance of the money." He says, when the money was paid and the note given, all the conversation he had with the defendant was, he asked her if she knew she was paying $5 for the Kansas lands, and she said she did. He paid her husband the $350 and gave him the note in the express office, and he does not claim that the defendant was present or had any knowledge of what he did.

It is true, as contended by the counsel for the defendant, the defendant was not agent or trustee for the plaintiff; but it is also true that he knew her husband was her agent in the negotiations he had with him; and he must also be charged with knowing that power to appropriate to himself the $350 in money and the defendant's note was not implied from such agency, and that if he did not have express authority to do so, the act was a fraud upon the plaintiff. The defendant had no information from the plaintiff which justified him in supposing she had consented to this appropriation by her husband. He relied solely on his word for that. When the defendant consented to aid the plaintiff's husband in his scheme, by receiving the money and the note, as if in good faith for the payment of the lands, but in fact to hold for and deliver over to him, he made himself a party to the transaction, and assumed the responsibility of its being in good faith.

The story of the husband bore evidence of fraud upon its face, and it is difficult to believe that the defendant did not, in fact, know, as it was legally his duty to know, what the husband's purpose was. The daughter was not present when the transaction was consummated, and there was no necessity for the circumlocution and mystery that were observed, if the only purpose was to keep knowledge of the transaction from her ears. Why not hand the money and note to the defendant's husband in her presence? Why ask her if she knew she was paying $5 an acre for the Kansas lands? Why not ask her if she knew she was only paying $2.50 per acre for them?

We are entirely satisfied with the verdict, under the evidence, and think there was no substantial error of law in the giving or refusing of instructions.

The certificate of a settlement between the plaintiff and her hus

Drew v. Mason.

band, whether, as she swears, extorted from her by duress or not, is in no sense a release of this cause of action. It is not given to the defendant, or for his benefit, nor does it profess to have any reference to this cause of action.

The judgment is affirmed.

Judgment affirmed.

DREW V. MASON.

(81 Ill. 498.)

Mechanics' lien - Lightning rod.

Furnishing and fixing a lightning rod on a house is not within the statute giving a lien for labor and materials "in building, altering, repairing or ornamenting" a house.

PETITI

ETITION to enforce a mechanic's lien for a lightning rod put upon a building. The court below sustained a demurrer to the petition, and dismissed the bill.

O. H. Wright, for appellants.

S. . Conwell and Dearborn & Campbell, for appellees.

SCOTT, C. J. Furnishing materials and labor in placing a lightning rod on a house, is not furnishing materials and labor "in building, altering, repairing or ornamenting" a house, in the sense those terms are used in the mechanic's lien law.

The decree will be affirmed.

Decree affirmed.

Andrus v. Coleman.

ANDRUS V. COLEMAN.

(82 III. 26.)

Vendor's lien-What is a waiver.

Where one conveys land to a married woman, and takes a deed of other lands from her husband, with covenants of warranty, in part payment, and the husband's promissory note for the balance, he waives his lien as vendor and can resort only on the husband for payment.

ILL to enforce a vendor's lien. The cause was heard upon bill, answer, replication and proof. The bill was dismissed, and

en, was BILL

complainant appealed.

B. D. Lucas, for appellant.

0. T. Reeves, for appellee.

SCHOLFIELD, J. The question is, whether appellant waived his right of lien as vendor when he conveyed the land to the appellee, Martha J. Coleman, having taken her husband's warranty deed for certain lands in Kansas in part payment, and his individual note to secure the payment of the residue of the purchase-money.

We consider that appellant, having conveyed to appellee, is estopped from questioning her title. He did this knowingly and voluntarily, and it is too late now to say that the title, in fact, belonged to the husband, with whom he contracted. This is ample recognition of his knowledge of the husband being the agent for the wife in the transaction, as she swears he was, and, therefore, when he accepted his covenants of warranty for the Kansas lands, and his individual note for the residue of the purchase-money, he knew that he was relying on the obligations of a person other than his grantee for payment of the purchase-money. Cowl et al. v. Varnum, 37 Ill. 184, settles the question that the taking of the note of the husband to secure the payment of the purchase-money for land bought by the wife, through the husband acting as her agent, is a waiver of the lien; and the same principle must apply where the vendor accepts the deed of the husband for real estate, VOL. XXV.-37

Harrington v. Stees.

with covenants of warranty, in payment. It is strictly the taking of an independent security, and is within the well-recognized rule announced in Conover v. Warren et al., 1 Gilm. 498, that the lien is discharged by the taking of any independent security. See, also, Boynton v. Champlin, 42 Ill. 57.

Duke v. Balme, 16 Minn. 307, cited by counsel for appellant, is materially different in its facts from the present case, and whether we shall hold the law to be as there laid down, it will be time enough to determine when the same state of facts shall be presented in a case requiring our determination. Willard v. Reas, 26 Wis. 540, is analogous to the present case, and is in harmony with our views.

The charge that appellee had notice, when she received her deed, that the purchase-money was unpaid, is disproved, and the case is entirely free from every element of fraud. There is no reason to question the good faith of appellee's husband when he made the conveyance of the Kansas lands, and the subsequent development of a superior title was evidently as unexpected to him as it was to appellant. As against such a contingency, appellant took covenants of warranty, and with these he must be satisfied.

The decree is affirmed.

Decree affirmed.

HARRINGTON V. STEES.

(82 Ill. 50 )

Nuncupative will must be executed in last illness.

A statute provided that a nuncupative will must be made " in the time of the last sickness" of the testator. Where one in his last illness, believing it would probably result in death, but not without hope of recovery, executed his will as required by the statute: Held, not invalid, because he may have had time and opportunity to reduce it to writing.

ILL to contest the validity of a nuncupative will. Writ of error. The opinion states the case.

BILL

S. C. Landes, A. B. Mathews, and Casey & Patton, for plaintiffs in error.

Bell & Green, for defendants in error.

Harrington v. Stees.

DICKEY, J. This was a bill in equity, by James Harrington and others, the next of kin of Henry H. Harrington, deceased, to contest the validity of a nuncupative will in favor of Mary Stees, alleged to have been made by deceased in his last sickness. The will was reduced to writing, and, together with the attesting oaths, was presented to the county court and admitted to probate, and letters testamentary were issued to Robert Bell, who, with Mary Stees, was made defendant. They both filed answers, and, issues being formed, a jury was waived and the issues tried by the court. On the hearing, the Circuit Court found for the defendants, and dismissed the bill. The complainants bring the record here by writ of error for review.

At the first hearing here, a judgment was rendered reversing the decree of the Circuit Court, ordering a decree to be entered in this court declaring the nuncupation invalid as a will. On petition of defendants in error, a rehearing was granted, and, upon further consideration, a majority of the court have arrived at a different conclusion, and are of opinion the decree of the Circuit Court should be affirmed.

The bill alleges that Henry H. Harrington died on the 13th of November, 1869, and that, on the 16th of the same month, an instrument of writing, purporting to be his last will, was filed in the county court, as follows:

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"Be it known that we, the undersigned, were present on the 11th day of November, 1869, at the residence of Henry H. Harrington, deceased, in the city of Mount Carmel, county of Wabash, and State of Illinois, who was then in his last sickness. One of us, George W. Hughey, said to Mr. Harrington: Do you know what you said to me, in the afternoon, in regard to your temporal affairs? Mr. Harrington said: 'I do.' Mr. Hughey then said to Mr. Harrington that the time was passed for having his temporal matters. settled in that way (meaning that it was too late for him to get married), and that he would better make a will.

Then the other of us, William B. Ridgway, said to Mr. Harrington that if he would tell us, as witnesses, what disposition he wanted to make of his property, we could testify to the fact in the probate court, and that it would answer as well as a written will.

Then Mr. Harrington said: 'I intended to marry Mary Stees. This arrangement was made before I was taken sick, and we were prevented from consummating it by my sickness. It has been my