Rankin v. Kinsey.

It is equally well settled in this State, that when a mortgage gives to the mortgagee or his assigns powers to sell in case of default in payment, an assignment of the notes secured by the mortgage will vest the power of sale in the assignee. Strother v. Law, 54 Il. 413; Pardee v. Laidly, 31 Ill. 185; Heath v. Hall et al. 60 Ill. 345.

Before the sale Mrs. Cohrs, the payee in the notes, wrote her name on the back of each of said notes and sold and delivered them to Cummings for a valuable consideration, and these blank indorsements were filled up by the attorney of Cummings on the trial of this cause.

The court refused to instruct the jury in behalf of appellants that the assignment was sufficient to confer the power of sale on Cummings. In this we think the court erred.

The statute makes all notes assignable by indorsement thereon, under the hand of the payce, so as absolutely to vest the property thereof in the assignee.

No particular form of words are necessary to constitute a valid assignment. It is sufficient if the signature of the payee appears on the back of the note. The holder for value under such an assignment is the absolute owner of the note, and may fill up the assignment to hims If, even on trial.

The filling of the blank is a mere matter of form, and as was said in Gillham v. The State Bank of Illinois, 2 Scam. 247, may be dispensed with altogether. See, also, Weston et al. v. Myers, 33 Ill. 424.

The notes secured by the mortgage were indorsed by the payee to Cummings for a valuable consideration; he thereby became their absolute owner, and so long as he so held them, he alone possessed the power of sale.

It is next objected that the sale was made by J. B. Cohrs, the attorney of Cummings, in his absence, and that the p emises were purchased by Rankin, who paid nothing therefor, but was the agent of Cummings, and held them in trust for him.

The sale was reported by Cohrs to Cummings, and he executed the deed to Rankin, the purchaser.

Such objections do not render the sale void, in the absence

Rankin v. Kinsey.

of actual fraud, but voidable only at the instance of the mortgagor. McHenry v. Schenk, 88 Ill. 365; Mulvey v. Gibbons, et al. 87 Ill. 367.

Courts of equity having jurisdiction over technical and constructive frauds, will set such sales aside on a bill by the mortgagor in apt time, whether loss has resulted to the owner or not; but in a court of law, in the absence of actual fraud, the only inquiry is, who has the legal title? Thorpe v. Cullum, 1 Gilm. 614; Lockwood v. Mills et al. 39 Ill. 602; Jackson v. Cadwalader, 14 John, 407.

It is further insisted that this sale was fraudulent in fact, and therefore void as against creditors and subsequent purchasers.

We do not care to discuss the evidence in detail, as the case must be submitted to a jury again; but it fails to show collusion between Cummings and Eller to defeat Eller's creditors for his benefit. There is no dispute that the indebtedness which Cummings held against Eller was bona fide.

It was a contest between Eller's creditors as to who should have the corn, and it is not easy to see how he was to be benefited if Cummings succeeded. In any event the corn was to go to his creditors, and was lost to him, except so far as it extinguished his indebtedness.

It is contended that one Hatch, was the owner of one-third interest in the corn at the time the replevin suit was commenced.

Hatch purchased the land from Rankin, and the evidence tends to show that at the time he bargained for the land he bought one-third interest in the corn then standing in the field.

The deed was made for the land at the time of the purchase, and contained an express reservation of the corn to Rankin, with the right to enter upon the premises and gather, crib and shell the same. Parol evidence of the purchase prior to the execution of the deed was not admissible to contradict or vary the express term of the deed.

Admitting that replevin cannot be maintained for an undivided interest in property, it does not follow that the plaintiff,

Badger v. Knapp.

when defeated and suit is brought on the bond, cannot avail himself of his statutory right to rely upon his ownership in mitigation of damages to the full extent of such ownership. The judgment is reversed and the cause remanded. Reversed and remanded.

SOLOMON M. BADGER

V.

THOMAS S. KNAPP.

1. UNION SCHOOL DISTRICTS-DISSOLUTION-POWER OF COUNTY SUPERINTENDENT. In proceedings under the statute for the dissolution of union school districts, the county superintendent has no power to act respecting the apportionment of property to each district, except in cases where the board of trustees refuse to grant the prayer of the petitioners, in which case he may order the board of trustees to make such change or changes.

2. APPEAL FROM ORDER OF SUPERINTENDENT.-Where on appeal from the order of the board of trustees granting the prayer of the petitioners, the county superintendent reversed the action of the board, it was not error for the circuit court, on appeal, to quash the proceedings had before the superintendent.

APPEAL from the Circuit Court of Mason county; the Hon. LYMAN LACEY, Judge, presiding. Opinion filed October 6,

1880.

Messrs. DEARBORN & CAMPBELL, for appellant; that the superintendent has no power to make a change, and can only approve the action of the board of trustees, cited Thompson v. Beaver, 63 Ill. 353.

The presumption is in favor of the regularity of the acts of the school officers, and to question their acts the action should have been by quo warranto: Huck v. Trustees, 87 Ill. 41; Alderman v. School Directors, 91 Ill. 179.

Certiorari is not a writ of right, but issues only on special cause shown: Trustees v. School Directors, 88 Ill. 100.

Mr. J. B. BROWN, for appellee; that trustees of schools have no power to form, or refuse to form a school district; but

Badger v. Knapp.

must give effect to the will of the voters, as expressed in the petition cited, Trustees v. The People, 76 Ill. 621.

PER CURIAM. Upon the dissolution of a union school district composed of territory lying partly in Logan and partly in Mason counties, the board of trustees of township twentyone, range five, in Mason county, failed to make any order touching the territory so detached. A writ of mandamus was then prosecuted, requiring them to make some disposition of the same, so as to give the inhabitants thereof the benefit of the schools in same district already organized. Thereupon they made an order attaching this territory to Union District No. 2, from which order an appeal was take to the county superintendent, who reversed the action of the board of trustees, but failed to make any disposition of this territory in question. Appellee thereupon filed his petition in the circuit court for a common law writ of certiorari to set aside this action of the county superintendent, which, upon a hearing of the cause, was done, and the proceedings had before the said superintendent on said appeal were quashed. From this order he now appeals.

Without considering all the questions raised by this record, it is sufficient to say that, in our opinion, on an appeal under the sixth clause of the thirty-third section of the school law, as amended in 1879, the superintendent has no power to act except in cases where the trustees refuse to grant the prayer of the petitioners. It provides that "if in his opinion the change asked for is for the best interests of the district or districts concerned, he shall order the trustees to make such change or changes, and his action shall be final and binding;" but it nowhere gives the superintendent power to reverse the action of the board of trustees when they have granted the prayer of the petitioners. In this case the board took action, and granted the prayer of petitioners by attaching the territory to another district. This action cannot be reviewed by the superintendent, and consequently his acts in that behalf were void. There was therefore no error in the order of the circuit court in quashing the same, and the judgment is affirmed.

Affirmed.

Mix v. The People.

JAMES MIX

V.

THE PEOPLE OF THE STATE OF ILLINOIS..

APPELLATE JURISDICTION-REVENUE CASES.-This case being one relating to the revenue, this court has no jurisdiction to entertain an appeal,

APPEAL from the Circuit Court of Ford county; the Hon. OWEN T. REEVES, Judge, presiding. Opinion filed October 7, 1880.

Mr. S. R. MOORE, for appellant.

Mr. A. SAMPLE, for appellee.

PER CURIAM. This was a suit brought in the Circuit Court of Ford county, by The People of the State of Illinois, against James Mix, under section 230, of chapter 129, of the Revised Statutes, to recover certain taxes on forfeited property belonging to Mix.

At the April term, 1880, of the circuit court, a judgment was rendered against defendant below for the amount of taxes claimed to be due, from which he appealed to this court.

By section 89, of chapter 110, in force July 1, 1879, it is provided that all appeals from inferior courts in cases relating to revenue, or in which the State is interested as a party or otherwise, shall be taken directly to the Supreme Court.

This suit relates to the public revenue, is brought in the name of the People, and the State is directly interested in its result, and the appeal should have been directly to the Supreme Court.

No jurisdiction having been conferred upon this court to try this class of cases, the appeal is dismissed, and leave is given. to appellant to withdraw his record, abstracts and briefs, and to appellee to withdraw briefs.

Appeal dismissed.