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and when he bought out interests of some of the heirs, it had been considered that the interest of each of the eleven children of Jeremiah Rice in all the lands was one-eleventh. It is clear from the evidence that it was so understood by all the parties in interest until it was disclosed by the abstracter, in making an abstract, that the patent title to the eighty acres was never in Jeremiah Rice, but was in Massey Rice, his first wife; but there was no evidence whatever that the complainants in the bill of review, who were also parties to the partition suit, --one of them, Alexander Z. Rice, the principal owner, being complainant in that suit,-used any diligence what. ever to ascertain the true state of the title to that land. Questions of estoppel and other defenses set up by the appellants have been urged in addition to complainants' lack of diligence, but as the latter is a sufficient defense we do not find it necessary to consider any other.
It must be presumed that parties interested in land and seeking its partition among them, will make, or cause to be made, an examination of the title, in order that the court may render a proper decree, and it is not sufficient to show, in support of their bill for a review of the proceedings and the correction of the decree because of newly discovered matter, that they were ignorant of the title. The bill properly alleged that they could not have discovered the new matter by reasonable diligence. This necessary allegation should have been supported by proof. If the facts were such that the allegation could not be proved because the title to the land was a matter of public record open to the inspection of every one, the rule would not be changed or rendered inappli. cable, but only the fact made apparent that there was a failure to exercise reasonable diligence in the examination of the title. Such an examination prior to the partition proceedings would have disclosed the same title in' Massey Rice now asserted in the bill of review. A bill of review based on newly discovered evidence is designed
to accomplish the same purpose as a petition for a rehearing in chancery or a motion for a new trial at law. Such a petition or motion must, however, be filed or made during the term, while a bill of review is filed only after the term at which the decree was entered. (Elzas v. Elzas, 163 Ill. 160.) But diligence must be shown in either case. Not only must the matter be new, and sufficient to have produced a different decree from the one rendered, but it must be such that the party, by the use of reasonable diligence, could not have known of it before the hearing, so as to have produced it at that time. Boyden v. Reed, 55 Ill. 458; Washburn & Moen Manf. Co. v. Wire Fence Co. 119 id. 30; 3 Ency. of Pl. & Pr. 582.
It is also contended by appellants that the decree of partition was essentially a consent decree, and that a bill of review will not lie to correct or change a consent decree. (Cox v. Lynn, 138 Ill. 195; Flagler v. Crow, 40 id. 414.) The rule contended for is undoubtedly correct, but we need not consider whether the former decree can be said to have been entered by consent. True, the principal party in interest and one of the complainants in the bill of review was one of the two complainants in the partition suit, and asked the court in that case to make the decree which was made and which he now asks the court to change and correct. But it is sufficient to dispose of the bill, that the complainants failed to exercise such reasonable diligence as would have disclosed the true state of the title.
The court below properly decided that the notes and mortgage set up by the interpleader and cross-bill were barred. They had been due and nothing paid on them, nor any promise to pay, for upwards of eighteen years. But for the error pointed out the decree must be reversed and the cause remanded to the circuit court, with directions to dismiss the bill of review as well as the interpleader and cross-bill.
Reversed and remanded, with directions.
CHRISTOPHER COLUMBUS BUILDING AND LOAN Ass'n
192 128 d99a 1 86 192 128 100a 2157 100a 2158 192 128 d199 2212
JOSEPH KRIETE et al.
Opinion filed October 24, 1901.
1. LOAN ASSOCIATIONS-when an association is not estopped to deny liability for deposits. A loan association is not estopped to deny its liability for money deposited with its secretary by parties upon the understanding that the association would pay interest thereon, where the secretary was not authorized to receive the deposits nor held out as having such authority, and where the association did not receive the money nor any benefit therefrom, the secretary making no record thereof on the books of the association, but keeping a private account of the deposits and paying interest in cash or by private check up to the time when he absconded.
2. SAME-when holders of matured stock are not entitled to priority as creditors. Intervening petitioners in a building and loan receivership who are holders of matured stock are not entitled to priority as preferred creditors, where none of them have the warrants of the association issued to pay for their stock nor hold checks upon any bank having funds of the association on deposit.
Columbus B. & L. Ass. v. Kriete, 87 Ill. App. 51, reversed in part.
WRIT OF ERROR to the Appellate Court for the First District;-heard in that court on appeal from the Supe. rior Court of Cook county; the Hon. FARLIN Q. BALL, Judge, presiding.
Plaintiff in error is a corporation organized in Illinois in 1884, under "An act to enable associations of persons to become a body corporate to raise funds to be loaned only among the members of such association,” (Starr & Cur. Stat. 1896, chap. 32, par. 108,) and did business in Chicago until April, 1897, when, upon petition in the superior court of Cook county, it was declared insolvent and Arthur Nollau was appointed receiver. In May and June, 1897, Joseph Kriete and forty-seven others, who are the defendants in error, filed intervening petitions, each sworn to, claiming to be special creditors of said
association and entitled to preference in the distribution of its assets. The character of the claims of the petitioners was set out in the petitions in two forms of alle. gation, only. Joseph Kriete and thirty-five others, by separate petition, each "represents that he is a resident of the city of Chicago and that he deposited in the said Christopher Columbus Building and Loan Association, on the following date, the following sum of money: January 11, 1897, $800, which amount, and each of them, the said Christopher Columbus Building and Loan Association promised to pay to said Joseph Kriete, his heirs or assigns, on demand, together with interest at the rate of six per cent per annum, payable semi-annually at the office of said company in the city of Chicago." Further averring that thereby said association became and was indebted to petitioner, stating the amount of the deposit with interest added, and concluding with a prayer to be declared a depositor and outside creditor, and to be paid next after costs of administration of the estate. Twelve of the petitions were as follows: "Petition of...
stating that petitioner left with, deposited in, loaned to the Christopher Columbus Building and Loan Association, $....on
which amount said association promised to pay petitioner on demand, with interest at five per cent per year, payable semi-annually, and is indebted to petitioner in $. ...., which claim.....asks be allowed as the claim of an outside creditor and paid first in full after the cost of administration."
To these petitions the receiver answered, denying that the petitioners were entitled to the relief prayed; denying that they deposited, left with or loaned to said association such moneys; says they were not shareholders or members of the association, and denies that the association agreed to pay the same or interest thereon, and that whatever moneys they may have deposited was with David Sachsel, the secretary of said association, individually; that said association was not authorized or permitted by law to receive money on deposit or borrow
money and agree to pay interest thereon, and that any such acts done by it are ultra vires.
The chancellor, confirming the report of the master, found that Joseph Kriete, John Wendt, Frederick M. Reitz, Hannah C. Reitz, Carl W. Eckhardt, Agnes Malkowska, Alfred Lowenstein, Hannah Adlfinger, Anna Adlfinger, George C. Struve, Michael Wendt, Margaret Weber, John Kocmata, Ferdinand Revenfeld, Carl Roeske, Mary Stein, Anton Metzger, Anastasia Schroeder, John Bergholz, John Mikes, John Graf, August Holz, John Frahm, John Metzger, Joseph Behrmann, Math. Bucher, Frank Becker, Koernier Lodge and L. Kochler, (referred to in the opinion as “Joseph Kriete and his class,") had, prior to the insolvency of said association, made deposits with it, which it agreed would be re-paid, with interest; that they were not stockholders, but that the deposits were loans, and that the amounts, with interest, were prior and superior to all other claims against the funds and assets, except the expense of administration, and so ordered their payment. As to the petitioners Albert Truka, John J. Krauth, August Duppke, Godfried Schurz, August Czanzkowski, Heinrich Semmler, Otto Triphaha, Gottfried Karnowski, Maria B. Didier, Francis X. Lang, Otto A. Arzbacker, Julia Patzen, Carl Kadow, Joseph Bischke, John Reich, Katharina Mueller, Anna Yonovska, Kate Sabachenska, Maria Reinhardt and Albert Kilchmann, (referred to in the opinion as “Albert Truka and his class," the master and chancellor found they were owners of shares of said association which matured prior to its insolvency and had been so declared by the directors of said association; found the amount due each upon such matured stock and decreed payment thereof, with five per cent interest, as liens prior and superior to the unmatured stock.
The case went on error to the Appellate Court for the First District, where, at the October term, 1899, (87 Ill. App. 51,) the decree of the superior court of Cook county