well as by the decisions in other states. In Reeves v. Reeves, 54 Ill. 333, in a petition for dower, it was held that the marriage of a woman with a man whose wife by a former marriage is still living, undivorced, is void. In Cartwright v. McGown, 121 111. 395, 12 N. E. Rep. 737, in considering the effect of a second marriage where a divorce had not been granted, it is said: "The marriage of a man and woman, where one of them has a husband or wife of a prior marriage, who is then living and undivorced, is void, and not merely voidable." If the marriage of the complainant with Wilson was void, as held in the cases cited, we are aware of no principle upon which it can be held that her cohabitation with him was not adulterous. The marriage with Wilson being void, she occupied the same position that she would have occupied if she had cohabited with him without marriage. The judgment of the appellate court will be affirmed.

SHOPE, J., dissenting.

(141 III. 231)

CHYTRAUS et al. v. SMITH.1 (Supreme Court of Illinois. March 24, 1892.) MORTGAGE-FORECLOSURE — CONTRACT FOR REDEMPTION-ASSIGNMENT OF CERTIFICATE OF

SALE.

1. After a mortgage had been foreclosed, and the property bought by the mortgagee, he agreed to assign the certificate of sale to the mortgagor on payment of the amount necessary to redeem. The time within which the mortgagor had a legal right to redeem had then expired, but his judgment creditors still had a right to redeem, and some of them were willing to do so. Held, that there was sufficient consideration for such agreement in the mortgagor's promise to pay the amount necessary for a legal redemption by a judgment creditor.

2. One who purchases a master's certificate of sale after the holder has made a valid contract to sell it to another, takes the certificate subject to the contract.

3. Under Rev. St. c. 77, § 29, which makes certificates of judicial sales assignable by indorsement, so as to give the assignee "the same benefits therefrom" as the assignor would otherwise have had, a transfer of such a certificate by means of an assignment written on another piece of paper merely vests the assignee with the equitable title thereto.

Error to circuit court, Cook county; 0. H. HORTON, Judge.

Bill by Edward G. Smith against Axe! Chytraus, the Equitable Trust Company of Connecticut, Edward G. Mason and Henry B. Mason, as partners under the firm name of Mason Bros., William P. Nelson, and John L. Nelson, to enforce the conveyance and transfer of a master's certificate of purchase under foreclosure proceedings upon payment of redemption money. The bill was afterwards amended by making Oliver M. Carson, Helge A. Haugan, and John R. Lindgren parties defendant. Complainant obtained a decree. Defendants Axel Chytraus, Oliver M. Carson, Helge A. Haugan, and John R. Lindgren bring error. Affirmed.

The other facts fully appear in the following statement by SCHolfield, J.:

1 Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

Edward G. Smith filed his bill of complaint in the circuit court of Cook county against Axel Chytraus, the Equitable Insurance Company of Connecticut, Edward G. Mason and Henry B. Mason, as partners under the firm name of Mason Bros., William P. Nelson, and John L.. Nelson, alleging therein that on the 13th of September, 1887, complainant owned block 1 of the Equitable Trust Company's subdivision of parts of sections 20 and 21, in township 40 N., range 14 E. of the third P. M., in Cook county; that said premises are of the value of $100,000, and he believes them to be worth $125,000; that on the day last aforesaid complainant and wife executed a mortgage to the Equitable Trust Company to secure his indebtedness to that party of $36,000; that, becoming embarrassed, he was unable to pay said indebtedness according to its terms, and on October 30, 1888, said trust company filed its bill of foreclosure in the United States circuit court for the northern district of Illinois, making complainant, his wife, and other parties defendants, and on May 28, 1889, a decree of foreclosure was therein entered, finding the amount due from complainant to the Equitable Trust Company to be $43,533.90 and costs, which decree included for attorney's fees $1,850; that June 24, 1889, Henry W. Bishop, master in chancery of said court, in pursuance of said decree sold said premises, and the Equitable Trust Company purchased the same, and received a master's certificate of purchase. Complainant alleges that he did not make redemption within 12 months after sale, but before the expiration of 15 months from the time of sale, and prior to September 23, 1890, he entered into an agreement with the Equitable Trust Company, who was then the holder of said certificate of purchase, to purchase said certificate from it for the amount of sale, namely, $43,533.90, with interest at the rate of 8 per cent. per annum from June 24, 1889, to September 24, 1890, which amount he was to pay on or before September 24, 1890, in cash; that this agreement was manifested in writing, and signed by said company; that after the making of said agreement said company sent said certificate assigned in blank to Mason Bros., its agents and attorneys, directing and requiring them to deliver it to complainant upon payment of the amount aforesaid. Complainant alleges that he made preparation to take said certificate, and pay said company, through said Mason Bros., the amount aforesaid, but that said Mason Bros., pretending to act as agents of said company, on or prior to September 23, 1890, claimed to have sold and delivered said certificate to Axel Chytraus; that said certificate was not paid for by said Chytraus until after September 24, 1890, and after said Chytraus had received notice of the agreement with complainant. Alleges that said Chytraus had agreed to and did, after September 24, 1890, pay said Mason Bros., in addition to the amount complainant had agreed to pay the company, the sum of about $1,200. Alleges that Chytraus had notice of the agreement between the complain

ant and said Equitable Trust Company at the time of receiving the certificate and at the time of paying therefor. Complain ant alleges that he believes the sale and delivery to Chytraus was through procurement and collusion of Henry B. Mason, or one of said firm of Mason Bros., and that Chytraus and Mason Bros. colluded for the purpose of cheating and defrauding complainant, and for the purpose of depriving him of the great gain he would have received if said agreement had been carried out; that the amount of bis damages are at least $50,000, and he alleges and claims $75,000 by the non-performance of said contract; that he was on and prior to September 24, 1890, and is now, ready and willing to perform said contract, and hereby offers to perform the same, and pay the sum of money agreed upon by him with interest. Complainant charges that said certificate is not a negotiable instrument, but that the taker thereof takes it subject to same equities as in hands of said company. Complainant alleges that, after said company had rendered itself incapable of and had refused to transfer the certificate to him, he made arrangements with certain of his judgment creditors, namely, William P. Nelson and John L. Nelson, who had a judgment for $280 and costs against him, upon which execution had been issued and returned "Not satisfied," to redeem said premises, complainant agreeing to furnish the money, they to obtain the title, and convey to him upon receiving the amount of their judgment and interest. Alleges that Mason Bros, agents of said company, had given him a orandum of the amount requisite to redeem, and he, procuring such amount, viz., $47,887.29, went with said judgment creditors to the clerk of the United States circuit court, and offered to redeem by paying the amount aforesaid, which was the correct amount as required by the statutes of Illinois, when the clerk of said United States circuit court informed him that he could redeem only by complying with the rule of said court, which requires interest at the rate of 10 per cent. per annum upon the amount of purchase money, and 1 per cent. commission to the clerk of court. Alleges that such rule is illegal and void, at least so far as amount is concerned. That prior to calling upon the clerk of said court to redeem, said judgment creditors, on September 24, 1890, caused execution to be issued against complainant on said judgment, and placed it in the hands of the sheriff to make levy upon the premises in question, and requested him then and there to indorse such levy; and thereupon said sheriff, on September 24, 1890, made a levy on said premises by virtue of said execution. That after said execution was placed in the hands of the said sheriff, and after said levy, said Axel Chytraus paid the sheriff the amount of said judgment; and that they have never accepted from the sheriff the amount so paid.

mem

Prayer: That a decree may be entered compelling Chytraus and all persons claiming under him to assign and convey to complainant said certificate, and all

interest in said premises acquired thereunder; but if, in the opinion of the court, complainant is not entitled to have said premises conveyed to him, then that he may have judgment against said trust company, Edward G. Mason, and Henry B. Mason, or either of them, for the amount of his damages so suffered. Also prayer for injunction restraining Chytraus from transferring certificate, selling or disposing of said premises, or any part thereof, and from procuring a master's deed; and for general relief. There was a demurrer to the bill, which was overruled by the court.

The defendant Chytraus answered that he admits that on September 13, 1887, complainant owned the real estate described in bill, and executed and delivered a mortgage thereon as stated. That the Equita ble Trust Company filed a bill of fore closure, and a decree was obtained as stated. Sale of premises by Henry W. Bishop, master in chancery, on June 24, 1889, and issuance and recording of certifi cate of purchase as stated. Admits that complainant did not redeem within 12 months. Denies that complainant prior to September 23, 1890, or at any time, entered into an agreement with the Equitable Trust Company. Sets up the statute of frauds. Denies that the Equitable Trust Company sent certificate to Edward G. and Henry B. Mason, or either of them, directing and requiring them, or either of them, to deliver said certificate to complainant. Admits the sale by the Equitable Trust Company of the certificate to this defendant, but denies notice of any agreement by it with complainant. Denies all charges of collusion with the Masons. Avers payment for said certificate in money really and bona fide to said trust company. Denies complainant's readiness and willingness to pay, on or before September 24, 1890, the sum of money, alleged by him to be requisite to purchase said certificate. Sets up that defendant is an innocent purchaser without notice. Denies that complainant, or any of his judgment creditors, offered the clerk of the United States court, or any person, the sum of $47,887.29, or any sum, to redeem from said sale. Admits the issuing of execution against complainant, but denies that any levy was made. Defendant admits that he paid the judgment for which said execution had issued, and avers that he did so to protect the premises purchased by him from the lien of said judgment.

Edward G. and Henry B. Mason answered that they admit that on September 13, 1887, complainant owned the premises as alleged, and aver that simultaneously with his purchase of said premises from the Equitable Trust Company he gave back to said company a purchase. money mortgage for all, or nearly all, the purchase money of said block 1, and never made any payment of principal, interest, or taxes under said incumbrance. Admit execution of purchase-money mortgage, foreclosure sale, and issuing of certificate as alleged. Set up statute of frauds. Ad mit that the master's certificate was sent to these defendants, but deny that it was

sent with directions to sell to complain. ant. Aver that they received instructions from the Equitable Trust Company to sell the certificate to the first person who would pay principal and interest therefor in cash. That Axel Chytraus purchased and paid for the same in full on September 22, 1890, and the certificate was then delivered to him. Deny on information and belief that Smith had any agreement with the Equitable Trust Company, and deny positively that these defendants knew of any such agreement.

The Equitable Trust Company answered that it admits that on September 13, 1887, complainant owned property described in bill. That complainant became the owner by purchase from this defendant, and that mortgage mentioned in bill was given for purchase money. That the complainant at no time paid any principal or interest thereby secured, nor any taxes; this defendant being obliged to pay the same. Admits the foreclosure, and that decree for $43,533.90 and costs and $1,850 solicitor's fees was entered May 28, 1889. Admits sale, purchase by this defendant, aud recording of said certificate on June 24, 1889. Admits complainant did not redeem within 12 months, but denies that before the expiration of 15 months after said sale, or at any time, complainant entered into any agreement with this defendant to purchase said certificate. Sets up statute of frauds. Admits sending certificate to Mason Bros., but denies that it sent it with any direction or request to deliver it to complainant. Denies that complainant tendered the amount due under the foreclosure decree to the clerk of the United States court.

Leave was given to amend the bill by making Carson, Haugan, and Lindgren defendants. Those parties then answered that they admit that complainant owned the premises described in bill on September 13, 1887. That he and his wife executed the mortgage. That the same was foreclosed, and premises sold, and that complainant did not redeem within 12 months, as alleged. Deny that there was any agreement between complainant and the Equitable Trust Company regarding the sale to him of the certificate. Set up statute of frauds. Admit that the certificate was sent to Mason Bros., but deny that it was so sent with direction to deliver it to complainant. Deny that complainant was ever prepared to pay said trust company, or any one else, the amount of the said mortgage debt, with interest. Admit that Mason Bros. delivered the certificate to Chytraus, but deny the allegation that it was not paid for until after September 24, 1890. Aver that Chytraus bought it in good faith, for a valuable consideration, and paid for it on September 22, 1890, without any notice on the part of Chytraus or any of these defendants of any pretended claim by complainant. Deny that any tender was made to the clerk of the United States court of the amount due under the foreclosure decree, for the purpose of redeeming. Deny that any levy under execution was made as alleged in bill.

Carson admits that he is half owner

with said Chytraus of said certificate. Haugan and Lindgren aver that they have an interest in said certificate in the nature of a lien as security of a loan of $20,000 made to said Chytraus and Carson.

There was a general replication filed to each of the answers of the several defend

ants.

The Equitable Trust Company then asked and obtained leave to file its crossbill, wherein it alleged that in the year 1889 defendants Edward G. aud Henry B. Mason, copartners as Mason Bros., solicitors, were by cross-complaint employed as its solicitors in and about the foreclosure of the mortgage mentioned in the original bill herein, and that as such they conducted the foreclosure referred to in said original bill, and caused said property to be sold. That at such sale this cross-complainant became the purchaser, and a master's certificate issued in its name, and Mason Bros. received the same as its solicitors. The purchase price at said sale was $43,533.90. That in the summer of 1890 said land was, and it is now, of the value of at least $85,000 or $90,000, although theretofore it had not been worth more than $49,000 or $50,000. That cross-complainant's home office is at New York, where its vice-president and secretary have always resided, and do now reside; said officers being its only executive officers charged with the matter of disposing of said certificate, and having authority to sell or dispose of it, or to ratify in the company's name any contract for the sale thereof. That the value of said land in the summer of 1890, and as it now is, was not known to this cross-complainant or its said officers, but said officers supposed and believed, until after this suit was begun, that said land was worth only a very little, if any, over and above the amount for which cross-complainant had purchased at said foreclosure sale; and it was then well known to said Mason Bros. that cross-complainant and its said officers held such a low estimate of said land, and were not in fact advised of the true value thereof. That under its agreement with Mason Bros., said Mason Bros., in case said certificate should not be redeemed or sold, but a deed issue to cross-complainant. should receive from this cross-complainant in full for their services $500; but if the certificate should be redeemed or sold, so that cross-complainant would get the money instead of the land, then Mason Bros. might charge and collect from the debtor or purchasers of said certificate a much larger sum than $500 for their services. That Mason Bros. have long resided in Chicago, not far from where said land is situate, and at the time of the transactions hereinafter mentioned they knew (or, in the exercise of ordinary care and good faith towards your orator, as its solicitors, might readily have known) the real value of this land, to-wit, $85,000 or $100,000. That during the past five years one George W. Kendall has been and is now employed by this cross-complainaut as its agent in many matters at Chicago, his business being in part to keep informed as to the value and condition of cross-complainant's property and inter

ests at Chicago, in order to enable said officers to act intelligently in relation thereto; all of which was then well known to said Mason Bros. That on September 18, 1890, Mason Bros. informed this crosscomplainant by telegraph that Kendall was absent from Chicago, and they were unable to learn his whereabouts, and that Kendall had instructed them to sell said certificate to the first person who would pay cash therefor; and cross-complainant's secretary at New York supposed and believed that such communication was true; and cross-complainant's said offi. cers, believing that said land was worth but little, if any, above the face value of said certificate and interest thereon, telegraphed Mason Bros. its permission to sell said certificate to the first person who would pay cash therefor. That in fact said Kendall had not so instructed said Mason Bros., but, on the contrary, had advised them that said certificate should, if practicable, be kept until the redemption period had expired, and had informed said Mason Bros. that said certificate would then be of much higher value than before, which was a fact. That on or about August 29, 1890, Mason Bros., without cross-complainant's knowledge or consent, employed George H. Rozet, a realestate agent at Chicago, to procure a purchaser for said certificate, authorizing said Rozet, without endeavoring to secure a better price, to offer the same for face value and interest, and a commission of 2% per cent., agreeing with said Rozet that such commission from the purchaser should be a condition of any sale, and that such commission should be divided between said Rozet and said Mason Bros That defendant Carson is a real-estate dealer at Chicago, and defendant Chytraus an attorney practicing law at Chicago, and is now, and was at the time of the transaction herein mentioned, the attorney and general legal adviser of said Carson. That on or about September 16, 1890, said Carson and Chytraus (both being then fully advised of the true value of the property in controversy) agreed together to purchase said certificate with their joint means, and for their joint benefit; and Carson, acting as broker for Chytraus, and concealing from Rozet that he himself was otherwise interested in the purchase, introduced Chytraus to Rozet as an intending purchaser, upon the agreement that he, Carson, should receive a part of Rozet's commission; and thereupon Rozet, without endeavoring to secure better terms, though well aware of the true value of the said land, disclosed to Carson and Chytraus the terms of sale, as intrusted to him by Mason Bros., and disclosed to them that Mason Bros. were the attor neys and solicitors of this cross-complainant, and had or could obtain from this cross-complainant possession of the certificate. Said Rozet then introduced said Chytraus to Mason Bros. as a purchaser. That Chytraus then, in his own behalf and as agent for Carson, for their joint benefit, pursuant to their previous agreement, agreed with Mason Bros. to buy said certificates for the face value, interest, and 2% per cent. commission. Said

Mason Bros., though then well knowing the true value of said land, made no effort to get better terms for this cross-complainant, and sent to this cross-complainant the telegram aforesaid. That, until after this suit was brought, neither this crosscomplainant nor any of its officers had any knowledge or information from Mason Bros. or otherwise regarding the employment of said Rozet, or the agreement to exact from any purchaser such commission, or of the purpose of said Mason Bros., or any one else purporting to act in its behalf, to receive commissions or any other reward from any purchaser, or the agreement between said Carson and Rozet to divide commissions. That, after securing said cross-complainant's consent to sell said certificate for face value and interest only, Mason Bros., about September 20, 1890, received from it by mail said certificate, which had, to Chytraus' knowledge, been theretofore kept in the possession of its said officers at New York. That said certificate was not, when sent to said Mason Bros., and has never since been, indorsed by this cross-complainant, or any one else in its behalf. That until after this suit was begun neither it nor any of its officers knew that said Chytraus or Carson were in any way interested in said purchase or agreement to purchase. That about September 22, 1890. Mason Bros. delivered said certificate unindorsed to said Chytraus, receiving and accepting in full payment from him the face value, and interest thereon, and said commission of 2% per cent.,-being $1,196.69; the payment of said commission being part of the bargain, without which Mason Bros. refused to make the sale; and Mason Bros. then, by direction of Chytraus, paid over to Rozet a part of said commission, and retained a part thereof, (to-wit, $498.03.) and Rozet then paid over to Carson a portion, (to-wit, $200,) which said Carson has ever since retained. That Carson received said $200 from Rozet with knowledge that Mason Bros. had agreed to share, and had shared, said commission with said Rozet. Offers to repay to Chytraus and Carson the full sum by them or on their behalf paid out for said certificate, with proper interest, and reasonable costs. That Edward G. Smith claims some interest in said certificate, but that cross-complainant is sole legal and equitable owner thereof, and is entitled to recover possession thereof, and receive the master's deed for said land.

Prayer: That the transfer of said certificate to said Chytraus may be declared null and void, and the same may be returned and reconveyed to cross-complainant, as lawful owner thereof, upou repayment by it of the purchase price, with interest and costs. That cross-complainant may be decreed to be the sole and lawful owner thereof, or that Mason Bros. may be ordered to pay cross-complainant the difference between the real value of said land and the amount they received for said certificate, and also the sum received by them as commissions as aforesaid; and prayer for general relief.

Answers were filed by the respective defendants, putting in issue the material

allegations of the cross-bill so far as they were severally affected by them; and there were replications to these several answers. On final hearing the court decreed that the cross-bill be dismissed, and that relief be granted as prayed in the original bill. The court recites in its decree facts found from the evidence to be substantially as alleged in the original bill, and, among other things, it recites that said complainant did not make redemption of said premises within 12 months after said sale, but before the expiration of said 12 mouths negotiations were entered into between said Smith and said Equitable Trust Company; and after the expiration of said 12 months, and before the expiration of 15 months, from the time of said sale, and prior to the 22d day of September, 1890, said complainant entered into an arrangement, understanding, or agreement with said Equitable Trust Company, which was then the holder of said certificate of purchase, that said complainant should pay to said company the amount for which said premises were sold, viz., $43,533.90, with interest thereon at the rate of 8 per cent. per annum from June 24, 1889, up to the time of such payment, which amount was to be paid by said complainant to said Equitable Trust Company on or before September 24, 1890, in cash, and that thereupon said Equitable Trust Company should deliver to said Smith said certificate of purchase, duly assigned. That said complainant, relying on said arrangement, understanding, or agreement, paid out various sums of money in consequence thereof, and was put to considerable expense in preparation therefor, and was lulled into security thereby, and before making arrangements to redeem under the statutes and rules of the circuit court of the United States, as he might have done, through various judgment creditors of his, who were willing and agreed to permit him to use their judgments for such purpose. That said Equitable Trust Company, after the arrangement, understanding, representations, or agreements aforesaid, sent said certificate of purchase unto its attorneys, the said defendants Edward G. and Henry B. Mason, doing business under the firm name of Mason Bros., with what purported to be an assignment in blank upon a separate sheet of paper; said Equitable Trust Company by letter directing and requiring them to deliver such certificate of purchase unto such person as one George W. Kendall, the general western 'manager of said company, might desig. nate, upon payment of the amount then due thereon. When said certificate and paper, purporting to be an assignment thereof, were offered in evidence, they were pinned together at one corner, but when or by whom they were pinned together does not appear. That said George W. Kendall did on and before September 20, A. D. 1890, and by his letter to said Smith of said last date, designate said complainant as the person to receive said certifi cate at any time on and prior to September 24, 1890, upon payment by him of the amount then due; and did, on the 20th day of September, 1899, as the agent of

said Equitable Trust Company, agree with said complainant that he should have said certificate of purchase at any time on or prior to September 24, 1890, upon payment by said complainant of the amount then due upon said certificate, with interest thereon according to its face; and said complainant did agree to buy and pay for said certificate of purchase upon the basis and terms aforesaid; and that said Kendall then and there had authority to bind said Equitable Trust Company by said designation. Other material matters appearing in the decree are sufficiently referred to in the opinion.

Judd, Ritchie & Esher, Blanke & Chy traus, and Mason Bros., for plaintiffs in error. A. M. Pence and Gartside & Leffingwell, for defendant in error.

SCHOLFIELD, J., (after stating the facts.) In the view that we take of this case, it will be most convenient iu considering the several questions discussed in the arguments before us to determine, first, whether there was a binding contract between the Equitable Trust Company and Edward G. Smith, whereby the former sold to the latter, for a named consideration, to be paid by the latter, the certificate of sale which is the subject of the present litigation. Without going into unnecessary details, it is sufficient to say that Smith had executed several mortgages to the Equitable Trust Company on distinct lots in the city of Chicago, designated by certain numbers, to secure different sums of indebtedness due from him to that company. That these mortgages had been foreclosed; that for the greater amount of indebtedness on lot 1, and perhaps also that for one of the lesser amounts of indebtedness, on one of the other lots, in the circuit court of the United States for the northern district of Illinois, and the others in the circuit court of Cook county. That there were sales of the lots under these decrees of foreclosure, and the property was purchased by the Equitabel Trust Company, to whom certificates of purchase were issued; the 15-months time allowed for redemption in the case of lot 1 expiring on the 25th day of September, 1890, and that in the case of the other lots expiring at an earlier date. That the principal office of the Equitable Trust Company was in New York city, where were its president and secretary, who alone had power to make absolute sales of its property; but it had a general agent for transacting its business in the west,George W. Kendall,-whose office was in Chicago, who had power to negotiate sales of its property, etc., subject to the approval of the president or secretary of the company. That Smith believed that the property was worth much more than the amounts for which it was sold, and desired to redeem it, and frequently made known his desire in that respect to George W. Kendall. That Kendall, while protesting that he had no authority to sell the certificates of sale without the express sanction of the company, nevertheless assured Smith from time to time, first before the expiration of 12 months from the day of sale, and again several times