212 Ill. 146 | Ill. | 1904
delivered the opinion of the court:
By warranty deed, dated October 11, 1900, acknowledged October 17, 1900, and recorded November 23, 1900, the appellant, Eli A. Gage, deeded the lots here in controversy, “with improvements thereon situated in the city of Chicago,” etc., to G. PI. Detlor, the deed containing, after the description of the property, the following clause, to-wit: “subject, however, to existing mortgages, liens, taxes, and claims of any and every description, which the party of the second part assumes and agrees to pay.” The main question, presented by the record in this case, relates to the construction and meaning of the assumption clause thus quoted.
On the part of the appellee, Cameron, it is claimed that the assumption clause is merely an exception to the warranty of title; that is to say, that Gage and his wife warrant the title to the real estate, subject to existing mortgages, liens, taxes and claims, or, in other words, warrant the title to be good, except so far as the land is encumbered by such mortgages, taxes, liens and claims. The contention of the appellee is, that the claims, which are excepted from the warranty, can only be claims against the property, upon the alleged ground that only claims against the property affect the title; and it is said that the parties could not have intended to except from the warranty claims, which do not affect the title, and, if they affect the title, they must be shown upon the record to be liens or encumbrances. It is further contended on the part of the appellee that the words, “and claims of any and every description,” are to be considered in connection with' the preceding words, “existing mortgages, liens, taxes,” under the maxim ejusdem generis, which is an illustration or- specific application of the broader maxim, noscitur a sociis. It is claimed that, by the application of this maxim, the general words, “and claims of any and every description,” will be restricted to a sense analogous to the less general words, “existing mortgages, liens, taxes.” In other words, the rule of construction that, when general words follow particular words, the former can mean only things or persons of the same kind or class as those, which are particularly mentioned, is alleged to be applicable here in construing the assumption clause. The result of the application of this maxim in the manner, contended for by appellee, would be that the grantee in the deed of October n, 1900, only assumed such claims, as appear of record to be liens upon the property. It is said that the words, “claims of any and every description,” can only refer to such claims as are indicated and designated by the previous words, “mortgages, liens, taxes.”
If the maxim ejnsdem generis is to be strictly applied in the present case, then the general words, “and claims of any and every description,” are meaningless, and nothing but surplusage. Mortgages are claims which are liens, and taxes are claims which are liens. But the assumption clause makes use of the general word, “liens,” which includes - not only mechanics’ liens, but all kinds of liens. If the intention was to assume the payment of such claims only] as are liens, then the use of the general word, “liens,” in connection with the words, “mortgages” and “taxes,” would have expressed such intention without the use of the words, “and claims of any and every description.” , The latter words could not have been intended to refer only to such claims as were liens, because the use of the previous word, “liens,” expressed the meaning of the parties without the use of the general words, which follow the word, “taxes.”
In the first place, in defining the meaning of the maxim ejnsdem generis, and applying it to the construction of statutes and contracts, the cases, decided by this 'court, are nearly all cases where the word “other” is used to Cjualify the general terms, which follow the specific designations. Thus, in Drake v. Phillips, 40 Ill. 388, a township organization law specified certain purposes, for which taxes might be levied by the town, “or for any other purpose they may deem necessary,” and the latter clause was there construed as authorizing taxation only for purposes of the same general scope and character with those already enumerated.
In Brush v. Lemma, 77 Ill. 496, the statute named several officers and declared the same applicable to “all other officers,” and it was held that the latter expression, by a well known canon of construction, referred to officers of the same class or grade as those previously named. In Wilson v. Board of Trustees, 133 Ill. 443, where the court had under consideration a section of the constitution, which provided that the General Assembly might vest the corporate authorities of cities, etc., with power to make local improvements “by special assessment, or by special taxation of contiguous property, or otherwise,” it was there held that the words, “or otherwise,” meant “or otherwise assessing the cost of the improvement against the property actually or presumptively benefited thereby,—that being the kind or class of assessments particularly mentioned;” and, in view of the use of the expression, “or otherwise,” the court applied the familiar rule of construction that, when general words follow particular words, the former can mean only things or persons of the same kind or class as those, which are particularly mentioned. In Misch v. Russell, 136 Ill. 22, a statute provided that the county court should hear and determine contests of election of all other county, township and precinct officers, “and all other officers for the contesting of whose election no provision is made,” and it was there held, in view of the use of the expression “all other officers,” that the statute included contests of the election of school officers, as they were of the same class as county, city and township officers. In Webber v. City of Chicago, 148 Ill. 313, where a statute vested in the city council the power to license, etc., “theatricals and other exhibitions, shows and amusements,” and where an ordinance referred to circuses, menageries, “or similar, games for sport and all other exhibitions, performances,” etc., it was held, in view of the use of the words, “other exhibitions,” that the rule of construction in question was applicable, that is to say, that when an enumeration of specific things is followed by general words or phrases, the latter are held to refer to things of the same kind as those specified. So, also, in Gillock v. People, 171 Ill. 307, where a penal statute declared that whoever entered into any dwelling house, etc., “or other building,” with intent to commit robbery or larceny or other felony, should be deemed guilty of burglary, the application was made of the rule of construction here contended for in view of the use of the words “other building.” In Adams v. Akerlund, 168 Ill. 632, where a treaty made use of the words “goods and effects,” we said (p. 637) : “If the expression here, instead of being ‘goods and effects,’ was ‘goods and other effects,’ we should be inclined to apply the rule of construction, that general and specific words, which are capable of an analogous meaning, being associated together, take color from each other, so that the general words are restricted to a sense analogous to the less general. (Misch v. Russell, 136 Ill. 22; First Nat. Bank of Joliet v. Adam, 138 id. 483). Thus, in the case of First Nat. Bank of Joliet v. Adam, supra, where the words used were, ‘all goods, chattels or other property,’ it was held that the general words, ‘or other property,’ would be restricted to a meaning analogous to the meaning of the words, ‘goods and chattels,’ and consequently would not embrace such property as fixtures or chattels real, partaking more of the nature of realty than personalty. So, here, if the expression were, ‘goods and other effects,’ the words, ‘other effects’ would be restricted to a meaning analogous to the meaning of the word, ‘goods,’ and would not embrace real property. But, as the word ‘other’ is not used, there is no occasion for the application of the maxim, ejusdem generis.”
In the case at bar, the assumption clause is not, “existing mortgages, liens, taxes and other claims of any and every description.” The word “other” nowhere appears as qualifying the general clause after-the setting forth of the specific words. In this respect the case at bar differs from the cases above referred to decided by this court, where application has been made of the maxim ejusdem generis.
In the second place, the rule, that, where an enumeration of specific things is followed by general words or phrases, the latter are held to refer to things of the same kind as those specified, is only one of the many rules of construction, which are employed for the purpose of ascertaining the intention of the legislature, or of the contracting parties, as expressed in a statute or contract sought to be construed; • “and where from the whole instrument a larger intent may be gathered, the rule under consideration will not be applied in such manner as to defeat such larger intentor the rule will not be applied where from the whole statute or contract a larger intent may be gathered, if the application of the rule will operate to defeat such larger intent. (Webber v. City of Chicago, 148 Ill. 313, and authorities referred to on p. 318). In the case at bar, the words in the assumption clause, “and claims of any and every description,” were evidently intended to have a larger meaning than the words “mortgages, liens, taxes.” To be sure, “mortgages, liens, taxes,” refer to claims, which are encumbrances upon the property and are shown of record to be such. But the words, “and claims of any and every description,” have a larger meaning than claims, which are mere encumbrances shown of record to exist against the property. In other words, the assumption clause not only intended to include claims which were liens, but also claims of any and every description, connected with the property and iriiprovements conveyed, whether such claims were liens or not; that is to sa}^ such claims as are mentioned in the interlocutory decree of May 6, 1902, referred to in the statement preceding this opinion.
In the third place, “the restriction of genéral words to things ejusdem generis must not be carried to such an excess as to deprive them of all meaning. The enumeration of particular things is sometimes so complete and exhaustive as to leave nothing, which can be called ejusdem generis. If the particular words exhaust a whole genus, the general words must refer to some larger class.” (Gillock v. People, 171 Ill. 307). In the case at bar, to limit the meaning of the general words, as used in the assumption clause, to claims ejusdem generis with those specifically named would be to render the general words practically meaningless. The particular words, “mortgages, liens, taxes,” exhaust the whole genus of claims which are shown of record to be encumbrances upon the property, and, therefore, the general words, “and claims of any and every description,” must refer to some larger class. The maxim ejusdem generis “must yield to another equally salutary rule of construction, viz., that every part of a statute should, if possible, be upheld and given its appropriate force.” (Misch v. Russell, supra). If, by the assumption clause, the grantee in the deed of October n, 1900, only assumed the payment of claims, which were liens upon the property in question, then the general words, “and claims of any and every description,” could not be given their appropriate force, as they are broad enough to include a larger class of claims than those designated by the specific words used. In Mittel v. Karl, 133 Ill. 65, we held that words, placed in a deed by the contracting parties for a purpose, could not be arbitrarily rejected; and we there said (p. 68) : “In the construction of .written contracts it is the duty of the court to ascertain the intention of the parties, and the intention, when ascertained, must control; but in arriving at the intention, effect must be given to each clause, word or term employed by the parties, rejecting none as meaningless or surplusage.” (See also Hayes v. O'Brien, 149 Ill. 403; Minnesota Lumber Co. v. Coal Co. 160 id. 85; 2 Parsons on Contracts,—6th ed.—p. *505). Bishop in his work on Contracts, (sec. 384) says: “Every clause and even every word should, when possible, have assigned to it some meaning. It is not allowable to presume or to concede, 'when avoidable, that the parties in a solemn transaction have employed language idly.” In the case at bar, the restriction of the general words, used in the assumption clause, to such claims as are designated by the previous specific words would not be giving effect to such general words, but would amount to a rejection of the same as meaningless or surplusage.
It is said that the intention of the parties in the use of the words in the assumption clause must be determined from the language of the clause itself, and that parol testimony cannot be introduced for the purpose of proving what the intention of the parties was. Undoubtedly, parol testimony for the purpose of showing the intention of the parties is not permissible. (Fowler v. Black, 136 Ill. 363; Skelton v. Dustin, 92 id. 49).
But while it is true that parol evidence cannot be introduced to contradict or vary the terms of a valid written instrument, yet such evidence is admissible for the purpose of explaining written instruments by showing the situation of the parties in their relations to persons and things around them, or, as is sometimes said, by proof of the surrounding circumstances. (1 Greenleaf on Evidence, secs. 275, 282, 286-288; 2 Parsons on Contracts, pp. *561, *563). In such cases, oral evidence may be resorted to for the purpose of showing the circumstances surrounding the parties at the time the instrument was executed, so that the court may view the instrument from the standpoint of the parties, who executed it, and be thereby the better enabled to determine the sense in which the words used were intended to be understood. In Minnesota Lumber Co. v. Coal Co. 160 Ill. 85, we said (p. 92) : “Contracts should be construed in the light of the circumstances surrounding the parties, and of the objects which they evidently had in view. The circumstances, which both parties had in view at the time of making the contract, may be referred to for the purpose of determining the meaning of doubtful expressions.” In Drury v. Holden, 121 Ill. 130, where the court had under consideration a clause in a deed where the grantee assumed certain encumbrances, it was said that parol evidence could be introduced for the purpose of showing what constituted the consideration of the deed, and that, as the amount of the encumbrance it assumed, was included iti, and formed a part of, the consideration, the oral evidence was clearly competent under the rule, which permits parol evidence upon the subject of the consideration of a deed. (See also Hayes v. O’Brien, 149 Ill. 403; Louisville and Nashville Railroad Co. v. Koelle, 104 id. 455; Hadden v. Shoutz, 15 id. 581; Batavia Manf. Co. v. Newton Wagon Co. 91 id. 230). In Louisville and Nashville Railroad Co. v. Koelle, supra, it was held that the ordinary rule, that the rights of the parties must be ascertained from the words of the deed, is subject to the modification, that surrounding circumstances may be taken into consideration in order to ascertain the intention of the parties to the deed.
In Siegel v. Borland, 191 Ill. 107, we said, in discussing the question of the assumption of an indebtedness by the grantee in a deed (p. in) : “It is trtie that a contract may be implied, and that, if the amount of an encumbrance is included in, and forms a part of, the consideration which a grantee promises to pay for premises, and he retains that part of the purchase price, the law will create a personal liability against him, on the ground that he has agreed to pay such indebtedness. In such a case, the law presumes that the grantee has agreed to apply the money so retained for the purpose of paying the encumbrance. Either there must be an express assumption of the indebtedness, or the amount must be allowed in the purchase price so that the law will imply the promise. * * * The implied contract to pay to the holder of an encumbrance money retained for that purpose arises only from the presumed understanding of the parties. It is implied, because the facts justify the inference that such was the mutual intention; but an implied contract cannot exist when there is an express one about the same subject matter. It is only where the parties do not expressly agree that the law implies a promise.”
The language of the assumption clause here under' consideration is, “subject, however, to existing mortgages, liens, taxes,” etc. The mortgages, assumed by the grantee, are not specifically described, but parol testimony would certainly be admissible to prove what the mortgages upon the property conveyed were, so as to show what mortgages were assumed by the grantee. Parol proof is necessary in such case to explain what mortgages are referred to by the word “mortgages.” “The identity of the mortgage assumed, when left in doubt by the terms of the deed, may be shown by parol evidence.” (i Jones on Mortgages,— 5th ed.—sec. 740a). If parol testimony can be introduced to show what particular mortgages and taxes upon the property are embraced in the general words, “mortgages” and “taxes,” then parol evidence can also be introduced to show what claims were embraced within the words, “and claims of any and every description.” The presumption is, that these claims and mortgages and taxes and liens were assumed as a part of the consideration of the conveyance, and it is always admissible to introduce parol evidence to show the real consideration of a deed.
The circumstances, surrounding this transaction, as developed by the evidence, are substantially as follows: Mc-Sorley desired to purchase some real estate for the purpose of constructing a building of flats. Being insolvent he did not desire to take title in his own name, or to make contracts for the construction of the building in his own name. He persuaded Gage, a young man whose father stood high in the community as a man of means and financial ability, to take the title to the property, and hold it for him, McSorley. Accordingly, through the efforts of McSorley, a contract was made by Mrs. Connell, the owner of the property, to sell it to Gage. Mrs. Connell executed a deed, dated October 21, 1899, conveying the lots to Gage. The contract for the sale of the property by Connell to Gage, and the deed from Connell to Gage, were put in escrow in the possession of the Chicago Title and Trust Company. Gage did not pay a cent for the property, and it was agreed that he should have $500.00 for his services in holding the title.' It was also understood that, by the holding of the title, he was to protect himself against the claims of parties, furnishing labor and material for the construction of the building. Although the title was not of record in Gage, because the deed to him was held in escrow, yet he was held out as the owner of the property. On December 12, 1899, a contract was entered, into between Gage and an alleged corporation, called the Central Brick and Stone Company, for the construction of a building upon the lots in question at,a cost of $48,000.00. It is not certain from the evidence whether any such corporation as the Central Brick and Stone Company existed, but McSorley made use of the name of the Central Brick and Stone Company, because he was insolvent and dared not use his own name. All the contracts, which were made for the furnishing of labor and material, were made with the Central Brick and Stone Company, and not with McSorley, although they were really and in effect the contracts of McSorley, who claimed to be president of the company. It was understood that, as soon as the construction of the building had proceeded to a certain extent, a building loan should be obtained upon the building, the mortgage securing the same to be executed by Gage. After the building contract of December 12, 1899, had been executed, the construction of the building was commenced and-carried on. Gage and McSorley were unable to obtain a loan upon the property. Many orders were given to men, furnishing materials and labor upon the building, drawn upon Gage, and to be paid out of the loan to be made upon the property by Gage. These orders were accepted in writing by Gage. A corporation, in which Cameron was interested, furnished a heating apparatus, costing about $3000.00, to be put into the building in question. Cameron was unable to obtain his money. Negotiations were then carried on between McSorley and Cameron for the purpose of inducing Cameron to take the title to the building, and obtain a loan upon the same, in order to pay the parties, who had furnished labor and material. The evidence shows" that in this matter McSorley and Cameron acted together. McSorley was really an agent of Cameron to procure for the latter the title to the property. Cameron was to be substituted for Gage, and take the title, in order to obtain a loan. He did afterwards obtain a loan of $40,000.00 upon the property.
A series of efforts were begun by McSorley and Cameron to obtain title. Gage was induced to execute a deed to Detlor, who was an employe and book-keeper of Cameron. The evidence is quite clear that McSorley was instrumental in inducing Gage to convey the title to Detlor. In November, 1900, an indemnity mortgage or contract was executed by McSorley to Gage, which recites that Gage had personally incurred certain indebtedness in connection with the erection of the building in behalf of McSorley, and that McSorley had agreed to hold him safe and harmless; and it also recites that McSorley was desirous that Gage should transfer and convey the legal title to Detlor, and that Detlor was about to enter into a contract with McSorley in reference to the property; and, by the terms of this indemnity instrument, McSorley conveys an undivided quarter of "three of the lots to Gage, and sells him an undivided half interest in the contract between McSorley and Detlor. And this is stated in the instrument to have been done for the purpose of protecting Gage against any loss or liability, that he might incur, or had incurred by reason of holding the title to the property, and by reason of having made contracts and accepted orders and incurred bills in connection with the erection of the building. Accordingly, on October 11, 1900, Gage executed to Detlor the deed, which contains the assumption clause above quoted. This deed was drawn by a real estate agent by the name of Hoffmeyer, and the testimony shows that the assumption clause was put in for the express purpose of protecting Gage against the claims of these parties, who had furnished material and labor for the construction of the building. The evidence tends to show that Cameron, when the deed was made to Detlor, had full knowledge of the relations of Gage, and Connell, and McSorley, and of these claimants, to the property and building in question.
No consideration whatever was paid to Gage by Detlor for the transfer of the property to the latter. As we understand the evidence, the deeds from Connell to Gage, and from Gage to Detlor, were both delivered at the same time, to-wit, on November 23, 1900. The case stands in the same position as though the deed had been made by Gage to Cameron, instead of being executed to Detlor. Detlor was the agent and clerk of Cameron and took the title for him. Cameron says:, “I told McSorley I would not take title, as a large loan would have to be made, and I didn’t want to sign the notes. I put the title in my book-keeper, so he 'could sign the paper, and I would assume no obligation thereby. * * * I never saw the deed. Dudley acted for me in receiving it.” Elsewhere it is shown by the evidence .that the title was taken -in the name of Cameron’s book-keeper as a matter of convenience to Cameron, and Cameron himself says that the deed was taken for his benefit. Cameron also says: “At no time prior to the deed from Gage to Detlor had I any agreement with anyone respecting these claims, othér than that mentioned in the deed. The language in that deed with respect to claims to be paid has not been changed by any agreement with anybody. Detlor had nothing to do with any of these transactions. Detlor is our book-keeper and looks after my books for me. He has for five or six years. He is twenty-six or twenty-seven years old; not much means; probably $3000.00 or $4000.00 in personal property. I simply told him what I wanted him to do. It was satisfactory to him. He was not protected in any way. It was my intention to protect him.” Cameron also says that he dealt with McSorley, and his testimony shows that he knew that McSorley’s company had contracted to erect the building, and that the owner could not get a loan, and could not go ahead with the building, and he says that McSorley told him he could procure title for him, Cameron. McSorley also told Cameron that Gage had a contract to buy the property from Connell.
Under the facts thus narrated, it is unquestionably true that the assumption of these claims by Detlor was an assumption of them by Cameron himself. “If the conveyance be to a trustee, who assumes an existing mortgage, and the trustee holds the title for the benefit of others, who paid the consideration, in case of a deficiency each beneficiary under the trust is liable therefor in proportion to the amount of his •separate interest in the property.” (i Jones on Mortgages, sec. 7406). Detlor held the property in trust for Cameron, and assumed the payment of the claims. The consideration for the conveyance to Detlor passed, not from Detlor, but from Cameron, and Cameron, being the beneficiary under the trust held by Detlor, is liable for the payment of the claims whose payment was assumed by Detlor. It is true that, soon after the deeds from Connell to Gage and from Gage to Detlor were delivered and recorded, and on December 27, 1.900, Cameron obtained a deed from Detlor to himself. This latter deed was without any consideration whatever, and, although the deed from Detlor to Cameron had a clause in it to the effect that it was subject to the encumbrances of record at the date thereof, yet we are of the opinion that Cameron could not relieve himself from the liability to Gage and these claimants, assumed by the assumption clause in the deed from Gage to Detlor, by any language which was put in the deed of the property made to him by his book-keeper, Detlor.
The evidence shows that the building upon this property was finished to the extent of two-thirds thereof when Cameron or Detlor obtained the title to it. The testimony shows that the lots and buildings are now worth from $75,000.00 to $80,000.00 and that in November, 1900, when this transfer was made, they were worth upwards of $50,000.00. It is difficult to see what adequate consideration Cameron paid for this property, if it was not the understanding and agreement that he should pay off the claims that existed in favor of those, who had furnished materials, and labor, and money, for the construction of the building. The amount, which Cameron paid to Connell in order to obtain the deed from Connell to Gage, was small, when compared wdth the value of the property and the improvements thereon. As Gage received no consideration for the deed which he made to Detlor, Cameron obtained the property for a very small consideration if it was not true, as is claimed by the appellants, that he was to make a loan upon the property, and pay off all the claims existing in favor of those, who had furnished materials and labor.
The parties holding these claims—many of them, or their agents and representatives—went to see Cameron when they heard that he was to buy the property and make a loan upon it. Some ten or eleven witnesses swear that Cameron, or his attorney, or agent, told them that he would pay off these claims when he obtained the title to the property and negotiated a loan upon it, which he afterwards did to the extent of $40,000.00.
It is true that the deed from Gage to Detlor did not run to Cameron himself, but the evidence shows that one Dudley was the attorney and agent of Cameron and represented him in the matter of the deed, and the deed was delivered to Dudley for Cameron, as the deed also from Connell to Gage was at the same time delivered to Dudley. Although a party does not sign a deed, under which property is conveyed to him and which contains an assumption clause, yet if he accepts the instrument and places it upon record, such acceptance of the deed with the knowledge of its contents binds him as effectually as though the deed had been executed by him. (Dean v. Walker, 107 Ill. 540; 2 Warvelle on Vendors,—2d ed.—sec. 646). Cameron, being a grantee from Detlor and chargeable with notice of the assumption of these claims by Detlor, from whom he received a conveyance, the land in Cameron’s hands was subject to the lien created by the deed. (Sidwell v. Wheaton, 114 Ill. 267; 1 Jones on Mortgages, secs. 740, 740b; Markoe v. Andras, 67 Ill. 34; Carpenter v. Mitchell, 54 id. 126).
A charge upon land may be created by contract, and here the words of the assumption clause created a charge upon the land conveyed by Gage to Detlor, or Cameron. (Sidwell v. Wheaton, supra; Markoe v. Andras, supra; Drury v. Holden, 121 Ill. 130; 1 Jones on Mortgages, secs. 736, 740; 2 Warvelle on Vendors,—2d ed.—sec. 647).
In addition to what has been said, it appears that some of these claimants filed petitions for mechanics’ liens, which petitions are still pending. It furthermore appears that some of the claimants, who were entitled to mechanics’ liens and would have filed petitions for the same, abstained from doing so, because of Cameron’s assurances that their claims would be paid when the loan should be negotiated. It also appears from the evidence that Cameron did, as a matter of fact, make payments in cash to some of these claimants, and made agreements of settlement with others, by the terms of which he was to pay partly in money and partly in notes. When, however, he had obtained the title to the property in the manner above stated, he repudiated all these agreements and obligations.
Gage has a right to file the present bill. “Where the vendee of mortgaged property has assumed the payment of the mortgage, the mortgagor may proceed in equity to compel such vendee to whom he stands in the situation of a mere surety to discharge the debt for his protection.” (2 Warvelle on Vendors,—2d ed.—sec. 651; Bay v. Williams, 112 Ill. 91).
The petitioners here, who filed intervening petitions, had a right so to intervene. “An intervenor has the right to claim the benefit of the original suit and to prosecute it to judgment. Such right cannot be defeated by the dismissal of the suit by the plaintiffs after the filing of the petition and notice thereof to such plaintiffs.” (11 Ency. of Pl. & Pr. p. 509). In Shannahan v. Stevens, 139 Ill. 428, we held that a person interested in the subject matter of a bill, who is a necessary party, has the right, on his motion, to intervene and become a party to the suit, even after the bill has been dismissed under a stipulation with the complainant, when his motion is made at the same term the suit is dismissed. (Marsh v. Green, 79 Ill. 385; Poehlmann v. Kennedy, 48 Cal. 201).
“The rule is perfectly well settled, that a party may by express agreement create a charge or claim in the nature of a lien on real as well as personal estate of which he is the owner or possessor, and that equity will establish and en-. force such cbarg'e or claim, not only against the party who stipulated to give it, but also against third persons, who are either volunteers or who take the estate on which the' lien is agreed to be given, with notice of the stipulation. Such an agreement raises a trust which binds the estate to which it relates; and all, who take title thereto with notice of such trust, can be compelled in equity to fulfill it.” (Pinch v. Anthony, 8 Allen, 539). Under these authorities, and others above referred to, claims, when specifically named, may be niade charges by contract against land; and, if this be so, there is no reason why such claims may not be charged by contract, against land, when they can be made specific by proof. In the case at bar, the claims referred to in the assumption clause have been made specific by proof. The evidence shows that Cameron either had actual or constructive notice of the claims mentioned in the decree below. Before he concluded to take the title from Gage he employed Mc-Sorley and Dudley, an attorney, to make a list of the claims against the property, and this list was examined by him, or by his attorney, before he took the title to the property.
In the case of the appellant Croall, the following order on Gage was given to Croall, to-wit :
“Chicago, March 8,1900.
“ To Eli A. Gage, care of Hoffmeyer & Fitzgerald:
' ‘Please pay to J. Jackson Todd, agent, the sum of $3000 out of moneys due us for construction of building at 5420 to 5428 Indiana avenue, and charge to our contract on said building.
Central Brick and Stone Co.,
John McSorley, Pres.”
On the baclc of this Gage made the following entry and signed it under seal:
“Value received hereby accept this order and agree to pay same according to its terms, and I do acknowledge said order to be a valid and subsisting lien against the premises in question.
Eli A. Gage. (Seal.)”
This contract in writing was an express contract, creating a lien in favor of Croall, or his agent, Todd, upon the property in question. So far, therefore, as the Croall claim is concerned, it would be embraced under the word “liens” in the assumption clause if it were not included under the general clause, “and claims of any and every description.” The evidence tends to show that Cameron, before he took the title, had notice of Croall’s claim. Certainly, the circumstances were such'as to put him upon inquiry, and he could easily have ascertained all the facts about the claim by inquiring of Gage, whom he knew to be the holder of the legal title. Counsel for appellee claims that the acceptance of Gage in writing of the order upon him in favor of Todd, as above set forth, was not sufficient under the Statute of Frauds, upon the alleged ground that it did not identify the property. The acceptance acknowledges the order to be a valid and subsisting lien upon the premises in question, and when we look at the order upon which the acceptance is indorsed, it refers to moneys due for construction “of building at 5420 to 5428 Indiana avenue.” We think the reference to the property by the numbers on Indiana avenue was a sufficient identification of it.
After a careful examination of the whole record, we are of the opinion that the decree of the circuit court was correct. ■ Accordingly, the judgment of the Appellate Court is reversed, and the decree of the circuit court is affirmed.
Judgment reversed.
