245 Ill. 206 | Ill. | 1910
delivered the opinion of the court:
It is contended on the part of appellants that the circuit court erred in its finding and decree that St. Anthony’s Hospital was bound by the decree of the superior court of Cook county in the suit to enforce a mechanic’s lien prosecuted by Napoleon Provost against Anthony Kozlowski and others. This contention is based upon the fact that St. Anthony’s Hospital was not made a party to the mechanic’s lien suit. While it is now apparent that the title to the premises in question was taken in Bishop Kozlowski for the benefit of the corporation and that St. Anthony’s Hospital was the actual or equitable owner of the same, Kozlowski was held out to the world as the absolute owner of the premises. Appellants seek to avoid the effect of this by showing that the daily newspapers of Chicago published articles describing the hospital which was about to be erected under the patronage of Bishop Kozlowski and giving a description of the proposed building and stating its location; that circulars to the same effect were freely distributed among the citizens of Chicago, and that the time of the breaking of the ground for the erection of the building was made the occasion of a general celebration by the people of that diocese. The record, however, fails to disclose any evidence of any publication of the fact that the St. Anthony’s Hospital corporation owned or claimed to own any interest in these premises, and there was no proof whatever that this claim was ever brought to the attention or knowledge of Napoleon Provost until at the very close of the hearing before the master in the mechanic’s lien suit. On the contrary, Bishop Kozlowski was held out as the owner of this property by everyone connected with St. Anthony’s Hospital. The record title was in him, and he,- as proprietor and owner, contracted with Provost for the erection of the hospital building. During the progress of the erection of the building the architect’s certificates were issued to Bishop Kozlowski as proprietor, and each recited that the amount therein designated as due was for work done upon his building. These acts were all done with the full knowledge and consent of the officers and directors of St. Anthony’s Hospital and appellant James R. Ward, its attorney. Bishop Kozlowski himself was a director and the president of the corporation. . Appellant Ward was the attorney for St. Anthony’s Hospital, and he advised the placing of the title in Kozlowski, supervised the drawing and execution of the building contract entered into between Provost and Kozlowski, prepared the form in which the architect’s certificates were issued to Provost as the work progressed, and advised the officers of St. Anthony’s Hospital throughout the whole transaction. The deed from Crilly to Bishop Kozlowski was in the ordinary form and did not disclose the trust relation. The deed of June 7, 1900, by which Bishop Kozlowski conveyed these premises to St. Anthony’s Hospital and which contained the declaration of trust, was executed in Ward’s office, but, as was testified to by Dr. Pollach, one of the incorporators of St. Anthony’s Hospital and the superintendent of the hospital, it was held in secrecy and was not filed for record until March 10, 1902. That every officer of St. Anthony’s Hospital knew of and acquiesced in the holding of the record title to this property by Bishop Kozlowski and sanctioned all his acts and dealings with Napoleon Provost in respect to the erection of the hospital building is uncontroverted. Under this state of facts, alone, we are of the opinion that the circuit court was warranted in finding that the corporation was bound by the decree in the suit of Provost against Kozlowski. By its own acts it is now estopped to deny the title of Kozlowski as against those claiming title under the proceedings brought by Provost to enforce his mechanic’s lien against the premises. ■
But there is a further reason why St. Anthony’s Hospital was bound by this decree. James R. Ward, the principal appellant here, was employed as the attorney for the incorporators of St. Anthony’s Hospital. He advised them in reference to the incorporation and secured the charter for them. After the incorporation he was retained as attorney, and during the time that Provost was engaged in the erection of the building under his contract he represented the corporation. When Provost filed his claim for mechanic’s lien and brought his suit to enforce the lien, AVard was employed, not by Bishop Kozlowski individually, but by the corporation, to defend this suit. While he appeared of record as the attorney and solicitor for Kozlowski, he was, in fact, representing St. Anthony’s Hospital and the corporation agreed to pay him for his services rendered in that litigation. St. Anthony’s Hospital actually conducted the defense from the time the suit was instituted until its final determination, and was, as a matter of fact, as effectually represented in the trial of that cause as though it had been made a party defendant, and by reason of that fact the decree entered therein is binding upon it. One in whose behalf or under whose direction a suit is prosecuted or defended will be bound by the judgment or decree rendered in it, and parol evidence will be admitted to show who is the real party in interest and that such party conducted or defended the litigation in the name of another person. Bennitt v. Star Mining Co. 119 Ill. 9; Smith v. United States Express Co. 135 id. 279; Cheney v. Patton, 144 id. 373; Lightcap v. Bradley, 186 id. 510.
It is next urged that the decree is erroneous because it removes the Roulet trust deed as a cloud upon the title to this property when the facts show that the property is not vacant and unoccupied and that Labahn is not in possession, and the familiar rule is invoked that a bill to remove a cloud from the title to premises which are occupied can not be maintained by one who is out of possession. This rule applies only where the sole object of the bill is to remove a cloud from the title, and not where the primary relief sought is upon other and well established grounds and the removal of the cloud is prayed only as an incident to that relief. (Booth v. Wiley, 102 Ill. 84; Gilbreath v. Dilday, 152 id. 207; Glos v. Kenealy, 220 id. 540.) In this case it was not the sole object of the Labahn cross-bill to remove the trust deed as a cloud upon the title. That relief was merely incidental to the main purpose of the cross-bill, and the court having obtained jurisdiction and having all the parties before it; had the power to remove this cloud from the title.
The allowance by the court to the master of fifteen cents per hundred words for talcing and reporting the testimony as a part of his fees is assigned as error,- the contention being that the master is not entitled to this allowance for the reason that the testimony was talcen down and transcribed by a stenographer who was employed and paid by one of the parties and not by the master. This question was raised in Hoops v. Fitzgerald, 204 Ill. 325, and the facts here are identical with the facts in that case. The order of the court as to costs was proper.
It is finally contended by the appellants that the court erred in ordering the payment of $604.04 to MacGuffin to reimburse him for the money paid out on account of his pretended tax deed, for the reason that there was no proof made as to the legality of the tax deed. The question of the legality of the tax deed of MacGuffin was not in issue. By his cross-bill Labahn sought to have this tax deed set aside and removed as a cloud upon his title, and under the statute, before he is entitled to that relief, he is required to pay to the party holding the tax deed all taxes and legal costs, together with such penalties as it shall appear the holder of such deed or his assignors have properly paid in procuring the deed. (Hurd’s Stat. chap. 120, sec. 224.) In any event, the disposition of this fund does not affect the appellants under the view we have taken of the other matters in controversy.
We find no error in the record, and the decree of the circuit court will therefore be affirmed.
Decree affirmed.
