USA > Illinois > Fulton County > History of Fulton county, Illinois > Part 106
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A note is void when founded upon frand. Thus a note obtained from a person when intoxicated, or obtained for any reason which is illegal, cannot be collected. A note given on Sunday is also void.
No defense can be made against negotiable paper purchased before maturity for good consideration in the usual course of busi- ness, without knowledge of facts impeaching its validity, except frand was used in obtaining the same. Thus if A gives his note to B for $150, receives in consideration a shawl and five pieces of cloth. The former was represented to be worth $75, and the cloth the best imported English goods. When, in fact, the shawl was only worth $8, and suits made of the eloth wore ont in less than six weeks, long before the note was due. B, however, had sold the note to C, who did not know the circumstances, and before it was due-A would be obliged to pay it.
JUDGMENT NOTE.
For valne received I promise to pay Ewing Summers, of Gales- burg, or order, two hundred dollars, with interest, on the first day of January next. And, further, I do hereby empower any attorney of any court of record In Illinois, or elsewhere, to appear for me, and after a declaration filed therefor, to confess a judgment against me in the above sum, as of last, next. or any subsequent term, with cost of suit, release of error, etc., with stay of execution until said first day of January.
Witness my hand and seal at Galesburg, Ill., this sixth day of March, in the year one thousand eight hundred and seventy-nine. JOIN JONES.
[SEAL]
INTEREST.
Interest is the compensation which is paid by the borrower of money to the lender for its use. When the debtor expressly under- takes to pay interest, he is bound to pay it; but if a party has accepted the principal, he cannot recover interest in a separate action. During the course of dealings between parties, a promise to pay is implied, and the debtor is bound to pay. So also on an
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account stated, whenever the debtor knows precisely what he is to pay, and when he is to pay it, after a demand of payment; but interest is not due on a running account, even when the items are all on one side, unless otherwise agreed upon. Where the terms of a promissory note are that it shall be paid by installments, and on the failure of any installment the whole is to become due, interest on the whole becomes payable from the first default. Where, by the term of a bond or promissory note, interest is to be paid annu- ally, and the principal at a distant day, the interest may be recov- ered before the principal is due.
Interest is collectible in the following cases: For goods sold and delivered after the stipulated term of credit has expired; if there be no eredit, then from the time of sale; on judgment debts, from the rendition of judgment; on money obtained by fraud, or where in has been wrongfully detained (for whoever receives money not his own, and detains it from the owner unlawfully, must pay interest therefor: hence a publie officer retaining money wrongfully is lia- ble for the interest); on money paid by mistake, or recovered on a void execution ; on money lent or laid out for another's use; and rent, from the time that it is due.
When the rate of interest is specified in any contract, that rate continnes until full payment is made. A debt barred by the statute of limitations and revived by an acknowledgment bears interest for the whole time.
Computing Interest .- In casting interest on notes, bonds, etc., upon which partial payments have been made, every payment is to be first applied to discharge the interest; but the interest is never allowed to form a part of the principal, so as to carry interest. When a partial payment is made before the debt is due, it cannot be apportioned part to the debt and part to the interest, but at the end interest shall be charged on the whole sum, and the obligor shall receive credit for the interest on the amount paid until the interest becomes due.
The legal rate of interest is six per cent. Parties may agree in writing on a rate not exceeding eight per cent. If a rate of interest greater than eight per cent. is contracted for, the penalty is a for- feiture of the entire interest, and only the principal can be recovered.
In computing interest or discount on negotiable instruments, a
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month shall be considered a calendar month or twelfth of a year, and for less than a month, a day shall be figured a thirtieth part of a month. Notes bear interest only when so expressed; but after dne they draw the legal interest, six per cent., even if not stated.
Notes payable on demand or at sight draw no interest until after presentation or demand of the same has been made, unless they provide for interest from date on their face. If "with interest" is included in the note, it draws the legal rate from the time it is made. If the note is to draw a special rate of interest, higher than the legal, but not higher than the law allows, the rate must be specified.
WILLS.
The legal declaration of a person's mind, determining the man- ner in which he would have his property or estate disposed of after his death, is termed a will. No exact form of words is necessary in order to make a will good at law, though much care should be exercised to state the provisions of the will so plainly that its lan- guage may not be misunderstood.
Every male person of the age of twenty-one years, and every female of the age of eighteen years, of sound mind, can make a valid will. It must be in writing, signed by the testator, or by some one in his or her presence, and by his or her direction, and attested by two or more credible witnesses. Care should be taken that the witnesses are not interested in the will.
The person making the will may appoint his or her executors; but no person can serve as such executor if he or she be an alien at the time of proving the will, if he be under twenty-one years of age, a convict, a drunkard, a lunatic, or an imbecile.
Persons knowing themselves to have been appointed executors, must, within thirty days after the death of deceased, cause the will to be proved and recorded in the proper county, or present it and refuse to accept. In case of failure to do so, they are liable to for- feit the sum of twenty dollars per month. Inventory to be made by executor or administrator within three months from date of let- ters testamentary or administration.
The person making a will is termed the " testator " (if a female, the " testatrix ").
A will is of no force and effect until the death of the testator,
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DIGEST OF STATE LAWS.
dollars in bank stoek, in the First National Bank of Chicago, Illinois, and also cach one quarter section of land, owned by myself, situ- ated in the town of Delavan, Tazewell county, Illinois, and recorded in my name in the Recorder's office of said county. The north one hundred and sixty aeres of said half section is devised to my elder daughter Lida Louan.
Third. I give, devise and bequeath to my son, Fred Davis Lewis, five shares of railroad stock, in the C., B. & Q. Railroad, and my own one hundred and sixty aeres of land and saw-mill thereon, situated in Astoria, Illinois, with all the improvements and appurtenances thereunto belonging, which said real estate is re- corded in my name, in the county where situated.
Fourth. I give to my wife, Tryphena Lewis, all my household furniture, goods, chattels, and personal property, about my house, not hitherto disposed of, including ten thousand dollars in bank stock, in the First National Bank of Chicago, Illinois, fifteen shares in the Chicago, Rock Island & Pacific Railroad, and the free and unrestricted use, possession and benefits of the home farm, so long as she may live, in lien of dower, to which she is entitled by law; said farm being my present place of residence.
Fifth. I bequeath to my invalid father. Samuel T. Lewis, Sr., the income from the rents of my store building, at Canton, Illinois, during the term of his natural life. Said building and land there- with revert to my said sons and daughters in equal proportions, upon the demise of my said father.
Sixth. It is also my will and desire, that at the death of my wife, Tryphena Lewis, or at any time she may arrange to relinquish her life interest in the above mentioned homestead, the same may revert to my above named children, or to the lawful heirs of each.
And, Lastly. I appoint as exeentors of this, my last will and testament, my wife Tryphena Lewis, and my eldest son, Franklin M. Lewis.
I further direct that my debts and necessary funeral expenses shall be paid from moneys now on deposit in the First National Bank, Pekin, Illinois, the residue of such moneys to revert to my wife, Tryphena Lewis, for her use forever.
In witness thereof, I, Samuel T. Lewis, to this, my last will and testament, have hereunto set my hand and seal, this third day of March, eighteen hundred and seventy.
[L. S.]
SAMUEL T. LEWIS.
Signed, sealed and delivered by Samuel T. Lewis, as and for his last will and testament, in the presence of us, who, at his request, and in his presence, and in the presence of each other, have sub- scribed our names hereunto as witnesses thereof.
Fred D. Selleek, Chicago, Illinois. Erastus Child, Oneida, Illinois.
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CODICIL.
Whereas, I, Samuel T. Lewis, did, on the third day of March, one thousand eight hundred and seventy, make my last will and testament, I do now, by this writing, add this codieil to my said will, to be taken as a part thereof.
Whereas, by the dispensation of Providence, my daughter Lida Lonan, has deceased, November fifth, eighteen hundred and seventy- four, and, whereas, a son has been born to me, which son is now christened Charles Burchard Lewis, I give and bequeath unto him my gold watch, and all right, interest and title in lands and bank stock and chattels bequeathed to my deceased daughter Lida Louan, in the body of this will
In witness thereof, I hereunto set my hand and seal, this fifth day of March, eighteen hundred and seventy-nine.
[L. S.]
SAMUEL T. LEWIS.
Signed, sealed, published and declared to us by the testator, Samnel T. Lewis, as and for a codicil, to be annexed to his last will and testament. And we, at his request, and in his presence, and in the presence of each other, have subscribed our names as witnesses thereto, at the date hereof.
Erastus Child, Oneida, Ill. E. C. Johnson, Chicago, Ill.
DESCENT.
When no will is made, the property of a deceased person is dis. tributed as follows:
First. To his or her children and their descendants, in equal parts; the descendants of the deceased child or grand child taking the share of their deceased parents, in equal parts among them.
Second. Where there is no child, no descendant of such child, and no widow or surviving husband, then to the parents, brothers and sisters of the deceased, and their descendants, in equal parts, the surviving parent, if either be dead, taking a double portion; and if there is no parent living, then to the brothers and sisters of the intestate and their descendants.
Third. When there is a widow or surviving husband, and no child or children, or descendants of the same, then one-half of the real estate and the whole of the personal estate shall descend to such widow or surviving husband, absolutely, and the other half of the real estate shall descend as in other cases where there is no ehild or children, or descendants of the same.
Fourth. When there is a widow or surviving husband, and also
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DIGEST OF STATE LAWS.
a child or children, or descendants of the latter, then one-third of all personal estate to the widow or surviving husband, absolutely.
Fifth. If there be no child, parent, brother or sister, or descendants of either of them, and no widow or surviving husband, then in equal parts to the next of kin to the intestate in equal degree. Collaterals shall not be represented except with the descendants of brother and sister of the intestate, and there shall be no distinction between kindred of the whole and the half- blood.
Sixth. If any intestate leaves a widow or surviving husband and no kindred, then to such widow or surviving husband; and if there is no such widow or surviving husband, it shall escheat to and invest in the county where the same or the greater portion thereof is situated.
DEEDS.
A deed is a sealed instrument in writing, conveying lands and appartenances thereon from one person to another, and special care should be taken to have them signed, sealed, delivered and properly acknowledged, with the proper seal attached. Witnesses are not necessary. The law in this State provides that an acknowledg- ment must be made before certain persons anthorized to take the same. These officers are: Master in Chancery, Notary Public, Circuit or County Clerk, Justice of the Peace, United States Com- missioner, or any Court of Record having a seal, or any Judge, Justice or Clerk of any such court. The instrument shall be attested by the official seal of the officer taking the acknowledg- ment, and when taken by a Justice of the Peace residing ont of the county where the real estate to be conveyed lies, there shall be added a certificate of the County Clerk under his seal of office. that he was a Justice of the Peace in the county at the time of taking the same. A deed is good without such certificate attached, but cannot be used in evidence unless such a certificate is produced or other competent evidence introduced. Acknowledgments made out of the State must either be executed according to the laws of this State, or there should be attached a certificate that is in conform- ity with the laws of the State or country where executed. Where this is not done the same may be proved by any other legal way. Acknowledgments where the Homestead rights are to be waived must state as follows: " Including the release and waiver of the right of homestead."
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DIGEST OF STATE LAWS.
To render a deed valid, there must be a sufficient consideration. To enable a person to legally convey property to another, the fol- lowing requisites are necessary: 1st, he or she must be of age: 2d, must be of sane mind; and, 3d, he or she must be the rightful owner of the property
Any alterations or interlineations in the deed should be noted at the bottom of the instrument, and properly witnessed. After the acknowledgment of a deed, the parties have no right to make the slightest alterations. An alteration after the acknowledgment in favor of the grantee vitiates the deed. The maker of a deed is called the "grantor:" the person or party to whom the deed is delivered, the " grantee." The wife of the grantor must ackowl- edge the deed, or else, after the death of her husband, she will be entitled to one-third interest in the property, as dower, during her life. Her acknowledgment of the deed must be of her own free will and accord.
By a general warranty deed the grantor engages to secure the grantee in any right or possession to the property conveyed against all persons whatsoever. A quit-claim deed releases what interest the grantor may have in the land, but does not warrant and defend against others. We do not give form for a deed, as printed forms are used by all. Deeds should be recorded without delay.
MORTGAGES AND TRUST DEEDS
Are conditional conveyances of estates or property by way of pledge for the security of debt, and to become void on payment of it. Special care should be taken to have them signed, sealed, delivered, and properly acknowledged, with the proper seal attached. All kinds of property, real or personal, which are capable of an absolute sale, may be the subject of a mortgage.
Mortgages of personal property need not be under seal. In the absence of stipulation to the contrary, the mortgagee of personal property has the legal title thereto, and the right of possession, and he may have an action against any one taking them from the mort- gagor. And although the mortgage contains no express stipulation that the mortgagor shall remain in possession until default of pay- ment, and with a power to sell for the mortgagee's debt, the mort- gagee may nevertheless sustain trover against an officer attaching the goods as the property of the mortgagor.
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DIGEST OF STATE LAWS.
A mortgage must be in writing when it is intended to convey the legal title. It must be in one single deed which contains the whole contract.
Redemption must be made within one year from the sale. Where, however, the mortgagee takes the property for an absolute discharge of the debt, then the equity or right of redemption is barred. Satisfaction, or release of a mortgage, may be made on the margin of the record, or by an instrument duly acknowledged. The wife need not join in this release.
TRUST DEEDS.
Trust deeds are taken generally in preference to mortgages, especially by non-residents, for in case of foreclosure under the power of sale there can be no redemption. Advertisement, sale, and deed is made by the trustee.
Mortgages of personal property, or chattel mortgages, can be given for a period of only two years, and cannot be renewed or extended. Acknowledgment may be had before a Justice of the Peace of the town or district in which the mortgagor resides. If the mortgagor is a non-resident, then before any officer authorized by law to take acknowledgments. Foreclosures may be effected upon default, and possession, and sale of the property taken and made; any delay will invalidate the mortgagee's lien.
LIENS.
Any person who shall by contract, expressed or implied, or partly both, with the owner of any lot or tract of land, furnish labor or material, or services as an architect or superintendent, in building, altering, repairing, or ornamenting any house, or other building or appurtenance thereto on such lot, or upon any street or alley, and connected with such improvements, shall have a lien upon the whole of such lot or tract of land, and upon such house or building and appurtenances for the amount due him for labor, material or service». If the contract is expressed, and the time for the completion of the work is beyond three years from the com- mencement thereof; or, if the time of payment is beyond one year from the time stipulated for the completion of the work, then no lien exists. If the contract is implied, then no lien exists, unless the work be done, or material furnished, within one year from the commencement of the work or delivery of the material. As
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between different creditors having liens, no preference is given to the one whose contract was made first; but each shares pro rata. Incumbrances existing upon the lot or tract of the land at the time the contract is made do not operate on the improvements, and are only preferred to the extent of the value of the land at the time of making the contract. The above lien cannot be enforced unless suit is commenced within six months after the last payment for labor or materials shall have become due and payable. Sub-con- tractors, mechanics, workmen, and other persons furnishing any material, or performing any labor for a contractor, as above speci- fied, have a lien to the extent of the amount due the contractor at the time the following notice was served upon the owner of the land who made the contract:
To -: You are hereby notified that I have been employed
by [here state whether to labor or to furnish material, and substantially the nature of the demand] upon your [here state in general terms description and situation of building], and that I shall hold the [building, or as the case may be], and your interest in the ground liable for the amount that may [is or may become] due me on account thereof. [Signature]
Dated, -
If there is a contract in writing between contractor and sub-con- tractor, a copy of it should be served with the above notice, and such notice must be served within forty days from the completion of such sub-contract, if there is one; if not, then from the time pay- ment should have been made to the person performing the labor or furnishing the material. If the owner is not a resident of the county, or cannot be found therein, then the above notice must be filed with the Clerk of the Circuit Court, with his fee, fifty cents, and a copy of such notice must be published in a newspaper pub- lished in the county for four successive weeks.
When the owner or agent is notified as above he can retain any money due the contractor sufficient to pay such claim; if more than one claim, and not enough to pay all, they are to be paid pro rata.
The owner has a right to demand in writing a statement of the contractor, of what he owes for labor, etc., from time to time as the work progresses.
The liens referred to cover any and all estates, whether in fee for
1
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life, for years, or any other interest which the owner may have.
To enforce the liens of sub-contractors, suit must be commenced within three months from the time of the performance of the sub- contract, or during the work or furnishing materials.
Hotel, inn and boarding-house keepers have a lien upon the baggage and other valuables of their guests or boarders brought into such hotel, inn, or boarding-honse, by their guests or boarders for the proper charges due from such guests or boarders for their accommodation, board and lodging, and such extras as are furnished at their request.
Stable-keepers and other persons have a lien upon the horses, carriages and harness kept by them for the proper charges due for the keeping thereof, and expenses bestowed thereon at the request of the owner, or the person having the possession of the same.
Agisters (persons who take care of cattle belonging to others) and persons keeping, yarding, feeding, or pasturing domestic ani- mals shall have a lien upon the animals agistered, kept, yarded or fed for the proper charges due for such service.
1
All persons who may furnish any railroad corporation in this State with fuel, ties, material, supplies, or any other article or thing necessary for the construction, maintenance, operation or repair of its road by contract, or may perform work or labor for the same, are entitled to be paid as part of the current expenses of the road, and have a lien upon all its property. Sub-contractors or laborers have also a lien. The conditions and limitations, both as to contractors and to sub-contractors, are about the same as herein stated, as to general liens.
BILL OF SALE.
A bill of sale is a written agreement to another party for a con- sideration to convey his right and interest in the personal property. The purchaser must take actual possession of the property. Juries have power to determine upon the fairness or unfairness of a bill of sale.
COMMON FORM OF BILL OF SALE.
KNOW ALL MEN by this instrument, that I, B. F. Lewis, of Chi- cago, Illinois, of the first part, for and in consideration of six hun- dred and fifty dollars, to me paid by Columbus C. Chapman, Astoria, Illinois, of the second part, the receipt whereof is hereby acknowledged, have sold, and by this instrument do convey unto
-
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the said Chapman, party of the second part. his executors, admin- istrators, and assigns, my undivided half of ten acres of corn on my farm in the town of Deer Creek, Illinois; one pair of horses, twenty sheep, and five cows, belonging to me, and in my possession at the farm aforesaid; to have and to hold the same unto the party of the second part, his executors and assigns, forever. And I do, for myself and legal representatives, agree with the said party of the second part, and his legal representatives, to warrant and defend the sale of the aforementioned property and chattels unto the said party of the second part, and his legal representatives, against all and every person whatsoever.
In witness whereof I have hereunto affixed my hand this tenth day of October, one thousand eight hundred and seventy-nine.
B. F. LEWIS.
DAYS OF GRACE.
No check, draft, bill of exchange, promissory note, order, or negotiable instrument, payable at siglit or on demand, or on pre- sentiment, shall be entitled to days of grace. All other bills of exchange, drafts or notes are entitled to three days of grace. All the above-mentioned paper falling due on Sunday, New Year's day, Fourth of July, Christmas, or any day appointed or recommended by the President of the United States or Governor of the State as a day of fasting or thanksgiving, shall be deemed as due on the day previous; and should two or more of these days come together, then snch instrument shall be treated as due on the day previous to the first of said days.
LIMITATION OF ACTION.
The limit of time in which action may be brought on certain things is as follows: Open accounts, five years; notes and written contracts, ten years; judgments, twenty years; partial payments or new promise in writing, within or after said period, will revive the debt; absence from the State deducted, and when the cause of action is barred by the law of another State, it has the same effect here; assault, slander, libel, replevin, one year; personal injuries, two years; to recover land or make entry thereon, twenty years; and sealed and witnessed instruments, as action to foreclose mortgage or trust deed, within ten years. All persons in possession of land, and paying taxes for seven consecutive years, with color of title, and all persons paying taxes for seven consecutive years, with color of title, on vaeant land, shall be held to be the legal owners to the extent of their paper title.
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