which she was a party, when the topic most absorbing to her was, whether she should consent to a purchase, far beyond their means, of a Texas plantation, and with her children, go there to live, and when the only subject mutually interesting to the appellant and the Kranse family was, whether that purchase should be made. Under such circumstances the conversation must have been, as the Krauses say it was, upon the subject of mutual interest.

They say that she did not wish to complete the purchase without further examination by the father or son, or both, but that appellant dissuaded her from that as a needless expense, assured her of the truth of his statements and praised the place and enumerated its good qualities, extolling it as a paradise of comfort, luxury and health. Upon these representations she made the deed of trust. In her lifetime she would not have been, since her death her heirs are not, bound by it.

While it may be presumed that F. W. Krause did tell his wife what he saw in visiting the plantation in August, 1883, yet his description must have been of such a place as his hopes and desires made it. It is not credible that with a true picture of it before her, she would have consented to the pledge of all that her family had in the world for the purchase of such a place as the evidence shows this to have been. The charge of fraud, upon which, without reference to the subsequent rescissions, Mrs. Krause in her lifetime, and her heirs since her death, are entitled to be relieved from the deed of trust, is amply sustained, and her silence and acquiescence, and that of her children, is excused by her brief life and their infancy.

F. W. Krause, as well as his son, testifies that he took to the plantation machinery and a saw-mill of the value, or in his words, which inventoried," $10,000. And they both testified that in November, 1884, Mr. Dodd, who was the senior partner of the firm of Dodd, Brown & Co., to whom at the time of the sale to Krause the plantation belonged, the title being, it seems, in Brown for the firm, came to the place, and by agreement then made between Krause and Dodd, Krause

Brown v. Krause.

abandoned everything he had upon the plantation, made a bill of sale to Dodd, Brown & Co. of the sugar and molasses of the crop of 1884, and that Dodd accepted this abandonment and bill of sale as a rescission of the relations between them. Dodd denies the rescission, but his recollection of the incidents of his visit to the plantation at that time seems to be very vague. That he took the bill of sale, he admits. That Krause left the place, with his machinery upon it, is not denied. Dodd saw the machinery but has no explanation of why it was left. He simply denies that there was any agreement for a rescission. That in equity and good conscience there ought to have been a rescission, is a fair deduction from all the facts in the case. If there was one, it was not carried into execution by proper papers. Krause stayed until spring and finished and shipped the crop, which he says was part of his agreement. Dodd admits that Krause agreed that, as he could not continue any longer to couduct the place, he would turn it back, but he says that was to be done in pursuance of the original contract, which contained a provision, upon special terms, for such a contingency.

It is difficult to reconcile all the conduct of either party with the version of either, and it is not altogether satisfactorily established that as to the notes themselves the parties onght not to be left to their remedies and defenses at law. The notes, however, seem to be of little value if separated from the deed of trust. The personal obligations of a man in the last ten years of the three score and ten, bereft of all property, are not very valuable. The real substance of the controversy is the deed of trust. The decree, as a whole, will therefore be affirmed.

Decree affirmed.

VOL XXX 24

Trusts-Charge against Estate for Commissions-Express Agreement.

1. A claim for commissions for procuring a loan at the request of the trustee can not be made a charge upon a trust estate, without an express agreement to create such charge.

2. It seems to be a matter of doubt whether such a charge can be created even by express agreement.

[Opinion filed March 13, 1889.]

APPEAL from the Circuit Court of Cook County; the Hon. LORIN C. COLLINS, Judge, presiding

Messrs. PECKHAM & BROWN, for appellant.

Messrs. WILLIAM C. WILSON and DAVID L. Zook, for appellees.

Mr. W. T. BURGESS, for Hugh A. White, trustee.

GARY, J. The appellant filed his bill, to be paid by the trustee out of the funds of the estate of the late Francis C. Sherman, formerly an eminent citizen, and twice mayor of Chicago, compensation for services, beneficial, as he claims, to the estate, and rendered at the request of a former trustee. The briefs on his behalf concede, in effect, that there is no precedent in his favor, and that what authority there is, is against him, and ask that some new law shall be made to fit The court can hardly be expected to comply with

his case.

such a request.

The farthest that any cases, which can be considered authority, go, is that when a trustee is authorized to make an expenditure, and has no trust funds, and the expenditure is

Hinchliffe v. Espen.

necessary for the protection, reparation or safety of the trust estate, and he is not willing to make himself personally liable, he may, by express agreement, make the expenditure a charge upon the trust estate.

It is not sufficient to show that the expenditure was upon the faith or credit of the trust estate. A lien or charge upon the trust estate can only be by virtue of some agreement to that effect. New v. Nicoll, 73 N. Y. 127. And even to that extent the rule is questionable.

Many cases hold that the trustee can not, unless so authorized by the instrument under which he holds, create such charge by express agreement. 2 Pom. Eq. Jur., Sec. 1085, note 2. See, generally, Barker v. Kunkel, 10 Ill. App. 407; Lewin on Trusts, Ch. 24, Sec. 2, par. 15; Hill on Trustees, 567; 2 Spence Eq. Jur. 804. No such agreement is alleged in this case. The averment that "as trustee" the trustee retained the appellant, is no averment of such an agreement. The decree dismissing the bill is affirmed.

Decree affirmed.

EDWIN HINCHLIFFE, IMPLEADED, ETC.,

V.

SELMER ESPEN AND SIGMUND RUTHSTADT.

Landlord and Tenant-Forcible Detainer-Sec. 15, Act of 1874.

Sec. 15 of the act of 1874 does not warrant a judgment in forcible detainer against the original tenant, if he was out of possession when the suit was begun.

[Opinion filed March 13, 1889.]

APPEAL from the Circuit Court of Cook County; the Hon. FRANK BAKER, Judge, presiding.

Mr. E. A. SHERBURNE, for appellant.

VOL. 30.]

Cleveland Co-operative Stove Co. v. Matson.

Messrs. HOFHEIMER, ZEISLER & ROSENBERG, for appellees.

GARY, J. This was an action for a forcible detainer by appellees, in which the appellant was joined with his sub-tenants, who were in possession, under Sec. 15 of the act of 1874.

This section does not warrant a judgment against the original tenant, out of possession when the suit was begun. The judgment is required to be according as their actual holdings shall be found to be.

There is some ambiguity in the section, but language unequivocal would be necessary to make a party guilty of forcibly detaining what he did not hold at all. Godard v. Lieberman, 18 Ill. App. 366.

Judgment reversed.

CLEVELAND CO-OPERATIVE STOVE COMPANY

V.

CANUTE R. MATSON ET AL.

Sales-Condition-Fraud-Attachment.

The delivery of goods to a dealer upon condition that the title is not to pass until sold to bona fide purchasers, for use, the proceeds, to the extent of the price at which the goods are billed, to belong to the party making such delivery, is fraudulent as against the creditors of such dealer.

[Opinion filed March 13, 1889.]

APPEAL from the Circuit Court of Cook County; the Hon. ROLLIN S. WILLIAMSON, Judge, presiding.

Mr. EDWARD OWINGS TOWNE, for appellant.

The question presented is whether the goods, the title to which is to be determined, were consigned for sale, or whether, under a pretended contract of consignment, they were sold upon a credit given.