The judgments of the Appellate Court and | enforced; the form of the consideration being superior court are reversed, and the cause is immaterial, so long as susceptible of appraiseremanded to the superior court.

Reversed and remanded.

(287 Ill. 468)

WRIGHT et al. v. BUCHANAN et al. (No. 12593.)

(Supreme Court of Illinois.

ment or reduction to a definite money value.

7. MORTGAGES 27- CONVEYANCES-EQUITABLE MORTGAGE.

An agreement, contained either in the conveyance or in a separate instrument, for annuity or the support of the grantor, will convert such conveyance or instrument into an equitable mortgage.

April 15, 1919.) 8. VENDOR AND PURCHASER

1. ATTORNEY AND CLIENT 32-EVIDENCE 590-WITNESSES 67-TESTIMONY OF ATTORNEY-WEIGHT.

In a suit in equity against minors, testimony in their favor of their guardian ad litem, who had theretofore been, during the litigation, attorney for their father, but who did not appear in the case as an attorney after he testified, would be closely scanned and given little weight; it being improper for an attorney to testify in his own case, though he is not incompetent to testify.

2. VENDOR AND PURCHASER 246 DOR'S LIEN-NATURE.

281(3)-VEN

DOR'S LIEN-RECITATION OF PAYMENT-EF-
FECT.

The recitation of payment of consideration in a deed or other like document, executed at time of transaction, is not conclusive as against the vendor's lien, but is simply prima facie evidence of the payment, which the vendor may explain or disprove in seeking to enforce his lien.

9. EVIDENCE ~419(2), 432—PAROL EVIDENCE -EXPLAINING OF RECITATION OF

MENT.

PAY

The recitation of payment of consideration VEN-in a deed or other like document may be explained or rebutted by the vendor by parol

10. GIFTS 4, 16, 49(1)

PROOF.

The law requires that a gift, whether direct or in trust, shall be established by clear proof, that no uncertainty shall exist, either as to the subject or object of the gift, and that the transaction must be consummated, and not remain incomplete or rest in mere contention. 11. GIFTS 49(4, 6)—LAND - NOTES - EVIDENCE.

A vendor's lien does not grow out of an testimony. arrangement between the parties, but is simply an equity raised by courts of chancery for benefit of vendors, which will be enforced or denied as exigencies of each particular case may require, and rests on the principle of natural justice that one obtaining possession of another's estate ought not to be allowed to keep it without paying the consideration. 3. EXECUTORS AND ADMINISTRATORS SPECIFIC PERFORMANCE 4 ENFORCING PAYMENT OF PURCHASE MONEY OF LAND. When purchase money of land has not been paid, vendor may file bill for specific performance to coerce payment of money and subject land to sale for satisfaction, although action at law would lie upon note, and vendor's personal representative may proceed in same manner. nor grantees.

135

Evidence held to show that the grantor did not intend to make a gift of land conveyed by him to minor grantees, and to sustain the chancellor's finding that notes then taken by grantor were not given by him to the father of mi

4. VENDOR AND PURCHASER 254(1)—VEN-12. INFANTS 52-NOTES ACCEPTED BY IN

DOR'S LIEN-APPLICATION OF DOCTRINE.

As the vendor's lien is a creature of equity, to relieve a vendor who has parted with his land and has not been paid therefor, it arises and the doctrine is applicable in every sale and conveyance of land when the purchaser has not paid in whole.

A vendor's lien lies only for a debt which may be either for money, or the rendition of services, or any other available consideration, definite and ascertained, and stipulated as the equivalent of amount of purchase price on a sale of land against which lien is sought to be

FANTS-VALIDITY.

In order to take advantage of minority in refusing to carry out a contract, the rule is that

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the contract executed by infants must be repudiated, after the infants become of age, within the statute of limitations.

16. INFANTS 52-NOTES-ENFORCEABILITY. Notes signed by two infant grantees were not enforceable against them at any time before they became of age, either to make them pay the notes in cash or to comply with a provision on the back of the notes that they might be boarded out by the grantor.

17. INFANTS 30(1) VENDOR AND PURCHASER 265(1) VENDOR'S LIEN-ENFORCEMENT AGAINST INFANT GRANTEES.

heirs were substituted as complainants in the bill, and a decree was thereafter rendered.

At the time of the hearing Samuel Berry was about 83 years of age. He had been a farmer all his life, and had acquired a good farm and some personal property. He was married twice, having by his first wife one son and two daughters. When his first wife died these children were grown, and one of the daughters, Sarah Pool, was married and kept house for him until his second marriage, in 1881. His second wife had been If infant grantees, who executed notes to married before. She brought with her to the grantor after they became of age, ratified Berry's home a youth about 16 years old, the notes or refused to agree to a cancellation of Thomas A. Buchanan, whom she had raised the deed, a vendor's lien would be enforceable from the time he was 2 years old. The eviagainst the land as to them, which would con-dence tends to show the children of the first tinue after a conveyance of land to a third per- marriage did not get along well with the son with notice of the existence of the lien, or second wife and her foster son. Shortly to a mere volunteer. after the second marriage, the daughter Jennie married, and she and her sister both left home and went to keeping house, with their respective husbands, on farms in the vicinity. The son also left home and was married, living and farming in the neighbor

18. INFANTS ~58(2)—RepuDIATION OF CONTRACT-RESTORATION OF VALUE.

After infant grantees who had executed their notes to the grantor became of age, they could not repudiate payment of the notes without returning the value of the property for which the notes were given.

hood. The foster son of the second wife, Thomas Buchanan, married 4 or 5 years after Berry's second marriage, and went to live on a farm several miles away. This left Berry and his wife without any one to help them on the farm, and Buchanan and his wife, at their request and apparently at the urgent insistence of the foster mother, moved back to the Berry farm and lived there for a considerable time, carrying on the farm and keeping house for the old people. Several of Buchanan's children were born there. The evidence also tends to show

Error to Circuit Court, Richland County; that, while Buchanan was living away from Charles H. Miller, Judge.

Bill by Samuel Berry, in which, after his death, Jennie Wright and others, his executors and heirs, were substituted as complainants, against Bryan J. Buchanan and others. Decree for complainants, and defendants bring error. Reversed and manded, with directions.

re

H. G. Morris, of Olney (John A. MacNeil, of Olney, guardian ad litem, of counsel), for plaintiffs in error.

McGaughey, Tohill & McGaughey, of Lawrenceville, and Lewis & Lewis, for defendants in error.

CARTER, J. This is a writ of error sued out to reverse a decree of the circuit court of Richland county finding that the executors of the will of Samuel Berry, deceased, had a vendor's lien for $2,500 against about 76 acres of land in that county. The bill was filed by Berry in his lifetime, and the testimony partially heard, including his own, before his death, which occurred during the pendency of the suit. His executors and

the farm, his two sons, Bryan and Council, the plaintiffs in error herein, lived with Berry and his wife during several winters, doing the chores and going to school. The evidence also tends to show that during these years the relations between Berry and the family of Buchanan were friendly.

In 1913 Berry conveyed 33 acres of his farm land, upon which his house and barn were located, to his wife, reserving a life estate in himself, and his wife on the same day conveyed this 33 acres to her foster son, Buchanan. Before that time it appears that Berry had conveyed some of his land to his daughters, retaining only in his own name the tract of 76 acres here in question. During the early part of 1915, and for some time theretofore, Buchanan had been living on the 33-acre tract and farming it, together with the 76 acres. The evidence tends to show, also, that in February, 1915, Berry decided to deed this 76-acre tract to Buchanan's two sons, Bryan and Council. These two boys were at that time 17 and 15 years of age, respectively, and were living on the farm with their parents, helping with the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

farm work. Shortly before that time Ber-shows, however, that it was written on the ry's stock had been troubled by a dog be- notes before they were delivered to Berry. longing to Pool, one of his sons-in-law, and After the notes and deed were drawn, the Berry told Buchanan's two sons that, in nine notes were signed on the face by the order to stop that dog interfering with the two boys, Bryan and Council, and, either at stock, they should kill it, if necessary, and that time or later, Berry put his name on he would stand by them in any trouble that the back under the notation as to boarding arose. The young men shot the dog, and them out. The testimony tends to show that Berry sided with them in the trouble that Berry said he wanted the notes and deed followed with his son-in-law over such shoot- put in his tin box, although Buchanan testiing. fied that the deed was delivered to him to record. It was not recorded for some time thereafter, and Buchanan testified it was finally done at the suggestion of Berry, while Berry testified that he did not so request, claiming that he never intended to have it recorded. Buchanan further testified that some weeks later these nine notes were handed to him by Berry, and that Berry stated that he was giving them to him; that he could settle the question with his two boys as to who owned the land; that they could pay the notes, and thus own the land themselves, or they could let their father have it, and thus redeem the notes. Buchanan also testified that Berry signed his name on the back of each of these notes just before giving them to him. Berry denied that he ever gave or transferred these notes to Buchanan.

On February 28, 1915, Berry sent word to a neighbor, who was a justice of the peace, Adam Griesemer, to come and draw some deeds for him. The justice came to the Berry home and talked matters over, but as it was late Saturday night, and the discussion had lasted until after midnight, and for fear a deed made on Sunday might not be valid, they agreed to put the matter off until Monday. On Monday, March 2, Griesemer again went to the Berry farm and drew up a deed for the 76 acres, running from Berry and his wife to Bryan and Council Buchanan. Mrs. Berry was at that time very ill and was unable to sign, so the justice signed her name to the deed and she made her mark, and the acknowledgment of both Berry and his wife was taken by the justice. Mrs. Berry died the same day. While the justice was drawing up this deed, Thomas Buchanan drew up a series of nine notes -eight for $300 each and one for $100. They were made payable to Berry one, two, three, four, five, six, seven, eight, and nine years, respectively, after date. On the back of each of these notes was written, "This note is to be boarded out by Samuel and Sarah Berry"; Sarah being the name of the second wife. The justice testified that Berry asked him, on the day he drew the deed, how he could draw the notes and have them secured by a mortgage in such way as to make him safe for the purchase price of the land. The justice replied that, as the boys were minors, they would have to have a guardian appointed by the court to act for them, and then the notes and mortgage could be signed by the guardian. This conversation, apparently had in the presence of the boys and Buchanan, took place in the hearing of Mrs. Berry, who was lying in bed, sick. She immediately objected, and said she didn't want it that way, and Berry said, "Well, mother, you won't be with me long, and I am going to fix it any way you want." It is not entirely clear from the evidence who suggested putting the indorsement about boarding out the debt on the back of the notes. From the testimony of the justice it is apparent that he was not the one who originally suggested it. Buchanan and his sons testified that the suggestion was made by Berry. Berry did not remember making the suggestion, and apparently was of the opinion that it was put on by Buchanan as his own idea. All the evidence

The evidence seems to show that a short time after these proceedings were commenced in court Buchanan had these notes in his possession, and had them with him at the time some of the testimony in this case was being taken, but they were mislaid during the progress of the trial. At the time these notes were executed Berry was in poor health. He had a disease of the feet, which made it impossible for him to walk without assistance, and he spent most of his time in a wheel chair. In April, 1915, on account of his health, he went to a sanitarium at Olney, the county seat of Richland county, to be examined and possibly operated upon. After arriving there he sent for his lawyer, R. S. Rowland, and at his request Rowland prepared a bill of sale to Buchanan of all the personal property on the farm, which Berry signed, and at the same time assigned to Buchanan a certificate of deposit for about $1,000.

[1] While this litigation was in progress, the trial court appointed Rowland as guardian ad litem for the two minors, Bryan and Council Buchanan. During the trial, at the guardian ad litem's suggestion and insistence, Rowland, over his own objection, was called to testify. Counsel for defendants in error also objected to his testifying, and insisted that his testimony was incompetent; that Rowland had theretofore been, during the litigation, the attorney for Thomas Buchanan. The evidence tends to show that Rowland has not appeared in the case as an attorney since he gave his testimony. This court has repeatedly said that, when an at

torney himself furnishes, by his own testi- [bated, and by which he gave $400 to one mony, evidence to help himself succeed on church, $100 to another, and the balance of the trial, such evidence will be closely scan- his estate, "if any there be," to his two daughned; that while it is not proper for an at-ters and son. The testimony shows, without torney, in a case he is conducting, to testify contradiction, that no payment had been made on his own behalf, he is not for that reason by Bryan and Council Buchanan on any of incompetent, and if he chooses to testify he these notes before Berry's death. may do so, but his testimony should be given little weight. Wilkinson v. People, 226 Ill. 135, 80 N. E. 699; Grindle v. Grindle, 240 Ill. 143, 88 N. E. 473; Wetzel v. Firebaugh, 251 Ill. 190, 95 N. E. 1085; Rice v. Winchell, 285 Ill. 36, 120 N. E. 572. From Rowland's statement at the time he was called upon to testify it was apparent that he understood the rulings of this court with reference to an attorney testifying. In view of the circumstances under which he gave his testimony in this case, we do not think he is subject to criticism for testifying.

From the evidence before us it is not absolutely clear as to whether Berry, at the time these notes were excuted, expected them to be paid in cash, or that he considered the transaction a closed one so far as conveying the land was concerned. It is not claimed that any part of these notes was paid by his boarding with the boys. It is quite clear from this record that during the last years of his life Berry was in poor health physically, and quite easily influenced by those with whom he was associated. His own testimony as to his intention is not entirely conAfter treatment at the sanitarium, Berry sistent or in harmony; neither is the testimowent back to Buchanan's home, and remain-ny on behalf of the plaintiffs in error. The ed there until the latter part of September claim of counsel for plaintiffs in error that of that year, when he accepted an invita- these notes were understood only to be paid tion from his daughter Mrs. Wright to visit by Berry and his wife boarding them out her. It seems to have been the understand- with the grantees in the deed is inconsistent ing of the Buchanans that he would return with the testimony of Thomas Buchanan that soon and live with them, but he remained these notes were afterward given to him by with Mrs. Wright until after the beginning Berry, with the statement: of this litigation, and the evidence shows that he lived with his children until his death. The original bill in this case was filed October 23, 1915, by Berry, praying that the court hoid that the 76-acre tract of land was subject to a vendor's lien in his favor. Shortly after Berry went to live with his daughter, he sent his son-in-law Wright, accompanied by a grandson (Mrs. Pool's son), to Thomas Buchanan to ask him for the notes here in question, and for another note for $300 which Buchanan had signed, with one Clodfelter as surety. Buchanan told Wright, in the presence of young Pool, that all these notes were lost. He also told them that the $300 Clodfelter note had been signed over to him by Berry. It is not claimed that Buchanan at this time told Wright that the notes here in question, given in payment of this 76-acre tract, had been given to him by Berry. Wright and the Pool boy testified that Buchanan then only claimed that these notes had been stolen and he could not produce them.

Considerable testimony was introduced by plaintiffs in error substantially to the effect that after taking these notes and executing the deed to the 76-acre tract of land Berry had made statements to the assessor and various neighbors that would indicate that he had given the 76-acre tract of land to the Buchanan boys, and that he had fixed it so that his own children would not get any more of his property, as he claimed they had not treated him right. Berry testified during this litigation, denying that he ever made any such statements. He died on January 16, 1917, leaving a will, which was duly pro

"You and the boys can settle this between you; the notes are yours, and the boys can redeem them by paying them off or deeding the land back and redeeming the notes."

[2] A vendor's lien does not grow out of an agreement between the parties, but is simply an equity raised by courts of chancery for the benefit of vendors of realty, which will be enforced or denied as the exigencies of each particular case may require. 39 Cyc. 1788. See, also, Mitchell v. Shaneberg, 149 Ill. 420, 37 N. E. 576.

"It is a general rule in equity, and it requires a very strong case to make an exception, that no man shall be compelled to part with his title till he receives the consideration; and so vigilant are the courts of equity to protect the seller, that although an absolute conveyance be made, and no mortgage or other security taken, still in the hands of the vendee, or a subsequent purchaser with notice, the vendor has a lien on the land for his money." Dyer v. Martin, 4 Scam. 146; Croft v. Perkins, 174 Ill. 627, 51 N. E. 816.

[3] The principle on which a vendor's lien is generally regarded as resting is one of natural justice-that one who gets possession of the estate of another ought not in conscience to be allowed to keep it without paying the consideration, although other grounds, such as the presumed intention of the parties or the existence of a trust between them, have been assigned. 39 Cyc. 1789. It has been held that, when the purchase money of land has not been paid, "the vendor may file his bill for a specific per

[4, 5] As the vendor's lien is a creature of equity, to relieve the vendor, when he has parted with his land and has not been paid therefor, it arises, and the doctrine is applicable, in every sale and conveyance of land when the purchaser has not paid in whole. The law presumes the retention of the lien in favor of the unpaid vendor, unless the terms of the contract of sale or the concomitant circumstances of the transaction satisfactorily show that the lien was purposely excluded and that the vendor relied on the personal credit of the vendee or other security. The burden of establishing this is on the vendee. 29 Am. & Eng. Ency. of Law (2d Ed.) 742, and cases cited.

formance to coerce the payment of the recitation of payment of consideration in a money, and to subject the land to sale for deed or other like document executed at the satisfaction, although an action at law time of the transaction is not conclusive as would lie upon the note. Andrews v. Sulli- against the vendor's lien, but is simply prima van, 2 Gilman, 332 [43 Am. Dec. 53]. This facie evidence of the payment, which the being so, we can perceive no reason why his vendor may explain or disprove in seeking personal representatives may not proceed in to enforce his vendor's lien, and which he the same manner." Burger v. Potter, 32 can explain or rebut by parol testimony. 29 Ill. 66. Am. & Eng. Ency. of Law (2d Ed.) 742; 39 Cyc. 1791. This court has held that the law requires that a gift, whether direct or in trust, shall be established by clear proof, and that no uncertainty shall exist, either as to the subject or object of the gift; that the act or acts constituting the transaction must be consummated, and not remain incomplete, or rest in mere contention. Barnum v. Reed, 136 Ill. 388, 26 N. E. 572. See, also, Boudreau v. Boudreau, 45 Ill. 480; Williams v. Chamberlain, 165 Ill. 210, 46 N. E. 250. While Thomas Buchanan testified that these notes were given to him by Berry a few weeks after they were executed, Berry posi| tively denied that he ever gave them to Buchanan, or ever intended to give them to him. The chancellor heard this testimony, and was in better position to pass on its weight and bearing than we are. We cannot say from the record that the gift to Buchanan was so clearly established by proof that the finding of the chancellor on this question is not justified by the evidence. Indeed, the weight of the evidence and circumstances proven tend to show that these notes were not given to Buchanan by Berry.

[6] It is not absolutely essential that the purchase price of the land was to be paid in money. If the land be sold at a specific figure, and it is agreed mutually that certain personal services to be rendered the vendor shall equal that figure, the lien exists. The form of the consideration within these limitations is immaterial, so long as the consideration is susceptible of appraisement at or reduction to a definite money value, as the consideration will be deemed a mere agreement as to the method in which the purchase price is to be paid, and will not divest the transaction of its intrinsic nature. The cardinal rule deduced from all the cases seems to be that the lien lies only for a debt, which may be either for money, or the rendition of services, or any other valuable consideration, definite and ascertained, and stipulated as the equivalent of the amount of the purchase price and arising out of the sale of land against which the lien is sought to be enforced. 29 Am. & Eng. Ency. of Law (2d Ed.) 743-745, inclusive, and cases cited.

[7] It has been held that an agreement, contained either in the conveyance or in a separate instrument, for annuity or the support of the grantor, will convert such conveyance or instrument into a equitable mortgage. 39 Cyc. 1792, and cases cited. The vendor's lien does not attach where land is conveyed as a gift. Mitchell v. Shaneberg, supra.

[8-11] It is clear, from the evidence as to what took place at the time the deed and notes here in question were executed, that Samuel Berry did not originally intend to make a gift of the land in question to Bryan and Council Buchanan, and it is quite apparent that he did not so intend in the end, be cause, if he had, he would not have taken their notes for any of the consideration. The

Counsel for plaintiffs in error suggest that, as defendants in error had an adequate remedy at law to recover on these notes, equity would not have jurisdiction to give the relief prayed for in this bill. It is the settled law in this state that, when the purchase money of land has not been paid, the vendor may file his bill for specific performance and subject the land to sale and satisfaction, even though an action at law would lie upon the note. Andrews v. Sullivan, supra. See, also, Burger v. Potter, supra; Robinson v. Appleton, 124 Ill. 276, 15 N. E. 761; Winter v. Trainor, 151 Ill. 191, 37 N. E. 869.

[12-15] Counsel for plaintiffs in error also argue that the decree in this case is wrong, because it is entered against minor defendants. The record shows that Bryan Buchanan was 19 years of age at the time the bill was filed, but became of age during the litigation; that Council Buchanan will not be of age until some time during 1919. They also argue that the decree was wrong in holding these notes void and not voidable. The general rule is that promissory notes issued and accepted by infants are voidable, and not void; and this is so, whether they are negotiable or not. 16 Am. & Eng. Ency. of Law (2d Ed.) 284, and cases cited. The right of an infant to avoid a contract is personal, and cannot be taken advantage of by an adult with whom he deals. The adult enters into a