author: Pillsbuby, P J.

text:
    M. Millard v. Board of Education of, etc.
    1. Leasing op school boom by board. — The leasing of a school room by the board of education for temporary use for school purposes, where there is no permanent school building in the district, or where the school buildings are insufficient to accommodate all the children entitled to attend, is not within the express prohibition of the proviso to section 80 of the statute relating to schools, and this court is not disposed to extend it by construction so as to include it.
    2. Renting part op church por. school. — The paying of rent to a church organization for the use of a room for school purposes, is not such an appropriation or aid to the church as comes within the prohibition of our constitution.
    8. Religious exercises before school. — The facts alleged in the bill relative to the employment by the board, of teachers affiliated with the Catholic church, and the fact that teachers and pupils for one hour before sjhool time were required to attend*mass, is not passed upon by the court, inasmuch as it appears the'children acted voluntarily in taking part in such exorcises, and complainant has not shown wherein, as a taxpayer, he has or can be injured by such acts, and does not ask relief from such alleged acts.
    Error to the Circuit Court of St. Clair county ; the Hon. Amos Watts, Judge, presiding.
    Opinion filed June 12, 1886.
    The plaintiff in error filed his bill in equity in the Circuit Court of St. Clair county, in substance as follows: “ The complainant respectfully shows that he is a resident and taxpayer of school district, number one, town two, north, range ten west, St. Clair county, Ill.; that the school affairs of said district are under the control of the hoard of education, as provided by statute, instead of school directors; that this bill is filed by complainant in his own behalf and also in behalf of a large number of other taxpayers and residents of said district, who concur in the prosecution of the present suit; that for the last ten years or more the public school authorities of said district have maintained and conducted one of the schools of said district in the basement of the building known as St. Patrick’s church, which has always been and still is under the control of Roman Catholics, and devoted to the religious worship of that faith; that such religion is sectarian; that during the last school year said board of education appointed as teachers for such school persons only who were members of said church and believers in its faith; that said board paid to said church as rent for the use of its said basement as a school room for the school term of ten months the sum of six hundred dollars; that the children of Catholic parents and said teachers were required to assemble at said church on all school days by the hour of eight o’clock, a. m., and have mass said to them by the officiating priest of said congregation until half past eight o’clock; that said teachers and pupils were then required to repair to the school rooms in the basement of the said church and engage in further religions instruction by teaching and learning catechism until nine o’clock a. m.; that the common school exercises were then commenced and continued until twelve o’clock, when the Angelus prayer was said by pupils and teachers, this terminating the morning session of said school; that the mass said by the priest, the catechism taught the children and the Angelus prayer said by the teachers and pupils aforesaid were all religious and sectarian exercises peculiar to the faith of said church; that the basement of the said church was never established or located as a school site by a vote of the people of the said district on a petition of the majority of the voters thereof as inquired by statute; that by the term of the lease under which the said basement was procured for school purposes as aforesaid, no religious or sectarian exercises of any denomination other than said church are or can be allowed; that said board of education threatens to, and will appoint only members of said church as teachers for such school for the ensuing year, and will pay said church for the use of its said basement the same rent as heretofore, and will-conduct and maintain such school in said church basement at public expense with all the religious and sectarian exercises above set forth, in the same manner as during the last school year, and will persist in maintaining and supporting a public school in such basement, in the manner above set forth, as a regular and permanent school of said district, unless restrained by this honorable court; that on the first -day of February, 1885, a school site other than that mentioned in the bill was located in pursuance of a petition of a large majority of the voters of the district, and on the tenth day of March, 1885, said board of education submitted a proposal to issue $30,000 of the bonds of the said district to the voters thereof with which to pay for said site and build a school house thereon, which was voted down by a majority of eighteen, which latter proposal was opposed by the pastor in charge of the congregation aforesaid and a great number of the members thereof; that no other attempt has since been made by said board, nor was for years prior thereto, to build a school house for said district or purchase a school site.”
    The defendant demurred to the bill, and the demurrer being sustained, the complainant abided by his bill and it was dismissed for want of equity and he sued out this writ of error and asks that the decree may be reversed.
    Mr. M. Millard, for plaintiff in error;
    that a resident taxpayer can bring a bill to prevent an illegal expenditure of public funds, cited Chase v. Stephenson, 71 Ill. 383; City of Springfield v. Edwards, 84 Ill. 626; Chestnutwood v. Hood, 68 Ill. 132; Wright v. Bishop, 88 Ill. 302.
    As to the power of the board of education to locate a site: School Directors v. Miller, 54 Ill. 338; School Directors v. Fogleman, 76 Ill. 189; Thatcher v. People, 93 Ill. 240.
    Mr. Chables W. Thomas, for defendant in error. .
   Pillsbuby, P J.

The propositions relied upon by plaintiff in error for a reversal of the decree of the court below are:

1st. Because the board has no power to rent a building of any character, from year to year, for school purposes.

2d. Because it is not authorized to establish and maintain a school at a place or site not fixed by a vote or petition of the people of the district.

3d. Because it has no right to subordinate a • common school to the interest of any particular denomination, or assist a church in the maintenance of its organization or the propagation of its faith, or allow any religious body a benefit or privilege which is not common to. all Christian sects.

In this latter respect the bill is based upon those constitutional guaranties which were • intended to secure religious equality, and to prevent all connections between church and State, or, as it is sometimes expressed, between the civil and religions institutions of the country; the idea being that neither national, state or local government authority is to be exerted in such a way as will benefit one denomination or injure another.”

The first two may well be considered together. The general assembly is required by the constitution to “provide a thorough and efficient system of free schools, whereby all children of this State may receive a good common school education.” mon school education.”

Obedient to the will of the people thus expressed, the legislature enacted the present school law, creating certain official agencies to carry into effect the great object of the constitution and the statute — the education of all the children of the State. Section forty-eight of the School Act provides that directors shall establish and keep in operation, for at least one hundred and ten days of actual teaching in each year, without reduction by reason of closing schools upon legal holidays, or for any other cause, and longer if practicable, a sufficient number of free schools for the accommodation of all children in the district over the age of six and under twenty-one years, and shall secure to all such children the right and opportunity to an equal education in such free schools. Boards of education in districts containing not less than two thousand inhabitants are, by Sec. 80 of the same act, invested with the power, and it is made their duty, in addition to, or inclusive of the powers and duties of school directors, to establish and maintain free schools not less than six nor more than ten months in each year * * * to buy or lease sites for school houses, with the necessary grounds ; * * * to levy a tax annually upon the taxable property of the district, in the manner provided by Sec. 44 of the act, for the purpose of supporting and maintaining free schools in accordance with the powers conferred by the act. By a proviso contained in said Sec. 80 it is made unlawful for the board of education to purchase or locate a school house site ; to purchase, build or move a school house, or levy a tax to extend schools beyond the period of ten months in the year, except upon petition of a majority of the voters of the district. Here the general power is granted and the duty imposed upon the board to establish and support sufficient schools, for at least six months in the year, to accommodate all the children in the district of school age, and it must be held, that the board can exercise all those incidental powers necessary to carry into effect such granted power, and to fulfill the primary object of the statute in creating the board and imposing the general duty of establishing and supporting free schools. These general or incidental powers are, of course, to be limited in the manner of their exercise, according to the provisions of the statute, so far as the legislative will has been declared" in the act, but we are not to defeat the general objects or purposes of an act by attaching to any exception or proviso therein contained some element or condition not expressed therein or fairly deducible from the language employed. The power given and duty cast upon the board by the law to maintain free schools for at least six months, with a discretion upon its part to extend the term to ten months, exists by the statute and is not made dependent upon any action of the voters of the district. It is the settled policy of our State to educate the children. The children of to-day become the men and women of to-morrow, the stay and hope — the defenders of the republic, and the general assembly, recognizing the necessity of the education of the young as the foundation of-future usefulness as citizens, has not only made the right of the child to a good common school education independent of the will or caprice of the voters of the district, or the indifference of parents, but has, by a recent statute, made it a finable offense for any person having the control and charge of any child between the ages of eight and fourteen years, to deprive such child of the benefit of at least twelve weeks’ schooling in each year. We should not attribute to the legislature the intent to make, by a proviso or exception in the statute, the principal object of the statute unattainable, unless such design is clearly manifest from the words of the statute. There is no averment in the bill that the board of education has purchased or located a school house site, or purchased, built or moved a school house, or intends so to do. It has simply leased a room wherein a common school can be kept temporarily, or until such time as the voters of the district may consent to buy a site and erect suitable school buildings for educational purposes. We can not hold that the voters, by refusing to petition for or to vote to buy and pay for a school house site, shall be permitted to nullify the beneficent provisions of our constitution and statutes, enacted for the benefit of the children. If they will not vote to erect school houses which shall belong to the district, the board will be justified in adopting some other means of performing its duty under the statute. The leasing of a school room for temporary use for school purposes, where there is no permanent school building in the district, or where they are insufficient to accommodate all the children entitled to attend school, is certainly not within the express prohibition of the proviso to Sec. 80 of the statute, and we are not disposed to extend it by construction so as to include it. To do so would allow the voters of any school district to determine whether they would have a free school in their district or not. The locating a site for a school house, which the board is not allowed to do of its own motion, means a fixed location of a site for school buildings, to be owned and controlled by the school authorities permanently, for common school purposes. It is true that the bill avers that the board will maintain the school in the basement of the church as a regular and permanent school of said district, but it is quite evident from the other allegations of the bill, that this is a mere conclusion of the pleader and therefore not admitted by the demurrer, for the bill shows that a site for a school house had been selected upon petition, and the voters refused to purchase it at an election held under the statute. It therefore appears from the bill itself that the board leases and uses this room for a temporary school room, until such time as the electors are willing to provide a permanent site and school building for the accommodation of the scholars of the district. In this action we are not prepared to say it has exceeded its powers or duties under the statute. As to the third point, the paying of rent to a church organization for the use of a room for school purposes is not such an appropriation, or aid to the church, as comes within the prohibition of our constitution. ¡Religious organizations are not under such legal bans that they may not deal at arm’s length with the public in selling or leasing their property, when required for public use, in good faith, receiving therefor but a fair and reasonable compensation. The public in such case receives the full benefit of its contract, and/the funds paid are not a gift, appropriations, or aid to the church, nor paid for any sectarian purpose. . As well say, if a court house should be destroyed by fire the county authorities could not lease a church in which court could be held, and pay for it out of the county revenues* ¥e do not propose to enter into any discussion of the relation of church to State, or suppose any case where the constitution might apply, as it is enough for the present purpose to say that, in our opinion, the room was leased for public uses, and the public received a proper equivalent for the money expended, and the indirect benefit received by the church for the use of its property is not prohibited by the law. The relief aslced for only goes to the extent of restraining the board from using this room as a school room, consequently there is no object in commenting upon the facts alleged in the bill relative to the employment, by the board, of teachers affiliated with the Catholic church, nor to the facts that the teachers and scholars, for one hour before school time, were required to attend mass, or take part in or listen to any other religious exercises. So far as appears from the bill, the children acted voluntarily in taking part in such exercises, and the complainant has not shown wherein, as a taxpayer, he has or can be injured by such acts, neither does he ask relief from such alleged acts. ¡No error appearing the decree will be affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Pillsbury, P. J.

license: Public Domain

text:
    Chicago & Alton R. R. Co. v. Sebastian Fietsam, Adm’r, etc.
    Evidence — Res gestzb. — Where, in an action for the death of an engineer, one of the essential facts to be proved was that appellant’s servants did not. close a switch after opening it for the passage of a stock train, the statement of appellant's switchman that he had left the switch open, made half an hour after the train had passed over it, and when he had come back to the wreck and found the train off the track and the engineer dead, a inadmissible.
    Api’eal from the City Court of East St. Louis; the Hon. "Wat. P. Launtz, Judge, presiding.
    Opinion filed June 12, 1886.
    Certain facts in this case and undisputed, are, that the Venice & Carondelet Railroad Company had a track extending from Venice, on the Mississippi river, in Madison county, Illinois, around the city of East St. Louis, to a point below said city, on said river opposite Carondelet, Mo. This track was a large switch, or belt railroad, crossing various roads running into East St. Louis, with a switch connecting with and running into the St. Louis Rational Stock Yards. The Illinois & St. Louis Railroad & Coal Company was operating this road, which was known as the “V. & C.” and “The Belt.” The Chicago & Alton and the Indianapolis & St. Louis Railroad Companies had the right to use this track in common with the V. & C. railroad trains between Venice and the Rational Stock Yards. Deceased was a locomotive engineer, working for the Illinois & St. Louis Coal Company, running a freight engine on this V. & G. track. About seven o’clock in the evening of the day in question he was running his engine, driving a train of twenty-nine loaded cars over said track approaching Venice. When he came to the stock yard switch, it had been left open, and the engine left the rail, went over the bank, overturned, and the engineer was killed. There was no headlight on the engine. Caboose was ahead oí engine. The engineer killed was the appellee’s intestate. The really litigated, fact in this ease was whether the servants of the appellant, who had a short time previous to the accident connected the switch with the stock yards track and run in a stock tram, had neglected to turn the switch back, thus connecting the rails with the main line, or left it open after passing in on the stock yards track. To establish the fact that appellant's switchman, one Snell, did not close the switch after the stock train had left the main track, the court below permitted the appellee to prove the statements of Snell and the engineer made after the injury, and after they had returned with their train to the scene of the wreck, showing that Snell had left the switch open, thereby causing the derailment of the “ Belt Line” train and the death of Guess. To the admission of such statements of its servants, the appellant objected and excepted, and here assigns this ruling for error.
    Messrs. Wise & Davis and Mr. L. H. Hite, for appellant;
    as to res gestee, cited M. C. R. Co. v. Gougar, 55 Ill. 506; 1 Greenleaf on Ev., §§ 113, 114; Luby v. H. R. R. Co., 17 N. Y. 131; O. & M. R. R. Co. v. Porter, 92 Ill. 427; 2 Best on Law of Ev., 899; C. & N. W. Ry. Co. v. Fillmore, 57 Ill. 265; M. C. R. R. Co. v. Carrow, 73 Ill. 357; Ryan v. Gillmer, 2 Montana, 517; Adams v. H. & St. Jo. R. R. Co., 74 Mo. 333; Am. Steamship Co. v. Landreth, 102 Penn. 131.
    Messrs. De Wole & Chambers and Mr. M. Millard, for appellee;
    as to res gestee, cited McComb v. N. C. R. R. Co., 70 N. C. 178; McLeod v. Ginther, 80 Ky. 399; Kirkstall Brewing Co. v. Furness Ry. Co., Law Reports 9, I. B. Cases, 468; Whittaker v. Eighth Ave. R. R. Co., 5 Robertson (N. Y.), 650; O. & M. Ry. Co. v. Porter, 92 Ill. 437; Travelers Ins. Co. v. Mosley, 8 Wall. 397; Hanover R. R. Co. v. Boyle, 55 Penn. St. 402; Lisson v. C. & T. R. R. Co., 14 Mich. 489; Bass v. C. & W. Ry. Co., 42 Wis. 654.
   Pillsbury, P. J.

One of the essential facts charged in the declaration and necessary to be proved upon the trial, was that the appellant’s servants did not close the stock yards switch after opening it for the passage of the stock train, from the main to the side track. This fact, like any other, should be established by competent evidence, either direct testimony, or the proof of other facts and circumstances .from which the jury can properly infer the existence of the principal fact. This statement of the switchman that he had left the switch open was made from twenty minutes to one half hour after the train had passed over it, and when he had come back to the wreck and found the Belt ” train off the track and Guess dead. To make the admissions or statements of an agent or servant admissible against the principal or master, they must appear to . to have been so closely connected with the act done as to obviously become a part of it, thus in some degree characterizing or elucidating the nature of the act itself. They must be in the nature of original, and not merely hearsay evidence. Whether made before, at the time of, or after doing the act, the court exercising a wise, judicial discretion in ruling upon their admission in evidence, must be able to say that such statements are so clearly a part of the res gestee as not to be the result of an afterthought, or to be a mere narrative of a past occurrence, otherwise it should exclude them. It might well be that expressions of a servant made before an injury occurs, indicating a knowledge upon his part of the danger about to be assumed by him and which results in the injury, may be given in evidence to charge the master with notice of the peril, where notice to him is necessary to be proven, but even in such case they should be confined to that purpose. This depends upon the rule that notice to the agent is notice to the principal; but after the injury had occurred, statements of the servant that he knew of the danger are not admissible to prove the character of the danger or to charge the master with notice, unless made at the time and under such circumstances as to make them a part of the transaction as stated above. Here it is sought to establish- the only material fact upon which the responsibility of the appellant can rest — the leaving of the switch open by its servants, by the statements of the servants made some time after the act is claimed to have been done, and after they had left the place, unloaded the train and returned. We are of the opinion that the statements should not have been admitted as they do not seem to be so closely connected with the principal fact as to make them admissible under the rule making the statements of third parties competent. The act had been completed and the parties had been attending to their other duties; they were detailing why the act was done and who did it, showing that it was but a narrative of a past occurrence and not a statement about matters then depending before them. This case falls within the ruling of C. & N. W. Ry. Co. v. Phillmore, 57 Ill. 266, and must be controlled by that case. Complaint, is mack that the court refused the fourth and fifth instructions asked by the appellant. An examination of the record shows that the fourth is almost identical with the second, which was given, and the fifth so nearly like the third, as to constitute no error in refusing it. As the case must be again tried we will not discuss the question of the negligence of the respective parties. For the reason stated the judgment will be reversed and the cause remanded.

Beversed and remanded.


text:
    Frederick Rudershausen et ux. v. Roger W. Atwood.
    Wife créditos of husband. — A wife who has loaned her husband 3noney stands precisely like any other creditor of the husband under the laws of this State and he has the right" to prefer her to them if done in good faith.
    Appeal from the Circuit Court of Madison county; the Hon. Wm. H. Snyder, Judge, presiding.
    Opinion filed June 12, 1886.
    This bill in equity was filed by the appellee to subject a house and lots, the title of which was in the name of the wife, the said Kate, to the payment of a judgment obtained by the appellee against the husband, the said Frederick. The bill avers that the lot was purchased by the husband and put in the name of the wife for the purpose of defrauding the complainant. The answer denied the material allegations of the bill, and averred upon their marriage, in 1884, the wife received from her father, one Jacob Haas, $1,500, which she loaned to her husband to be used in his business. That subsequently he failed in business and all his property, including the sum so borrowed of his wife, went to pay his creditors including complainant, except his wife, who had no share of the assets. That afterward, in 1882, he received about $1,800 as aback pension from the United States for injuries received while in the service, and with that he paid his wife, who purchased the property in controversy with it. Upon a hearing a decree was rendered for the complainant, and the defendant appealed.
    Messrs. Baker & Baker, for appellants.
    Messrs. Wise & Davis, for appellee.
   Pillsbury, P. J.

The -testimony relied upon by complainant to sustain the averments of his bill consisted solely of his own statements of a conversation he had with the defendants. Being asked if he had any conversation with either of the defendants, he answered: I had a heated conversation with him. I had been to his house to see his wife and I asked her if the property belonged to her, and she said it did. I told her that in the spring of ’78, when I had gone to St. Louis, I remarked to her that he told me that he expected some money on back pension and would settle all claims; and I asked her if that pension money was not used in the house. She gave me to understand that it was, but it was so muddled up I don’t just understand how it was; I afterward met him and he said when he was in business he used some of his wife’s money and he thought it but right to give her the pension.” On the part of the defendants the deposition of Jacob Haas, the father of Mrs. Rudershausen, was read, who testified that when his daughter married he gave her $1,500 in money and $500 in household furniture; that the money was received by him from his father, coming to him from the estate. The deposition of defendant Frederick, who testified to facts fully supporting the answer was read. Thus far the case had been heard upon the depositions alone; and in rebuttal the records and papers of the county court were introduced in evidence, showing that the father of witness Haas did not die until in 1866, and that in the inventory of notes and accounts there appeared a note of Fred. Budershausen dated Aug. 1, 1865, for $1,500. An application was then made by defendants to re-refer the case to the master so they could put in testimony explanatory of the proof -introduced in rebuttal supported by the affidavit of said Haas, in which he swears that if he stated in his deposition that he received the money from his father’s estate, he meant to state that he received * * * from his father some) time before his death the $1,500 as his probable share of the estate, and gave his note to be charged to him on the settlement of the estate ; and that in 1865 a new note was given his father with the defendants herein signing with him, which is the note named in the schedule ; also the affidavit of the defendant Budershausen corroborating that of Haas. The court overruled the application and rendered a decree as prayed for in the bill. The evidence relied upon by the complainant to establish his case is very unsatisfactory. Ho admissions of the defendant are shown of that convincing character that would alone justify a decree for the complainant. To disregard the testimony of the witness Haas and the defendant leaves the bill without sufficient proof to show that the transaction between .the defendants was fraudulent. Over twenty years had elapsed since the transaction between the parties, and it may well be that some of the details of it had escaped the recollection of Mr. Haas, but he is so certain and positive as to the gift of the money to his daughter, that we can not attribute to him the- crime of perjury in that regard because he may have forgotten the exact time he obtained the money or some other minor matters connected with it. The principal fact was whether he gave her the money ; and this is positively sworn to by him and the defendant Frederick,- and they ■ should not be convicted of falsehood upon mere inferences that may be drawn from the tiles of the county court without permitting them an explanation of any seeming inconsistencies between the papers and their testimony.” There was no evidence contained in the papers that the note signed “Fred Hudershausen” was given for the §1,500 Haas gave to his daughter. Without some proof showing the connections between the note scheduled and the money obtained from the father of Haas, it should not be inferred in opposition to the oaths of the two witnesses that it was given for that identical money. Considering their testimony as in the case and entitled to any credence, it establishes the fact of the gift to the daughter of the sum of §1,500, and that she loaned it to the husband, who never repayed it until he received his pension and she purchased the property with it. We are of the opinion that the bill is not sustained, whether the evidence of the complainant be alone considered, or in connection with that introduced by the defendants. That she stands precisely like any other creditor of the husband under existing laws of this State, and that lie has the right to prefer her to them if done in good faith, is sustained by the following authorities: Whitford v. Daggett, 84 Ill. 144; VanDorn v. Leeper, 95 Ill. 35; Tyberandt v. Rancke, 96 Ill. 71; Tomlinson v. Matthews, 98 Ill. 178. We think the case should be again heard, when all the proofs desired by either party may be introduced and a full understanding of the facts obtained.

The decree will be reversed and the cause remanded.

[Reversed and remanded.


text:
    Julia Zitzer et al. v. McAlpin Polk et al.
    Mortgage — Tax title. — Where a bill is filed against mortgagors to foreclose a mortgage, and a party who claims the mortgaged premises under a tax deed is made a party defendant, the court should dismiss the bill as to such person. The court has no jurisdiction to adjudicate upon an adverse legal title in such suit. The fact that the tax title was acquired after the mortgage does not change the rule.

      Ekkok to the Circuit Court of Richland county; the Hon. Wh. C. Jones, Judge, presiding.
    Opinion filed June 12, 1886.
    Bill by defendants in error against John Tan Gunter and wife, as mortgagors, to foreclose a mortgage making them and Charles Yon Gunter, who was in possession of the mortgaged premises under a tax deed, parties defendant. A supplemental bill was filed making Julia Zitzer defendant, she having purchased the premises of Charles after the original bill was filed.
    The plaintiffs in error, Julia and Charles, claimed to own the premises in fee by virtue of their tax deed. Charles, after answer filed and before hearing, having died, his administrator, John Yon Gunter, Jr., was made defendant.
    A motion was made by said Julia and the administrator of Charles to dismiss the bill, as to them, on the ground that the court had no jurisdiction to adjudicate upon an adverse legal title in that suit, which was overruled. A decree passed foreclosing the mortgage and setting aside the tax title, and this writ of error was sued out to reverse the decree upon that point.
    Messrs. Allen. & Fkitchey, for plaintiffs in error ;
    cited Gage v. Perry, 93 Ill. 176 ; Gage v. Board of Directors, 8 Bradwell, 410; Bozarth v. Landers, 112 Ill. 183.
    Messrs. Wilson & Hutchinson, for defendants in error.
   Pillsbury, P. J.

Gage v. Perry, 93 Ill. 176, was a case where a bill was filed to foreclose a mortgage, and Gage was made defendant under the averment that he claimed some interest in the premises. He answered setting up a tax deed under which he claimed the ownership in fee. A decree passed setting aside his deed and foreclosing the mortgage, and on his appeal the Supreme Court held he was improperly joined, saying: “In a bill to foreclose a mortgage not only the mortgagor but all persons claiming by, through or under him or his chain of title, are proper and necessary parties to the hill, and when such parties are brought before the court their rights may be passed upon and settled by a decree; but we have not been referred to a single authority which sustains the right of the complainant in such case to bring in a party who claims adversely and have such adverse title settled by decree. Indeed, we believe the authorities are all the other way.”

It was further said that when it appeared from the answer and proofs on the trial that Gage did not claim under the mortgage title and that his title was adverse and in no manner connected with the mortgagor, he should have been dismissed from the bill. Distinction is sought to be made between that case and the present inasmuch as the tax title in the present case was acquired after the mortgage was executed, while in Gage’s case it does not appear but that his title was prior in time to that of the mortgagee under the mortgage. The case of Bozarth against Landers, 112 Ill. 184, is a complete answer to this position. There Bozarth and wife executed a mortgage to complainants containing a covenant upon the part of Bozarth to keep the taxes paid upon the mortgaged premises, which he failing to do, Mrs. Bozarth purchased the same at a sale for delinquent taxes, and in due time obtained a deed therefor under which she claimed to be the absolute owner of the property. The court decreed a foreclosure of the mortgage barring all right and equity of redemption of the defendants in the premises. This was held to be error, the court saying: '• The question made on the argument of the validity of the title insisted upon by Mary Bozarth, and whether she could be permitted to acquire a title adverse to the mortgage title, were not fairly within the jurisdiction of the court to determine ; and it was error to bar her rights under her alleged deed, whatever they may be, as was attempted by the decree. She should have been left free to assert her title, whatever it may be, if the title of complainants under the mortgage should become absolute and they should seek to obtain possession of the premises in an action at law. The courts should give complainants no writ of assistance but should leave the parties to test the strength of their respective titles in the law courts where such matters are usually cognizable.” We deem these adjudications conclusive upon the question presented by this record. That plaintiff in error, Zitzer, derives her title from a source entirely disconnected from that of defendant in error, seems indisputable, and she and her grantor, Charles, claiming and asserting it to be adverse, the question of its validity can not be adjudicated in this proceeding, as it is not fairly within the jurisdiction of the court to determine,” as held in the above cited case. We can not consider the difficulties, suggested by counsel, that the complainants may encounter in the courts of law in obtaining possession of the mortgaged premises, if their title should become absolute, as the case falls within the rule announced in the Landers case and we must enforce it regardless of the results to either party, leaving its modification, if any should be made in this case, to the power that established it. The decree of the court below will be reversed and the cause remanded, with directions to the court below to dismiss the bill as to the administrator of Charles Yon Gunter, deceased, and as to Julia Zitzer and in all other respects, to decree as in its former decree.

Decree reversed.


author: Fills'subt, F. J.

text:
    City of East St. Louis v. James O’Flynn.
    1. -Injury to private property. — The term “ private property” in our present constitution, that is forbidden to be taken or damaged for public use without just compensation, is not limited to the tangible subject-matter or corpus of the property, but includes the right of user and enjoyment of it; and where the impairment or destruction of such right damages the owner of the property in excess of that sustained by the public, by the construction and use of a public improvement, the law gives him an action for such injury.
    2. Presumptions. — The jury were justified in inferring, in this case, that the city had established the grade and permitted the work to be done in the manner it was done, since the city reserved to itself the right to con-tool the manner in which the privilege conferred on the railroad company should be exercised.
    3. Opinion as to damages. — It was proper to allow witnesses to give their opinion as to the amount of damages done to plaintiff's property without first showing they were acquainted with the value of the property; but it was error to permit the wife of the plaintiff to testify in his behalf, over the objection of appellant.
    Appeal from the City Court of East St. Louis; the Hon. Wm. P. Launtz, Judge, presiding.
    Opinion filed June 12, 1886.
    The appellee is the owner of lot 9, block 28, in the First Ferry Division of the city of East St. Lonis. The lot fronts upon Third street and extends to an alley thirty feet wide in the center of the block ; Church street runs east and west on the. south of the block to Front street on the east bank of the Mississippi river. The next street south is Trendly street, extending parallel to Church street, and like it, intersecting Front street and crossing at right angles Second, Third and Fourth streets, and the alleys extending through the blocks north and south. The Cairo and St. Lonis Railroad having . acquired the land embraced within the limits of Front and Fourth streets, and Church and Trendly streets, for depot purposes, desired the vacation of the streets and alleys running-north and south from Trendly to Church street, so it might: have full control of the land within the limits above described,. Negotiations to this end were had with the city, which resulted in the passage of an ordinance by the city council,, vacating all streets and alleys between Front and Fourth streets, and: between a line running parallel with and seventy feet north-of Trendy street and Church street, and the railroad was allowed to enter upon and take possession of the same. Permission was also given to lay tracks across the streets in this division of the city. By section five of the ordinance the railroad company was required to conform the grade of its tracks across any of said streets to such grade as should be thereafter established by the city. It was provided that in consideration of these rights and privileges the railroad company should furnish to the city 2,500 squares of rubble stone within a reasonable time for the purpose of improving Frendly and Front streets contiguous to such depot grounds, and should also fill up certain described portions of said streets to a convenient grade, and sixty feet in width, free from expense to the city, the city furnishing a convenient barrow pit from which the material for filling could be obtained. The other provisions of the ordinance are not necessary to notice to a proper understanding of the case.
    The ordinance was accepted by the railroad company, which took possession of the land within the described limits, graded it up from four to six feet including the streets and alleys vacated, laid its tracks, and erected on the south line of Church street a high board fence extending from Fourth street nearly to Second street across Third street, and the alley running south through block 28. The railroad company also constructed large spouts extending into Chun h street for the purpose of carrying off the surface water that fell upon this filled land. A portion of the water thus thrown off into Church street,, it is claimed, runs over and upon the plaintiff’s lot, thereby depreciating its market value, either for the purpose of selling or leasing.
    The appellee commenced this suit, setting up the facts above stated and also his right to the use of Third street, and that his property was specially damaged by the vacation of the streets, the obstructions to travel along Third street, and the flowing of the water upon it from the spouts so emptying into Church street. The general issue being pleaded, a trial was had, resulting in a verdict and judgment against the city, and it appeals.
    Mr. Geo. F. O’Melviny and Mr. Garland Follard, for appellant.
    Mr. L. II. Hite and Mr. J. M. Fbeels, for appellee;

    as to damages, cited Rigney v. Chicago, 102 Ill. 68; Stack v. City of East St. Louis, 85 Ill. 377.
   Fills'subt, F. J.

The term private property ” in our present constitution, that is forbidden to be taken or damaged for public use without just compensation, is not limited to the tangible subject-matter or corpus of the property, but includes the right of user and enjoyment of it; and where the impairment or destruction of such right damages the owner of the property in excess of that sustained by the general public, by the construction and use of a public improvement, the law gives him an action for such injury. Rigney v. Chicago, 102 Ill. 64.

The earlier cases, which seemed to hold that it was essential to the right of action to prove some direct physical injury to the subject of the property itself, are no longer held as stating the true rule, as they are said in C. & W. I. R. R. v. Ayers, 106 Ill. 511, to be ovemiled by Bigney’s case, supra, and subreqnent ones. See also Provisions Co. v. Chicago, 111 Ill. 651, and Chicago v. McDonough, 112 Ill. 85.

The damages, therefore, that an individual may recover for injury to his property, need not necessarily be caused by acts amounting to a trespass to his real estate, but if his property be depreciated in value by his being deprived of some right of user or enjoyment, growing out of and appurtenant to his estate in the lands, as the direct consequence of the construction and use of any public improvement, his right of action is complete, and he may recover to the' extent of the injury thus sustained. C. & W. I. R. R. v. Ayers, supra.

Under these authorities, if the improvement made by the railroad company was authorized by the city and directly interfered with the use and enjoyment of the premises by the plaintiff, and the premises became in consequence depreciated in value, he ought to recover. Whether tilling up the grounds, as was done, and the erection of the fence on the north side of the fill, thus cutting off the plaintiff’s right of way to the center of the city by way of Third street, substantially injured his property, became a question of fact for the jury to determine under the testimony introduced at the trial. The defendant below gave no evidence to the jury bearing upon this question, and having carefully examined that given on behalf of the plaintiff, we think it fully sustains his position, that he was deprived of a substantial right materially affecting the value of his property.

The same conclusion upon the testimony is reached by us regarding the injury claimed to be caused by the flowage of the water from the surface of the fill through the spouts emptying into Church street, constructed by the company to carry off such surface water.

Indeed, appellant does not deny the claim of the appellee that he thus sustained injury to his property, but it is urged that there is no evidence that the city authorized or permitted the filling in of the streets and alleys, the erection of the fence, or the construction of the spouts which caused the damage. It will be noticed that the object of vacating the streets and alleys running north and south between Front and Fourth streets and connecting Church street with Trendy street, was to give the railroad company depot and track grounds unobstructed by street and alley crossings; and by the same ordinance the company was permitted to enter'upon and take possession of the streets and alleys vacated for such uses and purposes. The ordinance provided for the filling and grading of Front and Trendly streets adjoining the depot grounds, by the railroad company, to a convenient grade to be established by the city free of expense to it; and further that the company should lay its tracks upon a grade to be likewise fixed by it. The evidence is that Front and Trendly streets and the depot grounds were filled up to practically the same grade by the company, and the tracks laid upon such grade. From these provisions of the ordinance it is seen that the city reserved to itself the right of determining the grade of the proposed filling of the said streets, and that upon which the company should place its tracks, and when the grading has been done and the tracks laid, and no evidence appears in the record that the work was done in a manner contrary to the desires or the direction of the city, we must presume that the city not only permitted but authorized it thus to be done. If the presumption is to prevail that a ditch dug by the side of a public street was done by authority of the city, when no ordinance or order providing for any work to be done was shown, as in Chicago v. Johnson, 53 Ill. 91, or that a ridge of dirt extending into a street was placed there by like authority, as in Chicago v. Brophy, 79 Ill. 277, such presumption becomes much stronger when it is shown, as in this case, that the city reserved to itself the right to control the manner in which the privilege conferred should be exercised. The jury were justified in inferring that the city had established the grade and permitted the work to be done in the manner it was done. It is urged that error was committed in allowing witnesses to give their opinion as to the amount of damages done to plaintiff’s property, without first showing they were acquainted with the value of the property. This position is fully answered by the case of Spear v. Drainage Commissioners, 113 Ill. 632, where such opinions were held competent upon like questions. The plaintiff stated as a witness that the railroad company had taken the dirt to make the fill from a pit north of his premises, and that such pit prevented his egress from his premises in that direction and that and the water flowing upon his land had injured it. A motion was made to strike from the record all claims for damages arising from taking such dirt and for the injury by the water, which the court refused, and this is urged as error. If the motion had been confined to the making of the pit, the court would probably have sustained it, as no claim for such damages is averred in the declaration; but as the testimony concerning the flowage of the water was competent, the motion was too broad and no error was committed in disallowing it.

It is next urged that the wife of the plaintiff was allowed to testify in his behalf over the objection of the appellant, and was allowed to state her opinion of the damages to the premises. We are of the opinion this was erroneous, and if there was any conflict in the testimony as to the amount of such damages, we should be inclined to award a new trial; but the appellant did not contest this question by any proof whatever, introducing no witnesses on its behalf, while the plaintiff introduced some seven witnesses, exclusive of his wife, whose testimony is amply sufficient to sustain the verdict; in fact, if any liability existed the verdict could not have been for a less amount upon their testimony. From this it appears that the error worked no injury to the appellant, and is not, therefore, sufficient to reverse the judgment.

The plaintiff asked for no instructions to the jury and the defendant asked but two, the first of which was refused and the second given. The first requested the court to direct the jury to return a verdict for the defendant, which for the reasons stated heretofore, was properly refused. The second directed the jury not to allow the plaintiff for any damages caused by any act of the railroad company not authorized by the ci:y) from which it would appear that the. jury found that the city had consented to, or authorized the act, and as we have seen there was evidence teniing to show such fact, there is no just ground for complaint.

We think the verdict is sustained by the proofs and does substantial justice between the parties, and the judgment entered thereon will be affirmed.

Judgment affirmed.


author: Pillsbuby, P. J.

text:
    Niagara Fire Insurance Co. v. Frank Drda.
    Ihsubattce. — Where a policy of insurance contained the condition that if the building should be or become vacant or unoccupied for the purpose indicated, as a dwelling house, the policy should become void unless consent was given by the underwriters, it was error for the court to make the liability dependent upon the diligence of the assured to keep the building occupied. Such qualification was not contained in the policy.
    Appeal from the Circuit Court of Madison county; the Hon. Amos Watts, Judge, presiding.
    Opinion filed June 12, 1886.
    Action upon a policy of insurance issued by appellant to appellee, insuring his dwelling house, then in the possession of one Bitynger as tenant. The policy contained the condition that “if the building therein described became vacant and unoccupied for the purposes indicated in the contract, the policy should become void, unless consent of the company is indorsed in writing by the company.” The house was totally destroyed by fire, and upon- the trial below -to recover for such loss, the only question made was, whether at the time of the fire the building was vacant and unoccupied within the meaning of this condition in the policy. A few days before the fire the appellee served a written notice upon his tenant to vacate the house and surrender the possession to him. The evidence on the part of the appellant tends to show that Bitynger moved out of the house some two days before the fire occurred, while that of the appellee, tends to prove that he was at the house on the evening of the night that the house burned and that the appellee had made arrangements for another tenant to move in after the former one had moved out. Under the issue presented and the evidence bearing thereon, the appellant asked "die court to give to the jury three instructions, the first only of which it is necessary to notice, as the modification of that one by the court presents the point made and argued. It was as follows: “ The court instructs the jury, that if they believe from the evidence that the policy of the insurance upon which suit is brought in this case, contains a condition that if the building described therein should become vacant or unoccupied for the purpose indicated in said policy, unless consent in writing was indorsed by the company thereon, that then the said policy should become void; and if the jury further believe from the evidence that the building insured under said policy was destroyed by fire, and at tlie' time of such destruction was vacant and unoccupied without the consent of the company in writing indorsed on said policy, then the said policy was void, and the plaintiff is not entitled to recover.” The court modified said instruction by adding thereto after the words “ vacant and unoccupied,” the following: “ by the negligence or fault of plaintiff or his agents or servants; ” and so qualified gave it to the jury. The jury returned a verdict for the plaintiff, upon which the court rendered the judgment, and the defendant appealed.

      Messrs. Krome & Hadley, for appellant.
    Messrs. Burrougiis & Warnock, for appellee,
   Pillsbuby, P. J.

The condition in the policy, that if the building should be or become vacant or unoccupied for the purpose indicated, as a dwelling house, the policy should become void unless the underwriters indorse their consent upon the contract, seems absolute, and not in anyway or manner dependent upon the diligence of the assured to keep the building occupied. It is a stipulation that the parties had a right to make, and no improper means being employed to induce the appellee to enter into it, the courts should'enforce it as made and should attach no qualifications thereto not contemplated by the parties. The underwriter did not desire to carry the risk except when the building was occupied as a dwelling house, and stipulated to that effect, which was agreed to by appellee. While it was vacant and unoccupied the risk was that of the appellee, unless he should obtain the consent of the company in writing, and if he could not do so he could obtain insurance upon it as vacant property. Without notifying the company and obtaining its consent to carry the risk, he can not claim exemption from the effect of the condition because he had used reasonable efforts to rent it to other tenants. The binding effect of this condition did not depend upon the fact that he had used his best endeavors to keep the building occupied, but whether he had kept it occupied. Nothing is shown from which it can be inferred that it was impossible for him to comply with the condition or get the consent of the company in ease his tenant removed. Under the ruling of the court the plaintiff would be bound to recover even if the building was in fact vacant and unoccupied, provided the appellee was not guilty of negligence in permitting it to so become and remain, whether it is so. continued for one day, a month or year. With the hardship that the condition may impose upon appellee in this case we have nothing to do; and although we may doubt the wisdom or propriety of parties paying their money for indemnity under such strict conditions, yet as a court we have no right or power to add to or take from their contract any conditions or qualifications they have seen proper voluntarily to omit or insert. The construction of the policy is for the court, and the question of fact presented by this record is whether the building was vacant and unoccupied for the purpose named in the contract at the time it was burned, and we do not desire to express any opinion upon the weight of the evidence at this time as, for the reason stated, the case must be again tried at the circuit. As bearing upon the question discussed, we refer to the Hartford Ins. Co. v. Webster, 69 Ill. 392; Cook v. Continental Ins. Co., 70 Mo. 610; McCure v. Watertown Ins. Co., 90 Penn. St. 277, and the recent case of Farmers Ins. Co. v. Wells, decided by the Supreme Court of Ohio, January 20, 1885, and not yet reported. The error urged, that the court refused to allow the appellant to prove the statements of the son of appellee as to the time the house was unoccupied, we consider not well taken, as it does not appear that he sustained that relation to the plaintiff which would render his admissions competent. The proofs of loss, which were never shown to the appellant, containing a statement of when the tenant left the premises and signed by the plaintiff, and delivered to the appellant upon the trial and offered in evidence, we think should be allowed to go to the jury. It is true the statement was never delivered to the appellant, but as it was designed to be delivered, and contained an admission of the plaintiff as to a material fact in the case, the jury should have been permitted to consider it in connection with the other evidence in the case.

For the error indicated the judgment will he reversed and the cause remanded.

Judgment reversed.


text:
    James G. Gill v. William Hopkins.
    Promissory note — Alteration.—Where appellant signs a note for another as security to enable him to obtain, a loan from appellee, and the latter accepts the note, puts the date on it and loans the money, the putting the date to the note cotemporaneous with its delivery, would not be such a material alteration of its terms as to avoid it under appellant’s plea that he did not execute the note. . .
    Appeal from the Circuit Court of Clay county; the Hon. C. C. Boggs, Judge, presiding.
    Opinion filed June 12, 1886.
    This suit is based upon two promissory notes, one for $300, signed by appellant and one Slow, and the other of $50, signed by one Sackrider and purporting also to be executed by appellant. The dispute between the parties arises upon the $50 note. The appellant denied, by sworn plea, that he. executed that note. It appeared upon the trial that Sackrider brought the note to Hopkins December 27, 1882, signed by himself, with the name of appellant to it, and a mark, “ x,” purporting to be his mark, and desired to borrow money upon it. The note was not dated and the appellee put the date upon it, and accepted it and gave Sackrider the money. Hopkins had loaned money to Sackrider before upon the security of appellee, who had said he would indorse for Sack-rider. Before suit was brought Sackrider disappeared and it was supposed he was drowned. The appellee recovered upon both notes and the defendant appealed.
    Messrs. Cockrell & Monroe, for appellant.
   Pillsbury, P. J.

A note takes effect from the time of its delivery, and if appellant signed the note as security for Sackrider to enable him to obtain the loan from the appellee, the putting the date to the note cotemporaneous with its delivery would not be such a material alteration of its terms as to avoid it under the plea. In putting the date to the note, no fraudulent intent upon the part of Hopkins appears, and the liability of the appellant being in no manner varied by the addition of the date it must be held as immaterial. Vogle v. Ripper, 34 Ill. 100.

Hpon the question whether the appellant signed the note, or authorized or ratified the act of putting his name to it, the evidence is quite conflicting. Statements of his are proven which would fully justify the jury in the returning of the verdict which they did. The appellant denies that he signed the note or authorized it to be done, and also denies making the several statements sworn to by different witnesses. No instructions were asked by either party, and the jury finding the facts in favor of appellee, we are not authorized to interfere with their verdict where the evidence is so nearly balanced as it is in this case.

Judgment affirmed.


author: Green, J.

text:
    M. M. Thompson et al. v. J. F. Duff.
    Fraudulent sale. — IE the purchaser from a fraudulent vendor buys with notice of the fraudulent intent o£ his vendor, he stands in his vendor’s shoes and notice may be inferred from the existence of certain facts and circumstances that would place a man of ordinary prudence on inquiry with reference to the conduct of his vendor. The jury properly found from the evidence in this case that a pretended sale was made with a purpose to defraud the original vendor.
    Appeal from the Circuit Court of Jackson county; the Hon. Oliver A. Harkep, Judge, presiding.
    Opinion filed June 12, 1886.
    Mr. Wm. J. Allen, for appellants.

      Mr. W. W. Barr, for appellee.
   Green, J.

Appellants brought replevin in the Circuit Court of Jackson county against appellee to recover steam engine, boiler, sawmill, tools, etc., and upon the trial a verdict and judgment for appellee was rendered from which appellants took this appeal. We think the instructions given for the defendant below were right and those requested by the plaintiffs and refused were properly refused, leaving only this question for us to determine : was the verdict of the jury justified by the evidence, and the judgment thereon right? Although there was a conflict in the evidence the jury were satisfied doubtless from all of it that the property in controversy had been sold by the Mansfield Machine Works of Ohio to J. A. Woods, Wm. C. Woods and James H. Vaughn, by written contract, for $2,280, payable partly in cash, balance to be in installments secured by notes and chattel mortgage on engine, boiler and equipments, with the further conditions that no verbal contract different from the written terms could be made for or on behalf of vendor ; and also providing for the title and right of possession remaining in vendor until payment had been made. This contract is omitted in the abstract but appears in the record. The vendees did not make the cash payment or give notes and mortgage as agreed, but i cceived the property from the agent of the vendor; and it is not cHimed any payment was ever made except a jack valued at $200, delivered by Wm. C. Woods to Bennett, an agent of vendor, and an overpayment of $30 on freight, made by Woods to Bennett, which amount of $230 Woods testifies was to be applied on said cash payment.. But aside from the clause forbidding any change in the terms of the contract Bennett denies such application was made. Appellant Thompson claims one half interest in the property by his purchase from Wm. O. Woods of such one half for $600, estimated by Thompson to be the amount of damage he had sustained by delay and lumber badly sawed for him at the mill by the Woods. He says he also let Woods have $20 and some poplar lumber Wm. O. Woods testifies he sold to Thompson but does not state at what price, or how it was paid him. Appellant Lipe claims the remaining half interest in this property, and testifies he bought it of Wm. C. Woods August 10th — does not state the year — for §500, and gave Woods his note due in two years therefor; that he was the brother-in-law of Woods; owned no property liable to execution and had paid nothing on his note. Wm. C. Woods denied executing said written contract and testified he was the sole owner of the property at the time he sold to Thompson. And James H. Vaughn testified at the trial he still owned all the interest he had ever had in said property as vendee under the contract referred to and had never paid anything for it. Appellee Duff (as appears by the record hut not in abstract) testified he bought said property from Pany, agent of the Machine Co., August 8, 18V, for 81,975, paid §800 cash, gave his notes for balance, and had paid one of those notes, §300. The agent also testified 1o this sale. The Iona fides of the transaction between the appellants and Wm. C. Woods, relied upon to establish their title and right to the possession of this property, is the pivotal point in this case and this was a question of fact to be determined by the jury. So far as Lipe is concerned it does not appear he bought prior to the purchase by Duff; he gave nothing but the note of an insolvent maker, never took possession of or asserted any claim as owner of said property until the trial; and the circumstances surrounding the transaction sufficiently advised him of the fraudulent purpose of this pretended sale to him. The mere acceptance of a transfer of property without a valuable consideration has been held to he of itself a sufficient evidence of a participation in the debtor’s fraudulent intent. Bump on Fraudulent Con., 2d Ed., p. 197. As to appellant Thompson, in addition to his testimony before adverted to, other admissions in his testimony might well have induced the jury upon his testimony alone to doubt the fairness of his transaction with Wm. C. Woods. He says he bought on August 8, 1883, and knew as early as April of that year, these vendees of the Machine Co. had not complied with the terms of their contract, and that the vendor insisted on its right, by reason of such defau’t, to retake the property; the inode, amount and kind of payment he claimed to have made, his admissions that he had heard about the conditions of said contract before he bought, knew of the defawt of vendees to make payment thereon and did not care what the company claimed, and did not try to find out, all tend to show he is not a iona fide purchaser. With the notice he had he took the title of Wm. C. Woods as it was and no better. From all the evidence the jury properly found that appellants’ claim of ownership and right of possession of this property, acquired in good faith and for a valuable consideration, was not proven, but that the proof showed a pretended sale with a purpose to defraud the original vendor by putting the property out of its reach, participated in by the appellants and Wm. C. Woods. Such a transaction with such a purpose is a fraud the law will not countenance. “ If the purchaser from a fraudulent vendor buys with notice of the fraudulent intent of his vendor, he stands in his vendor’s shoes, and notice may be inferred from the existence of certain facts and circumstances that would place a man of ordinary prudence on inquiry with reference to the conduct of his vendor.” Cowling v. Estes, 15 Bradwell, 260 ; Bump on Fraudulent Con., 2d Ed., 200. In Grad'e v. Kern, 109 Ill. 563, where, as in this case, the evidence tended to show the sale was pretended, not real, but a device to put goods out of the reach of vendor’s partners, and vendee was a party to the scheme, he acquired no title to the goods, and a subsequent sale by the other partners on behalf of the firm passed a valid title to the subsequent vendee. In the case of Van Duzor v. Allen, 90 Ill. 500, a threshing machine was in controversy, and the purchaser failed to give notes and mortgage to secure payments as agreed, and vendee got possession of and used the machine, and vendor knew this fact; yet as between vendor and purchaser the trade was not so far executed as to pass title to the latter. The fact then having been found by the jury fairly, as we think, from the evidence, that the transactions between appellants and Wm. C. Woods were pretended sales, merely coupled with a fraudulent purpose, participated in by appellants, to put the property out of the reach of the original vendor, the rules of law applicable to such facts necessarily defeats the recovery of the property by appellants. And no error appearing requiring the reversal of the judgment appealed from, it is affirmed.

Judgment affirmed.


text:
    John D. Agnew v. Caroline Lichten et al.
    1. Chancery — Assiunment of dower. — The decree awarding the widow the possession of the premises set off by the commissioners, etc., was properly passed and recorded, and it was not essential to its validity that it should be signed by the judge.
    2. Chancery practice. — Where the court had jurisdiction of the subject-matter and of the person of appellant., the decree can not be attacked in a collateral proceeding for mere errors that may have occurred upon the hearing or in the decree.
    Appeal from the Circuit CourCof Monroe county; the Hon. Wh. H. Sykdee, Judge, presiding.
    Opinion filed June 12, 1886.
    In 1883 the appellee, then Fultz, as widow of Jacob Fultz, Sr., and some of the heirs of said Jacob Fultz, filed their bill in the Monroe Circuit Court to partition the lands of which he died seized and to assign dower and homestead to said appellee, making the other heirs and the appellant and some other tenants parties defendant. Summons was issued and served upon all the defendants, and such proceedings were had that the bill, so far as it proceeded for a partition of the lands, was dismissed, and commissioners were appointed to assign dower and homestead to said Caroline. The commissioners reported such assignment which was approved by the court, and a decree entered of record awarding her the possession of the premises so set off to her and requiring any of the parties to the suit who were in possession of the promises thus assigned to deliver such possession to her upon written notice so to do, and in default of their so doing that a writ of possession issue to the sheriff requiring him to put the appellee, Caroline, in possession of the lands. The appellant was in possession of some of the lands thus assigned to her and refused to surrender the possession upon notice, and a writ of possession was issued and placed in the hands of the sheriff for execution, and he thereupon filed the present bill to enjoin the proceedings under such writ, making the said Caroline and the sheriff parties defendant. Upon hearing, the bill was dismissed, and the record removed into this court by appeal.
    Messrs. Rickert & Michau, for appellant.
    Mr. Wm. Winkelman, for appellee.
   Pillsbury, P. J.

The argument of counsel for a reversal of this decree seems to he based solely upon what is claimed to bo errors in the original proceeding for the assignment of dower and homestead. It is suggested that the decree was not signed by the judge passing it and that it was surreptitiously placed upon the record without any order of court. There is nothing in the record tending to show that the decree was not properly passed and recorded, and it not being essential to its validity' that it should be signed by the judge (Dunning v. Dunning, 37 Ill. 306), the point urged can not be sustained.

There is nothing in the position assumed that the writ of possession was a nullity, because the decree did not provide for the service upon the defendant of a copy of the decree instead of a written notice. The court could have ordered under the statute that the writ issue at once without the service of notice or copy of the decree upon the defendant, and he has no cause of complaint in the regard complained of. It is clear the court had jurisdiction of the subject-matter and of the person of appellant, and the principle is well settled that in such case the decree can not he attacked in a collateral proceeding for mere errors that may have occurred upon the hearing or in the decree. We see no error in the decree and it will be affirmed.

Decree affirmed.


text:
    William C. Rich et al. v. David Gow.
    1. Road law — Questions as to necessity op boad. — Whether a proposed road will be more expensive to keep in repair than the old one, or whether a public necessity for the new road exists, are questions for the county authorities charged by statute with the duty of determining them before milking the order establishing the road, and their conclusions thereon are not a subject of review by the courts in a collateral proceeding.
    2. Same. — The mere fact that the order of the county board requires something to be done by the petitioners which the board has no right to compel, can not destroy the jurisdiction of the board to grant the prayer of the petition if the public interest demands it. The condition in such order that the costs and damages be paid by the petitioners will not render the whole order void.
    Eeeoe to the Circuit Court of "Union county; the Hob, Eobeet W. MoCaetjney, Judge, presiding.
    Opinion filed June 12, 1886.
    Bill in equity by defendant in error against the plaintiffs in error, praying for an injunction against them to restrain- the said Eich, as supervisor of roads, and the said Wallace, as a justice of the peace, from further proceedings to open a highway or to assess damages to plaintiff in error consequent upon the location of the highway over his lands.
    The bill alleges that the complainant is the owner of a valuable farm in said county of Union in a high state of cultivation and arranged with reference to the public highway which runs through it, in a most convenient manner; that such highway was re-located by the county commissioners’ court in 1878, and since its said re-location he has arranged his farm to conform to the new road and leveled down the banks of the old road, manured it and now lias it-under a high state of cultivation. That, at the December term, 1884, of the county board of Union county, a petition was presented by the defendant, William Eich, 8r., to again locate said highway upon said line, and viewers thereupon were appointed to survey and locate said highway as prayed for, and that two of said viewers reported in favor of said re-location, and one adversely to it,-and the county board adopted the report of the majority and ordered the road to be opened of lawful width upon the condition that the petitioners pay all costs and damages which might be occasioned by the building and construction of said road.
    Further avers that said Eich caused himself to be appointed supervisor of roads in the district where the proposed road is to be made, and that‘he as supervisor has caused suits to be instituted before plaintiff in error, Wallace, a justice of the peace, for the assessment of damages, against the complainant and one M. J. Barnum, which suits were then pending for trial. Avers that neither the public nor the county of Union has any interest in the result of the suits, the whole matter being remitted to the petitioners under the leadership of said Eich. That the re-location of the road will be of irreparable damage to him and to said Barnum, and that he has claimed the sum of $800 and Barnum $100, which is a reasonable sum for the. damages to them respectively, so far as money can compensate therefor.
    The bill then states that the road as already located is a good location and can be kept in repair as easily as the proposed one and that the road is being located for the benefit of individuals instead of the public. Makes the order of the county court an exhibit to the bill and asks that Eich and Wallace be enjoined from taking any further steps to open the road or to assess damages to the complainant. Temporary injunction was issued, and at the next term of the circuit court defendants appeared and entered their motion to dissolve the injunction for want of equity appearing upon the face of the bill, which being overruled they declined to answer, and the injunction was made perpetual, and they bring the ease to this court by a writ of error.
    Mr. D. W. Eabbakeb, for plaintiffs in error.
    Mr. W. S. Day, for defendant in error.
   Pillsbury, P. J.

The motion to dissolve the injunction operated precisely as a demurrer to the bill (Weaver v. Poyer 70 Ill. 567), and the question was thereby raised, whether the facts averred showed such a case as called upon a court of equity to interfere by way of injunction to prevent any further proceeding to assess damages and open the road under the statute. All the averments in the bill showing that the proposed road would be more expensive to keep in repair than the old one, or that no public necessity for the new road exists, can be passed without comment, as those questions are for the county authorities charged by the statute with the duty of determining them before making the order establishing the road, and their conclusions thereon are not a subject of review by the courts in a collateral proceeding. Sangamon County v. Brown, 13 Ill. 207. Nothing is alleged in the bill tending to show that the county board did not acquire jurisdiction to act upon the petition, appoint viewers and make an order establishing the road upon their report recommending it. No attack is made in the bill upon the sufficiency of the petition, or the time or manner of giving the notice required of the intended application to the board for its action upon the petition.

The principal point made by the bill and argued here for the relief prayed, is that the order of the county board granting the prayer of the petition and ordering the road opened upon the condition that the petitioners pay the costs and damages is a delegation of the powers conferred by the statute upon the county board to the defendants to control all the subsequent proceedings in relation to the assessment and payment of damages and final opening of the road as located by the viewers. We can not consent to the view that the order should be so construed. The petition was for a public highway for public use, and the viewers reported that the public necessities demanded it, and the county board in adopting such report must be considered as having determined the question of its utility aud necessity as a public way. To this extent it appears that it acted in strict conformity with the statute defining its powers and duties in that regard.

It may be conceded that the condition or requirement that the costs and damages be paid by the petitioners has no warrant in the statute, yet we are not prepared to hold that such requirement renders the whole order void. The statute has provided how the costs and damages are to be paid, and the requirement in the order that they shall be paid in any other manner can not be held to operate as a repeal of it.

Before the land of the complainant can be taken for public use his damages must be. assessed and paid, and he has shown by his bill that they are capable of admeasurement, and it would seem that he would have but a small interest in the question from what source the money is derived. The mere fact that the order requires something to be done by the petitioners which the board has no right to compel, can not destroy the jurisdiction of the board to grant the prayer of the petition if the public interest demands it. The condition relates to subsequent proceedings in the cause and may well be ignored or disregarded. The proceedings show the laying out of a public road in compliance with the terms of the statute, and the supervisor has taken the proper and necessary steps to have the justice assess the complainant’s damages, and until the damages assessed are paid or tendered the complainant can not be in danger of losing his land. • In case the county board fails or refuses to pay the damages no injury results to him.

Holding, as we do, that the condition in the order is invalid and the order re-locating the road within the power and jurisdiction of- xhe county board, there is no ground upon which complainant.at this time can ask a court of equity to restrain the supervisor and justice of the peace from proceeding to perfect the legal laying out of the road, by the assessment of damages.

The decree making the injunction perpetual will be reversed and the cause remanded with directions to the circuit court to dissolve the injunction and dismiss the bill without prejudice.

Decree reversed and remanded.


author: Pilltbury P. J.

text:
    St. Louis, Vandalia & Terre Haute R. R. Co. v. Christopher Faitz.
    Sealed verdict. — It is competent for parties to stipulate for the nonattendance of the jurors where a sealed verdict is opened and read in court, but a mere agreement for a sealed verdict does not have that effect nor deprive the parties of the right to have the jury polled. A rule of court as to sealed verdicts construed.
    Appeal from the Circuit Court'of Madison county; the Hon. Wm. H. Snyder, Judge, presiding.
    Opinion filed July 10, 1886.
    Action by appellee to recover damages for the killing of two horses and the destruction of a wagon, caused by a collision at the crossing of a public highway over the railroad of appellant. The negligence charged in the declaration is the failure to ring the bell or sound the whistle as required by the statute. ■ It appears from the record that on the day of the collision the plaintiff below and his son started to the timber to obtain firewood, each driving a team of horses attached to a wagon, the son driving in advance of the appellee. When the team driven by the son reached the railroad crossing, a locomotive belonging to appellant collided with it, killing the boy and horses and destroying the wagon. The appellee at this time was about two hundred yards from the crossing but in full view of it. The property destroyed belonging to the appellee, he brought this suit to recover for it. On the trial he recovered and the railroad compahy appealed.

      Mr. John G. Williams and Mr. Frank B. Bo'wman, for appellant;
    that the court erred in refusing to poll the jury, cited Johnson v. Howe, 2 Gilm. 342; Rigg v. Cook, 4 Gilm. 352; Crotty v. Wyatt, 3 Bradwell, 389.
    Messrs. Krome & Hadley, • for appellee;
    as to rules of practice, cited Beveridge v. Hewitt, 8 Bradwell, 473; Hinckley v. Dean, 104 Ill. 630; Pierce v. Hasbrouck, 49 Ill. 27; Koon v. Ins. Co., 104 U. S. (Otto) 107.
   Pilltbury P. J.

The testimony introduced upon the trial,

upon the question whether the appellant was guilty of the negligence charged, and the servant of appellee exercised the care required, is quite conflicting, and as the case must again be tried at the circuit, we do not deem it advisable to enter into any discussion of its weight or credibility.

There was n > claim made in the court below, neither is there here, that the appellee was guilty of negligence in trusting his son to drive the team. So far as appears he was fully competent for such purpose. Having put his son in charge of the team, he became responsible by relation for any negligence of his son contributing to the injury. Three instructions were given for the plaintiff, the first stating the statutory duty of railroad companies in crossing highways, to which no objection is taken. It is urged that the second instruction is open to the objection that it tells the jury that a failure to doth ring the bell and sound the whistle continuously for eighty rods before crossing the highway constitutes a prima facie case of negligence. If the instruction could fairly be said to bear such construction, the objection would be well taken, but while, perhaps, it is not as clearly expressed as it might be in this regard, when considered with reference to the first one defining the duties of railroads, it could not be understood by the jury as containing the idea suggested.

The most serious objection to this instruction is the same as that to the third, which is as follows: “If the jury believe, from the evidence, that the injury com lained of was occasioned by a collision between the team and wagon of the plaintiff and a locomotive engine of the defendant, on a public road, at a place where such road crossed the railroad of the defendant, and that the plaintiff used ordinary care and caution to avoid a collision, and that the collision was owing to the negligent, careless and unskillful manner in which the servants of the defendants managed the locomotive and train of cars attached, as charged in the declaration, then the jury should find a verdict for the plaintiff.”

This instruction substantially ignores the question of contributory negligence upon the part of the driver of plaintiff’s team, by making the test of liability of the defendant depend upon ,ts negligence, and the care of the plaintiff to avoid the injury. As we have said, the plaintiff did no negligent act.1 The most that can be claimed is that the law, under the circumstances proven, charges the plaintiff with the effect of the driver’s negligence upon the alleged liability of the defendant. It is not probable that counsel intended it as a proper statement of the law as to imputable negligence, and it is quite clear that the jury would not so understand it. They would very likely consider it as relieving them of the necessity of passing upon the question of the driver’s care, or want of it, if they found the plaintiff had exercised ordinary care to avoid the collision. The same objection applies to the-second instruction, which leads us to conclude that it was perhaps through inadvertence in writing the instructions that the care of the plaintiff was referred to as the test and not that of the servant; but the result of the error must be the same whatever the reason may have been for so drafting them. Exception was also taken to the action of the court in overruling the application of defendant for a continuance upon the ground of the absence of a material witness, resident of the State of Missouri. The testimony of the witness as shown by the affidavit was material to the issues involved, but in our opinion no sufficient diligence to obtain his deposition or attendance was shown, and no error was committed by the court in overruling the motion. Exception was also taken to the action of the court in refusing the defendant’s request to have the jury polled upon the return of the verdict into court. It appears from the special bill of exceptions, that when the verdict was returned into court there were only eleven jurors present, the other one being absent and reported to be sick, and upon opening and reading the verdict the attorney for defendant requested to have the jury polled, and the court refused the application, on the ground, as stated in the bill of exceptions, “that incase of a sealed verdict a polling of the jury rvas then and there not required,” and against the protest of counsel entered the verdict of record. Italso appears from the record that one of the rules of practice in that court provides that an -agreement on the part of counsel to receive a sealed verdict shall be considered and treated as a Avaiver of the right to poll the jury and to take any but substantial objections to the verdict; and it shall authorize the court to put the A'erdict in the proper form; and in all cases where a jury retires Avithout objection to a sealed verdict on the part of either party, a sealed verdict may be rendered.”

It was formerly the practice not to allow the jury to separate until their verdict was publicly announced in open court, and to compel them to agree they Avere frequently deprived of the necessaries of life during their deliberations; and if, before they had agreed, it became necessary for the court to leave the town where the case Avas being tried, the judges were not bound to Avait for them, but might carry them around the circuit in a cart, although, as Blackstone quaintly observes, they are not to be threatened or imprisoned. A much milder and more humane practice has, hoAvever, been adopted by the courts of this country. Here, it is true, we do not permit them to separate until they have agreed, but in the meantime they are furnished with all necessary refreshments, and if in civil causes they agree during a temporary adjournment of the court, they can be directed, and frequently are, to seal their verdict and return with it into open court Avhen it again convenes. This pract:ee is called returning a sealed verdict, Avhieh is nothing more than putting their finding in writing and placing it in an envelope which is sealed, and when the court is again in session the jury come in and give their verdict, in all respects as if it had not been sealed, and a juror may then dissent from it if, since the sealing, he, has honestly changed his mind. Bouvier, title, Sealing of a Verdict.

It is not believed that in thus relaxing the strictness of such ancient rules any inconvenience has been suffered, or the administration of justice been made less satisfactory or less effective or certain. And, personally, I believe that the more confidence we repose in jurors as men of sound sense and capable of appreciating the individual responsibility resting upon them as arbiters in the cause submitted to them, the more we treat them as reasonable men, the better will they understand and perform their duties, and justice and right be advanced thereby. The verdict thus returned by the jury into open court is to be treated in all respects as though they had not separated. It was settled as early as Johnson v. Howe, 2 Gil. 334, that upon a verdict being returned by the jury, a party to the cause had the undoubted right to poll the jury, inquiring of them severally whether they agreed to th& verdict announced, followed by Rigg v. Cook, 4 Gil. 338, that a denial of such right was error, and that it made no difference in this respect that the verdict was delivered sealed, and that a direction to the jury to seal up their verdict and separate does not dispense with the personal attendance of the jurors when the verdict is received, and if any of them dissent, the verdict can not be received. The case of Martin v. Morelock, 32 Ill. 485, was one where the parties stipulated that the jury, if they agreed, might seal their verdict, deliver it to the officer and separate, and upon presentation of a sealed verdict in open court, some of the jurors expressed dissatisfaction with it, on account of a mistake in computation, and the court directed them to retire and further consider of their verdict. The jury having reconsidered the assessment of damages, increased it, and the defendants assigned error upon this action of the court. The court held that the record did not disclose such a case as dispensed with the attendance of the jurors in open court when their verdict was received, and on their dissenting thereto the power of the court was unquestioned to compel them to again retire and reconsider it, notwithstanding their separation after they had agreed and sealed the verdict announced in open court. And this upon the ground stated in Riggs v. Cook, supra, that until the verdict, although sealed, has been accepted by the court and recorded, the parties have the right to have the jury examined by the poll, and any of the jurors may, until so recorded, dissent from the former finding, and that the only verdict recorded is the final one. This right to have the jury examined by the poll is a legal one, of which the parties to this suit can not be deprived without their consent; and an agreement merely upon their part that the jury may seal their verdict and separate, does not dispense with their attendance when the verdict is received, nor deprive any individual juror of his ¡Dower to dissent from the verdict thus agreed upon before separation, if he objects when opened and before it is recorded, upon being inquired of individually if the same be his finding in pursuance of such right thus vested in the party. But the law does not prevent a party from waiving such legal right to the presence of the jury when a sealed verdict is opened and read in open court, nor from depriving himself of the right to examine the jury by the poll; accordingly it was held in Pierce v. Hasbrouck, 49 Ill. 23, that where the parties to the cause stipulated in open court that the jury might seal their verdict and deposit it in the hands of the officer to be delivered to the clerk and then separate and not again return, into open court, it being the last day of their service, the delivery of the verdict to the clerk under such an agreement was tantamount to a delivery, and the court could render judgment thereon at that or the succeeding term of court. This case is distinguished in Bond v. Wood, 69 Ill. 282, from Rigg v. Cook, supra, in that it was competent for the parties to stipulate for the non-attendance of the jurors, when a sealed verdict is opened and read in open court, and the doctrine of the Rigg case re-affirmed that a mere agreement for a sealed verdict does not have that effect nor deprive the parties of the right to have the jury polled.

And the same rule is announced in the case of Griffin v. Larned, 111 Ill. 432. Li this case no agreement was made for a sealed verdict; but no great stress should be placed upon this fact, as we have no doubt that the circuit court in civil. causes can, in case of a temporary adjournment from day to day, and where it is probable the jury may agree before the re-convening of the court, direct the sealing of the verdict and the separation of the jury in the meantime, returning into court such sealed verdict when again in session. Yet, as we have seen, such direction does not deprive any party to the cause of his legal right to have all the jury present when such verdict is received, or of his right t > examine them' by the poll. If the rule of court, incorporated into the record, providing that an agreement for a sealed verdict shall have the effect of precluding a party from the exercise of his right to poll the jury, is to be construed as a valid exercise of the power to establish rules of practice for the proper and orderly transaction of business in the circuit court, then it must be considered as referring to an agreement for the. permanent separation of the jury after agreeing upon and sealing their verdict, thus making it harmonize with the Pierce case, supra, otherwise it can not but be held as depriving a party of a legal right secured to him by the law, as declared in the other cases above mentioned, without his consent, a power which we are not willing to concede is possessed by the circuit court, under the statute authorizing it to make, from time to time, all such rules for the orderly disposition of business before it as may be deemed expedient, consistent with law. Section 69, Ch. 37, R. S.

No express agreement being made for a sealed verdict, and a separation of the jury permanently being shown by the record, if the case falls within any provision of the rule of court it must be under the second clause of it, providing that in all cases where a jury retires without objection to a sealed verdict on the part of either party, a sealed verdict may be rendered. Conceding this portion of the rule to be valid, as being entirely consistent with the power of the court to direct a scaling of the verdict and a temporary separation of the jury,the failure to object to a sealed verdict is nothing more than an implied consent to such action of the court, and while waiving any objection to the return of the verdict, sealed by the jury after such separation, into open court, it can scarcely be so construed as to operate as an express agreement that the jury should not be present, or as a waiver of the legal right to poll the jury. It goes no further than a consent to a sealed verdict, which, as we have seen, when returned into open court by the jury is to be considered the same as though it were delivered ore tenus by the foreman of the jury.

We hold therefore that it was error to refuse the appellant the right to demand the presence of the jury and to examine them individually whether they were still satisfied with the verdict.

For the reason stated the judgment will be reversed and the cause remanded.

Judgment reversed.