author: Welch, J.

text:
    Board of Supervisors of Stark Co. v. The People ex rel., etc.
    1. Buildtng bridge — County furnishing aid. — It is not a condition precedent under section 19 of the act of 1883, relating to roads and bridges, that the money should have been provided prior to the action of the board of supervisors, making the conditional order payable only when the town asking aid shall furnish the other half of the required amount.
    2. Same. — The commissioners having done all which, under the law, (Act of 1883, § 19) they are required to do to entitle them to the granting of their petition conditionally upon the town asking aid furnishing the other half of the required amount, a writ of mandamus is awarded against the supervisors.
    Appeal from, the Circuit Court of Stark county; the Hon. T. M. Shaw, Judge, presiding.
    Opinion filed June 8, 1886.
    The relators filed their petition for mandamus against the appellants at the September term, 1885, of the Stark County Circuit Court.
    Petition states that relators are the commissioners of highways of said town of Essex; that said town is crossed diagonally by Spoon river, the largest stream in the county, by a circuitous route, thereby requiring bridges over said stream on north and south and east and west roads; that said town is required to and has maintained six bridges and one half of another across said stream, all large and expensive, and that the cost is burdensome to the people, and is nearly double that of other towns in the county, and that said town is justly entitled to county aid.
    The petition alleges that it is now, and has been during the past year, necessary for the public interest and convenience that a bridge be built over Spoon river on the highway running north and south through the center of section Ho. 23 in said town; that such bridge is a public necessity, and that said commissioners have determined to build the same; that they have estimated the cost of said bridge to be §3,200, which sum is more than twenty cents on $100 valuation of property in said town, on the latest assessment roll, viz., the assessment for the year 1884 — the assessment for the year 1885 not having been completed.
    This petition further represents that said commissioners levied, for the year 1884, sixty-eight cents on $100 valuation of the taxable property in said town; and that they have levied sixty cents on $100 valuation for the year 1885, and that the greater part of the sum to be obtained by said levy will be needed for the ordinary and necessary repair of roads and bridges; and the petitioners allege that they have raised, by ordinary taxation, and have in their treasury, one half the sum necessary to build such bridge, to wit, $1,600.
    The petition states that, after making such estimate, the relators attached thereto their affidavit that such bridge was necessary, and on the 13th day of July, 1885, presented to the said board of supervisors a petition setting forth the above facts, and the necessity of such bridge, and the inability of said town to build the same by ordinary taxation, and attached thereto their affidavit; that such bridge was necessary, and their estimate of the cost of such bridge; that said board of supervisors referred the same to a committee; that action upon the same was postponed from time to time, until on the 15th day of September, 1885, the said committee made report to said board, in open session, and recommended that the, prayer of relator’s petition be not granted; and that said report was approved and adopted by said board of supervisors.
    Wherefore, the relators pray that writ of mandamus may be issued out of said court, commanding said board of supervisors to meet forthwith and appropriate from the county treasury the sum of $1,600 to pay one half the costs of such bridge.
    1. The respondents aver and say that petitioners are not entitled to have a writ of mandamus, nor to the aid asked for, by reason of the fact, if it is a fact, that the number and cost of bridges in that town are greater than in other towns in said county, nor for the reason that the cost of maintaining such bridges may be burdensome upon the people.

      2. Defendants say that a bridge across Spoon river at the point designated in said petition is not necessary for the public interest or convenience, and that such bridge is not a public necessity.
    3. Defendants deny that the estimated cost of such bridge, to wit, the sum of $3,200, is more than twenty cents on the §100 valuation of the taxable property in said town, on the last assessment roll of said town, but aver that, on the contrary, said sum is less than ten cents on the §100 valuation of the taxable property in said town in the year 1884 and in the year 1885.
    4. Defendants deny that said commissioners levied sixty-e:ght cents on the §100 valuation of the taxab'e property m said town in the year 1884, or that' they have levied sixty cents on the §100 valuation of such property in the year 1885, and aver that such levies were made at the rates aforesaid ’ upon less than one third the valuation of taxable property in said town in those' years; and the defendants deny that the major part of such levy was, or is, needed for the ordinary repair of roads and bridges in said town, in either of those years.
    5. Defendants deny that said commissioners have furnished one half the amount required to erect such bridge; or that they have made any lawful provision for furnishing the-same; or that said commissioners have complied with the law entitling them to county aid to build such bridge; and respondents deny that said commissioners have raised, by ordinary taxation, or that they have in the treasury one half the money estimated to be necessary to build such bridge, to wit, $1,600.
    6. The defendants aver that the estimated cost of such bridge, to wit, the sum of $3,200, is extravagant, and more than is necessary for the erection of a bridge at the place designated in said petition, and that the public convenience and travel do not require so expensive a bridge at that place.
    7. The respondents aver that no valid or legal valuation of the taxable property in said town was made in the year 1884, nor in the year 1885; that the law requires all taxable property to be assessed at its fair cash value, and at such val-nation a levyof twenty cents on 8100 valuation of tlie taxable property in said town, in either the year 1884 or 1885, would raise a much greater sum than the aforesaid estimate of the cost of such bridge; whereas, the taxable property in said town in both of said years was unlawfully assessed and valued at less than one third its fair cash value, thereby requiring more than three times the rate of taxation to raise the required amount than it would had such property been legally assessed.
    Demurrer to 7th clause of defendants’answer.
    Pleas to remainder of defendants’ answer.
    Demurrer was sustained to the 7th clause of respondents’ answer. Trial by the court; jury waived ; judgment awarding the writ, from which judgment this appeal is taken.
    Mr. B. F. Thompson, for appellants.
    Mr. Miles A. Fuller, for appellees.
   Welch, J.

The proceedings in this case were instituted under section 19 of “An act in regal'd to roads and bridges in counties under township organization, and to repeal an ; ct and parts of acts therein named,” approved June 23, 1883, and in force July 1, 1883, the material provisions of which are that where it is necessary to construct or repair a bridge or the approach thereto in any town, the commissioners of highways in such town shall make a careful estimate of the probable costs of the same, and attach thereto their affidavits that it is necessary, and that it will not be made more expensive than is needed for the purposes desired, and they shall file such estimate and affidavit with a petition to the board of supervisors, praying for an appropriation for the one half of the estimated costs of such work. After this has been done they are required to sho w that the costs of the bridge will be more than twenty cents on the one hundred dollars on ¡the latest assessment roll, and that the levy of the roa ■ and bridge tax for that year in said town was for the full amount of sixty cents on each one hundred dollars allowed by law for the conlmissioners to raise, the major part of which was needed fertile ordinary repair of roads and bridges; when this has been shown the county board shall appropriate from the county treasury a sum sufficient to meet one half of the expenses of the said bridge, on condition that the town asking aid shall furnish the other half of the required amount. Under this law the commissioners determine the necessity of the bridge and make estimate of the probaffie cost of the same, and that it will not be made more expensive than is needed for the purposes desired, and attach thereto their affidavits. They present their petition, with the estimate and affidavit, to the board of supervisors, praying for an appropriation out of the county treasury for a sum equal to one half the expenses of the said bridge, and if they make it to appear that the costs of such bridge will be more than twenty cents on the one hundred dollars on the latest assessment roll, and that the levy of the road and bridge tax for that year in said town was for the full amount of sixty cents on each one hundred dollars allowed by law for the commissioners to raise, the major part of which was needed for the ordinary repair of roads and bridges, they have done all which, under the law, they are required to do to entitle them to the granting of their petition conditionally upon the town asking aid furnishing the other half of the required amount. There was evidence on the trial of the issues in this case that the bridge over Spoon river at the place described in the petition, “was rotten and unsafe; been condemned all summer; that the commissioners met and condemned it; that it was a wooden bridge, and had been built fifteen or sixteen yeai-s; the timbers were rotten and decayed.” That it was necessary for the public interest to have a new bridge built there; that the amount of travel on the road was as much as on any other road in the town; that the commissioners had made an estimate of the costs, which wras estimated at $3,200; that the costs of the bridge exceeded twenty cents on the $100 valuation of taxable property, as shown by the assessment roll of the last year; that the levy for road and bridge tax for that year was the full sum of sixty cents on each one hundred dollars allowed by law for the comtnissionei'3 to raise, and that the major part of it was needed for the ordinary repair of roads and bridges. There is also evidence tending to show that there were, in the treasury of the commissioners, funds sufficient to pay the one half, and set apart for that purpose. In the view we take, the necessity for the bridge and the estimate of its cost is made by the commissioners and evidenced by their affidavits. The facts that must exist and be made to appear to the board of supervisors are as stated ante. The difference between this statute and the one of 1879, of which this is an amendment, is obvious. The statute of 1879 required the commissioners to have provided their half of the funds as a condition precedent, and that the supervisors should make an unconditional appropriation of the other half. This statute provides that the appropriation shall be made on condition that the town asking aid shall furnish the other half of the required amount. It is not a condition precedent under this statute that the money should have been provided prior to the action of the board of supervisors, making the conditional order payable only when the town asking aid shall furnish the other half of the required amount. The authorities referred to of The People ex rel v. Supervisors, 100 Ill. 640; Town of New Boston v. Supervisors, 110 Ill. 197; Supervisors v. People, 110 Ill. 511; The Board of Supervisors of Kendall County v. The People ex rel. Commissioners of Highways of Town of Bristol, 12 Bradwell, 210, are all cases- decided under the law of 1879, and they each hold that the finding of the commissioners as to the necessity of a bridge would conclude the county board of supervisors; but upon the question whether a town has raised one half of the necessary funds for completing the'proposed wor c, the finding of the commissioners would not conclude the county board of supervisors and the courts from inquiring into the existence of such fact. These cases are not authority upon the question as to whether -it is a condition precedent that the town asking aid has provided one half of the necessary funds for completing the proposed work prior to the board of supervisors making the order of appropriation of the other half. That was necessary under the law of 1879, the order of appropriation being absolute and unconditional; but under the present statute the order is made conditionally upon the town furnishing the one half. The order only becomes absolute upon the town furnishing the one half required of it to be furnished. We are of the opinion the relators have shown a clear right to the writ of mandamus, and the judgment of the circuit courtis affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Horace Stocking v. Bradley J. Knight.
    Certiorari. — A petition for certiorari which stated tint the petitioner was informed by one of his attorneys, also by appellee’s attorney, that in lieu of his appealing, as he intended doing, a compromise was effected by the aforesaid attorneys by which he was to pay the costs of said suit and return his hor.-e as agreed, and the judgment of ten dollars was to be released agiinst him, and relying upon such information he did not appeal within the twenty days, but the judgment was not released against him. Held, that the petition does not state a sufficient reason for not taking an appeal.
    Appeal from the Circuit Court of Ogle county; the Hon. William Bbown, Judge, presiding.
    Opinion filed June 8, 1886.
    Mr. B. A. Knight, for appellant;
    cited Russell v. Pickering, 17 Ill. 31; First Nat. Bk. v. Beresford, 78 Ill. 391.
    Mr. D. W. Baxter and Messrs. Fowler Brothers, for appellee ;
    cited O’Hara v. O’Brien, 4 Bradwell, 154; White v. Frye, 2 Gilm. 65; Lord v. Burke, 3 Gilm. 363; Cushman v. Rice, 1 Scam. 565; Stout v. Slattery, 12 Ill. 162; McKing v. Newberry, 37 Ill. 91.
   Welch, J.

Appellant files his petition for a writ of certiorari, which writ was issued. Appellee moves to quash the writ and dismiss the petition, which motion was allowed, writ quashed, and petition dismissed, from which order this appeal is taken. The question presented is as tu the sufficiency of the petition. The statute requires that the petitioner shall show by his petition that the judgment before the justice was not the result of his negligence; second, that the judgment is unjust and erroneous; third, that it was not in his power to take an appeal in the ordinary way. The reason given by the appellant in his petition why it was not in his power to take his appeal in the ordinary way was “ that he was informed by one of his attorneys, also by the attorney for the appellee, that in lieu of your petitioner appealing, as he intended doing, a compromise was effected by the aforesaid attorneys by which your petitioner was to pay the costs of said suit and return his horse as .agreed, and the judgment of ten dollars was to be released against him,” and that he, relying upon the information received from the attorney aforesaid, did not take an appeal, and that he has paid the costs of the aforesaid suit, but the judgment has not been released against him, and that the appellee refuses to release said judgment and asserts his intention to abide by the aforesaid judgment, and that he was not made aware of this intention until after the twenty days for an appeal had passed.

Does this petition state a sufficient reason for not taking an appeal? We hold not. The attorney for the appellee had no right to give away any portion of the appellee’s judgment, nor to make any such agreement as is stated, and appellant had no right to delay taking an appeal on account thereof. “An attorney employed to collect a debt can only obtain judgment, have execution issued, receive and receipt for the proceeds; ” but he cannot compromise the debt, give day of judgment, receive less amount, or anything but money in satisfaction. Nolan, Adm’r, v. Jackson, 16 Ill. 273.

There is no pretense that the appellee made any contract, or that he did or said anything to influence the action of appellant in taking an appeal.

We hold that the petition was insufficient and that there was no error in quashing the writ and dismissing the petition.

Judgment affirmed.


text:
    Fred Peters v. Henry Sennett.
    1. Drain for agricultural purposes — Pleading.—An action of trespass quare clausum fregit. The defense set up was a proceeding under the “Act to permit owners of land to construct drains for agricultural purposes.” Held, that the plat filed in the plea of justification was sufficient under section nine of the act; but the plea is insufficient in not averring that the boxing that was placed in said drain was equally as good as tile. Section 4 of Act.
    2. Trespass. — Where, under the order of the justice, a party is given the right to enter the close of another and construct a drain in pursuance of the statute, if he fails to so construct such drain he is in law a trespasser.
    Error to the Circuit Court of McHenry county; the Hon. C. W. Upton, Judge, presiding.‘
    Opinion filed June 8, 1886.
    Mr. B. M. Smith, for plaintiff in error.
    Mr. A. B. Coon and Mr. R. N. Botsford, for defendant in error.
   Welch, J.

This was an action of trespass quare clausum fregit brought by the defendant in error against the plaintiff in error, to which plaintiff in error filed three pleas. 1st, general issue; 2d, license; 3d, plea of justification. The first and second pleas were withdrawn and special demurrer was sustained to the third plea. The defendant, now plaintiff in error, electing to stand by his plea, a jury was waived, and plaintiff’s damages were assessed by the court at twenty-five dollars and judgment entered therefor and costs, from which judgment this writ of error is prosecuted. The defense set up in the original plea of justification was a proceeding under an act of the general assembly of the State of Illinois, approved June 23, 1883, and in force July 1, 1883, entitled “An Act to permit owners of land to construct drains for agricultural purposes.” The sufficiency of this plea is the only question before us. The plea avers “that the defendant was the owner of a piece or parcel of land adjacent to the said close of the plaintiff, on which there was a small pond of water, which the defendant then and there desired to drain off across the said close of the plaintiff for agricultural purposes.” And to that end “he caused a plat to be made of the land so proposed to be drained, and of said close, across which said drain was to run, showing the starting point thereof, its proper course, and the point of its discharge, and filed the same with B. F. Ellis, one of the justices of the peace in and for said county.” * * * '‘And that after the defendant had filed said plat with said justice, he caused said justice to issue a summons against said plaintiff, which was duly served upon him by a constable of said county, and that afterward, on the day and date of the return of said summons, the said plaintiff appeared and answered to said cause, and a trial was then and there had before said justice under and in pursuance of said drainage act.” “And the question was then and there tried as to whether the defendant should have the right to construct said drain as represented on said plat across the said lands of the plaintiff, and the issues of said trial were by the said justice then and there found in favor of the said Henry Sennett, the defendant herein, ” and the following judgment ■ then and there rendered in said cause by said justice.

“On hearing the allegations and proofs, the issues are found for the plaintiff. And it is found that the plaintiff’s drain, if constructed, would empty into a natural watercourse or natural depression, whereby the water would be carried into a natural watercourse, in accordance with an act to permit owners of land to construct drains for agricultural purposes, approved June 23, 1883, in force July 1, 1883, and that the defendant would sustain no damages thereby. ”

“ It is therefore considered and adjudged that the plaintiff has the right to construct a drain upon the defendant’s land, according to liis- plat filed in this proceeding, and in pursuance of said statute, upon payment of the costs herein, and may thereafter enter upon the defendant’s premises at all times in proper season, for the purpose of repairing said drain as in said statute provided.”

The defendant avers in his said plea, that before he began said proceeding before said justice of the peace he filed a good and sufficient bond in said cause with said justice of fifty dollars, with sureties thereon, conditioned to pay all costs legally accruing in said cause, and all damages awarded therein, and that he, before he commenced the construction of said drain, did pay to the said justice the costs of said proceeding.

And the defendant avers 'that after the entering of judgment in said cause as aforesaid, he proceeded to construct said drain. To that end he cut a ditch, beginning at said pond on defendant’s land, a distance of about twenty rods in a northerly direction, until he came to the said lands of the said plaintiff, and that he continued with said ditch across the said lands of the said plaintiff, a distance of less than twenty rods, to the natural depression above referred to ; said ditch being about three feet in depth and about one foot in width throughout its entire length, and following the direction and location and distance as indicated by said plat, and that the said defendant then and there proceeded to lay tile in "the bottom of said ditch for nearly the entire length of said ditch, except for the distance of about twenty or thirty feet at the north end of said drain, in which the defendant put boxing made of plank, and then and there filled up the ditch, covering said tile and boxing, so that said tile and boxing were secure from the action of the frost, and the surface of defendant’s said land was then and there left in the same condition, as far as possible, throughout the entire length of said drain, as it was before said drain was constructed.

It was assigned as special ground of demurrer to this plea, that the plat filed is' too uncertain and indefinite to give the justice j urisdiction. Section nine of the act provides: Prior to issuing the summons in commencing any suit under this act, the plaintiff shall file with the justice a rough sketch or plat of the land to he drained, and that of all other persons across or upon which such drain is to be constructed, showing the starting point of such drain, and its proposed course across or upon the land of others, and the point of its discharge. * * * A failure to comply with the provisions of this section shall be a sufficient cause for the dismissal of the suit at any time before the trial is entered upon.”

We hold that the plat filed is sufficient under this section, and even if it had been insufficient, it would only have been cause for dismissal before the trial was entered upon. It is also insisted that the plea is insufficient in not averring that the boxing that was placed in said drain was equally as good as tile. Section four of said act provides: “ If the drain shall be constructed on or over the land of any other person or persons, without the consent of the owner or owners thereof, it shall consist of tile or some other material equally as good.”

There is no averment in this plea that the plank used in boxing was as good as tile. The rule of pleading requiring that a pleading should be construed most strongly against the pleader, we are forced to the conclusion that it was not as good, or the pleader would have so averred. Whilst under the order of the justice, plaintiff in error was given the right to enter the close of the defendant in error and construct a drain in pursuance of the statute in such case, yet if the plaintiff in error failed to so construct such drain, he is in law a trespasser.

“ When the law has given an authority, it is reasonable that it should make void everything done by the abuse of that authority, and the abuser, as if he had done everything without authority.” Bacon’s Abridgment, tit. Trespass, B. The plea in this case failing to aver that the plank used was of as good material as tile, was insufficient, and the demurrer was properly sustained thereto.

Judgment affirmed.


text:
    Amzi F. Jackson et al. v. William Rickard.
    Jurisdiction. — In a direct proceeding, where the record failed to show that the plaintiffs in error were parties to the suit, or that they had any notice of the filing of the petition on which the order complained of against them was made, or that any appearance was entered for them, and there were no findings that the court had jurisdiction of the plaintiffs in error, held, that the court had no jurisdiction of plaintiffs in error.
    Error to the Circuit Court of La Salle county; the Hon. George W. Stiff, Judge, presiding.
    Opinion filed June 8, 1886.
    Thomas Eyburn and Daniel E. Smith were partners in trade in the buying and selling of grain at Marseilles under firm name of Thomas Eyburn & Co., and in the course of their business they became the owners of certain property in that town known as the “Warehouse Property,” and the “Agricultural Works property.” Thomas Eyburn died June 28,1877, leaving the defendants in the original bill as his only heirs at law. Smith, the surviving partner, continued the business until the 19th of December, 1878, when he died, leaving a number of children as his heirs at law. On the 13th day of January, 1879, the heirs of Smith filed this bill against the heirs of Eyburn for the purpose of securing a settlement of the partnership business, and a distribution of the partnership assets on the 23d day of June, 1879. After the Eyburn heirs had filed their an ,wers to the bill all of the adult heirs and the administrator of the Eyburn estate, and the administratrix of the Smith estate, united in a contract of sale with Amzi F. Jackson, one of the plaintiffs in error, for the sale of the real estate of the copartnership; subsequently an amended and supplemental bill was filed, making William Eickard and I. In . Ash & Co. parties defendant, all of whom answered, and Eickard filed a cross-bill. Final decree was entered on the 21st day of February, 1880, which decree directed a sale of the copartnership property by the master in chancery.
    Under this decree a sale was made, and the agricultural works and the warehouse block were purchased by William Eickard. Immediately after the sale Eickard filed a petition in the cause setting up the making of the contract between Amzi F. Jackson, one of the plaintiffs in error, and the heirs of Byburn and his administrator, and the" Smith heirs and his administrators, and that subsequent to the making of the said agreement there had been removed from said agricultural works ■ property certain machinery, and that all of said machinery belonged to and was a part of the property called and described as the agricultural works property, ordered to he sold by the decree. He further claims in his petition that by reason of his purchase of the property he became entitled to it as it was at the time of the tiling of the hill, and that the making of the agreement between Amzi F. Jackson, one of the plaintiffs in error, and the Smith and Byburn heirs, was invalid and could not affect his rights. He prayed that an order he made requiring the parties to restore the machinery that had been taken from the agricultural works. On the 28tli day of May, 1880, an order was entered by the court approving the master’s report of sale, which order contained the following: That the said Amzi F. Jackson and the said
    Marseilles Manufacturing Company, or such other parties as may now he in possession of said machinery, he, and they and each of them are hereby required to replace said machinery on said agricultural works property in the position in which the same was prior to its removal, for the benefit of said William Eickard, under his said purchase ; and if they fail so to do on demand of said Eickard, and after service of a certified copy of this order, then, in such case, on application of said Eickard this court will order an attachment to issue against said parties for contempt of court.
    The errors assigned:
    1. The court below erred in entering an order in said cause that said Amzi F. Jackson and the Marseilles Manufacturing Company replace the machinery in said order mentioned, to-wit, said order of May 26, 1880.

      2. The court below erred in entering the order of May 26, 1880, in manner and form as the same was entered.
    Mr. H. T. Gilbert, for plaintiffs in. error.
    Mr. D. B. Snow, for defendant in error.
   Welch, J.

It is true, as said by Chief Justice Scott in Turner et al. v. Jenkins, 77 Ill. 231, that “ every presumption will be indulged in favor of the jurisdiction of a court of general jurisdiction;” and its findings in its decree defendants “ were duly summoned, will be held to.be prima fade evidence of the existence of that jurisdictional fact.” Mo such fact is found in this case. As to the plaintiffs in error, the record fails to show that they were parties to the suit, or that they had any notice of the filing of the petition on which the order complained of against them was made, or that any appearance was entered for them. This being a direct proceeding, and no findings that the court had jurisdiction of the plaintiffs in error, no presumptions in favor of its jurisdiction can be indulged. We hold that the court had no jurisdiction of the plaintiffs in error, and that the order made against them is void. The errors are well assigned. Cause- reversed and remanded.

Reversed and remanded.


author: Lacey, P. J.

text:
    H. P. Crowell v. William M. Druley.
    1. Title — Color not lost by tax deed to another party. — Color of title is not lost by virtue of a tax deed issued by the sheriff to another party.
    2. Statute oe Limitations. — The Statute of Limitations under the twenty year clause having begun to run against any person before his death would continue against any of his heirs, notwithstanding they might be minors.

      3. Specific performance. — The court finds in this case that the title to the lots contracted for, although not deducible from the government, is good beyond reasonable doubt, and affirms the decree for specific performance.
    Error to the Circuit Court of Will county; the Hon. J. MoRobeets, Judge, presiding.
    Opinion filed June 8, 1886.
    This was a bill in equity commenced in the circuit court January 31, 1881, by the defendant in error against the plaintiff in error, for the purpose of compelling the specific performance of a contract, the subject of which was the sale of real estate therein named, from defendant in error to the plaintiff in error.
    The contract bore date March 24, 1883, by which defendant in error covenanted and agreed to sell and convey to plaintiff in error, Henry P. Crowell, by proper deed of conveyance, with full covenants of warranty free and clear of all liens and incumbrances whatsoever, the following described real estate in the city of Joliet, Will county, Ill.; the description of the real estate and the contract being as follows :
    “ Lots Ho. (2 and 3) two and three, in block (107) one him. dred and seven, and lots Ho. (7 and 8) seven and eight, in block (98) ninety-eight, and lots Ho. (4, 5 and 8) four, five and eight, in block Ho. (99) ninety-nine, all in school section addition to Joliet, excepting and reserving therefrom the real estate now actually occupied by a feed mill located on said property; and convey also all the right, title and interest of whatsoever nature of the late firm of Druley & Johnson, in and to that part of Shelby street in said city of Joliet, lying between Pleasant street and the Des Plaines river, an! also that part of Pleasant street in said city of Joliet from the center of Jasper street to the west bank of the Des Plaines river, whether obtained by way of reversion or otherwise. Such conveyance to be made, executed and delivered on or before the first day of January, A. D, 1884, or as soon as the said party of the first part, by proper legal pro ceedings, can convey or cause to be conveyed, the title, right and interest to the heirs of his deceased partner, late William F. Johnson, in and to said above described real estate. The property hereby intended and contracted to be conveyed being the oat meal mill property of the late firm of Druley & Johnson, located at city of Joliet, aforesaid, together with all the machinery, tools, rights, privileges and appurtenances properly pertaining to said mill property; and also said Drilley’s leasehold interest in feed mill hereinbefore excepted, including extension of track, if awarded.
    “In consideration whereof the said party of the second part agrees to pay to the party of the first part the sum of twenty-five thousand dollars ($25,000), in the manner following: Five hundred dollars ($500) at the date hereof, forty-five hundred dollars ($4,500) upon the surrender of possession or tender of possession of the said party of the first part, twenty thousand dollars ($20,000) upon the tender of proper conveyance for said property. All deferred payments to be payable with and bear interest at the rate of six (6) per cent, pier annum, and all payments to be made at the office of the party of the first part, in the city of Joliet, Will county, Illinois.
    “It is mutually agreed that the said party of the first piart shall surrender to the said party of the second part the possession of said property at any time on demand after the first day of April, Í883, and the said party of the second part shall take possession of said property on or before the first day of May, A. D. 1883, and the said deferred payment of forty-five hundred dollars ($4,500) with interest, shall be due and pay_ alfie in any event, whether piossession is taken or not, on the said first day of May, 1883.
    “ It is further mutually covenanted and agreed, that time and the prompt performance of all the covenants and agreements herein contained to be kept and performed by the said party of the second part constitute the essence of this contract, and in case of default by the said party of the second part, in all or' either of the covenants herein by him agreed to be kept and performed, then in that case this contract may be declared forfeited and at an end at the election of the said party of the first part, and all payments made on account hereof forfeited to the party of the first part, and the party of the first part shall be entitled to the immediate possession of said property; or the said contract, at the election of the said party of the first part, continue in force, and the said party of the first part at liberty to collect all money hereby agreed to be ¡laid, in .any legal manner.
    “ It is further agreed that this contract shall extend to and be obligatory upon the heirs, legal representatives and assigns of the several parties hereto.
    “ In witness whereof the said parties hereto hereunto set their hands and seals, the day and year first above written.
    “William M. Deuley, [seal]
    “ H. P. Ceowell, [seal] ”
    The bill shows that on or about the first day of May, 1883, the plaintiff in error paid the sum of $4,500 on the contract and went into possession of the property, and that he and those claiming under him had remained in possession ever since; that the plaintiff in error, Crowell, a short time before the said first day of May, with other persons, organized a corporation under the general laws of the State, known as the “Joliet Meal Co.,” with the design that the company when fully organized should take the assignment of the contract from Crowell and take possession of the real estate and operate the oatmeal mill and ultimately acquire the ■ title; that on or about the fourth of May, the said Crowell assigned the contract to the corporation and turned .over the possession to the corporation, and from that time had operated the said mill as an oat meal manufacturing establishment, the said Crowell being president of the company; that the raid company had assumed to carry out the contract on the part of the said Crowell. The bill shows that the said real estate belonged to and continued assets of the late firm of Dudley & Johnson; that prior to the execution of the contract, said Wm. F. Johnson had died, and that at the date of the execution of the contract defendant in error was in the possession of the said real estate as the surviving partner of the late firm of Dudley & Johnson, of which facts the said Crowell was advised; that thereafter defendant in error exhibited his bill of complaint in the circuit court against the heirs of the said J olmson, among other things sel ting up the execution of the said contracts and praying for a confirmation of the same and for authority to make conveyance of the said property thereunder, and to convey the title of all the heirs of the said Johnson, and that a cross-bill was filed making the said Crowell a party defendant, and that afterward, at the September term, 1S83, of said circuit court, a decree was entered in the original suit, confirming the said contract and authorizing the defendant in error to convey said real estate as prayed for, exhibiting a copy of the decree.
    The bill further- shows that at the time of the execution of the contract, the lot was then incumbered by a mortgage of $5,000, of which said Crowell was fully advised, and that at the time of the execution of the contract, it was understood between the parties thereto, that the mortgage should be paid out of the purchase money. That within a few days after the entry of the said decree and prior to the first day of January, A. D. 1884, he advised said Crowell that he was ready to make conveyance as agreed, and assign the water lease upon the payment of the purchase money, or part of the purchase price remaining unpaid, and advised him that the said real estate was clear of all incumbrance except the said mortgagi, and that the said mortgage,, the notes secured thereby, and a proper release of the mortgage, remained in the First ¡National Bank of Joliet, ready for delivery upon the payment of the money due thereon, with six months’ interest, and that defendant in error desired to pay such sum out of the purchase money, but if Crowell insisted on it, he would take up said mortgage and have it released in advance of the payment, and that said Crowell then stated he need not do it, that the amount of the mortgage could be taken out of the purchase money, and that the title could be made to him or the oat meal company, when made as defendant in error might elect, and that he, Crowell, would determine after further examination, whether he would take the title; that soon after said Crowell and the oat meal mill company refused to take the title to said real estate. The bill charges that the value of the real estate has been impaired by changes made in the machinery by Crowell, and that valuab’e machinery had been removed, from the mill. That defendant in error, in order to save the water lease from the Illinois and Michigan canal, had been obliged to pay the rent, said Crowell refusing to do so. The bill alleges a willingness to perform the contract as well as the ability, and that said Crowell and the Joliet Oat Meal Company, allege that they are also willing and ready to perform in case defendant in error could make a good title to the premises, but that he could not do so, and therefore refused to take the title. And defendant asked the aid of the court to compel specific performance on the part of said Crowell, he refusing to perform on his part. The Oat Meal Company answered, disclaiming any right, claim or interest in the lots, mill or contract, and is out of the case. Plaintiff in error also answered, admitting the contract, the payment of a portion of the purchase money, and the being put into possession of a part of the premises, toavit, the lots, but not the portions of the streets mentioned in the contract, or the railroad track or extension. He also puts in a disclaimer as to the Oat Meal 'Company having any interest in the lots or mill, or that the contract was assigned to it. Admits that defendant in error and ¥m. F. Johnson were joint owners of the propertj7, hut disclaims knowing whether they owned it as partners. Admits the proceedings in the chancery suit and that a decree was obtained, requires the defendant in error to establish its validity, claims that defendant in error’s title to the property in question was not good, and that ho was so advised by his counsel, and that on the first day of January, 1884, defendant in error was duly informed in writing by authority of plaint-iff in error, that he could not accept the conveyance from the' defendant in error, and declines to accept the sa ne as the titfe was found to be bad, and refused to pay any portion of the purchase money. Denies that defendant in error ever tendered a deed, or any assignment of the water lease, and denies that he ever waived any such tender as a condition precedent to the payment of the purchase money. Denies that defendant in error prior to 1st day of January, 1884, had title to any part of said property, or had the power or ability to convey the same by good and sufficient warranty deed, etc., as the contract provided. That the foundation of the defendant in error’s title was tax title, and that he had no valid patent title to any of the lots on the 1st of January, 1884. That defendant in error had conveyed away certain portions of the streets, agreed to be conveyed to plaintiff in error, and that before 1st January, 1884, he had notice of it; that the streets were of great value, and that defendant in error never had any title thereto, and knowingly misrepresented the facts; that without the consent of plaintiff in error, defendant in error had made a new arrangement with the canal commissioners for water power and new wheel to be put in the mill, which change was not contemplated by the contract. Admits possession up to January 1, 1884, but denies changes in machinery, etc. Admits he refused to pay the water rent, because he could not get a good title to the property. Upon hearing, a decree of specific performance against plaintiff in error was rendered in favor of defendant in error.
    The plaintiff in error makes these points in his brief, among other things, for reversal, to wit: The defendant in error can not show a patent title deducible from the government, and insists that the title should be deducible of record. Upon a hearing of the case, the defendant, who had the affirmative, under ook to show that he had a good title to all the lots, the title to which he had agreed to convey, free and clear of all incumbrances, by showdng he had color of title, and that it was good as ngainst the true owner, by means of an acquired bar under the seven years limitation act of 1839, and also the twenty years limitation act, except as to lot 2,. block 107, to which he claims a perfect title, as well as the bar; the claims of defendant in error, and the objections of the plaintiff in error, are presented in the following manner: 1st. As to lots 7 and 8, in block 98, in school section addition to Joliet, defendant claims color of title by deed from the auditor of accounts of the State of Illinois, of date of January 13,1846, to Martin H. Demmond, being a tax deed, and claims the transfer of this color to him as follows: 1st. By will of M. H. Demmond to Sophia Demmond, two thirds, and to Catharine M. Hurray, one third; admitted to probate August 14,1854. By quit claim deed from Catharine H, Hurray to Sophia Demmond, February 1, 1855. By quit claim deed from Sophia Demmond to August Grassman, August 19, 1856 ; by deed from August Grassman, bachelor, to Conrad Grassman and Hary A., his wife, November 17,1859 ; by deed from Conrad Grass-man and Hary A., his wife, to August Grassman, July 24, 1866; by deed from August Grassman and wife to Henry S. Carpenter and F. E. Harsh, July 18, 1877 ; and by deed from the said Carpenter and Harsh and. wives to Walter Ford and Bobert S. Slater, August 4,1878; by deed from Walter Ford to Bobert Slater, Hay 7-, 1879 ; by deed from Bobert Slater and wife to Wm. L. Druley, Hay 22, 1879; by quit claim deed from Wm. L. Druley and wife to Bobert P. Slater, July 16, 1879; by deed from Bobert Slater and wife to Wm. H. Druley, July 17, 1879 ; again by another deed from Bobert Slater and wife to Wm. H. Druley, October 9, 1880. Wm. H. Druley conveyed an undivided half of these lots, as well as the others in question, to Wm. F. Johnson, his partner in the oat meal business, which, after the contract was entered into which the bill is brought to enforce, the circuit court, upon bill filed by Druley against Johnson’s heirs, ordered Johnson’s heirs’ interest to be conveyed to plaintiff in error under the contract.
    By way of payment of taxes, it is claimed and shown that Hartin H. Demmond paid all the taxes assessed on the lots from the date of his deed, 1846 to 1854, inclusive. The evidence shows that even prior to the year 1855 the said lots were vacant and unoccupied. That August Grassman, in 1857 or 1858, took possession of the lots, and lots 4,5 and 8 in block 99, and erected a dwelling house on lot 8, block 98, the house resting partly on the lot and partly on the street, and that he and those claiming under him continued suchpossessionup to the commencement of this suit, and are still in possession, and that the said Grassman quarried out all the merchantable stone on the lots. That Grassman, and those claiming under him, lived in the dwelling house and held actual possession for fifteen years consecutively. It is urged that defendant in error has a claim of the twenty years bar under the twenty years limitation act, as well as under the seven years bar, under the statute of 1839. August Grassman paid the taxes whilst in actual possession .for more than seven years.
    Against this claim of title it is urged by plaintiff in error that the payment of taxes made by Demmond failed to inure to the benefit of defendant in error because the title failed to pass from Demmond by virtue of the want of proper proof of the will of Demmond. The tax sale record shows a tax sale of all the lots to Charles Werner, in 1873, for city taxes and hence a break in the chain from that date. It is claimed that after the stone quarry was worked out in 1871, to the time the lots were occupied by the railroad track and scales in 1878, they were vacant and unoccupied. But the evidence fails to show that Grassman ever abandoned possession of the lots after the stone was quarried out, and Carpenter & Marsh took possession in July, 1877, the date of their purchase, as Marsh testifies. It is further urged that the deed from Catharine M. Castleberry, nee Murray, was not properly acknowledged; that the deed from Catharine Murray to Sophia Demmond, did not locate the lots as in the school section addition to Joliet. It is claimed that a certain tax deed from the city of Joliet to defendant in error, September 8,1870, was improperly conveyed by the mayor and clerk of the city to defendant in error, they having no such power, and that the city council could not ratify the act. To further make the title clear under the bar, the defendant proved that Charles Reed was the patentee from the State of Illinois, July 2, 1838, and the evidence fails to show that he ever divested himself of the title, and that Robert Stevens became the patentee to lot 8, in block 98, from the State, July 2, 18Í6, and that Stevens was never divested of the title, and the evidence shows that said Reed remained in the State till 1863, and that Stevens remained in the State till his death, and that neither of them was under the disability mentioned in the act of 1839. As to lot 3, in block 107, the defendant in error claimed good title by means of the bar of the Statute of Limitations, as follows: 1, by virtue of a tax deed from the sheriff of Will county to Rodney House, etc., April 25, 1856, which is claimed as color of title. The said House and wife conveyed his title to the said Carpenter & Marsh above named, June 1, 1874. The said Carpenter & Marsh conveyed the same to said Ford & Slater April 4, 1878, and defendant in error is shown to deduce title through Ford & Slater. Prior to June 1, 1874, this lot was vacant and unoccupied. That Carpenter & Marsh, upon their purchase, took immediate possession and continued in possession until the conveyance of the property and such possession has been continued to the time of the commencement of this suit. It is claimed that House paid all the taxes on the said lot each year consecutively from 1860 to 1872, both inclusive, being twelve continuous years; that after taking possession as aforesaid said Carpenter & Marsh and their grantees paid all. the taxes assessed for more than seven consecutive years. Thus a bar was created under each of the 8th and 9th sections of the seven years limitation act of 1839, and at the date of decree the limitation under the twenty years act had run. It was shown that Charles H. Reed was the patentee for this lot July 2, 1836, and it nowhere appears that he divested himself of his title, and that he lived in the State till his death, in 1863, and that he was under none of the disabilities named in the act of 1839. The objections raised to this title were that House had lost "his color of title; could gain nothing by the payment of taxes for the reason that his title had been supplanted by another tax title acquired in 1858 by another party; that Henry Law paid the taxes of 1865 (Ab. 47); that the lot was vacant from 1874 to 1877, then that Carpenter & Marsh owned it. But this appears to be a misapprehension, as Marsh swears that they were in possession. Assuming that the lot was vacant during the time that Carpenter & Marsh owned it, there would not be a complete bar under either section of the statute, 1839 up to 1882, when the lot was sold for taxes.
    As to lot 5 in block 99,. the deed from S. O. Simmons and wife to August G-rassman of Sept. 17, 1857, is claimed to be valid color of title. As to lots 4 and 8 in block 99, the deed from John Frederick and wife through mesne conveyance of Myron K. Branson to August Grassman of date of July 5, 1853, leaves the title to lots 4, 5 and 8 in B. 99 in August Grassman. He took actual possession of these lots in 1857. That he and those claiming under him maintained that possession to the time of the commencement of this suit, and all the merchantable stone not quarried out by him between 1864 and 1871. Since 1871 the said Grassman and his grantees have paid all the taxes assessed on these lots, making more than seven consecutive years. This it is claimed creates a complete bar under the 9th section of the act of 1839, as to the three lots, except so much of lots 4 and 5 in B. 99 as is occupied by Railroad street. The bar of twenty years limitation is also claimed.
    Mark Beaubien entered lots 4 and 8 in B. 99, from the State, July 2, 1836, and so far as the proofs show never conveyed. Mark Beaubien resided in the State till 1869, when he died, and was not under any legal disability named in the act of 1839. Martin H. - Demmond entered lot 5, block 99 (this lot not being worth over §50), April 3, 1835, from the State, and never parted with the title. He resided in the State till 1854, when he died, leaving no heirs, but making a will of all his real estate to Sophia Demmond and Catharine Murray. Neither he nor either of his devisees was under any disability named in the statute. ■' As against each of-these parties the statute commenced to run and was complete before their death, except Maria Demmond, as to lot 5, and as to that the proof shows that Sophia Demmond and Catharine Murray, now Castleberry, are still living and not under disability.
    The objections made by plaintiff in error as to the claimed bar as to these lots, are: Lots 4 and 8, block 99, were conveyed by the sheriff to Myron K. Branson for taxes 1839, July 38, 1844. The deed from Myron 3L Branson and wife to Mic, j i,li L. Adams of said lots 4 and 8, was objected to on the gn u ids of insufficient description of lots and defective acknow'ed rments; description - being “ to-wit, lots 4 and 8, in. block 99, in school section, T. 35, R. 11, E., Joliet” should be “ Sec. 1).” This locates the section six miles east of the city, and is not a good description as is claimed. Upon examination of the certificate the objection to it appears not to be well taken.. The deed offered from Micajah Adams and wife to John Frederick has the same defective description, as is claimed, as the one above last set forth, except the county and State is not in the description. The date of the deed is July 1, 1856. This deed is not acknowledged or witnessed and is not admissible. To cure this deed from Micajah Adams and wife, above described, a deed from the same grantor of date of January 2, 1884, to ¥m. Druley, of said lots 4 and 8, is introduced in evidence. The next deed from John Frederick and wife to August Grassman, dated July 15, 1856, is objected to on account of insufficient acknowledgment, but no special exceptions pointed out and the acknowledgment not being abstractive the acknowledgment must be regarded as good.
    The conveyance of S. 0. Simmons of lot 5, B. 99, by quit claim deed to August Grassman, September 16, 1857, is objected to as color of title because Simmons had firstly only purchased a portion of the lot at tax sale, and second, had never received a tax deed for it. Lot 8, B. 99, was sold to S. Goodspeed, for taxes of 1854, and not redeemed or deeded, and was forfeited to the State for taxes of 1857 and sold to Charles Werner for city taxes, of 1873. Plaintiff makes the same objection to the payment of taxes for 4, 5 and 8, B. 99, as is made to payment in 7 and 8, B. 98, that is, lots 4, 5 and 8, B. 99 came to Grassman in 1884 or 1865, and he occupied and quarried stone from the lots till 1871. In 1871, 27. W. Ban-non had the lots bid in for taxes, and Wcrner redeemed for Grassman. (This seems to be correct.) It is claimed that the lots became vacant in 1871 and remained so till 1878 till the railroad was extended on lot 7, block 98. (The claim that because Grassman quit quarrying stone in 1871, that therefore the lots became vacant till therailroad track was extended or until Carpenter & Marsh took possession can not be allowed under the evidence.)
    As to lot 2 in block 107, the defendant in error claims that he'has an absolute fee simple title from the general government derived through the State of Illinois, it coming to the State by an act of Congress. Jonathan Smith became the patentee from the State on July 2, 1836. Then Jonathan Smith conveyed to Jonathan Y. Scammon on April 5, 1836. Jonathan Y. Scammon conveyed an undivided one third to Richard J. Hamilton, July 29, 1836, and also the other undivided one third to Solomon Wills, July 30, 1836. Then Richard J. Hamilton and wife and J. Young Scammon and wife, April 12, 1837, convey the entire lot to Solomon Wills. Then Lucy L. Wills, Matilda M. Wills, William R. Lakeman and wife, Mary E. Lucy Wills, widow, heirs at law of Solomon Wills, deceased, by Ellen D. Wills, their attorney in fact, and Ellen D. Wills, legatee, conveyed to G. A. D. Parks, February 22, 1868. The power of attorney is shown Ellen- D. Wills, February 12,1868. Afterward, said Parks conveys to Slater & Druley, and then defendant in error by deed from Slater becomes vested with title.
    The objections urged by the plaintiff in error to the sufficiency of title are as follows : The lot was forfeited to the State for taxes for 1840, and was sold'to M. H. Deminond for taxes of 1840 and again for 1843, and was sold to Giles Heath for city taxes of 1850, and to Harvey Law for taxes of 1862, and to M. Maher for taxes of 1865, and to Wm. Gusson for taxes of 1882. The certificate of acknowledgment to the deed from Smith to Scammon, April 5,1836, is objected to because it has no beal, being taken by recorder of court, record of deed being offered, the seal shown in abstract not being in record as is claimed. It appears that the deed was acknowledged in the State of Pennsylvania before David L. Storm, Clerk of Cambria County Court, the same being a court of record; this is in the certificate and the acknowledgment is signed by him as recorder. The record of the deed from J. Y. Scammon to Hamilton, above set forth, is objected to for the reason it is claimed that Hamilton, the grantee, took the acknowledgment of the deed himself. The record of the power of attorney from the Solomon Wills heirs is objected to on account of the want of the certificate of the secretary of state of Illinois which was not attached to the certificate of acknowledgment of the commissioner of deeds who took the acknowledgment, resident in the State of Kentucky, dated February 12,1868. (Statute of 1851 required it, 2 Sess. Laws 143, not repealed till February, ’57, laws ’69 makes change in it — and the power and deed are objected to for this reason.) The deed from Parks to Slater & Druley only conveys one fourth of the title for this reason, and because no title passed from Smith to Scammon, or from Scaminon to Hamilton. There could be no bar on account of the payment of taxes for three reasons: 1. Because the lot was vacant and unoccupied from June, 1874, to 1878, that is from the time Carpenter & Marsh purchased from HoiNe till they sold to Ford & Slater. It is claimed that actual possession commenced with Ford & Slater. Therefore payment of taxes from 1874 to 1881, inclusive, could not avail to create a bar, for payment of taxes partly under one section and partly under the other of the statute of 1839, can not be joined in order to make out the seven years, and the lot was sold for taxes of 1882.
    Mr. S. W. Randall, for plaintiff in error.
    Messrs. House & Fry, for defendant in error.
   Lacey, P. J.

The first important inquiry is, had the defendant in error such a title as he agreed to convey — that is, a warrantable title, free and clear of all liens and incumbrances. It is not claimed by defendant in error that he can show a title deducible from the United States, the source of all' land titles, or one that is deducible of record except, perhaps, as to lot 2 in B. 107, mentioned in the contract. His claim is that he has a title by limitation based on such firm foundation that there can exist no reasonable doubt of its validity and superiority to all titles that come against it. Such a title he is compelled under the law to make out as to each of the seven lots named in his contract, because the contract is a unit. To an examination of the question as to the validity of his title we will address ourselves. We will first examine the question of possession, leaving the other questions involved to be considered afterward.

As the question of limitations to an important extent arises under sections 8 and 9 of the limitation law of 1839, the inquiry becomes important as to whether the lots were vacant and unoccupied or in actual possession of the party claiming the color of title at the time of the payment of the taxes by the holder of such color as well as the particular period at which actual possession was taken of the several lots.

The first inquiry will be as to those conditions. There is some dispute between counsel for the respective sides over these points. There are seven lots in question and actual possession was taken of those lots at different periods. But first it is agreed until 1855 all the lots were vacant and unoccupied, and that no one had ever been in actual possession up to that time, of either of the lots. The main point of dispute as to taking and continuing possession is as to what was the condition subsequent to that time.

Lots No. 2 and 3 in B. 107 were taken possession of at a different period than that of the occupancy of the other lots, 7 and 8 inB. 98 and 4, 5 and 8 in B. 99. First woVill inquire as to the possession of the first named lots. These two lots were conveyed by Rodney House to Carpenter & Marsh on the 1st day of June, A. D. 1874. Prior to that time the lots were vacant and unoc/upied and ever had been. Frank E. Marsh testifies that he was a member of the firm of Carpenter & Marsh and was acquainted with the lots. “We bought the whole block of Rodney House, I think, in 1874. We went into possession at the time of the purchase, I think in the spring of 1874; continued in possession until 1878, then sold to the firm of Ford & Slater. They began at once erecting the oat meal mill, the one on it now. Prior to the purchase it (the block) was vacant and unoccupied.” “While we held it, our possession was not questioned, or our title objected to.” This was substantially all the evidence on the disputed point of possession from 1874 to 1878 of these lots. It is insisted by counsel for plaintiff in error that this is not sufficient proof of “ actual possession.” There should have been labor or expenditure of some sort shown. The word possession implied actual possession. It is a legal term known to the law and implies certain acts, as is claimed, and “ those acts should he proven.” This witness was allowed to testify that they went into actual possession, and so remained without, any question or objection. He swore to a fact, the fact of possession, without being cross-examined, in order to bring out the particular facts. The court could but take his testimony as he gave it — and rve must be satisfied with it. Ho evidence was given to contradict it. We then hold that there was aetu d possession of these lots by Carpenter & Marsh from the 1st of June, 1874, till 1878, when they were sold to Ford & Slater, and that such possessiqn has continued ever since.

As to the other five lots mentioned it is claimed that August Grassman was in actual possession from and after 1857 or 1858, and we find on the evidence of Werner, that to be a fact. The only evidence we find is the testimony of Charles Werner, who testifies: “ During all the time from 1864 to 1871 Grassman occupied those five lots and quarried stone on them ; I think they (Grassmans) built a house there in 1857 or 1858. They lived there all the time till he sold, in 1878 or 1879.” * * * “ The quarry was on all five of the lots, and they built a house in 1857 "or 1858, three fourths in the street and one fourth on the lot — not quite three fourths, about one third on lot 8, block 98, and two thirds in the street. I never knew of Grassman’s rights and interests being questioned or attacked.”

It is claimed under this testimony by plaintiff in error that Grassman abandoned the actual possession of the lots in 1871, because he had worked out the stone quarry, but we fail to see any evidence of this fact, nor can we see that this is a legitimate deduction from the evidence. Besides this, Grass-man held his house on one of the lots, which was possession of itself of at least that lot, and as the house had been used for the benefit of the quarry, without further evidence the house and improvements would hold possession of all. Therefore we must hold that actual possession continued on these five lots from 1857 or 1858, till the decree was rendered herein.

The next question then is, had the defendant in error color of title and payment of taxes for the requisite number of years, or had he twenty years actual and uninterrupted possession. As to lots 7 and 8 in block 99, we find that Martin H. Demmond, under whose title defendant in error c'aims, had a tax deed from the auditor of state of Illinois, dated Jan. 13, 1816. The defendant in error became connected with this title, by regular conveyances through different intermediate holders, and so held the title at the time his deed was tendered to plaintiff in error, and th e time of the final decree. The proof shows also that Demmond paid all the taxes assessed on these lots from the year 1816 to the year 1855, both inclusive, a period of ten years. This was while these lots were vacant and unoccupied, thus creating a complete bar under the 8th section of the statute of 1839, and it had been complete some thirty-nine years prior to the time the decree was rendered herein. Besides this, the actual possession of these lots was taken by Grassman, he building a house on one of them, lot 7, in 1857 or 1858, and that the lots have been in possession ever since. This would also create a complete bar under the statute of twenty years prior to the decree.

Stevens and Beed, the respective patentees of the lots in 1836, died in this State, and neither of them was under any of the disabilities named in the act. We think that the time that the limitations had run in regard to this lot, and the long and uninterrupted possession of these lots, would render the title morally certain and secure. Bor can we see any objection that can arise to the introduction of the will of Martin H. Demmond. The will, the affidavits attached, and the order of the county court admitting it to record, were shown, and this is all that is required. The sale in 1873, of the lots, for city taxes, could avail nothing, as it has never ripened into a deed. The objection that the deed from Catharine Castle-berry, nee Murray, to Sophia Demmond, did not properly locate the lots, is not well taken. However much objection there could be to the description, the deed has been corrected by subsequent conveyance to defendant in error by Catharine Castleberry, and as to the acknowledgment, we see no fault with it. We think the deed conveying the tax title of the city of Joliet, by the mayor and clerk of the city, and being subsequently ratified, would be sufficient to convey any title the city had ; besides, this deed seems to have been void for want of a valid judgment or precept.

As to the title of lot three in block one hundred and seven, color of title is to be found in Rodney House, by tax deed from the sheriff of Will county, dated April 24,1856. Rodney held this title till June 1, 1874, when he sold it to Carpenter & Harsh, who took immediate and actual possession of it, but up to that time it remained vacant and unoccupied.

It appears from the evidence that House paid all the taxes on said lot for each consecutive year from 1860 to 1872. It is claimed by plaintiff in error that Harvey Law paid the taxes for 1865, but we find no evidence of that fact, even if the record showed, which we think can not be claimed, that the lot was assessed in Law’s name ; yet George S. House testified that he paid the State and county tax on it for Rodney House for 1865. The objection that he lost the color of title by virtue of another tax deed from the sheriff to another party, is not well taken. Color is not lost by the occurrence of such fact. Carpenter & Marsh, and those claiming under them, paid the taxes each year, from 1874 to 1882, when the lot was sold for taxes. This makes over seven consecutive years payment of taxes on this lot while it was in actual possession. This creates a bar both under the 8th and 9th sections of the act of 1839. But we think that the claim set up by defendant in error, that the twenty years limitations had run, can not be sustained for the reason that the lot was not in actual possession, which the law requires to make out a bar under that law, until 1874, and since that twenty years time has not elapsed. Charles Reed, the patentee of this lot in 1836, died in this State in 1863, and never was under any of the disabilities named in the act, and he had never conveyed the lot. The statute had begun to run one year before his death, and having commenced to run. would continue against any of his heirs, notwithstanding they might be minors.

We will next consider lots 4, 5, and 8 in block 99. The color of title to these lots is claimed as follows: First, to lot Ho 5, which is shown to be worth only about $50, we find a deed from S. O. Simmms and wife to August Grassman, dated September 17, 1857. This was tax title. Then as to the remaining two lots, the tax title of John Frederick and wife through mesne conveyances of Myron K. Branson to August Grassman, dated July 5, 1856. The objections to this color of title from Myron K. Branson to Micajah L. Adams and from said Adams to .John Frederick on account of defect in description of lots and for other reasons, are not well taken, for the reasons that it is not necessary, in order to vest good color of title to the lots in Grassman by virtue of his deed from Frederick, that the title should be connected Avith any source of title Avhatever, so that it is not necessary to consider such objec ion. The objection to the certificate of acknoAvledgment to the deed to Grassman above named, from Frederick, is not pointed out specifically or the certifi.cato abstracted, and for this reason Ave mast regard it as not Avell taken. The objections to the deed from Simmons to Grassman above mentioned, of the same nature, viz., that. Simmons never had a tax deed, and the lot had gone to sa’e after his tax purchase and was sold afterward, are not good as above decided. Then the color of title to lot 5 Avas in Grassman, September 17, 1877, and as to the other lots July 5, 1856. As has been shown said Grassman took actual possession of these lots in connection with lots 7 and 8, in block 98, in 1857 or 1858, and built a house on lot 7, and has had actual possession till he sold to Carpenter & Marsh, and the lots have so remained ever since, in actual possession in the various grantees of Grassman.

Taxes were paid on these lots by Grassman, and those claiming under him from 1871, which makes payment of taxes for more than seven years while Grassman and his grantees were in actual possession under color of title. Besides the Statute of Limitation of twenty years had run from 1857 or 1858 Avhile the parties were in actual possession. ' Mark Beaubien entered lots 4 and 8 in said block, in 1836, never conveyed, and lived in the State until 1869, when he died. Martin H. Demmond entered lot 5 in 1835. He resided in the State till 1854, when he died, devising the lot to Sophia Demmond and Catharine M. Murray. Neither Beaubien, Demmond or his devisees were under any disabilities mentioned in the act of 1839, and the said devisees are still alive and under no disabilities nor were they at the time the title came to them. It seems as though the title to these lots was good without any reasonable doubt. The fact that the lots Or some of them were sold for city taxes in 1873, could not defeat either of the above named bars.

As to lot No. 2 in block No. 107, the defendant in error claims that he has shown a clear title derived from the State of Illinois, this having been scln ol land belonging to the State ceded from the government of the United States.

It is claimed by the plaintiff in error, the record of the deed from the patentee to Scainmon, one of the links in the chain of title, should not have been admitted in evidence, claiming that the certificate of the acknowledgment of the deed does not show the official seal of the clerk of the Cambria County, Pennsylvania, Court, before whom the acknowledgment was taken. We find this claim to be an entire error in statement, as by reference to the record the seal appears. This alleged error having no foundation in fact, the court below committed no error in admitting it in evidence. The objec. tion to the other deeds completing the chain of title to this lot are without foundation or merit, as well as to objections on account of taxes and deeds. Therefore, the title to this lot is good in defendant in error. This then completes the title to all the lots in question, and we think it good beyond any reasonable question or doubt, and so far as the complaint to the title is concerned it is not substantial. The title to the undivided half of the Johnson heirs in the lots was, as far as we can discover, procured in the manner contemplated by the agreement, and there appears to be no substantial defect in the proceedings. It is complained that the deed to the lot in question was not tendered in time by defendant in error, or the title to all the lots perfect in time, January 10, 1884. This objection is sufficiently answered by the 'fact that the time in which the deed was to be made was not of the essence of the contract; the time, however, in which the payments were to be made, was. The contract was unilateral in this respect. If the defendant in error had a good title at the time the decree was rendered it would be sufficient. The title to the feed mill on the property was not to be warranted, and only a quit claim deed was to be given by defendant in error to that portion of Shelby street in Joliet lying between Pleasant street and the Des Plaines river; and that part of Pleasant street, in said city, from the center of Jasper street to the west bank of the Des Plaines river was in the same condition. And the same was true as to lease on the extension of the railroad track when it was awarded, and no fraud appears in procuring the extension of the contract, or misrepresentation of defendant in error such as to forfeit the contract. The plaintiff in error knew well what he was buying, or could have known so by reasonable care.

In regard to the water power diverted from Des Plaines river to the oatmeal mill property,we find the facts to be that before this contract had been entered into, the lease from the Illinois and Michigan canal to Druley, defendant in, error, had been declared void by the courts (see Druley v. Adam, 102 Ill. 177), all of which plaintiff in error knew,, and steam was put into the mill, he not relying on the waterpower. The taking of the new lease by defendant in error of the water power could work no injury to plaintiff in error, and he need not accept it unless he chooses, if he did not agree to the lease. But we think the evidence and circumstances pretty clearly show that he consented to the new lease, of which he now complains.

We see no objection that appears to us tenable urged by plaintiff in error against his carrying out the agreement on his part. We therefore think that the decree in this (case should be affirmed.

Decree affirmed.


author: Baker, J,

text:
    Warren R. Buckley et al. v. Thomas B. Holmes.
    1. Breach of contract — Measure of damages. — Where contracts for the sale of chattels are broken by the vendor failing to deliver the property according to the terms, of the bargain, the general rule is that the measure of damages is the difference between the contract price and the market value of the article at the time when it should be delivered, and if at the time of delivery the article has not risen in value, the vendee, having lost nothing, can recover nothing. This rule applied to brokers and commission men.
    2. Pleading special damages. — Special damages are not implied by law, do not necessarily accrue from the injury complained of, and must be specially stated and claimed in the declaration. The declaration in this case held insufficient to sustain a verdict for special damages.
    3. Contract for future delivery. — Where the undertaking on September 20th, was for the purchase of 40,000 bushels of corn for future delivery, and under the contemplated contract the corn could not have been demanded before the last of October, and on September 22d appellants gave appellee notice that they had not purchased the corn when appellee bought on the 22cl at an advanced price, and it was claimed that appellants knew of the sale by appellee on the 19th, of 20,000 bushels of October corn (by which sale no delivery could he made before the 1st of October, and such delivery could not be compelled before the last of October), and at the time for delivery corn was lower than on the 20th, the date of the contract, held, that the damages are merely nominal, the market price being lower in October than on the 20th; that any loss appellee may have suffered from making a sale on the 19th at 55 cents a bushel in connection with his act in buying three days thereafter at 57M cents per bushel to fill such contract was occasioned by his own conduct, and did not grow out of its terms or any supposed assumption of it by appellants.
    Appeal from the Circuit Court of Peoria county; the Hon. D. McCullough, Judge, presiding.
    Opinion filed June 9, 1886.
    Mr. William Jack and Messrs. Puterbaugh & Puterbaugh, for appellants;
    as to measure of damages, cited Smith v. Dunlap, 12 Ill. 184; Hadley v. Baxendale, 9 Exch. 341; V. & M. Ry. Co. v. Ragsdale, 46 Miss. 468; Prosser v. Jones, 41 Ia. 674; 3 Sutherland on Damages, 298; Williams v. Reynolds, 6 B. & S. 495; Mayne on Damages, 18; Story on Agency, § 221; Cothran v. Ellis, 107 Ill. 413; Brown v. Muller, 7 L. J. Exch. 319; Kadish v. Young, 108 Ill. 170; Hibbard v. Western Union Tel. Co., 33 Wis. 558.
    Mr. Lawrence Harmon, for appellee;
    as to agency, cited Ewell’s Evans on Agency, 3; Story on Agency, § 33 ; Ward v. Warfield, 3 La. Ann. 471; 1 Parsons on Contracts, 85; Swenright v. Richardson, 19 Law Times, 10; Hamilton v. Cunningham, 2 Brock. 350; Arrott v. Brown, 6 Whart. 9; Frothingham v. Everton, 12 N. H. 239.
    Where the principal suffers actual injury he is entitled to full indemnity, and is entitled to receive such sum in damages as will place him in as favorable condition as he would have been in, had the contract and duty been fulfilled: Sutherland on Damages, 56; Brown v. Arrott, 6 Watts & S. 402; Frothingham v. Everton, 12 N. H. 239; Amory v. Hamilton, 17 Mass. 103; Harvey v. Turner, 4 Rawle, 223; Magnum v. Dinsmore, 62 N. Y. 35.
    The presumption is that plaintiff, if the 40,000 bushels of corn had been bought by defendants for him, would have sold at the advanced price in the market: Leonard v. N. Y., etc., Tel. Co., 41 N. Y. 544; Williams v. Reynolds, 118 E. C. L. 495; Rittenhouse v. Ind. Line of Tel. 43 N. Y. 463; Wilson v. L. & Y. Ry. Co., 99 E. C. L. 632; Andrew Passenger v. Thornburn, 32 N. Y. 634; Cutting v. Grand Trunk Ry. Co., 13 Allen, 381; Stone v. Codman, 15 Pick. 301; Ward v. N. Y. Cent. R. R., 47 N. Y. 34; Sisson v. C. & Y. R. R. Co., 14 Mich. 489.
    The general rule is, that the party injured by a breach of a contract is entitled to recover all his damages, including gains prevented, as well as losses sustained, provided they are certain, and such as might naturally be expected to follow the breach: Griffin v. Colver, 16 N. Y. 489, 491; Ward v. N. Y. C. R. R. Co., 47 N. Y. 29; Mesmore v. N. Y. Shot and Lead Co., 40 N. Y. 422.
   Baker, J,

In.Sedgwick on Damages, page 260, the rule for the measure of damages as between the buyer and seller of personal property is stated thus: “ Where contracts for the sale of chattels are broken by the vendor failing to deliver the property according to the terms of the bargain, it seems to bo well settled, as a general rule, both in England and the United States, that the measure of damages is the difference between the contract price and the market value of the article at the time when it should be delivered, upon the ground that this is the plaintiff’s real loss, and that with this sum he can go into the market and supply himself with the same article from another vendor. It follows from this rule, that if at the time fixed for the delivery, the article has not risen in value, the vendee having lost nothing, can recover nothing.” See also, Smith et al. v. Dunlap, 12 Ill. 184.

This rule would seem to be applicable to commission men and brokers, where, through their fault, they have failed to make purchases directed by their customers and undertaken-by them ; if they are placed in the shoes of vendors, then, unless under some circumstances of special damage, ample compensation will be afforded injured parties. The rule as stated has been extended to telegraph companies in cases where the failure to buy has been caused by default of such companies. This rule for the assessment of damages would, when applied to the facts of this case, give to appellee nothing but nominal damages; for it is admitted that the market price of corn at its time of delivery under the contract that should have been made, was some fourteen cents per bushel less than it was at the opening of the Board of Trade in Chicago on the morning of September 20th; so that, if such contract had been entered into and afterward carried into effect by delivery and payment, there would have been very considerable loss to appellee. General damages are such as the law implies and presumes to have accrued from the wrong committed; and as applied to the case in hand, are, as we think, such as are stated in the rule quoted from Mr. Sedgwick. Special damages are not implied by law, do not necessarily accrue from the injury complained of, and must be specially stated and claimed in the declaration, before the plaintiff will be permitted to give evidence of them. The averments of this declaration are that appellee “ was deprived of divers great gains and profits and suffered divers great losses in consequence of the default.” The divers great gains and profits would refer only to such profits as would naturally accrue from an increased market value at the date for delivery over the contract price. There being no particular statement of special damages, we think it was error to admit proof of such damages over the objections of appellants; and also, that the declaration is insufficient to sustain a verdict for such damages.

But, if we waive the insufficiencies of the declaration, the really important question in the case is with regard to the correctness of the rule as held by the trial court with reference to the measure of damages, as indicated by the instructions given and refused. If the commission undertaken had been for the purchase of corn for present delivery, then the rule of damages would have been the difference between the price when the order should have been filled, and that which the plaintiff would have been obliged to pay at the same place, within a reasonable time after notice of the failure to buy, in order to purchase the like quantity and quality of corn. True v. Int. Tel. Co., 60 Maine, 9; Baker v. Drake, 53 N. Y. 211. This is upon the ground that under the intended contract he would be entitled to the immediate possession of the subject-matter of the contemplated purchase, and may place himself, using due diligence, in statu juo, at the cost of the party in default.

Here, however, the undertaking was for the purchase of corn for future delivery, and under the contemplated contract the corn could not have been demanded before the last day of October. It is plain that unless some peculiar fact or circumstance existed calling for special damages, the general rule allowing the difference between the contract price and the market price at date of delivery, would afford full and ample compensation for the wrong done. The substance of the claim made by appellee seems to be that the loss of profit occasioned by the breach of a contract can be allowed when the data of estimation are so definite and certain that they can be ascertained reasonably by calculation, if the party in default had notice at the time the contract was made that such damages would ensue from non-performance. As applied to a certain class of cases, this claim is well made-But if it is meant to cHim that in case the purchase had been made on the 20th of September appellee might have effected a re-sale on the 22d of September, or on some other of the days prior to the maturity of the contract, when the price of corn was higher than the opening price of the 20th, and the profits that might so have been realized can be recovered, then such claim is not well founded. The exact point was decided in Williams v. Reynolds, 6 B. & S. 495, and in Hibbard v. W. U. Tel. Co., 33 Wis. 558, both cases involving the question of sales for future delivery. Such damages do not naturally flow from the breach of the contract,-nor are they such as were within the contemplation of the parties at the time the contract was entered into, and so do not fall within either branch of the rule laid down in the leading case of Hadley v. Boxendale, 9 Exch. 341. In Williams v. Reynolds it distinctly appeared that it was the practice at Liverpool for purchasers of cotton (the article involved in that transaction) to re-sell before the time for delivery, and that a re-sale of the cotton had in fact been effected subsequent to the making of the original contract, and prior to the date for delivery.

But it is urged that appellants knew of the sale on the 19th of September of the 20,000 bushels of October corn by appellee at fifty-five cents, and that he wanted 20,000 of the 40,000 bushels ordered to cover the short corn he had so sold, and therefore, from the nature of that contract and the circumstances, appellants had notice that damages of the character assessed by the jury would result from non-compliance with their undertaking to buy. Let us assume that appellants by their default became responsible to respond to any legitimate damages growing out of this contract of the 19th. The amount of special damages allowed by the verdict of the jury was $1,100; and it was assessed upon the basis of the difference between the opening jorice of the 20th and the price at which appellee purchased on the 22d — a difference of two and three fourth cents a bushel It is therefore evident that the loss of profit of two and three fourth cents a bushel was assessed not only for the 20,000 bushels of short corn sold on the 19tli, but for the other 20,000 bushels included in the intended purchase of the 20th.

Our present inquiry, however, is in regard to the contract of the 19th. The terms of that agreement were such that no delivery of grain under it would be made before the 1st of October, and such delivery could not be compelled before the last of October; consequently the only damage suggested by its provisions was that at the time it could be required to be complied with, corn might be higher than the contract price. In respect to the liability imposed by the terms of that contract the broker or commission merchant could discharge his obligation by tendering the corn at its maturity'. Gregory v. Wendell, 40 Mich. 432. Assuming it was a valid contract and contemplated an actual sale, and was not a mere gambling transaction, it can not be said that it was according to the natural and usual course of tilings, that the vendor, where the article of commerce was such as could readily be procured at any time upon the open market, would, long before the maturity of the contract and when no delivery could be mide thereunder, buy the corn upon a high and excited market; it is true he might do such things, but it would not follow naturally and as matter of course. Mor was it according to the usual course of things that a contract for the delivery of corn on October 30tli should be settled on the basis of the market price of corn on September 22d. Mor can it reasonably be supposed to have been in the contemplation of both appellants and appellee, at the time the former agreed to make the purchase of the 20th of September, as the prob-ab'e result of the breach of such agreement, that the market price of the 22d of September would govern as a price paid for corn to be delivered the last of October. There is equally as good ground for saying that the price that prevailed upon any one of the other days intervening before the date fixed for delivery was in contemplation. Appellee could not anticipate that corn would be lower on the 22d of September than on the 30th of October.

It follows then that this damage of two and three fourth cents a bushel which was assessed by the jury, is not within the rule that is recognized by the courts for the ascertainment of damages for breach of contract, even in respect to the short corn sold. Any loss that appellee may have suffered from making sale, on the 19th of September, of corn for delivery in October, at fifty-five cents a bushel, in connection with his act in buying three days thereafter corn at fifty-seven and one fourth cents per bushel, to fill such contract, was occasioned by his own conduct, and did not grow out of its terms or any supposed assumption of it by appellants. The evidence clearly shows that the requirements of that sale might readily have hem complied with, not only without detriment, but with a profit of several thousand dollars.

It results from what we have said, that the rulings of the court upon the instructions representing the measure of damages were erroneous. The second instruction directed the assessment of special damages which were not claimed in the declaration or even admissible in any state of pleadings, under the facts of the ease.

The refused instruction was correct, and should have been given.

The judgment is reversed and the canse remanded.

¡Reversed and remanded.