text:
    John W. Stevenson v. Ann Morrissey.

      Forcible Entry and Detainer — Possession—Evidence—Instructions.
    1. In an action of forcible entry and detainer, upon a review of the evidence, it is held: That the defendant was never out of possession; that the plaintiff never had such actual and peaceable possession as would give him a right of action under the statute; and that there was no material error in giving and refusing instructions.
    2. It is proper to refuse an instruction which is in substance and form substantially identical with instructions given.

      [Opinion filed January 15, 1887.]
    ,In ebbob to the Circuit Court of Lee County the Hon. William Bbown, Judge, presiding.
    Mr. David L. Hough, for plaintiff in error.
    Messrs. W. & W. D. Barge and Rioholson & Gentleman, for defendant in error.
    It is incumbent upon the plaintiff to show that he had actual possession of the premises. A mere constructive entry is not sufficient. McCartney v. McMullen, 38 Ill. 237; Thompson v. Stornberger, 54 Ill. 326; Spurck v. Forsyth, 40 Ill. 438; Mann v. Brady, 67 Ill. 95.
    His possession must be excessive. Jamison v. Graham, 67 Ill. 94.
    Neither plaintiff nor Hough had exclusive possession as long as defendant and her family were there. It any of her property was there, then there was no exclusive possession against her. Stevenson says there were some of her things in the house on Monday when he went there. This was enough to give her possession of the premises.
    The plaintiff must show a right to the present possession. Nicholson v. Walker, 4 Ill. App. 404.
    This he did not do. He had, therefore, no right of action.
   Baker, P. J.

This was,forcible entry and detainer by John W. Stevenson, plaintiff in error, against Ann Morrissey, defendant in error, for the purpose of recovering the possession of a certain house and premises in the town of Peru, in La Salle County. The suit has been pending in the courts for many years, and was taken to the Circuit Court of Lee County by change of venue and a jury trial there resulted in a verdict and judgment for defendant in error.

Defendant in error was married to one Pat Conley in 1852, and they at once moved on the premises and occupied the house in question as a home, and they continued living there with their family for a number of years and until Conley died, leaving her and the children in possession. She afterward intermarried with William Morrissey, and they, with her children, occupied the place as a residence down to and on Saturday the 23d of August, 1873. Morrissey, the husband, was working on the canal during said month of August, and on the day mentioned ' and for some time thereafter was absent from home. About noon of that Saturday, D. L. Hough and one Keys came to the house and found defendant therein with her two children. They at once proceeded to remove from the house and premises and place upon the public highway the household goods *and furniture . of defendant, in error, consisting of stoves, beds, bed ticks, chairs, a barrel of flour, a barrel of salt, hams, butter and numerous other articles. After doing this they forcibly ejected defendant in error and her children from their domicile, nailed and fastened the door with a cleat and board, and then left the place. It does not appear from the evidence that either Hough or Keys had in his hands any writ or legal process authorizing these acts, and no attempt or offer was. made upon the trial to show they had any authority whatever for their high-handed proceedings.

As soon as these trespassers had departed, defendant in error and her children effected an entrance into their house and o pened the door; Mrs.Morrissey and her daughter,who was about thirteen years of age at the time of the occurrence, both testify that supper and the meals for two subsequent days were cooked at a tire made outside of the door, the stoves all having been moved into the street and to a considerable distance; that their meals were eaten inside the house, and that on Saturday, Sunday and Monday nights they slept in the house on a straw tick they got down out of the garret. Their statements are, in part, corroborated by Hough, who testifies he went there late Sunday afternoon and again on Monday morning and that' both times he found the door unfastened and on each of these occasions nailed and fastened it as he had done on Saturday. He also states nothing was left in the house but some refuse stuff in the garret, and he probably includes the straw tick in this refuse stuff. It appears that on both of these occasions when he was back there the defendant in error was absen t; on Sunday she was at church and on Monday morning she was at Ottawa for the purpose of consulting a lawyer. He did not at either time find the two children in the house, but McHale, who was there at the same time on Sunday, testifies he saw them both on the premises. The evidence of the daughter, Ellen Conley, is also to the purport she and her little brother were on the premises on these several occasions; but the children, in the absence of their mother, seemed to have avoided meeting Hough. The cow and pig of defendant in error were also upon the place.

On Monday, August 25th, an arrangement was made between Hough and John W. Stevenson, the plaintiff in error, whereby the latter was to have the use of the house and premises as tenant of the former until the first day of May-following, and as compensation therefor was to keep possession for Hough and fix up and repair, the house, and about three o’clock that afternoon plaintiff in error took to the place, in a light one-horse wagon, a stove, chair, pail and broom, to be used in cleaning, and some glass and putty for repairing the windows, and put them in the building. The children of defendant in error were upon the place, "but Ellen, the eldest, ran off to her aunt’s in search of her mother, who had not yet returned home from her trip to Ottawa. An hour or more thereafter defendant in error returned to the house with her children and her mother-in-law, an old woman eighty years of age, and found plaintiff in error tearing the paper off the walls. The latter testifies, there were some things there when he went, and that when defendant in error got there she clainled the property and shook her fists at him and threatened him with a shovel; that he at first, told her he had rented and proposed to stay there, but afterward said to her if the property was hers he didn’t want it, or to get into a law suit, and wouldn’t have any law; that he remained there about an hour, during which the family put his stove and things out of the house, and then left, but did not go away willingly. The testimony for defendant in error is somewhat different from this, and is to the effect she did not threaten him with a shovel; that when she told him the property was hers he said all right, please keep still and he would go away, and that she told him he had better get out, and he sat down in a chair and smoked with the old lady until the rain was over, "when he picked up the putty and glass and put them in his pail and walked off. The family remained in the house that Monday night, and the next day a man was hired and the furniture and property in the street were brought back; and defendant in error has continued to reside upon the premises from that time hitherto. There is some conflict in the testimony in respect to a few of the facts above mentioned, but we do not deem these conflicts material to the decision of the case, and we find the facts to be substantially as stated.

It is clear that defendant in error never was out of possession of the dwelling-house and land. At the time of the unlawful raid made upon her she had been in the quiet and peaceable occupancy of the premises as a home for more than twenty-one years. She and her family were temporarily ejected by force from her domicile, and most of her household goods and chattels were by the tort-feasors thrown into the public highway. But she never abandoned or yielded up the premises or succumbed to the force that was imposed. She resisted continuously, as she had an undoubted right to do in defense of her castle, to the best of her ability, and all the while asserted and maintained her possession. Immediately upon the departure of Hough and Keys on Saturday afternoon the family re-entered the house. During all the nights involved in the res gestee of the transaction she and her children slept there, and during the days they ate their meals there, and all or some of the family were continuously within its four walls, except when for a very short time on Sunday and for a few hours on Monday, and in the temporary and necessary absence of the mother from home, her minor children, probably actuated by fear, sought refuge upon the approach of Hough or plaintiff in error, in the stable or cornfield upon the premises. It matters not that they made their bed upon an old straw tick or even upon the bare floor, or that they had no table upon which to eat their meals. Besides this, defendant in error uninterruptedly had upon the place her cow, pig, straw tick and certain refuse stuff.

It is also clear plaintiff in error never had such actual and peaceable possession as would give him' the right to an action under the statute of forcible entry and detainer. When Mrs, Morrissey started for Ottawa about 5 o’clock Monday morning, for the purpose of procuring legal assistance in protecting herself against the invasions of her rights, she left her children quietly asleep in the house ; and when she returned home that afternoon from Ottawa she found plaintiff in error trespassing upon her possession, and she was fully authorized to” do all she did do in order to protect her property and maintain her possession. Even plaintiff in error states he found some things there when he went, and he expressly declines to testify the children were not there, and the evidence otherwise shows clearly they were. The circumstances exclude any conclusion that the parties to this controversy were both in possession as joint tenants or tenants in common, and the evidence utterly fails to show an exclusive possession by plaintiff in error. Jamison v. Graham, 57 Ill. 94. If the claim made by plaintiff in this suit was held good, no one would be safe in the possession of his domicile.

Even if the possession of plaintiff on the afternoon of Monday was admitted, we would have no hesitation in holding under the facts of the case, the occurrences that transpired and the language that was used, that he voluntarily abandoned the house and surrendered it into the possession of defendant in error, and this notwithstanding his statement on re-direct examination that he did not go away willingly.

Objections are urged to the rulings of'the court upon two of the instructions — the seventh of those submitted by plaintiff in error, and the third of those asked by defendant in error. It was not error to refuse the seventh, and for the reason it was identical in' substance and almost identical in form and phraseology with the eighth instruction, and that was given ; and moreover the legal principle upon which it was based was also contained in the first, second, fourth and fifth given instructions. Nor was it error to give said instruction as it was modified by the court, for as so modified it stated good law.

It was not manifest error to give said third instruction. The two legal propositions contained therein were correct statements of the law; a peaceable possession by plaintiff of the premises in controversy, was a condition precedent to the right of recovery under clause one of the second section of the Forcible Entry and Detainer Act; and said section by its very terms only gives the remedy'therein provided to the person entitled to the possession. The instruction might probably be hel d erroneous in some cases arising under the first clause of the section for a forcible entry, on account of the force in which these two legal propositions were stated, and on the ground its tendency, in the form given, would be to mislead the jury, by inducing them to believe that a, peaceable possession did n,.t of itself give a right of recovery under the statute; without other proof the plaintiff was entitled to the possession; but, as applied to the case at bar, the instruction could have had> no effect to mislead.

We think the evidence that was objected to on the trial was admissible for the purpose of showing that defendant in error was, and the plaintiff in error was not, in the actual, peaceable and exclusive possession of the premises in question.

In our opinion the verdict and judgment are right and just and the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Baker, P. J.

license: Public Domain

text:
    James F. Griffin v. Charles R. Haskins et al.

      Beal Property — Conveyance Procured by Fraud — Possession of Grantor as Notice — Presumption—Evidence.
    1. The actual occupancy of premises is notice of whatever right, title, interest or equity the occupant may have therein.
    2. Where the grantor of real estate remains in possession, all persons bolding under the grantee are chargeable with notice of all claims of the grantor, both legal and equitable, and if the original conveyance was procured by fraud, such persons can not be protected as innocent purchasers.
    3. In the case presented, it is held: That no presumption can be entertained that the purchaser of a note secured by trust deed would not have ascertained by inquiry that the original conveyance was fraudulent.
    [Opinion filed January 15, 1887.]
    Appeal from the Circuit Court of Iroquois County; the Hon. Alfred Sample, Judge, presiding.
    Messrs. A. Yah Bureh and Johh Olhey, for appellant.
    Messrs. Doyle, Morris & Piersoh, for appellees.
   Baker, P. J.

On the 5th day of February, 1881, Herbert Smith, being the owner and in possession of certain lots and the store and dwelling house thereon, in Loda, Iroquois County, Illinois, executed a conveyance of the premises to Charles K. Haskins. At the same time, and in exchange therefor, Has-kins made a deed to Smith purporting to convey a section of land in Missouri. In this transaction Smith acted upon the faith of an affidavit made by Haskins and a pretended abstract of title, which afterward turned out to be wholly false and fraudulent and signed by a fictitious name. At the date of these deeds Haskins executed to Smith a lease at the nominal rent of $1, of the property in Loda, to expire on the 4th day of April following, and Smith continued in the occupancy of the premises.

On the 7th day of February, 1881, Haskins made his promissory note of that date, for 8500, payable to the order of himself and due in one year with 8 per cent, interest, and indorsed it in blank, and secured it by a deed of trust on the Loda property, which was filed for record on the 10th of that month, and on the 19th of the month he made a warranty deed for the Loda lots to one Ernest Eiveland for the alleged consideration of 82,000. During the latter half of February and the early part of March, William Garner and one Trepes were busy hawking the $5u0 note and deed of trust about Chicago, and trying to find a purchaser for them at a heavy discount. The evidence tends very strongly to show that these two men were acting in concert with Haskins in the whole fraudulent transaction, and were to share in the spoils; and Trepes, while pretending to act as the agent of Smith, inveigled him into the exchange of his Loda property for the false, fraud 11 lent and forged title to Missouri lands, and charged and collected from Smith $75 for services as such agent.

The latter part of February, 1881, Trepes offered to sell the note and deed of trust to Jay Heed, an attorney in Chicago, for $450, and left them with him for examination. The next day Reed went to Loda. and saw the property there, and Smith, and the pretended abstract of title to the Missouri lands. , We are fully satisfied from the evidence that it was at 'this interview with Reed that Smith first became suspicious of the abstract and the title to the section of land in Missouri. Reed testifies the interview was in the latter part of February; that he afterward went to Dakota, and arrived in Dakota on the 1st day of March. On the 4th of March, Smith sent his father to Missouri to examine into the matter of these lands, and he testifies he was induced to do so on account of a conversation he had with Reed, an attorney who came from Chicago, about the last of February.

The result of the trip to Missouri, and an abstract of title afterward obtained from the recorder of deeds there, was an ascertainment of the fact the title of Haskins to the section of land was false, fraudulent and fictitious. At the June term, 1881, of the Iroquois Circuit Court, upon bill in chancery filed by Smith on the 2oth day of the preceding March, and to which Haskins, Riveland and others were made parties, the deed from Smith to Haskins was set aside on the ground it was obtained by fraud, and the deed from Haskins to Riveland and the deed of trust executed by Haskins were set aside and declared to be null and void. Smith continued in the actual, “peaceable and exclusive possession of the Loda property until the 16th day of December, 1881, when he conveyed the same by dee.d of warranty for a valuable consideration to J. B. Wasson; and said Wasson forthwith took actual and exclusive possession of the premises, and has so remained in possession from that time hitherto.

In 1883, James T. Griffin, appellant herein, filed this bill in chancery in the Iroquois Circuit Court for the purpose of foreclosing the deed of trust above mentioned, and made Has-kins, Eiveland, Smith, Wasson, and others parties defendant thereto. Smith and Wasson, and Hill, a tenant of Wasson, answered and made defense; and such proceedings were afterward had in the Circuit Court as that upon a hearing of the cause a decree was rendered dismissing the bill as to all the rights of Smith, Wasson and Hill, and ordering that the mortgage or deed of trust on the Loda lots be no lien thereon, and against appellant for costs.

Appellant claims to be an innocent purchaser for value of the" note and deed of trust; but even this point is, from the evidence, somewhat doubtful. In the leading case of Olds v. Cummings, 31 Ill. 188, it was held that he who buys that which is not assignable at law, relying upon a court of chancery to protect and enforce his rights, takes it subject to all the infirm ities to which it would have been liable in the hands of the assignor; and it was further there held that where a promissory note secured by mortgage is assigned, and resort is had to a court of equity to foreclose the mortgage, that court will let in any defense which would have been good against the mortgage in the hands of the mortgagee himself, and this regardless of the fact that the assignee may have purchased the note in good faith and before maturity. This doctrine has been followed in numerous subsequent decisions, and it would seem the rule announced in these cases has application in the litigation now in hand.

At the time appellant took the assignment of the note and mortgage Smith was in the actual occupancy of the store house, dwelling and lots, and the doctrine in the State is that the actual occupancy of premises amounts to notice of whatever right, title, interest or equity such occupant may have. Coari v. Olsen, 91 Ill. 273, and authorities there cited. Even if Haskins had made and delivered an absolute conveyance of the lots to him, appellant would not have occupied the position of an innocent purchaser, for Smith being in possession, he would have been bound to inquire by what right or title he held. We find no facts or circumstances in proof that. would estop Smith from claiming his equitable title to the lots.

The rule is, that whatever is sufficient to put a party upon inquiry is good notice of all facts which the inquiry would have disclosed. Redden v. Miller, 95 Ill. 336. It is urged that until about the middle of March, Smith rested secure as to his title to the Missouri lands, and if inquiry had been made of him he would have stated that he had conveyed to Haskins, and held as his tenant. This conclusion assumes too much. Had he applied to Smith for information, there is no presumption he would not have ascertained the same fact that Reed ascertained, that a fraud had been perpetrated on Smith, and the result of the interview would probably have been to excite in Smith a belief or apprehension he had been swindled, just as the event really was, in the instance of the interview Reed had with Smith. Besides this, had appellant sought information at any time after Reed went to Loda, in the latter part of February, Smith would not have told him the title to the lands he had exchanged for was all right, and the mortgage on the Loda lots valid. Reed testifies the deed of trust and note remained in his possession, and were not returned to Trepes until after his return from Dakota, about the middle of March. Appellant himself states, in his first examination as a witness, that he did not advance the $160 on the note and trust deed until about the middle of March; and he afterward- states, upon his being recalled as a witness, that he paid the money on the 5th day of March. Both of these dates were subsequent to the time Smith had become suspicious of his title to the land in Missouri, and after the date he had sent his father to that State to get information. And so it is quite evident that had appellant inquired of Smith at or shortly before the time he claims to have bought the note and mortgage and to have paid out money on the faith of the latter, he would have received no information to the effect the supposed lien on the Loda lots was good and valid. Besides this, in White v. White, 89 Ill. 460, it was expressly held that where the grantor of real estate remains in its possession, all persons purchasing the same from the grantee are chargeable with notice of all the claims of the grantor, both legal and equitable, and if the original conveyance is procured by fraud and deceit, such purchasers are held to notice of such fact, and can not be protected as innocent purchasers.

In the view we have taken of this case, it is unimportant to consider the criticisms made upon a few of the rulings of the court in respect to the introduction of testimony.

The decree is affirmed.

Affirmed.


text:
    John Quigly and Michael Quigly, Executors, v. Catherine Harold.

      Action to Recover for Domestic Services Performed for an Uncle — Presumption — Statute of Limitations — Instructions—Practice—Interest.
    1. The presumption that services performed by one while residing with a near relative were intended to be gratuitous, is weaker where the relationship is distant than if near, especially if the parties had not previously been domiciled together.
    2. In the case presented, it is held,: That the evidence sustains a verdict for the plaintiff; that the claim is not barred by the Statute of Limitations;/ and that certain modifications in the instructions asked were proper.
    3. An objection not based upon an assignment of error can not be considered by this court.
    4. Under Sec. 3, Chap. 74, R. S., where the entry of the judgment is delayed, interest on the verdict may be made a part thereof.
    [Opinion filed January 15, 1887.]
    Appeal from the Circuit Court of Iroquois County; the Hon. Alfred Sample, Judge, presiding.
    Messrs. Kay & Euans, and Bull, Strawn & Huger, for appellants.

      Messrs. M. O’Shaughnessy and W. H. Harry, for appellee.
   Baker, P. J.

This was a claim of Catherine Harold against the estate of Michael Mowlan, deceased. It was tried in the Circuit Court, on appeal from the County Court, and Catherine Harold recovered judgment for $438.

The basis of the recovery was the work and labor of appellee while she was a young and unmarried woman, for her uncle, the testator of appellants, at intervals during the year 1864 and subsequent years. It is claimed that appellee, while living in Ireland with her parents, yvho were in comfortable and prosperous circumstances, made a contract with the deceased in his lifetime and when on a visit there, to come to America and work for him as housekeeper on his farm,, and that no price was fixed for such services, but that the deceased agreed to compensate and reward her at his death for all she should do for him. The claim was for 124 weeks services, doing housework, sewing, etc., and the value of the services was variously estimated by the witnesses at from $2 to $5 a week. It appears the uncle was a bachelor, quite old, and very penurious; that there was considerable work to be done on the farm during the busy season "and comparatively little to be done during the winter months; that at his suggestion the niece did housework for others at Chicago and elsewhere, from late in the fall until spring, and then returned to the farm and worked for him, such work for him not exceeding eight or nine months in any one year; and that from the wages earned elsewhere she clothed and otherwise provided for herself. Ho point is made that she did not work the number of weeks charged, or that her services were not worth the amount allowed therefor.

It is, however, insisted that the proof of the contract relied upon by appellee was not sufficient. This is not one of that' numerous class of cases wherein it is sought to recover for services rendered to a father or other near relative upon an implied promise of compensation. It should also be borne in mind that while the rule is that where one lives with and performs services for a near relative the presumption arises such services were intended to be gratuitous, yet, in such cases the more distant the relationship the weaker such presumption, and it would not have the force and controlling effect where the parties are uncle and niece, that it would have where they are parent and child ; and more especially would this be the case where, at the time the niece went to live with and work for the uncle, she was eighteen years of age and had never theretofore been domiciled in his house. Morton v. Rainey, 82 Ill. 215. The claim here in suit was based upon an express contract, and that contract was clearly and intelligently testified to by Martin Doyle, brother of appellee, and his evidence was supported and corroborated by the statements of Mr. and Mrs. O’Toole, neighbors of the deceased, who testified to frequent admissions made by the latter in his lifetime. If there is any evidence in the record tending to show the services were intended to be gratuitous or that they have been paid for, it is of so slight a character that it is unnecessary it should be mentioned. In our opinion the proofs amply sustain the verdict.

By the express terms of the contract the work and labor to be performed was not to be recompensed or rewarded until the death of Michael Howl an. and he died in March, 1884. This proceeding was commenced in the County Court in December of that year, and the Statute of Limitations is no bar to the claim, or any part of it.

There is no merit in the objections made to the instructions that were given for appellee on the trial.

There was no error in the third of the three instructions that were requested by appellants and modified by the court. Without such modification, and in view of the evidence before the jury, it would have been misleading and erroneous. As asked, it stated a hypothetical case, and informed the jury that if they found such hypothetical case to exist, they should find the issues for appellants. This hypothetical case was not inconsistent with the contract set up by appellee, but merely ignored it; the amendment told the jury, in substance, that in, addition to the hypothetical case, they should also believe there was no such agreement as claimed by- appellee and “ that no other services were performed by plaintiff under" any other arrangement.” The office of the amendment was merely to qualify the supposititious case stated in the instruction as originally drawn. It is plain that if the work was done under the contract alleged by appellee or under some arrangement of the parties, Cl other” than that mentioned, in the case supposed, then such supposed or hypothetical case should not have controlled the decision of the jury.

It is suggested in the brief filed on behalf of appellants, that the judgment entered was for §4 more than the verdict, after the remittitur was deducted. There is no assignment of error that the judgment was rendered for too large a sum, or any other assignment under which appellants can avail themselves of this objection. Were the point properly before us, the discrepancy might be in part accounted for by' the fact the judgment was not entered until quite a considerable time after the return of the verdict, and the latter clause of Sec. 3, Chap. 74 Devised Statutes, provides, that when judgment is entered upon any verdict, interest shall be computed at the rate of 6 per centum per annum from the time when rendered to the time of rendering judgment upon-the same, and made a part of the judgment; and as to the residue of the discrepancy the maxim, de minimis non curat lex, would apply. McNutt v. Dickson, 42 Ill. 498.

We find no error in the record, and the judgment is affirmed.

Affirmed.


text:
    Charles McClain v. Andrew Weise.

      Mortgages — Purchase of Equity of Redemption by Holder at Judicial Sale — Merger—General Rule — Intention—Equitable Estoppel.

      1. As a general rule, if the holder of a mortgage takes the equity of redemption and vests it in himself, a merger takes place, the estate being discharged from the incumbrance and the mortgage debt satisfied.
    2. In the case presented, it is held: That the evidence does not disclose facts or circumstances which would take the case out of the general rule; that the weight of the evidence is against such intention on the part of the holder of the mortgage when he purchased the equity of redemption; and that he is estopped upon equitable grounds from setting up a claim against a merger.
    3. When the holder of a mortgage on real estate, which is worth more than the mortgage indebtedness, purchases the equity of redemption at judicial sale, equity will not permit him to hold the laud and also collect the mortgage debt from the mortgagor.
    [Opinion filed January 15, 1887.]
    Appeal from the Circuit Court of Bureau County; the Hon. George W. Stiff, Judge, presiding.
    Mr. Egbert Earwell, for appellant.
    Where anything else than payment is accepted as a satisfaction, it must appear that such was the intention of the parties. Flower v. Elwood, 66 Ill. 444.
    If a party acquires an estate on which he has an incumbrance, the incumbrance is in equity considered as subsisting or extinguished, according to his intention expressed or implied. The intention is the controlling element. Dunphy v. Riddle, 86 Ill. 28.
    That case also shows that the burden of proof is upon the party claiming the extinguishment to show the intention to satisfy. *
    Where a party acquires a deed of land upon which he holds an incumbrance, and the question arises whether the incumbrance is discharged by the deed, the intention of the grantee will, in a court of equity, be considered the controlling consideration. Shaver v. Williams, 87 Ill. 417. See, also, Campbell v. Carter, 14 Ill. 286; Comstock v. Hitt, 37 Ill. 546; Weiner v. Heintz, 17 Ill. 259 ; Funk v. McReynolds, 33 Ill. 431.
    Messrs. Kendall & Loyejoy, for appellee.

      "When the holder of a note secured by mortgage on land, which is worth more than the mortgage indebtedness, purchases.the equity of redemption in such land at judicial sale, equity will not permit him to hold the land and still collect the note from the mortgagor. Weiner v. Heintz, 17 Ill. 262; Funk v. McReynolds, 33 Ill. 495; Biggins v. Brockman, 63 Ill. 319; Robbins v. Swain, 68 Ill. 201.
   Baker, P. J.

In 1877 Charles McClain sold and conveyed to Andrew Weise a tract of land in Cooke County, Texas, containing 100 acres, and received from him §600, the full consideration therefor. On the 11th of March, 1879, Weise executed a promissory note for §252.50 to J. Z. Keel or order, due twelve months after date, with interest at 12 per cent, per annum, and secured it by a mortgage to Keel on said tract of land. C. H. and L. J. McCormick recovered a judgment on the 2d day of October, 1879, before a Justice of the Peace in said Cooke County, for §150.24 against Weise; and on the 11th of March, 1880, an execution was issued upon said judgment, and delivered to a Constable, and levied on the land mentioned. Prior to the sale on this execution, Keel sold and transferred the Weise note and mortgage to McClain. By the law of the State of Texas a Constable has power to levy an execution from a Justice of the Peace upon real estate, and sell and deed the real estate, and from such sale there is no redemption. The Constable sold the land in question on the McCormick execution in May, 1880, and it was purchased by McClain for §20; and thereupon tlie Constable executed to him a deed, which deed had the effect to vest in him all the right, title, interest and equity of redemption of Weise in said real estate.

On the 26th day of March, 1880, and prior to the occurrence of a few of the transactions above mentioned, Weise made to McClain a promissory note for §30, due one day after date, and drawing 8 per cent, interest.

On the 17th day of December, 1880, and more than seven months after the sale of the 100-acre tract of land on execution, McClain instituted an attachment suit in the County Court of Cooke County, Texas, based upon said note for $30 and said note for $252.50, and an attachment writ issued in that suit was levied upon 640 acres of land in Wichita County, Texas, as the property of said Weise. At the time of the commencement of the attachment suit, Weise was, and during all the time since has been, a resident of Bureau County, Illinois, and he did not enter his appearance in said suit, and the only service upon him therein was the delivery to him in Bureau County of a citation and a copy of the petition of McClain. The attachment proceeding resulted in a judgment against Weise, and a sale of the 640 acres of land to McClain for $30, and there being no right of redemption, a Sheriff's deed, which vested the title of Weise to said land in McClain. The amount realized by this latter sale as a credit upon the indebtedness of Weise to McClain, after deducting costs and expenses, was $17.45.

On the 19th of .November, 1885, McClain commenced against Weise a suit at law in the Circuit Court of Bureau County, Illinois, and claimed the right to recover the full amount of principal and interest upon both the $30 note and the $252.50 note, less the $17.45 realized from the sale of the Wichita lands.

The record now here on appeal is that made in the Bureau Circuit Court in the matter of a bill in equity exhibited by Weise against McClain for the purpose of enjoining the prosecution of the suit at law upon the two Texas notes and compelling their surrender. The cause was heard upon bill, answer, replication and proofs: and the court found the facts and decreed that the injunction be made perpetual as to the Keel note, and that it be surrendered to Weise ; that Weise pay the balance due on the $30 note, with 8 per cent, interest thereon, a'nd the costs of the suit at law; that the judgment in the attachment proceeding be declared paid and satisfied, and that McClain pay the costs made upon the bill for an injunction.

The important question in the case is whether the mortgage note given by Weise, appellee, to Keel, and by the latter assigned to McClain, appellant, was satisfied by the sale to appellant upon the McCormick execution of the equity of redemption of appellee in the tract of land containing 100 acres, said tract being the subject of the mortgage. The general rule, both at law and in equity, is that if a person holds a mortgage upon real estate, and then by his own act takes the equity of redemption and vests it in himself, a merger takes place and the estate is discharged from the incumbrance and the mortgage debt satisfied. Appellant, however, insists the intention is the controlling consideration, and that if a party acquires an estate upon which he has an incumbrance, the incumbrance is, in equity, considered as subsisting or extinguished according to his intention expressed or implied. This doctrine is announced in the leading case of Campbell v. Carter, 14 Ill. 286, and in numerous ‘ subsequent cases, many of which are cited in the briefs. In Carter v. Harrison, the general rule, as first above stated, is recognized; and the court quote with approval the language of Chancellor Kent, used in James v. Johnson, 5 Johns. Ch. 417, that “in equity the merger is prevented and the distinction of the estates preserved in special cases only,” and that this is done “ where the intention of the party is distinctly 'declared at the time, or where something just and beneficial requires the charge to be preserved in a case in which the party has not declared or can not deblare his intention.”

Unless there are facts or circumstances in proof that take this case out of the general rule, it must be held it was the intention of appellant at the time he bought the land and took the conveyance from the Constable, to receive it in satisfaction of his mortgage and mortgage debt. The salient point is the intent existing at the very time of the purchase. It will be at once'admitted that the fact that more than five years thereafter he brought suit in the Bureau Circuit Court to collect the mortgage note, affords but the very slightest, if any evidence whatever, of what his real intention was at the time indicated. And so, upon the same principle, when more than seven months thereafter, he, knowing Weise had removed from the State leaving behind him land in another county, sued out attachment process based in part on this mortgage note, and when, in the latter part of 1880 or early part of 1881, he made the conflicting statements to Stevens, that he bought the land subject to the Keel mortgage, and also that he intended to hold Weise for the balance, such circumstance and such conversation have but small probative force to show the intention existing in May, 1880. When the acts done and statements made are concurrent with the principal act and form a part of the res gestee of that act, then, such acts or statements are frequently conclusive in respect to the intent. Such, however, is not the case now before us. Under the circumstances of Dunphy v. Riddle, 86 Ill. 22, the retention of the note and mortgage by the mortgagee and grantee was a strong and controlling fact to show it was the intention there should be no merger, while here that fact has almost no force whatever. There the deed to the equity of redemption was made by the mortgagor himself and for an independent indebtedness, and had an extinguishment of the mortgage been intended, the note and mortgage would naturally have been given up or canceled; but here the conveyance was by an officer of the law under a judicial sale, and Weise, the mortgagor, had removed from the State. The only testimony of any moment in the record tending to prove the intention at the date of purchase was there should be no merger is that of McClain himself, who testified that in buying the land at the sale he did not intend that his claim against Weise, on the Keel note, should be extinguished.

We think the weight of the evidence is with appellee on the question of intention. The latter was financially embarrassed at the time of the Constable’s sale, and had left the State. The land sold was worth five or six hundred dollars at the time, and was rented for §100 a year cash rent; the amount due on the Keel note and mortgage at the time of the sale was only §287.45 and the equity of redemption was purchased for §20. The fact that the land was worth more than the incumbrance and the amount bid or consideration of the deed, is strong evidence to show a merger was intended. So, also, if any person other than appellant had bid off the land at the Constable’s sale, he would necessarily have bought subject to the mortgage debt, and when appellant purchased he must have known he stood upon the same footing with other bidders at this public judicial sale, and that the same burdens the law imposed upon them it also imposed upon him. Had the land been struck off to another bidder, such bidder would have bought and would have held only the equity of redemption, and would have paid only the value of that. It must be presumed that appellant well knew that in' buying at the sale he purchased and would get that and only that which any other bidder would have procured had the land been struck off to him; and that he so intended at the time. We are inclined to the view that at the time of the sale, knowing appellee was insolvent and had left the State, he really expected to take the land for the mortgage debt, but was afterward tempted by the apparent opportunity to make both notes out of the Wichita lands, to change his mind and come to a different conclusion.

Moreover, upon purely equitable grounds, appellant should be held to be estopped from claiming he did not intend there -should be a merger. Were such claim allowed, it would work a fraud not only upon appellee by depriving him of his property rights and compelling him to pay therefrom appellant’s debt twice, but also upon the other bidders at the judicial sale, who clearly had a right to stand thereat upon an equal footing with him. The cases of Weiner v. Heintz, 17 Ill. 259; Funk v. McReynolds, 33 Ill. 481; Biggins v. Brockman, 63 Ill. 316, and Robins v. Swain, 68 Ill. 197, are all authorities to show the "doctrine to be that, wdien the holder of a note secured by mortgage on real estate which is worth more than the mortgage indebtedness, purchases the equity of, redemption in such real estate at judicial sale, equity will not permit him to hold the land and also collect the mortgage debt from the mortgagor. These authorities are not in conflict with the decisions in Campbell v. Carter and the line of cases cited by appellant. The rule that the intention is the controlling consideration, would not have application as being necessarily paramount to all other considerations, when such intention was not clearly expressed at the very time of the transaction involved; and even when so expressed a court of equity would not permit it to be used by the party who gave utterance to the expression as a sword for the accomplishment of fraud, or of injustice and wrong to others. Such a ease would not be regarded as one of the special cases in which equity would interfere to prevent the merger, and the general rule first above stated would prevail. In some of the cases of a purchase of the equity of redemption, -where it will properly be held there was a merger, it clearly appears from the facts in evidence that such was the intention; in others, upon equitable grounds and in order to work out a just and beneficial result and prevent a wrong or fraud, the intention is conclusively presumed; and in still others, all that is required is the mere fact the general rule is that when the mortgagee takes the equity of redemption there is a merger.

The decree of the Circuit Court is affirmed.

Affirmed.


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    Wilkins Seacord v. The People of the State of Illinois.

      Nuisances — Indictment for Maintaining Tank for Rendering Read, Animals — Unlawful Intention — Criminal Negligence — Presumption — Evidence — Instructions.
    1. Whatever is offensive, physically, to the senses, and by such offensiveness makes life uncomfortable, is a nuisance; and any business, how-over lawful, which causes annoyances that materially interfere with the ordinary comfort, physically, of human existence, is a nuisance.
    2. One can not claim immunity for a nuisance on the ground that he created it to abate another.
    3. The law presumes that every person intends the natural consequences of his own acts; and where the acts of the defendant amount to criminal negligence, such negligence supplies the place of unlawful intention.
    4. Upon an indictment for maintaining a nuisance, it is held: That a motion to quash was properly overruled, the language in respect to the character of the nuisance being substantially that used in the s'atute; that the indictment is sufficiently explicit as to the locality of the nuisance; that the evidence sustains the verdict; and that there is no error in the rulings of the court below upon the admissibility of evidence, or in giving and refusing instructions.
    [Opinion filed January 15, 1887.]
    Appeal from the Circuit Court of Warren County; the Hon. John J. Glenn, Judge, presiding.
    Messrs. William C. FToboross, George W. Thompson and Williams, Lawbenoe & Bancroft, for appellant.
    Messrs. John W. Matthews and Frederick A. Willoughby, for appellee.
   Baker, P. J.

The indictment for maintaining a nuisance upon which Wilkins Seaeord was convicted, charged that he on the first day of July, 1885, “ at and within the County of Warren and State of Illinois, and continually from said day to the time of the finding of this indictment, unlawfully and wilfully did cause and suffer the carcasses of divers dead animals, and large quantities of offal, filth and noisome substances) then and during all the time aforesaid and there to be collected, deposited and remain near the dwelling houses of N. F. Conrad, Thomas Kernan, Peter Johnson, Charles Fauble and others, there situated and being then and during all the time aforesaid, and there to the prejudice of the said N. F. Conrad, Thomas He man, Peter Johnson, Charles Fauble and others, and to the common nuisance of all the people there lawfully being and abiding.”

The motion to quash the indictment was properly overruled. The language of the charge in respect to the character of the nuisance is substantially that used in the first specification in Sec. 221 of the Criminal Code, and that is all that is required. Fuller v. The People, 92 Ill. 182; Cole v. People, 84 Ill. 216; Warriner v. People, 74 Ill. 346; McCutcheon v. People, 69 Ill. 601. , The indictment is also sufficiently explicit with reference to the locality where the nuisance was maintained; it identifies that locality as being in the County of Warren and near the dwelling houses of N. F. Conrad, Thomas Homan, Peter Johnson and Charles Fauble. The indictment gave ample notice of the nature of the offense charged, and the judgment on the trial could readily be pleaded in bar in another prosecution.

The evidence sustains the verdict and judgment. It appears that Seacord was the proprietor of an establishment or tank located in a timber pasture, and distant about eighty rods from the main road leading to Galesburg, and from fifty to sixty rods from the county line road, and that he used this tank for the purpose of rendering dead hogs and other dead animals, and making therefrom cheap grease. The establishment was in quitea thickly settled farming neighborhood. Sea-cord was also superintendent of the railroad stock yards at Gales-burg, where large numbers of live hogs and cattle, in transitu on the railway, were unloaded for the purpose of being fed and rested, and where it became necessary to remove from the cars very many fat hogs and other stock that had died in course of transportation; the duty of disposing of these dead animals devolved on him as superintendent, and he got rid of them by hauling them off to his rendering tank in Warren County and manufacturing them into grease. In the spring and summer of 1885, the hog cholera was prevalent in that locality, and great numbers of the hogs belonging to the farmers thereabouts died therefrom, and those, for miles around, Sea-cord bought for his factory. The result was that his tank was overworked and had more to do then it could accomplish, and the accumulation of dead hogs and carrion during the warm weather of summer rendered the premises much more offensive than they had theretofore been, and the poisonous and offensive odors emanating therefrom permeated the atmosphere for a mile or more, interfering with the comfort of people passing and repassing upon the public highways, and causing great annoyance to many living in the neighborhood, and in some instances to such an extent as to induce the residents to close their doors and windows. Whatever is offensive, physically, to the senses, and by such offensiveness makes life uncomfortable, is a nuisance; and any business, however lawful, which causes annoyances that materially interfere with the ordinary comfort, physically, of human existence, is a nuisance. Wahle v. Reinhach, 76 Ill. 322.

It is urged the business of Seacord was useful and for the public good; that there was an absolute necessity the dead hogs and stock taken from the cars at Galesburg and the hogs dying of the cholera in the farming community near the tank, should not be left to rot at the stock yards or above ground throughout such community; that the tendency of his business was to abate and not to create a nuisance, and that if he used due care to so put up and equip the works at his tank as to obviate, so far as by known human appliances and inventions might reasonably be done, the offensive odors incident to the business, then he is to be held excused. We can not approve of this argument, or concede the conclusion reached. The establishment of Seacord was carried on for profit, the same as any other business; and when it became a nuisance, it was indictable. A person can not abate one nuisance by creating another, and then claim immunity. Seacord was under no obhgations to buy all the dead hogs throughout a large neighborhood, and gather them together, in a partially decomposed condition, upon his premises. Had he refrained from so doing, the farmers would probably have buried them in the ground at intervals upon their farms, where they would have inconvenienced nobody. If he could not dispose of all the dead stock from the stock yards at his tank without creating a nuisance, he might easily have had the surplus hogs buried in the ground and in various places. Neither necessity nor the public welfare imposed upon him the duty to haul these dead animals off to another county and there render them into grease for the market. In our opinion the doctrine announced in the citation from Russell on Crimes, 297, affords no excuse in the matter of this prosecution. It is there said: “It would seem that in judging whether a thing is a public nuisance or not, the public good it does may, in some cases when the public health is not concerned, be taken into consideration, ' to see if it outweighs the public annoyance.” This case falls clearly within the exception stated; foul stenches, poisonous and offensive odors and unwholesome vapors tend to produce sickness and directly affect the'public health.

There was no error in excluding testimony; the matter asked of Kernan had already been stated by him, and moreover it was immaterial.

The evidence in regard to the wagons and their contents, and the odor arising therefrom, was not improper; it tended to prove the charge in the indictment that the defendant caused the carcasses of dead animals, offal, filth and noisome substances to be collected and deposited near the dwelling houses of the prosecuting witnesses.

Three o'f the instructions asked by the defendant below were properly refused. One of these instructions was based on evidence to the effect that the defendant unexpectedly received more hogs in July than he could take care of and. render. If so, it was in no sense an accident, and afforded no lawful excuse for creating a nuisance. He could have refused to buy dead hogs from the farmers, and could have buried such as he got from the stock yards and could not otherwise dispose of, without detriment to the public comfort and health. The second was refused for the quite sufficient reason that it improperly stated it .was the policy of the law that it were •better that ninety and nine or any indefinite number of guilty persons should escape, than that one innocent man should he convicted. Adams v. People, 109 Ill. 444. The third refused instruction was bad and vicious both in substance and in form. This was a criminal prosecution in the name and on behalf of the people of the State, and no one or more persons could, by their acts or conduct, bar the prosecution. It was wholly immaterial that some of the witnesses for the prosecution may have patronized the tank by selling dead hogs to its proprietor, or that others of them may also have been guilty of maintaining nuisances on their own premises. Such facts, if they existed, had no hearing upon the issues in this case.

The second instruction for the prosecution was not erroneous. It was not necessary the people should establish by the proofs that the defendant was influenced in what he did by a wicked and criminal intent. The law presumes that every person intends the natural and probable consequences of his own acts, and the natural and necessary result of defendant’s collecting and depositing upon his premises, near the dwelling houses of others, dead animals,- offal and other noisome substances, was to cause a stench and create a nuisance. Moreover, regardless of the question of intention, it was criminal negligence to do the acts stated in the instruction, and such negligence will supply the place- of the unlawful intention. The objections made to the sixth instruction given for the people have already been sufficiently answered by the views we have expressed herein.

We find no error in the record, and the judgment of the Circuit Court is affirmed.

, Affirmed.


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    Elizabeth Perrin and Louisa Perrin v. A. S. Devendorf.

      Action to Recover Damages for Personal Injuries — Verdict for Plaintiff, not Sustained by the Evidence.

    In an action to recover damages for personal injuries, the plaintiff having been 'knocked down at a street crossing by a horse driven by the defendants, it is held that the evidence does not support the verdict for ‘the plaintiff.
    [Opinion filed January 15, 1887.]
    Appeal from the Circuit Court of Knox Coun'y; the Hon. John J. Glenn, Judge, presiding.
    Messrs. Geobge W. Thompson and F. F. Cooke, for appellants.
    Mb. Feedeeiok A. Willoughby, for appellee.
   Baker, P. J.

This was a case for personal injuries, wherein appellee recovered verdict and judgment for §800 damages.

The charge in the declaration was substantially, that while appellee, in the exercise of due care, was walking on a certain cross-walk at the intersection of Main and Seminary streets in the city of Galesburg, appellants negligently and carelessly and at a great and dangerous rate of speed rode and drove a horse and wagon and struck him, knocking him off the crosswalk and down on the street and injuring him.

We have carefully examined the evidence in the record and are wholly unable to conclude therefrom that there was any culpable negligence on the part of appellants. Elizabeth Perrin was driving a horse and buggy along the street early in the evening of October 23, 1885; and her daughter-in-law, Louisa Perrin, was riding with her in the buggy. According to their testimony, and also that of the witness Long, they were only driving at an ordinary trot. Mo witness contradicts this statement, and it is corroborated by the fact, stated by appellee’s own witnesses, that the horse stopped without going over the crossing. With the exception of the evidence of appellants themselves, there is no proof they saw appellee until he stepped in front of their buggy; and they testify he was standing on the street car track, and apparently, and as they thought, waiting for them to pass by. From the surrounding circumstances, and the age and physical infirmity of appellee, and his statements made immediately after the occurrence, the conclusion is irresistible that he got dazed, and rushed into danger, instead of out of it, and thereby occasioned the injuries which he received. It was an unfortunate accident, and no doubt appellee was seriously hurt, but it would be unjust, in the absence.of fault or wrong upon their part, to compel appellants to compensate him therefor.

The evidence does not support the verdict and it was therefore error to overrule the motion for a new trial and render judgment thereon.

For the error indicated the judgment of the court below is reversed and the cause remanded.

Reversed a/nd remanded.


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    Reuben M. Pritchard and Sarah E. Pritchard et al. v. John Walker, etc.

      Wills — Construction—Mules—Life Estate in Personal and Mead Property with Power to Sell and Convey — ■Domestic Animals — Joint Tenancy —Survivorship—Emblements— Notes — Injunction—Practice—Assignment of Cross-Errors — Sec. 79, Practice Act — Jurisdiction.
    1. In an action presenting distinct controversies respecting real and personal property, cross-errors can not be assigned under the statute merely to. defeat the jurisdiction of this court.
    2. Where two persons hold as joint tenants with the right of survivor-ship, upon the death of one the whole interest passes to the survivor. But this right does not extend to growing crops nor to crops already harvested.
    3. A life estate in personal property gives the donee the right to consume such articles as can not otherwise be enjoyed, and to wear out by use such articles as can not be used without wearing out. The remainder-man can only claim the identical domestic animals that were given for life, or the increase from them.

      4. In the construction of a will the intention of the testator, if not inconsistent with the rules of law, governs, and this intention is to be ascertained from the whole will and all its parts taken together. Every clause and provision, if possible, should be given effect according to the intention of the testator.
    5. In the case presented, it is held: That it was the testator’s intention that his widow should convert to her own use, if she deemed she had occasion so to do, the residue of the moneys in her possession, and that the remainder-men should only have such portion thereof, if any, as remained unexpended at the time of her death; that the will in question gave to the widow a life estate in a certain tract of land, with power to sell and convert the proceeds to her own use and benefit, with remainder in the land, if unsold under the power, and if sold, then remainder in such portion of the proceeds and avails as remained unexpended at her death to the sons of the testator; that the land having been conveyed the rights of the remainder-men attach to the unexpended residue of the proceeds, and to any unexpended interest and profits thereon; that the evidence sufficiently identifies the sums represented by certain notes made by the remainder-men as part of said fund so remaining unexpended; and that the remainder-men are entitled to the surrender of said notes and a mortgage securing one of them and to injunctions restraining the defendants from prosecuting suits thereon.

      [Opinion filed January 22, 1887.]
    Appeal from the Circuit Court of DeKalb County; the Hon. O. W. Upton, Judge, presiding.
    Mr. Harvey A. Jones, for appellants.
    Messrs. Geo. 0. Christian, Luther Lowell and Duane J. Carnes, for appellees.
   Baker, P. J.

The bill of complaint herein was filed by Reuben M. Pritchard, Sarah E. Pritchard, widow of Ethan A. Pritchard, deceased, and Elliott and Elotia Pritchard, children of said Sarah E. and Ethan A. Pritchard, against John Walker, administrator of Elotia Pritchard, deceased, and the heirs at law of said Elotia Pritchard, deceased, and others. The objects of the bill were somewhat manifold. One object was to enjoin the prosecution of a certain bill in chancery by said administrator against Sarah E. Elliott and Elotia Pritchard to foreclose a mortgage given by Ethan A. Pritchard, deceased, to the intestate of said administrator, to secure the payment of two promissory notes made by him to her and to have the moneys mentioned in said notes decreed to he the property of said Reuben M., Sarah E., Elliott and Elotia, under and by virtue of the limitation contained in the second clause of the will of one Reuben Pritchard, deceased, who died testate in 1856, and was the father of said Reuben M., and grandfather of said Elliott and Elotia. Another object was to enjoin the prosecution of a suit at law by said administrator against Reuben M. Pritchard, upon certain promissory notes executed by the latter to administrator’s intestate, and to have the moneys secured thereby decreed to Reuben M., Sarah E., Elliott and Elotia Pritchard, on the ground of the limitation alluded to above.

The intestate, Elotia Pritchard the elder, died October 19, 1871, possessed of chattel property, notes and bonds of the value of some §5,229.98, and another of the objects of the bill was to have the bulk of this property decreed to and vested in said Beuben M., Sarah E., Elliott and Elotia Pritchard, under the said limitation in the will of Beuben Pritchard, deceased, and to have the residue of said chattel property-decreed to and vested in the above named SarahE. Pritchard as surviving joint tenant for life under the second clause of the will of Ethan A. Pritchard, who is spoken of above, and who died July 29, 1865. And still another object of the will was to quiet the title to a tract of land containing 154 acres, and recover an equitable freehold therein.

Upon a hearing in the Circuit Court, upon the pleadings and proofs, a decree was rendered in favor of the complainants below, appellants here, in respect to the 154 acres of land, and in favor of the defendants below, appellees here, in respect to all the other matters and things involved in the cause. Appeals were prayed by each party, respectively, and allowed. Appellees did not perfect their appeal. Appellants did appeal but only from those portions of the decree regarding matters other than the tract of land in controversy, and their assignments of error question only those parts of the decree that have reference to the personal property. Thereupon appellees assigned upon the transcript of the record in this court cross-errors, some of them upon that portion of the decree in respect to the real estate. Appellants then moved to strike out such latter cross-errors, and appellees entered a cross-motion to dismiss the appeal for the want of jurisdiction in this court to hear and determine the matters presented by the record, and the assignment of the cross-errors thereon, on the ground a freehold was involved ; and these two motions were reserved by the court to the hearing.

The right to assign cross-errors is given by statute. Practice Act, Sec. 79. The statute, however, must receive a reasonable construction. We do not regard Smith v. Wright, 71 Ill. 167, and Cable v. Ellis, 86 Ill. 525, 543, as by any means decisive of the matter now under consideration. The first mentioned case only decides that if an appellee assigns a certain matter as a cross-error, and the same is decided against him, he will be concluded by the decision from prosecuting a writ of error, assigning the same matter as error; and in the Ellis case it was held that where three suits in chancery, relating to the same property, are consolidated, and thereupon one of the complainants files an amended and supplemental bill, reciting specifically and in detail all the proceedings in the three suits, reiterating his prayer for relief as in his original bill, the latter may, on appeal by one of the other complainants, assign for cross-error any decree or refusal of decree to his prejudice. The doctrine announced in Cable v. Ellis is undoubtedly the general rule ; but this before us is an exceptional case. Appellees have failed and declined to either appeal or sue out a writ of error for the purpose of reversing the decree respecting the real estate. They got all the personal property in controversy, and presumably they are content with the decree. They claim to occupy a position where, declining to either appeal to or sue out a writ of error from the Supreme Court, they can blow either hot or cold. Had appellants gone into the Supreme Court, appellees could say : “We are not objecting to the decree in regard to the real estate; that is settled by the decree below, and you assign no errors involving a freehold; and we assign no cross-errors; you should have gone to the Appellate Court.” But, as the appeal was taken to this court, the converse of this position is taken, cross-errors are assigned, and it is moved to dismiss the appeal for want of jurisdiction. The statute in question is remedial in its character and was intended to cure a defect in the law and conserve the rights of appellees and defendants in error; and it should not be so construed as that it may he used as a sword and not as a shield, and thereby occasion evils greater than those sought to be cured. It was not the legislative intention by this section to deprive one of the parties to a litigation of any opportunity whatever to have'the decree against him in the trial court reviewed by a court of errors. The writ of error is a writ of right, and the same question would arise were this record now here on error instead of by appeal.

We think the rule laid down in Cheney v. Teese, 113 Ill. 444, should apply here. This is the only court to which appellants could go for the purpose of raising the only questions they coul d raise upon the record. If they can not remain here, they are remediless. As a general rule, Appellate Courts will not review cases by piecemeal; but they will do so under particular circumstances of hardship, and where otherwise there would be a failure of justice. Besides this, the controversy about the 154 acres of land is a wholly different and distinct contention from those respecting the personal property, and the issues both of law and of fact involved in the two branches of the litigation are’ wholly unlike. This court obtained jurisdiction and rightfully, to determine the questions raised by appellants with reference to the personal property, and it can not be ousted of this rightful jurisdictipn by the assignment' of cross-errors.

The motion to dism'ss the appeal is overruled, and the motion to strike the cross-errors from the record so far as they seek to question the decree in regard to the 154 acres of land, is sustained.

A number of contentions arise upon that portion of the decree that is before us for examination.

The second clause of the will of Ethan A. Pritchard gave to his wife, Sarah E. Pritchard, and to his step-mother, Elotia Pritchard, during their joint lives, and to the survivor of them during her natural life, the possession, rents, use and income of his farm, containing 353 acres. A devise of the rents and profits or of the income of lands passes the land itself, both at. law and in equity; and the effect of Sec. 5 of the Conveyance Act is not to forbid the creation of a joint tenancy by grant or devise, but it is merely required by that section such tenancy shall be expressly declared in the instrument, and that was done in this instance by the use of the words, “ during their joint lives, and to the survivor of them during her natural life.” So they held a life estate as joint tenants, with the right of survivorship; "and when Elotia Pritchard died on the 19th of October, 1871, the whole interest of the joint tenants belonged to Sarah E. Pritchard, the survivor. The only serious claim made by virtue of this will upon'the personal property in the hands of Walker, administrator, is to a lot of hay in stacks and in barn, quantities of oats and barley in grainery and a quantity of corn in cribs and in barn. It does not appear from the evidence, at least as abstracted, in what year these products were raised. So far as concerns the hay, oats and barley, it is a matter of no moment in what year they were grown, as the court will take notice of the seasons, and that the crops specified were matured and harvested, in any event, months before the death of the administrator’s intestate, and that when severed from the freehold the title to a moiety vested in her without right of survivorship in her co-tenant. In respect to the corn, the burden of proof was upon appellants to establish their ownership, and the evidence does not show whether it was grown that year or some prior year, or whether it was rent corn or planted and cultivated by intestate as tenant for life; the farm had been leased to the Houghs, but that lease came to an end in the fall of 1870. Besides this, the tenant for life is entitled through his lawful representatives to the profits of the annual and growing crops as emblements. The decree of the Circuit Court upon this part of the case was right, and is affirmed.

The other claims urged by appellants are based upon the provisions of the will of Bsuben Pritchard. The second clause of that will was as follows:

Second. I give, devise and bequeath to my beloved wife Elotia Pritchard, in lieu of her dower, certain lots of land being in the County of DeKalb and State of Illinois, and described as lots two ; the northeast quarter and east half lots one and two, the northwest quarter of section four in township (38), north of range (4) east, containing 168 and 20-100 acres of land according to government survey. I appoint and fully authorize my wife, Elotia Pritchard, with full power and authority to sell and convey the title to the above described lands at any time, and convert the avails to her own use and benefit; and also I further bequeath during her natural lifetime, one span of horses, one an iron gray and one a bright bay, and two colts, one black and one bay coming three years old, three cows and all the household furniture now by me owned, and all the farming tools that are used and by me owned on the premises that I now occupy, and other items not particularly named and disposed of in this will during her natural life as aforesaid, and at tlie death of my said wife, ah the property hereby devised or bequeathed to her as aforesaid, or so much thereof as may remain unexpended, to my two sons, Eeubcn hi. Pritchard and Ethan A. Pritchard, and to their heirs and assigns forever. ”

It is plain that by the terms of this bequest Elotia Pritchard was made legatee for life of the specific live stock and chattel property mentioned therein, with remainder over to her stepsons. It was provided, however, that the sons should take as such remainder, not the whole of the property absolutely, but it or such of it as should be unexpended at the death of the life tenant. Hone of the chattels left by Elotia Pritchard at her decease and inventoried by her administrator are identified as being the precise or specific articles of property that she took under the will as legatee for life. A life estate in personal property gives the donee a right to consume such articles as can not be enjoyed without consuming them, and to wear out by use such articles as can not be used without wearing out. The fifty bushels of wheat and 100 bushels of oats were evidently intended by the testator for consumption on the farm, and the horses, cows, wagons, harness, farming utensils and lumber intended for use on the farm, and presumably during the fifteen years that elapsed between the death of the testator and that of the legatee for life, the articles mentioned either died or were worn out, or used and consumed for legitimate farm purposes. It makes no difference that cows, heifer s steers and calves appear in the inventory made by the administrator, for they are not shown to be the domestic animals that were given for life, or the increase from them. In the inventory of the estate of Eeuben Pritchard, promissory notes and money on hand, amounting in the aggregate to $850, are mentioned; but the first clause of his will directed that his funeral expenses and just debts should be paid, and we are unable to say, in the absence of proof, that there is any presumption that these notes and moneys, which were not specifically given by the will, were not used by the executors in payment of funeral expenses, debts, and costs of administration, bat went to the legatee for life under the words, “ and other items not particularly named and disposed of in this will,” as a residuary bequest. But, even if such were the case, we think it is manifest from a consideration of the various provisions of the will, and in the light of the surrounding circumstances, that it was the intention of the testator that his widow should convert to her 0WS1 use and consume, if she deemed she had occasion so to do, the residue of moneys in her possession, 'whether on hand at his death or realized from the notes, and that the remainder-men should only have such portion thereof, if any, as remained unexpended at the time of her death. In our opinion the decree of the court upon this part of the case should likewise be affirmed.

The more important question in the case is with reference to the devise of the 168 acres of land. The doctrine is that a will may create a life estate with power to sell and convey the fee, and limit a remainder after the termination of the life estate. Kaufman v. Breckinridge, 117 Ill. 305, and cases there cited. In Hamlin v. United States Express Co., 107 Ill. 443, the Supreme Court laid down certain principal rules of construction as applicable to such cases as this, and cited a number of prior decisions of the court as authority therefor. These principal rules are: “The intention of the testator, if not inconsistent with the rules of law, shall govern, and this intention is to be ascertained from the whole will and all its parts taken together. Every clause and provision, if possible, should have effect given to it according to the intention of the maker. A later clause of a will when repugnant to a former provision, is to be considered as intending to modify or abrogate the former.” In the Hamlin case the first clause of the will, by its express terms, gave the real estate with full power to hold, use, enjoy or dispose of it, and convey it by absolute conveyance in fee simple, and this language considered by itself would vest an estate in fee in the donee. The only words found in the will to qualify the language so used and indicate the intention of the testator was to limit and restrict such language, so that the effect would be to vest in the donee not the title in fee, but an estate for life with power to dispose of and convey the fee, and with remainder for the benefit of specific legatees, are those that occur in the subsequent clause of the will and create the remainder by directing the limitation over in respect to all real estate not conveyed by the first donee. The decision in the Hamlin case is cited with approval in Kaufman v. Breckinridge, above. So, also, in Bergan v. Cahill, 55 Ill. 160, and Friedman v. Steiner, 107 Ill. 125, the qualification to reduce the fee that is apparently donated to an estate for life is found only in the limitation clause of the will. The primary consideration is an ascertainment of the intention of the testator, and it is wholly immaterial in what part of the will the words are found which indicate such intention. Hor do we deem it essential to the creation of a life estate, that the intention so to-do should be expressed in any set form of words; and all that .is required in order to show such an estate and not the fee simple title is given the donee, is that it shall clearly appear from a consideration of all the various clauses-and provisions of the will, when taken and compared together, that it was the testamentary intention the donee should have a life estate.

We are of opinion the will in question gave to Elotia Pritchard a life estate in the 168 acres of land, with power to sell and convey the same in fee and convert the proceeds and avails thereof to her own use and benefit, with remainder in the land, if unsold under the power, and if sold, then remainder in such portions of - the proceeds and avails as remained unexpended at time of the death of the donee, to the two sons of the testator. Both the land and the personal property are given by one and the same general clause of the will, and at its close the testator says: During her natural life, as aforesaid, and at the death of my said wife all the property hereby devised or bequeathed to her as aforesaid, or so much thereof as may remain unexpended, to my two sons.” It would seem the words, “all the property hereby devised or bequeathed,” included both the real estate and the chattels mentioned in that clause of the will. If the testator intended by the first sentence of the clause to invest his wife with the title in fee, then the donation of the power to sell and convey was wholly inoperative and useless. So, also, was the power to convert the avails of the land, as she would be invested with that right as the owner of the fee simple title. One of the rules of construction in the interpretation of wills is to1 give effect, vitality and force, if possible, to each and all of its provisions. So, also, the limitation upon the uses to which the avails of the land were tó be applied, that her power should not extend to any disposition she might think fit to make of the proceeds derived from the sale, but that she should have authority only to convert the avails to her own use and benefit, is inconsistent with the idea he regarded her in the light of an owner in fee simple absolute, and is an indication it was his intention that the proceeds not consumed for her own use and benefit, but remaining “unexpended” at her death, should vest in his two sons as provided in the latter part of the clause.

In 1857 Elotia Pritchard sold a part of this land for §1,000, and on the 2Sth of October, 1862, sold the residue for §1,100, making §2,100 in all.

The land having been conveyed and converted into money, equity will regard the money as substituted for the land. It is to be noted, however, that the legatee for life had authority to convert this money to her own use and benefit, and that the rights of appellants as remainder-men, attached only to the residue of the fund, if any, remaining unexpended at the' death of the life tenant. Has any of the fund been identified as so remaining “unexpended”? On the 12th of October, 1858, Ethan A. Pritchard, now deceased, one of the remaindermen, executed to Elotia Pritchard two promissory notes of that date, one for §232, and the other for §300, making §532 in all, and secured them by a mortgage on real estate, and the suit to foreclose that mortgage was enjoined in this cause.

On the 15th of December, 1865, Beuben M. Pritchard, the other remainder-man, made to Elotia Pritchard his promissory note for §925.98, drawing 8 per cent, interest; and on the 29th of July, 1869, he made to her his note for §600, drawing ten per cent, interest. There is no direct and positive proof of the consideration for which 'or the circumstances under which these notes were given. The mouths of Elotia and Ethan A. Pritchard have been closed by death, and the mouth of Reuben 34. Pritchard is closed by the Jaw, and they were the only parties to these transactions. The claim of appellants is that by and through arrangements made between the legatee for life and the remainder-men the latter were permitted to anticipate their legacies upon executing interest-bearing notes, the principal sums to be repaid in case they were needed for support during the natural life of Elotia, otherwise not. The circumstances in proof tend to establish this view of the case. The principals of the two sets of notes amount to $2,057.98. and the 168 acres of land sold for $2,100, the two sums being almost the same. The notes of Ethan A. for $532 were given shortly after the first sale of land for $1,000; and the notes of Reuben M. were given after the second sale of land. It is highly improbable that in 1858 Elotia would have had over $500 to loan other than the moneys derived from the sale of land effected in 1857, for at the death of her husband, in 1856, she had no property other than that derived through his will, except the claim she held upon the tract of 154 acres of land upon which they had both lived and she continued to live, and only twenty-five acres of that was tillable, and it is not to be presumed she could have saved anything of any moment from the rents, issues and profits of that twenty-five acres in the course of two years. Eo other probable source from which she might have derived the $532 is suggested, for she did not get the life interest as joint tenant in the farm of 353 acres until the death of said Ethan A., in 1865. It further appears that up to the time of his decease Ethan A. paid and somewhat overpaid the interest that accrued upon his notes.

Elotia became possessed as joint tenant for life, of the farm of Ethan A., on the 29th of July, 1865, and very shortly thereafter the Reuben 34. Pritchard note for $925.98 was executed to her, and that sum was within less than $175 of the amount she had received for the purchase money of the residue of the land she had held under the will of her deceased husband. It further appears from the testimony of several witnesses that Elotia stated on divers occasions that the Eeuben M. Pritchard notes belonged to him; and at one. time she got hurt and was afraid she was going to die and surrendered the notes to him, but on her recovery got them back, saying at the time that she thought she would need them, but that after she got through with them she wanted them returned to him. It also appears Elotia was always on the most friendly and intimate terms with her two step-sons and with their families, and frequently expressed her intention to make a will for their benefit, but died suddenly without so doing. Upon consideration of these facts and other corroborative circumstances in proof, we are of opinion the evidence sufficiently establishes that the sum of money included in the two Ethan A. Pritchard notes and in the Eeuben M. Pritchard notes, for §925.98 and §600, respectively, are parts and parcels of the fund which appellants, as remainder-men, under the will of Eeuben Pritchard, are entitled to have. The note of Eeuben M. to Elotia Pritchard, for $180, is also a part of the same fund, for it affirmatively appears upon its face it was given for interest accrued upon the other notes, and it must be regarded in the light of an accretion to the common fund. In the view we have taken of this will, the fund created by the devise therein and the exercise of the powers conferred, to sell the subject of the power, and then convert the avails thereof to the use and benefit of the donee of the power, with limitation over only in respect to the unexpended residue of such avails, is in effect a common fund in which both the principal sum and the interest, profits and income accruing thereon would enter as component parts, with a vested right in the legatee for life of the fund to spend therefrom at will, for her own use and benefit, with remainder at her death, in whatever of the common fund then remained unexpended, regardless whether it be principal or interest. In this respect it differs from an ordinary legacy for life with limitation over, where the legatee for life would be entitled only to the interest accrued up to -the date of his death, and the remainder-man would take the principal of the fund and that only.

In our opinion the evidence does not show that the other notes and bonds inventoried by the administrator of Elotia Pritchard, and amounting in the aggregate, without interest, to §1,741.22, are any part of the fund created under the will of Reuben Pritchard. The notes all bear date as late as or later than 1869, and they as well as the United States and Lee County bonds were probably procured with funds derived from the lands held in joint tenancy under the will of Ethan A. Pritchard.

To the extent that" is indicated herein, the decree of the Circuit Court is reversed and the cause remanded, with instructions to enter a decree declaring the notes and mortgage executed by Ethan A. Pritchard to Elotia Pritchard, and the notes for §925.98, §6U0 and §180, respectively, executed by Reuben M. Pritchard to Elotia Pritchard, to belong to and be. the property of appellants as legatees in remainder, and directing that said mortgage and all of said notes be surrendered and delivered to appellants, and also ordering that appellees be perpetually enjoined from prosecuting the suit to foreclose said mortgage, and also ordering that they be perpetually enjoined from prosecuting the suits at law so far as they seek to recover upon the five promissory notes above mentioned and specified.

jReversed and remanded.