author: Pleasants, J.

text:
    Blackburn University v. Henry H. Weer, First National Bank of Carlinville, Milton McClure and C. H. C. Anderson.

      Foreclosure of Mortgages — Limitation Act of 1812 not Retroactive — Construction — Bill to Foreclose — Assumption of Mortgage Debt — Principal and Agent — Limitation—Payment as Nexo Promise — Parties.
    1. Statutes of limitation are not given a retroactive effect, except upon a clear expression of the Legislative will.
    2. The Act of 1872, limiting the time for the foreclosure of mortgages, does not apply to a mortgage previously given to secure the payment of a promissory note.
    3. Upon a conveyance made in 1866, of certain lots in Carlinville, the deed reserved a lien to secure a note given for part of the purchase money.
    In each of several subsequent conveyances of said lots,'the last made December 25, 1872, the lien was expressly retained, each grantee assuming and agreeing to pay the note. The interest was paid to the legal holder, a purchaser before maturity, by various of the grantees, the last grantee paying it from December 25, 1872, to January 26, 1883. Subsequently the last of said grantees conveyed the lots by mortgage and quitclaim deed. Upon a bill filed February 5, 1885, to enforce the lien securing said note, held: That the note held by complainant is the original note, a difference of date being a mistake; that the bill is not barred by the Act of 1872, limiting the time for the foreclosure of mortgages; that, in the absence of proof to the contrary, the payments of interest by the grantee of the maker, are to be taken, as against the holder of the note, as payments by the maker through him as his agent; that said payments arrested the running of the limitation of sixteen years against the note; that those holding under said last mortgage and said quitclaim deed, with notice of said first mortgage, are bound by said payments of interest as new promises which arrested the running of the statute against the mortgage debt; and that the right to file this bill was among the “ rights or liabilities ” saved by Sec. 24 of the Act of 1872.
    [Opinion filed May 19, 1886.]
    Appeal from the Circuit Court of Macoupin county; the Hon. W. It. Welch, Judge, presiding. '

    Messrs. S. S. Gilbert and Palmers, Robinson & Shutt, for appellant.
    Part payment of a note is prima facie evidence of its execution. Walter v. Trustees of Schools, 12 Ill. 64; Melvin v. Hodges, 71 Ill. 424.
    The cause of action accrued prior to July 1, 1872, and the rights of the parties are to be determined without reference to Sec. 11 of the Act of 1872. Beesley. v. Spencer, 25 Ill. 216.
    The existence, of the mortgage debt is essential to the life of the mortgage. When the debt is paid, discharged, released, or barred by the Statute of Limitations, the mortgage is extinguished. Emory v. Keighan, 88 Ill. 482; Pollock v. Maison, 41 Ill. 517.
    The payment made by Rusher, within sixteen years, operates to defeat the bar of the statute. Carroll v. Forsyth, 69 Ill. 127; Lowery v. Gear, 32 Ill. 382.
    A payment of interest or part of the principal renews the mortgage. 2 Jones on Mortgages, Sec. 1198.
    Irrespective of the fact that the successive grantees were bound by the acceptance of their deeds to pay off the note, the mere part payment by them would keep the mortgage alive.
    The note was given by Rusher to McConnell for $1,000 purchase money; this controlling and decisive fact is not denied by the answer of the defendants, and is proven by the deed of McConnell. All subsequent parties had notice oí that fact.
    Liens preserved in deeds like this, are in the nature oí mortgages, and are not technical vendor’s liens, as those terms are understood in courts of equity.
    The lien in question is a lien by contract. The vendee’s title is imperfect until the debt is paid. 1 Jones on Mortgages, Sec. 230.
    It is not to be-supposed that the Legislature intended to make ten years ,a peremptory bar to a proceeding to foreclose a mortgage, though the note which it was intended to secure was kept alive by payments, or a new promise.
    Messrs. Rinaker & Rinaker, for appellees.
    The bank and McClure never having assumed the payment of the debt secured by the Busher mortgage, have the right to resist its enforcement against the lots in controversy. Maher v. Lanfrom, 86 Ill. 513; Dunn v. Rogers, 43 Ill. 260; Fowler v. Fay, 62 Ill. 375.
    They may make every defense any innocent purchaser or incumbrancer might make.
    More than sixteen years since the last payment made by Busher had elapsed before this suit was brought, and all right to sue Busher upon his note at law was barred under that statute, and the existence of the debt is essential to the life of the mortgage. When the debt is released or barred by the Statute of Limitations, the mortgage is extinguished. Emory v. Keighan, 88 Ill. 482.
    The life of the note is not prolonged because of the consideration for which it was given.
    When Hamilton assumed the payment of the debt secured by the mortgage from Busher to McConnell, he thereby became the principal debtor, and Busher the security. Jones on Mortgages, 741.
    A payment by the principal debtor will not prevent the bar of the Statute of Limitations as against the security. Knight v. Clements, 45 Ala. 89.

      Nor will the payment by a joint maker have that effect. Rush v. Stowell, 71 Pa. St. 208; Kallenbach v. Dickinson, 100 Ill. 427.
    The action at law on the note against Busher is barred and the mortgage is extinguished. Ilet v. Collin's, 103 Ill. 74.
    This is not a suit on the note, and the old statute has no application to the case. This is an attempt to foreclose a mortgage. The suit is brought more than ten years after the right to foreclose the mortgage accrued.
    It is competent for the Legislature to enact a Statute of Limitations operating on existing rights to action, where there is a reasonable time allowed for bringing suits. Koshkonong v. Burton, 104 U. S. 668, 675, and cases cited.
   Pleasants, J.

On the 16th day of July, 1866, John T. McConnell and Camilla, his wife, by warranty deed of that date, in consideration of $3,000, conveyed four lots in Carlin-ville, therein described, to Jackson Busher, with the following provision: “And the party of the first part hereby retains a lien upon the said premises by way of mortgage to secure a certain note of this date for the sum of one thousand dollars, due on the 26th day of January, A. D. 1867, payable to said John T. McConnell with interest from date at the rate of eight per cent per annum until due, and after maturity to draw interest at the rate of ten per cent per annum, being given for a portion of the purchase money for the said premises.”

Some short time afterward McConnell, for a valuable consideration, assigned to the Blackburn University a note, of which the following is a copy: “ $1,000. On or before the 26tb day of January, A. D. 1867, for value received, I promise to pay to John T. McConnell, or order, the sum of one thousand dollars with interest from date at the rate of eight per cent per annum until due, and after maturity to draw interest at the rate of ten per cent, per annum. June 16, 1866. Jackson Busher.”

By his deed of February 20, 1868, Busher conveyed said lots to John H. Caynor; September 7, 1868, Caynor reconveyed to Rnslier; January 19, 1869, Rusher conveyed to Julius Hamilton, and he, on December 25, 1872, to appellee Weer.

In each of these deeds, after the one first above mentioned, the lien thereby declared was expressly retained, and payment of the note so secured, or intended to be, assumed by the grantee, and all, including the first, were duly recorded shortly, after the execution of the same respectively.

Interest was paid each year on said note in the hands of • appellant’s treasurer — by Rusher to January 26, 1869; by Hamilton from that time to December 26, 1872, and by Weer thereafter to January 26, 1883.

On the 13th of March, 1883, Weer executed to the First Rational Bank of Carlinville a mortgage upon said lots, and on January 26, 1885, to Milton McClure, who was president of said bank and therein described as its custodian,” a quitclaim deed of the same.

, Ho further payment being made upon, said note the bill herein was filed February 5, 1885, by the University against said Weer, the Bank, McClure and Anderson, setting forth the. facts above stated, averring that the note so assigned to complainant was the identical note referred to in the deed from McConnell to Rusher and was actually made by Rusher on the same-day the deed was executed, though the month in the date was--. written “ June ” by mistake for “ July;” that McClure, for the-bank, has leased or claims to have leased the premises described, to Weer for a year, and that Anderson is or claims to be a judgment creditor of said Weer;. that the liens' retained by the several deeds are all valid and subsisting and inured to the. benefit of complainant for its security, and that its rights in. the premises are prior and superior to those of the defendants;; and praying that they may be so declared by a decree to that-effect, that an account be taken of the amount due it, and the=' defendants, or some of them, required to pay the same by a: time to be fixed, or in default thereof that the lots be sold, and the equity of redemption foreclosed.

■A demurrer to the bill interposed by the defendants having - been overruled, the Bank and McClure filed a joint, and Weer - a separate answer, alike in their material parts, which denied. that the note assigned to complainant was the one intended to be described in the McConnell deed, and set up the Statute of Limitations. Anderson was defaulted. Replications to the answers were put in, the cause referred to the master, proofs taken and reported, and on final hearing the bill was dismissed.

Inspection shows that the note in evidence corresponds ex-actly with the description in the McConnell deed in the following particulars: (1) The year of date; (2) the day of the month; (3) the payee; (4) the amount of principal; (5) the date of maturity; (6) the rate of interest until that date; (7) the new rate thereafter, and the statement in the deed that it was given for purchase money, affords ground for inference that it was made by the grantee therein' named. It varies from the description only as to the month of the date, which is the one next preceding — a mistake of easy and frequent occurrence. That it was a mistake in this case is manifest from the amount of Rusher’s first payment on February 9,-1867, which was §42.22, being the exa'Ct amount of interest due. at maturity from the 16th of July instead of June. The payment of interest upon it by each of the parties who assumed to pay it upon the one mentioned in the deed recognized it as the same, and we can not entertain the slightest doubt of its identity.

Of the existence, character and amount of this lien the Bank and McClure had constructive notice by the recorded deeds. They also had actual notice from Weer himself as he testifies, and McClure admits that the note was outstanding, unpaid, and in the hands of complainant by its treasurer. A recorded assignment of the lien by McConnell to complainant could have given them no fuller or clearer information. They therefore occupy no such position as was protected in Ogle v. Turpin, 102 Ill. 148, but stand in Weer’s shoes and hold subject to complainant’s claim unless it is barred by the Statute of1 Limitations, which is the only question in the case.

The provision relied on is Sec. 11 Ch. 83 of the R. S. 1874, which became a law on July 1, 1872, and declares that <(Ho person shall commence an action or make a sale to foreclose any mortgage or deed of trust in the nature of a mortgage, unless within ten years after the right of action or right to make such sale accrued.”

The deed from Hamilton to Weer by which the latter assumed to pay this lien, was executed December 25,1872, after the statute took effect. The note being then overdue, the right to foreclose as against Weer accrued immediately, and yet the bill herein was not filed until February 5, 1885, more than ten years thereafter.

Appellees therefore claim that the right to foreclose upon Weer’s assumption was absolutely barred by the statute, and further, that Rusher, the original mortgagor, paid no interest on the note after January 19,1869, which was seventeen days more than sixteen years before the filing of the bill; so that under the rule of the courts as held before the statute, by which the right to foreclose ceased only with the right to maintain an action for the debt, it was also barred as to him.

Perhaps it may be doubted whether this 11th section, which in terms applies only to “ a mortgage or deed of trust in the nature of a mortgage ” — technical terms, having a well known common law meaning — embraces a lien of the kind here in question, notwithstanding it may be within the reason of the law. Bedell v. Jenney, 4 Gilm. 205 et seq., and authorities there cited; Hazel v. Shelby, 11 Ill. 9. But since the earlier strictness of construction has been somewhat relaxed (C. & N. W. Ry. Co. v. Jenkins, 103 Ill. 595-6), we are not prepared to hold it does not.

Assuming it does, it becomes important to ascertain what lien or liens this bill seeks to enforce,' and the relations of these successive grantees, by virtue of their several assumptions and of their ownership of the equity of redemption, to each other, to the original mortgagee, McConnell, and his assignee, the complainant. Counsel for appellees insist it is the lien retained by the deed from Hamilton to Weer of December 25, 1873, and none other. If this were true, we might not deny that the bill was rightly dismissed. Considered solely as an original, independent lien, it may be that it was barred by the statute, though if it were legally possible to arrest .its running, he .certainly,did it.by his repeated payments of the interest. But for reasons here following, wé do not feel called on to express an opinion upon that .question.

The counsebwho thus insist, however, open, their argument here with the statement that “ this was an action by bill to foreclose a mortgage * * * executed by JaeksonRusher on the 16th of July, 1866.” This statement, we apprehend,, is cott reet so far as it goes, but does not fully present the character and object of the bill. The "bill itself does not.-explicitly state them, but besides. ,the. reservation in the deed . to Rusher, it is careful to.set out also the retention clauses in the several subsequent conveyances, and -expressly.avers-they are all valid and subsisting liens and inured to complainant’s benefit. It thug relies upon each and. all, and if either was subsisting it was prior to the claims of appellees and, warranted .the relief asked. , . . ...

Here then, were- a -promissory- note assigned to appellant before its maturity, .and several successive, and distinct, but not unrelated liens by way of - mortgage to secure it, executed before there was any statute limiting the time within which foreclosure.might be had. Were they all barred by the Act of 1872? - '.. ..-

The following general- propositions -are so familiar that ,we need only to indicate them with the utmost brevity : ■

. The assignee of a note secured is regarded in equity as the purchaser of all the securities and remedies attached to it. Vansant v. Alimon, 23 Ill. 30; Lucas v. Harris, 20 Ill 165.

■ A, mortgage, .considered as.security,-is only an incident- to the debt, and.untilthe Act of 1872 took effect subsisted.against a bar by limitation just-as long as its principal. Lock v. Caldwell, 81 Ill. 417; Hagan, v. Parsons, 67 Ill. 170; Medley v. Elliott, 62 Ill. 532; Pollock v. Maison, 41 Ill. 546; Olds v. Cummings, 31 Ill. 188; Roberts v. Lawrence, 16 Ill. App. 455, and cases last above.

. The courts do not give to statutes of limitation a , retroactive effect by construction, but only upon a clear expression of the Legislative will. Conway v. Cable, 37 Ill .90; Marsh v. Chestnut, 14 Ill. 227; Thompson v. Alexander, 11 Ill. 54; Smartv. Morrison, 15 Ill. App. 228-9. "This rule has been expressly applied .to the act in question. Dickson v. C., B. & Q. R. R. Co., 77 Ill. 332; Hyman v. Bayne, 83 Ill. 256; Means v. Harrison, 114 Ill. 248;'Smart v. Morrison, 15 Ill. App. 228.

The law in force when a cause of action accrues will govern, unless the later one clearly indicates otherwise. Beasley v. Spencer, 25 Ill. 216.

Every promise by the .debtor'to pay the debt, expressed or implied, arrests the running of the statute,.and such a promise is implied by his partial, payment of the principal or any interest. Kallenback v. Dickinson, 100 Ill. 427; Carroll ,v. Forsyth, 69 Ill. 127; Lowery v. Gear, 32 Ill. 382. Payment by another for him, by his authority or with his consent, is the same in effect. Kallenback v. Dickinson, 100 Ill. 427; Mellick v. De Seelhorst, Breecher’s Breese, 222.

All who claim "under á mortgagor, 'with notice of the mortgage at the time they acquire their interest, whether actual or constructive, are bound by his payment as a new promise arresting the course of the statute against the mortgage debt. Emory.v; Keighan, 88 Ill. 482; Hughes v. Edwards, 9 Wheat. 489 ; Heyer v. Pruyn, 7 Paige, Chy. R. 465; Palmer v. Butler, 36 Iowa, 581-2.

The application of these propositions is obvious. The statute in force when the note here in question was given and matured was that of ^November 5, 1849, which limited the right of action thereon to sixteen years from the time the cause accrued. It has been seen that the last payment on account of it by Rusher, the maker, in person, was made a little more than sixteen years before the commencement of this suit. But Hamilton Ms immediate grantee of the equity of redemption in the mortgage premises, who was charged by him and assumed to pay it, and is presumed to have deducted from the price an amount sufficient for that purpose, made payments on account of it within the sixteen years next before the filing of the bill herein. Why, then, were not these, in effect, payments by Rusher, which arrested the running of the statute against the note as'to him ? And why are not the appellees, all of whom claim under him, with notice, also hound by them as to their effect upon the mortgage ?

Counsel say that by his assumption of the debt Hamilton became principal debtor and Rusher surety, and that payment by the principal will not prevent the bar of the statute in favor of the surety; citing, Kallenback v. Dickinson, 100 Ill. 427. But the reason for this, as the case cited and the authorities there referred to-show, is, that operating as it does in that be-, half only as a new promise, it can bind only those by whom or whose authority it is made; and there can be no • presumption that a principal, in making payment, acts for or by authority of his surety. Being primarily his own debt he pays it for himself. • So of a co-contractor, or copartner after dissolution of the partnership. But, as the same authorities further show, it is otherwise when made for another and by his authority, express or implied, as by a surety for his principal, or by a copartner for his firm during the existence of the co-partnership.

We apprehend that Rusher could not, by a,ny arrangement with Hamilton alone, affect his relation or liability to appellant, and that Hamilton, by his assumption of the debt and lien, became principal in his stead only as between himself and Rusher. In Jones on Mortgages, Sec. 740, it is said: “ As

between these parties.(the mortgagor and his grantee assuming the debt) the purchaser then becomes primarily liable and the mortgagor only a surety for the payment of the debt,” and in Sec. 741 the statement is repeated, in substance, with this addition: “ The mortgagee may treat both as principal debtors and may have a personal decree against both.”

Hamilton’s assumption, then, did not, ipso facto, extinguish or change the liability of Rusher to appellant. Its effect was to give it an additional obligation and security at its option. There is no evidence in the record of its consent or intention to hold Rusher as surety only, unless_it be the bare acceptance of interest from Hamilton. But apart from the deed there is nothing to show the character in which he made the payments, and none whatever as to that in which appellant recognized him. In such absence of proof the presumption would be it treated him as would best subserve its own interest without any. violation of his rights, and a court of equity might well so hold upon the principle declared in Edgerton v. Young, 43 Ill. 464, and Ætna Life Ins. Co. v. Corn, 89 Ill. 170.

This would be as the agent of Rusher, the original debtor and mortgagor, who had conveyed to him the equity of redemption in the mortgaged premises and thereby expressly ■ charged him' to .pay the debt. Rusher must have known that Hamilton’s acceptance of the deed did not discharge or change his liability to' the creditor. It was therefore a clear authority given to pay it for him.

In Barger v. Durvin et al., 22 Barb. 68, after a discussion of the principle involved and a review of the authorities, the case and the law applicable to it are thus briefly stated by the court: “ Here the defendants, within six years before this suit was barred as to them by the Statute of Limitations, conveyed their property to trustees, and' directed them- to pay this note among others, naming and describing it; to pay in full if their property was sufficient, if otherwise, to pay a ratable dividend upon it, with other debts. Is there any difference in principle between this authority and that conferred by an express, written direction by the debtors to an agent to pay a particular amount upon a given debt? There could be no doubt that a payment by an agent, under such an authority and direction, would be equivalent to a payment by the debtor himself, and would afford incontrovertible evidence of liability and a new promise.

I can see no reason why the act of the assignees of these defendants, under all the circumstances of the case, should not be treated as an act of. the defendants themselves, by an agent duly authorized for that purpose, and as evidence of a new promise by the debtor to pay this note.” There appears to be no substantial difference in principle between that case and the one at bar.

Still more analogous, and more nearly than any other we have found, is that of E. J. Cockfield, tutor, etc., v. Farley et al., 21 La. Ann. 521. It was a contest between mortgage creditors for the proceeds' of the sale' of the mortgaged .premise's in the hands of the Sheriff. At the succession sale of ¥m. Cockfield, Mrs. Myers purchased the land, giving for .-a part of the purchase money the note held by plaintiff, payable May 1, 1861, secured by mortgage upon the same prcm•ises. On May 12, 1859, she conveyed it to Lewis, who assumed her outstanding note and gave others.of his own se■cured by like mortgage, which were held by the defendants. .On Nov. 21, 1865, Lewis sold it to Pipes, who assumed the .payment of all, and on March 12, 1866, paid a large sum on .the.note of Mrs. Myers. ..

The premises were sold at the instance of defendants under fth'e mortgage executed by Lewis to Mrs. Myers. Plaintiff .opposed the application of the fund to the mortgage of dedéndants, claiming priority for the balance due on her note: ¿Defendants claimed that said note was barred by the Statute ¡of Limitations as to her, and consequently her mortgage also, .■but admitted it was valid and subsisting as against Lewis, who had assumed'its payment, and so insisted that,.being secured .only by the same mortgage which also secured those held by tliem, it could only be - paid concurrently with • them. The .court said: “We do not concur in the view taken by the defendants. A large payment Aras made on the note before prescription accrued by Pipes, who in a notarial act assumed to pay the nóte for the maker, Mrs. Myers. We regard the payment made by the purchaser, who retained in his hands the amount due to the original vendor and had assumed to pay it, as an interruption of prescription as to both himself and the original debtor, being made in discharge of the obligation of the latter Avith her implied assent.” Plaintiff’s .claim was accordingly given preference. Here payment by a remote grantee of the mortgagor, who had assumed to pay the debt, was held to arrest the running of the statute in favor of the mortgagor because of implied authority from her to make it. By this rule even the payments by Weer would have kept the debt alive as' against Rusher, much more those made by Hamilton, the immediate grantee, expressly-charged to make them.

; We hold that, as to appellant, Hamilton was the agent of Rusher, duly authorized to make these payments for him. Here, then, were a promissory note and a mortgage to ■secure its payment, executed before the limitation law of 1872 took effect, on account of which payments were made by the maker and mortgagor through his duly authorized agent within sixteen years before the filing of this- bill. And the question remains whether that act applies to and bars such a mortgage after ten years from the time it came into effect.

It is not claimed that this act which reduced the limitation of actions on promissory notes from sixteen to ten years, would affect any right accrued on this note under the act previously in force. Even without the saving by Sec. 24 of rights accrued under acts thereby repealed, the ■ right of action on this note for sixteen years- after the last payment upon it by the maker or by his authority would have been saVed, because the courts will not give to limitation laws a retroactive operation without a cléar expression of the Legislative intention to that effect. But it is contended 'that' 'since there was no statute previously in- force" limiting the time for foreclosure, the act might operate upon existing mortgages without violating the rule against retroaction; and the general proposition thus contended for is sustained by the Supreme Court in Gridley v. Barnes, 103. Ill. 211. But does it apply to mortgages previously given to secure promissory notes ?

The saving clause in Sec. 24 is that this section, which is held to mean this act in Hyman v. Bayne, 83 Ill. 256, “ Shall not be construed so as to affect any rights or liabilities, or any causes of action that may have accrued before this act shall take effect;” that is to say, the express repeal of" the Act of Nov. 5, 1849, which was in force when appellant’s rights upon this note accrued, shall leave them in full force as they were under that act.

'In Means v. Harrison, 114 Ill. 248, 'the Supreme Court noticed that this saving clause is of unusual breadth for such á provision, embracing “rights or liabilities” as well as “ causes of action,” and held it applicable to a note made before, but upon which a cause of action did not accrue until after the act took effect. They say “ some additional meaning should be allowed to the words rights or liabilities ’ and that the act was designed to be wholly prospective in its operation, and not to affect contracts then existing.” The Appellate Court for the Fourth District had before taken the same view. Smart v. Morrison, 15 Ill. App. 228.

This construction would seem to save all existing remedies and means for realizing rights and causes of action accrued or accruing under.the repealed acts..

To the note here in question there was attached, as incident to it, what was not attached to notes in general — something more than a right to bring an action at law upon it. at any time within sixteen years from its maturity or from the date of the last payment on account of it. There was a “ right ” to proceed also in equity within the same time, to enforce a specific lien for the amount due, upon certain lots of land, and a corresponding “ liability'” of the maker, as owner of the equity of redemption in those lots, and of those claiming under him, though not parties-to the note, to have "them sold under a decree for that purpose. This was a very substantial right, being not merely a remedy in addition to the action at law, but a security also. It came with the note and depended wholly upon it. Doubtless it was the inducement to the acceptance of the note by McConnell, and by the appellant. The right to foreclose accrued with the cause of action upon the note, and would have had no existence without it. We are therefore of opinion it was among the “ rights or liabilities” saved by the provision in section 24 of the Act of 1872.

Thus the original debt and lien for its security, created by ¡Rusher July T6, 1866, were still subsisting and in force as against him and the appellees who claim through him, with notice, when the bill herein was filed. By parity of reasoning the additional lien created by Hamilton by his acceptance of the deed from ¡Rusher, of Jan’y 19, 1869, was also then in force and binding upon him and them. He fully acknowledged and promised anew to pay the debt by repeated payments of the interest due upon it, within the sixteen years next before the commencement of this suit and by his retention of the lien in his deed to Weer of December 25, 1872, of all which the appellees had notice.

Since the bill did not ask for a personal decree, and Rusher (who is deceased) and Hamilton had parted absolutely with their interest in the mortgaged premises, there was no necessity to make them parties, or if there was, the bill should not have been dismissed, but retained for amendment in that respect.

For the reasons above given the decree will be reversed and the cause remanded for further proceedings in conformity herewith.

The Supreme Court, since this opinion was written, has decided that the limitation law of 1872 does not apply to mortgages previously given to secure the payment of promissory notes. McMillan v. McCormick. Opinion filed at Ottawa May 15, 1886.

jReversed and remcmded.


source: Caselaw Access Project

license: Public Domain

text:
    Benjamin L. T. Bourland v. George L. Gibson and Thomas Snell.

      Action on Promissory Note — Failure of Consideration — Admission of Improper Evidence — Instruction—Pleading and Practice.

    In an action on a promissory note, where the only issue on the trial was whether a deed of certain premises, then occupied by the maker under a contract of purchase op account of which the note was given, was to be delivered on the delivery of the note and in consideration thereof, it is held: That evidence tending to show the conveyance of said premises to a third party and the dispossession of the defendant since the bringing of the action on the note, was improperly admitted; that a certain passage in the opinion of this court in reviewing the record of a former trial of the case, on the question of a waiver by the defendant of his right to a deed on delivery of the note, is to be taken as a statement of an inference of fact based on the record then presented; and that in the opinion of this court it would still be proper for the court below to grant the defendant leave to amend his plea and to file others.
    [Opinion filed May 19, 1886.]

      Appeal from the Circuit Court of De Witt County; the Hon. George A. Herdman, Judge, presiding.
    Messrs. Moore & Warner, for appellant.
    Messrs. Stevenson & Ewing, for appellee.
   Pleasants, J.

This case has previously been once in thó Supreme Court and twice here. It was anactionof assumpsit brought by appellant, as payee, upon a promissory note of appellees, dated February 22, 1875, due' on or before Feb!, ritary 22,1876, for §2,IDO, with interest at; ten'per cent, and given under these circumstances : " ‘ '

Gibson had made a trust deed of his hoiíiéstead at- El Pasó to-Bourland to secure a "loan from Gen. Bobert Patterson, under which the premises had been sold and conveyed to the latter. Afterward he-arranged, through Bourland as Patterson’s agent, to repurchase them and get a deed for §2,000 in cash and his note for §4,000, payable in. .five years with interest at ten per cent, secured ‘by á trust deed of the same property. Bourland procured a deed from Patterson, which he held ready for delivery to Gibson upon his complying with the terms stated, and so advised him by letter of January 11, 1875, inclosing such a note and trust deed for execution. These were executed and returned together with a draft on Snell f.or, the §2,000, which the. drawee declined to honor. Gibson being then unable to raise the cash required, his son obtained Bourland’s consent to accept in lieu of it his note for §2,100 (including §100 for commissions) with Snell as surety, payable in one year with interest at ten per cent., in pursuance of which the note in suit was made and sent to Bourland, who acknowledged its receipt by letter as-follows:

“ Peoria, III., February 26,1875.
. George L. Gibson, Esq. — Dear Sir: T.ours 24th inst. .is received. : I have proposed, to Gen. Patterson to hold the papers, just as they now stand, until the ‘§2,000 is paid, and then convey the property back, to you, and record the new mortgage for §4,000. -'" 1
1 now hold as security for the Patterson loan:
1. -The original trust deed and note, §6,000, foreclosed, and trustee’s deed to Gen. Patterson on. record.
, 2. ¡New. note, §4,000, secured,:by the new mortgage, due in. 1880,10 per cent, semi-annually, ,
-3. Tour note, §2,100, with Snell as security, due February 22, 1876, with 10 per cent. .
If this last note is paid, the old note and trust deed are to be given up and the new mortgage to be recorded, and Gen. Patterson’s deed to you (which I also hold) is -to be delivered.
■ Tours truly,-
, , B. L. T. Bourlaud.” .

This letter was on its receipt indorsed by Gibson B. L. T. Bourland, statement, February 26, 1875,” and filed away. On March 11, 1876, the suit was brought. The declaration eon-tained a special count on the note and the common counts. Defendants plead that the note was given solely in consideration of an agreement that upon its receipt the deed from Patterson should be delivered, and that the deed had not been delivered, by reason whereof the consideration had wholly failed. Plaintiff replied, traversing the allegation as to the time when, by the agreement, the deed was to be delivered, and issue was joined thereon.

' At the December term, 1876, a ■ trial was had, resulting in a verdict for the defendants on which judgment was entered, but the Supreme Oourt reversed it on the ground that the verdict was against the evidence, finding that “ the circumstances proved clearly show the deed was only to be delivered upon the payment of this note.” Bourland v. Gibson, 91 Ill. 470.

At the December term, 1879, the cause was again tried With a like result, and that judgment was reversed by this court upon the same ground. 7 Ill. App. 227.

' At the March term, 1882, a third trial was had, and the defendants again obtained a verdict, which the Circuit Court set aside.

At the August term. next following, leave was granted to amend pleas filed and to file others, and the case continued. On November 21th defendants filed a plea setting forth that “after the last pleading, to wit: on the first day of July, A. D. 1878,” Patterson by warranty deed conveyed the premises in question to Mrs. Harriet B. Farrell; that the note sued on was given together with the other note and trust deed mentioned solely in consideration of the agreement above stated ; that the plaintiff has neglected and refused to comply with said agreement, and by the conveyance to Mrs. Farrell, his principal, and he have put it out of their power to comply ; that defendants had-no knowledge or information of said conveyance until about the first day of May, 1882 ; that at the next term they pleaded the foregoing facts in substance, but not being in form, a demurrer was sustained to said plea, and that leave was then and there obtained to amend it, under which leave this is filed.

A demurrer to that plea was also sustained, and upon the ground taken, that being a plea puis darrein continuance it was not amendable and waived all others, leave to amend was refused and'judgment on the demurrer entered for the plaintiff for the amount of the note and interest; from which judgment defendants appealed.

This court, for reasons stated, held it was not such a plea, and that the demurrer, being general, did not reach merely formal defects; that its true character was that of a plea in bar of the action, and that as such it set up a good defense, to-wit, that upon receipt of the notes and mortgage mentioned the plaintiff was to deliver to Gibson the deed con veying to him the title to the land, and that after receiving them he refused to comply with his undertaking; that the averment of the conveyance to Mrs. Farrell added nothing to its validity and must be regarded as surplusage; that if it had been properly pleaded puis da/rrein continuance, then, upon the facts as found by the Supreme and Appellate courts, a very different question would have been presented, but that this defense was not before the court and it was then too late to plead it.

And in reply to the suggestion that as both of said courts on appeal had found that the defense pleaded was not proved by the evidence it would be 'useless to reverse the judgment for the error committed in sustaining the demurrer, it was further said: “We- can not assume- that appellants will not he able hereafter to prove the truth of their plea. The demurrer admits its truth, and the only duty of the court is to .'determine its sufficiency. Had the court, after sustaining the demurrer, proceeded to the trial of the cause upon the plea setting up the same defense, upon which issue had already been joined, no injury would have resulted to appellants, as the same defense could have been made; but the court in holding this to be a plea puis darrein-.contirmance, and that it waived all former pleas, deprived appellants of all opportunity of making their defense.’-’ The judgment was therefore reversed and the cause remanded. For this opinion, containing a copy of the plea in full, see 13 Ill. App. 352.

Upon thus remanding the cause the plaintiff replied to said plea that “ the said note was not given and .delivered to the plaintiff in consideration that the plaintiff would deliver to the defendant, Gibson, the deed in said plea mentioned on the delivery to him of said note” on which issue was joined. And it seems to have been the only one made by the pleadings. The jury-found for the defendants, and the court having refused a new trial and entered judgment on their verdict, the plaintiff took this appeal, and upon the record so brought here assigns for error the admission of improper evidence on behalf of the appellees and the refusal to admit proper evidence offered and to give proper instructions asked on behalf of appellant.

It appears that against objection by appellant the court admitted evidence that Patterson conveyed to Mrs. Farrell as stated; that she took possession along in 1878; that no offer to deliver a deed of the property to Gibson was ever made; that Patterson had been dead five or six years; that appellant’s understanding of the agreement was, that if the note sued on was not promptly paid he could collect it by suit and yet keep the property for which it was given, and that §2,000 of the amount belonged to Patterson’s estate, but appellant had never paid it nor any part of it- to him or to his estate.

Nearly all of this ¿was elicited by direct examination of appellees’ witnesses, and the little that was obtained on cross examination of appellant was not justified by the examination in chief.

. We are unable to see - how these facts, or any of them if they are such, could aid in determining whether the deed to * Gibson was, by the agreement, to be delivered to him by ap-, pellant upon receipt of -the note sued on, or only upon its payment. Upon the issue as made, therefore, appellees were not entitled to have the jury know them. Being known, or even, suspected, they could hardly fail to prejudice appellant and his claim.. We can pot .ourselves be unaffected by them. While as lawyers we may understand, and as judges hold, that in the. plea of November 24th the averment of the conveyance to, Mrs. Farrell was immaterial and surplusage, our sense of right can not but be alive to its bearing upon the real merits of the case.

The suit brought was an affirmance of the contract to reconvey to Gibson the homestead he had lost. Its object was to recover a considerable portion of the price ; and that pend-, ing the suit the vendor should voluntarily dispose of the property so that he could not reconvey upon recovery and col-' lection of the judgment, and yet proceed to recover and collect it, would strike the mind of a juror as being palpably unjust. He might understand that to Gibson it was really of very little consequence whether he got his deed before payment or not,, so long as he was in possession and had appellant’s letter show-, ing his right to it .upon payment, and so might regard the non-, delivery of the deed as a poor excuse for non-payment of the note, but without further explanation would not see clearly, why, though in default as to payment when due, he should still be made to pay after he was dispossessed, and the property absolutely sold and delivered by his vendor to another. It can hardly be doubted that this apparent hardship and injustice had great weight, with the jury. And yet, while not undertaking to determine, because the record does not present the question, whether these facts can now be made available for defense against this note by any form of plea at law or even by bill in equity, we are constrained to hold that, upen" the issue as made in this ease, they were inadmissible.

In the opinion reported in 7 Ill. App. 227, it was said: “But even if the contract was as now claimed by Gibson, he waived his right to the deed on the delivery of the note by his acquiescence in the claim of Bourland that the deed was not to be delivered until the payment of the note in full.”

Upon this expression an instruction was asked as to the legal effect of the receipt by Gibson of Bourland’s letter of February 28th and his failure to reply, the refusal of which is also urged as error. We apprehend that in the passage quoted the court was only stating an inference of fact which it drew from all the evidence in the record bearing upon it, and not a conclusive presumption of law that by failing to object to the statement in the letter Gibson acquiesced in its correctness. That was a question for the jury. The instruction was therefore rightly refused, but for the error in admitting the evidence above referred to the judgment will be reversed and the cause remanded.

We think it would bo proper to grant leave to amend the plea and to file others if desired.

Reversed and remanded.


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    Wesley Best v. Permelia Farris, Hampton W. Wall et al.

      Construction of Will — Division of Estate per Capita.
    The words “equally divided among my heirs,” when used in a will, unless a different intention appears from the context, mean an equal division of the testator’s estate per capita.

    [Opinion filed May 21, 1886.]
    Appeal from the Circuit Court of Macoupin County; the Hon. J. J. Phillips, Judge, presiding.
    Messrs. Palmer & Chapman, for appellant.

      It is an inflexible canon of construction, and “ the rule has been rigidly adhered to by all courts, that a testator must be presumed to use the words in which he expresses himself in their strict and primary sense, unless from the context of the will it appears that he has used them in a different sense. The legal and technical meaning must be enforced when unexplained.” Richardson v. Miller, 62 Ill. 417.
    The words “equally, or share and share alike, or to be equally divided, imports an intention. When they are used in a will they mean a division per capita.” Richardson v. Miller, 62 Ill. 417.
    If these rules are to be given any force, they point unerringly to a division per capita in this case.
    To hold that the proper mode of distribution is per stirpes, is to hold that the words of the testator “ and the money or proceeds thereof be equally divided among my heirs,” must be stricken from the will as meaningless and void, since the money would have gone to the heirs per stirpes under the statute without them.
    We insist that they must be held to have been used by the testator in their primary, legal and technical sense — import intention, were used advisedly, thrice repeated, and mean a division per capita, and that the order of the trial court directing a division per stirpes is wrong and should be reversed.
    Messrs. Rinaker & Rinaker, for appellee.
    The will gives to a class, to the heirs — does not mention the names of the persons who compose that class, hence we must refer to the statute of descents, and there the heirs take as in case of -intestacy. Richards v. Miller, 62 Ill. 417.
    In devises to a class, as to heirs, it is held the estate is taken by the devisees per stirpes and not per capita. Walker v. Griffin, 11 Wheat. 375 ; Hall v. Hall, 140 Mass. 267.
    This case, however, we think is settled by the decision of the Supreme .Court in the case of Kelley v. Vigas, 112 Ill. 242, which is so nearly like this that there seems to be no substantial ground for a distinction between them.
   Pleasants, J.

The will of George W. Farris contained the following provisions: s< I give and bequeath unto my wife, Haney, all the lands now owned by me, during her natural life. And it is my will at her death the lands be sold and the money or proceeds thereof be equally divided among my heirs.” He died in 1865, leaving his wife, two sons, two daughters, and three grandchildren, children of a deceased daughter. These were his heirs apparent when he made his will, the deceased daughter having died before that time. His wife died in 1882, but the others all survive, and the single question in this case, which is for partition, is whether they take per stirpes or per capita. The court below held the former, and ordered distribution accordingly. Best, holding the interests of the grandchildren, took this appeal.

A devise to heirs ” simpliciter is per stirpes. Richards v. Miller, 62 Ill. 417, The term designates a class only. It is composed of those upon whom the statute would cast the inheritance if there were no will. Ibid. p. 424; Rawson v. Rawson, 52 Ill. 62. And since, to ascertain who they are, resort must be had to the statute, it will determine also the proportion in which they take (Richards v. Miller, 62 Ill. 417); not, however, because the devise is to a class whose members are to be thus ascertained, but because it is to such a class simpliciter,, The sense of the rule is, that as in such case the will itself does not indicate the proportion, it gives just as the statute would give without the will, and therefore the devisees must take just as they would take under the statute without the will; which is per stirpes.

For the same reason the converse is true also; that if the will does indicate the proportions, it must in that respect control the statute. If they do not conflict the statute determines; if they do, the will,

In this case the devise is not to the heirs simpliciter, that is, without indicating how much or what proportion the individuals composing the class are respectively to take. The provision is that the subject be “ equally divided among my heirs ”™a positive expression, which of itself signifies, plainly and exclusively, that all persons of the class mentioned without limitation or distinction are intended, and that each is to take, not what the statute would give, but the particular proportion expressed by the fraction of which one is the numerator, and the whole number of the class, whatever it may happen to be, the denominator. Our own Supreme Court has repeatedly declared, in harmony with the unbroken current of authority elsewhere, that the words “ equally,” “ share and share alike,” to be equally divided,” import an intention, and when used in a will mean a division per capita. Richards v. Hiller, 62 Ill. 417; Kelley v. Vigas, 112 Ill. 242 ; 2 Jarman on Wills, 197 et seg. and notes (5th Ed.); Theobald on the Law of Wills, 277.

It is true, as in other cases of written instruments, that if from the will, as a whole, a different intention appears, it will control, notwithstanding such words. See authorities last above cited. Also, Walker v. Griffin’s Heirs, 11 Wheat. 375; Daggett v. Slack, 8 Metc. 450; Fisher v. Skellman, 3 E. C. Green (18 N. J.) 229. And further, if from such words and the context there is still good reason to doubt the intention, that doubt is to be solved in favor of a distribution according to the statute, as for intestacy. Lyon v. Acre, 33 Conn. 224.

This explains the decision in Kelley v. Vigas, 112 Ill 242, on which appellees rely. In that case the testator left a daughter, and four grandchildren — children of a son who died before making of the will. After a devise to his wife for her life, and certain specific bequests, the remainder of the estate was left “ to be divided equally among his (my) heirs at law,” and the question was whether they took per stirpes or per capita. It was held that they took per stirpes. But the court fully recognized the law as above stated, and reached its conclusion only by the application of the rule by which the natural and legal effect of the term “ equal” was in that case controlled by the context as showing, on the whole, a different intention. In the opinion it is said, “The will in this respect is by no means free from ambiguity;” and further, “ It is understood the words ‘ equal among,’ or ‘ equally,’ or * share and share alike,’ when used in a will, mean a division of the estate per capita, but this meaning of these words may be controlled by the context, and is often so done. That is the case here.” The portion of the context is then indicated from which it is inferred the testator “intended to make an equal division of his estate between his daughter and the family of his deceased son.”

From all which, and the rigid adherence to the rule of construction as declared in the case above cited from 62 Ill. on p. 424, we think it a just inference that, without the aid of the context, the court would have held, upon the strength of the word equal,” that it was a devise per capita.

Inasmuch, then, as there is no such context to control the word “ equally ” in the case at bar, we regard that of Kelley v. Vigas as an authority for holding the devise here to be a devise per capita, and so we hold.

The order of distribution of the court below is therefore reversed, and the cause remanded for further proceedings in conformity herewith.

Jieversed and remanded,


text:
    August Kœnig v. David Haddix.

      Party Walls — Presumption as to Ownership — Promise, Unsupported by Consideration, Void.

    1. Where, before either of two adjoining owners acquired his interest, a wall was built on the line separating two lots owned by them, and it does not appear when, by whom, or on what terms it was erected, the presumption is that it belongs to such adjacent owners, each having acquired an interest in it free from any obligation to contribute to the other.
    .2. A promise by one of such owners to the other, made under a mutual mistake as to the location of the wall, which was in fact located on the line, is void, being without consideration.
    [Opinion filed May 21, 1886.]
    Appeal from the County Court of Morgan County; the Hon. M. T. Layman, County Judge, presiding.

      Mr. Oscar A. DeLeuw, for appellant.
    This court can not judicially determine which survey was, or is now, correct.
    There was a valid agreement to pay for half of the wall as a party wall, and the court below erred in disallowing the plaintiff’s claim. Husk v, Flentye, 80 Ill. 258.
    The judgment of the County Court was clearly against the, weight of the evidence and the law, and its judgment should be reversed. Sanders v, Martin, 2 Lea, 213.
    Messrs. Morrison & Whitlock, for appellee!
    Even if the construction of the wall partly on the Haddix lot, .or what is now the Haddix lot, would have given the owner of the Koenig lot at the time the wall was constructed the right to compel contributions, that right did not pass to Mr. Koenig under the sale made by the Sheriff, at which he purchased. Holden v. Gibson, 16 Ill. App. 411, and the cases there cited.
    If there ever was any implied agreement to pay for the wall when it should be used by the occupant of the Haddix lot for the purpose of a building on the same, it was one personal to the parties, and not one which passed by deed to the grantee of the Haddix lot.
    The case was tried by the court, sitting as a jury, and that court had the witnesses present, and was better able to judge of the weight to be given to the evidence of Baldwin than this court,can be. And in such cases, the evidence being conflicting, the court will not reverse, unless the finding is manifestly against the evidence; this can not be said to be the case here.
    Besides, there was no consideration for such a promise, if rnade as detailed by Baldwin at the time mentioned.
   Pleasants, J.

These parties owned adjoining lots in Jacksonville. On appellant’s was a brick building, erected before he bought, in 1879. On appellee’s, when he bought in 1884, were some straggling shanties which he at once removed with a view to the erection of a brick building, and the work was begun in April, 1885, under Montgomery as contractor. When the foundation was about completed, appellant told Montgomery he must have pay for the one-half of his north wall if they were going to join on it. Montgomery told appellee, who directed him to get a survey made. This was done by the County Surveyor, and it showed that appellant’s lot extended live inches beyond the wall. Appellee went with Montgomery to see appellant, informed him of the survey and its result, and thereupon offered to pay him §125, in thirty days, for the use of his north wall as a party wall. Appellant, agreed to this, and the work proceeded. On the following day appellant told Montgomery that he did not understand he was to give appellee this strip of live inches besides the wall. Montgomery said he Supposed it was fully understood, and that appellee had just gone East on the Decatur Accommodation. Appellant said he didn’t think the surveyor understood his business anyhow, and that he must have pay for the ground. Montgomery then said something must be done at once, and suggested that Prof. Crampton be secured to make the survey, to which appellant agreed. Crampton was seen, but on coming down with his instruments and learning which lot was to be surveyed said it was of no use as he had surveyed it March 15, 1884, for Berkheiser, the then owner of appellee’s lot, and that it included four and a half inches of this wall on the south, and eight inches of another on the north line.

Montgomery and Crampton went together to appellant and informed him of what this survey showed, upon which he said it was all right, and told Montgomery to go ahead with the work.

The wall was accordingly so used, and is worth the money claimed for it, but when appellee returned and learned these facts he refused to pay, whereupon this suit was brought.

The declaration is in indebitatus assumpsit, to which the general issue was filed. On the trial, which was by the court without a jury, the finding and judgment were for the defendant, and exceptions and appeal were duly taken.

The above statement is an abstract of the testimony of Montgomery, who was produced as a witness by the plaintiff. It was disputed in no particular, and covers all the ground in the case.

We presume the court considered the comparative merits of the two- surveys, and upon the evidence found in favor of Crampton’s, from which it would seem that the wall in question, as well as the one on the north line, was intended for a party wall. When, by whom or on what terms they were erected does not appear, but both are partly on appellee’s lot, and were built before either of the parties acquired his interest. The presumption is that they belonged respectively to the owners of the adjacent lots in common. Appellant by his deed got no title to the four and a half inches on appellee’s side of the line, nor can it be presumed that his predecessor in title had any unsatisfied claim for contribution against appellee’s, nor, if he had, that it passed to appellant or against appellee. The promise sued on, having been made under a mutual mistake of a material fact and without any real consideration, is therefore not obligatory.

Judgment affirmed.


author: Per Curiam.

text:
    James M. Sells v. The Sandwich Manufacturing Company.

      Practice — Instructions—Remittitur.
    1. Where the jury could not have been misled, although the instructions were somewhat inconsistent, the judgment will not be reversed on appeal.
    2. Where the judgment improperly includes attorney fees, this court will permit the appellee to remit the amount of such fees.
    [Opinion filed May 21, 1886.]
    Appeal from the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.
    Messrs. Tipton & Beaver, for appellant.

      The judgment is for more than the demand on the back of the summons issued by the Justice of the Peace, with the accrued interest on the same. A plaintiff can not recover more than he claims, and if he takes judgment for more it is error. Brown v. Phillips, 6 Ill. App. 250 ; T., P. & W. R. R. Co. v. Pence, 71 Ill. 274 ; Bidgely v. Heald, 4 Gil. 64; Dowling v. Stewart, 3 Scam. 195 ; Ellis v. Snider, Breese, 336.
    In the note or agreement sued on there is a provision for the allowance of $10 attorney’s fee. It was error to include this sum in the verdict and judgment. Byers v. Nat. Bank, 85 Ill. 423 ; Dowty v. Holtz, 85 Ill. 525; Easter v. Boyd, 79 Ill. 355 ; Clark v. Morgan, 13 Ill. App. 597.
    Mr. C. D. Myers, for appellee.
   Per Curiam.

Appellee brought this suit béfore a Justice of the Peace on the last of two notes given by appellant for a harvester and binder sold to him, which was “ to be made to do good work or to be replaced by a new machine.” On appeal the plaintiff got a verdict and judgment for $175.48, damages.

It appeai-s that a new machine was given. If it did good work, or was absolutely accepted, the defendant was liable. On both these points the evidence was conflicting, and the instructions were not strictly consistent; but on the whole we think the jury could not have been misled, and perceive no sufficient reason for disturbing their finding for plaintiff.

, The amount, however, improperly included ten dollars for an attorney fee (for which the note provided if not paid when due and suit should be brought thereon) which appellee here remitted by leave of this court. The judgment will be affirmed for $165.48.

Judgment affirmed,.


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    C. D. Myers v. William Deering et al.

      Action against Assignee — Jurisdiction of County Court, Exclusive.

    The Circuit Court is without jurisdiction of an action against an assignee, claiming under an assignment for money had and received, the jurisdiction of the County Court being exclusive.
    [Opinion filed May 21, 1886.]
    Appeal from Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.
    Messrs. C. D. Myers and T. F. Tipton, for appellant.
    Messrs. Herrick, Lucas & Spencer, for appellee.
    We insist that Myers got no title to the accounts as assignee that he can set up against our right; that the money belongs to Deering under the commission contracts, and that Myers does not hold it in the capacity of an assignee, but simply as an individual who has received money to Deering’s use.
    An assignee for the benefit of creditors is a mere naked trustee. His appointment in no wise changes the effect of contracts made by the assignor. He takes no right the assignor did not have, and his appointment does not bar or take away any right a party may have against the assignor. He succeeds only to the rights of the assignor, and is affected by all the equities against him. Burrill on Assignments, Sec. 391 (4th Ed.) and cases cited; Eames v. Mayo, 6 Ill. App. 334.
    The assignee took no title whatever to these accounts. They were not the property of Coale, and he could pass no title to them. They were the proceeds of the property of appellee. Myers, as an individual, holds money which in equity and good conscience belongs to Deering.
   Pleasants, J.

On trial by the court below without a jury, appellees recovered judgment for $418.62 as money had and received by appellant to their use.

They were engaged in the manufacture and sale of agricultural implements, extras, twine, etc., at Chicago, and Coale and White in the sale of like articles, on their own account and also on commission, at Bloomington.

In October, 1883, these parties entered into a written agreement whereby the latter were made agents of the former to sell their products on terms therein specified.

In November of the same year Coale and White, in writing, ordered of appellees a quantity of twine on conditions stated, a part of which was delivered in several shipments, with shipping bills referring to said agreement and order and containing other matter not necessary to be here set forth. After its receipt Coale bought out the interest of his partner, and later, having sold the twine in his own name, in the usual course of business, in lots to different parties, some for cash and some on credit, in July, 1884, made a general assignment for the benefit of his creditors, to appellant. Under this assignment appellant took the stock, notes, books, etc., in possession of Coale, and, on account of the twine so sold on credit, collected and still retains the money, for which, after demand therefor duly made of Coale and of him, appellees brought this suit.

They claim that the twine in question was held by Coale for them, to be sold by him as their agent and upon commission only, and so that the proceeds did not pass by the assignment. Appellant insists that Coale and White purchased it of them and upon its delivery became the absolute owners.

The controversy is upon the true construction of the papers mentioned, which are not herein more fully set forth because we are of opinion that as between these parties the Circuit Court had no power in the first instance to settle it. Since the money here sued for was actually in the hands of appellant, claiming under the assignment, the jurisdiction of the County Court under the statute had attached and is exclusive. Hanchett v. Waterbury, “ Legal News,” Vol. 17, p. 412; Freydendall v. Baldwin, 103 Ill. 325.

The judgment of the Circuit Court will therefore be reversed.

Judgment reversed.


text:
    James Brown and Margaret Brown v. Miner, Frost & Hubbard.

      Practice — Error—Assignment of, in Favor of One not Joining in Writ— Issue as to Sanity of Party — Discretion of Court — Suffici ency of Officer's Return-Findings of Decree — Presumption—Recovery of Advances for Payment of Taxes.

    1. Errors which only affect one who did not join in the writ of error, can not be assigned on his behalf.
    2. Where, taking the statements in an officer’s return together, it appears that process was properly served, the return is sufficient.
    3. In chancery the question whether an issue as to the sanity of a party should be referred to a jury is, except in certain special cases, entirely within the discretion of the court.
    4. Where there is no bill of exceptions nor certificate of evidence, the presumption is that the findings of the decree were warranted by the proof.
    5. Upon the foreclosure o£ a mortgage the allowance to the complainants of advances for the payment of taxes made after the filing of the bill, is held to have been improx^er under the prayer for general relief — the contingencies which would require, such payment by them being set forth in the bill.
    [Opinion filed May 21, 1886.]
    In error to the Circuit Court of Scott County; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Gallon & Thompson, for plaintiffs in error.
    If defendants in error paid any taxes after filing their bill, they should have set up the fact in a supplemental bill. It was error to grant relief not prayed for nor justified by the allegations of the bill. The general prayer does not cure the error .in the absence of appropriate allegations. “ The decree must conform to the prayer of the bill.” Hall v. Towne, 45 Ill. 493; Ward v. Enders, 29 Ill. 519; Dodge v. Wright, 48 Ill. 382; DeLeuw v. Neely, 71 Ill. 473; Gunnell v. Cockerill, 84 Ill. 319.
    The issue as to the insanity of James Brown should have been tried by a jury. Myatt v. Walker, 44 Ill. 485; Pankey v. Raum, 51 Ill. 88; Hahn v. Huber, 83 Ill. 243. ,
    The service of the summons on James M. Brown was not in compliance with the statute. “ In serving process by copy the return of the officer must show a strict compliance with the statute before the court can obtain jurisdiction of the person.”
    This case is almost identical with the case of Hochlander v. Hochlander, 73 Ill. 618, in which the return was held to be “ too indefinite and uncertain, as it fails to show what the officer read, or of what he served a copy."
    Messrs. J. M. Riggs and J. A. Warren, for defendant in error.

      “A party dissatisfied with the findings of fact upon which the decree is based must bring the testimony before this court that will show that such facts were erroneously found, otherwise this court will presume the evidence warranted the finding of fact as recited in the decree.” Groendyke v. Coffeen, 109 Ill. 334.
    Plaintiffs in error can not assign error for said James M. Brown, nor complain of any finding against him not shown by the record to injuriously affect their rights. Clark v. Marfield, 77 Ill. 258; Havinghorst v. Lindberg, 67 Ill. 468; Kennedy v. Kennedy, 66 Ill. 190; I. C. R. R. Co. v. Gills, 68 Ill. 317; Richards v. Green, 78 Ill. 525.
    The doctrine of the Supreme Court is not that an issue shall be made to a jury in all cases in equity involving questions of insanity. Hahn v. Huber, 83 Ill. 244; Milk v. Moore, 39 Ill. 584; Dowden v. Wilson, 71 Ill. 486; Fanning v. Russell, 94 Ill. 386.
    James M. Brown not having joined in prosecuting the writ, no error can be assigned on his behalf, nor can plaintiffs in error assign for error any action of the chancellor not injuriously affecting their interests. Kennedy v. Kennedy, 66 Ill. 190; Havinghorst v, Lindberg, 67 Ill. 468; L. C. R. R. Co. v. Gillis, 68 Ill. 317;’ Clark v. Marfield, 77 Ill. 258; Richards v. Green, 78 Ill. 525.

      In an ordinary cause in chancery it is within the discretion of the chancellor whether to take the verdict of a jury on a question of sanity. Rev. Stat., Ed. 1885, Chancery Practice, Sec. 40; Meeker v. Meeker, 75 Ill. 260; Long v. Long, 107 Ill. 210.
    The verdict of a jury should only he taken where the evidence is voluminous, the facts complicated and the question doubtful. Milk v. Moore, 39 Ill. 584; Dowden v. Wilson, 71 Ill. 486.
    The chancellor having recited in the decree that the master had taken and reported the testimony, and that report not appearing on the files, it will be deemed to have been lost. Hess v. Voss, 52 Ill. 472.
    Where evidence in chancery cause is not otherwise prevented, the recitals and findings in the decree are conclusive as to the facts. Sheen v. Hogan, 86 Ill. 16; McIntosh v. Saunders, 68 Ill. 128; Morgan v. Corlies, 81 Ill. 72; Davis v. Christian Union, 100 Ill. 313; Groendyke v. Coffeen, 109 Ill. 334; Hannas v. Hannas, 110 Ill. 53.
    If plaintiffs in error desired to question the recitals or findings of facts in the decree, it was their duty to cause all the evidence to be preserved. McIntosh v. Saunders, 68 Ill. 128; Morgan v. Corlies, 81 Ill. 72; Groendyke v. Coffeen, 109 Ill. 334.
   Pleasants, J.

This was a foreclosure bill filed April 15, 1884, by defendants in error, who were bankers, against plaintiff in error, as mortgagors, and other defendants, as having or claiming some interest in the mortgaged premises, but alleged to be subsequent and subject to that of complainants.

It set forth the note and mortgage in Time verba, which were dated April 6, 1883, for $13,500, payable on or before five years, with annual interest at seven per cent.; and provided that in default of payment of such interest, or any part thereof, at any time before maturity of said note, or in case of waste, or of non-payment of taxes or assessments on the mortgaged premises, by the mortgagors, the whole amount of the principal and accrued interest should thereupon become due and payable at the option of the legal holder, and that out of the proceeds of sale under any decree of foreclosure of said mortgage should be paid — first, the expense of advertising, selling and conveying said premises, together with §100 for solicitor’s fees and all moneys advanced for taxes, assessments and other liens, and then the principal of said note, whether due or not, and the interest accrued thereon. It averred that default was made in the payment of the interest due April 6, 1884; also that the taxes for the year 1883 had long since become due and payable, but the mortgagors had wholly neglected and failed to pay the same or any part thereof, and that said taxes still remained wholly due and unpaid; and the prayer was that an account be taken of the amount due on said note and mortgage, and its payment decreed to be made by a short day, with $100 for solicitor’s fees, and, in default thereof, for a sale and foreclosure in the usual form.

All the defendants, excepting plaintiffs in error, were defaulted. Margaret Brown filed an affidavit, setting forth that before and at the time of the execution of said note and moi tgage, her husband and co-defendant, the said James Brown, was and still is non compos mentis, and praying that a guardian ad litem- be appointed for him. The appointment was made, and the guardian filed his answer, stating the mental condition of his ward, calling for strict proof; and submitting his rights and interests to the protection of the court. Said Margaret also answered, admitting the execution of the note and mortgage as alleged, but averring that the consideration thereof was mainly indebtedness due complainants from the firm of August & Brown, of which her husband had been a member; that upon its dissolution its books of account, by agreement of complainants and said firm, were left with said August for settlement and collection; that he collected money enough to liquidate said indebtedness of complainants, which was deposited in their bank to be credited thereon, but said complainants afterward, in violation of said agreement and without the knowledge of Brown, permitted him to withdraw it for other uses, and that the residue of said consideration was money loaned by complainants to said Brown, with notice of his mental incapacity to transact ordinary business, which is again averred as in the affidavit above referred to.

To these answers a general replication was filed, and besides the papers mentioned and the process and returns thereof, the transcript of the record shows only the final decree of November 21,1884, which purports to have been made on a hearing upon said pleadings, “and also the proofs taken and reported by the master in chancery of this court, and testimony heard in open court.”

It recites the default of the other defendants, the appointment of a guardian ad litem, for said James Brown, the entry of a rule upon him and said Margaret to answer, and an order that “ on notice of filing such answers and replication thereto the cause stand referred to the master to take proof; that the court now found the allegations of the bill, which are specifically set forth, to be true; among other things, that the taxes on the mortgaged premises for the year 1883 were due before the filing of the bill; that the mortgagors had wholly neglected and failed to pay them, and that the same remained due and unpaid; that complainants have paid as taxés on said premises, $182.05; that defendant, James M. Brown, is ip! possession of a portion of said premises as tenant of Ellen' and Margaret Brown, who are also defendants, under a lease which will expire on March 1, 1885; that at the time of the execution of said note and mortgage the defendant, James Brown, was.of sound mind and fully qualified to transact his own business; that the amount due on said note, reduced by payment to complainants by a subsequent grantee of the mortgagors of the price of a portion of said mortgaged premises, and which had been thereupon released from the lien of said mortgage, was $12,636.98, for which sum said mortgage was a prior lien.

It then decrees that said mortgagors pay the same in twenty days, with lawful interest from the date of said decree, and $182.05 for taxes advanced by complainants, with costs, including $100 for solicitor’s fees, and in default thereof, a sale and foreclosure in the usual form.

The defendants, James Brown and Margaret Brown, who only sued out and prosecute this writ, assign the following as errors in these proceedings:

First. That the court rendered a decree against the defendant, James M. Brown, fro eonfesso, without jurisdiction of his person.

As to said defendant and some others, the return indorsed on the summons is as follows: “ I have duly served the within named James M. Brown” and others named, “by leaving a true copy thereof for each,” etc. Standing alone, this might be insufficient, as failing to show of what a true copy was so left. Hochlander v. Hochlander, 73 Ill. 618. But it immediately follows another as to still other defendants, which is: “ Served the within by reading the same to the within named John L. Brown,” etc. Taken together, then, the statements of the officer are that as to some of the defendants he served “ the within ” (writ) by reading “ the same,” etc., and as to others by leaving a true copy “ thereof,” which are plain and sufficient.

But if it were otherwise the error would be unavailing. In Clark v. Marsfield, 77 Ill. 262, the Supreme Court said: “ The only other ground for reversal insisted on, that need be noticed, is that the service on Simpson was not sufficient. He has not joined in this writ of error, and we are not aware that other parties can assign errors on his behalf that only affect him. Hannas v. Hannas, 110 Ill. 53. From the findings as to the interest of James M. Brown, it is clear that the decree against him could work no injury to plaintiffs in error. Again, it is said, the court should have framed an issue at law upon the sanity of the mortgagor, James Brown, and submitted it to a jury for trial as was directed in Myatt v. Walker, 44 Ill. 485.

By the general law of chancery procedure a reference of the issue to a jury is imperative only in the cases of an heir at law, a rector or a vicar. Daniell’s Ch. Pr. 1075. (Little, Brown & Co.’s edition of 1871.) Our statute has made another exception to the general rule in case of the contest of a will on the ground of insanity of the alleged testator. R. S. “ Wills,” Sec. 7. With these exceptions such a reference is entirely in the discretion of the chancellor, ft. S. “ Chancery,” Sec. 40; Milk v. Moore, 39 Ill. 584; Dowden v. Wilson, 71 Ill. 485; Meeker v. Meeker, 75 Ill. 260; Fanning v. Russell, 94 Ill. 386; Long v. Long, 107 Ill. 210. Upon any issue where the facts are complicated, or the evidence voluminous, conflicting or doubtful, it may be advisable, as these cases fully show ; and in this condition, upon an issue of sanity, its refusal may be regarded as such an abuse of the discretion given as to justify a reversal. Myatt v. Walker, 44 Ill. 485.

But the mere fact that the issue is upon the sanity of a party to the proceeding, or other person, however material, will not make such a reference imperative. Hahn v. Huber, 83 Ill. 244; also Meeker v. Meeker, 75 Ill. 260, and Long v. Long, 107 Ill. 210. And no such condition appears in the case at bar nor is it to be presumed in the absence of the evidence which it was the duty of plaintiffs in error, if dissatisfied with the findings, to preserve in the record. Where there is no bill of exceptions nor certificate of evidence the presumption will be that the findings of the decree were warranted by the proofs. Hannas v. Hannas, 110 Ill. 53 ; Groendyke v. Coppeen, 109 Id. 334; Davis v. Am. and Foreign Chr. Union, 100 Ill. 313; Sheen v. Hogan, 86 Ill. 16; Morgan v. Corlies, 81 Ill. 72; McIntosh v. Saunders, 68 Ill. 128.

•Lastly, it is claimed the allowance to complainants for moneys advanced to pay taxes on the mortgaged premises was erroneous, because no foundation for it was laid in the averments or prayer of the bill.

It appears that when the bill was filed they had not, in fact, advanced any moneys for that purpose, nor could certainly know they would. Hence it contained no allegation of such advance, nor prayer for any allowance on account thereof, or other specific relief in respect thereto. But it did set forth their right to such allowance upon the failure of the mortgagors to pay said taxes and their own advancement for that purpose, and that the mortgagors had so failed, and prayed, in, addition to specific relief as to the mortgage debt proper and the solicitor’s fee to which they were entitled for breach of the principal condition, “ for such other and further relief in the premises as equity may require.”

Then, upon due proof of such advancement hy them and the amount thereof, equity and the express covenant in the mortgage required that they be reimbursed out of the proceeds of the sale of the mortgaged premises.

Thus, though the right to it was not absolute when the bill was filed, it was clearly contemplated upon two contingencies therein set forth, of which one was averred to have already happened and the other was manifestly but little less certain to follow before decree than was the interest to accrue upon the principal of the debt, and the decree found, as a fact that it did so follow. We incline to think here was sufficient basis for the relief granted under the general prayer, without a supplemental bill. Certainly it is a different case from that of DeLeuw v. Neeley, 71 Ill. 473. The allowance was clearly just, and, te.chnically considered, not so clearly erroneous as to require a reversal or modification of the decree.

Decree affirmed.


text:
    William L. Simpson et al., Commissioners of Highways of Flat Branch Township, v. James B. Wright and Sarah L. Wright.

      Bill by Commissioners of Highways for Injunction to Prevent the Filling of Ditch — Easement.—Parol License to Enter Premises of Another— Revocation — Statute of Frauds — Pleading—Parties.
    1. A bill to enjoin the owner and occupant of premises adjoining a highway from filling up an artificial ditch thereon, and without the limits of the highway, does not lie, unless the public has by deed, prescription or condemnation acquired aright to the use of such.ditch as an easement. And it is so held, although at the time of filing the bill the ditch had been in existence thirteen years, had been kept open by the Commissioners of Highways, and the occupant had been paid from public funds for improving it under a contract with the Commissioners.

      2. A parol license to enter upon or pass over the land of another is revocable at the pleasure of the licensor, and may be revoked by the appropriation of the land to any use inconsistent with the enjoyment, of the license.
    3. Under the rule that the averments of a bill, when equivocal, must be taken most strongly against the complainant, it must be presumed that the “ contract’’ and the “mutual consent,” referred to were merely verbal, and that the occupant had no title to the land or authority to impose upon it the burden of the easement claimed.
    4. Such contract and consent, though in parol, were neither void nor voidable under the Statute of Frauds. They amounted merely to a license, which the bill itself shows to have been revoked.
    [Opinion filed May 21, 1886.]
    Appeal from the Circuit Court of Shelby County; the Hon. J. J. Phillips, Judge, presiding.
    Mr. Howland J. Hamlin, for appellants.
    The right to maintain this suit, and the ground upon which the relief sought to be granted, does not rest on the mere fact of the obstruction, but rests upon the rights secured to the complainants by virtue of the contract set out in the bill.
    The complainants had acquired an easement across the lands of defendants for the purpose of draining these highways.
    The only case that is almost entirely analogous to this is the case of City of Coldwater v. Tucker, 36 Mich. 437, in which an injunction was granted.
    Equity will grant relief in suits of this character. Green v. Oakes, 17 Ill. 249; .Sanderlin v. Baxter, 76 Va. 299.
    It is claimed that the right of drainage, as set out in the bill, shows a mere license. Then there is jurisdiction in equity to protect the right. If it is mere license, in an action at law, the owner of the land may countermand it, but in equity it will be sustained where the owner has permitted money to be expended and work done. Kerr on Injunctions, Sec. 42, 46; Devonshire v. Elgin, 14 Beav. 530; Legg v. Horn, 45 Conn. 409.
    The bill charges, upon information, that Sarah L. Wright claims to be the owner and asks that she disclose her rights. Under this form of allegation she could assert her right by answer, showing what her rights are, but that question can not be raised on this motion.

      Mr. Anthony Thornton, for appellees.
    The right claimed so far partakes of the character of lands, that it could only be acquired by grant or prescription which implies a previous grant. Forbes v, Balenseifer, 74 Ill. 183.
    A parol license, even where valuable buildings have been erected, maybe revoked at pleasure. Woodward v. Seeley, 11 Ill. 157.
    Even the use of a right of way for twenty years will not make the right absolute. There must be peaceable enjoyment also for the time. Knhlman v. Hecht, 77 Ill. 570; C. & N. W. R. R. Co. v. Hoag, 90 Ill. 344.
    A party in possession has no right to make such a contract as is alleged in the bill. A trespasser, or a tenant, can not grant a valid easement over the land of another. Gentleman v. Soule, 32 Ill. 271.
    To entitle one to a perpetual injunction to restrain the grading and improving of land, he must show that he is the owner of the land. Possession is not sufficient. Gleason v. Jefferson, 78 Ill. 399.
    Commissioners of Highways have no authority in law to maintain this suit. They have only such powers as are expressly conferred by statute. Brauns v. Peoria, 82 Ill. 11; Commissioners of Highways v. Newell, 80 Ill. 587; P., Ft. W. & C. R. R. Co. v. Reich, 101 Ill. 157.
   Pleasants, J.

The ‘bill filed by appellants sets forth upon information, that Sarah L. Wright claims to be the owner of the W. H. W. j- of section 33, in said town, but avers that James B. Wright, her husband, “is in possession, and controls and has for years controlled it;” that there is a highway commencing at the southwest corner of said section and running north on the section line clear through the township; that it passes over low, wet land between sections 32 and 33 and is often impassable at and near the place of beginning by reason of surface water accumulated thereon; that there is an open ditch commencing on the west side of said highway, which crosses it, and running thence northeasterly over said W. H. W. -j- of section 33, and other tracts, besides two other highways described, discharges' into Flat Branch Creek at a point in an east and west highway between sections 27 and 22.

It then avers that this ditch has been in existence thirteen years by mutual consent of the owners of the several tracts through which it passes, worked by the commissioners, kept open by public funds and used to drain the lands and highways mentioned; that being found insufficient for that purpose, complainants, on the 4th of April, 1885, “entered into a contract with James B. Wright” to widen and deepen it “ through its entire length to be and remain an open ditch,” for which they were to pay him in part, and the balance he was to raise frvm the land owners interested; that he proceeded to have the work done; that on June 5th complainants accepted it as completed, and paid therefor on the part of the town the sum of §90, being something more than had been agreed on; that, as so enlarged, the ditch is sufficient to carry off all the water that comes onto said highways at the points where it crosses them, and that “ by mutual consent and agreement it was to be an open ditch.”

It then avers that on the 11th of September said James B. Wright threw up an embankment across it on the west end, about eight rods from where it commences, and is proceeding to fill it up on said W. 27. W. J — 33, and threatens to place tile therein and to convert it from an open to a tile ditch; the effect of which, it is alleged, will be to causé the water to back up and lie on said highways, soaking the grades and rendering them impassable, and so working irreparable injury.

It therefore prays that defendants “be enjoined from filling up said ditch on the W. i, 27. W. | — 33, and from throwing or erecting embankments across the same, and from placing tile therein * * * or in any manner interfering with or obstructing said ditch or the flow of water therein.”

Upon this bill and the order of the master thereon, without notice, an injunction issued as was prayed. Defendants moved, to dissolve it for want of equity and because there was no, proper party complainant. The court sustained the motion^ awarded to defendants §100 for damages suggested* and dismissed the bill, which action complainants, who appealed, here assign for error.

We think the decree was right. The bill sought to perpetually enjoin the owner and the occupant of an eighty-acre tract adjoining a highway from filling up an artificial ditch on said tract and without the limits of the highway. Prima facie they had a right to fill it. Individuals may lawfully make such erections on them own land or otherwise use it as they see fit, provided they do not thereby infringe upon a public easement or the rights of other individuals. ■ Tanner v. Volentine, 75 Ill. 625; Nevins v. City of Peoria, 41 Ill. 502 ; The People v. The City of St. Louis et al., 5 Gilm. 351.

It is not pretended that this filling would directly obstruct the highway or flood it by diverting the flow of any natural watercourse or even the natural drainage of surface water. It would simply restore the natural surface of appellee’s land which has been thus temporarily and artificially changed, and that this would obstruct the drainage of the highway, as previously affected by the ditch, is immaterial, unless the public have acquired a perpetual or continuing right to it. The bill claims they have; not that appellees are under obligation actively to keep it open and fit for that purpose, as in Van Oblen v. Van Oblen, 56 Ill. 528, but that the Commissioners of Highways as such have the right to do so, and that appellees are bound to refrain from any act that would obstruct it.

Such a right or privilege in the land of another amounts to an easement, and such as can be acquired at common law only by deed or prescription, (Forbes v. Balenseifer, 74 Ill. 183; Kamphouse v. Gaffner, 73 Ill. 453; Woolward v. Seeley, 11 Ill. 151,) or under the statute by condemnation, (B. S. 1883, Ch. 121, Sec. 8,) for the “ consent ” of the owner there spoken of, if to create an easement, must be understood to be such as would be effectual without the statute, that is, a common law consent, which is by deed.

But appellees set up no pretense of its acquisition by either of these means. They show a bare “consent” of the land owners without an intimation of its form or term, which is manifestly only a license up to April 4, 1885, and rely on the “contract” then made with James B. Wright for the enlargement of the ditch. In the argument it is said “the right to maintain this suit rests upon the rights secured to the complainants by virtue of the contract set up in the bill.”

We do not perceive that this strengthens their case. They could have done the work specified under the license previously given until notified of its revocation. Kamphouse v. Gaffner, 73 Ill. 453; Wilson v. Garrard, 59 Ill. 51. Of course they could have had it done for them, and for that purpose could have employed the licensor himself as well as any other. But his agreement to do, for a consideration, what they were licensed to have done, could not of itself change the character or effect of the license. It would be a recognition of it and a consent to its continuance indefinitely, but leaves it subject to revocation precisely as before. Nor would the farther facts of its execution and the payment of the consideration make any difference. Kamphouse v. Gaffner, 73 Ill. 453 eb seq., where the authorities are cited,, and Russell v. Hubbard, 59 Ill. 335, is expressly declared to be “ either limited to cases of party walls or considered as overruled.” See also Tanner v. Volentine, 75 Ill. 624. The contract, then, to raise this license to the dignity of an easement must have shown such an intention and been by deed.

But it is not so alleged. By a familiar rule of pleading the averments in the bill, where equivocal, must be taken most strongly against the complainant. Happy v. Morton, 33 Ill. 398; West v. Schnebley, 54 Ill. 523; Roby v. Cossit, 78 Ill. 638; Reipho v Reipho, 88 Ill. 438. And in The People v. Swigert, 107 Ill. 494, it was said: “ Viewing them in that light, inasmuch as the relator does not claim that the direction * * * in question was in writing, it must be assumed it was a mere verbal order,” etc. So here, inasmuch as the bill does not aver that the “contract” with Wright or the “mutual consent ” referred to was in writing, it must be assumed they were verbal merely. And that, in effect, being all that is averred, is therefore all that is admitted in this regard by the motion to dissolve, operating as a demurrer. So much, however, was thereby admitted; and because the contract and consent were so admitted as averred, and their full effect conceded, there was no need, as suggested by counsel, of a plea or answer setting up the Statute of Frauds. That statute, if invoked, would have furnished no aid, because the contract and consent, though in parol, were neither void nor voidable thereunder. But in their full effect they amounted only to a license, and that, the bill itself shows, had been revoked by the party who is alleged to have given it.

In Van Ohlen v. Van Ohlen, 56 Ill. 528, the contract was in writing, and did not purport to confer on plaintiff a right to enter upon defendant’s land. The action was brought to recover damages for a breach of defendant’s agreement to do something himself on his own land which would have been of benefit to the plaintiff. And in The City of Coldwater v. Tucker, cited by counsel from 36th Mich., as most nearly analogous to the case at bar, the contract was also in writing, and was not objected to for want of a seal. Besides, the injunction was proper in that case because under its peculiar circumstances the repudiation of the contract would have been a serious fraud upon the complainant, as well as an irreparable injury.

In this State, as we have seen, a parol license to enter upon or pass o.ver theland of another is revocable at the pleasure of the licensor, and may be revoked by appropriating such land to any use inconsistent with the enjoyment of the license. That such ah appropriation was made in this case is not only shown, but is the very subject-matter of the complaint.

Under the rule of pleading above stated, the bill is still more certainly and clearly defective in another particular. All the right claimed by complainants in the premises is said to be derived from James B. Wright, and yet it is not averred that he had any title to the land or any authority from the owner to put upon it the burden of this easement. The contrary is implied by something more than a mere omission, by the express but limited averments that he was in possession and control of it, and that another claimed to be the owner, whose claim is not denied, and who is actually made a party solely because of it. We think these, against the pleader, are to be taken as an averment that he was merely a tenant. In Gentleman v. Soule, 32 Ill. 279, the Supreme Court say : “ It would be unheard of for a tenant to exercise the right of granting a valid easement over the land of another;” and to - the same effect are Harding v. Hale, 83 Ill. 501; Gridley v. Hopkins, 84 Ill. 528; Kyle" v. The Town of Logan, 87 Ill. 64.

Other questions have, been argued — the sufficiency of the "allegations of damage, the remedy at law, and the authority of Highway Commissioners to bring such a bill, which we think unnecessary to consider ; but for the reasons above -given the decree will be affirmed.

Decree affirmed. :t