text:
    Kate Cusick, Appellant, v. James H. Langan et al., Appellees.
    Gen. No. 5381.
    1. Interest—money collected under mistake of law. If executors collect rent under the belief that they are entitled so to do, and do not use it for their own benefit, they are not chargeable with interest for a failure to turn it over to the party entitled thereto where such party did not object to the collection of such rent by such executors.
    2. Wills—flow construed. If the language of a will is susceptible of two constructions, one of which will dispose of the testator’s entire estate and the other would leave him intestate as to a part of his property, the courts will, if reasonably possible, adopt such a construction as will prevent intestacy as to any portion of the estate.
    3. Wills—phrase “due at the time of my death” construed. Eeld, in this case, that the words “due at the time of my death” did not mean only “matured at the time of my death,” but were the equivalent of the phrase “owing at the time of my death,” regardless of maturity. Any other construction would have resulted in partial intestacy.
    Objections to executors’ report. Appeal from the Circuit Court of Kankakee county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    B. S. McIldtjee and B. B. Thompson, for appellant.
    H. K. & H. H. Wheeleb, for appellees.
   Mr. Justice Dibell

delivered the opinion of the court.

James Langan died on October 8, 1903, leaving surviving him a widow, two sons, Thomas H. Langan and James H. Langan, and two daughters, Mary Mullaney and Kate Cusick. He died possessed of a homestead in the city of Kankakee; of over one thousand acres of land in the counties of Kankakee, Iroquois and Livingston, worth over $100 per acre; his household goods in his residence; a small sum of money; and certain contracts for the conveyance of other lands by him upon the payment to him of certain sums of money, the time for which payments had not arrived when he died. He left a last will and two codicils thereto, which were duly admitted to probate. By his will he gave his wife the use of the homestead and the household goods, with remainder to Mary Mullaney. He devised all his other land, which he owned when the will was made, to his children, giving some lands to a child in fee and other lands to a child for life, with remainder to his or her children, either share and share alike or as appointed by each daughter in her will. He gave certain moneys for masses, for burial vault, for a monument. The eighth paragraph of the will was as follows: “After the payment of the legacies and the sums of money herein mentioned, I give to my beloved wife, all money, notes, or obligations of any kind, that may be due at the time of my death, to be hers absolutely.” The first codicil gave his wife the use of certain of the real estate for her life, and directed his executors from the first moneys that came into their hands to pay off a certain mortgage of $8,000 so as to clear up the lands covered thereby which he had previously willed to Mrs. Cusick. The original will was made on November 20, 1899. In the fall of 1901 the testator bought these other lands. He paid for the same and received a deed in February, 1902, and to obtain the money paid therefor executed said mortgage for $8,000 upon the lands he had willed to Mrs. Cusick. Before he obtained the deed he had entered into a contract to sell a part of this newly purchased land to one Koon upon certain successive payments for five consecutive years thereafter. It is evident that he expected to sell the rest of this recently purchased land soon, for in his first codicil, executed in April, 1902, he did not devise or mention it. In December, 1902, he made a contract to convey the rest of said newly purchased lands to one Willets, partly for cash, and the balance in ten equal annual payments. Both contracts carried interest on the deferred payments. The second codicil is not material to this case.

Such proceedings were had that prior to the origin of this litigation the purchase price under the contracts with Koon and Willets was paid to the executors in full. Before his death the testator had leased various tracts of land for a period running beyond the date of his death, and the second installment of rent for the last year had not become payable when the testator died. The executors collected, not only the rent which had matured and was unpaid at the testator’s death, but also the rent which matured after his death for the remainder of that rental year. From these various sums the executors paid the claims and expenses of administration, and said $8,000 mortgage resting on the lands of Kate Cusick; and they filed a final report in the county court showing a balance on hand of $7,633.92, and reported that, after deducting therefrom such sums as still might be due the executors and their attorneys, the balance was payable to Catherine Langan, the widow. To this report Kate Cusick filed forty objections, and from an adverse decision upon certain of said objections she appealed to the Circuit Court. All matters in dispute1 were there eliminated except two questions, decided adversely to her, and from the final order in that court Kate Cusick prosecutes this appeal.

Appellant contended that the rents which matured after the testator’s death upon the lands devised to her became her property at the testator’s death; that the executors had no right to collect the same; and that those moneys should be paid to her by the executors. The court below so held, and ordered $805 of that rent money paid to her; and, although the other devisees have not asked to have.their rent refunded, yet no cross errors have been assigned, and her right to said rents is conceded. But she contends that she is also entitled to interest on this rent from the time when it was paid to the executors. The court denied her claim for interest, and that ruling is assigned for error. It is evident that the executors collected this rent under the belief that it belonged to the estate. There is no proof that appellant ever sought to compel the tenants to pay it to her. It is a fair inference either that she also believed at the time that it belonged to the executors, or else that she consented that they should collect it. There is no proof that the executors used the money for their own benefit, nor that appellant ever demanded the money of the executors, or ever claimed the money till she filed objections to their final report. This was not an unreasonable and vexatious delay of payment within the meaning of those words in section 2 of our statute in relation to interest, nor was there any tortious or fraudulent act in the collection of this rent. Under the principles laid down in Whittemore v. People, 227 Ill. 453, 474, appellant was not entitled to such interest.

The moneys remaining in the hands of the executors, after paying the debts and costs and said mortgage and refunding the rents to appellant, arose from payments made by Boon and Willets, respectively, to the executors under said land contracts, and were payments which had not matured under the terms of said contracts at the testator’s death. Appellant contends that they therefore were not “due” at the time of testator’s death and therefore did not pass to the widow under the eighth paragraph of the will, above set out, but, there being no residuary clause in, the will, were intestate estate, which should be divided between the widow and the heirs at law, under the statute. The court below denied this contention and ordered the residue of said moneys paid to the widow. This ruling is assigned for error. The amount involved is about $6,000.

The vital question is whether the words “due at the time of my death” in the will mean “matured at the time of my death,” or merely “owing at the time of my death.” The unabridged dictionaries, law dictionaries, encyclopedias of the law, and legal text books generally, while giving the popular use of the word “due” as meaning that the time fixed for payment has arrived, yet also give a broader signification of the word, applying to any debt which is owing, whether the time fixed for payment has or has not arrived. There are cases in many jurisdictions, where under the circumstances of the particular case the latter meaning has been adopted by the courts. Among them are United States v. State Bank, 6 Peters 29, 36; Leggett v. Bank of Sing Sing, 24 N. Y. 283; Mason v. Mason, 67 Me. 546; Sand Blast Co. v. Parsons, 54 Conn. 310; Scudder v. Scudder, 10 N. J. Law 340; Fowler v. Hoffman, 31 Mich. 215; People v. Vail, 6 Abb. N. C. (N. Y.) 206; Elkins v. Wolfe, 44 Ill. App. 376. The court is required to determine in which sense the testator used the words “due at the time of my death” in the eighth paragraph of his will. A man who has taken the trouble to prepare a will is presumed to have intended to die testate as to all his property, unless the contrary appears. When the language of a will is susceptible of two constructions, one of which would dispose of his entire estate, and the other would leave him intestate as to a part of his property, .the courts will, if reasonably possible, adopt such a construction as will prevent intestacy as to any portion of the estate. Connor v. Gardner, 230 Ill. 258. The testator did not otherwise dispose by will of the moneys due him under these contracts, nor did the will contain any residuary clause. If the construction contended for by appellant is adopted the testator died intestate as to those moneys. The construction urged by appellant would make the question whether the will disposed of those moneys to depend upon the particular day when the testator died. Every man knows that the day of his death is uncertain. We think it would be unreasonable to hold that the testator intended that if he should die the day after a particular debt matured, such debt should pass to his wife by his will, but that if he died the day before it matured, it should not be governed by his will, but should be left to pass as intestate estate to his heirs at law under the statute. We think it unreasonable to suppose that a testator would intend to will to his wife a considerable sum of money if he should happen to die after a certain date, and leave that sum of money undisposed of by will if he should happen to die a few days earlier. We are of opinion that the testator intended to give to his wife all moneys, notes and obligations of every kind for the payment of money which should be owing to him at the time of his death, without regard to the time when the same became payable, and that the testator intended to dispose of Ms entire estate. True he did not dispose of the legal title to the lands he so contracted to sell, but this legal title was only held as security for the payment of the debt (1 Woerner’s Am. Law of Administration, 2d Ed., star page 593), and the executors could be compelled to deed the land. R. S. chap. 29.

We are not unmindful that in this state a devise of land by will carries with it the unpaid purchase price under a contract by the testator for the sale and conveyance of such land. Heirs of Wright v. Minshall, 72 Ill. 584; Covey v. Dinsmoor, 129 Ill. App. 49; 226 Ill. 438; Adams v. Peabody, 230 Ill. 469. This is contrary to the rule generally prevailing elsewhere. 1 Woerner’s Am. Law of Administration, 2d Ed., star page 103. We do not think that it follows that, in this state, if intestate lands descend to the heirs, the latter take the money which was to be paid to the deceased, but rather that in such a case the general rule elsewhere also prevails here, which is that an agreement for the sale of land converts it into personalty, and the money when paid goes to the administrator. 2 Woerner’s Am. Law of Administration, 2d Ed., star page 1233. Indeed, it is not questioned here but that if the moneys unpaid upon the contracts were due to the testator at the time of his death, within the meaning of this will, then the order in favor of the widow should be affirmed.

The order is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Dibell

license: Public Domain

text:
    Antonio Frenci, Appellee, v. Tazewell Coal Company, Appellant.
    Gen. No. 5383.
    1. Mines and minees—what not defense to action charging wilful violation. The contributory negligence of a plaintiff is not a defense to a wilful violation of the mines and miners act.

      2. Mines and miners—what not defense to action charging wilful violation. The doctrine of assumed risk is not available as a defense in an action under the mines and miners act charging a wilful violation.
    3. Mines and miners—what defense doubtful in action charging wilful violation. It may well be doubted whether a defendant in an action brought for the wilful violation of the mines and miners act can be heard to say that the injury was caused by the negligence of a servant of the defendant who was a fellow-servant of the plaintiff.
    4. Mines and miners—what does not ease use failure to adopt rules. The fact that a servant could not read the English language does not excuse the mine operator from failure to adopt and post rules governing shot firing.
    5. Appeals and errors—what errors deemed waived. Errors not argued are deemed waived and will not be considered on review.
    Action in case for personal injuries. Appeal from the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding. Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    W. B. Cubran, for appellant; Mastín & Sherlock, of counsel.
    J. L. Mtrphx, for appellee; Stcher & MoNemar, of counsel.
   Mr. Justice Dibell

delivered the opinion of the court.

Antonio Frenci was digging coal for the Tazewell Coal Company on January 10, 1908,, in Boom No. 7 off the sixth west entry. Leopold (also called Pauldo) Cargonio was digging coal in Boom No. 8, next west of Boom No. 7. The coal was loosened by shots fired in each room at the close of the day. Formerly, expert shot firers had been employed and the expense thereof charged to the miners. In the preceding October, at the request of the miners, they had assumed the firing of their own shots. On the afternoon of January 10, 1908, Cargonio fired shots - in Boom No. 8 on the side next to Boom No. 7 and the wall or pillar of coal between the two rooms at that point was so thin that the shots or one of them went through into No. 7, blowing into that room 600 or 800 pounds of coal. The coal hit Frenci, broke Ms left leg, and seriously injured him otherwise. As a result, it became necessary to amputate his left leg about four inches below the knee. He was ill for a long time, was incapacitated thereafter from his former employment, and was obliged to do work which was much less remunerative. He brought this action to recover damages for said injuries, and filed an amended declaration containing eleven counts. The second, fifth and ninth counts were afterwards dismissed. The first count averred common law negligence in failing to use reasonable care to provide plaintiff with a reasonably safe place wherein to work. The other counts which went to the jury charged wilful violations of various provisions of chapter 93 of the Revised Statutes, entitled “Mines and Miners.” The third count charged wilful violations of the provisions of section 16 (d), in that defendant, through its mine manager,, wilfully failed to give special attention to, and instructions concerning, the proper handling of explosives in the mine, and in the time and manner of placing and discharging the blasting shots. The fourth count charged a wilful violation of section 18 (a) and (b) in that defendant wilfully failed to cause the working place of plaintiff to be visited by a duly certified mine examiner, and to cause the rooms and pillar aforesaid to be inspected by such examiner so as to observe if there were any unsafe conditions, and to cause a conspicuous mark to be placed at or near said defective pillar. The sixth count charged a wilful violation of the same provisions as the third count, and other violations of the same section. The seventh count charged a wilful violation of section 18 (c) in various respects. The eighth count charged a wilful violation of section 18 (b) in permitting persons to work in the mine before conditions had been made safe. The tenth count charged a wilful violation of a part of section 16 (a) in a failure of the mine manager to visit and examine the working places in Rooms 7 and 8 for at least six days before the injury. The eleventh count charged a wilful violation of section 32, requiring the posting of rules on the engine house. An additional count was afterwards filed, charging a wilful violation of section 16 (e) in failing to have the mine examined every morning before the men' were permitted to go to work. After verdict plaintiff filed two additional counts, which he says are not intended to support the verdict, but are meant to meet certain matters set up in defense, before the Statute of Limitations should run, in case a new trial should be awarded. Defendant pleaded the general issue, and there was a trial and a verdict for plaintiff in the sum of $3,000 and a judgment thereon, from which defendant below appeals.

Nine rooms had been turned south off the sixth west entry, numbered from one to nine. Host of them had an opening directly into the room, but to enter No. 8 one first went through the throat or opening into No. 7, and a short distance into No. 7 an opening was cut through west into No. 8. No. 7 had been cut perhaps fifty feet south before the opening into No. 8 was begun, and it had been cut fifty or sixty feet further south before this accident. Frenci did all the digging of coal in No. 7. Oargonio cut the entry from No. 7 into No. 8 and cut west till he had' obtained the desired width and then worked the room to the south, and had cut in some sixty feet. At a certain point in his west wall Frenci had curved in some towards the west. When Oargonio had carried Eoom 8 to about the same point he also caused his room to belly in towards Eoom 7. It was required that a cross cut should be cut through between rooms every sixty feet for purposes of ventilation, and the defense claims that, although No. 8 had then gone only about fifty feet, orders had been given to make a cross cut. at that place; but Frenci and Oargonio deny that any orders had been given to put in a cross cut there or that the bellying in of each room towards the other had been done by them for the ■ purpose of locating a cross cut there, and also denied that they had done this intentionally. The result, however, was that the intervening wall or pillar was made so thin that shots fired by Oargonio broke through and carried a mass of coal into No. 7. The method pursued in shooting was that near the time to close the mine at the end of the day each miner drilled holes where he wished to tear off the coal, and loaded them with powder and attached a fuse which, when lighted, would take about six minutes to explode the charge. When all was ready and a driver had notified the miner in the farthest room to fire, he lighted his fuse and went out of his room and went into the next room and notified the miner there of the firing. The first miner would then pass out to the entry and go to the shaft and go home. The second miner notified would then light his fuse, notify the next man and pass on, and so on through the tier of rooms. At -firing time each miner had to have two lamps, the one on his cap which lighted him about the mine, and another with which to light the fuse. On the afternoon in question the miner in Do. 9 lighted his fuse and notified Cargonio in Do. 8. Cargonio lighted his fuse and passed into Do. 1 and notified Frenci and then went out. Frenci was at his box of supplies, which he kept just east of the switch track in his room directly opposite where this wall was so thin. Frenci intended lighting his fuse immediately, but had some trouble in lighting his second lamp, and in trying to fix it pulled out the wick and was obliged to get an iron with which he tried to push the wick into place. He did not know that the pillar between him and Do. 8 was dangerously thin. The trouble with his lamp detained him till the shot exploded in Room Do. 8 and he therefore received the injuries already mentioned. Appellant contends that this was a risk which appellee assumed; that Cargonio was his fellow servant and that the injury was due to the negligence of Cargonio and therefore appellant is not responsible; and that appellee was guilty of contributory negligence in bellying the wall to the west and in not learning from the sound of Cargonio’s drill that the wall was dangerously thin, and in not leaving the room before the shot in Do. 8 exploded. That the contributory negligence of the plaintiff is not a defense in an action for the wilful violation of the Mines and Miners Act is held in many cases, among which are Catlett v. Young, 143 Ill. 74; Carterville Coal Co. v. Abbott, 181 Ill. 495; Odin Coal Co. v. Denman, 185 Ill. 413; Western Anthracite Coal Co. v. Beaver, 192 Ill. 383; Mertens v. Southern Coal Co., 235 Ill 450; and Peebles v. O’Gara Coal Co., 239 Ill. 370. It was also held in Spring Valley Coal Co. v. Patting, 210 Ill. 342, and Kellyville Coal Co. v. Strine, 217 Ill. 516, that the doctrine of assumed risk is not available as a defense in such a case. It may well be doubted whether a defendant in an action brought for wilful violation of said statute can be heard to say that the injury was caused by the negligence of a servant of defendant who was a fellow servant of plaintiff. Niantic Coal and Mining Co. v. Leonard, 126 Ill. 216; Girard Coal Co. v. Wiggins, 52 Ill. App. 69. But, if the doctrine of fellow servants is available as a defense, it is not established in this case. The evidence would not warrant the jury in finding that Frenci and Oargonio were fellow servants. Frenci was mining coal for appellant in '¡Room Fío. 7 at a certain price per ton. Oargonio was mining coal in Room Fío. 8 under a like arrangement. FÍeither of them ever worked in the room of the other. ¡Neither of them assisted the other. Sometimes one borrowed powder or other supplies from the other. The one whose duty it was to fire his shot first was required to notify the next man. They had no other relations with each other and were not fellow servants. Moreover, we do not think it could reasonably be found that Oargonio was negligent. It was the duty of appellant to see that the shooting was so directed that the pillar of coal between rooms was left of a sufficient thickness to be safe. Oargonio was not required by any rule or regulation there prevailing to keep himself advised of the exact location of the cut on the other side of the pillar and to make measurements and ascertain the thickness of the pillar. These all pertain to the duties of the mine manager and the mine examiner, as representatives of the appellant. It ought also to be said here that if contributory negligence was a defense, it is not shown that Frenci was guilty of negligence. Fío duty devolved upon him to watch or guard against or know the course of the cut and drill in the adjoining room. The proof is clear that he did not know of the thinness of the partition wall of coal. There is no proof that the warning from Cargonio that he had lighted his fuse in Room 8 was intended to protect Frenci from the danger of the shot. So far as the proof shows the only purpose of the warning or notice that the fuse had been lighted in Room 8 was to enable Frenci to light his fuse and start to leave the mine before that part of the mine was filled with smoke which the shooting caused.

It is a reasonable conclusion from the evidence that the condition of this pillar or supporting wall of coal had been dangerous for some days and at least was dangerous when the men went into the mine that morning and, under sections 16 (d) and 18 (b), it was a wilful violation of the law not to ascertain that fact and mark the place as dangerous. Frenci and Cargonio were permitted to work in Rooms T and 8 before conditions had been made safe and this was a wilful violation of section 18 (b). ¡No instructions had been given these employes as to the proper manner of firing shots near the partition wall as required by section 16 (a). ¡No record had been made of the dangerous condition existing as to this place, as required by section 18 (c). We are of opinion also that appellant should have adopted rules to govern shot firing by its employes and should have posted them on the engine house as required by section 32. The fact that Frenci could not read the English language does not excuse appellant or relieve it from liability. If proper rules had been so posted, though Frenci might not have been able to read them, yet very probably they would have been read and understood by many of the miners and the information would in that way have reached the whole body of the miners. We therefore conclude that this record shows wilful violations of the statute, causing the injury to Frenci.

Under the authorities above cited the only criticism made upon the instructions given at the request of appellee is not well founded. Appellant in its brief gives the numbers of twenty-one instructions which it says the court erred in refusing to give at appellant’s request. This supposed error is not argupd, and no reasons are advanced to show why the court should have given the instructions, and we regard the alleged error as waived because not argued; but we find that, generally speaking, those instructions were so drawn as to be applicable to the entire declaration, whereas they were only the law as applied to the count for common law negligence. For the same reason the court properly modified certain of appellant’s instructions as requested, though the supposed error in so modifying them is also not argued and is therefore waived. While it is asserted by appellant that the damages are excessive, no argument is made to sustain that assertion, and we are of opinion that the judgment was moderate for the injuries suffered'.

The judgment is therefore affirmed.

Affirmed.


text:
    John Boden, Appellee, v. Kewanee Coal & Mining Company, Appellant.
    Gen. No. 5165.

      Instructions—erroneous in ignoring defense. In an action on the case for personal injuries, an instruction which authorizes a verdict for the plaintiff is erroneous which does not require that the jury shall find that the injury did not result from, a risk assumed by the plaintiff or from the negligence of a fellow-servant where both of such defenses were relied upon and supported by evidence tending to establish the same.
    Action in case for personal injuries. Appeal from the Circuit Court of Henry county; the Hon. Emery C. Graves, Judge, presiding. Heard in this court at the April term, 1910.
    Reversed and remanded.
    Opinion filed October 18, 1910.
    Pomeroy & Demerath and Wilson & Cummings, for appellant.
    FT. F. Anderson, Thomías J. Welch and James H. Andrews, for appellant.
   Mr. Justice Dibell

delivered the opinion of the court.

Appellant operates a coal mine. There is a tower or tipple house over the shaft into which the coal is hoisted from the shaft. It is then weighed and dumped into a chute on which the coal runs into cars located on any one of four tracks underneath, which tracks are parallel and run in an easterly and westerly direction. Two of those tracks adjoining each other are known as the "slack” track and the “lump” track. These tracks decline towards the west at a one per cent grade, so that a car loaded at the tipple house and started west by a pinch bar or by being bumped by a car from the east will run west by gravity. At a point about 165 feet west of the chute the slack track and the lump track converge into a spur track and the force of gravity will carry a moving car on either of these tracks to a point on the spur track about 450 feet west of the chute, where loaded cars are stopped and retained till removed by an engine from an adjoining railway. On May 9, 1906, appellee was working for appellant as a “flat trimmer.” It was his duty to stand in a car on which coal was being loaded from the chutes, to keep close watch of the coal as it ran over an iron apron into the car and pick out all slate, sulphur and other impurities. When the car was full and after another employe had started it, it was his duty to run the loaded car down to and upon the spur track. Daniel Bauer was weighman in the tipple house. It was his duty to weigh the coal and to cause it to be conducted over the chute to the proper car. What other duties he had is disputed. David Terry was an employe of appellant whose duty it was to let empty cars down to the chute from an elevation further east and also to start loaded cars at the chute, either by the use of a pinch bar or by bumping the loaded car with an empty car to take its place. Shortly before the accident upon which this suit was based, Terry let an empty car down on the slack track and it struck a loaded car at the chute on the slack track and they both got beyond Terry’s control and ran away to the west and stopped at the point where the slack track and the lump track- converge into the spur track. Terry claims that he notified appellee of this runaway. Appellee claims that he did not hear any such notice and did not know of the runaway. About five minutes later the loading of appellee’s car on the lump track was finished and it was started down the grade. Appellee got upon a little platform at the west end of his car, adjusted the brake so as to be ready to stop the ear when it reached the proper place on the spur track, and rode down the grade with his back towards the west. When his car reached the point where the lump track and the slack track converged, his car struck a corner of one of the runaway cars and he was caught and severely injured. He brought this suit against appellant to recover damages for said injuries, and in his declaration made various charges of negligence against appellant, and, upon a trial, had a verdict and a judgment, from which defendant below appeals.

Appellee claims that he was ordered by Bauer to send down this car; that Bauer was a vice principal; that appellee did not assume the risk, because he was obeying the special order of the vice principal and because he did not know that cars had run away on the slack track nor that they had stopped where the lump track and slack track converge into the spur track; that Terry was not his fellow servant, but if he was, and even if Terry’s negligence caused the slack cars to be at the junction, still the defense that the injury was caused by the negligence of appellee’s fellow servant is not well founded, because appellee acted in obedience to an order of the vice principal. There was evidence introduced by appellee tending to sustain these positions. Appellant introduced evidence tending to show that Bauer was not a vice principal and had no authority to order the car taken down, but that it was the regular duty of appellee to take the car down when it was loaded; that, while Bauer knew that the slack cars had run away, he did not know that they had stopped at the junction of the lump track and the slack track, and could not see that junction from the place where he stood when weighing coal; that Bauer did not order appellee to send down this car; that appellee took the car down in the ordinary course of his employment, and therefore assumed the risk; that Terry was negligent in permitting the cars on the slack track to run away and in leaving them at the junction; that he was a fellow servant of plaintiff and that appellant is therefore not responsible to appellee for an injury resulting from Terry’s negligence; that Terry notified appellee that the cars had run away; that it was a clear day and that appellee was negligent in not looking ahead as he went down the incline and discovering the cars at the junction; and that cars had run away nearly every day while appellee had been employed for appellant. It is therefore clear that there was evidence tending to show that the injury was caused by a fellow servant of plaintiff, for whose negligence appellant would not be responsible; and also evidence tending to show that the risk of injury in taking a loaded car down the incline was one which he assumed. These were questions of fact that it was the duty of the court to submit to the jury. When appellee argues that these defenses are not in the case, he can only mean that if the proof he relies upon is true, these defenses are overcome; but it is also true that, if the proof introduced by appellant is believed, these defenses are maintained.

In this state of the proof the court, at the request of appellee, gave the jury instruction Ho. 6, as follows:

“You are further instructed that the law demands that the defendant use ordinary skill and vigilance in providing for its servants and employees a reasonably safe place in which to perform their duties; and if you believe from the evidence in this case that the defendant corporation neglected to provide such a place for the plaintiff, Boden, to do his work, and that, by reason of such negligence on the part of the defendant, the plaintiff while exercising ordinary care for his own safety, was injured, then you should find the defendant guilty.”

This instruction did not require that plaintiff should prove the case stated in the declaration or any count thereof, and made no reference to the declaration, and therefore cannot be aided by the declaration. It ignores the defense of assumed risk and that the injury was caused by the negligence of a fellow servant. If Bauer was not a vice principal, or did not order appellee’s car sent down, and did not know that the runaway cars had stopped at the junction, then the jury might have found that the only negligence was that of Terry, and if they also found that Terry was a fellow servant of appellee, then appellant would not be liable for this injury, and yet, in such a case, this instruction directed a verdict for appellee. So too, whether Bauer was or was not a vice principal, the jury might have taken a view of the testimony which would have made appellee assume the risk (Kolp v. Decatur Ry. & Light Co., 145 Ill. App. 645), in which case appellant would not be liable, and yet a verdict for appellee could be had under this instruction. The giving of such an instruction has been held reversible error in I. C. R. R. Co. v. Smith, 208 Ill. 608; Terra Cotta Lumber Co. v. Hanley, 214 Ill. 243; Montgomery Coal Co. v. Barringer, 218 Ill. 327; and Mooney v. City of Chicago, 239 Ill. 414.

For the error in giving.said instruction, the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    B. F. Gray, Adm’r., et. al., Appellees, v. John B. Hayhurst, Appellant.
    Gen. No. 5180.
    1. Conveyances—what essential to show absolute deed in fact mortgage. The law presumes that a deed is the absolute conveyance which it purports to be on its face, until the contrary appears. If a party claims that an absolute deed is, in fact, a mortgage, he must establish that fact by evidence which is clear, satisfactory and convincing, and he must show that a debt to the grantee existed which was to be secured by the deed.
    2. Redemption—what defense to right of. The right to redeem from a deed absolute on its face which was intended as a mortgage will not be recognized and enforced in equity if it has been allowed by lapse of time to become stale and the delay is not accounted for and a showing of good faith and diligence made.
    3. Laches'—when defense need not he specifically relied upon in answer. If the defense of laches is apparent from the face of the bill it may be relied upon as ground for the affirmance of a decree of dismissal for want of equity, if the answer denied that the complainant was entitled to the relief prayed and asked that the same advantage be given to such answer as would have been allowed had a demurrer been filed.
    4. Appeals and ebkobs—what cannot he complained of. A party cannot assign as error rulings of the court which do not prejudicially affect his own interest.
    5. Intebest—when chargeable upon advancements. If by law a testator directs that in the distribution to be made of his estate notes due from the distributees shall be charged against such distributees respectively, the interest upon such note should likewise be charged where the intent of the testator to that effect is apparent from the entire will.
    6. Statute of limitations—when no defense. A distributee under a will is not entitled to avail of the defense of the statute of limitations against notes the amounts of which by the terms and conditions of such will are required to be deducted upon the making of distribution.
    Bill in chancery. Appeal from the Circuit Court of Kankakee county; the Hon. Beane L. Hoopeb, Judge, presiding. Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    H. K. & H. H. Wheeler, for appellant.
    W. K. Hunter and Eben B. Gower, for appellees.
   Mr. Justice Dibell

delivered the opinion of the court.

William Hayhurst died January 20, 1891, holding the legal title to certain homestead lots in the village of Sherburnville and also to 160 acres of land, described as the east half of the southwest quarter and the west half of the southeast quarter of section three in township thirty-one north and of range fourteen east of the third principal meridian, all in Kankakee county, and also owning notes signed by his son John B. Hayhurst, and others signed by his son Jerome A. Hayhurst, and others signed by his son Edwin L. Hayhurst. He left a last will, which was admitted to probate. He therein made provision for his wife, including an annuity during her life, and gave legacies to certain grandchildren. The fourth and fifth paragraphs of said will were as follows:

“Fourth, I give and devise and bequeath the remainder of my property both real and personal to my children, John B. Hayhurst, Lyman W. Hayhurst, Jerome A. Hayhurst, Edwin L. Hayhurst, Haney Lyon, Alice Cleaver and Clara Jones, to each, share and share alike, each and every one of my children, that I or my estate may hold a note against shall receive said notes, as a part of his or her share of my estate, no part of my estate is to go to my children until after the death of my wife.

Fifth, It is my desire and will that my moneys shall be kept at interest, until the death of my wife, then my real estate to be sold, and the proceeds thereof, together with my moneys and personal property is to be divided as above set forth.”

The persons named as executors declined to act, and J ohn B. Hayhurst and George W. Lyon, the husband of Haney Lyon, became administrators with the will annexed. Some years later they resigned and B. F. Gray became administrator de bonis non with the will annexed. Alice Cleaver died, leaving Walter Cleaver her sole legatee and devisee. The widow of William Hayhurst died in February, 1905. On Hovember 29, 1905, B. F. Gray, the administrator, and Haney Lyon, Lyman W. Hayhurst, Clara Jones and Walter Cleaver, filed a bill in equity against John B., Jerome A., and Edwin L. Hayhurst, and others, seeking (1) to remove clouds from the title of deceased to the homestead in Sherburnville; (2) a construction of the will as to said notes given by certain sons and as to the rate of interest at which they should be computed as a part of the estate; and (3) the appointment of a trustee to sell the land and divide the estate pursuant to the will. J ohn B., J eróme A., and Edwin L. Hayhurst, each filed a separate answer, and John B. Hayhurst filed a cross-bill against the administrator and the other devisees and legatees named in the fourth paragraph. By his answer and his cross-bill, John B. Hayhurst claimed to be the equitable owner of said 160 acres of land, and alleged that he caused said tract to he conveyed to his father, William Hayhurst, as security for a loan of $1,600 in 1886, and alleged that his father had been in possession, receiving the rents and profits thereof, since said conveyance. He asked for an accounting between himself and the estate of his father and the devisees, and that he be charged with said sum of $1,600 and the interest thereon and with the taxes and the necessary repairs on the real estate, and be credited with the rents and profits, and that he be permitted to redeem said premises upon payment of the balance found due against him. His answer also related to the notes executed by him. Proofs were taken before the master and by deposition and, upon a hearing, a decree was entered dismissing the cross bill for want of equity, removing the clouds from the title to the Sherburnville lots, relieving the sons from liability on some of their notes and charging the share of John B. Hayhurst with the rest of his notes with interest according to their face from their date till they should be delivered to John B. Hayhurst upon a division of the estate; and with a like provision as to the notes to Jerome A. The decree directed the master to sell the lands and to divide the proceeds and the amount then due upon the promissory notes held valid, pursuant to the provisions of the fourth paragraph of the will. John B. Hayhurst appealed and we affirmed the decree. We afterwards granted a rehearing and withdrew the opinion previously filed.

In 1871 James M. Adsit, Sr., of Chicago, owned the 160 acres above described, and the 80 acres next east thereof, being the east half of the southeast quarter of said section three. On April 1, 1871, by written contract between Adsit and John B. Hayhurst, Adsit agreed to convey the said 240 acres of land to John B. Hayhurst in fee simple clear of encumbrances by warranty deed, upon John B. Hayhurst paying him therefor $4,800 (which was $20 per acre) as follows$1,000 on the first day of April in each of the years, 1873, 1874, and 1875, and $800 on the first day of April, 1876, with interest from date at 6% per annum, payable annually, and all taxes on said premises, including the taxes for 1871. It was therein agreed that if John B. Hayhurst failed to make any of these payments, Adsit might declare the contract forfeited and retain' all payments in liquidation of damages and have the right to reenter, and that time should be of the essence of the contract. It will be observed that the payments enumerated amounted only to $3,800, instead of $4,800. An endorsement on the back of the contract giving the date when each payment was to mature, shows that $1,000 was to be paid on April 1, 1872, which payment was omitted from the body of the contract. An endorsement upon the back of the contract in the handwriting of Adsit shows that on March 29, 1872, he received $1,288 on the contract, which by computation will be found to be the interest on the entire sum for one year at 6%, and $1,000 on the principal of the contract. An endorsement in the handwriting of Adsit shows that on April 2, 1875, he received $1,878.68, which by computation, will be found to be interest on $3,800 from April 1, 1872, to April 1, 1875, and the $1,000 of principal due on April 1, 1873, and $194.68 more, which latter sum may have been to repay Adsit for taxes on the real estate advanced by him during those years or may have been intended to apply upon the balance unpaid on the contract. On the day of the last mentioned payment, April 2., 1875, Adsit conveyed the east half of the southeast quarter of said section three to John B. Hayhurst, leaving the contract still in force as to the two tracts of 80 acres each first described in this opinion. John B. Hayhurst had then paid $2,000 of the principal. If all the land be treated as of equal value, the purchase price of the 80 acres Adsit so deeded to John B. Hayhurst at $20 per acre would amount to $1,600, so that he had paid for that 80 acres and at least $400, and perhaps $594.68, upon the principal sum agreed to be paid for the remaining 160 acres of land. The contract contains no further endorsements of payments. The tax books show subsequent sales of this 160 acres for taxes and redemptions by Adsit and subsequent payments of taxes by others than John B. Hayhurst.

On July 31, 1879, Adsit wrote John B. Hayhurst the following letter:

“Tour favor of......inst. received with enclosures and shall have attention.

Very respectfully,

James M. Adsit.

I wrote you the 15 to know what you expected to do & also if you had kept the Taxes paid & so far have not heard from you. Something must be done at once in this land matter or I shall close up on you.

Let me hear from you on receipt of this.”

On April 8, 1886, Adsit wrote John B. Hayhurst a letter, the body of which is as follows:

“I have yours of April 1st & in reply will say you send me $1,622.86 dollars as I wrote you the 18th of March on receipt of which I will send you deed as directed. As you did not reply to mine of the 18th of March, I paid the tax of 1885, 22.86 dollars this with the purchase money. $1,600 Tax 1885 .................................. 22.86

$1,622.86”

Owen O. Hayhurst, son of John B., and grandson of William, testified both before the master and afterwards by deposition taken in Colorado, concerning a conversation between his grandfather and his father at the house of the latter in Kankakee county in April, 1886. He testified that William told John B. that he had heard that that land was for sale and asked him if he was going to sell it; that John B. said he was going to sell it and he had to have the money; that William said to John B., “I will let you have the money till you can sell the place, but I want the interest on it and what expense I am to;” that the land referred to was the 160 acres; that the sum of $1,600 was mentioned; that John B. told William that he would make a deed for the $1,600 until he could sell the place; that nothing was said about the kind of deed or the rate of interest or the length of time John B. would have to pay it. In his deposition he was more specific that William agreed to let John B. have some money to pay off James M. Adsit, and that John B. was to let William have the deed for the land for security for the monéy; that John B. was to take the money to Chicago and get from Adsit a deed to William, and John B. was to pay William interest on the money, and that they agreed that when the land was sold John B. was to pay William the money loaned, together with interest thereon; that William was to have a deed to' the land as security for the loan of the money to pay off Adsit; that the amount mentioned was $1,600; and that they made arrangements for John B. to take the money and go to Chicago and pay off Adsit and take a deed from • Adsit running to Williams; that there was nothing said as to the length of time for which the loan was made, farther than that when the land was sold, the money was to he paid hack with interest. James IST. Orr, an attorney at Kankakee, testified that early in 1886 he collected about $5,500 as attorney for William Hayhurst in a certain foreclosure suit, which sum he placed in bank for William Hayhurst; that in the spring of 1886 William and John B. Hayhurst came to his office and had a conversation in his presence, in which William said that John B. could have some money to pay upon a contract for the purchase of some land, so that John B. would not lose the payments he had made on it; that the three of them went to the bank and got some money there out of the moneys Orr had deposited to the credit of William, but Orr could not state the amount, and that John B. said they would have to go to Chicago to see about it. Orr testified that he understood from the conversation that John B. was largely in debt and that his father was trying to help him out of the difficulty about this land; that John B. was unable to pay for the land under the contract and that his father was furnishing the money to help him out; that they were going to take up the Adsit contract and get a deed for the land and talked of going to Chicago for that purpose. Orr testified that he suggested a written contract in relation to the matter and that William said it was not necessary, that they had a great deal of business with each other and that the matter was not yet closed up, and that if they needed anything they would have it later. James Dickey testified that about this time he knew that William Hayhurst had about closed up this foreclosure, and that the witness wished to borrow some money, and that William had partly promised to let him have some, and that he went to see William about it and William told him he could not let him have it as he had just had to let John have it to pay out. The letter above set out of April 8, 1886, from Adsit to John B. Hayhurst, shows that Adsit had written to John B. on March 18, 1886; that John B. did not reply to that letter and that because he did not reply Adsit had paid the taxes on this land for 1885; that on April 1, 1886, John B. had written Adsit, making some proposition for the payment of money on the contract in consideration óf which John B. proposed that a deed be made as he should direct. It will also be observed that if no other payments had been made than those endorsed on the contract, then there was due Adsit thereon either $2,800 or at least $2,605.32 of principal, besides interest for over eleven years and such taxes as Adsit may have paid. John B. Hayhurst was a witness in his own behalf as to matters occurring after' the death of his father, and, in answer to a question put him on cross examination, stated that he always claimed that he paid $1,600 on this real estate, and no objection was made to that answer.

On April 13, 1886, five days after the letter of April 8, above set out, Adsit and his wife conveyed the 160 acres to William Hayhurst by warranty deed for an expressed consideration of $1,600 which was no doubt the money referred to in the conversations testified to by Owen Hayhurst and by Orr and taken from the bank in Orr’s presence. Adsit had died and the deposition of his son was taken, and his father’s books, concerning this land, were present, and it was shown that the payments endorsed on the contract appeared on his books and a statement that on April 13, 1886, he sold this land to William Hayhurst for $1,600. Ho other payments on this land appeared on Adsit’s books. Appellant contends that it is a just inference from this evidence that Adsit made this deed upon the completion of all the payments called for by the contract, which was a total of the principal sum of $3,200, for these two tracts of 80 acres each. Appellees contend that there is no presumption that any money was paid upon the contract except that endorsed on the contract or appearing on Adsit’s books. The proof showed that this land was then very wet; that John B. Hayhurst had dug some ditches upon it to drain it and had put some fencing upon it and cultivated a few acres in one corner, but only raised hay upon the most of it. Appellees introduced proof tending to show that it was a very poor piece of wet, swampy land and that in April, 1886, its value did not exceed $10 per acre, or the sum which William Hayhurst then paid or advance. Appellant introduced proof tending to show that it was then worth from $25 to $30 per acre. It is impossible that we should know which opinions were the more valuable. Thereafter a drainage ditch was put through that region by special assessment, and there has been a great increase in the value of lands, and it is conceded that the land is now worth $100 per acre. These witnesses, testifying in flush times, were trying to remember the condition and value of this land more than twenty years before they testified. It is obvious that exact and accurate testimony could not be expected upon a subject so remote in time and memory. If the payment made on April 13, 1886, completed the full agreed purchase price of $3,200 for this 160 acres, it is strange that $3,200 was not stated in the deed as the consideration instead of only the $1,600 paid that day. It may be that this paid the full agreed consideration. It may be, on the other hand, that the land in fact had been originally bought by Hayhurst at an extravagant price; that Adsit had become weary of his inability to collect either principal or interest and made a proposition, at that time in 1886, fifteen years after the date of the contract, to take $1,600 in satisfaction for his claim regardless of the amount due under the contract. It will be noticed that the evidence of Owen Hayhurst and Orr relates to a period before the money was actually paid and the deed taken. Probably the money was paid and the deed made in strict pursuance to the previous arrangement testified to by these witnesses, yet it is entirely possible that William and John B. Hayhurst had some other and different understanding before the money was actually paid and the deed executed. We have stated substantially all of the events shown by the evidence up to the making of the deed.

The proof as to what afterwards occurred is to be considered in two aspects, first, as bearing on the question whether the arrangement between the father and the son was as appellant claims, and, second, whether appellant is now in a position to obtain from a court of equity the relief which he seeks. Possession of the land was immediately delivered to William Hayhurst. Appellant cut hay therefrom for two years and delivered to his father one-half of the product as rent. Since that time, appellant has never been in possession of the premises. Hpon the making of the deed the land was afterwards assessed to William Hayhurst. Appellant has never since paid any taxes on the land. Appellant has never paid to his father or to the administrators any interest on said sum of $1,600. When appellant and Lyon became administrators they filed an inventory in which this land was included as real estate of William Hayhurst, and the inventory stated, “Title in fee simple.” Appellant testified that he does not think that the words just quoted were in the inventory when he signed it. Lyon testified that they were, and there is every probability that he is correct. The proof shows that William Hayhurst was in the habit of taking notes from his sons when he loaned them money, and a number of such notes were in his hands at his death. The administrators inventoried these notes. William did not take any note from áppellant for this $1,600. Appellant did not cause a statement to be made in the inventory that he owed his father $1,600 or any other sum upon this transaction. If the arrangement between appellant and his father was as he now claims and if that arrangement had not been abrogated before his father died, it would have been natural that he should advise his co-administrator, Lyon, that his father only held the title to this 160 acres by way of mortgage and that the equitable title was in appellant, and he would naturally have insisted that a statement of the facts should appear in the inventory. He also would naturally have caused the inventory to state that he owed his father $1,600 and interest and taxes and improvements, less the rents and profits. Appeb lant sought to explain the condition of this inventory by testifying that he consulted D. H. Paddock, a lawyer now deceased, shortly after the death of his father, about the time they were probating the will. At one time he testified that Paddock told him that he could not do anything while his mother was living; and at another time that Paddock told him that it was best not to do anything while his mother lived. He does not state what information he gave Paddock. He asks us to infer that he told Paddock something about the arrangement under which his father paid $1,600 and took the deed. Excluding from consideration his own testimony that he told Paddock something to which Paddock made the responses just stated, there is no proof in this record that from April 13, 1886, to the date when he filed his answer and cross bill in this cause, January 20, 1906, a period of nineteen years, nine months and seven days, he ever made any statement to any human being that he owned this real estate or had borrowed $1,600 from his father thereon. That statement to Paddock whatever it may have been, was to a man who is dead. This absence of any claim for almost twenty years casts great doubt upon its genuineness and justice. If the witnesses are to he believed the inventory is not the only respect in which his - conduct and language has been inconsistent with his present claims. His mother renounced the provisions of the will in her favor. The administrators have, ever since, paid her one-third of the rents from this land. After William Hayhurst died and the will was proved, k judgment creditor of Edwin Hayhurst levied an execution upon the apparent interest of Edwin in this land and advertised it for sale. Mrs. Lyon telephoned to appellant the fact that the land had been advertised for sale on a certain date on an execution against Edwin, and appellant attended the sale of his own volition, bid the amount of the execution and bought in Edwin’s interest and, about a year later, allowed Edwin to redeem and pay him back the money. This act was entirely inconsistent with his present claim that this is his land. Henry Hayden, a son-in-law of Haney Lyon, testified that he had a note against the estate of William Hayhurst and asked appellant if he could pay it, and that appellant answered that he had not a dollar in the estate, that he had nothing in the estate. George W. Lyon testified that right after the land was deeded to William Hayhurst he heard appellant say that his father paid $10 per acre for the land and made a good bargain. Appellant denied making these statements.

The law presumes that a deed is the absolute conveyance which it purports to he on its face, till the contrary appears. If a party claims that an absolute deed is, in fact, a mortgage, he must establish that fact by evidence which is clear, satisfactory and convincing, and he must show that a debt to the grantee existed, which was to be secured by the deed. Heaton v. Gaines, 198 Ill. 479; Gannon v. Moles, 209 Ill. 180; Caraway v. Sly, 222 Ill. 203; Deadman v. Yantis, 230 Ill. 243. The conduct of appellant, from the time the deed was made to the time when he filed his answer and cross bill, is so inconsistent with his present claim that that deed was given only to secure the payment of money, that the more reasonable conclusion from all the evidence seems to us to be, either that he abandoned all claim to the property when it was conveyed to his father, or that he had only some loose and undefined expectation that if the land sold for more than his father put into it, he would receive some benefit therefrom, or that afterwards, during his father’s lifetime, they made some other arrangement. We cannot say that the court below ought to have decided that this evidence was so clear and convincing as to overcome the terms of this deed.

But if it were held that it is clearly established that in April, 1886, appellant borrowed $1,600 from his father and caused Adsit to convey the land to his father to secure that, debt, it does not follow that he is now entitled to redeem. He did no act in recognition or performance of his obligation for nearly twenty years, during which time the land has very greatly enhanced in value. In Breit v. Yeaton, 101 Ill. 242, one of the complainants had been of age about seven and 'a half years before the bill was filed seeking relief against certain transactions. The court held that as to that particular complainant his laches had been such as to preclude his right to relief. In McDonald v. Stow, 109 Ill. 40, the complainant had delayed asserting his right in equity thirteen years and it was held that his laches was inexcusable and that he ought to have asserted his right within seven years. In McDearmon v. Burnham, 158 Ill. 55, the party complaining had delayed fourteen years to assert his rights. In holding that the facts showed such laches and neglect on his part as would cause a court of equity to refuse him any relief, even though he had once a right of redemption in the land there in -question, and that he had suffered his demand to become stale and had shown no sufficient reason why he did so, the court said: “When a court of equity is asked to lend its aid in the enforcement of a demand that has become stale, there must be some cogent and weighty reasons presented why it has been permitted to become so. Good faith, conscience and reasonable diligence of the party seeking its relief are the elements that call a court of equity into activity. In -the absence of these elements the court remains passive, and declines to extend its relief or aid. It has always been the policy to discountenance laches and neglect.” In Walker v. Warner, 179 Ill. 16, where there had been a delay of over ten years before the filing of a bill to redeem, the court said: “The right of redemption being a purely equitable estate, a court of chancery will not protect and enforce it unless equitable considerations require it to do so. As the right is the creation of a court of chancery, it can only be asserted in such court when its assertion is plainly equitable. It may, therefore, be lost, unless it is asserted within a reasonable time, and before the situation of the parties has changed, and the rights of others have intervened, or improvements have been made. In other words, the right may be lost by laches.” In McMillan v. McMillan, 184 Ill. 230, delay of less than fourteen years to file a bill for relief was held to be such laches as barred relief. The delay in this case was greater than in any of those above cited.

But appellant contends that laches was not pleaded in the answer arid in the amendment thereto to his cross bill, and that therefore appellees cannot avail of his laches to sustain the decree, dismissing the cross bill. The delay in time fully appeared in the cross bill and was not explained therein. The answer to the cross bill admitted some of the allegations and denied others and contained nothing doing away with the apparent laches appearing on the face of the cross bill, and it denied that appellant was entitled to the relief demanded in his cross bill, and it prayed the same advantage as if the defendants had demurred to the cross bill. In Coryell v. Klehn, 157 Ill. 462, the question whether laches must be set up by answer, and whether it could be reached by demurrer when the laches appeared in the bill itself, was considered at length upon the authorities, and the court reached this conclusion: “While the general rule is that the defense of laches must be made by plea or answer, yet such rule does not apply when the bill already stated the causes of and excuse for delay.” In Wilcoxon v. Wilcoxon, 199 Ill. 244, it was held that it was the duty of the complainant to state in his bill whatever he relied upon to rebut or remove the presumption of laches arising from his delay of twelve years in seeking relief. The court affirmed a decree which dismissed the bill, because the complainant had neglected his right for such a great length of time that he was deemed guilty of laches. In Wilcoxon v. Wilcoxon, 230 Ill. 93, another suit between the same parties involving substantially the same subject-matter, the court said: “A cross bill, when filed to obtain ' affirmative relief, like an original bill, should set forth equitable grounds of relief and show a state of facts upon which a court of equity could be called upon to act if the same grounds were presented in an original bill. (Gage v. Mayer, 117 Ill. 632; Story’s Eq. Pl. 10th Ed. sec. 628.) There is no excuse offered by appellant which in equity can relieve him from the imputation of laches in this case that has not already been adjudged insufficient by this court in the former case. We regard his situation even worse now than it was when this matter was before us on the former occasion.” In Hamilton v. Hamilton, 231 Ill. 128, the court said: “Courts will not enforce resulting trusts after a great lapse of time or laches on the part of the supposed cestui que trust, especially when it appears that the supposed nominal purchaser has occupied and enjoyed the estate. Perry on Trusts, sec. 141. (McDonald v. Stow, 109 Ill. 40.) Equity does not encourage stale claims, since by lapse of time there must, of necessity, be great difficulty in ascertaining the exact facts as to the matter in controversy. In this case the right of the plaintiff in error had its origin, according to the allegátions of the bill, in 1870,—thirty-seven years ago,—and his right has been openly repudiated for fifteen years. Unreasonable delay has-been held to be a bar to equitable relief even against a trustee.” In Foss v. People’s Gas Light & Coke Co., 241 Ill. 238, the circuit court sustained a demurrer to an amended bill and the supreme court held that as the complainant had knowledge for many years that the defendant was pursuing a course of conduct in respect to him which amounted to a total denial of all his rights, reasonable diligence required that he should have made his appeal to a court of equity before his claim became stale. Here there is no positive proof that appellant paid any money of Ms own upon this land since April 2, 1875. He certainly has paid nothing in the way of interest, taxes, improvements or otherwise since April 13, 1886. He made no claim whatever that he had any interest in this land, except as a devisee under his father’s will, until nearly twenty years after the land was conveyed to his father. We are of opinion that this should be treated as a stale claim which equity will not enforce, and that this defense is available both under the general denial of a right to relief and under the demurrer contained in the answer to the cross bill.

Appellant has assigned for error the action of the court in allowing notes of Jerome A. Hayhurst and Edwin L. Hayhurst against their shares. Those portions of the decree did not injure appellant, and he alone has assigned error, and he cannot assign as error that which only injures some other party. Deceased held six notes against appellant. The court held that under the proof three of them should not he charged against appellant’s share of the estate. Appellant can only complain as to the remaining three notes. These notes were due in 1877, 1879, and 1882. Two of them Lore interest at ten per cent if not.paid when due, and the other at eight per cent if not paid when due. The decree charged these notes against appellant’s share with interest at the rate specified in the notes from their dates till they shall he surrendered to appellant on the final division of the estate. It is urged that it is an injustice to charge this interest after the death of William Hayhurst. We think the will means that the interest should he so charged, for it provides that no part of the testator’s estate is to go to his children till after the death of his wife, and that his money shall be kept at interest till after her death. The wife renounced the will, and the proceeds of the real estate from year to year seem to have been divided, the widow taking one-third by consent of all the children, and the devisees, including appellant, taking the rest. If appellant and the other devisees received the income from the real estate, or even if that income had been allowed to accumulate till the period of distribution, no reason is seen why that portion of the testator’s money evidenced by these notes should not contribute to increasing the general estate. They must be brought into the division, not because the statute of limitations would not be a defense to them, but because the testator directed them to be brought into the division of his estate. Appellant has elected to take under the will of the testator. He must therefore take subject to all conditions the testator has seen fit to impose. If appellant desired to .be relieved from the unusual rates of ten per cent and eight per cent, he could have paid these notes to the administrator and thus terminated the interest, and the administrator could have loaned the money out at interest, pursuant to the directions of the will. We find no legal grounds upon which we can relieve him of this charge. He contends that because of the hardship these notes inflict upon him on account of the many years of heavy interest, he should have some special relief in relation to the land. These notes were due long before the land was deeded to his father and had no connection with that transaction, and we do not find, in the fact that he was made a defendant in this proceeding to cause the land to be sold and the estate divided, anything which entitles him to the relief sought by his cross bill.

The decree is therefore affirmed.

Affirmed.


text:
    Van R. St. John et al., Appellees, v. President and Trustees of Village of North Utica, Appellants.
    Gen. No. 5246.
    1. Streets—what use unlawful. Village authorities have no power to authorize the use of the public streets of a village by a private amusement company for the purpose of there holding a carnival and street fair.
    2. Nuisances—what constitute. Tents, booths, platforms, etc. erected in a public street under the paper license of the village authorities constitute a nuisance per se.

    3. Injunctions—what essential to propriety at instance of private individual to restrain obstruction of public street. A court of equity will not interpose to prevent the obstruction of a public street at the suit of a private individual, unless such obstruction works especial injury to the individual who files the bill.
    4. Injunctions—when objection to laclo of interest in complainant comes too late. In a proceeding to enjoin the obstruction of a public street, an objection that the complainants did not show by their bill that they would be especially injured by the use of such streets comes too late when first urged on appeal.
    5. Injunctions—when formal approval of bond not essential to validity. If the bond given upon the grant of an injunction is in form and substance that required by the court, his action in failing formally to approve the same will not require a dissolution of the injunction. The order refusing to dissolve the injunction upon such ground operates as an approval of the bond as given.

      6. Injunctions—when party not injured by. A party cannot be deemed to have been injured if he has been restrained from the doing of an act which he asserts upon motion to dissolve he never in fact intended to do.
    7. Injunctions—when technical objections come too late. Technical defects, such as the form of the prayer and the scope of the injunction as compared with the prayer, come too late if first raised on appeal.
    8. Appeals and erbobs—assignments of error; when waived. Failure to argue an assignment of error in the opening brief operates to waive the same, and its urging in the reply brief may be disregarded.
    9. Appeals and ebbobs—when order as to costs not subject to review. If after an appeal from an order denying a motion to dissolve an injunction has been granted an order with respect to payment of costs is made, the propriety of such order cannot be determined on the hearing of the appeal so previously perfected.
    Bill in equity. Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    James J. Conway, for appellants.
    Snow & Haight, for appellees.
   Mr. Justice Dibell

delivered the opinion of the court.

On July 3, 1909, Van E. St. John and others, appellees herein, filed their hill in equity against the president and board of trustees of the village of ¡North Utica in LaSalle county, wherein they alleged that they were residents and taxpayers of said village, and that at a meeting of said board of trustees, held on June 30, 1909, a resolution was passed, giving consent to a company called the Goo dell Carnival Show to hold and carry on in and upon the public streets of said village a carnival and street fair for the period of one week, beginning with July 5, 1909; that notices of said fair had already been posted; that said company, unless enjoined, would occupy the public streets of the village with tents, booths, platforms, and other structures, beginning July 5 and continuing for one week, and that the same would be a nuisance and a perversion of the use of the streets of said village and would consist of many noisy and distracting exhibitions which would seriously obstruct travel upon the streets, and would tend to frighten horses driven upon the streets; and upon information, that some of the shows were immoral and degrading; that the show would be attended with imminent danger to the lives and limbs of people present, and the village would be legally liable for any injury occurring therefrom; and that said president and board of trustees had no lawful authority to permit said carnival or street fair to occupy the streets of the village. An injunction was prayed for. An apparent fac simile of the posted notice was an exhibit to the bill. It was in large red type and the principal part read: “Goodell’s Shows, Street Fair & Carnival. One big week commencing'July 5th. Utica.” On July 2 a copy of the bill was served upon the clerk of the village board, with a notice of the application for the injunction. When the application was heard, the attorney for the village was present, and made no objection, but asked for a large bond. An injunction was issued and served on July 3, restraining the president and board of trustees “from permitting or allowing the Goodell Carnival Show or Company from occupying or possessing any portion of any of the streets of the said village of Forth Utica for the purpose of exhibiing any of their shows thereon” till the further order of the court. The order of the court granting the injunction required as a preliminary that St. John give a bond conditioned according to law in the sum of $500 with two sureties named, and running to the president and board of trustees of said village. Such bond was filed. On the same day the president and trustees of the village filed an answer, and on July 6 they made a motion to dissolve the injunction. That motion was heard upon the pleadings and oral evidence and one or more affidavits, and was denied. The president and board of trustees prayed an appeal to this court, which was granted, and a certificate of evidence was filed and the record is now before us.

The village authorities had no power to authorize the use of the streets for the carnival and street fair; such occupancy of the streets for that purpose would have been unlawful; and the tents, booths, platforms, and other structures, if placed in the streets, would have been a nuisance per se. Van Cleef v. City of Chicago, 240 Ill. 318. A court of equity will not interpose to prevent the obstruction of a public street at the suit of a private individual, unless such obstruction works especial injury to the individual who files the bill. Hamilton v. Semet-Solvay Co., 227 Ill. 501; Guttery v. Glenn, 201 Ill. 275; Chicago General Railway Co. v. C. B. & Q. Ry Co., 181 Ill. 605. Appellants contend that appellees did not show by their bill that they would be specially injured by the use of the streets of ¡North Htica by this street fair and carnival, and therefore the court should have dissolved the injunction. This point should have been raised in the court below, so that appellees would have had an opportunity to amend their bill and set up the special injury to themselves, if any there was likely to be, or to apply to the Attorney-General or to the State’s Attorney to become a complainant. Instead,, appellants answered, denying that they had granted permission to hold the fair upon the streets, and alleging that the permission which they granted was to hold the fair upon private property, and that the Goodell Show Company had no intention of holding said fair upon the public streets, but only on private property. The motion to dissolve the injunction was heard upon the issue whether permission had been granted to hold the show upon the streets, and whether it had been intended that the show should be held upon the streets. We are of opinion that appellants should not be permitted to raise in this court for the first time an objection which it may well be could have been obviated by an amendment to the bill or by the addition of a proper public officer as a complainant, if the point had been raised in the court below. Appellants call attention to Hill v. St. L. & N. E. Ry. Co., 243 Ill. 344, where the fact that defendant did not set up in the circuit court that complainants had not alleged the absence of an adequate remedy at law for the obstruction of a street did not prevent defendant from raising that point on appeal. The use of the street there resisted was within the purpose for which it was laid out, and therefore a proper use, and the only injury to which complainant’s property could be subjected by that use was capable of being estimated in money and was recoverable at law. The use of the street here resisted was one which the village could not lawfully grant, but which would have been a nuisance per se; and the village, and through it the taxpayers, including appellees, might have been liable for damages resulting therefrom. Van Cleef v. City of Chicago, supra. Equity had power to enjoin such nuisance in a proper case, and the objection under consideration is only that appellees did not sufficiently state that they would be specially injured, or did not cause the bill to be filed in the name of the Attorney-General or of the State’s Attorney. Upon that point appellees should have been given an opportunity to amend in the court below. Town of Scott v. Artman, 237 Ill. 394.

Upon the hearing of the motion appellants read in evidence an affidavit by the manager of the Goodell Shows, in which he stated that he had intended to hold the show upon private property, and that the poster called it a street fair because they often gave their shows in streets and had but one form of poster; that he was present at the meeting of the village board on June 30, 1909, and that the village board did not authorize this carnival to be given on the public streets, but did authorize the exhibition of this show in the village, with the understanding that it would be on private property. Appellants also proved that the injunction bond was filed by the clerk without an endorsement thereon of approval. As to the bond, it was signed by the sureties named in the order for the injunction, and, while it may be that the court should have entered an order approving the bond as to its form, yet it is not suggested that the bond is in any respect informal, and the refusal of the court to dissolve the injunction was a virtual approval of the form of the bond. As to the proofs up to the point just stated, the situation was this: Appellants were insisting and attempting to prove that the village had no intention of permitting the show to be held upon the streets and that the carnival company had no intention of holding the show on the streets. If this was absolutely true, then the injunction did no harm. On the other hand, the resolution which the village board adopted was at least ambiguous, and the posted notices said it was a street fair. The order appealed from was made on July 10, and the time fixed for the carnival had one or two more days to run. We are of opinion that it was originally intended and agreed that the carnival should be held in the streets, and also that appellants cannot be heard to say that the continuance of the injunction in force for the one or two remaining days fixed for the carnival could injure them when they were insisting that they had no intention of permitting it to be held in the streets. After the court had announced that the motion to dissolve was denied, one of appellees’ solicitors said that he wanted the certificate of evidence to show that the affidavits which they had prepared and which had not been read to the court were in evidence and as considered by the court. The solicitor for appellants said that he objected to their appearing, as they had not been heard by the court. The court said: “It may so appear.” We cannot know whether this meant that the certificate of evidence might show the affidavits as considered by the court or that the certificate should make it appear that they had not been heard by the court. Fo further action was taken by the court, but appellant have embodied these affidavits in the certificate of evidence. From these affidavits it appears that during the preceding week, the Goodell Carnival Shows had been exhibited in the streets of the city of Marseilles in said county, in five large tents and with a large number of booths and refreshment stands; that said Carnival Company shipped its shows to Utica on Sunday morning, July 4th, and on the same night reshipped them to Depue in Bureau county, where they were given during the week covered by this injunction, and where they were still being exhibited when the motion to dissolve was denied. Many other facts are stated in the affidavits tending to show that the street fair men had planned to erect this show in the streets of Forth Utica. They left Utica on July 4th either because they had intended to give the show in the streets of the village or else because they could not lease private property on which to place it.

Several technical defects are suggested in the form of the prayer of the bill, and also that the injunction is not as broad as the prayer of the bill. It does not appear that these matters were raised in the court below. The questions argued here seem to be chiefly academic. The time for which, the street fair was advertised arid for which the bill sought to enjoin it from being held in the streets has long since passed, and appellants insist that they never intended it should be held in the streets. On their own theory appellants have not been injured by the injunction or by the refusal to dissolve it.

After the court had denied the motion to dissolve the injunction and the village had prayed an appeal to this court from that order and that appeal had been granted, and the appeal had thereby been completed and perfected, the court further ordered that the village pay the costs. Ho appeal was prayed from the order as to costs, but appellants assign error thereon. That supposed error was not argued in appellants’ opening brief and it was therefore waived. Moreover, we conclude that it was not brought before us by the prior appeal from the order denying the motion to dissolve the injunction.-

The order appealed from is affirmed.

Affirmed.