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    Theodore Hummert, Impleaded, etc., v. Gertrude Stempel.

      Annuity—Bill to Enforce Collection of—Lien—Decree Pro Confesso— Appraisement—Sec. 18, Chap. 22 R. S.—Practice.

    Upon a bill to enforce the payment of an annuity, which is a lien upon three separate pieces of real estate owned by different parties, a cross-bill havi.ig been filed by two of them against the third, and the complainant in the original bill praying for an appraisement of the different tracts, and that each proprietor be required to pay his share of the annuity in proportion to the value of his holding, this court holds that the decree, in conformity therewith, disposed of the original bill; that the same was warranted by the allegations of the cross-bill, notwithstanding a clerical error therein as to date; that the complaint that the same was not warranted by the evidence can not stand in the face of a decree pro confess; and that in such cases commissioners should not be appointed to fix values as the basis for a decree.
    [Opinion filed November 1, 1889.]
    In error to the Circuit Court of St. Clair County; the Hon. Amos Watts, Judge, presiding.
    Mr. W. C. Kueffner, for plaintiff in error.
    Messrs. Turner & Holder, H. M. Needles, and Dill & Schaefer, for defendants in error.
   Reeves, P. J.

Gertrude Stempel held a lien for an annuity on certain lands, which she filed a bill to enforce.

These lands, at the time of the filing of the bill, were owned in severalty by plaintiff in error, Hummert, and defendants in error, Mittendorff and Sauter, and they were made defendants to her bill. Mittendorff and Sauter answered the hill, and by leave, filed a cross-bill making Mrs. Stempel and Hum-inert defendants. The cross-hill sets up the lien in favor of Mrs. Stempel against the lands described in her hill for the payment of an annuity; that these lands were owned, part by Hummert, part by Mittendorff, and the remainder by Sauter, describing particularly the portion owned by each. It further sets up that since the filing of the original bill the annuity due Mrs. Stempel had been paid; that the several tracts of land are not of equal value, and that the annuity should be paid by Hummert, Mittendorff and Sauter, ratably, in proportion to the value of the lands owned by each, and they ask that the court will direct an appraisement to be made of the value of the several tracts as owned by the several proprietors, and decree wliat proportion of said annuity'eacli should pay, the lien of Mrs. Stempel to be preserved as originally made. Mrs. Stempel answered the cross-bill, insisting that her lien should not be divided and distributed upon the several tracts, but should remain on the whole land.- Hummert, the other defendant to the cross-bill, was defaulted and a decree pro oonfesso entered against him.

Commissioners were appointed by the court to make the appraisement prayed for in the cross-bill, and they made their report of the value of the lands incumbered by the annuity Jien, fixing the value of that portion of the land owned bv Sauter at $2,53460, of the portion owned by Hummert at $6,459.90, and of the part owned by Mittendorff at $160. A decree was entered with sufficient findings as to facts above set forth, and ordering that Sauter should pay of the annuity $112.32 annually, Hummert $280.72, and Mittendorff $6.96. By the decree Mrs. Stem pel’s lien is preserved infact against all the land for the full amount of her annuity of $400, and in case of default in payment she is awarded execution, but in case of sale, where only part of the annuity remains unpaid, the lands of the party in default of payment shall first be exposed to sale, etc. From this decree plaintiff in error prosecutes this writ of error. The errors assigned are:

1st. In rendering a decree on the cross-hill without taking action on the original bill.

2d. In rendering a decree on the cross-bill not warranted by the allegations of the cross-bill.'

3d. In rendering a decree on the cross-bill -not warranted by any legal evidence in the case.

In regard to the first error assigned it may be said that the decree does dispose of the original hill. The cross-bill alleged that since the filing of the original bill all the annuity due Mrs. Stempel had been paid. This was in effect admitted by'the answer of Mrs. Stempel to the cross-bill. The decree rendered finds that such payment had been made, and particularly declares the existence of her lien, and provides for the issuance of an execution to collect future installments, as they fall due, and these provisions of the decree dispose of the original bill.

The second error assigned is that the decree was not warranted by the allegations of the cross-bill. The cross-bill sets forth particularly the amount of the annuity to be §400, payable in installments of §200 every six mouths.

It then states that the annuity, up to August 1, 1888, had been paid, and that no other payment will be due until February 1, 1890. Taking all the averments of the cross-bill together it is manifest that the date when the next payment would become due was February 1, 1889, and not February 1,1890. If the payment had been made up to August 1,1888, and the annuity was to be paid in installments of §200 every six months, then the next payment would be due February 1, 1889, and the statement in the cross-bill that no other payment will be due until February 1,1890, was a clerical error. The allegation of the amount of the annuity and how it was to be paid, and that it was only paid up to August 1, 1888, rendered the pleading complete without giving the date when the next payment would be due, and this statement might be rejected as surplusage.

The third error assigned is that the decree was not warranted by any legal evidence in the case. If the plaintiff in error was in a position to raise the question made by this assignment of error we should hold that the method taken by the court to ascertain the value of the several tracts owned by Hummert, Mittendorff and Sauter. respectively, was not warranted by the prescribed methods for ascertaining facts upon which to base a decree. Evidence should have been taken in some of the modes recognized in chancery practice as to the value of the several tracts of land. We know of no rule of practice that would warrant the appointment of commissioners to fix the value of land and make that the basis of a decree. But plaintiff in error does not seem to be in a position to raise this question. In Vanvalkenburg v. Trustees, etc., 66 Ill. 104, the court say: “A party against whom a bill has been taken as confessed can not assign as a cause of error that the proof does not sustain the allegations of the bill. It is a matter of discretion with the court, under our practice, whether he will require evidence to be produced.” Sec. 18, Chap. 22, JR. S. provides, “ where a bill is taken for confessed the court, before a final decree is made, if deemed requisite, may require the complainant-to produce documents and witnesses to prove the allegations of his bill, or may examine him on oath or affirmation touching the facts therein alleged. Such de.mee shall be made in either case as the court shall consider equitable and proper.”

In Manchester v. McKee, 4 Gilm. 511, the court, commenting upon this section of the statute, say: “By this law, where a bill is taken for confessed, it is left to the discretion of the court whether any proof shall be required in support of the bill, or what part of the bill shall be supported by proof, and of necessity what shall be the amount, nature and character of the proof to be produced. With such a discretion vested in the court it would be absurd to say that the court acted upon insufficient proof.”

“If it would not be error to make a decree without any proof it is not easy to comprehend where the error is in-rendering a decree upon insufficient proof.” See, also, Gault v. Hoagland, 25 Ill. 266; Johnson v. Donnell, 15 Ill. 97, and Starne v. Farr, 17 Ill. App. 491.

The decree of the Circuit Court is affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Reeves, P. J.

license: Public Domain

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    Martha J. Griffin et al. v. John Wolf.

      Fraudulent Conveyances—Evidence.

    Upon a bill seeking to subject certain lots - to the payment of a judgment, t being alleged that the several conveyances of the same were made and accepted for the purpose of hindering and delaying the collection thereof, this court holds that the evidence does not support the allegations of the bill.

      [Opinion filed November 1, 1889.]
    In error to the Circuit Court of ¡Richland County; the Hon. William C. Jones, Judge, presiding.
    Messrs. Wilson & Hutchinson, for plaintiffs in error.
    Messrs. Allen & Fritchey, for defendant in error.
   Reeves, P. J.

John Wolf recovered a judgment against Martha J. Griffin, at the November term, 1885, of the Rich-land Circuit Court, for the sum of 8376.46.

Previous to the recovery of this judgment, and up to the 17tli day of October, 1885, Mrs. Griffin was the owner of certain lots in Olney. On the last named day she conveyed these lots to her son, Lemuel Griffin, for an expressed consideration of 8550.

In January, 1886, appellee sued out a fieri facias upon his judgment and caused the same to be levied on the lots embraced in the deed of Mrs. Griffin to her son, and filed the bill in this case, alleging the insolvency of Mrs. Griffin, and that the conveyance from her to her son was made and accepted with the fraudulent purpose of hindering and delaying Wolf in the collection of- his judgment, and seeking to subject the lots to a sale to satisfy his judgment.

Before the bill was filed Lemuel Griffin had conveyed the lots to his brother and sisters, and the bill charges a like fraudulent purpose in these conveyances, participated in by Lemuel Griffin and his brother and sisters.

Martha J. Griffin, Lemuel Griffin and the sisters were made parties defendant to the bill (but not the brother), and they severally answered the bill, denying the allegations of fraud. Upon the questions necessary to be considered here the proof shows that, Martha J. Griffin owned the lots in controversy, and on the 17th day of October, 1885, conveyed them by warranty deed to her son, Lemuel Griffin, he giving in payment his note for 8550, due in five years. Negotiations looking to this conveyance were on foot for some time before the deed was made. Lemuel Griffin and his brothers and sisters owned a farm of eighty-eight, acres near Olncy. He was desirous of buying the interest of his sisters and the brother, who was of age, in this farm. He ascertained that he could trade the lots which he got from his mother for the interests of his brother, Charles, and his sisters, in the farm. Ashe swears, for the purpose of this trade, he bought the lots of his mother and subsequently made the trade with his brother, Charles, and his sisters, by which he acquired their interests in the farm, and he conveyed to his brother, Charles, three lots; to his sisters Alice and IVIarthaette, three lots, and to his sister Dora Bell, the remaining two lots. The evidence nowhere even tends to show that the transaction, so far as Charles and the sisters had to do with it, was not in good faith and without the semblance of fraud.

There is no proof that they knew of the indebtedness of their mother to Wolf. Even if it be conceded that the deed from the mother to Lemuel was fraudulent as to Wolf, how can it be said that this would affect the title acquired by Charles and the sisters, without some proof rendering them chargeable with notice of the fraud. As the Circuit Court rendered a decree in favor of complainant below we are led to believe that there was some evidence in the case not preserved in the record, but upon the case, as it comes before us, the decree of the Circuit Court must be reversed. Decree reversed and cause remanded.

Reversed an d reman ded.


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    C. Aultman & Co. v. George H. Huddlestun et al.

      Fraudulent Conveyances—Creditor's Bill—Equitable Interest—Property Statement—Evidence.

    Upon a creditor’s bill seeking to subject lands conveyed to the payment of certain judgments against, the grantor, this court holds that such conve' -' anee did not carry into effect any equities of the grantee therein, and that the same was made with fraudulent intent.

      [Opinion filed November 1, 1889.]
    In error to the Circuit Court of Jasper County; the Hon. William O. Jones, Judge, presiding.
    Messrs. Gibsok & Johnson, for plaintiffs in error.
    Mr. G. M. Honey, for defendants in error.
   Reeves, P. J.

Plaintiffs in error recovered judgments against defendants in error, George H. Huddlestun and Alfred Adamson, upon which executions were issued and returned nulla Iona by the sheriff, who states in his return that the defendants in the executions had scheduled and held their personal property. Alias executions were issued and levied on the land described in bill, and a creditor’s bill filed to subject the lands to the payment of the judgments. Hpon a hearing in the Circuit Court a decree was entered dismissing the bill.

The notes upon which these judgments were rendered were given June 15, 1886. Defendant in error George H. Huddlestun, made a property statement at the time the notes were made, in substance, that he owned in fee simple seventy acres of land in section 13, township of Crooked Creek, Jasper county, worth $800. He also stated that he owned personal property not incumbered by chattel mortgage or otherwise, worth over and above all his indebtedness, $230. The record discloses that George H. Huddlestun owned at the time of making the notes sixty acres of land,_which is sought to be reached by this bill, and also a tract on which he resided as a homestead. On the 11th day of March, 1887, after one of the notes had become due, he conveyed the sixty-acre tract to his son, George W. Huddlestun. Subsequently in the same year, George H. conveyed the homestead to his wife. This last tract is shown to be worth less than $1,000. It is not claimed that the son paid any consideration for the conveyance of the sixty-a ere tract, but it is claimed that the land was bought in 1881 by the father for the son, who was a cripple, with a view of making a provision for liis support. It is also claimed that the father supposed that the deed made when he bought the land, was made to the son, and the alleged mistake in making it to the father was not discovered for some two years after. It is also claimed that the son was put in possession of the land, and by his tenants held the land for four or five years before the filing of this bill. The son lived at home with his father, was twenty-four years old in February, 1889, and had been for some time engaged in teaching school. There was no house on the sixty acres, and the land was farmed by persons living on land in the neighborhood. Without going over the evidence in detail, we think the court erred in dismissing the bill. The record showed this sixty-acre tract in the father when the notes upon which the j udgments were entered were given. Besides, the father made a property statement which could only be true upon the assumption that he owned this land. Upon the faith of this statement, he got the credit represented by the notes. There is not shown any equity in the son which the deed made to him in March, 1887, carried into effect. It is not shown that he ever expended a dollar on the land. The whole account given by the father and son, taken in connection with the fact ' that the father left himself nothing of the $1,030 worth of property which he represented himself the owner of, do meet these notes, leads very forcibly to the conclusion that the whole arrangement looked directly to the prevention of plaintiffs in error from collecting their debt.

The decree of the Circuit Court is reversed and the cause remanded with directions to enter a decree as prayed for in complainant’s bill.

Reversed and remanded with directions*


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    Philip Hoffman v. Joseph Reichert et al.

      Forcible Entry and Detainer—Leasehold Interest in Coal Lands— Attachment—Redemption—Corporate Property—Officers—Personal Profit —Evidence.

      1. Personal property can not be recovered in an action of forcible entry and detainer.
    2. A director of a corporation can not deal with the corporate property for his own benefit, or use it for his individual purpose.
    8. Neither can he claim that possession taken by him of such property is an individual possession, and set it up to the exclusion of the corporation.
    4. In an action of forcible entry and detainer brought to recover a leasehold interest in coal lands, the fact being that plaintiff, the treasurer and a director of the lessee company, obtained judgment against it upon a debt, and levied upon such interest which was bought in by him upon a sale under execution, this court holds that as plaintiff failed to give said company notice that he took possession in his own behalf, such possession was that of the company alone; that the digging of coal thereafter, by said company, invaded no rights of his; and that money expended by him for the purpose of freeing the mine from water could be recovered.
    [Opinion filed November 1, 1889.]
    In error to the Circuit Court of St. Clair County; the Hon. William H. Snyder, Judge, presiding.
    Mr. Charles W. Thomas, for plaintiff in error.
    Messrs. Turner & Holder, for defendants in error.
    A director of a corporation has no right under any circumstances to use his official position for his own benefit. In accepting his appointment as treasurer, he undertakes to give the company the benefit of his best care and judgment. Morawetz on Priv. Cor., Sec. 517; Hoyle v. Plattsburg & Montreal R. R. Co., 54 N. Y. 314; Gilman, C. & S. R. R. Co. v. Kelly, 77 Ill. 426.
    A director of a corporation is a trustee for it, and can not speculate upon its property to the disadvantage of his associate directors. He can not claim possession of the property over which he is trustee and custodian in exclusion of the corporation and other directors thereof which he represents, to his own personal advantage and against the interests of the corporation and other directors and stockholders. The possession of the trustee is presumed to be the possession of the cestui que trust. He can not claim adversely to those for whom he acquired and holds the property. Oliver v. Piatt, 3 How. (H. S.) 333; Speidel v. Henrici, 120 H. ,S. 386; Bail-road Company v. Durant, 93 H. S. 576; Van Epps v. Van Epps, 9 Paige, 241.
    Possession of an employe is still the possession of the employer, and the employer has a right to summarily discharge an employe upon a wilful neglect of duty, and refusal to perform the labor for which he was employed. Parsons on Con. (bottom pages 4th Ed.); Spain v. Arnott, 2 Stark. 256; Singer v. McCormick, 4 W. & S. 265.
    A purchaser of land at a judicial sale can not recover possession from judgment debtor in forcible detainer until he obtains a deed. Kratz v. Buck, 111 Ill. 40.
    When the plaintiff brings forcible entry and detainer, he admits the property sued for to be real estate. Kassing v. Keolmne, 4 Ill. App. 460.
    In order to recover in an action of forcible entry and detainer, the plaintiff must prove actual possession of the premises by him at the time of the alleged forcible entry. Mann v. Brady, 67 Ill. 95.
    Where suit in forcible detainer is brought against two or more jointly, the plaintiff must show that they hold the possession jointly, or what particular portion of the premises each one holds. Failure to prove a joint holding is a misjoinder, and fatal to a recovery. 1 Cliitty on PL 83; Humphreville v. Davis, 27 Ill. App. 142.
   Reeves, P. J.

The Freeburg Coal Company is a corporation organized under the general incorporation statute of Illinois. It held a lease on certain land in St. Clair county, by which all the coal in, under and throughout the land was granted to it, with the right to mine the same, and this lease was to continue until all the minable coal was taken out. The mine had been opened and worked for a number of years until December 12, 1884, when it took fire, and had to be closed up to save the mine. Plaintiff in error was at this time, and had been for quite a time prior thereto, a director and treasurer of the coal company. At a meeting of the stockholders, held December 29, 1884, it was determined that the mine should be kept closed until the fire had become extinguished.

The cmn¡-any being indebted to plaintiff in error upon a note for §1,017, lie sued the company and recovered a judgment against it. An execution was issued upon this judgment, and levied upon the leasehold interest in the lands above referred to, and also upon all the personal property of the company, consisting of engine, boiler, a large quantity of mining tools, etc. A sale was made under this levy, on the 8th day of January, 1887, the leasehold interest bringing §100 and the personal property §500. Plaintiff in error became the purchaser, and a certificate of purchase was issued to him an the sale of the leasehold interest. In April, 1887, Hoffman took possession of the mine, having failed, as he says, to sell it, and in conjunction with defendant in error, Joseph Eeichert, who was the president of the coal company, negotiated with parties to take out the water that had accumulated in the mine. Finding that it would require the expenditure of a considerable sum of money to open the mine, Eeichert declined fo go on in the matter with Hoffman, telling Hoffman, as Hoffman says, that he might go ahead and get his money out of it if he could. Thereupon Hoffman did go ahead and opened the mine at a cost of about $1,600. About • the time the work of getting the mine ready to be. worked was completed, Hoffman fell sick and was confined to his house for a number of weeks. At this time the directors of the company held a meeting and resolved that the company would redeem from Hoffman’s sale the leasehold interest, and the president was directed to make the redemption, which was done. One Ogden had been, under Hoffman, in charge of the work of re-opening the mine and getting it réady for the mining of coal, and was still so in charge when the redemption took place. After redeeming from the sale of the leasehold interest, Eeichert, as president of the company, and for the company, went to the mine and took possession, and began raising coal. It is claimed that Ogden surrendered possession to the company and was employed by it as superintendent of the mine for the company, and went to do the work for the company, but after a few days locked up the engine house and delivered the keys to Hoffman, who was still confined to his house by illness. This was the 18th or 19th day of ¡November, 1887. The company by its agents opened the engine house and resumed work. Soon after Hoffman began this action in forcible entry and detainer against ¡Reichert and the company, and being defeated in his action he brings the case to this court for review.

The form of the action recognizes the property sought to be recovered to be real estate. The sale of the leasehold interest was made upon the same basis, and a certificate of purchase issued.

A number of legal propositions are discussed in the briefs, which, in the view we take of the case, it will be unnecessary to notice. So far as the personal property bought by Hoffman at the execution sale is concerned, it can not be considered in this action. If the title to this passed to Hoffman by the sale, and the possession of it was wrongfully taken from him, it can not be recovered in an action of forcible entry and detainer, so that the leasehold interest is all that is involved in this action.

Hoffman, at the time he claims he took possession of the leasehold interest, was both a director of the company and its treasurer. As such he could not deal with the property of the company except as such officer, unless he gave sufficient notice to the company that he was acting, not as a trustee of the corporation, but in his individual capacity and right.

So when he took possession of the mine in April, 1887, having given no notice to the corporation that he was acting in his individual capacity, and not as an officer of the corporation, such possession was in law the possession of the corporation, and when the other officers and trustees of the corporation went into possession of the mine and began the mining of coal for and in behalf of the corporation, there was no invasion of the possession of Hoffman as an individual. What Hoffman did in re-opening the mine and repairing it, must be held to have been done by him for, and in behalf of the company, and for the money expended by him in doing this work, the coal company would be liable to him. While a director of a corporation is not a'technical trustee, still his relation to the corporate property is, in its very nature, a fiduciary relation, and as such director he can not deal with the corporate property for his own benefit, or use it for his individual purpose. He can not claim that possession taken bj* him of the corporate property is an individual possession, and set it up to the exclusion of the corporation of which he is an equitable trustee. The possession of a trustee is presumed to be the possession of the cestui que trust. Mora0wetz on Pri. Corp., Sec. 517 et seq.; Taylor on Private Corporations, Sec. 34; Hoyle v. Plattsburg & Montreal R. R. Co., 54 N. Y. 314, and G. C. & S. R. R. Co. v. Kelly, 77 Ill. 426; Sanger v. Upton, 91 U. S. 56 to 60.

In the view we have taken of the.law applicable to the facts of this case, the result of the trial in the court below was right. The judgment of the Circuit Court is affirmed.

Judgment affirmed,.


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    Toledo, St. Louis and Kansas City Railroad Co. v. .Mark Cline.

      Railroads—Personal Injury — Contributory Negligence — Comparative Negligence—Statutory Signal—Ordinary Care—Evidence—Instructions. '

    1. The fact that a train may not be reasonably expected from a certain direction, will not excuse a person from looking that way.
    2. It is as much the duty of trainmen to look out for persons approaching a highway crossing, as for such persons to note a train near at hand.
    3. Under the statute, the engine bell must be rung or the whistle sounded continuously from a point eighty rods from a crossing until the same is reached.
    4. The question of ordinary care on plaintiff's part is for the jury.
    5. A court can not in any case inform the jury what is or is not ordinary care or negligence.
    6. This court will not interfere with a verdict, unless it appears that there is no evidence upon which the same can rest, or that the finding is against the clear weight thereof.

      7. The doctrine of comparative negligence has no application to a case in which the plaintiff failed to exercise ordinary care.
    8. The common law duty of a railroad company is to, in some way, but not necessarily by bell or whistle, give reasonable warning to persons approaching highway crossings of the proximity of its trains.
    [Opinion filed November 1, 1889.]
    Appeal from the Circuit Court of Fayette County; the Hon. Jacob Fouke, Judge, presiding.
    Messrs. Clarence Brown, B. W. Henry and Wiley & Neal, for appellant.
    The appellee was guilty of such negligence as to preclude a recovery. O. & N. W. R. R. Co. v. Sweeney, 52 Ill. 325 ; C. & A. R. R. Co. v. Gretzner, 46 Ill. 74; C., B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510 ; Ill. Cen. R. R. Co. v. Green, 81 Ill. 19; C., B. & Q. R. R. Co. v. Lee, 68 Ill. 576; Ill. Cen. R. R. Co. v. Hetherington, 83 Ill. 510 ; C., B. & Q. R. R. Co. v. Colwell, 3 Ill. App. 548 ; C., B. & Q. R. R. Co. v. Johnson, 103 Ill. 512; Fletcher v. Fitchburg R. R. Co., 21 N. E. Rep. 302; Marland v. P. & L. E. R. R. Co., 16 Atl. Bcp. 623.
    All the foregoing authorities, and many others, lay down the rule that to entitle a plaintiff to recover in an action for negligence, he must prove that he was in the exercise of ordinary care, and failing to exercise such ordinary care for his own safety, he can not recover unless the injury was wantonly or wilfully infiieted.
    . Did the plaintiff in this case exercise ordinary care to protect himself from danger? It can not be pretended that he did, from his own evidence.
    Messrs. Guinn & Duncan, for appellee.

      “ It is always a question of fact for the jury to determine from the evidence whether the person injured has exercised proper care and caution in crossing a railroad track, and not a question of law.. It was the province of the jury to determine whether the plaintiff was guilty of negligence.” Pennsylvania Co. v. Frana, 112 Ill. 405.

      “ But so long as the question remains whether the party has performed the legal duty or has observed that degree of care and caution imposed upon him by law, and the determination of the question involves the weighing and consideration of evidence, the question must be submitted as one of fact.” Chicago, St. L. & P. R. Co. v. Hutchinson, 11 N. E. Rep. 859.
    “ It was for them (the jury) to say whether, from all the circumstances shown, a person in the exercise of ordinary care for his safety, that is, such care as a reasonable and prudent man would exercise under all the circumstances shown— would have taken other precautions than that taken by the deceased.” Chicago & A. R. Co. v. Adler, 21 N. E. Rep 849.
    We insist that it was reasonable diligence and caution for appellee to pay more attention to the west end of the track than the east end. A train was then due from the west; none was due from the east or expected from that direction. In C., B. & Q. R. R. Co. v. Lee, 87 Ill. 459, the court say: “As this was not a regular train, or on usual time, the same degree of caution would not be required on his part, or such as if it were a regular train and on usual time.”
    It is not a rule of law that before a man can recover in an action like the one at bar he must show the exercise of extraordinary .care; it is sufficient if he used ordinary care.'
    While it is true that it is the duty of a person approaching a place of danger to do so cautiously, yet the degree of care lie is required to use can never be formulated as a rule of conduct, for the conduct of even cautious men would vary. In all cases like the one at bar the question of contributory negligence is for the jury alone. C., St. L. & P. R. R. Co. v. Hutchinson, supra’, Thompson on Trials, Sec. 1686.
    Even though it should be said that appellee negligently exposed himself to danger, yet if the servants of appellant in charge of the train either saw or might by reasonable care have seen him approaching the track, .and yet failed to give due warning of the approach of the train, then appellee may recover. Thompson on Trials, Sec. 1683, and 2 Thompson on Negligence, 1105.

      But if it should be found that appellee was somewhat negligent, but that his negligence was only slight when compared with the negligence of appellant’s servants, still he may recover. Thompson on Trials, Sec. 1683.
   Reeves, P. J.

This suit was brought to recover for a personal injury. Appellee, while driving across the road of appellant, was struck by a train and injured. He recovered a judgment in the Circuit Court for $1,295, from which this appeal is prosecuted. Appellant’s road at the place where the accident occurred, runs substantially east and west, and the public road on which appellee was driving, runs north and south. The train which struck appellee consisted of a locomotive, nineteen cars and a caboose. The engine was running backward and west, but was pulling the train, so there were no cars in front of the engine in the direction in which it was, moving. The country was open and level, and there was nothing to obstruct the view east of the highway for a distance of a quarter of a mile.

The chief contention of appellant is, that as the train was in full view for'the distance above stated, so that appellee could easily have seen it before driving upon the railroad track, ho was guilty of such contributory negligence as will prevent his recovery for the injury sustained. In considering the question it will be necessary to examine closely the testimony and the facts proven in the case. It is shown that at the time of the accident, it was about the time of the regular train going east, at that point. The train causing the injury was a working train, and was going to Sorrento for a load of ties. The wind was blowing from the northwest, appellee was driving south. He came onto the highway about a quarter of a mile north of the railroad track. Appellee says: “When I made the square turn (into this highway) I turned and looked toward the east and saw no train; I was not expecting any train (from that direction); and then' I commenced looking west for a train which I expected right on hand. The first time I looked east, I was nearly a quarter of a mile from the railroad. I then drove on south looking in front, and I reckon the last time I looked east, as well as I recollect now, I was within 100 yards, or about that distance, of the railroad, maybe a little nigher, or perhaps a step or two farther. I then turned looking west and on ahead, straight forward. I didn’t see no train, nor hear any train coming. It was time for the train-from the west. I heard no whistle or bell. I would have heard it, I think, if it had whistled within eighty rods. I would have heard the bell if it had been ringing, when it came within 100 yards of the crossing.” Other witnesses for appellee testify that when they saw him approaching the crossing, he was looking toward the west; at least they did not notice that he was looking toward the east. Appellee was an old man seventy-three years of age. He is shown to be familiar with the crossing, living north of the railroad and working land south of it. It must be borne in mind that at the time of the accident the train from the west was about due and this fact was known to appellee. It was therefore natural for him to be on the lookout for the train from the west. He would not reasonably expect a train from the east, runn’ng on the time of the eah-bound train. This would not excuse him wholly from looking out eastward, lie testifies that when about 100 yards from the crossing, he did look to the east and saw no train. He had when he first turned into the highway, as he says about a quarter of a mile from the crossing, looked to the east, though he was not expecting a train from that direction. The evidence discloses that the view of the train men for a quarter of a mile before they reached the crossing was unobstructed of the highway upon which appellee was driving. It is also shown that the whistle was not sounded. The bell was rung first at a point from 150 to 200 yards east of the crossing. The fireman testifies that he commenced ringing the bell forty rods before reaching the crossing, but the weight of the evidence is that the bell was not rung until the engine was within 200 yards of the crossing, and only then for a very short time.

We think the jury were justified in finding under this state of facts that the appellee was not guilty of such negligence as would prevent a recovery for the injuries sustained.

It was as much the duty of the train men to look out for , persons traveling on the highway, crossing the railroad, as it was the duty of appellee to look out for trains. It was also the statutory duty of the employes of appellant in charge of the locomotive, to sound the whistle or ring the bell, at least eighty rods before reaching the mossing, and to keep either ■sounding the whistle or ringing the bell, until the crossing was reached. This statutory duty was clearly not performed, and the lookout of the men on the train was certainly as defective .as that of appellee. While it is true that appellee did not see the train until it struck him, while if he had been looking eastward he might have seen it for a quarter of a mile before it reached the crossing, it is also true that at the time, the train from the west was due, and his attention, knowing that fact, was naturally drawn in that direction, and in that direction he was keeping a careful lookout. There is no pretense that there was any one looking out on the engine except the fireman, and the fact that,he did not see appellee until he tvas on the crossing when he was in plain view for. a quarter of a mile, would go to show that the lookout of the fireman was of no avail.

While appellee could not recover if he failed to exercise ordinary care, it was for the jury to determine, under all the facts and circumstances shown, by the evidence, whether appellee did exercise such care. They found under proper instruction on this point, by their verdict, that appellee did • exercise ordinary care, and, as we have seen, the evidence supported such a finding. If the finding upon this issue had been for the defendant, we should not have disturbed it. The case as presented by the evidence was such that the jury might have found either way upon the question whether appellee exercised ordinary care, and whichever way they found, we would not feel justified in disturbing their' finding. This being a question of fact, entirely within the province of the jury, where their finding may be-supported in any reasonable view of the evidence, it should stand. It is only when there is no evidence in the case upon which the finding of the jury can rest, or where the finding is against the clear weight of the evidence, that we are justified in setting their verdict aside.

Complaint is made that the court erred in giving plaintiff’s third instruction. As we understand the criticism it is that the instruction proceeds upon the assumed proposition that the case was one in which the doctrine of comparative negligence was applicable. The instruction is as follows:

“3d. The jury have the right, under the law, to compare the negligence of plaintiff and defendant in a case like the one at bar, and in this case, although the jury may believe from the evidence that the plaintiff was not wholly without negligence, yet if you further believe from the evidence that the defendant was guilty of gross negligence, while the plaintiff was guilty of only slight negligence, then such slight negligence on plaintiff’s part will not prevent a recovery in this case.”

It must be conceded that the doctrine of comparative negligence has no place in a case where the plaintiff has failed to exercise ordinary care, but does not the instruction fully recognize this when the jury are told that only if they find the negligence of plaintiff wras slight will they make this comparison of the plaintiff’s negligence with that of defendant? Thefail-ure to exercise ordinary care is more than slight negligence, ■so that, in effect, the jury were told that they must find that plaintiff was in the exercise of ordinary care before they should consider the question of comparative negligence. Exception is also taken to plaintiff’s first and fifth instructions.

The first is in these words: “ 1st. The court further instructs the jury that if they believe from the evidence that the place of the injury complained of, was the crossing of the railroad over a public highway, and that upon the occasion of the injury complained of, a bell was not rung nor a whistle sounded at a distance of eighty rods from the crossing, and kept ringing or whistling until the crossing was reached, and that the plaintiff was lulled into a feeling of security by reason of such negligence on the part of defendant, and that in attempting to cross the said railroad track he was struck and injured, as charged in the declaration, then the plaintiff, even though he may have been somewhat careless in looking out for train-, may 'recover, provided the jury shall, upon a comparison, be of the opinion from the evidence that the negligence of defendant was gross, and that plaintiff’s negligence was only slight” It is contended that the instruction “omits to submit the question to the jury whether the plaintiff sustained his injury by reason of the failure to ring the bell or sound the whistle, but declares defendant’s liability if plaintiff was lulled into security by reason of such neglect.”

It will be found upon reference to the declaration, that negligence charged against the defendant in the first count, was the failure to ring the bell or sound the whistle, as required by the statute, and avers that in consequence of such default, the plaintiff received his injury. By this instruction the jury are required to find from the evidence that the plaintiff was struck and injured as charged in the declaration. In addition to this, all that is said on the subject of the failure to ring the bell or sound the whistle seems to be stated for the consideration of the jury in making a comparison of the negligence of the pdaintiff and defendant, and the right of recovery is based upon the fact to be found by the jury from the evidence, that even though the plaintiff may have been in some degree careless, yet if his negligence was slight in comparison with that of defendant, and the defendant’s negligence was gross, then the plaintiff might recover, if he was struck and injured as charged in his declaration. The fifth instruction given for plaintiff was as follows:

“ 5th. The jury are instructed that if a railroad crosses a common road on the same level, those traveling on either have a legal right to pass over the point of crossing and to require.reasonable care and caution of those traveling on the other road to avoid a collision; that, while a passing train, from its force and momentum, will have the preference in crossing first, yet those in charge of it are bound to give' reasonable warning, so that a person about, to cross with a team and wagon may stop and allow the train to pass, and such warning must be reasonable and timely so far as the ci; cumstances will reasonably admit.”

As we understand this instruction, it does not refer to the statutory duty of a railroad company to ring the bell or ío nd a whistle at the crossing of a public street or highway, but states the common law duty devolving upon a railroad company, independent of the statute, to give reasonable warning of the approach of its trains toward a crossing where the public have a right to be. As was said inC. & A. R. R. Co. v. Dillon, 123 Ill. 570, “ without regard to the statute, it is the duty of those having charge of trains to give notice of their approach at all points of known or reasonably apprehended danger.” We think this instruction very fairly states this duty, and does not purport to state that it was the statutory duty of appellant to cause a bell to be rung, or whistle sounded, so as to give reasonable warning of the approach of the train at .the crossing, and so does not come within the decision in P. P. & J. R. R. Co. v. Siltman, 67 Ill. 72. The instruction in that case was that it was the duty of a railroad company in crossing a public highway, to have a bell of the statutory weight, or a steam whistle on each locomotive engine, which should be rung or sounded at the distance of eighty rods before reaching the crossing and kept ringing or whistling until such highway was reached, so as to apprise persons of their approach. This instruction purported to state the statutory duty and overstated it and was, in so far, wrong. The statute only requires the ringing or whistling for the distance mentioned and does not require that it shall be done in such manner that persons shall be apprised of the approach of trains. No doubt this was the purpose of the statutory requirement; but the language used does not make this result a part of the requirement. The common law duty is in some way, not necessarily by ringing a bell or sounding a whistle, to give reasonable warning of the approach of its trains to any point of known or reasonably apprehended danger. The fifth instruction only states such duty.

The second instruction asked by defendant and modified by the court should not have been given either as asked or modified. It is not for the court in any case to say to a jury what is, or is not, ordinary care or negligence. This is a question of fact to be determined by the jury.

The eleventh instruction asked by the defendant and refused by the court was objectionable for the same reason. Finding no error in the record for which the judgment should be reversed, it is affirmed.

Judgment affirmed.


author: Green, J.

text:
    Constantine Malaer, Impleaded, etc., v. C. N. Damron.

      Mortgages—Foreclosure—Limitations—Affidavit of Non-residence— .Notice by Publication—Certificate of Mailing—Evidence—U. S. Postal Guide—Judicial Notice—Sale “ En Masse.”
    1. An affidavit of non-residence which states that the residence of a certain person is “ unknown,” without the further averment that ‘‘upon diligent inquiry his place of residence can not be ascertained,” is bail.
    2. As regards the place named therein, it will be enough in such case if complainant is enabled to state upon oath in consequence of inform ition sought and obtained, that he believed the place of residence of defendant to be the place so named.
    3. While the U. S. Postal Guide is competent to prove the fact that a post office is, or is not, established at a certain place, courts will not judicially notice such fact, and such guide must be introduced in evidence to prove whatever may be contended.
    4. A joint writ of error should be dismissed where less than the full number of co-plaintiffs named therein can alone maintain such writ.
    5. Upon writ of error asking for the i eversal of a decree of foreclosure under a mortgage, and that the sale of property and deed thereof to purchaser be set aside, it is held: That all the defendants personally served with process were barred by the statute from suing out such writ after five years Iroin the date of entering the decree; that those served by publication might do so within eight years therefrom; that the trial court had jurisdiction of two of the non-resident defendants; that the decree pro confesso as to them was properly entered; that the sale by the master of the lands en masse, after an ineffectual attempt to sell them in severalty, can not be complained of; and that a decree against all the defendants for the amount due was properly rendered.

      [Opinion filed November 1, 1889.]
    . In error to the Circuit Court- of Jolmson County; the Hon. Robert W. McCartney, Judge, presiding.
    Plaintiffs in error bring up for review the record of proceedings in chancery to foreclose a mortgage, and ask for a reversal of the decree, and that the sale of the mortgaged premises and deed to the purchaser be set aside. Damron, on September 20, 1883, filed his bill in the court below to foreclose this mortgage, which was executed by John Farrar to secure his note given to complainant. Farrar, his wife, King-man & Co., John R. Little, Robert L. McKean and plaintiffs in error, were made defendants; all of the defendants except plaintiffs in error were personally served with process, and as to the latter an affidavit of non-residence was filed, a publication of notice made, and certificate of mailing copy by the clerk was filed, and these were relied on to establish jurisdiction of their persons.
    The affidavit ^1 leges that Alexander Hudg'ns, Constantine Malaer and Mahala Springs, defendants, reside, or have gone out of this State, and on due inquiry can not be found, so that process can not be served upon them; that the place of residence of defendants, Constantine Malaer and Mahala Springs, is, as affiant is informed and believes, Segual, State of Texas, and that the place of residence of the said Alexander Hudgins is unknown. The clerk’s certificate shows that he sent in proper time by mail, postage prepaid, a true copy of the published notice to Constantine Malaer and Mahala Springs, defendants, at Segual, Texas. None of the defendants appeared; all were defaulted. The cause was heard upon the bill confessed, master’s report on proof and testimony of witnesses in open court. The final decree for foreclosure was entered November 19, 1883, and this writ of error was sued out January 30, 1889.
    Messrs. Clemens & Warder for plaintiffs in error.
    Messrs. Vickers & Gillespie and H. M. Ridenhower, for defendants in error.
   Green, J.

All the defendants who were personally served with process are barred by the statute from suing out a writ of error after the lapse of five years from the date of entering the decree. Plaintiffs in error brought into court by constructive service occupy a different position; the decree as to them is, for three years after its rendition, simply provisional and subject to be opened by petition; as to them a writ of error to bring up these proceedings is not barred until after the expiration of eight years from the date of entering final decree. Southern Bank, St Louis, v. Humphreys, 47 Ill. 227; Sale v. Pike, 54 Ill. 292. The main controversy in this case is concerning the sufficiency of the affidavit of non-residence, to authorize publication of notice to these non-resident defendants, and the sufficiency of the clerk’s certificate of mailing notice. The affidavit was defective and insufficient as to Hudgins; it is merely stated therein “his place of residence is unknown, ” and omits the further necessary averment, “that upon diligent inquiry his place of residence can not be ascertained.” Hartung v. Hartung, 8 Ill. App. 156. As to Malaer and Springs, the affidavit is said to be defective because their place of residence is given on information and belief.\ and because “place of residence ” means “post office addressf and this court will take judicial notice of the contents of a postal guide, and thereby see and determine that at time of mailing copy of notice to these defendants, there was no such post office as Segual, Texas, and hence mailing such copy to them there wuis of no effect as a notice. We do not regard the affidavit as defective.

If the complainant sought and obtained such information as enabled him to state upon oath he believed the p'ace of residence of defendants to be the place named in the affidavit, that was sufficient: Hannas v. Hannas, 110 Ill. 53; and conceding the postal guide published by authority of the government to be competent evidence for the purpose of proving the fact that a post office is, or is not, established at a certain place'—and that, we think, is the utmost that can be legally insisted on—it does not follow that courts will judicially notice such fact, and unless the guide be introduced to prove it, it will not be presumed to exist, and we do not find authority supporting this contention of plaintiff in error in the authorities cited. In addition to the facts certified to of mailing copy of notice to the place named in the affidavit as the residence of these defendants, the decree recites that the clerk had mailed such copy to Constantine Malaer and Mali ala Springs at their flace of residence, and finds the court had jurisdiction of the parties. We think they were properly in court and the statute was complied with in respect of all the steps required to be taken in order to charge these defendants with notice of the pendency of the suit, and bring them within the jurisdiction of the court. Hannas v. Hannas, supra. If this conclusion is correct, Malaer and Springs being properly in court, and having made default, the decree pro confesso as to them was properly entered, and the other objections urged to the decree and sale thereunder are not tenable. One is that the court erred in rendering the decree for the amount due on Farrar’s note against any of the defendants save the maker, and ordering that they (all the defendants) pay the same in thirty days. This is not a decree against these defendants personally for a debt, but an order subjecting the land to sale, if that sum is not paid within thirty days, if the defendants or either of them had any interest in the land, to the extent of that interest, and no further did the decree affect them. Gochenour v. Mowry, 33 Ill. 331; Glover et al. v. Benjamin, 73 Ill. 43. The other objection necessary to be noticed is, that the master sold the premises “ en masse” In Bozarth v. Largent, ad. sheets No. 1 of 128 Ill. 106, the same objection was made and it is there said: If this be conceded it would not render the sale void; at most it would only be grounds for setting the sale aside on proper application to the court in apt time; it, however, appears that the land was offered by the master in separate parcels and receiving no bids therefor, it was then offered and sold ‘en masse” we are not prepared to say the action of the master was not warranted.”

In this case the master states that said lands having been first offered for sale in separate tracts, and there being no bid therefor in that manner, the whole of said lands was offered uen masse” and sold ; on the authority of the above case the objection ought not to be sustained. Inasmuch as Malaer and Springs can not maintain this writ of error, it must be dismissed, being a joint writ, notwithstanding Hudgins, the co-plaintiff in error, might on his part maintain a several writ. Moore v. Capps, 4 Grilm. 315. If he had, and still has, any interest in the mortgaged premises, he has ample time within the period of limitation to sue out a writ of error on his own behalf, and if successful could have the decree complained of reversed as to himself, and be let in to establish his rights or interests, if any, in the land, upon a new hearing of the cause. The rule is laid down by our Supreme Court that in this class of cases a reversal in part is proper. Where two heirs sued out a writ of error to reverso a decree for specific performance, the court say each became seized on the death of the ancestor of an undivided estate, which he could dispose of without the assent of the other tenants in common. Under the decree he could relieve himself from all responsibility by a conveyance of his interest to complainant; thus, as respects himself, fully satisfy the decree and at the same time leave it in full force as to his co-defendants. The decree, though in form joint against the heirs, is in fact but a several decree against each; it operates only on the separate estate of each; the decree should only be reversed as to the plaintiffs in error. Enos v. Capps, 12 Ill. 255 ; Moore v. Capps, supra. We apprehend the only interest Hudgins could have which the decree affects would be in the land mortgaged, hence would be within the operation of the rule above stated. The writ' of error is dismissed without prejudice as to Hudgins.


text:
    C. D. Cook et al. v. Adolphus Miller.
    • Injunctions—Irreparable Injury—Tax Deed—Rights of 'Mortgagee— Foreclosure—Evidence.

      1. Upon amended and supplemental bills in behalf of a mortgagee, praying for the taking of an account of legal taxes, penalties, interest and costs due and unpaid upon a certain lot forming a portion of the mortgage security, that ought in equity to be paid to the holder of the tax title thereof, and that the tax judgment be declared void, so far as it might affect the rights of said mortgagee, or the title of any purchaser at a sale made under decree of foreclosure, and that the temporary injunction before granted be made perpetual, this court holds that said mortgagee failed to prove himself entitled to the relief decreed; that the granting of such relief was not necessary to prevent the injury alleged, and that by the same the holder of the tax title was unnecessarily injured.
    2. In the case presented, it is also held: That the mortgagee had ample security for his loan outside the lot in question, and that upon the assumption that the decree of the trial court was in other respects correct, it erred in not requiring him to refund to the bolder of the tax title the amount of legal tax paid by him with interest at six per cent.
    [Opinion filed January 6, 1890.]
    Appeal from the Circuit Court of Jefferson County; the Hon. C. C. Boggs, Judge, presiding.
    This cause was once before us and is reported in 26 Ill. App. 421. After it was remanded, and on June 9, 1888, Miller filed his amended bill alleging his interest in the lot in controversy as mortgagee of D. O. Warren, as in his original bill; that the mortgage conveyed also four other lots of the value of §1,200; that the lot in controversy is worth §1,800, and Warren paid collector all taxes due thereon,including those for 1880, but the collector neglected to mark them off and left them an apparent just charge against said lot, and the same were carried forward on the tax books from year to year until 1883, and on May 29th of that year judgment for taxes against said lot was obtained, and on June 8, 1883, the lot was sold thereunder to Cook for §228; that the time for redemption having expired Cook is about to apply for tax deed and thereby cause irreparable injury to complainant, in taking away and destroying a large part of his mortgage security; said Warren being, as complainant is informed and believes, insolvent and unable to pay said debt, or any considerable portion of it since its maturity; that foreclosure of said mortgage and sale of said property will have to be made; that said tax judgment as against complainant is illegal, in that it included said taxes paid by Warren and an illegal and unconstitutional tax levied for county purposes; that Cook had notice thereof at and before the time he purchased; that the only amount legally due and unpaid for taxes, interest and penalties on said lot at the time of sale was $41.51, which sum Warren tendered collector before the sale, and it was by him refused; that complainant is willing and able to pay whatever taxes, penalties and costs may be lawfully and equitably due upon said premises to Cook, or into court; that nearly $3,500 of the mortgage debt is due and unpaid to complainant, and the entire property mortgaged is not worth the amount of debt and interest; that if Cook be allowed to take said lot complainant will lose more than one-lialf of his said debt; prays for taking cm account of legal taxes, penalties, interest and costs due and unpaid on said lot that ought in equity to be paid by complainant to Cook; that said tax judgment be decreed void so far as it affects complainant’s rights as mortgagee, or the title of any purchaser at a sale made under decree of foreclosure of said mortgage; that the temporary injunction heretofore granted be continued in force and for general relief.
    On the same day Miller filed a supplemental bill, alleging the filing of his original bill, answer thereto and replication, hearing and decree for complainant, as prayed, the - reversal thereof by this court and remanding of the cause; that since filing original bill complainant has been compelled to foreclose said mortgage and filed his bill for that purpose at December term, 1886, of said Circuit Court, and obtained a decree against Warren at that term for the payment of the mortgage debt, and in default of the payment thereof the mortgaged premises, including this lot, were by virtue of the decree, and on February 12, 1887, by the master in chancery, offered for sale in separate parcels, and no bid being made the same were then offered for sale in a body, and no one bidding as much as the debt, interest and costs, complainant was compelled to and did buy in all of said property and received his certilicate; that no one redeemed and complainant received his deed from the master and is in possession of, and has title to, all the said lots; that the illegal tax sale and judgment cast a cloud on his said title to the lot in controversy; prays said judgment and tax sale be decreed wholly subject to the rights of complainant, and so far as the same will have any effect as a shadow upon his title the injunction be made perpetual, and any tax deed to be issued upon said tax sale be postponed to and be declared subject to complainant’s rights in said lot, and defendants be restrained from asserting the same as against the rights of complainant and for general relief. Answers were tiled to the amended and supplemental bills, replications thereto were interposed, and upon the hearing a decree for Miller was entered and thereupon this appeal was taken. The court in this decree finds that Cook bought the lot at tax sale June 8,1883; that said sale was made by virtue of judgment and order of sale of Jefferson County Court, entered at its May term, 1883, for taxes, interest, penalties and costs for the years 1875 to 1882, both inclusive, amounting to $228.56; that Warren was then the owner of said lot and Miller was then interested therein as mortgagee of Warren, by virtue of a mortgage executed and delivered May 4, 1881, to secure the sum of $3,000 and interest; that at the time of the rendition of said judgment the mortgage debt was due and unpaid and the mortgage lien then existed of record in favor of Miller; that Warren filed objections in said County Court at its May term, 1883, to the rendition of said tax judgment, and was heard, and as to him and his right, title and interest in said lot said judgment is conclusive, and the sale thereunder divested him of title, but subject to his right of redemption, which right, not having been exercised, said title and interest of Warren passed to Cook and became vested in him ; that Miller was not personally subject to the jurisdiction of said County Court, where said judgment and order of sale were entered, and said judgment is not conclusive as to him; that the taxes upon said lot for the years 1875 to 1880, both inclusive, amounting to $145.97, had been paid by Warren to the collector prior to the rendition of said judgment, and a receipt given therefor, but the collector did not mark the same as paid on the tax books; that the same were included in the sum for which said judgment was rendered, and entered into and formed the larger part of the amount for which said lot was so sold, and that the tax levied upon said lot for county purposes for 1882 was unconstitutional and void, and formed part of said tax judgment, and said judgment is decreed to be void as against the interest of Miller; finds said mortgage was foreclosed, and s'ale of mortgaged premises to Miller, the taking out of certificate and master’s deed by Miller as alleged, and that he went into and is in possession of said lot as alleged; that Cook was not a party to the foreclosure suit, and the decree therein does not bind or affect his right o'v interest in said mortgage! property; that Cook is entitled by virtue of said tax judgment and sale, to receive and be vested with Warren’s title in said lot, but that such right should not operate as a cloud upon Miller’s title and interest, and Cook should»take and receive Warren’s title, subject to the lien of Miller’s mortgage, to be enforced according to the equities of Cook and Miller existing then, or arising since, as may be determined hereafter by any court having jurisdiction of the parties and subject matter; that said tax judgment is of no valid force or effect as against Miller as mortgagee, hut, as to his equities and liens arising by reason of said mortgage, said judgment and the sale thereunder, and all proceedings thereunder, shall be for naught esteemed further than to pass to. Cook all Warren’s title and interest in and to said lot; that Tanner, the county clerk, be relieved of the injunction, to the end he may, upon presentation of said certificate of purchase by Cook, and of such further evidence and proofs as by the statute required to authorize its issuance, execute and deliver tax deed to Cook, in form as provided by the statute, conveying to Cook said lot, provided he applies for said deed within one year, and permits Cook to apply for and receive said deed, but that the title to. be conveyed by said deed is to be received by Cook subject to the lien of Miller’s mortgage on the lot, and that Miller and Cook each pay half the costs.

      Mr. C. H. Burton, for appellants.
    ■ It is claimed that there is a small unconstitutional tax involved in the tax of the year 1882, and for that reason this .court will take jurisdiction. An injunction will not be granted to enjoin the collection of a void tax except in rare cases where an irreparable injury will be done. Cook County v. C., B. & Q. R. R. Co., 35 Ill. 460; Munson v. Miller, 66 Ill. 380; Porter v. R. R. I. & St. L. R. R. Co., 76 Ill. 596. .
    Miller’s mortgage provides that he should pay the taxes in case Warren failed to pay, and include the amount in his decree of foreclosure. By so doing his security would not have been impaired. His failure to pay the taxes was gross neglect and he can not now come into a court of equity and ask relief from his own laches. To do so would be to encourage the non-payment of taxes, and would soon destroy the power of the State to collect its revenue.
    Under the statute he was given two years from the date of the tax sale in which to redeem. He admits receiving notice of the purchase by Cook and of his intention to apply for a tax deed, but he slept upon his rights and has lost his privilege. This court has frequently held that a person, except when under some disability, could not redeem from a tax sale after the expiration of the time fixed by law. Starr & C. Ill. Statute, Revenue Law, Sec. 212.
    It is not contended by appellee that he is under any disability that would exempt him from a prompt redemption within the two years, as required by law.
    The sale was made June 8, 1883, the date for redemption expired' June 8,1885, and on July 15, 1885, appellee filed his bill. Ho diligence whatever is shown by appellee to entitle him to any equitable aid.
    But if he could claim the right to redeem he could do so only upon equitable terms. “He who seeks equity must do equity.”' Miller should have offered in his bill to pay the amount of Cook’s bid at the tax sale and six per cent, interest, less the amount of illegal tax, if any, in the judgment. Reed v. Tyler, 56 Ill. 293; Reed v. Reber, 62 Ill. 240; Farwell v. Harding, 96 Ill. 32; Barnett v. Cline, 60 Ill. 207; Story’s Equity Jurisprudence, Sec. 301; Moore v. Wayman, 107 Ill. 195.

      As was held in the last case cited, “the demurrer in this case should have been sustained, because the bill was defective in not offering to refund the money paid by the holder of the certificate at the tax sale; and the decree was erroneous because it did not require such payment as a condition to the relief sought,” etc.
    Mr. C. H. Patton, for appellee.
    The county board levied a rate of one dollar for “ county tax ” in the year 1882 upon the lot in question. This was contrary to the constitution as well as the statute. Const. 1870, Art. 9, Sec. 8; Starr & C. Ill. Stat. Chap. 120, Sec. 122.
    This illegal tax entered into the judgment for taxes complained of, which fact made the judgment and sale void. McLaughlin v. Thompson, 55 Ill. 249; Riverside Co. v. Howell, 113 Ill. 256; Kemper v. McClelland, 19 Ohio, 308; Gamble v. Witty, 55 Miss. 26; Dogan v. Griffin, 51 Miss. 782; Hardenburg v. Kidd, 10 Cal. 402, and cases cited in the opinion; Lacy v. Davis, 4 Mich. 140; Buell v. Irwin, 24 Mich. 145; Watters v. Laper, 40 Mich. 624; Silsbee v. Stoekle, 44 Mich. 561; Blackwell on Tax Titles, 437; Black, on Tax Tit., Sec. 97, Note 1, where a large number of authorities are cited.
    When the illegal part of the tax was eighty-seven cents, the maxim de minimis non curat lex was held not to apply. Hose v. Merriam, 2 Greenleaf, 377, cited in Hardenburg v. Kidd, supra; Case v. Dean, 16 Mich. 12; Blackwell on Tax Titles, *162, and cases cited.
    Also, to same effect, see McLaughlin v. Thompson, 55 Ill. 251; Wells v. Burbank, 17 H. H. 393.
    “Purchasers at tax sales, while availing themselves of the opportunity of obtaining highly remunerative profits on small investments, are bound to know, at their peril, when purchasing at a tax sale, that the supposed delinquent is in truth and in fact delinquent.”
    Payment of taxes destroys the power of the State to sell the land. Black, on Tax Tit. (1888), Sec. 50, 69 and 96 and notes.
    “A sale of land for taxes assessed upon it for several years, when the taxes for one or more years have been paid, is irregular and void.” Black, on Tax Titles, Sec. 96; Kins-worthy v. Mitchell, 21 Ark. 145.
    The proof shows, and it is not denied, that Warren tendered to the collector the. full amount of the taxes for 1881 and 1882, the sum being $41.51, as given him by the collector. All prior years having been paid, and the remainder due up to the time of the sale having been tendered, the sale was void. Cooley on Taxation (2d. Ed.), 453; Blackwell on Tax Tit. 410; Black, on Tax Tit., Sec. 50 and 96.

      “ If the owner, or any one else who has the right to make payment, tenders the amount of the tax to the pioper officer, such tender will effectually stop a sale, whether accepted or not.” Black, on Tax Tit., Sec. 50 and note 4.
    The onus is on the purchaser to show full compliance with every step required by law. Cooley on Taxation (2d Ed.), 472; Conway v. Cable, 37 Ill. 82; Black, on Tax Tit., Sec. 49 and note 2.
    In the last citation Mr. Blackwell says: “Upon this point the authorities are unanimous.” Williams v. Underhill, 58 Ill. 137.
    If one step fails it is as fatal to a tax sale as if all had failed, and the courts will not aid them. Cooley on Taxation (2d Ed.), 470, 474 and 476, and cases cited; Black, on Tax Tit., Sec. 49; Cogburn v. Hunt, 56 Miss. 718.
    A tax purchaser is not a bona fide purchaser as that term is understood in the law; cmeat emptor applies, and he gets nothing unless he gets the land itself. Cooley on Taxation, 476; Hamilton v. Valiant, 30 Md. 139; Sullivan v. Davis, 29 Kan. 28; Castlebury v. Piscataway, 43 N. J. 353; Black on Tax Tit., Sec. 263.
    A tax title, if so at all, is so.strieti juris and is purely technical as distinguished from a meritorious title, and its defects can not be cured in a court of equity. Altes v. Hinckler, 36 Ill. 265 ; Keeper v. Force, 86 Ind, 81; Black, on Tax Tit., Sec. 224; Blackwell on Tax Tit. (4th Ed.) *34, note 2; Chappell v. Spire, 106 Ill. 475; Charles v. Waugh, 35 Ill. 315.
    In Black, on Tax Tit., Sec. 238 and note 1, it is said:

      • “It may be regarded as settled that the right to bring suit for the purpose- of setting aside a tax sale and having the deed declared void is not confined to the original owner of the- land, but may be exercised by his mortgagees, * * * or any one who can show such an interest in the land as would entitle him to redeem.” See also, Cooley on Taxation, p. 508; Blackwell on Tax Tit. 652.
    Appellee, who-as mortgagee had the right to pay the taxes to protect his lien, has then the right to bring this injunction suit to prevent the destruction of that lien, and this supplemental bill to prevent an apparent cloud upon his title.
    Appellee -was not a 'party to the suit of Warren v. Cook, and hence not hound by the decree. Town of Lyons v. Cooledge, Ill. 530 ; Mail v. Maxwell, 107 Ill. 554; Holman v. Gill, 107 Ill. 467; Scates v. King, 110 Ill. 456 ; Miller v. McManis, 57 Ill. 126.
    The objections to the evidence amounts to nothing because in chancery cases the chancellor is pn-esumed to decide upon the legitimate evidence and to reject-the irrelevant testimony. Stone v. Wood, 85 Ill. 609.
    This case was tried hy the court mainly upon oral testimony, and the chancellor saw and heard the witnesses, and in such case his decree finding the facts in favor of appellee will not be reversed unless the Appellate Court can say that the decree was clearly and palpably wrong. ■ Wiegleb v. Thomsen, 102 Ill. 159; McCormick v. Miller, 102 Ill. 214.
    The principle that where one has two funds to which he -may resort, while another can reach but one of these funds, the first shall first resort to the one which will not injure the other, is only applicable to sureties and creditors. Prout v. Lomer, 79 Ill. 331 ; Rogers v. Meyers, 68 Ill. 92; Brown v. Cozard, 68 Ill. 178; Plain v. Both, 107 Ill. 588.
    Appellant, as a tax purchaser, is hostile in interest to appellee and every other interest in the land, and there can be no equities between them. Equities only arise out of contract relations.
    The claim that the former opinion of this court in this case makes it a bar here where the pleadings, issues and facts in evidence are different, is not tenable.. It is only where the same issues and state of facts are again brought up, that this court will refuse to examine them. C., B. & Q. R. v. Lee, 87 Ill. 454; Quayle v . Guild, 91 Ill. 378.
   Green, J.

The Circuit Court erred in not requiring Miller to refund the amount of legal tax paid by Cook with six per cent, interest, even if the decree is in other respects right. Miller admits in his amended bill $41.51 was legally, due and unpaid at the time of tax sale, for taxes upon the lot. in controversy, and alleges he is willing and aole lo fay all lawful taxes and interest lawfully and equitably due upon said lot, and prays an account thereof may be taken. But the relief decreed was not burdened with the condition that Miller should pay Cook the amount of such lawful tax and interest, and was broader- than the relief prayed for. We observe the court found the amount of taxes paid and illegally included in the tax judgment, but ignored the question submitted, what amount of legal taxes were included therein, and did this doubtless upon the theory of counsel for appellee, that because Cook is permitted to take out his tax deed, Miller is not required by the statute to refund the amount of legal taxes paid by Cook. This position under the facts appearing in the record, is not tenable. The decree for foreclosure, sale and deed •thereunder, to Miller, divested Warren of his title to the lot. The decree in this case finds the tax judgment, under which Cook gets title, void as against Miller, and that Cook, by virtue thereof and of his purchase, became vested with Warren’s title, subject to Miller’s mortgage lien, and as to his equities and lien by reason of said mortgage the tax judgment and sale and all proceedings thereunder are void, except to pass Warren’s title, and the tax deed Cook is permitted to take out he must receive subject to Miller’s mortgage lien. In short, it is decreed, Cook is entitled to be vested with Warren’s title and interest, which were swept away by the decree, sale and master’s deed to Miller; Cook is permitted, in some other proceeding hereafter, to litigate his equities against Miller’s, as mortgagee, but as against Miller’s .equities this decree determines the tax judgment sale and all proceedings thereunder are void, and the result is that Cook, armed with a tax deed conveying no title and decreed to be void as against Miller’s equities, is remitted to the barren remedy of litigating his equities against equities which, by this decree, are already adjudged to be paramount and superior, and yet, notwithstanding the decree, places Cook in this position. It is insisted Miller should not have been required to pay the amount of lawful taxes on said lot, paid by Cook, which the owner neglected to pav, which were a lien on the lot, and which Miller in his bill and amended bill alleges he is able and willing to pay. To so hold would be inequitable and unjust, a perversion of the statute and contrary to the ruling of our Supreme Court in cases like this. Gage v. Busse et al., 102 Ill. 593; Moore v. Warfman, 107 Ill 195. But another and more important question yet remains to be decided, viz.: Has Miller by this record shown that he was entitled to the relief prayed for and decreed? To sustain this decree he must show that in justice and equity and for the reasons alleged in his pleadings he was entitled to the relief prayed for and decreed ; that the granting thereof was necessary to prevent the irremediable injury he alleges he would otherwise suffer, and by decreeing such relief Cook was not injured unnecessarily. These we believe are equitab-e rules applicable to this case. The injunction must be founded on the case made by the bill, amended and supplemental bills. 2 Dan. Cli. Fr. & PL, 5th Ed. 1619. “ Where either party may suffer by granting or withholding an injunction the rule in equity requires the court to balance the inconveniences likely to be incurred by the respective parties, by reason of the action of the court, and to grant or withhold the injunction according to a sound discretion. ” Hilliard on Inj. 22, Sec. 39.

“An injunction being the strong arm of equity should never be granted except in a clear case of equitable injury and with a full conviction on the part of the court of its urgent necessity.” High on Inj., Chap. 1, Sec. 22; Citizen’s Coach Co. v. Camden Horse R. R. Co., 29 H, J. Eq. 299 and cases there cited. The Circuit Court evidently assumed that the main and only important questions presented for its deterini- ' nation were, whether Miller was estopped from assailing Cook’s tax title, and whether Miller had acquired a title as purchaser at the sale in foreclosure upon which a cloud might be cast, if Cook be permitted to take out unconditionally a tax deed to the lot in controversy; and upon this theory the court omitted any finding touching the value of the mortgaged lots, and based its decree upon the facts that the tax sale and all proceedings thereunder were illegal, and that Miller had a deed to and was in possession of the lot in controversy, and these facts existing. Miller was entitled to hold and possess said lot, free and clear from any cloud that might be cast upon his title by a tax deed to Cook. In our judgment the right to have this cloud removed and to have Cook’s tax deed decreed invalid depended upon the proof by Miller of the material allegation that unless the judgment tax sale and the title acquired by Cook be decreed void as against Miller’s mortgage lien, the latter would suffer irremediable injury by losing a large part of his security and a large part of the debt secured. This is the ground for the relief and the issue is directly tendered by the allegation of the bills, that the lots mortgaged, leaving out the lot in controversy, were not sufficient in value to satisfy the mortgage debt. This question was not determined by the decree or by any finding therein as it should have been.' It was the question in the case. The bills were not exhibited for the purpose of trying title but to prevent an alleged irremediable injury, and the equitab’e rights of Miller are not alone to be considered, but Cook also has equitable rights that ought not to be ignored.

It appears he purchased in good faith, without knowledge that the taxes on said lot had been in part paid, but with notice furnished by the record that the owner appeared in the County Court, withdrew all objections and consented to the rendition of the tax judgment; Miller was notified by Cook of his purchase at tax sale of said lot, and when the time for redemption would expire, but did not redeem or offer to redeem or to refund the amount he admits Cook is entitled to, although by the terms of his mortgage he had a lien for the ' amount of legal taxes paid by him, which Warren neglected or refused" to pay. Cook also defended against Warren’s bill, filed in April,-1885, to set aside said tax judgment and sale until the final adjudication in the Supreme Court. . Miller knew at the time Warren’s bill was filed that it had been 'filed, and employed Warren’s attorney to look after his inter-, est, but did not seek or offer to be made a party to or to litigate his rights, in that proceeding, and waited until the time for redemption from the tax sale had expired and until .liis-attorney believed Warren was about to be defeated in the Circuit Court, and then, on July lo, 1885, filed his original bill herein. Under these circumstances Cook is entitled at least to insist that Miller should be required to prove his case as he has alleged it to.be before he is decreed the relief prayed, and we find by the evidence he has failed to do this. The proof-satisfies us the four city lots mortgaged, exclusive of the lot in controversy, were and are in value equal at least in amount to the mortgage debt, admitted to be only $3,028.58 at the date of decree in foreclosure, and afforded ample security for said debt; nor do we regard the fact that no one but Miller would bid moi’e than the amount of debt, interest and cost at the mortgage sale for all five lots, a circumstance justifying a different conclusion. Cook would not bid at a sale of property which included the lot to which he was asserting a title hostile and adverse to that of Miller and others; understanding, as they doubtless did, that they would probably have to defend their purchase by an expensive litigation, would naturally be deterred from buying. Miller’s acts also indicate, he thought, the security ample without this lot. The mortgage was executed May 4, 1881; the debt matured in three years; on June 8, 1883, this lot was sold to Cook at tax sale, and the mortgage-provided that “failure to pay taxes when due and payable, shall', work to mature the entire debt secured by this mortgage, and authorize a foreclosure of the same, as if the note had matured by lapse of time,” and yet no effort was made to enforce the collection of the mortgage debt until Miller filed his bill to foreclose on December 23, 1886.

Moreover, if Miller is not permitted to take this lot, and it is discharged from his mortgage lien, he holds nnreleased, as additional security for his debt, a mortgage on one hundred acres of land, executed, acknowledged and delivered to him by Warren, April 23, 1886, conditioned to be valid as security for said debt if in this proceeding Miller shall lose his security on the lot in controversy.

We conclude, then, appellee has failed to prove the irreparable injury alleged, and no necessity appears requiring the relief decreed; but on the contrary this proceeding seems to ns to have been commenced and carried on, not for the protection of Miller, but in the interest of Warren, who encouraged its prosecution to the extent, at least, of indemnifying Miller against loss if he should be defeated.

To affirm the decree would work injustice. Warren, who attempted unsuccessfully by his bill to avoid the payment of taxes on this lot and to set aside the tax .sale, would by this decree be permitted indirectly to accomplish the same purpose and have the value of the lot applied upon his debt to Miller; Cook, who purchased in good faith and defended his title through a tedious and expensive litigation, will be stripped of that title for the benefit of Warren, and this injury to Cook will be done without any necessity requiring it for the protection of Miller against the Joss of any part of his mortgage debt.

For the reasons that Miller has failed to prove he is entitled in equity to the relief decreed, that granting such relief was not necessary to prevent the injury alleged, and that by the decree Cook is injured unnecessarily, we reverse the same and remand the cause with directions to the Circuit Court to dissolve the injunction, and dismiss the bill, amended and supplemental bills.

Reversed and remanded with directions.


author: Gary, J.

text:
    Clarence Pomeroy v. Paul Villavossa.

      Malicious Prosecution—Probable Cause—Larceny.

    To maintain an action for malicious prosecution, the want of probable cause must be clearly shown.
    [Opinion filed April 3, 1889.]
    In error to the Circuit Court of Cook County; the Hon. Kollin S. Williamson, Judge, presiding.
    Mr. Thomas L. Humphreyille, for plaintiff in error.
    This court held the rule to be, that if the prosecutor be'ieved in the guilt of the accused there was probable cause, and that probable cause was a question of law to be decided by the court in reviewing the undisputed facts in the case. In’Cox v. McLean, 3 Ill. App. 45, defendant was incorrectly informed by clerk that goods were sold on commission instead of absolutely, believed him, and brought criminal action; held, probable cause.
    In Bourne v. Stout, 62 Ill. 263, our Supreme Court held, if defendant honestly believed facts to be true, and they are of such a character as would induce a reasonable, prudent man to believe them true, then there is probable cause.
    In Anderson v. Friend, 71 Ill. p. 480, the court held, if the prosecutor received information which was not correct, and believed it, he had probable cause.
    The same rule was held in McDavid v. Blevins, 85 Ill. 241; Skidmore v. Bricker, 77 Ill. 167; Angelo v. Faul, 85 Ill. 108; Davie v. Wisher, 72 Ill. 266; Ames v. Snider, 69 Ill. .381; Wagner v. Aultrnan, 2 Ill. App. 149.
    In Jacks v. Stimpson, the court held:
    The fact that he acted on circumstances tending to, show guilt, and so believed, will be probable cause. Also see Barrett v. Spaids, 70 Ill. 414.
    In Harpham v. Whitney, 77 Ill. 42 :
    Acting in good faith on reasonable grounds of suspicion, held to be probable cause.
    In Palmer v. Richardson, 70 Ill. 546, the court holds that if the prosecution is made in good faith, even suspicion is enough; here is probable cause.
    The difficulty of making juries understand the law of probable cause is most ably discussed in Collins v. Hayte, 50 Ill. 354. The court in this cause considers the tendency of juries to iind verdicts in malicious prosecution cases because they believe the issue is the guilt or innocence of the man accused of crime and not the good faith of the prosecutor.
    Mr. George Sparling, for defendant in error.
   Gary, J.

This was an action for a milicious prosecution. The appellant was an auctioneer and was conducting an auction of furniture at a private house. The wife of the appellee bid off some of the articles. The appellant had no previous acquaintance with either the husband or the wife. ' She disputed her bill, and having previously made a deposit, she grabbed at a pile of silver coin, from which she took, how much the appellant could not tell, and he seized her to compel her to give it up. The appellee came to her rescue. Both husband and wife went away without surrendering the money,On these facts, which are all of which the evidence on the part of the appellee showed that the appellant had any knowledge; the appellant procured a warrant against the appellee for larceny. On the hearing before the justice the appellee was discharged.

On these facts there was a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the conduct of the appellee and his wife, both strangers to him, was that of thieves, availing themselves of an opportunity to plunder, and therefore there-was probable cause, which is an answer to this action.

The decisions in this State are uniform that the want of probable cause must be clearly shown to maintain the action. Ross v. Innis, 35 Ill. 187, is an authority that has never been departed from.

Judgment reversed.


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    Julius Frank et al. v. Elizabeth Taubman.

      Landlord and Tenant—Forcible Detainer—New Lease—Disputed Signatuie—Forgery—Evidence—Notice to Quit—Verdict.

    1. A disputed signature, which, if genuine, relates to the issue, may be compared by the jury with one admitted or proved to be genuine, the same being already in the case as evidence relating to the issue b"ing tried.
    2. The verdict of the jury, where the evidence is conflicting, disposes of the issue of fact, and subsequent affidavits of the members thereof as to the grounds of their verdict can not be considered.
    3. No notice to quit is necessary,where a tenant or sub-tenant is holding over.
    4. In an action of forcible detainer, it being contended by the defendant that he was in possession under a new-lease, this court, holds that the appeal bond and receipts signed by the plaintiff, offered in evidence by the defendant to prove, by comparison, that her alleged signature to 'the lease in question was authentic, were properly excluded as irrelevant.

      [Opinion filed April 3, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.
    Mr. Allan C. Story, for appellants.
    Mr. W. A. Foster, for appellee.
   Gary, J.

This is an action of forcible detainer by the appellee against the appellants. The appellants defended upon the allegation that the appellee had made a new lease, under which the possession was held.

In aid of the proof of the execution of the new lease, which the appellee denied, they offered in evidence the appeal bond, and many receipts for rent signed by her, that the jury might, under the authority of Brobston v. Cahill, 64 Ill. 356, compare the disputed signature with those on the appeal bond and receipts. The receipts had no relation to any issue in the case, and were, therefore, as independent evidence, irrelevant. The claim that they should have been admitted to contradict her statement that she wrote as well as signed them is not well founded; for even if a fair construction of her testimony amounts to such a statement, it was made on cross-examination, and her answer on matter irrelevant to the issue is conclusive. 2 Taylor on Ev., Sec. 1435; 1 Greenl. on Ev., Sec. 449.

As to the appeal bond, the case cited seems to give color to appellants’ claim, but still is not in point. There was nothing in the case requiring the jury to see the appeal bond. The case is like Snow v. Wigg'n, 19 Ill. App. 542, in which the appellants sought to put before the jury the signatures of the defendant to a plea and affidavit, in the same case, and the court there held that they were inadmissible. If a signature is already in the case, as evidence relating to the issue being tried, then that signature, admitted or proved to be genuine, may, by the jury, be compared with another which is disputed, but which, if genuine, relates to the issue. And so the cases'in 64 Ill. and 19 Ill.App. are consistent., and they are both consistent with Jumpertz v. The People, 21 Ill. 376, Kernin v. Hill, 37 Ill. 209, and Massey v. Farmers Bank, 104 Ill. 327; and the case in 37 Ill. also disposes of the offer to prove, by an expert, that the disputed signature was the same handwriting as others shown to the witness. The verdict of the jury upon conflicting evidence disposes of the issue of fact, and their affidavits as to the grounds of their verdict were not admissible. The cases are familiar and easily found in the digests.

Ho notice to quit is necessary where a tenant or sub-tenant is holding over. The sub-tenant had no right in the premise not before held by his immediate landlord. There is no question in the case worthy of attention, but that relating to the appeal bond, and that is not distinguishable from 19 Ill. App. 542.

Judgment affirmed.


text:
    John L. Swanson et al. v. Canute R. Matson, for use, etc.
    Capias—Habeas Corpus—Bail—Forfeiture—Chap. 28 B. S.—Failure to Set out judgment in Action on Bond.

    1. A person in custody under final process in a civil case can not be set at liberty temporarily on any form of security except under the act concerning insolvents.
    2. An order of court to the sheriff to take bail prohibited by the statute does not make it valid or give the party sought to be benefited any remedy upon the same.
    [Opinion filed April 3, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.

      Messrs. Condee & Rose, for appellants.
    Messrs. A. C. and F. W. Story, for appellees.
   Gary, J.

One Bodelson, being in jail under a ca. sot. issued from the Circuit Court at the suit of Carlson, for whose use this suit is brought, applied by petition to one of the judges of that court for a writ of habeas corpus. The judge ordered that the writ issue, and that the sheriff take bail of Bodelson to appear three days thereafter. After many postponements the bail was forfeited for his non-appearance. This suit is brought to recover the amount for the collection of which the ca. sa. issued.

It is a sufficient ground for the reversal of this judgment that the judgment of Carlson against Bodelson, the loss of the means of collecting which, is the damage to be compensated, if any can be in this case, is not set out in the declaration. But the bond is itself void. There is no statute or common law for setting at liberty, temporarily, on any form of security, one in custody under final process in a civil case, except under the act concerning insolvents. The statute 23, H. 6 C. 9, recited in Bacon Ah., Sheriff O, is in force here. Chap. 28 R. S. The decision under that statute, that all bonds taken by the sheriff from a prisoner in his custody, except such as the statute authorizes, are void, are very numerous. See Bacon, cited above; Sullivan v. Alexander, 19 Johnson, 233.

A court can not make laws to fit every fancied inconvenience that may present itself. An order to the sheriff to take such bail as the statute prohibits, does not make that bail valid, and give the party for whom it was intended as a security, any remedy upon it.

So the directions of the court to the sheriff to take the bond sued upon, though made upon a petition for habeas corpus, gives no right of action upon the bond.

Judgment reversed.


text:
    Selden Fish v. Charles Gilbert Wheeler.

      Practice—Judgment by Default—Undisposed-of Demurrer.

    It is improper to render a judgment by default, while a demurrer to (he declaration is on file and undisposed of.
    [Opinion filed April 3, 1889.]
    In error to the Superior Court of Cook County; the Hon. Rollin S. Williamson, Judge, presiding.
    Mr. Frank Ives, for plaintiff in error.
    Mr. Henry M. Pierce, for defendant in error.
   Gary, J.

There is no way to avoid reversing this judgment. A default was taken and judgment thereon entered, with a demurrer to the. declaration on file. Mason v. Abbott, 83 Ill. 445 and cases there bited; Parrott v. Goss, .17 Ill. App. 110.

Reversed and remanded.