text:
    Asad Udell v. Henry W. Howard.

      Exemptions — Sale under Execution — Double Damages —Verdict—Evidence.

    1. While a debtor may select articles amounting in value to the exemption to which he is entitled under the statute, he must offer to turn over the balance of his property to satisfy the execution; failing to do this, he can not. recover the statutory penalty merely because his choice was not respected.
    2. A finding of the court contrary to the decided weight of evidence, is good ground for reversal.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of McHenry County; the Hon. Chablbs Kelldm, Judge, presiding.

      Mr. C. P. Barnes, for appellant.
    Messrs. T. D. Murphy and O. H. Gillmore, for appellee.
   Lacey, P. J.

This was an action in trespass brought by the appellee to recover of the appellant the penalty under the statute allowing damages for double the value of the property sold, for selling the personal property of the appellee, which he claims was exempt from levy and sale under execution. The cause was tried by the court and resulted in the finding of the court for the appellee in the sum of §400, and judgment against appellant for that amount and costs. From this judgment this appeal is taken.

The court, in finding for the appellee the sum of §400, included a part of the penalty claimed under the statute; for the property sold, as shown by tlie evidence and claimed in the declaration, to wit, 375 bushels of oats, two sets double harness, one corn sheller and set Howe scales, one grindstone and one pair bob sleighs, nine acres of corn and twenty-five tons of hay, was worth only the sum of §325, as fixed by the appraisers selected by the appellant, by his deputy, as sheriff, under the statute, at the demand of appellee, and there is no evidence that the property was worth more.

It appears from the pleadings and the evidence that the appellant, as sheriff of McHenry county, held an execution issued out of the Circuit Court of said county in favor of Charles Herrington in the sum of §498 and costs against the appellee, of date of August 20, 1884.

In October of 1884, the appellant’s deputy went to appellee and demanded property. The appellee demanded his exemptions under the statute and being a man of family, residing with the same, he was entitled to 1ns exemptions of §400. It seems that the sheriff had already levied on the articles in question and possibly some others, before or at the time the appraisers were selected and acted.

But the sheriff yielded to the demand for appraisal and received the appellee’s schedule and appointed the appraisers, who fixed the value of all the property mentioned in the schedule at near $1,300. There were horses, cows and such things that were not levied on at all, and left in the appellee’s possession, of a value of more than $400.

It seems that the appellee had abundance of property to pay the debt and have the amount of his exemptions remaining, but it seems that he wanted to select the particular property the appellant had levied on and was about to advertise. It will be admitted that under the statute he had a right of choice and selection, provided he turned out or offered to turn out the balance of his property to the sheriff to satisfy the execution.

But where a penalty is sought to be enforced, as in this case, he must bring himself clearly within the provisions of the statute. Did the appellee do this ? We think the evidence fails to show that he did. At the time the appraisal was made the appellant’s deputy asked appellee what property he wanted to select for his exemption. The latter named over some of the articles that had been levied on till he had gotten about $400 worth and asked the deputy to give him enough oats to make up the balance.

The sheriff at the time thought he had no right to divide the bin of oats and the matter stopped there for that' time. Howard did not at that time offer to turn out any other property in place of that he wanted to select, as we think the evidence shows.

It seems that all the property was left on the appellee’s place, none of it being removed. Afterward, before the property in question was advertised for sale, the deputy sheriff, .Eberle, in presence of O. Barnes, had a conversation with appellee at his horse barn about the exemptions.

The deputy told appellee that he-had come down to see about his exemptions and see if he was ready to turn out the balance of the property in the schedule. As Barnes testified, appellee replied : “ I am not prepared to do it now.” The deputy sheriff replied he would have to do it then if at all, for he was going to post the notices for sale.

There was no one present but the deputy, Barnes and the appellee. The appellee testifies in regard to this conversation that Barnes and Eberle wanted to know if they would turn out §100 to liim if he would turn them out the balance of the property mentioned in the schedule? He said: “I told them I would turn them out what was outside of the mortgage and if I had a right to turn out the balance I would.” This, according to his own statement, was an equivocation and equivalent to a refusal. Even if any of the property had been mortgaged, which the evidence does not disclose, the appellee had an interest in it subject to execution and he should have surrendered it or expressed himself willing to do so.

Who could decide whether he had a right to turn it out but himself? The appellee has not been stripped of all his property, but was left his §100, but not in the particular articles he claims he desired; a large portion of his debt has been paid by the sale, and when he seeks to recover a heavy penalty, merely because his choice has not been respected, ho must, as we have before said, bring himself clearly within the provisions of the statute. He must be the actor and turn out or offer to turn out all his property not selected, thus bringing himself within the provisions of the statute. McMasters v. Alsop, 85 Ill. 157.

As to the claim which appellee sets up, that he offered to turn out the balance of his property at the time of the attempted selection when the appraisement was made, we can only say that the decided weight of the evidence seems to be against it; yet if he did, at that time, make such an offer, he must not afterward, before the property is delivered to him, withdraw it by refusing to do it or in doing what was equivalent to a refusal, as he did on the occasion of the last conversation.

Because the finding of the court is contrary to the decided weight of the evidence, the judgment will be reversed and the cause remanded.

Reversed- and remanded-.


source: Caselaw Access Project

author: C. B. Smith, J.

license: Public Domain

text:
    Moses Casler et al. v. Asahel B. Byers.

      Mortgages — Foreclosure — Correction of Erroneous Description — Re-acknowledgment — Homestead—Dower—Failure to Release — Estoppel— Solicitor’s Fees — How Ascertained.

    1. Upon a bill to foreclose a mortgage, it appearing that, owing to the omission of the word “one,” the description read, “township forty— (41)," to correct which supposed error the word “one ” was inserted with the consent of the mortgagor and wife, after which the deed was re-acknowledged, no reference to a release of homestead or dower being made in the notary’s certificate, it is held: That the mortgagors were entitled to no homestead as against the mortgagee; that the amendment added nothing to the force of the mortgage; that the omis.-ion was simply an ambiguily which might have been explained by oral testimony; and that the correction related back to the original making of the mortgage, no new acknowledgment or record being necessary.
    2. In the case presented, the appellant having persuaded appellee to .make advances upon certain statements of fact, of a large amount of money for his benefit, he is estopped to deny the truth of such statements.
    3. What is a reasonable solicitor’s fee in a given case is a question of fact to be determined by the weight of the evidence. In the case presented an allowance of $500 is sustained by a majority of the court. Smith, J., dissents, on the ground that the allowance is exorbitant, and the mode by • which it was ascertained, illegal.
    [Opinion filed December 8, 1888.]
    In error to the Circuit Court of Winnebago County; the Hon. O. H. Horton, Judge, presiding.
    Mr. Harvey A. Jones, for plaintiffs in error.
    Mr. William Lathrop, for defendant in error.
   C. B. Smith, J.

This was a bill filed by Asahel B. Byers, appellee, against Moses Casler and his wife, Catherine M. Casler, appellants, to foreclose a mortgage. The material facts appearing in this record are these:

On the 8th day of April, 1876, Moses Casler executed his note to Richard L. Devine for §3,350, and on the same day Casler and his wife, to secure the note, executed their mortgage to Devine, conveying thereby the S. E. J of the S. E. of section No. 8, and the N. \ of the S. W. J, section No. 9, all in township 41 north, range 3, east of the 3d principal meridian, containing 120 acres.

This mortgage and its acknowledgment contained a proper release of dower and homestead, and contained a power of sale. The note was due in live years and drew ten per cent, interest, payable annually. In December, 1879, Devine discovered what he supposed was an error in the description of the township in the mortgage. The printed portion of the mortgage gave the township thus, forty--;” but the figures in writing immediately following the word “forty ” and the blank were thus, “(41);” so that the whole description as to the township was thus : “ township forty--(41).” The land was in fact in township forty-one. On discovering this supposed error, Devine took a notary and called on Casler and his wife, and obtained their consent to correct the error by writing the word “one” in the blank after “forty,” and then had the mortgage re-acknowledged; but the notary, in writing out his certificate, omitted all reference to any release of homestead or dower, and the mortgage was again recorded.

After the note and mortgage became due Devine advertised it for sale, in default of payment under the power conferred in the mortgage, and in his advertisement recited the amount due November 1, 1881, at §5,042.86. Casler became alarmed lest he should lose his farm and appealed to Byers to help him. The farms of these two men adjoined. Byers was a man of considerable means, with a large farm, and a neighbor of Casler. Casler told him they were going to sell him out. Byers told him he would see what he could do for him. Byers did not háve the money but went to. one R. D. Rowen to see if he could borrow it. He succeeded in borrowing 84,000 of Rowen with the promise of getting §500 more, in the spring. Casler had agreed to reduce the amount of the mortgage to §4,500, if Byers would help him. Casler borrowed the other §500 from Updike. At the time appellee applied to Bowen for the loan he asked Bowen to take the loan himself, but Bowen was then about starting to California and said he had no time to attend to it, but would take the loan himself in the spring when he returned, if the security was satisfactory; and Byers then expected to be relieved of the loan to Casler in the spring. When the parties met at Devine’s to pay him his money and transfer the note and mortgage to appellee it was found that Casler conld not reduce the amount of the mortgage to §4,500, and that he lacked §84.80 of having enough. Appellee loaned him this amount also, with an agreement that it should be paid back in thirty days, hut it has never been paid.

Aside from this mortgage made to Devine by Casler,.it appears that there were other dealings between these two men which had been running for years, and that Casler had executed chattel mortgages to Devine at different times to secure debts, and it also appeared that Devine had taken judgments against Casler, and that there were unsettled dealingsbetween them up to the day of the transfer of the note and mortgage to appellee. The mortgage became due April 8, 1881. On March 10, 1881, the evidence shows that Casler and Devine then had a settlement of their affairs and reduced the result to writing and signed it. By this settlement Casler owed Devine, including the amount of the mortgage, §4,855.

Again, on November 23, 1881, when Devine, Casler and Byers were all together at Devine’s bank,-the account was all gone over between Casler and Devine in the presence of appellee, and the precise amount due on the note and mortgage again agreed on and reduced to writing and signed by Casler, wherein it is stated that the precise amount dne on said note and mortgage is $4,500, neither “more nor less,” and this agreement was given to appellee as the true amount dne on the mortgage which he was buying for the sole benefit of his friend and neighbor Casler, and to save his farm from being sold; and to further accommodate him he extended the time of payment of the mortgage for five years and reduced the rate of interest from ten to seven per cent. After this settlement, then, appellee paid Devine the §1,500 and took an assignment of the note and mortgage. After this arrangement was completed, Casler requested appellee to keep the note and mortgage himself and not let Rowen have it. He again complied with this request.

When the note and mortgage became due it was not paid and this bill is filed for the foreclosure of that mortgage.

The defendants, Casler and his wife, answer the bill and deny that they requested appellee to buy the note and mortgage and deny that they agreed that any particular sum was due, and allege that, at the time appellee bought the note, theie was an unsettled account between Casler and Devine and that appellee knew it at the time of his purchase, and deny there is now due on said mortgage §1,500, or any interest thereon to appellee, and allege that while the note was in Devine’s hands Casler had paid §2,500 on the note and that appellee knew it. There is no claim of homestead set up in the answer. The case was referred to the master who took the evidence and reported it hack to the court. The case was heard on bill, answer, replication and proofs taken, and a decree rendered for complainant in conformity with the prayer of the bill for the amount due on the note and mortgage and §500 solicitor’s fee. Appellants have brought the record here for review.

Appellants first assign for error that the court erred in not decreeing that they were entitled to a homestead as against snch mortgage. This claim is based on the assumption that the mortgage as it was first executed did not cover the land in township 11, and that after it was amended by inserting the word “one” after “forty” there was no new acknowledgment waiving homestead. There is nothing in this objection. The mortgage covered the land in dispute as it was first executed and needed no correction. Tim amendment added nothing to the force of the mortgage except possibly to save calling a witness, some time, to show which land the Caslers owned. The mortgage in fact covered land in both townships, and where a deed or mortgage may admit of two constructions the grantee is at liberty to select the one most favorable to himself. Sharp v. Thompson, 100 Ill. 117.

At least it was but an ambiguity, which might be explained by oral testimony on the trial, and the mortgage located on the right land. But if there was any defect of description Casler and his -wife corrected it at once upon their attention being called to it. This correction would relate back to the original making of the mortgage and needed no new acknowledgment or recording.

Appellants next urge that they were not estopped to show what the real amount due on said note and mortgage was, even in the hands of appellee. They claim the right to go back and show payment of all or a large part of this mortgage to Devine while he held it. That they can not be permitted to do this now, under the facts in this record, is too plain for argument. The pz'oof is clear and uncontradicted that Byers bought this mortgage at the request of the defendant Casler to save his farm for him; that he himself had to borrow all the money to do it; that he made not one cent .in the transaction and did not desire to do so; that it was a pure act of grace and friendship. He knew nothing at all about the dealings between Devine and Casler except that Casler told him that Devine had advertised his farm for sale, and stated the amount in his notice at over $5,000. That was the amount Casler wanted. Appellee told him he could not raise so much but that if he could reduce it to $4,500 he would see what he could do for him. Before appellant paid his money and took an assignment, he had Devine and Casler make a settlement of their affairs and had them decide for themselves the exact amount due on this mortgage and to put that question forever at rest, he required them to put it in writing and Casler signed it. In addition to this guaranty of. the eozuection of the statement hez-e shown is another statement in writing made inside of a year before, also signed by Casler, showing there was then due on said mortgage $4,855. To permit him now to come in and deny his solemn admissions and declaz’ations made to Byers and to induce Byers to act upon them and to rely upon their truth and to advance a laz-ge amount of money for appellant’s benefit, would be to perpetrate a gross fraud and allow appellant to take advantage of his own wrong. The doctrine of estoppel is that where a person by his words or conduct voluntarily causes another to believe in the existence of a certain state of things and induces him to rest on that so as to change his previous condition he will be estopped to aver, against the latter, a different state of things. The People ex rel. v. Brown, 67 Ill. 435. Under the uncontradieted facts in this case the doctrine of estoppel applies to the fullest extent, and in the view we take of the case it is wholly immaterial what the state of accounts may be as between Devine and Casler.

The majority of the court are of the opinion that there is no ground for reversal on account of an excessive attorney’s fee. The appellee had loaned his money to take up a mortgage at the request of Casler, as an accommodation, and the mortgage contained a provision for the payment of a reasonable attorney’s fee in case it had to be foreclosed. It was necessary to foreclose it, and the appellee, on account of the factious opposition of Casler, the maker of the mortgage, was compelled to pay out a large amount for attorneys. The amount of their fee was ascertained by resort to the evidence of two attorneys, who testified that a reasonable amount for solicitor’s fees in the case was <j?500, and the appellee cross-examined the witnesses, but failed to introduce any rebutting evidence. Under such evidence, we are of the opinion that we can not absolutely say the fee was not reasonable. As was well said in Lamar Ins. Co. v. Parnell, 19 Ill. App. 212, “what is a reasonable attorney’s fee, in a given case, is a question of fact to be determined, like others, by the weight of evidence. * * * The subject being in its nature matter of opinion, whatever might be our own, independently of that of others given under oath and cross-examination, it would be unreasonable, arbitrary, and against well settled precedent to reverse the decree of this finding upon the evidence.” We fully eon-cur in this view. In the case of Reynolds et al. v. McMillan, 63 Ill. 46, in which the court condemned the manner of allowing witnesses to express an opinion as to what was a reasonable attorney’s fee, it must be remembered that this was under a special statute, and in that case minors were interested, and every objection that can be made is held in their favor. The court say: “ Infants are the peculiar care of chancery, and courts should not hesitate to protect them against exorbitant fees.”

In the case at bar the appellants are of full age, and if they were not satisfied with the testimony as given by the witnesses as to the basis on which they formed their opinion as to §500 being a reasonable attorney’s fee, they could, and it was their duty to, cross-examine and fully ascertain upon what such opinion was based. Ho objection was made to the evidence at the time and no witnesses introduced to contradict it.

We all concur in affirming the decree in all things except as to the allowance of §500 as solicitor’s fees, and upon that question the writer of this opinion dissents from a majority of the court, and, hereafter speaking for himself only, is of opinion the decree ought to be reversed upon that point, and remanded, with directions to allow a reasonable attorney’s fee in conformity with the language of the mortgage. I hold that the allowance of §500 is extortionate and oppressive, and that there is nothing appearing in this record to justify any such fee. In my opinion it. amounts to judicial robbery. The excuse urged by counsel for appellee for this part of the decree is that the defendant made a bitter and long fight. This he had a legal right to do, and for this luxury he is justly compelled to pay all the costs of both parties.

The legal questions involved in the case were of the simplest character. The bill was filed February 28, 1887, in De Kalb County, and in April, 1887, on motion of defendant, the venue was changed to Winnebago and a trial had at the October term, and a decree rendered October 26, 1887. Less than eight months intervened from the beginning to the end of this suit; a much shorter time than is usually occupied in disposing of a controverted chancqry suit. From five to ten days would have been ample time to take all the evidence before the master and the record shows that only eight days, in fact, were consumed.

Ho great legal skill or learning was needed at any stage of the case. But I hold that the court proceeded erroneously in the ascertainment of the amount it would allow, and the mode adopted here has been expressly prohibited by the Supreme Court in the case of Reynolds v. McMillan, 63 Ill. 46. That was a case in partition under the statute. Section 40 of that statute provides that in amicable proceedings for the partition of estates, the court may allow a reasonable solicitor’s fee to be changed as costs among the parties in interest. In that case it was proper to allow the fee, and in order to determine what a reasonable solicitor’s fee was, the court allowed witnesses to testify and give their opinions as to what was a reasonable fee, and they gave it as their opinion that §1,000 was a reasonable fee for such services.

The Supreme Court very properly held, first, that the method of their finding what a reasonable foe was, was erroneous, and held that the proper question was “what is the usual and customary fees for such services;” and second, that §1,000 was an exorbitant and excessive fee; and for the allowance of that fee the cause was reversed. In the ease before v us the mortgage provided for a reasonable solicitor’s fee in case of foreclosure, using precisely the same language as the statute. The court, in both cases, must ascertain what is a reasonable fee, and I know of no reason why the mode adopted in the one case for ascertaining that fact, should be different from flie mode adopted in the other.

In the case at bar appellee called two witnesses only, to prove the fees. The following question was asked both of them: “What, in your judgment, would be a reasonable attorney’s fee to be allowed in this case to the complainant for the foreclosure of this mortgage, judging from the amount involved and what you saw of tli.e papers, and depositions taken in the case? The amount c’aimed by complainant is something over §5,000. The papers will show that about eight days time has been spent in taking depositions in this case and that the venue was changed from De Kalb to this county.”

The first witness answered that he had practiced law nine years and that §400 or §500 would be a reasonable fee.

The second witness answered that he was a lawyer since 1865, and that §500 would be a reasonable fee. The court selected the highest figure. These questions and. answers come precisely within the method adopted in fteynolds v. McMillan, supra, and which were then held erroneous. The same rule was followed by this court in Dorsey v. Corn, 2 Ill. App. 533. In this latter case the court go farther than the Supreme Court and say that the chancellor should not be governed alone by the opinions of attorneys, but should exercise his own judgment and sense of justice in the allowance of fees. I differ from the majority of the court with reluctance, but I am so firmly convinced that that part of the decree allowing $500 for solicitor’s fee is illegal in its mode of ascertainment and directly contrary to the rule of this and the Supreme Court, and also that it is excessive and exorbitant in amount, and so abhorrent to my sense of justice, that I must, with great deference to my brethren, enter my protest against it. The decree is affirmed by a majority of the court.

Decree affirmed.


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    William T. Irwin, Administrator, v. Mary Wollpert et al.

      Wills — Annuity—Bill by Administrator to Enforce Payment- — Real Property — Conflicting Titles — Parol Agreement to Convey — Evidence.
    1. The law does not allow an administrator to engage in litigation to settle conflicting titles. He must take and deal with the title as he finds it.
    2. It is well settled that a claim of title based upon a parol agreement must be supported by evidence both clear and satisfactory, particularly when the claim is an old one.
    3. Upon a bill filed by an administrator to enforce the payment of an alleged balance of an annuity which was originally charged upon two lots, one of which was conveyed prior to the death of the annuitant, who joined in the conveyance, this court affirms the decree of the court below dismissing the bill for want of equity, the annuitant having had control of and derived all the income from the premises, either by herself or her agents, during her lifetime.
    [Opinion filed December 8, 1888.]

      Appeal from the Circuit Court of Peoria County; the Hon. S. S. Page, Judge, presiding.
    Messrs. Kellogg & Cameroe, for appellant.
    Messrs. Dae. F. Baum and H. Ulrich, for appellees.
   C. B. Smith, J.

This is a bill filed by Wm. T. Irwin, administrator of the estate of Christiana G. Young, deceased, against Mary,'John and Charles Wollpert, her grandchildren. Christiana G. Young was the widow of George Matthaus Young, who died testate in April, 1873, seized in fee simple of lots one and two, block sixty-six, in Monson & Sanford’s addition to Peoria.

By his will George Matthaus Young dextised lot(l) to his son, Gottlieb M. Young, in fee, and lot two (2) he devised in fee to Mary, John and Charles Wollpert, minor children of his deceased daughter, Julia C. Wollpert. In a subsequent clause of his will he charges these two lots xvith a three hundred dollar annuity, clear from all taxes and improvements, to be paid to his wife,-quarterly, every year during her life, and provides that in case this annuity is not paid promptly that she may take possession and collect rents for herself.

Christiana Gottlieb Young died in 1886, and Irwin was appointedher administrator. This bill is now filed to enforce payment of, what is claimed, an unpaid balance due of said annuity, and to make it a charge against said lot txvo; lot one having been conveyed by the deed of the widow herself, her son joining xvith her, so that no demand can be made against it. It is alleged in the bill that at the time of the widow’s death there xvas a large sum, amounting to S3,000, still due, which had accrued to her as a part of her annuity, and which had not been paid to her nor to any person for her during her lifetime. The ansxvers admit the allegations of the bill exceptas to there being anything yet due, and as to that they say that the xvidoxv, in her lifetime, had been largely overpaid, and that she had, in fact, taken possession of both lots shortly after her husband’s death, and either by herself or her agents, had received all the rents during her lifetime. Susannah Young, wife of Gottlieb M. Young, who was also made a defendant to the original bill, answers that she had a claim against the estate of Christiana G. Young for care, boarding and nursing for a number of years prior to her death, and she also claims in her answer that she had a parol contract with George Matthaus Young in his lifetime to the effect that if she would build a house on lot one, she should have the lot, and that in pursuance of such contract she built the house with her own money at a cost of §2,000, and that by that means made the only rental value the lot had; and she further insists that she never received any rents therefrom nor anything from the mortgage put on it. The hill was dismissed as to Susannah Young and M. Seherff. The case was referred to the master, with direction to take the evidence and report conclusions, which he afterward did, finding against the complainant in the bill, and finding that Christiana G. Young had had the possession and control of both lots either by herself or her agents, and had collected and received rent and profits therefrom largely in excess of her annuity, during her natural life, and that there was nothing due her. Exceptions wore taken to the master’s report and overruled by the court. Thereupon th.e complainant asked and obtained leave to amend his bill. The bill was so amended as to allege a claim of ownership in fee only, in George Matthaus Young, of lot one (1), at the time of his death and malting the will, but that in fact the equitable fee in said lot one was in Susannah Yoxmgat the time of the death of George Matthaus Young, by reason of the agreement between the said George M. and Susannah Young, which said agreement was in substance as follows: That in the lifetime of George M. Young, deceased, he made a verbal agreement with Susannah Young, wife of Gottlieb M. Young, now also deceased, to give, grant and convey said lot one in block sixty-six to said Susannah Young, if she would cause to be built a dwelling house thereon, and that the said Susannah Young, in the lifetime of George M. Young, fully performed her part of said agreement by causing the house to be built with her own money, not derived from her husband, at a cost of 82,000 and that she entered upon and took possession of said house and kept possession of the said house and lot until it was sold under a trust deed in 1879, which had been executed by Susannah Young, her husband, and Christiana G. Young — all joining in the deed. The amended bill further averred that by reason of such agreement and the building of said house, the equitable fee passed in the lifetime of George 3\L Young to said Susannah Young, but that said George M. Young never, in his lifetime, performed said agreement by making a conveyance of said lot one to said Susannah Young, nor have his legal representatives since his death.

Wherefore complainant prays that the fact of said agreement to convey may be considered in connection with the relief prayed for in the original bill, and that the said unpaid annuity may be decreed a lien accordingly upon said lot two (2), and for other and further relief, etc.

Mary Wollpert, in her answer to this amended bill, denies every material averment in it, and in addition to her denial pleads the statute of frauds and relies on the same, as against the parol agreement set up in the amendment.

She further answers and says that Christiana G. Young accepted the provisions and terms of the will, and thus treated her husband as the owner in fee of said lot one (1), and that her administrator is now estopped from saying he was not the owner. Charles and John Wollpert make substantially the same answer as their sister Mary to the amended bill. We regard this amendment and all proceedings under it as wholly foreign to the original purpose of this bill. It was an attempt by the administrator to do indirectly what he could not do by a direct proceeding, viz., to settle and adjust the title to lot one as between Susannah Young and her husband or his heirs, he being dead, and none of them then being parties to the bill. The bill had before then been dismissed as to Susannah Young, and her husband was dead, and if they had children they were not made parties. The law does not allow an administrator to engage in litigation to settle conflicting titles, lie must take and deal with the title as he finds it. The court could not release lot one from this claim set up, for unpaid annuity, without first deciding the title was not what it purported to be, and was not in fact in George Young at the time of his death. But while we do not recognize the propriety of this amendment, and do not wish to be understood as giving it onr approval, still, we have treated it as though properly made, and have considered the evidence offered under it as court and counsel treated it below. We have carefully studied the evidence in this record and are entirely satisfied with the finding of the master and the decree of the court. After the death of her husband, sometimes the widow, Christiana C. Young, herself collected and received the rents of both lots, and had the actual and exclusive possession of both of them. While she was thus receiving the whole rents of both lots, her son Gottlieb and his wife, Susannah, wrote her to make her home with them, at White Bock, Illinois, whither she went, and from that time until her death she lived with her son and his wife, until she died, as .a member of the family. After the mother went to live with her son he collected all the rents on both lots up to the time of his death, in April, 1881, except as to lot one, for which he received.rents only until 1879, when it was sold, and after the death of Gottlieb Young the mother still resided with Susannah until March; 1886, when she died, and during all that time Susannah Young collected all the rents from the remaining lot two. The evidence discloses that Gottlieb and his wife together got all the rents until after the death of Christiana G. Young, and that they were acting as her agents with her knowledge and consent, and that they got the benefit of all this money for the keeping of Christiana. The mother was undoubtedly a source of great care to her son and his wife. They were giving her a home and feeding and clothing her and meeting all her wants. She knew her son was attending to her property and collecting not only her annuity of $300 a year, but, in fact, collecting all the rents, amounting to good deal more than that, and that it was all appropriated by the family. We think there can be no reasonable doubt but that she secured all her legal demands against these lots and much more, at the hands of her son acting for licr, and as her agent, with her knowledge and consent.

We do not think the claim made by Susannah Young that she bought lot one in consideration that she would build a house on it, is sustained by the proof. The subsequent conduct of herself, her husband, and of George Matthaus Young and his widow, all strongly contradict that claim. At all events, she claims only through a parol agreement of purchase. The law is well settled that where such a claim of title is set up, the proof must be clear and satisfactory and free from substantial doubt, and more especially so when the claim is a very old one, as in this case, over twenty years having elapsed since it is claimed this parol contract was made. Wood v. Thornly, 58 Ill. 464 ; Langston v. Bates, 84 Ill. 524. But under the undisputed facts in this case, the hardship to Susannah Young in expending §2,000 to build a house on this lot one (1) is not so great as contended. In the first place, instead of the deed being made to her, as she now claims it ought to have been done, it was given to her husband by will. She, with her husband, shared the rents accruing from the house for a number of years, and until she, her husband and Christiana G. Young all joined in a trust deed, and borrowed §2,000 on the lot, which was paid to her husband. She undoubtedly shared with her husband and her family the benefits of this money. They would still own the house and lot had they chosen to pay the trust deed and redeem the lot. The manifest purpose of this bill is to raise a fund out of lot two (2) to pay a claim set up against Christiana G. Young’s estate by Mrs. Susannah Young, for keeping the old lady during her residence with her own son, at his invitation, and covering a period when Gottlieb M. Young, the husband of Susannah Young, was receiving all the rents and profits of both lots one and two, and appropriating them to the support of his mother and family. The proof is that the Wollpert children have never received a cent of rent from the lot given them by their grandfather in 1873, but, on the contrary, they have been compelled to pay some of the taxes.

With the exception of, perhaps, a year or so, Gottlieb Young and his wife have received every dollar of rent paid on this lot Ho. 2 from 1873 until 1887, besides also receiving all the rent on lot one from 1873 to 1879, for which they have rendered no consideration except furnishing a home in their own family for Gottlieb’s own mother and at their own solicitation. The total amount received by both of them over and above taxes and repairs is shown to be $3,917.55. This amount would allow them six dollars a week for the care and hoard of Mrs. Christiana G. Young for the time she lived with them, covering a period of about thirteen years.

The proof not only shows that Gottlieb Young and his wife were the actual and only agents of Christiana G. Young and received for her more than her annual annuity, hut it also shows that the purpose of this suit is simply to raise a fund to again pay Susannah Young for keeping her motlier-in-law.

We are unable to find any merit or equity in the case and the decree of the Circuit Court dismissing the bill is affirmed-

Deeree affirmed.


text:
    Ole M. Tomle v. Leah J. Hampton.

      Personal Injuries — Defect in Sidezvallc Built on Private Property■ — ■ Action against Oivner for Damages — Nuisance—Damages—Measure of— Instructions — Comparative Negligence — Landlord and Tenant.

    1. To the general rule that the landlord is not liable where a third person is injured through a failure to keep in repair premises occupied by a tenant, there are two exceptions: first, when the landlord agrees to keep the premises in repair; second, where the premises were erected with a nuisance upon or connected with them, by means of which the injury com. plained of occurred.
    2. A person who has made a public sidewalk upon his own premises, can not be heard to say, an injury having occurred through a defect therein, that it was not a public way.
    3. An unprotected opening in a sidewalk, ten inches wide and five feet long, is a nuisance per se.

      4. In the case presented, it is held: That the appellant can not complain of an instruction setting forth that, if plaintiff was guilty of some negligence, yet if it was slight and the defendant’s negligence was gross, when compared with each other, the plaintiff might still recover; that an instruction given by the court on its own motion, though in part irrelevant, states correct propositions of law, and did not mislead the jury; and that the court properly refused to give certain instructions for the defendant, prepared on the theory that the landlord would not he liable if the premises were, at the time of the accident, in possession of a tenant.
    5. In actions to recover damages for personal injuries, there is no inflexible rule as to the measure of damages, except that the recovery is limited to compensation for injury and suffering. What is a proper allowance in a particular case, rests in the sound discretion of the jury, subject to review and correction by the court in case of the abuse of such discretion.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Kane County; the lion. Isaac Gr. Wilson, Judge, presiding.
    Mr. Charles Wheaton, for appellant.
    Messrs. A. J. Hopkins, FT. J. Aldrich an dF. H. Thatcher, for appellee.
   C. B. Smith, J.

This is an action on the ease brought by-Leah J. Hampton, a minor, by her next friend, against Ole M. Tomle, the appellant, to recover damages for an alleged injury to plaintiff caused by the alleged negligence of the defendant. The declaration contains several counts. The gravamen of the charge is that for ten years last past the defendant owned a business house on the south side of Wilson street, one of the most public streets in the town of Batavia; that the front of said building was abutting the sidewalk along the line of Wilson street; that on the front line of said building there was a glass show window, and that on the front of said building there was an uncovered opening in the sidewalk adjacent to the front wall and running along with the wall and under the show window a distance of five feet in length and ten indies wide; that the hole, when left open, uncovered a vault or cellar below to the depth of ten feet, and that the defendant had negligently maintained the building for ten years in that dangerous and unsafe condition and rented it to persons for business purposes.

That at the time of the injury complained of it was rented to Vincent & Patchin for a valuable consideration for the purpose of a drug store, and that the plaintiff, in the night time, was sent to the drug store by her parents on a lawful errand, and while looking in the show window at the articles there displayed she fell into and through the opening in the sidewalk, while using all due care, and was injured.

The defendant pleaded the general issue. A trial was had resulting in a verdict for the plaintiff for $2,000, and after overruling a motion for a new trial the court rendered judgment on the verdict. The defendant brings the case here on appeal and assigns the usual errors. In considering the case we shall consider only such assignments of error as have been relied upon by appellant in the argument.

There seems to be no substantial dispute as to the facts, except so far as they relate to the character of the injury received by the plaintiff. The record discloses substantially this state of facts: Appellant was and is the owner of a block consisting of three store buildings in Batavia, fronting on Wilson street, which runs east and west through the town. When this block of buildings was erected the front line of the block was set back from the inside of the sidewalk about six feet, and upon this intervening space between the sidewalk and the front of the buildings the defendant had placed stone flagging up to the front of his buildings, and a little above the edge of the sidewalk, and thereby covered all the open space except the hole before referred to, and increased the width of the public sidewalk that much.

Prior to this injury one Geis occupied the store west of the one involved in this controversy, appellant himself occupying the one next east of it for a furniture store. Vincent & Patchin occupied the drug store as the tenants of appellant, before and at the time of the injury, under a written lease. This written lease contained no provision requiring appellant to keep the building in repair. Under the drug store and under this opening in the sidewalk was a cellar and excavation about nine feet deep. The cellar was used for the purposes of the drug store and the opening in the sidewalk for light and ventilation to the cellar.

The lower end or bottom of the show window was about eight inches above the level of the walk under the window, and the molding at the bottom of the show window projected out from the surface of the wall about two and one-half inches. Ton years ago there was a board walk immediately fronting this drug store and a railing was then built around this opening in the walk to protect people from getting into it.

Defendant tore away the hoard platform or sidewalk and the railing around the opening and replaced the hoards with stone flagging, but did not replace the guard or railing around the opening he then left; nor did he then or since, up to the time of the injury, place any kind of guard or protection over or around it.

Immediately after plaintiff was hurt he nailed a board over it. This opening was not absolutely necessary either for lighting or ventilating the cellar, although it aided in lighting. There were other openings in the cellar which lighted and ventilated it. The six feet between the sidewalk and the front of the store belonged to the defendant, and the stone flagging was put there by him for the purpose of showing and displaying goods, and it was certainly used by the public just as the sidewalk was used in passing along in front of the stores as well as the approaches to them. The drug store and cellar were in the possession and control of Vincent & Patchin and had been for two years prior to the accident, under a lease from the defendant, and they were paying him rent.

This was the condition of things at that place on the night of the 10th of October, 1883. On that evening, after dark, the appellee, then a little girl nine years old, was directed by her father to go with her brother, a little older than herself, to this drug store, to buy a bottle of Pond’s Extract As they approached the store the appellee noticed several men in the store and wanted her brother not to go in until the men went out, and while thus waiting they were both attracted to this fatal window to look at a silver butter dish with a picture of a cow on it. Upon stepping up to the window the appellee, not seeing tire hole in the sidewalk by reason of the darkness,, stepped into it and fell to the bottom of the cellar upon some stone flagging. Up to this point there is no dispute about the facts as we have recited them..

Appellee claims that in falling she received serious and permanent injuries; that she suffered greatly for a long time and was compelled to remain in the house and in bed for a long time and afterward go on crutches, and that she could not go to school for six months or more, and that one limb is now shorter than the other, and that when lying on her right side she has no control of her urinary muscles and that there is an involuntary discharge of urine; that she has never been well since the hurt and that before the hurt she was a healthy and sound child. This condition of plaintiff is supported by several credible witnesses. The defendant, on the contrary, urges that her injuries are but slight and that no permanent injury came to her, and that appellee and her family are “shamming” for the purpose of extorting a large amount of money from the defendant.

The verdict seems large, but there is ample proof in the record to support appellee’s claim as to the character of the injury and the nature of her sufferings to'justify the jury finding her injuries to be permanent. There is no inflexible rule to measure the damages in such cases, except that it be fdr compensation for injury and suffering, and its ascertainment must rest in the sound judgment of the jury upon the facts in each particular case, subject, of course, to review and correction by the court for abuse when the court can clearly see that the jury have been governed or influenced by improper motives, such as passion or prejudice, or have clearly mistaken the facts in the case. We can not say in this case that the jury have so far departed from their duty as to justify ns in setting aside the verdict on that ground. But the chief contention, in this case, of appellant, is not so much against'the amount of the verdict as against the right of plaintiff to recover at all. Counsel for appellant contends very earnestly in a very elaborate argument that the plaintiff can not recover upon the admitted facts in this case, and bases this contention on the fact that the appellant was not in possession of the building and had no control over it, and owed no duty to the plaintiff in regard to the opening in the walk, and that if there is any liability it is upon the tenants. He contends that it was the duty of the tenants to keep the building in safe repair. The general rule in cases of accident happening to third parties on account of failure to keep the premises which are occupied by tenants in repair, is that the landlord is not liable. But there are two well recognized exceptions to this rule:

1. When the landlord by express agreement with his tenant agrees to keep the premises in repair.

2. If the premises are erected with a nuisance upon or connected with them by means of which the injury complained of occurred, then the landlord is liable.

In this case there was no agreement to repair and if the defendant is liable it is under the second exception to this rule.

In Gridley v. The City of Bloomington, 68 Ill. 47, a flagstone placed over a vault in the sidewalk by the landlord, was broken, and it was replaced by a defective covering put there by the tenant. The injured party brought suit, but the landlord was held not liable because he did not make the defective walk.

In Miller v. Morrell, 128 Mass. 545, the tenant occupied a house a little back from the street, and a walk led from the street to the house. The injured person was calling on the tenant at night to collect or settle a bill, and in approaching the house he fell off the walk and was injured for want of railing or a light to keep him on the walk. There was no defect in the walk itself. The landlord was held not liable.

In Bryan v. Williams, 87 N. Y. 471, the tenant occupied a building for laundry purposes run by steam from a shaft run through the building. The tenant erected for his own con. venience a partition wall running near the shaft. The injured party was passing between the wall and shaft and was hurt and the landlord was held not liable. The court then uses this language: “A lessor maintaining structures not per se a nuisance, but which become so only by the manner in which they a/re used by the lessee, is not liable therefor.” Citing Swords v. Edgar, 59 N. Y. 28; 87 Pa. St. 475 and 126 Mass. 545.

The foregoing cases sufficiently illustrate the rule that the landlord is not liable when the original structure was notyper se a nuisance.

The distinction recognized in the above cases, however, seem to have been disregarded in King v. Thompson, 87 Pa. St. 475. The facts in that case were almost literally like the facts in the case at bar. A hole sixteen inches wide and three feet long was left in the sidewalk unprotected, in front of a building and in front of a cellar window, for the "purpose'of light and ventilation. An injury occurred to a person walking into the hole and the landlord was sued, but was held not liable. The ruling in this case can only be harmonized with the general rule stated upon the ground that the court did not regard the hole in the sidewalk as a nuisance per se.

But whatever the rule may be in England and in other States we regard the law as well settled in this State, that when a landlord leases premises with a nuisance per se attached to them, and an injury results to a stranger, without his fault, then the landlord is liable.

In Stephani v. Brown, 40 Ill. 428, the injury resulted to Brown by falling through a defective grating in the sidewalk. Stephani owned certain premises in Chicago", and for his own convenience and without the authority of the city raised the sidewalk in front of his building and dug a vault under it, and put a wooden grating over a part of the walk in front of the window in the building and adjoining the wall for the purpose of light and ventilation. Afterward defendant, being the owner, leased the premises to a third party, and while the tenant was in possession the plaintiff, in passing along the sidewalk, stepped upon the grating, which, being defective, gave way, and she was precipitated into the vault below and was injured.

It will be seen that the facts in that case were more favorable to the owner of the premises than in the case before us. In that case the owner put a wooden grating over the opening he made in the sidewalk. In the case before us no covering was put over the hole. The same defense was made there that is urged here with so much earnestness. It was contended that if there was any liability it was on the tenant and not the landlord. But the court held that whoever does anything either on, above or below the street surface to render its use dangerous or hazardous without lawful authority, is guilty of a nuisance, and that persons who suffer injuries therefrom without their fault have a remedy against the. author or person continuing the nuisance.

Mr. Justice Breese in giving the opinion of the court in that case further sa}rs: “ The principal ground of defense relied on by appellants is that they were not in possession of the premises at the time of the accident, but they were leased to Schonthaler, who then was the actual occupant, and therefore they were not responsible. The proof shows that appellants built the sidewalk as it was at the time of the accident; they were therefore the authors of the nuisance, and, leasing the premises to another, being such authors, they are in law guilty of continuing the nuisance. Wagoner v. Germaine, 3 Den. 306.”

In Gridley v. Bloomington, 68 Ill. 47, the court expressly recognize the authority in Stepliani’s case and refer to it with approval. And again in City of Peoria v. Simpson, 110 Ill. 294. the court say: “The owner is liable, if at all, because the premises were let with the nuisance upon them, and that liability, if any existed, continued notwithstanding the possession of the tenant, and continued up to the time of the accident.” The same defense was urged there as here, that the owner was not liable because the premises were leased and in the possession of tenants. This defense was overruled, although the case was reversed because of an erroneous instruction.

In Reichenbacher v. Pahmeyer, 8 Ill. App. 217, the defendant built a hotel and leased it to a tenant. Before leasing the hotel the defendant had suspended a chandelier from the ceiling of one of the rooms in so defective and unsafe a manner that, after the tenant took possession and was usihg it, the chandelier gave way and fell upon the plaintiff, injuring him, while he was using due care. The landlord was sued and made the defense that if any liability existed it was upon.the tenant and not upon him, but the court overruled the objection and followed the rule in Stephani’s case.

The same rule was followed in The Union Brass Manufacturing Co. v. Lindsay, 10 Ill. App. 583.

The foregoing cases decided by our Supreme Court and by this court are all in point, and al-e conclusive against the appellant and binding upon us. Appellant seeks to escape the force of these decisions upon the ground that the walk immediately in front of his buildings in which the hole was made was upon his own ground, some six feet from the inside of the sidewalk. But this can avail him nothing. He saw fit to make a public sidewalk upon his own premises and invite the public to his stores to trade and to see his wares, and he can not now be heard to say the public had no right there, or that it was not a public way. We think the hole left in the sidewalk of appellant uncovered or in any way unprotected was a public nuisance per se.

It may be true that the chances for adult persons to get into it in the daytime would be remote, but both adults and children have the right and do use streets at night, and they have the right to presume that neither the public nor private individuals have left pitfalls in them. It is not necessary that a hole in the sidewalk should be large enough for a man to fall in before it can become a nuisance. Children have as much right to be protected in their persons against dangerous walks in a city as adults, and it is no excuse to say that this hole wras only large enough to let the little girl fall through. A hole left in a public sidewalk, without covering or protection, where people constantly come and go, large enough to be dangerous to body or limb, is a public nuisance jper se, without reference to what the purpose was in leaving it thus. Nor is there any hardship or inconvenience in this rule. These openings under sidewalks are proper and necessary and holes left in the walk are often necessary to their approach, and their protection by grating or other covering is easy and simple without preventing air or light from passing. In addition to the fact that appellant made this hole and must be chargeable with a knowledge of its dangerous character, he was twice warned that some one would be hurt or killed in it. He can not justly complain now that he is called on to pay for damages resulting from his own gross and long continued wilful negligence after he was twice warned of the danger he and others were in.

Lastly, the appellant insists that the court erred in giving the second instruction asked by the plaintiff. That instruction informed the jury that if they found from the evidence that plaintiff was guilty of some negligence, yet if her negligence was slight and the defendant’s negligence was gross, when compared with each other, that the plaintiff might still recover. Counsel insist this instruction was like the one given in the C., B. & Q. R. R. Co. v. Johnson, 103 Ill. 512.

We do not think the instructions are alike. The instruction which was held bad in Johnson’s case told the jury that, even if they believed Johnson was not exercising ordinary care, that still he might recover, if his negligence was slight, and the defendant’s negligence gross when compared with each other. It has been uniformly held in all the cases since Johnson’s case, supra, was decided, that when the plaintiff did not exercise ordinary care he could not recover, no matter how gross the negligence of the defendant, unless it amounted to a wilful tort. This is the doctrine laid down in the case last above cited, and many cases there referred to. The instruction given in this case did not have that element in it. It stated a correct proposition of law as applying purely to the question of comparative degrees of negligence. The jury had been clearly instructed in other instructions given for both plaintiff and defendant, that the plaintiff could not recover if she had been wanting in reasonable care at the time.

Defendant makes some complaint of the instruction or charge given by the court on its own motion,upon the ground that some part of it was irrelevant. This observation is correct; but, while some part of it was irrelevant, it stated correct propositions of law and could do -the defendant no harm nor mislead the jury.

Defendant’s refused instructions are all prepared on the theory that the landlord would not he liable if the premises were in possession of a tenant. They were all properly refused for the reasons heretofore given.

Finding no substantial error in this record the judgment is affirmed.

Judgment affirmed.

Note. — This case was first heard and considered while Judges Baker and Welch were on the bench, and the judgment was affirmed and the case assigned to Judge Baker to prep ire the opinion; but, before the opinion was prepared, he was elected to the Supreme Bench and Judge Welch had died, and the record was again reviewed after Judges Upton and Smith came upon the bench, and again affirmed. This accounts for the delay in filing tne opinion.


author: Lacey, P. J.

text:
    George Groom v. Robert Parables.

      Criminal Conversation — Damages—Evidence—Jurisdiction.
    1. In an action to recover damages for criminal conversation with the plaintiff’s wife, the marriage may be proved by a copy of the record thereof in a parish register.
    2. A general objection to the introduction of a copy of a record does not raise the question of its secondary character, or as to its authentication, but only the question of its competency.
    3. In the case presented, it is held: That the refusal to allow the wife to testify was proper; and that the verdict for the plaintiff is supported by the evidence.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Carroll County; the Hon. William Brown, Judge, presiding.

      Mr. J. M. Hunter, for appellant.
    Messrs. Henry Maokay and George L. Hoffman, for appellee.
   Lacey, P. J.

This was an action on the case commenced by the appellee against the appellant to recover damage for criminal conversation with appellee's wife. There was a trial and verdict and judgment for the latter in the sum of §711, from which judgment this appeal is taken.

It is complained that the evidence fails to support the verdict; that the proof of marriage was not legally made, and that appellee's instructions were erroneous. We fail to find any force in any of the objections. The fact as to the act of criminal conversation with appellee’s wife is well supported by the evidence, and we do not feel at liberty to interiore with the judgment for the reason that there was not sufficient evidence. This we state generally; for it is not necessary to go into a detailed examination of the evidence. The proof of marriage is sufficiently made. A copy of the parish register in London, England, was properly introduced — it is true against the objection of the appellant — but the objection was only general and not special, and only reached to the competency of the evidence. Such general objections do not raise the question as to the secondary character of the evidence, such as being a copy, nor does it raise the question as to its authentication. Buntain v. Bailey, 27 Ill. 409. It need not be shown by the proof in the first instance that the marriage was in accordance with the laws of England; such fact will be presumed at least prima facie, from the fact alone of the marriage. Hutchins v. Kimball, 31 Mich. 126.

Besides the above evidence, appellee testified on the trial to the fact of the marriage; the complaint that the wife of appellee was not allowed to testify has no force. She was not a competent witness at common law, and she had not been made so by statute. Crose v. Rutledge, 81 Ill. 266.

Objection is made to appellee’s 1st, 2d, 3d, 4th, 6th, 8th and 9th instructions, but a careful examination of them shows us that they are not objectionable and are in the main correct. The instructions as a whole seem to 1e fair and full, and neither party lies any right to complain of them.

Finding no error in the record the judgment of the court below is affirmed.

Judgmem~ affirmed.


author: Upton, J.

text:
    City of Peoria v. Susan R. Crawl.
    1tTwiicipa~ Corporations-Diversion of' Suiface Water-Title to Land Dumag ed--E,ylcfenee.
    1. A person having the actual possession of land will be regarded and deemed the true owner ther~of until the contrary is made to appear.
    2. In a suit to recover damages for an injury occasioned by the wrongful or negligent manner in which work is done on the streets of a city, it is unnecessary to prove that it was done by persons employed by the city, such being the reasonable presumption.
    [Opinion filed December 8, 1888.]
    APPEAL fr~m the Circuit Court of Peoria County; the Hon. T. M. SBAw, ~Tndge, presiding.
    Mr. JOHN M. TENNERY, for appellant.
    Mr. ISAAC C. EDWARDS, for appeflee.
   Upton, J.

This action on the case was commepced by the appeilee against the appellant in the Circuit Court of Peoria County, to recover damages caused, as is alleged, by the appellant diverting the surface water of a large territory in appellant city from its natural course, and improperly and negligently conducting the same by means of a sewer constructed and maintained by appellant upon the lot of land of appellee, and flooding the same, for which, oil trial in said court by a jury, appellee obtained a verdict for $250, upon which verdict judgment was rendered in the court below, and to reverse which the suit was brought to this court by appeal. The main contention here is, that the appellee in the court below did not, by evidence introduced, show an actual paper title in herself to the land claimed to have been damaged by the wrongful act of appellant.

It is insisted on the part of the appellant that such was indispensable to a recovery in the court below or in this court:

1st. Because the appellee in the declaration tiled in this case, avers, after description of the “locus in quo” that “she held and occupied the same under title in fee simple,” etc.

2d. Because the action is brought and seeks to recover damages for a permanent injury to the fee, and not for an injury to a possessory interest merely.

The plaintiff testified that she was in the actual possession and the owner of the lot in question at the time of the injury complained of, and had been for a period of over twenty years (with the exception of a few months when she resided on some other premises nearer the city).

She is sustained in her evidence by some six other witnesses, indeed by all the testimony upon that point in the case on the trial below.

In Shoup et al. v. Shields et al., 116 Ill. 488, which was an action of trespass quare clausum fregii to recover damages for entering the close of the plaintiff, and cutting down a hedge growing thereon, it was there, as here, contended, that because the appellees failed to show a fee simple title to the land then in dispute by a regular chain of title from the Government down to plaintiffs, no recovery could be had. The court held in that case, “ that it was not necessary to show a chain of title from the Government.” “It would have been enough to have shown no more than possession.”

In McLean v. Farden et al., 61 Ill. 106, which was an action of trespass qua/re clausum fregii for alleged unlawful entry upon lands and cutting trees thereon, the court held that the person having the actual possession of land, will be regarded and deemed the true owner thereof until the contrary is made to appear; and that whoever would dispute that possessory title, can only do so by exhibiting paramount title.

In the case of The City of Chicago v. McGraw, 75 Ill. 566, which was an action of trespass guare clausum for injurie8 done to land by excavating the Illinois and Michigan Canal, which manifestly was a permanent injury to the land, the court held that, in trespass to real estate in the actual possession of the plaintiffs, when no effort is made by the defense to show title in any one else, proof of title other than of possession is not necessary.

We conclude, therefore, that the points above stated of appellant are not well taken, and that the court below did not err in that regard.

A further point is made by appellant, which is that it is not sufficiently shown by this record that the appellant did or caused the work done, or culvert built, which caused the injury, which, as is contended, could have been done in this case by the records or ordinances of appellant city.

The appellant’s city engineer, Geo. F. Weigretman, testified that he was the city engineer of the city of Peoria, and had been such for six years prior to that time; that he, as such engineer, had charge of the work when the culvert complained of was put in, and that it was done under his supervision. The work was nearly finished in the fall of 1884, but some was done in the spring of 1885.

It is a reasonable presumption, where work is done on the streets of a city, that it is done by the proper authorities of the city, and in a suit to recover damages for an injury occasioned by the wrongful or negligent manner of doing such work it is not necessary to prove that it was done by persons employed by the city. The City of Chicago v. Brophy, 79 Ill. 277; The City of Chicago v. Johnson, 53 Ill. 94, and cases cited.

We have carefully examined the record in this case and we think the jury were warranted in the verdict rendered in the case, and that the court was fully justified in the instructions given, and finding no error therein the j udgment is affirmed.

Judgment affirmed.


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    Jonathan S. McDonald v. The President and Trustees of the Village of Lockport.

      Municipal Corporations — Defective Sidewalk — Personal Injury — Recovery from Village — Action over against Abutting Property Owner — Former Adjudication — •Evidence—Powers of Village Trustees.

    1. Where a municipal corporation which has been required to pay damages for a personal injury caused by a defective sidewalk, the owner of the abutting property having joined in the defense, brings suit to recover the amount so paid from such owner, be can not again litigate questions involved in the first suit.
    2. In the case presented, it was only necessary for the plaintiff to prove that the negligence of the defendant was the cause of the injury, and that judgment against it had been obtained and paid.
    3. A village board of trustees can only bind the village when acting in their corporate capacity, and such act must be of record. Instruction or directions to a police constable by individual members of the board acting separately do not bind the municipality.
    4. In the case presented, the court properly directed a verdict for the appellee, it having made by its evidence a, prima facie ease, and the defendant having failed to make any defense.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge, presiding.
    Mr. C. W. Brown, for appellant.
    Messrs. Hill & Haven, for appellant;
   C. B. Smith, J.

In 1885 appellant owned and occupied a building on the north side of Tenth street, in the village of Lockport. Desiring a better sidewalk in front of his building he tore away the old one and excavated the earth under the same about eight feet deep, and laid a new stone sidewalk in the place of the old one, about eleven feet wide, and thirty feet long. Some time after this new sidewalk was laid by appellant, and being used by the 'public, one Eandall Lynn, on the 4th of March, 1886, fell into a hole in said sidewalk and was injured. For this injury Lynn sued the village of Lockport. A trial of this suit was had resulting in a judgment in favor of Lynn for $200 and costs taxed at $63.05.

Lynn’s declaration contained two counts. The substance of the first being that the sidewalk in question had, for a long time prior to the injury complained of, been out of repair and a large opening in the sidewalk left open and unguarded and that he, while exercising due care in passing over said walk in the night time, fell into such hole and was injured. The second count charges that a large stone forming a part of the sidewalk had been removed out of its place and thereby left a hole in the sidewalk, into which he fell while exercising due caution. Both counts allege negligence on the part of the city. The defendant pleaded the general issue. Appellant here was served with notice that the village had been sued and requested to appear and defend. He appeared by his attorney and assisted in the defense. The village was defeated and paid the full amount of judgment, costs and interest.

This suit is now brought against McDonald, the appellant, by the village of Lockport to recover over against him the amount of the former judgment against the village. The declaration alleges the negligent manner of building the sidewalk by McDonald and its dangerous character, the injury to Lynn and his recovery of a judgment against the village, and its payment. The defendant pleads the general issue.

On the trial the village proved its corporate existence, the owmership of the property along which the sidewalk was built, that appellant built it, that it was dangerous, and that Lynn fell into it in the night time and sustained injuries for which he recovered. The notice to appellant to appear and defend, and the fact that he did appear and assist in the defense, was admitted. It was also admitted that the village had paid the full amount of judgment, interest and costs, amounting in ail to the sum of $267,65, The record of the suit of Lynn against the village was also introduced. The proof fully established the identity of the two causes of action. Thereupon the appellee rested its case.

To meet this case, so made, the appellant introduced one Sly, the marshal of police, a constable of the village. Appellant asked witness “ if he had any instructions or directions from the village trustees in reference to that opening?” to which appellee objected, and the objection was sustained and exception taken. Witness testified that he told McDonald to fix the place, and that McDonald asked him if that would do ? Appellee objected to witness giving any further conversation between himself and McDonald, which objection was sustained and exception taken.

This witness was also asked if he acted with a knowledge of the trustees in looking after the sidewalks, and if he acted in his official capacity in doing what he did, to which objection was made and sustained and exception taken. We think the court ruled correctly in excluding this testimony. Any authority to bind the village must have been a matter of record. The individual officers of the board, acting separately, could not bind the village by any instructions or directions any of them might give the officers. They can only bind the village when acting in their corporate capacity, and those acts must be shown by the record.

Appellant also called Bandall Lynn, who testified that McDonald’s building, where he was hurt, was just opposite the city hall. He v ;s then asked to state if the lamp on the street in front of the city hall was lighted and burning that night, to which objection was made and sustained, and exception taken. Appellant ¿hen offered to prove by the witness and the corporate records that the village had for years undertaken to light the streets, including the street in controversy, and that Lynn was hurt on a dark night; that the lamp in front of the city hall was not lighted on that night; that, if it had been lighted, the holes in the sidewalk could have been seen by Lynn and avoided; that the failure to light the lamp contributed to Lynn’s injury, and that the piolice constable had been charged by the records with the duty of lighting the lamps, including the one in front of the city hall, but the court refused the offer and exception was taken. We think the court was correct in this ruling. This evidence would' have been competent in the suit of Lynn against the city. But appellant having been notified to appear and defend that suit, was bound by the judgment there had and can not now litigate the questions then involved, in this suit. All that appellee was bound to prove in this case, was that appellant was the author of the mischief for which the village had been convicted and that it had paid the judgment. Upon this evidence the right of appellee to recover was absolute. Gridley v. The City of Bloomington, 68 Ill. 47; Todd v. The City of Chicago, 18 Ill. App. 505; City of Bloomington v. Roush, 13 Ill. App. 341. The appellant offering no further evidence, the court thereupon directed the jury to return a verdict for the appellee for the sum of $267.65, which the jury did, and the appellant had judgment on the verdict.

The appellee, by its evidence, made a prima facie case, and the appellant having failed to offer anything against it, there was no error in the court directing a verdict for the appellee. There was nothing for the jury to try, and to have sent them out to consider of their verdict would have been but an idle ceremony.

We find no error in the record.

Judgment affirmed.


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    John Lynch v. D. B. Jackson et al.

      Mortgages — Deed Absolute in Form — Separate Defeasance — Forfeiture — Bill to Redeem — Limitations—Laches—Notice to Devisee.

    1. A conveyance of lands, absolute in form, made by a debtor to a creditor who, by separate instruments executed at the same time, agrees to te-convey upon payment of the indebtedness, is a mortgage.

      2. In the case presented, upon a bill to redeem, it is held: That the deed and contract, in question are to be construed as a mortgage; that the mortgagee and his devisee, the defendant, having failed to declare a forfeiture and foreclose the mortgage after the expiration of the two years limited in the contract, the mortgagor is entitled to redeem and to an accounting for rents and profits, although his bill was not filed until a little over five years after the note became due; and that the defendant is chargeable with at least constructive notice of the rights of the complainant.
    3. In this State it seems that the right of redemption against a mortgagee in possession extends during the statutory period for foreclosure.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Kane County; the Hon. Isaac G. Wilson, Judge, presiding.
    Messrs. It. C. Montony and A. C. Little, for appellant.
    Messrs. Chas. Wheaton and M. O. Sotjthwokth, for appellees.
   C. B. Smith, J.

This was a bill brought by John Lynch, appellant, against D. B. Jackson and others, appellees, to redeem from a mortgage certain premises described, and for an accounting as to rents and profits.

The facts as disclosed by the record are these: Prior to the 21st day of August, 1877, John Lynch and S. L. Jackson, the father of D. B. Jackson, had business transactions resulting in Lynch becoming indebted to Jackson upon different promissory notes, some of them secured upon the property now in controversy. These notes had become past due, and were doubled up on one or two occasions and renewed, and constantly growing, and no part of principal or interest being paid until, on August 21, 1877, they reached the sum of 81,850, principal and interest. Samuel L. Jackson then notified Lynch that he would wait no longer for his money, and that it must be at once paid or he would throw him out of the ¡iroperty covered by the mortgage in thirty days; Jackson proposed to Lynch to deed him the property in satisfaction of the debt; Lynch declined to do it, begging further time, which Jackson positively refused to give.

Lynch and Jackson spent the whole of the 21st day of August trying to adjust the matter.

They finally came together and it was agreed that Lynch and his wife would execute an absolute deed for the premises to Jackson, and that Jackson would obligate himself to re-sell the property to Lynch at the expiration of two years, on condition of Lynch paying up the' §1,850, with interest. This contract thus executed was as follows :

“Articles of agreement made this twenty-first day of August, in the year of our Lord one thousand eight hundred and seventy-seven, between Samuel L. Jackson of the city of Aurora, Kane County, Illinois, party of the first part, and John Lynch of the same city, county and State aforesaid, party of the second part. Witnesscth, that the said party of the first part hereby covenants and agrees that, if the party of the second part shall first make the payments and perform the covenants hereinafter mentioned on his part to be made and performed, the said party of the first part will convey and assure to the party of the second part, in fee simple, clear of all incumbrances whatever hereafter accruing, by a good and sufficient warranty deed, the following lot, piece or parcel of- land, viz.: Situated in the city of Aurora, Kane County and State of Illinois, and described as follows: Commencing at a point twenty-two feet northerly .from the southeasterly corner of lot No. 6, in block 5, of the original plat of West Aurora, as recorded, and running westerly sixty feet at right angles with River street; thence northerly along the cast line of lands heretofore belonging to W. V. Pinm, twenty-one feet; thence easterly to River street; tlience southerly twenty-one feet to the place of beginning: And being all and the same this day deeded from the said John Lynch and his wife to me, the said Samuel L. Jackson, and being the store and lands on said River street. And the said party of the second part hereby covenants and agrees to pay to said party of the first part the sum of one thousand eight hundred and fifty-two dollars ($1,852) two years from the date of these presents, with annual interest at ten per cent, per annum, according to the tenor of one certain promissory note executed by said John Lynch, and payable to the said party of the first part two years after date thereof, with annual interest at ten per cent, per annum, dated the twenty-first day of August, 1877, and for the same sum above mentioned, to wit, the sum of §1,852. And in case of the failure of the said party of the second part to make said payments of interest or principal, or perform any of the covenants on his part hereby made and entered into, this contract shall, at the option of said party of the first part, be forfeited and determined, and the party of the second part shall forfeit all the payments by him made on this contract, and such payments may be retained by the party of the first part in satisfaction and liquidation of all damages by him sustained. And it is further mutually covenanted and agreed by and between the said parties that said party of the first part shall take, keep and retain the possession, occupancy and control of said lands and premises during the continuance of this contract, with a right to rent or lease the same. And it is further mutually agreed that the said party of the first part shall pay all taxes due, past due and to become due on said pu-emises, and also make all necessary repairs on said lands and premises, and shall, from the rents received from the same, pay and liquidate such repairs and taxes, and apply any surplus upon the note above described, and for any surplus of expenses for repairs and taxes over the rent that may be received the party of the second part shall be liable to the party of the first part as a further indebtedness under this contract, to be paid, with ten per cent, interest thereon, at the expiration of the time expressed for the payment of the principal of said note.

“ And it is also mutually agreed that the party of the first part may get the premises insured for his own benefit, to the amount not to exceed §1,500, during said two years, and the costs and expenses of which shall be a further indebtedness under and subject to the terms of this contract. It is mutually agreed that all the covenants and agreements herein contained shall extend to and be obligatory upon the heirs, executors, administrators and assigns of the respective parties.

“S. L. Jackson, [l. s.]

“John Lynch, [l. s.]”

This contract and the deed and notes were all signed and delivered at the same time, all being one transaction. It is manifest that the contract was a mere defeasance to the deed, and that the deed, though absolute in form, was intended only asa security for the debt, and was but a mortgage. The terms of the .contract are so clear and conclusive upon that point that no discussion could make it plainer. The law upon this subject is so well settled that the citation of authorities in its support seems but a useless ceremony, and we shall content ourselves with the citation of a single case—Snider v. Griswold, 37 Ill. 216.

Indeed, we do not understand appellees as making any serious contention that this was not a mortgage. They rest their defense upon the ground of laches and estoppel. S. L. Jackson took possession, made repairs, paid the taxes and received the rents. At the end of the two years Lynch failed to pay the note. Neither he nor S. L. Jackson gave the matter any attention; Jackson remained in possession until his death, which occurred about one year after the note became due. About a month before his death he made a will, dividing his property among his children, and gave this property in dispute to his son, D. B. Jackson, who immediately went into possession and remained in possession, treating the property in all respects as his own until this suit was brought.

Appellant Lynch filed this agreement of defeasance for record immediately after it was made and delivered to him-Taking the property as a gift, and chargeable also with notice of what the recorded contract contained, D. B. Jackson holds the property precisely as his father held it, and can claim no exemptions or rights in relation to the property which his father could not have claimed. This contract notified him that he was holding and improving the property and collecting rents as a mortgagee whose duty it was to apply all above repairs and taxes on appellant’s note.' He went into possession under this mortgage and remained in possession with full legal knowledge of the obligation to apply all in excess of taxes, interest and repairs on this note. He.can not claim that he was innocently and ignorantly making these improvements and that appellant was standing by and permitting him to improve his property without informing him of his rights. Appellant contracted in this defeasance that his note might be paid by the rents unless Jackson elected to declare a forfeiture on failure to pay the note. There is no proof that such a forfeiture was ever declared. It is a maxim of the law that “ once a mortgage always a mortgage,” until it is satisfied. Miller v. Thomas, 14 Ill. 428.

If this property had once passed into the hands of a stranger for a valuable consideration without actual or constructive notice of this defeasance, then very different questions would arise. But here the constructive notice to appellee of the rights of appellant is clear, and the strong probabilities are that ho had actual notice of the nature of the transaction between his father and appellant. But constructive notice is as effectual to protect appellant’s right as actual notice. Appellee’s position, then, as well as that of his father before him, ■was simply that of a mortgagee in possession, nothing more or nothing less; the father with actual contract knowledge of that fact, and the son, being but a volunteer, took it chargeable with its burdens in his father’s hands, with the added constructive knowledge the record gave him; that the only right he had in the property was that of a mortgagee, and that under the defeasance he might declare a forfeiture and foreclose the mortgage, or he might waive the forfeiture and continue in possession, under the terms of the defeasance, until the note with its accruing interest was paid with the surplus rents over taxes and repairs, and then surrender back the premises to appellant. This, in our judgment, was the clear legal effect of that defeasance. Finding, as we do, that this was a mortgage, the only remaining question for us to determine is, has anything intervened to prevent appellant having the right to redeem? The appellee urges that he has lost this right ¿by his delay in bringing his bill and by estoppel.

In this State no definite rule was ever laid down as a limitation of time upon the right of mortgagors to redeem from mortgagees in possession until the case of Locke v. Caldwell, 91 Ill. 417, which came before the Supreme Court in 1879. Prior to that time the cases involving that question seemed to be detc:mined, not so much upon any statute, of limitations as upon the circumstances and equities surrounding each particular case. In the case above referred to, the court holds that the law of limitations is that the right of a mortgagee to foreclose and that of a mortgagor to redeem are mutual. The question there arose as to the right of a mortgagor to redeem a certain town lot, and also certain other lands, upon a bill filed for that purpose. The court use this language:

“It is the well settled general rule that twenty years’ possession by the mortgagee, without account or the acknowledgment of any subsisting mortgage, is a bar to the equity of redemption, unless the mortgagor can bring himself within the provisions of the statute of limitations. Demarest v. Wynkeep, 3 Johns. Ch. 129. In Harris v. Mills, 28 Ill. 44. this court has held that Avlien the note secured by the mortgage Avas barred after sixteen years, the mortgage would also be barred.
“The general rule Avliich has been stated, as to twenty years possession by the mortgagee barring the equity of redemption, is reciprocal, and the mortgagee will be equally barred by the lapse of time.”

In this case the court quotes Avith approA-al the language of Chancellor Kent in Moore v. Cable, 1 Johns. Ch. 386, Avhere he declares the rule to be, that tAventv years actual possession by the mortgagee is necessary to bar the equity of .redemption in the mortgagor. And the same doctrine was held in Bollinger v. Choteau, 20 Mo. 89. There a bill to redeem, Avas filed thirty-six years after the mortgage was made, and sixteen years had elapsed after the mortgagee had taken possession.

“In general, the respective rights of the mortgagee and mortgagor, Avith regard to foreclosure on the one hand apd redemption on the other, are treated as mutual; that is, the existence of the former is held to involve that of the latter, and vice versa, and the fact that the one' can not be legally enforced under the circumstances, is regarded as sufficient to preclude a claim for the other. It is said the right to redeem and foreclose are reciprocal and commensurable. 2 Hilliard on Mort., Sec. 2.”

And in this same case the court refused to apply the doctrine of staleness and laches which was there urged, as it is urged here, under the rule laid down in 2 Story’s Eq. Jur., Sec. 1520, as being a defense peculiar to courts of equity and founded upon mere lapse of time and the staleness of the claim in cases where no statute of limitations directly governs the case.

We understand the above case of Locke v. Caldwell, from which we have quoted, as holding that the right of redemption is not barred by a less time than the right of foreclosure, which, under the statute in force when the note in question here was made, would be ten years. This bill was filed in a little over five years after the note was due.

Counsel for appellee cite us to a great number of cases where equitable relief has been denied on the ground of laches, and to many cases where the right to redeem has been refused for the same reason. It is said that Bush v. Sherman, 80 Ill. 160, is an authority against appellant. In that case the mortgagor executed a trust deed with a power of sale, and then voluntarily went into the great rebellion and joined himself to the enemies of his country, and while absent the premises were sold under the power; when he returned after the war, he filed a bill to set aside the sale, alleging that the power was not executed in strict conformity with the deed of trust. There was no question of the right of redemption involved. The court held that his delay was inexcusable for the purpose of setting aside a sale for mere irregularity.

In Cleaver v. Green, 107 Ill. 68, it was held that five years lapse of time would bar a right to set aside a sale made under a trust deed with a power of sale for mere irregularities in the sale. Eo question of the right of redemption was made, further than that such right would result from setting aside the sale.

In Beach v. Byers, 93 Ill. 295,- the bill was to declare a trust and enforce specific performance, and complainant’s laches was held a bar.

In Williams v. Rhodes, 81 Ill. 571, the bill was to set aside an execution sale after the lapse of five years, and the relief was denied on account of the lapse of time.

In Maher v. Farwell, 97 Ill. 56, the bill was filed as in the case at bar to redeem from an alleged mortgage in the shape of a deed absolute on its face. The bill set up a parol agreement, made about the time of the conveyance, between Maher and Farwell, to the effect that a deed absolute should be made to Farwell, and that upon the payment of a note of $1,700 which Farwell held against Maher, the land should be conveyed back to Maher; the bill to redeem was filed some thirteen years after the date of the deed and the alleged parol agreement, and the relief was denied. The court in that case seems to place the chief ground for refusing the relief prayed for on the failure of Maher to prove his bill by clear and satisfactory evidence after so great a lapse of time. It is true the court say that Maher had shown no sufficient reason for the long and extraordinary delay in bringing his suit, and until the facts connected with the transaction had faded from the memory of the witnesses, or the witnesses died or left the country.

So far as can be gathered from this case, the attention of the court had not been called to its previous deliberate judgment in Locke v. Caldwell, 91 Ill. 417. The remark as to the lapse of thirteen years seems to be incidental to the main jaoint of the decision, holding that the j^arol defeasance was not sufficiently proven, and that it was dangerous to place much weight on the memory of witnesses after the lapse of so many years. These observations of the court could have no application where the defeasance was in writing and under seal, and where there could be no question about the fact of the defeasance being made as in the case before us. That and this case, in that important respect, are wholly different. But. aside from the grounds upon which we have so far considered the case and found that appellee has the right to redeem, we are not disposed to hold that appellant would not have the right to redeem from the mere lapse of time. It is evident from the record that his financial condition made it difficult, if not impossible, for him to raise so large a sum of money, and that for him to have made application to redeem without the money to do so would have been an idle ceremony. He might well rest on the presumption that his debt was being paid by the rents, and that it was much better for him to let it remain in that condition until the debt was paid, than for him to repossess himself of it, and again begin the struggle to pay the debt himself, which he had so signally failed to do before he executed the mortgage and let the mortgagee into possession. We think the delay was not so great nor unreasonable under the circumstances as to justify a court of equity in now withholding the right to redeem on the mere ground of laches, even if there were no better ground upon which to place the right to redeem.

For the reasons above given we think the court erred in dismissing complainant’s bill. The decree will be reversed and the cause remanded, with directions to the court to set aside the order dismissing the bill and to grant a decree allowing complainant to redeem, and to refer the case to the master to state an account of the amount due on the note, and also of the rents and profits received by the appellees, together with taxes and insurance paid, and the reasonable and necessary repairs made, and at the end of each year to credit the note, with the surplus, if any, of rents over taxes, insurance and necessary repairs, etc., and for each succeeding year. If there is any balance found due complainant, he will be entitled to a decree for that amount, and if there be any balance found due appellant, he will be entitled to a decree against the party having had possession of the property for such balance.

Reversed and remanded.