author: Mr. Justice Shops

text:
    Phoebe A. Millard v. Wooten Harris, Exr.

      Filed at Springfield January 24, 1887.

    1. Appeals—from county court — in respect to separate items of an administrator’s account. The right of appeal is given from any single order of the county court in relation to the settlement of estates and the approval of the accounts of administrators and executors, to the circuit court, and from that court to the further court of review, as provided by statute.
    2. Each item in ail administrator’s account rendered, is a separate claim, depending alone upon its own merits, having no connection with the other items. An appeal by the administrator from an order or judgment rejecting one or more of his claims against the estate, only brings up for review the propriety of the ruling in respect of rejected items.
    3. Same—how much of the record is brought up, and of assigning cross-errors in respect to items not involved in the appeal. An appeal from the county court to the circuit court, and from the latter court to the further court of review, brings up so much of the record, only, as relates to the judgment appealed from.
    4. On the trial of an appeal from the county court, the circuit court rendered judgment overruling certain exceptions to an executor’s final account or report, and partially sustaining certain other exceptions. From the order sustaining the exceptions, the executor alone appealed to the Appellate Court, and the party excepting to the report claimed the right to assign as a cross-error the overruling of the other exceptions: Held, that only the judgment upon the exceptions appealed from was before the court, and that the cross-errors could not be assigned except as to the matters brought up by the appeal.
    5. Administration oe estates—limitation as to time of presenting claims—payment of claim by administrator, which has not been presented ami allowed. If au administrator -pays off a demand against the estate he represents, within two years after grant of administration, but without its having been allowed in the county court, he must satisfy the court of its validity, and when he shows that such demand was a proper charge, it is the duty of the court to classify such claim and allow him credit therefor, or credit for its pro rata share, as the case may require. It is not necessary that payment of such claim be reported, and its validity shown, within the two years' limitation.
    6. An executor, during the two years allowed for the presentation of claims against his testator’s estate, paid off two of five notes secured by deed of trust on land, and on his final settlement, after the expiration of the two years, showed the two notes so paid were just and proper demands against the estate, and asked to be allowed a credit for the sum paid on them, which the court denied: Held, that the executor was entitled to be credited with the full amount of the notes paid out of the funds of the estate, if the estate was solvent.
    7. Same—executor’s sale of land—paying off incumbrance. An executor, having power of sale, sold real estate of his testator, which was incumbered by deed of trust, under a promise to bidders that he would discharge the incumbrance. The land sold for only $50 above the incumbrance, which was the fair value of the same. It was held, that the executor, on his final settlement of the estate, should be charged only with $5!) of the purchase money, notwithstanding he may have charged himself with the full sum the land brought, and also credited himself the amount paid to discharge the incumbrance.
    8. County court—its equitable jurisdiction, in adjustment of accounts of executors, etc.—correction of mistakes. In case of mistake or accident, by which an administrator or executor is charged in his report with too much or too little, the county court will have the authority to ascertain the true facts, and correct the report as the facts may justify and warrant, and charge him with the amount he justly owes. In the adjustment of the accounts of executors, administrators and guardians, the county court has equitable jurisdiction, and may adopt equitable procedure.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Montgomery county; the Hon. Jesse J. Phillips, Judge, presiding.
    Ira Millard died November 11, 1877, testate, and, by his will, appointed Wooten Harris his executor, directing, him to sell his estate and pay his debts, and the appellant, Phoebe A. Millard, was made the sole residuary legatee and devisee of the will. Letters testamentary were issued to the appellee, November 29,1877, by the county court of Montgomery county. Ira Millard, in his lifetime, on May 1,1877, executed a trust deed on a certain eighty-acre tract of land, to William A. Haskell, to secure to Lucy A. Haskell the payment of five promissory notes, each for the sum of $853.33, payable in one, two, three, four and five years from date, with ten per cent per annum interest, which notes were paid by the executor in the following amounts and at the following dates: Paid May 8, 1878, $940.30; paid July 10, 1879, $1040.58; paid May 14, 1880, $1112.41; paid August 28, 1880, $1137.77; paid August 28, 1880, $1137.77. These notes were paid by the executor without their having been first presented to and allowed by the county court against the estate. On January 21, 1880, the executor made a partial report of his acts, showing his payment of the first two notes, for which he asked a credit, and on February 9, 1881, made a further report, in which he was credited with the other three notes paid. On a-proceeding commenced by the appellant, the executor wras required to restate his account to the county court, which he did, October 19, 1883. In this report he included the notes paid Lucy A. Haskell, and in approving such report, the county court, among other things, made the following order: “The said executor having paid the notes of Lucy A. Haskell, mentioned in said report, without their being probated, it is considered and adjudged by the court, that said notes were valid claims against said estate; that they became due at a remote period from the date of letters testamentary; that they were secured by deed of trust on the real estate of the said testator; that the said executor has established their validity by producing them to the court, after their payment, to be cancelled, and it is therefore ordered and adjudged by the court, that said executor be. credited therewith, or the amount paid by him thereon, as shown by said report, and the report heretofore filed by said executor, and that the same be classed as of the seventh class, pursuant to the statute in such case made and provided. ”
    The appellant filed her exceptions to this report, questioning the correctness of the payment of the Haskell notes, and some attorneys’ fees, amounting to $50, and some other items in his account. The county court overruled the exceptions and approved the report, from which judgment the appellant appealed to the circuit court. The circuit court approved of the report, except as to the payment of $50, attorneys’ fees, and as to payment of part of the Haskell claim. As to that claim, the circuit court held, that as the executor had not presented the claims paid by him to Lucy A. Haskell, and had them allowed within two years from the grant of letters, he was improperly credited with the amount paid her; but as he had sold the eighty acres of land securing payment of these notes, for the sum of $3440, he should be subrogated to the rights of Lucy A. Haskell to that amount, and should be charged only with the difference of the amount paid, which was $1928.83. The executor paid the notes without their being presented to the county court and allowed. Two of them were paid within the two years from the grant of letters, and the other three after that time, but two of them before they were due. There was no dispute as to the genuineness of the notes or the bona-fides of the debt. From this order of the circuit court the appellee appealed to the Appellate Court for the Third District, where the judgment of the circuit court was reversed, and the cause remanded. From this last judgment the appellant prosecutes this appeal.
    Mr. James M. Truitt, for the appellant:
    It will be seen that only two of the Haskell notes were paid by the executor within two years after the grant of letters, and the other three after that time, and that none of them were exhibited to the court, and then only as vouchers to reports, and not as claims, until after the two years had elapsed. Under the statute of 1845, the presentation of a claim to the executor within the two years, prevented the bar of the two years’ limitation, but the statute of 1874 requires that the demand shall be exhibited to the court within the two years. Curry v. Mack, 99 Ill. 606; Wallace v. Gatchell, 106 id. 315.
    Section 70 of the act of 1874 provides that all demands not exhibited to the court within the two years shall be forever barred, etc. Section 71 provides that all claims allowed by the court shall be classed and paid by the executor, etc. Section 72 provides that when an executer has a demand against his testator’s estate, he shall file his demand the same as other persons, etc. Section 73 provides that the county court shall make an entry of all demands against estates, classing them as above provided, and file and preserve the papers belonging to the same.
    If the executor pays a claim before its allowance, the court must require him to establish its validity, by the like evidence that is required in other cases, before the same is classed, and he be credited therewith. Under these provisions, a person having a claim against an estate must produce it in writing, (Harrison v. Lindley, 104 Ill. 245,) and exhibit it to the court within the two years. If the executor pays a demand against the estate before it has been exhibited, and allowed by the court, he takes upon himself all the burdens that the law imposes on the party who held the demand, Reitzell v. Miller, 25 Ill. 67; Walker v. Diehl, 79 id. 473; Bunnell v. Post, 25 Minn. 376.
    A mere stranger or volunteer can not, by paying a debt for which another is bound, be subrogated to the creditor’s rights in respect to the security given by the real debtor. Hough v. Life Ins. Co. 57 Ill. 318; Beaver v. Slanker, 94 id. 175; Young v. Morgan, 89 id. 199; Sheldon on Subrogation, sec. 1240.
    Messrs. Lane & Cooper, and Mr. C. W. Bliss, for the appellee :
    The statute authorizes an executor or administrator to pay claims against the estate before their allowance, but by section 73 he is required to establish the validity of such claims, by like evidence as is required in other cases, before the same is classed and he is credited therewith; but this does not require him to present his report within two years. Section 72 refers to claims held by the executor in his own right, and has no application to claims that he has paid. If this is not true, there was no sense in adding section 73. An executor paying a claim with the money of an estate does not simply stand in the place of the creditor whose claim he has paid, in a court of law. It is a discharge of the claim so far as the creditor is concerned, and the executor could not have it formally allowed as a claim in his favor. People v. Phelps, 78 Ill. 147; Jones & Cunningham’s Probate Practice, 113.
    The two years’ limitation does not run against executors’ accounts or reports. Monroe v. Holmes, 13 Allen, 111; Ames v. Jackson, 115 Mass. 509; Dickson v. Arms, 8 Pick. 396.
    As to the right of subrogation as to the three notes paid after the bar of the statute, see Gaw v. Hoffman, 12 Gratt. 628; Kinney v. Harvey, 2 Leigh, 70; Smith v. Haskins, 7 J. J. Marsh. 402; Pierce v. Allen, 12 R. I. 570; McNeill v. McNeill, 36 Ala. 109; Feemsker v. Goode, 12 S. C. 573.
    That the county court has equitable jurisdiction, see Moore v. Rogers, 19 Ill. 347; Dixon v. Buel, 21 id. 203; Hurd v. Slaten, 43 id. 348; Garvin v. Stewart, 59 id. 229; Wadsworth v. Connell, 104 id. 369; Brandon v. Brown, 106 id. 519.
    It may be that the executor should not have charged himself with the entire proceeds of the sale of the land, but only the sum actually received by him over and above the incumbrance, as this was the only assets which came into his hands.
   Mr. Justice Shops

delivered the opinion of the Court:

Appellee, as executor of the estate of Ira Millard, deceased, presented to the county court of Montgomery county, his report. Five exceptions were filed thereto by appellant, which were severalty overruled by the county court, and an appeal taken by appellant to the circuit court. In the circuit court the first and third exceptions were overruled, and appellant excepted. The second exception was sustained as to the sum of $1928.83, and that sum disallowed and overruled to the extent and amount of $3440, to which ruling both parties excepted. The fourth exception was sustained in respect of two §25 items for attorney’s fees, and overruled as to the residue, to which no exception was saved. The fifth exception ivas overruled without prejudice to appellant, and she excepted. An appeal was prayed by both parties, but was perfected by appellee, only. His appeal, as perfected, is from the order of the circuit court made upon the second and fourth exceptions .only, in the rejection of the items mentioned. In the Appellate Court, appellee there, the appellant here, filed cross-errors, assigning as error the orders of the circuit court overruling the first, third and fifth exceptions, and partial overruling of the second and fourth exceptions, as indicated. It is insisted that she has the right to file cross-errors questioning any ruling of the circuit court upon the report of the executor, and is not limited to the orders from which the executor appealed. The contention is, that the appeal by the executor brought the entire record into the Appellate Court for review'. So much of the order of the circuit court as sustains the second exception, was reversed by the Appellate Court. The case is brought here by the appeal of Phoebe A. Millard, who now assigns for error this judgment of the Appellate Court,, as well as its refusal to sustain her cross-errors.

We are of opinion that the position of appellant is not tenable. In Curts v. Brooks, 71 111. 127, it is said: “The order of approval of a part of the report was a distinct and complete.. judgment, separate from the other, rejecting his claim for money paid out by him. * * * The order rejecting the claim of the- administrator was a separate and wholly-independent judgment, in now'ise connected with the other; and wdien it w'as appealed from, the circuit court only acquired jurisdiction over this judgment, and could only bear evidence and adjudicate upon the rejected items of the report.” In Morgan, Admr. v. Morgan, 83 Ill. 196, it is said, that “each item in the administrator’s account rendered is a separate claim, depending alone upon its own merits, having no connection with the other items. The judgment upon it must necessarily he a separate judgment, from which an appeal may be taken.” In the ease at bar, the item in the report for money paid by the executor on the Lucy A. Haskell notes, is wholly independent of the claim for money pa’id out on the legacy to Mrs. Taylor, and each of these wholly disconnected with the item for payment of the Haskell, Harris & Co. notes, and all distinctly separate from the claim for the attorney’s fees paid. Each item excepted to, depends upon a different state of facts, wholly disconnected with the facts upon which the others are based. Evidence pertinent to any one of them would have no relevanóy to the others. • The litigation of neither item involves investigation of the others. The allowance or disallowance of the disconnected items in the report are to be held as independent orders of the court.

The 124th section of chapter 3 of the Revised Statutes, as said in Morgan v. Morgan, supra, “clearly contemplates- appeals from any one order of the county court, made in favor or against administrators or executors.” The same would be true of the orders of the circuit court made on appeal to that tribunal. The right of appeal from the judgments and orders of the circuit court, in eases of administration of estates, is given by the same section that gives the' right of appeal to that court, by adding to the provisions of the act relating to appeals from the county court; the words, “and from the circuit to the Supreme Court, as in other cases.” Since the passage of the Appellate Court act, the' appeal manifestly lies to the Appellate Court, or this court, from the judgment of the circuit court, as provided in that act. An appeal brings up so much of the record, only, as relates to the judgment appealed from. Any other rule will lead to delay and uselessly expensive litigation. The policy of the law is to facilitate the speedy and economical settlement of estates. There is no hardship in the rule announced. If appellant felt herself aggrieved by any of the orders of the circuit court, she had the right to perfect an appeal therefrom. Having failed to do so, she can not now file cross-errors upon parts of the record not brought up by the executor’s appeal.

No exception having been saved to the orders entered upon the fourth exception, errors assigned thereon can not be considered. It follows, then, that the right of appellant to assign cross-errors -is limited to the order of the court upon the second exception.

The second exception questions the right of the executor to credit for payment of five promissory notes, given by his testator to Lucy A. Haskell, and aggregating at the date of payment $5368.83. The facts are, that the five promissory notes were made in the lifetime of Ira Millard, deceased, and were secured by a deed of trust on an eighty-acre tract of'his land. One of the notes, for $940.30, was paid by the executor May 8,1878, and on the 10th of July, 1879, he paid another thereof, amounting to $1040.58. These payments were each made before allowance, but within two years from the date of issuing of letters testamentary, and the notes were held by the executor as vouchers, and presented with his report after the expiration of such two years. The remaining three notes, amounting to $3387.95, were paid out of the proceeds of the sale of the land upon which they were secured. The will of Ira Millard, deceased, provided, that if the personal estate should prove insufficient, the executor should sell sufficient of the real estate of the testator to complete the payment of debts. The executor had the eighty-acre tract incumbered by the trust deed, appraised, and on the 6th of March, 1880, under the power given in the will, sold said tract, at public sale, for $3440. At the sale, the executor publicly announced, and agreed with bidders, that the incumbrance should be paid out of the proceeds of the sale, so that the purchaser would acquire title disincumbered from the lien of the trust deed. The executor, from the money derived from the sale, paid the three notes, and discharged said lien. This left in his hands* as assets of the estate derived from such sale, the sum of $52.05. Instead, however, of charging himself with the sum actually received, he charged himself, in his report, with the amount for which the land was sold, and asked credit for the amount paid to remove the incumbrance. This credit of $3387.95 is also included in the second exception, the exception thereto being overruled by the circuit court. The cross-errors assigned by appellant, in the Appellate Court, question the correctness" of this ruling.

Some, criticism is made by counsel upon the consideration of the latter branch of the question, in view of the holding that the order disallowing the items for the payment of the two notes first paid, was a separate order from the other, subrogating the executor to the rights of the payee of the three notes last paid. It will be observed, that the subrogation allowed by the circuit court, extended not only to the amount of the three notes, but to the full amount for which the land sold, and, therefore, the right to payment of a part of the item appealed from, brings directly in issue the right to appropriate the proceeds of such sale. The cross-errors assigned properly question the correctness of the judgment of the circuit court in that respect.

Appellant insists that the executor having failed to exhibit for allowance wdthin the two years’ limitation, the two notes first paid by him, is not entitled to be credited with the amount paid thereon, and the circuit court so held. It is conceded that the notes were presented to him, and paid, before the statutory limitations had expired, but were- not allowed against the estate. We are referred to very many cases, mostly from other States, but none of which can be said to control the questions here involved. The cases of Reitzell v. Miller, 25 Ill. 67, and Walker et al. v. Diehl, 79 id. 473, are relied upon by counsel as sustaining the contention of appellant. This question was not before the court in either of those cases. In the former case, the question under discussion was, the power of the administrator to submit claims against the estate to arbitration. In the other, the court is discussing the power of the county court to order the sale of lands of the intestate, upon claims not appearing to have been allowed against the estate. In each of , these cases it. is said, in substance, that when an administrator or executor pays a claim before allowance, he takes upon himself .the burden of proving up the claim and having it allowed, the. same as any other creditor. In one, it is said by way of illustrating the powers of administrators; and in the other, as showing the necessity of the. allowance of claims against estates before a sale of real estate could be made for their payment. When considered in the light of the cases, then under consideration, the language employed, especially in the latter case, states the law correctly. The administrator had paid claims against the estate, out of his private funds, and he certainly would be required to prove and have allowed such a claim, as any other creditor. In neither of the cases was the two years’ limitation in any way involved or discussed by the court.

Section 70, chapter 3, of the Revised Statutes, in providing for the classification of claims, provides that the seventh class shall be all other debts and demands which shall be exhibited to the court within two years from the granting of letters; “and all demands not exhibited within two years, as aforesaid, shall be forever barred, ” unless the “creditor” shall find other estate not inventoried, etc. Section 72 of the act provides: “When an executor or administrator has a demand against his testator or intestate’s estate, he shall file his demand as other persons, and the court shall appoint some discreet person to appear and defend for the estate, and upon hearing, the court or jury shall allow such demand, or such part thereof as is legally established, or reject the same, as shall appear just. ”

The conclusion would seem irresistible, if the claim paid off and discharged by the executor out of the assets of the estate became a demand in favor of the administrator, against the estate, within the meaning of the 7Oth section, that it must be proved and allowed under the provisions of section 72. The limitation applies to all debts and demands against the estate, and section 72 applies to all demands the executor or administrator has against the estate "of his testator or intestate. That such 'was not the intention of the legislature, is, we think,' manifest by a consideration of the following 'section: “The county court shall make an entry of all demands against estates, classing the same as above provided, and file and preserve the papers belonging to the same. If 'an executor or administrator pays a claim before the same is allowed, as aforesaid, said court shall require such executor or administrator to establish the validity of such claim by like evidence as is required in other cases, before'the same is classed, and he be credited therewith.” To the end that there inay be a speedy settlement of estates, the law requires presentation of all claims within two years from the issuing of letters, -and this provision applies as well to executors and administrators having demands, as to others. When the demand has been paid by the executor, it is extinguished, and is, in no just sense, a demand against the estate. All that remains to be done is to adjust the accounts of the executor or administrator. Such claims, when paid out of the assets of the estate, when their validity is shown, as required to establish the validity of the claims against the estate, entitles the administrator to be'credited -for expenditure of so much of the estate as claims of the saíne class'will be entitled to, pro rata, on final settlement.

The case of The People v. Phelps, Admx. 78 Ill. 147, is a clear recognition of the right of the executor to pay claims out of the assets of the estate within two years, and subsequently be allowed therefor. It is there said by the court: “It was "proven the claims were just, and having been presented to the administratrix within the time limited by the statute, she could, if the condition of the estate would warrant it, pay them, and afterwards have them allowed, which was done in this case.” It does not appear in that case, as reported, whether the credit was allowed to the administratrix before or after the expiration of the period of limitation. The administrator or executor has no power or right to admit or adjust a claim, or to settle its validity so as to bind the estate, (Reitzell v. Miller, supra,) and, therefore, in paying a claim against the estate, he is administering, he assumes the burden of satisfying the court of its validity. When he has done this, he has complied with the requirements of the statute, and it is the duty of the court to classify the claim, and allow him credit for having expended so much of the funds of the estate as can be applied pro rata in payment of such claim, in the due and proper administration of the estate. (The People v. Phelps, Admx. supra.) It is not material whether the payment is reported and proof of the validity'of the claim made before or after the time limited by the statute for the presentation of claims. It will frequently be the case that the county court can not know whether'such claims shall be paid in full or not, until after the two years within which claims may be presented have expired, and creditors in the class to which the particular claim belongs, can be paid in full or not, so that it will be impracticable to give the administrator the ■ proper credit until that time has elapsed. Full power is given that court to compel reports to be made, and to coerce settlements of estates.. We have already seen that the executor is entitled to be credited with the full amount of the notes paid out of the funds of the estate, if the estate shall prove solvent, without applying a portion of the amount derived from the sale of the land thereon, under the doctrine of subrogation, as ivas done by the circuit court.

In regard to the second branch of the order upon the second exception, it is contended that the executor should be charged with the amount of the sale, but should receive no credit for the money paid to remove the incumbrance from the land; that he having charged himself, must show himself entitled to credits therefor, or account to the estate for it, and that as the notes had not been presented to the county court for allowance, and the Statute of Limitations had barred them, he could not pay them and receive credit therefor. It is insisted, with much force, that the right of the executor to be subrogated to the rights of the payee of the notes is untenable, and also, if the right existed, that the equitable powers of the county court do-not extend to the application of the doctrine of subrogation. It will not be necessary to discuss those questions, for, without invoking that doctrine, upon other grounds the right of the executor to be credited with the amount of the three notes paid from the proceeds of the sale of the land, clearly exists. Clearly, the doctrine of estoppel can not be invoked against the ekeeutor. Nothing is shown to have been done by devisee or creditor that wrould have been omitted, nor anything left undone by any one upon the faith of his report, nor has the position of any one been changed in consequence. Equitable estoppels can only be set up to prevent injustice, not to perpetrate it. By the report, in which he charges himself with the proceeds of the sale of the land, he shows the payment of the incumbrance thereon.

The county court, in the settlement of estates, is vested with equitable as well as legal powers. In case of mistake or accident, by which the administrator or executor is charged in his report with too much or too little, the court will be authorized to ascertain the true facts, and correct the report as the facts may justify and warrant, and charge the executor or administrator with the amount he justly owes. (Dixon v. Buell, 21 Ill. 203; Wadsworth v. Connell, 104 id. 369; Brandon et al. v. Brown, Exr. 106 id. 521.) In the adjustment of the accounts of executors, administrators and guardians, the county court has equitable jurisdiction, and may adopt equitable forms of procedure. (In re Steele, Guardian, 65 Ill. 326; Hurd v. Slayton, 43 id. 348; Brandon v. Brown, supra.) Upon the presentation of the report by the executor in this case, if, upon the face of the report, it appeared, or by extrinsic evidence was shown, that the executor had charged himself with a sum not in his hands, or properly not chargeable, the court had the power to ascertain' the true facts, and charge the executor with the amount justly chargeable against him, and no more. This the court did, and in so doing was amply sustained by the authorities cited.

That the trust deed was a valid incumbrance upon the land, and the power and right of the executor to make sale of lands, are not controverted. It is apparent that the devisee must take the land subject to such incumbrance. The executor had power to sell the interest of the devisee to complete the payment of debts justly due from the estate, and not barred by the Statute of Limitations. The only interest the devisee could have, would be, that the land should sell for its full value, so that the residue of her estate might be relieved, as far as practicable, from liability. It is shown, and not controverted, that the land brought all it was worth. The executor discharged the lien of the trust deed, not out of funds of the estate, but' by an application of so much of the proceeds of the sale thereof as was necessary to pay the same, and no more. Whether the indebtedness secured by the trust deed was barred from probate or not, neither the executor nor the devisee had any legal or equitable right to the money derived from the sale of the land, against the legal holder of such indebtedness. The devisee was in nowise injured by the sale thus made, or the application made of the proceeds. It was understood at that sale, that so much of the purchase money as should be necessary would be applied in extinguishment of the incumbrance, and when paid by the purchaser to appellee, he would hold it in trust, merely, and a court of equity would compel its application in his hands to the payment of the debt secured by the trust deed. The only money that came into the hands of the executor, as such,.and which he was bound to account for as assets of the estate derived from the sale of this land, was the residue after paying, the prior subsisting incumbrance thereon. This was the sum of $52.05. The result would have been precisely the same if he had left the incumbrance to be paid by the purchaser, instead of becoming the medium through which the same was discharged. By his report, the county court was apprised of the exact state of the account, and had the right to treat the report of the difference between the amount of the sale and the amount taken, therefrom to pay the incumbrance, as the amount which should have been accounted, for as assets in hand, which it did, or the court could have stricken out these items, and compelled the report of the amount actually received by the executor.

Finding no error in this record for which the judgment of the Appellate Court should be reversed, the judgment of that court will'be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Chief Justice Scott

license: Public Domain

text:
    The City of East St. Louis v. James O’Flynn.

      Filed at Mt. Vernon January 25, 1887.

      1. Eminent domain—taking or damaging private property—vacating street, as respects property not abutting thereon. The vacating of a public street not adjoining or contiguous to a particular lot, which does not deprive the owner of access to or egress from such lot, can in no sense be construed as either taking or damaging private property for public use, within the meaning of those terms in the constitution. Nor will the grant of the use of the ground over which the street was laid, to a railway company, for the use of its road, render the city liable for damages to the owner of such lot.
    2. Action—whether a private action will lie for an injury of a public nature. For an injury to or an obstruction of a public and common right, no private action will lie for damages of the same kind as those sustained by the general public, although the private injury be much greater in degree.
    3. So a lot owner in a city can not maintain an- action against the city for the vacation of a portion of a public street not bordering upon his lot, and not necessary to afford him access thereto. The damage, in such case, to his lot, though in a greater degree, is of the same nature as that to all other property in the city.
    , 4. Same—liability of a city for acts of railway company operating its road within the corporate limits. Where a railway company is authorized by ordinance to build its road within a part of a street which is thereby legally vacated, the city can not be held liable to a lot owner whose property is not adjacent to the vacated street, for any act done by the company not authorized by such ordinance.
    5. Practice—directing what the verdict shall be. Where, under the undisputed facts of a case, the plaintiff can not recover, the court should, on motion of the defendant, exclude all the evidence, and instruct the jury to find for him.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the City Court of East St. Louis; the Hon. William P. Launtz, Judge, presiding.
    Mr. George Pollard, and Mr. George F. O’Melyeny, for the appellant:
    The claim of appellee for a recovery, is based, first, upon chapter 146, (Starr & Curtis’ Stat. 2446,) which provides, that- “when property is damaged by the vacating or closing of any street or alley, the same shall be ascertained and paid as provided by law;” and second, upon the constitutional provision that “private property shall not be taken or damaged for public use without just compensation. ’’
    The damage provided for in the statute above referred to, is limited to the owners of lots fronting on that portion of the street or alley vacated. Littler v. Lincoln, 106 Ill. 353; Chicago v. Union Building Association, 102 id. 379.
    In no case has this court gone further than to hold that a lot owner is entitled to recover for injuries caused to his propperty by the obstruction of an adjacent street, by which direct access to bis premises has been cut off or obstructed. Such was the ease of Rigney v. Chicago, 102 Ill. 64, Railroad Co. v. Ayers, 106 id. 511, Provision Co. v. Chicago, 111 id. 651, and Chicago v. McDonough, 112 id. 85. In all of these cases the plaintiff was obstructed in the approach to his lot from the adjacent streets,—that is, the street upon which his lot fronted, or the next cross-streets. If Church street, in this case, had been vacated, the access to plaintiff’s lot from that direction would have been cut off, and the doctrine of the above cases would apply.
    Mr. J. M. Freels, and Mr. L. H. Hite, for the appellee:
    Property is not limited to the tangible subject matter of it, but includes the right of user and enjoyment of it; and when the impairment or destruction of such right damages the owner in excess of that sustained by the general public by the construction and use of a public improvement, the law gives him an action for such injury. Rigney v. Chicago, 102 Ill. 64.
    The earlier cases, which seemed to hold that it was essential to the right of action to prove some direct physical injury to the subject- of the property itself, are no longer held.as stating the' true rule, as they are said, in Railroad Co. v. Ayers, 106 Ill. 511, to be overruled by Rigney’s case, supra, and subsequent ones. See, also, Provision Co. v. Chicago, 111 Ill. 651, and Chicago v. McDonough, 112 id. 85.
    The damage complained of, and proved, and for which the recovery was had in this ease, is a damage special and peculiar to the plaintiff,—a damage which he has suffered to his property, different from and in addition to that sustained- by others and the general public,—and for this the law gives redress. Rigney v. City of Chicago, 102 Ill. 78; Stack v. City of East St. Louis, 85 id. 377; City of Pekin v. Brereton, 67 id. 477; Railroad Co. v. Ayers, 106 id. 511.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

This action was brought in the city court of East St. Louis, by James O’Flynn, against the city of East St. Louis, to recover damages alleged to have been occasioned to a lot of ground owned by him, by the wrongful conduct of defendant. It is recited in the declaration, defendant is an incorporated city, and had exclusive control of certain streets within the corporation limits, viz., Trendly street, Church street, and Pratt street, running at right angles with the Mississippi river on the eastern bank, and from thence eastward to the old bed of the river, near the mouth of Cahokia creek, and also Front, Second, Third and Fourth streets, running parallel with the river and with each other, and also all alleys lying within the district bounded by the streets named; and the duty of defendant to keep such streets and alleys open, clear of obstructions, and in good repair, for the use of the inhabitants of the city and adjacent owners, is then averred in the usual ample form. It is further set forth, that plaintiff is the owner and was in possession of lot 9, in block 28, of the Ferry division, fronting west on Third street, and east on a thirty-foot alley, on which there is a frame dwelling house, with out-buildings and other valuable improvements, and, by way of a breach of duty on the part of defendant, it is then averred the city, by an ordinance entitled “An ordinance vacating certain streets and alleys lying between Front street and Fourth street, seventy feet northwardly therefrom, and Church street, in Ferry division,” authorized the Cairo and St. Louis Railroad Company to take possession of all that portion of said streets and alleys lying between Front and Fourth streets and a line parallel with Trendly street, and seventy feet northwardly therefrom, and the entire length of Church street, and permitted the railroad company to make a certain use of the land lying within or bounded by the streets named, all of which alleged wrongful acts, it is averred, injuriously affect plaintiff’s property.

Section 3 of the ordinance referred to in the declaration, and given in evidence by plaintiff, is as follows: “That all streets and alleys lying between Front and Fourth streets, and between a line running parallel with Trendly street seventy (70) feet northwardly therefrom, and Church street, of said Ferry division, be and the same is hereby absolutely vacated. ” The other sections of the ordinance prescribe the terms and conditions upon which the railroad company may occupy and improve the lands adjacent to the streets and alleys vacated, and including, of course, the streets and alleys; but in the view it is thought should be taken of the case, it will not be necessary to state their contents in detail.

Only the general issue was pleaded by defendant, and on the trial of the cause the jury found the issues for plaintiff, and assessed his damages at $So0. The -judgment rendered upon the verdict was affirmed in the Appellate Court for the Fourth District, and a majority of the judges of that court having made the proper certificate to enable it to do so, defendant brings the case to this court on its further appeal.

There is no suggestion the streets and alleys mentioned in the ordinance were not legally vacated. No one makes any complaint on that score. Plaintiff’s lot is situated in another block. Although the lot in controversy fronts on Third street, it is some distance from that part of Third street that is vacated by the city ordinance. The only question that can be considered in this court is purely a question of law. It is, can defendant, as a matter of law, be held liable to the plaintiff for damages resulting from the vacation of streets and alleys between Front and Fourth streets,— the vacation being in another block in the city than that in which plaintiff’s property is situated.

Much of the argument in support of plaintiff’s right to recover in the case, proceeds on the erroneous assumption the property has been “taken or damaged” for public use, and is therefore within the constitutional provision that “private property shall not he taken or damaged for public use without just compensation.” The proposition as formulated by counsel is, this property has been so damaged, and to the extent of this injury it has not only been “damaged,” but “taken, ” within the strict letter and spirit of this provision of our constitution. The difficulty is, the position taken on this branch of the case has no support-in anything contained in this record. It is not true, in fact or in law, that defendant has either taken or damaged plaintiff’s property for “public use.” It has taken no property for public-or any other use. That of which complaint is made is vacating- certain streets. In no sense can that act be construed as either taking or damaging private property for public use, as those terms are used in the constitution. It is true, the vacating ordinance contains many provisions, and, perhaps, a contract between the city and the railroad company in relation to the use to be made of the vacated streets and alleys, and the land owned by the railroad company that abutted on such streets and alleys; but that fact does not at all aid plaintiff’s right of recovery in this action, if the streets and alleys wrere legally vacated, as they seem to have been.

It therefore seems plain, if plaintiff can recover at all, it must be under that provision of section 1 of the act in force July 1, 1S74, in relation to “vacation of streets, alleys and highways,” which provides, “when property is damaged by the vacation or closing of any street or alley, the same shall be ascertained and paid as provided by law.” The rule of law on this subject was stated by this court in City of Chicago v. Union Building Association, 102 Ill. 379, where it was said, for any act obstructing a public and common right no private action will lie for damages of the same kind as those sustained by the general public, although in a much greater ,degree. Accordingly, on the authority of that case, it was ■ held in Littler v. City of Lincoln, 106 Ill. 353, the rights or privileges of other proprietors in the plat, which the statute protects, are necessarily legal rights and privileges, and such parties can not, therefore, be affected by the closing of streets not adjacent to their property, nor directly affording access thereto and egress therefrom. The facts of the case being considered bring it precisely within the principle of the cases cited. Here, plaintiff’s lot is not adjacent to the streets or alleys vacated. It is in another block. • The access to and egress from his lot are not affected by the vacating ordinance passed by the city. The street in front and the alley in the rear of his property remain open as before, affording the same access to and egress from it. The inconvenience that would be occasioned to plaintiff in going from the street in front of his house to a particular part of the city, on account of vacating and closing up certain streets and alleys in another block, is the “same kind” of damage that would be sustained by all other persons in the city that might have occasion to go that way, and although the inconvenience he may suffer may be greater in degree than to any other person, that fact would not give him a right of action. The court very properly instructed the jury, for defendant, “that, for the vacation mentioned in that ordinance, the defendant is not liable to plaintiff for any consequential damage that may have resulted to his lot therefrom, and defendant is not liable, in this action, for anything alleged in the declaration in this case done by the St. Louis and Cairo Railroad Company, which said company was not authorized to do by said ordinance. ”

Leaving out of view all that is alleged to have been done by the railroad company that affects plaintiff’s property, as the jury were instructed to do, there remained no ground of. recovery against the city for anything it had done in vacating streets and alleys in a part of the city away from plaintiff’s property. Whatever, if any, damage he may have sustained by reason of the vacation of such streets and alleys, it was the “same kind,” although it might have been in a greater degree, as that sustained by the general public; and the law seems to be well settled, in this State at least, by the eases cited, that for such damage a party can have no action. In the view taken of the law as applicable to the facts, the court ought to have excluded, as it was asked to do, all the evidence in the case, and instructed the jury to find a verdict for defendant.

The judgment of the Appellate Court will be reversed, and the cause remanded to the city court of East St. Louis. ,

Judgment reversed.


author: Mr. Justice Magruder

text:
    The Ohio and Mississippi Railway Company v. The People ex rel. John L. Black, Collector.

      Filed at Mt. Vernon January 25, 1887.

    1. Road tax—as distinct from the “road and bridge tax.” The road tax provided for in section 83 of the act of 1883, relating to roads and bridges, is a separate and distinct tax from the road and bridge tax mentioned in section 119 of the Road and Bridge act, and the provisions of the latter section have no bearing upon the question of the validity of a tax levied under the former.
    2. Same—entry of record as to levy of road tax—omission to make the entry at the time—omission supplied by amendment afterwards. The fact that the county clerk failed to enter upon the record of .the county hoard an order for the levy of district road taxes at the September meeting, at which time the levy was actually made, but amended the record at the December meeting, by order of the board, so as to show the levy in September, the amendment being before the delivery of the tax books, will not invalidate such tax, the informality not affecting the substantial justice of the same.
    3. Same—levy of road tax upon railroad track—of the valuation, apportionment, etc. The county clerk is not required to distribute the valuation of railway track, as fixed by the State Board of Equalization for the preceding year, in each road district, as the basis for the levy of the road district taxes thereon. He is only required to distribute such valuation in each of the towns in his county through which such track is located. The word “districts, ” in section 110 of the Revenue act, refers to school districts, which are mentioned in sections 81 and 82 of the same act, and has no reference to road districts.

      4. The commissioners of highways, in making the lists of taxable property for the several road districts in their towns, should specify the number of feet of railroad track in each district, and its valuation in the preceding year. Having obtained the length and valuation of such track in their town from the county clerk, they can apportion the same between the several districts over which such track runs.
    5. Such district valuation will bear the same proportion to the town valuation, as the length of the track in the district bears to the whole length of the track in the town. This apportionment does not require the exercise of any discretion. The service is merely ministerial. Any error in such apportionment not affecting the substantial justice of the tax is not material.
    6. There is nothing in the statute which requires the commissioners of highways to give the number of acres as well as the number of feet contained in the railroad track in each road district.
    7. Same—of the description of railroad track. A delinquent list filed on application for judgment against a railroad track for road district taxes, described the property as follows:' “Ohio and Mississippi Railroad Company railway track: A strip of land extending on each side of said railway track, and embracing the same, together with all the stations and improvements thereon, commencing at the point where said railway crosses the northern and eastern boundary line of Clay county, in entering said county, and extending to the point where said track crosses the southern and western boundary line of said county, in leaving the same, containing 594.76 acres; district road tax and back district road tax, for the year 1883-1884, to-wit,” giving a statement of the road taxes in seven different townships: Held, that the description of the railroad track was in conformity with the requirements of the law.
    8. Same—of the judgment. It is not necessary to render a separate judgment against each separate portion of railroad track located in each separate road district, when the road tax in none of the districts is paid, but the judgment may be against the entire track in the county, for all the taxes levied in the several districts. The whole line of the railroad in the county constitutes but a single and entire property. If any road tax is paid, that part of the road so taxed will not be sold for the road tax due on the track in other road districts.
    9. Collector's return—as evidence of the legality of taxes. On application for judgment for taxes, the collector’s return is prima facie evidence of the legality of the tax sought to be collected, and of its due and proper assessment and levy, and that it is due and unpaid; and the burden of proof is on the objector to judgment to show that the tax is not legal and proper.
    10. Road districts—change in boundaries. Although the Road law of 1883 contains no provision for the formation of road districts, as in the act of 1879, it recognizes their existence, and their boundaries may be changed by the commissioners of highways whenever they may consider it proper.

      Writ of Error to the County Court of Clay county; the Hon. Gr. A. Hoff, Judge, presiding.
    Messrs. Pollard & Werner, for. the plaintiff in error.
    Mr. D. C. Hagle, State’s Attorney, and Mr. J. A. Barnes, for the defendant in error.
   Mr. Justice Magruder

delivered the opinion of the Court:

At the May term 1886 of the county court-of Clay county, the collector for that county applied for judgment for certain delinquent road taxes. Plaintiff in error filed objections to the application, and the case is brought before us by writ of error for the purpose of reviewing the action of the county court in overruling those objections, and entering judgment against the “railroad track” of the plaintiff in error in said county for certain district road taxes.

The first objection is, that the county clerk had no authority to extend the tax against the Ohio and Mississippi Bailway Company in said county, or for any town, or road district therein, as the same is extended, and that the county board never authorized the extension of such taxes by the county clerk on the tax books, as is required by the statute, for any of the road districts in said county. The record of the meeting of the board of supervisors of Clay county in September 1885 shows the following entries: “On motion the county clerk is ordered to extend fifty cents.on the $100 worth of property, as a county tax for the year A. D. 1885.” “On motion the county clerk is ordered to.extend fifty cents on the $100 worth of property as a special railroad tax [and all other taxes certified by the proper authorities] for the year A. D. 1885.” On the trial below, the county clerk, who was called, as a witness, by plaintiff in error, testified, that the above words, which are enclosed in brackets, were inserted by him at the December meeting of the board of supervisors-in 1885 “at the suggestion of said board made at said December meeting thereof. ”

Section 83 of the act of 1883, in relation to “roads and bridges, ” (Starr & Curtis’ Stat. chap. 121, p. 2161) is substantially the same as was section 16 in the act of 1879 upon the same subject. (Bradwell’s Laws of 1879, p. 196.) We. have decided, that the road tax, provided for in section 83, is a separate and distinct .tax from the road and bridge tax, mentioned in section 119 of the “Roads and Bridges” act. (Starr & Curtis’ Stat. p. 2168; Mee v. Paddock, 83 Ill. 494; The People v. Suppiger, 103 id. 434; Wabash, St. Louis and Pacific Railway Co. v. Binkert, 106 id. 298.) The tax, objected to in this case, is the one, referred to in section 83. Hence the provisions of section 119 have no application, and the references of counsel for plaintiff in error to those provisions have no bearing upon the questions involved.

The 110th section provides, that every overseer of highways shall deliver to the supervisor of his town etc., at least five days previous to the annual meeting of the board of supervisors, the list furnished by the commissioners of highways, containing the land and personal property road tax, with an affidavit, etc. Section 117 provides, that it shall be the duty of the board of supervisors, etc. to cause the amount of arrearages of the road tax, returned by the overseer of highways, to the supervisors, as provided in section 110, to be levied on the lands returnable, and to be collected in the same manner, that other taxes of the county are levied and collected, etc. Section 121 of the Revenue act (Hurd’s Rev. Stat. of 1885, p. 1011) directs, that “the county board of the respective counties shall, annually, at the September session, determine the amounts of all taxes to be raised for county purposes etc. ”

The sole objection, which we understand counsel to urge against the orders, above quoted, is that the words, “and all other taxes certified by the proper authorities, ” were directed by the commissioners to be inserted in the record at the December meeting of the board, when they should have been so inserted at the September meeting thereof. This objection does not affect the substantial justice of the tax, and we think it is cured by the 191st section of the Revenue act, which provides, that “no error or informality in the proceedings of any of the officers, connected with the assessment, levying or collecting of the taxes, not affecting the substantial justice of the tax itself, shall vitiate, or, in any manner affect the tax or the assessment thereof. ” Similar defects have been held to be obviated by section 191 in the following eases: Buck v. The People, 78 Ill. 560; Chiniquy v. The People, id. 570; Moore v. Fessenbeck, 88 id. 422; St. Louis, Vandalia and Terre Haute Rialroad Co. v. Surrell, id. 535; Purrington v. The People, 79 id. 11; Thatcher v. The People, id. 597; Union Trust Co. v. Weber, 96 id. 346. It does not appear, that the amendment of its minutes by the board was not made before the twentieth day after the first day of December, and, if so, it was made before the books, upon which the amount of the taxes was to be extended, had been delivered by the clerk to the collectors. Rev. Stat. chap. 120, sec. 135.

We do not wish to be understood as holding, that the foregoing orders may not be objectionable on other grounds than that above indicated. We only decide, that the particular objection, made to them by plaintiff in error, is not a valid one.

The next objection, urged against the entry of the judgment, is, that the law required the road tax, in each road district, to be assessed on the lands and railroad property in that district, and that the valuation thereof was not distributed to any of the road districts by the county clerk, as assessed by the board of equalization for the previous year; in other words, that the commissioners of highways assessed the road tax upon a valuation, obtained in some other manner than that directed by the statute.

The Statement, made in the objection, is not true as matter of fact. By reference to the record, we notice that the commissioners of highways of the towns of Clay City and Louisville have made lists, containing a description of “railroad track, ” belonging to the Ohio and Mississippi Railway Company in certain, specified: road districts, “with-the valuation thereof set opposite the description of each tract * * * as equalized by the State Board of Equalization for the 'previous year.

Counsel, however, rely upon the testimony of the county clerk, who says, “that he did not distribute or ascertain the value of the railroad track of the Ohio and Mississippi Railway Company, as assessed by the State Board of Equalization for the purpose of taxation for the year 1884, or any previous year, in any of the said road districts in said county of Clay. ” He does not swear, that he.did not distribute or ascertain the value, etc., as assessed, etc. in each of the towns in said county. As this was all the law required of him, it will be presumed that he did his duty, there being no proof to the contrary. We do not understand, that the county clerk is obliged to distribute the valuation of the track in each road district.

The State Board of Equalization fixes the value of the whole “railroad track” of each railroad company in the State. The amount, so determined and assessed, is certified by the Auditor to the county clerks. “The county clerks shall, in like manner, distribute the value, so certified to him by the Auditor, to the county and to the several towns, districts, villages and cities in his county, entitled to a proportionate value of such railroad track. ” (Revenue act, sec. 110.) The word, “districts, ” as here used, refers to school districts, which are mentioned in sections 81 and 82 of the Revenue act. But even if it was the intention to include other districts besides school districts, we are satisfied, that no reference was here intended to “road districts.”

Section 10-of the act of 1879 in regard to roads and bridges in counties under township organization specified, that it should he the duty -of the highway commissioners “to divide their respective towns into so many road districts as they shall deem convenient, by writing, under their hands, to be lodged with the town clerk” etc. (Bradwell’s Laws of 1879, p. 194.) The present act of 1883 upon the same subject contains no provision in reference to the formation of such districts, although recognizing their existence in several sections, as in section 90, which provides, that “the commissioners of highways in each town shall' appoint as many overseers of highAvays, as there are road districts in the toAvn. ” The act of April 1873 in regard to roads and bridges in counties under township organization prescribed the same mode of organizing these districts, as is contained in the act of 1879. It does not seem probable, that the legislature would require the county clerk to distribute the valuation of railroad tracks in districts, whose boundaries were liable to be changed, whenever the higlnvay commissioners should consider it convenient to do so.

Moreover, section 41 of the Bevenue act, while requiring each railroad company to file with the county clerk a schedule, showing the length of its tracks in the county, “and in each city, town and village in the county, through or into which the road may run, ” does not require the length of such track in each road district to be shown.

We conclude, therefore, that the county clerk is only bound, under the statute, to distribute the valuation, as equalized by the State Board, to the various towns in the county, and not to the road districts in such towns.

The commissioners of higliAvays are officers of the town. The town clerk is ex-officio clerk of the board of highway commissioners. Under section 83 of the Boad law they “shall annually ascertain, as nearly as practicable, how much money must be raised by tax on real and personal property and railroad property known as ‘railroad track’ and ‘rolling stock’ for the making and repairing of roads only, to any amount

_:_:_ they may deem necessary, not exceeding forty cents on each $100 worth, as equalized and assessed by the State Board of Equalization for the purposes of taxation for the previous year, and shall levy and assess the same as a road tax against said property. ”

“The value of the railroad track shall be listed and taxed in the several counties, towns, villages, districts and cities in the proportion that the length of the main track in such county, town, village, district or city bears to the whole length of the road in this State.” (Bev. act. see. 43.) “Each county, city and town taxes the company on so much of this assessment (fixed by the State board) as the length of the track within that locality bears to the whole length of the track, assessed by the board.” State Bailroad Tax Cases, 92 U. S. Bep. 575.

The computations of the highway commissioners, made for the purpose of apportioning, among the road districts in the town, the valuation, distributed to the town by the county clerk, do not require the exercise of any discretion; the service is merely ministerial. Wilson, Receiver, v. Weber, 96 Ill. 454.

The words “distributed by the county clerk,” as found in the 84th section, can no more be construed as meaning a valuation distributed to each road district, than the words, “assessed by the State Board of Equalization, ” can be construed to mean, that the State board assessed the value of the portion of the track, lying in each road district.

It is not shown, nor is it claimed by plaintiff in error, that the tax on its whole track in any one town has been in any way increased by the apportionment of the valuation, upon which the tax is based, among the road districts of the town. The objection, now under consideration, does not, therefore, affect the substantial justice of the tax.

It is further objected, that the highway commissioners did not give the number of acres, as well as the number of feet, contained in the railroad track in each road district. It is sufficient to say, that , there is nothing in.the law, which required them to do so. While section 42 of the Eevenue act names counties, cities, towns and villages, it makes no reference to road districts. Section 84 of the Eoad act only requires the commissioners to state, in their lists, the names of the owners of the railroad track and the valuation thereof. To determine what portion of the valuation of the whole road, as fixed by the State Board of Equalization, belongs to the counties, towns or any less subdivision of territory, section 43 of the Eevenue act provides, that it is necessary to ascertain the proportion of the length of the track in such subdivisions to the whole length of the road in the State, and not the proportion of the number of acres in the one to the number of acres in the other.

Plaintiff in error makes the further objection, that “no application is made for judgment against any particular lands in any of the -road districts, of any township in said county, nor have the said lands been advertised as required by law. ”

On the trial below, the collector offered in .evidence the list of delinquent lands, with affidavit of publication, as follows: “Ohio and Mississippi Bail way Company, railway track: A strip of land, extending on each side of said railway track, and embracing the same, together with all the stations and improvements, thereon, commencing at the point where said railway crosses the northern and eastern boundary line of Clay county in entering said county, and extending to the point where said track crosses the southern and western boundary line of said county in leaving the same,- containing 594^%-acres.. District road tax and back district road tax for the years 1883-1884, amounting to.......and distributed as follows, toTwit: ” (then follows statement of amount of road taxes in seven different townships and affidavit of publisher.) The position of counsel is, that a district road tax, even though regularly assessed against the “railroad track” located in any road district, can not be extended by the county clerk against the entire railroad, -in the county; that such entire “railroad track” can not be sold for the non-payment of such road tax; that only the land in each district can be assessed for the taxes of such, district and only the land that is taxed can be sold- or forfeited for such tax. The objection, as applied to the facts and circumstances of this case, is without force.

The description of the railroad track in the delinquent list, as above quoted, conforms to the requirement of section 42 of the Bevenue act. The seven townships mentioned therein are the only townships in Clay county, through which the railroad track of plaintiff in error passes. It appears, that plaintiff in error has not paid the road tax, due from it, in any road "district in any one of said townships. . The road tax is unpaid, as against the whole of its line, that passes through Clay county. The judgment against the whole track in the county, containing 594T7^ acres, is a judgment for all the road taxes due from it in any part of the county. The portion of the track in one road district is not to be sold for the road tax, assessed against the portion of the track in another road district. The whole track in the county is to be sold for all the road taxes that are due therein. If plaintiff in error had proven that it had paid its road tax in any road district, the part of the track in that district would, doubtless, have been excepted from the whole track, against which judgment was rendered, but it did not do so. It was not necessary to render a separate judgment against each separate portion of the track, located in each separate road district". No road tax in any district having been paid, it could do the company no injury to render judgment for the whole tax against the whole track. How the whole tax, when collected, may be apportioned among the different towns or road districts is a matter of no special concern to plaintiff in error. The whole line of the road in the county constitutes a single, entire property. (Porter v. Rockford, Rock Island and St. Louis Railroad Co. 76 Ill. 561.) The delinquent list specifies fully, how the whole tax is to be distributed among the seven towns, and what the proportion is, which is due to each town.

The final objection of plaintiff in error is, “that the labor system has never been adopted in Clay county as required by law, nor in any of said townships.” (Act in regard to Roads and Bridges sec. 80; Starr & Curtis’ Stat. p. 2161.) There is no proof in the record to sustain this objection. The collector’s return is prima facie evidence of the legality of the tax, and of its assessment and levy, and that it is due and unpaid. (Chiniquy v. The People, 78 Ill. 570; Pike v. The People, 84 id. 80.) If the labor system had nevar been adopted, as alleged, the burden of proof was on plaintiff in error to show that fact. This it failed to do.

The judgment of the county court is affirmed.

Judgment affirmed.


author: Mr. Justice Sheldon

text:
    The County of Cook v. The Great Western Railroad Company et al.

      Filed at Mt. Vernon January 25, 1887.
    1. Railroad crossings—in cities, etc.—by what authority they may be established. The fifth paragraph of section 20 of the Railroad act of 1872, is an absolute grant of power by the State to railway companies to construct their roads across any public highway. It is only wjhere the railroad is to be constructed along or lengthwise of a highway, that the consent of the loeal authorities is necessary.
    2. Same—by whom the right may be questioned. The only authority that can call in question the right of a railway company to construct its track across or along a street or highway within an incorporated city or village, is such city or village. The county authorities can not even question the validity of an ordinance of a "city or village for the construction of a railroad within such city or village.
    3. Same—regulation of the use of streets by railway companies — by whom. The act of 1872 relating to cities and villages, confers upon them full authority to regulate the use of streets, to provide for and change the location, grade and crossing of railroads, to require railroad companies to fence their roads, to construct cattle-guards and crossings of streets, to keep the same in repair, to maintain flagmen at such crossings, to compel the roads to raise or lower their tracks, etc. This invests incorporated cities and villages with exclusive authority over the matter of railroad crossings over streets and highways within their limits, and excludes the jurisdiction of the county or town authorities.
    4. Chancery—hearing on bill and answer. Where a case in chancery ■ is heard on bill and answer, without replication, the ansiver must be taken as true.
    Appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    This is an appeal from a decree of the Superior Court of Cook county, dismissing a bill filed by the county of Cook, against certain railroad companies, to enjoin the construction of a railroad until compliance should be had with a resolution passed by the board of county commissioners.

      The bill of complaint, filed February 18,1886, alleged that on February 8,1886, the county commissioners of Cook county passed a resolution, containing the following among other provisions: “It is therefore ordered by the board of county commissioners of Cook county, that every railway company or corporation proposing to construct its railway across, along or upon any highway, road or bridge within this county, shall, before constructing the same, or in any manner interfering with the public highways, roads and bridges, make application to this board for permission so to do, which application shall be accompanied with a plat of the proposed road, showing at what point it shall intersect or run along or over any highway, road or bridge, and where it shall leave the same, and which application shall contain a concise statement as to the grade of the proposed road,—whether above or below the grade of the high-way it proposes to intersect or touch,—and the kind of culverts, sluices or cattle-guards proposed to be constructed by it. And be it further ordered, that the culverts, sluices and cattle-guards necessary to be used in the construction of such proposed road, shall be constructed so as not unnecessarily to impair the usefulness of the highway, road or bridge which it proposes to run along, across or upon, and that the work to be done in the premises shall be done in conformity with the plans submitted, and to the satisfaction of this board. ” The bill alleged, that the defendant companies, without complying with this resolution, had taken possession of certain highways in the towns of Maine and Wheeling, in Cook county, and that no plat of the road had been made and recorded, as required by chapter 109 of the Eevised Statutes, relating to plats. The bill prayed that they might be directed to put such highways into such repair and condition as the same were when they entered upon them, and that they be enjoined from entering' upon, taking possession of, or in any way interfering with the public highways of the county, until they should comply with the conditions of the above resolution. No service was had upon the Great Western Bailroad Company,' or the Wisconsin Central Bailroad Company, (of Illinois,) and no appearance was entered by either of these companies.
    On the 29th of April, 1886, separate answers, denying all the material allegations of the bill, and duly verified, were filed by the Chicago and Great Western Bailroad Company, the Wisconsin Central Bailroad Company, (of Wisconsin,) and the Chicago and Wisconsin Bailroad Company.
    The answer of the Chicago and Great Western Bailroad Company averred that it was organized- and incorporated under an act of the General Assembly, entitled “An act to incorporate the LaSalle and Chicago Bailroad Company,” approved February 28, 1867, (2 Private Law's, 1867, p.-728,) to construct a railroad from the city of La Salle to the city of Chicago; that on- or-about December 12, 1872, the- name of the corporation was, by a vote of its stockholders, changed to that of the Chicago and Great Western Bailroad Company. It denied that it had constructed the railroad described in the bill, through the towns therein named, and averred that the same had been constructed by the Chicago and Wisconsin Bailroad Company. It denied that it had taken or intended to take possession of any public highways, either in the towns of Maine or Wheeling, or elsew'here within the county of Cook. It averred that it was now constructing its line of railroad in the city of Chicago, and in the village of Cicero, in Cook county, and that in so constructing its line, it crossed certain streets and highways in said city and village, but that such crossings w'ere duly authorized by ordinance of the city and village, respectively, the same being incorporated under the act entitled “An act to provide for the incorporation of cities and villages,” approved April 10, 1872.
    The Wisconsin Central Bailroad Company, (of Wisconsin,) by its answer, denied that it had constructed, or proposed to construct, any railroad within Cook county.

      The Chicago and Wisconsin Bailroad Company, by its answer, averred that it was incorporated March 2,1884, under the general Bailroad act of March-1,1872, being chapter 114 of the Be vised Statutes, for the purpose of constructing a railroad from the south division of the city of Chicago to the north line of Illinois, at or near the county lines between the counties of McHenry and Lake, and that it had constructed the line of railway described in the bill, through the towns of Maine and Wheeling, being a part of the line which it was authorized to construct. It averred, that in constructing such line it had not taken possession of or obstructed such highways, and had not constructed its line along or in such highways, but had crossed the same at such points as were intersected by its road; that it completed the laying of its tracks through the towns in question, about-March 1, 1886; that by-reason of the ground being frozen, it was not able, then, to completely restore the crossings to their former condition, but that it did construct the necessary sluices, culverts and cattle-guards at all such crossings, and was now engaged in completing such crossings and restoring the highways to their former.condition, and that such work would, within a short time, be entirely completed, and that it intended, at .all times, to keep such crossings in repair, and to fully comply, in that respect, with all requirements of the statutes of Illinois. It denied that it had not caused a plat of its road to be made, and averred that such plat had recently been completed, and recorded in the office of the recorder of deeds.of Cook county.
    May 17, 1886, complainant amended its bill, by inserting, before the prayer for relief, certain allegations, as follows: It averred the incorporation of the LaSalle and Chicago Bailroad Company by an act approved February 28, 1867, and charged that the road was not in operation within ten days after the constitution of 1870 took effect¡ and that the charter was thereby forfeited, under section 2, of article 11, of that constitution. It set forth an ordinance of the common council of the city of Chicago, passed May 13,1872, by which permission was given to the LaSalle and Chicago Eailroad Company to construct its road over a certain route described, upon condition that the ordinance should be void unless the tracks therein provided for should be constructed within two years; that the road was not so constructed. It averred that in 1872 an attempt was made to change the name of the company to the Chicago and Great Western Eailroad Company, but that the change was not properly effected, stating wherein it was not. The amendment further set forth, that on May 11, 1885, the city council of Chicago passed an ordinance, amending the former ordinance of the LaSalle and Chicago Eailroad Company, by changing the name to that of the Chicago and Great Western Eailroad Company, and authorizing the construction of the road over a route described, in addition to the right of way granted by the former ordinance. The new ordinance also removed the limitation in the former ordinance, as to time, and extended the time for the completion of the tracks, three years after the date of the new ordinance. The amendment averred that the council had no power to remove this limitation, "or to extend the time, or to pass the new ordinance.
    Both the original bill and.the amendment charged that the Chicago and Great Western Eailroad Company, and the Chicago and Wisconsin Eailroad Company, had no intention of building or operating a railroad in good faith, but intended to sell out their colorable franchises to a foreign railroad corporation. These charges were denied by the answers. To this amendment a demurrer was filed by the three companies which had answered the original bill.
    The court having refused to grant an injunction upon the original bill, the cause came on for final hearing, and was, by consent of the parties, submitted for hearing upon the original bill and answers, no replications having been filed, and upon the demurrer to the amendment. .The court sustained the demurrer to the amendment, and dismissed the original bill and the amendment for want of equity. To reverse this decree complainant appealed.
    Mr. John Gibbons, for the appellant.
    Mr. J. L. High, and Mr. D. S. Wegg, for the appellees.
   Mr. Justice Sheldon

delivered the opinion of the Court:

The city of Chicago and the village of Cicero are incorporated under the general act of 1872, for the incorporation of cities and villages. This act confers upon cities and villages incorporated thereunder, full authority to regulate the use of streets, to provide for and change the location, grade and crossings of any railroad, to require railroad companies to fence their roads, to construct cattle-guards and crossings of streets and roads, to keep the same in repair, to maintain flagmen at the crossings, to compel the roads to raise or lower their tracks, etc. This is to be regarded as vesting in incorporated cities and villages exclusive authority over the matter of railroad crossings over the streets and highways within their limits, and excluding the jurisdiction of the county or town authorities. Bepeated decisions of this court are to this effect. Chicago Dock and Canal Co. v. Garrity, 115 Ill. 163; People v. Board of Supervisors, 111 id. 527; Town of Ottawa v. Walker, 21 id. 605; Commissioners of Highways v. Baumgarten, 41 id. 254; Peoples v. Chicago and Northwestern Ry. Co. 118 id. 520. Only the city of Chicago and the village of Cicero, then, can question the right of the Chicago and Great Western Bailroad Company to construct its road across their streets and highways; and as appears by the answer of that company, both municipalities have consented to such crossings under ordinances granted for that purpose.

As to the corporate existence of the Great Western Bail-road Company, and the change of corporate name, as to the two ordinances granted by the city of Chicago to the company, whether the city had power to grant them, and whether it had power, under the latter .ordinance, to extend the time fixed by the former for the completion of the road, it is a sufficient answer that these are questions with "which this complainant has no concern. (Chicago and Northwestern Ry. Co. v. Chicago and Evanston Railroad Co. 112 Ill. 602.) The county of Cook is a mere stranger, having no interest here involved which entitles it to call in question any of these things. ■ • '

The only remaining question we need consider, is as to the right of the Chicago and Wisconsin Eailroad Company to construct its tracks across the highways in the towns of Maine and Wheeling, in Cook county, without the consent of appel-. lant. The fifth paragraph of section 20, of chapter 114, of the Eevised Statutes, being the general Eailroad act of 1872, under which that company was incorporated, confers the following powers upon the company: -

“Fifth—To construct its railway across, along or upon any stream of water, water-course, street, highway, plank road, turnpike or canal, which the route of such railway shall inter-, sect or touch; but such corporation shall restore the stream, water-course, street, highway, plank road and turnpike thus intersected or touched, to its former state, or to such state as. not unnecessarily to have impaired its usefulness, and keep such crossing in repair. * * * Provided, that in case of the constructing of said railway along highways, plank roads, turnpikes or canals, such railway shall either first obtain the consent of the lawful authorities having control or jurisdiction of the same, or condemn the same under the provisions of any,eminent domain law now or hereafter in force in this State.”

The case being heard upon bill and answers, the answer-of the,company is to be taken as true. Its answer is, that it has constructed its line of railway through said towns; that it has not taken possession of or obstructed any roads or highways in said towns, and has not constructed its line along or in such roads or highways, but has only crossed the same at such points as are intersected by the route of the railroad. There is, by the clause of the act above quoted, an absolute grant of power by the State to the railroad company to construct its road across any highway. It is only in ease where the railroad is to be constructed along or lengthwise of a highway that the consent of the lawful authorities is necessary. The word “along, ” is defined by Webster, “By the length of, as distinguished from across. ” And see Chicago and Western Indiana Railroad Co. v. Dunbar, 100 Ill. 110.

The claim, then, which is put forth, that before a railroad can be constructed across any road or highway within the county of Cook, permission must first be obtained from the board of county commissioners of Cook county, and that the work must be done to its satisfaction, is an assumption of power which that board or the county of Cook does not possess. Within the limits of incorporated cities and villages the matter rests in the exclusive control and jurisdiction of the public authorities there. Outside of such cities and villages, the State itself has granted permission for the construction of railroads across highways, with no other requirement than not unnecessarily to impair the usefulness of the highway.

The decree will be affirmed.

Decree affirmed.


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    M. M. Thompson et al. v. J. F. Duff.

      Filed at Mt. Vernon January 25, 1887.

      1. Appeal—review of questions of fact. The finding of the Appellate Court upon the issues of fact, in an action of replevin, is conclusive upon this court, and not open to discussion or review.
    2. Instruction—when sufficiently based on evidence. An instruction may be given hypothetically as to a state of facts, although the evidence in support thereof is very slight, or even unsatisfactory.
    3. Same—repeating. The trial court is warranted in refusing an instruction, when all that is pertinent and proper in it is embodied in others which are given.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of Jackson county; the Hon. Oliver A. Haricer, Judge, presiding.
    Messrs. Allen, Moore & Schwartz, for the appellants.
    Mr. M. W. Burr, for the appellee.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

This suit was brought by M. M. Thompson and David Lipe, against J. F. Duff, in the circuit court of Jackson county. The action was in replevin, and was brought to recover the possession of a portable saw-mill and fixtures pertaining to it. On the trial of the cause, before a jury, the issues were found for defendant, and the judgment rendered upon that verdict was afterwards affirmed in the Appellate Court for the Fourth District.

The question of ownership was the principal one tried in the circuit court. That is simply a question of fact, and concerning which the evidence, as found in this record, is quite conflicting. Upon the issues made, the findings of the trial and Appellate Courts were against plaintiffs, and, of course, the finding of the latter court is conclusive in this court, and the question made as to the ownership of the property is not open to further discussion.

The transcript of the record has been examined, and no serious error has been discovered, either in the admission or rejection of evidence, or in the giving or refusing of instructions.

It is objected there is no evidence upon which to base the 11th instruction, given on behalf of defendant. Although the evidence touching the facts stated in the hypothetical case mentioned in the instruction, is very slight, and even unsatisfactory, still it is thought there is enough to warrant the court in giving the instruction, as was done.

Objection is also made to the refusal of the court to give plaintiff’s instructions numbered 21 and 24. Without considering whether these instructions contained correct propositions of law, it is a sufficient warrant for the action of the court in refusing them, that it had already given more instructions for plaintiffs than the nature of the case required. Everything embodied in these instructions that had any application to the case, had been contained in other instructions given for plaintiffs, and the court was under no duty to give the same thing a second time, although expressed in different language.

The judgment of the Appellate Court must he affirmed.

Judgment affirmed.


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    Henrietta Farnan v. William B. Borders.

      Filed at Mt. Vernon January 25, 1887.

    1. Homestead—abandonment—what to be so regarded. A widow having a homestead in premises left by her deceased husband, in 1878 rented the same, reserving a room in which she left her furniture, and went to St. Louis, with her three minor step-children. At the end of a year she sold her furniture and gave up the room, and at the end of two years she gave up housekeeping, but continued to board in St. Louis, her step-children having obtained situations. Seven years after leaving her homestead, she testified that she lived at St. Louis, Quincy and Milwaukee, about an equal time at each place; that she was located nowhere, and that when she got ready to settle she intended to occupy her homestead, but that her intentions were not definite when she would go back to it: Held, that she had lost her homestead by abandonment.
    2. Assignment of error—os to matters not affecting party alleging error. A party can not assign for error that which does not prejudice his or her rights. So a widow, on a bill for partition and the assignment of her dower, can not assign for error a matter affecting only the interest of a party whose title is claimed to have been purchased, pending the suit, by another one of the parties.
    Appeal from the Circuit Court of Banclolph county; the Hon. George W. Wall, Judge, presiding.
    Mr. John Miohan, for the appellant:
    The occupancy required to hold a homestead may be by a tenant, for the benefit of the widow and minor children. Walters v. People, 21 Ill. 178; Brinkerhoff v. Everett, 38 id. 263; Titman v. Moore, 43 id. 169; Browning v. Harris, 99 id. 456; Kenly v. Hudelson, 99 id. 493.
    If, as under the decisions, one can sell a homestead and reinvest the money in another homestead, and hold that under the law, then the occupancy by a tenant is an occupancy under the law; and if the alienation of a homestead by the widow is not an abandonment, then the appellant has not abandoned her home. Plummer v. White, 101 Ill. 474; Watson v. Saxer, 102 id. 585.
    The decisions of this court will be consistent with each other. The widow has the right to convey, as against the heirs. McVey v. McQuality, 97 Ill. 93.
    If the purchaser can hold the homestead, why can not the widow hold and occupy through a tenant ?
    Messrs. A. G. & B. J. Goddard, for the appellee:
    After the death of the husband, the widow, being under no disability, may abandon the homestead, precisely as could the husband. Wright v. Dunning, 46 Ill. 272; Shepard v. Brewer, 65 id. 383; Clubb v. Wise, 64 id. 157; Buck v. Conlogue, 49 id. 391; Kingman v. Higgins, 100 id. 319.
    The widow can reside away from the property temporarily, with the intention of returning, and retain homestead, only by showing a necessary cause for so doing. Wright v. Dunning, 46 Ill. 272; Buck v. Conlogue, 49 id. 395.
    The case of Ferguson v. Woodworth, 44 Ill. 374, held that an absence of three or four years was an abandonment.
    Bern oval from State for fifteen months, is held to be an abandonment. Maher v. McConaga, 47 Ill. 392.
    The case of White v. Plummer, 96 Ill. 394, and again in 101 id. 474, and other cases cited by appellant, are cases where homestead has been assigned, thereby giving notice to the world that'a homestead exists at that date, and then a transfer of that right by the widow by deed,—one of the methods adopted by law for the transfer of homestead estates. But because that course may be pursued by the widow, it does not necessarily follow that an abandonment of the homestead can not take place.
    There are two ways of terminating a homestead—by abandonment, and by conveyance. An abandonment is not a conveyance,, and a conveyance is not an abandonment. A conveyance passes the estate to the grantee, and. when abandoned, the heirs take the fee free of the estate.
   Mr. Justice Magruder

delivered the opinion of the Court:

This was a bill, originally filed on April 5, 1884, .in the circuit court of Randolph county, by appellee against appellant, and Anna Farndn, Harry Farnan, Frank Farnan, and David Farnan for the partition of lots 87 and 96 in MeClurken’s addition to Sparta and for assignment of the widow’s dower. Dr. James Farnan died, intestate, in October 1877, and left him surviving his widow, Henrietta Farnan, the appellant, and four children by a former wife, Harry, twenty-one years old, Anna nineteen years old, Frank seventeen years old, and David fifteen years old. At the time of his death he lived upon, the lots, as his homestead. His son, Harry, was then in California. After his death, the widow lived upon these premises, with her step-children, Anna, Frank and David about eight months, when Anna left and went to St. Louis.

In August 1878 appellant moved away from Sparta to St. Louis, taking with her her two youngest step-children Frank and David Farnan. The question in the case is, whether she has a homestead in the premises in question. Appellee asserts and appellant denies, that there has been an abandonment of the homstead by the appellant, as widow of James Farnan. - The second section of the Homestead Exemption law provides, that “such exemption shall continue after the death of such householder for the benefit of the husband or wife surviving, so long as he or she continues to occupy such homestead.” v

After appellant moved to'St. Louis in August 1878, she kept house in that city for two years with her two step-sons. She then gave up housekeeping, but continued to board in St. Louis. Frank and David went to live with their sister, Anna, and their older brother, Harry. The three sons are in business for themselves, and Anna supports herself by teaching music. Appellant has not lived in Sparta since she left there in August 1878, but has rented the former homestead and drawn the rents ever since. When she left, she reserved one room in the house, and kept some furniture in it for" a year. At the end of the year, however, she sold the furniture and surrendered the room, in which it had been stored, to the tenant. Anna, Frank and David all swear, that she expressed to them the intention of never returning to Sparta, and, as matter of fact, they have never returned nor ever intended to return. She denies, that she ever expressed such intention, and claims, that she went to St. Louis for the purpose of educating the two youngest boys for business. The proof shows, however, that after their education was finished and they had secured business situations, she still continued to reside away from Sparta. She says, when testifying seven years after she had left Sparta: “I live at St. Louis, Quincy and Milwaukee about equal time at each place. * * * As for myself I am located nowhere. My intention has always been, that, when I got ready to settle down and go to housekeeping, I would occupy my own house at Sparta. My intentions are not definite as to when I may go to housekeeping. The youngest child became twenty-one years old September 12, 1883.”

We think the facts in this case show an abandonment of the homestead by the appellant. Her purposes as to her future course have been neither definite nor fixed. An intention to return and occupy the former home, as a homestead, is not clearly manifested by the surrounding circumstances. (Titman v. Moore, 43 Ill. 169.) It does not appear from the evidence, that the appellant removed from Sparta for a temporary purpose with the intention of returning and occupying the house there, as a homestead. (Howard v. Logan, 81 Ill. 383.) On the contrary, her conduct and all the facts and circumstances disclosed by the evidence, without taking into consideration the testimony as to her own declarations upon the subject, point unmistakably to the conclusion, that she left Sparta with the intention of remaining away permanently.

The proof shows, that appellee was the owner of an undivided one-fourth part of 'the premises at the beginning of this suit, having purchased the interest therein of Harry Earn an. During the pendency of the suit he bought the shares of Anna, Frank and David Farnan, and the final decree was so modified as to recognize this change in the interests of the parties. Appellant complains, that there was not sufficient legal evidence before the court below to justify it in finding appellee to be the owner of the three-fourths, inherited by Anna, Frank and David. The latter persons alone could take advantage of such an error, if it existed. They, however, have assigned no errors upon the record, and whether or not the court decreed correctly as to their rights is a matter of no concern to appellant. A party can not assign for error, that which does not prejudice his or her rights. Ransom v. Henderson, 114 Ill. 528;

The decree of the circuit court is affirmed.

Decree affirmed.