author: Mr. Chief Justice Mr. Justice Dickey,

text:
    Henry H. Gage v. George W. Parker.

      Filed at Ottawa March 28, 1882

      Rehearing denied September Term, 1882.

    1. Chancery—amendment of bill—multifariousness. After the filing of an original bill to set aside a sale of lots for unpaid special assessments, on the ground that the ordinance under which the assessment was made was illegal and void, a supplemental bill was filed showing a subsequent sale of the same property to the same purchaser, and a redemption from such sales within the time provided by law, but that the purchaser had taken out deeds on the sales, which it prayed to have set aside: Held, that the supplemental bill was a mere amendment, and as an amendment was proper, and that the bill as amended was not multifarious, the matters in the two bills not being distinct and unconnected.
    2. Same—retaining bill to grant complete relief—effect of amending bill. Where a court of chancery once obtains jurisdiction of a cause on any equitable ground, a subsequent amendment of the bill asking other relief will not deprive the court of jurisdiction to grant complete relief. When the court acquires jurisdiction for one purpose, it may go on and do complete equity between the parties.
    3. Same—ground of jurisdiction—distinguished from bill to remove a cloud upon title. To give a court of equity jurisdiction of a bill solely to quiet title, or remove a cloud from the title, the complainant must allege and prove possession of the premises, or that they are unimproved and unoccupied.
    4. But where a bill was originally filed by the owner of land for the purpose of enjoining the execution and delivery of a deed therefor upon an alleged void special assessment, it is not to be regarded as a bill to quiet title or remove a cloud, and does not fall within the rule stated as governing that class of bills. Nor will the character of the jurisdiction in that regard be considered as modified by the filing of a supplemental bill, setting up that the complainant had redeemed from the sale under the alleged void assessment, and that after such redemption the purchaser had taken out a deed, and praying that such deed be set aside and canceled.
    5. Evidence—questioning judicial proceedings collaterally— confirmation of special assessment. A party by suffering judgment of confirmation of a special assessment upon his property by a court of record, is estopped in a collateral proceeding from showing the illegality of such assessment by reason of the insufficiency of the ordinance on which it is based.
    6. Same—proof of ownership of land—sufficiency. While a complainant must prove every material allegation of his bill which is denied, yet when his ownership of lots, in respect of which relief is sought, is not a mooted question, his testimony that he purchased the property originally with his own money from C D, in connection with the deed made to him by C D, may be regarded as sufficient proof of ownership.
    7. Same—to prove redemption from tax sale. The book of tax sales and redemptions which the county clerk is required to keep, and in which to enter all sales for taxes, the quantity sold, name of purchaser, etc., and the name of the person redeeming, the -date and amount of the redemption money, is competent evidence of the facts therein entered, and of a redemption appearing therein.

      8. Redemption—from sale of land for taxes. Where several judgments are rendered at the same time against land for State and county taxes and special assessments, and the land is sold under such judgments in July, August and September of the same year, the sale being continued through these months, this will be regarded as only one sale, and a party attempting to redeem from such sale must pay the penalty provided by the statute. Section 211 of the Revenue law has no application to such a case, but to a case where the same land is again sold for the taxes of a succeeding year.
    Appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Mr. Augustus N. Gage, and Mr. Henry D. Beam, for the appellant:
    New and distinct causes of action accruing after the filing of the original bill can not properly be introduced by amendment or supplemental bill. A party, under the privilege of amending, pan not introduce new matters which will constitute a new bill. 1 Daniell’s Chancery Practice, 405, and note 5; Verplanck v. Mercantile Ins. Co. 2 Edw. Ch. 212; Shields v. Barrow, 17 How. 130.
    A plaintiff can not file a supplemental bill to introduce facts which have occurred since the filing of the original bill, upon which a decree can be had without reference to the original bill. Milner v. Milner, 2 Edw. Ch. 114; Pinch v. Anthony, 10 Allen, 477; Chandler v. Petit, 1 Paige, 168; Land v. Cowan, 18 Ala. 297; Vaughan v. Vaughan, 30 id. 329; Fahs v. Roberts, 54 Ill. 192; 2 Daniell’s Chancery Practice, 1515.
    A bill is multifarious when it seeks to litigate several claims which are in their nature separate and distinct from, and have no relation or dependence upon, each other. Story’s Equity Pleading, secs. 271, 530—534; Ryan v. Trustees of Shawneetown, 14 Ill. 20.
    When the plaintiff’s title is put in issue by the pleadings, he must prove it. Wing v. Sherer, 77 Ill. 200.

      The bill fails to allege that complainant was in possession of the lots, or that the same were unimproved and unoccupied, and hence fails to show equitable jurisdiction. Hamilton v. Quimby, 46 Ill. 90; Hardin v. Jones, 86 id. 313; Rev. Stat. 1874, p. 204, sec. 50.
    The complainant is estopped by the judgment confirming the special assessment from disputing its validity or questioning its correctness. People v. Brislin, 80 Ill. 423; Lehmer v. People, id. 601; Prout v. People, 83 id. 154; Chicago and Northwestern Ry. Co. v. People, id. 467; Andrews v. People, id. 529.
    The evidence in the record shows that no redemption was made, the sum deposited not being sufficient. Rev. Stat. 1874, chap. 120, sec. 210. The law contemplates but one annual sale, though the judgment may be for several distinct taxes and special assessments, and the several sales in law constitute but one sale for that year.
    Mr. J. W. Waughop, for the appellee:
    A supplemental bill is proper when new matter has arisen since the filing of the original bill. Burke v. Smith et al. 15 Ill. 159.
    It being in effect but an amendment, forms a part of, and is tried with, the original case. Mix v. Beach et al. 46 Ill. 314.
    When there is a common interest, a common ground for relief, and a common ground for invalidity, the bill is not multifarious. Gage v. Chapman, 56 Ill. 311; Finch v. Martin, 19 id. 105.
    The complainant did prove title to the property by his own oath and without objection. On bill to remove a cloud from the title to land, an equitable title is all that is required to support the allegation of ownership. Hempstreet v. Burdick, 90 Ill. 444.

      The prime object of the bill in this case was not to remove a cloudy but to set aside the tax deeds as void, and issued without authority of law. This general jurisdiction of courts of chancery is asserted in Gage v. Rohrbach, 56 Ill. 262; Reed v. Tyler et al. id. 288; Gage v. Chapman, id. 311; Emery v. Cochran, 82 id. 65; Farwell v. Harding, 96 id. 32.
    When equity acquires jurisdiction for one purpose, it will retain it for all purposes necessary to do complete justice between all parties. Conklin v. Foster, 57 Ill. 105; Sherlock v. Village of Winnetka, 59 id. 389.
    The ordinance is void for indefiniteness as to the nature and character of the proposed improvement. Ordinances less objectionable have been held void for indefiniteness in describing the work to be done. Foss v. City of Chicago, 56 Ill. 354; Jenks v. City of Chicago, id. 397; Andrews v. City of Chicago, 57 id. 239; Wright v. City of Chicago, 60 id. 312; Page v. City of Chicago, id. 441; Bryan v. City of Chicago, 60 id. 507.
    The county clerk’s certificate of redemption was competent evidence of that fact. Henrichsen v. Hodgen, 67 Ill. 179. The redemption was properly made by paying the penalty only on the last sale.
   Mr. Chief Justice

Craig delivered the opinion of the Court:

The property in question, consisting of the north half of lots 13 and 14, Bailey’s subdivision of a certain twenty-acre tract in Hyde Park, Cook county, Illinois, was sold on the 9th day of October,-1874, in payment of a special assessment made by the village of Hyde Park, known® as No. 7, for the purpose of constructing a brick sewer on Fifty-first street. At the sale Henry W.' Gage became the purchaser, for the sum. of $136.40. On the 5th day of October, 1876, George W. Parker, who claimed to be the owner of the property, filed thiR bill to set .aside the sale, mainly on the ground that the ordinance under which the assessment was made was illegal and void. In 1881 the complainant in the original bill filed a supplemental bill, in which, after restating the original case, he alleged, in substance, that at the annual tax sale of 1877 said half lots were again sold for certain delinquent taxes and special assessments, and that Gage became the purchaser. It was then set up that complainant had, within the time provided by law, redeemed the premises from said sales, but after the redemption was made Gage had taken out deeds on the sales. These deeds the bill prays may be set aside and canceled.

It is first urged that it was error to allow the supplemental bill to be filed, and the bill, as amended by the supplemental bill, was multifarious. The supplemental bill was a mere amendment of the original bill, which brought before the court a subsequent sale of the same land purchased by the same party. As the parties were the same,- and the same land involved, and the subject matter of .the litigation the same, we think the- amendment was proper. Nor do we regard the bill as being multifarious. Story (sec. 271) says: “By multifariousness in a bill is meant the improperly joining in one bill distinct and independent matters, and thereby confounding them, as, for example, the uniting in one bill of several matters perfectly distinct and unconnected, against one defendant, or the demand of several matters of a distinct and independent nature, against several defendants in the same bill.” The matters in the original bill and supplemental bill were not distinct and unconnected. The whole controversy in the case is in regard to the same land, and in reference to taxes, and we perceive no good reason why the whole matter may not properly be united in one bill.

It is next urged that complainant failed to prove title to the premises. It is alleged in the bill that complainant owned the premises, and denied in the answer. Of course complainant was bound to prove every material allegation in the bill which was denied. This was not, however, a mooted question in the case, and appellee’s evidence, that he “purchased the property originally with his own money from E. Bailey,” in .connection with the deed made to him, may be regarded as sufficient.

It is next urged that the decree is erroneous, because complainant neither alleged nor proved possession of the premises, or that the same were unimproved or unoccupied, or that the defendant was not in possession thereof. If this was a bill solely to quiet title or remove a cloud from the title, then, under sec. 50, Rev. Stat. 1874, page 204, and the ruling in Hardin v. Jones, 86 Ill. 313, the point would be well taken. Such, however, is not the case. The object of the bill, as originally filed, was not to quiet title or remove a cloud, but to enjoin the execution and delivery of a deed upon an alleged void special assessment. The court, as a court of equity, acquired jurisdiction to grant the relief under this head, and the fact that an amendment was subsequently made to the bill, under which other relief was asked, did not deprive the court of jurisdiction to proceed and grant complete relief. It is a familiar rule in equity, that where the court acquires jurisdiction for one purpose; it may go on' and do complete equity between the parties. This case does not form an exception to the rule.

The ordinance under which the assessment was made, provided: “Whereas, heretofore, oh the 1st day of July, 1871, an ordinance was adopted by the town of Hyde Park, providing for the construction of a brick sewer on Fifty-first street, from Lake Michigan to State street, as set forth in the following ordinance, the cost of which was estimated at $75,000, the actual cost of which will exceed the estimated cost; now, therefore, be it ordained, that the following improvement be completed: That a sewer be constructed on Fifty-first street, from Lake Michigan to State street, said sewer to be of sewer-brick; inside diameter five feet from Lake Michigan to Hyde Park avenue; four feet nine inches from Hyde Park avenue to Madison avenue; four feet six inches from Madison avenue to Woodland avenue; four feet three inches from Woodland avenue to Drexel avenue; four feet from Drexel avenue to Cottage Grove avenue; three feet nine inches from Cottage Grove avenue to the center of the park; three feet six inches from the center of the park to Kankakee avenue; three feet three inches from Kankakee avenue to Indiana avenue; three feet from Indiana avenue to Michigan' avenue; two feet nine inches from Michigan avenue to Wabash avenue; and two feet six inches from Wabash avenue to State street,—suitable man-holes and catch-basins to be built, and that a permanent and suitable protection at the lake outlet be constructed, and connected with said sewer; that the cost of said improvement be defrayed by a special assessment, to be made in accordance with law; that commissioners be appointed to estimate the cost of said improvement.”

The 19th section of article 9 of the act in relation to .cities, villages and towns, under which the town of Hyde Park passed the ordinance, declares: “Whenever such local improvements are to be made wholly or in part by special assessment, the council, in cities, or board of trustees, in villages, shall pass an ordinance to that effect, specifying therein the nature, character, locality and description of such improvement. ” It is contended that this ordinance did not comply with the requirements of the section of the statute supra, and hence the assessment was illegal, under the ruling of this court in Lass v. Chicago, 56 Ill. 354, and other like cases. We shall not, however, stop to pass upon the validity of the ordinance, as complainant is not in a position to question its validity. It appears that the assessment was made under the ordinance, and a return made to the county court of Cook county, where, on the 24th day of November, 1873, after due notice, it was confirmed, except as to the land of certain persons who appeared and filed objections, complainant not being one of them. Is complainant concluded by the judgment, of confirmation?

In People v. Brislin, 80 Ill. 423, where it was contended that the assessment was illegal, because not on contiguous property, it was said: “This question, and all others bringing up the levy and assessment, have been passed upon by the circuit court, and are res judicata, and can not now be made in this court. Upon these there is a judgment passed by a court of competent jurisdiction, and there they must rest.” This case has been followed by a number of other decisions, where the same doctrine has been announced. Lehmer v. The People, 80 Ill. 601; Prout v. The People, 83 id. 154; Chicago and Northwestern Ry. Co. v. The People, id. 467; Andrews v. The People, id. 529.

If the assessment was illegal from the fact that it was based upon an insufficient ordinance, it was the duty of the complainant in the bill to appear before the county court when the application was made to confirm the assessment, and there make the objection; but as he failed to do so, this judgment of the county court, when called in question collaterally, must be regarded as conclusive.

We now come to that branch of the case made by the supplemental bill. In 1877 the half lots became delinquent for State and county taxes, and for certain special assessments which had before that time been levied against the property. The county collector, as required by the statute, made application to the county court for judgment against the half lots, and for an order of sale in satisfaction of the taxes and special assessments then due and unpaid. Judgments were obtained, and a precept issued. The sale of lands was commenced on the 23d day of July, 1877, and was continued until the latter part of October. The lands «in question were sold on a part of the judgments, July 28, 1877, and on another portion, August 14, and on the remaining judgments, September 3, 1877. It appears, from the evidence, that the sale was regularly adjourned from day to day, from the time it was commenced until the close, in October, and that the lots in question were sold as they were reached in the regular order in ;which the sale was conducted. It is alleged in the bill that the lands were redeemed from these tax sales, and in support of this allegation certain certificates of redemption, executed by the county clerk, were read in evidence. These certificates, defendant contends, are not authorized by the statute, and are not competent evidence to prove any fact. Whether the certificates of redemption are technically competent evidence, we shall not stop here to determine. The statute requires the county clerk to keep a book, in which it is made his duty to make a record of lands sold at tax sale, the quantity sold, name of purchaser, etc., and when the property is redeemed the clerk shall enter the name of the person redeeming, the date and amount of redemption, in the proper column. (Rev. Stat. 1874, chap. 120, sec. 197.) The book in which the sale and redemption were entered in this case was read in evidence, and if the certificates of redemption were not competent evidence, the book was, and the same facts were established by the book as were sought to be proven by the certificates of redemption.

This brings us to the question whether a sufficient amount of money was paid to the county clerk to redeem the lands from the sales. The money was paid to the proper officer, and within the time required, and he received it as a redemption, and issued certificates of redemption, which were delivered to the complainant. But it is urged by the appellant that a sufficient amount was not paid to redeem the lands from the sales. Section 210 of the Revenue law provides, that property may be redeemed from a tax sale “at any time within two years from the time the sale is made, by the owner paying to the county clerk the amount for which the land was sold, and twenty-five per cent, if redeemed before the expiration of six months; if between six and twelve months, fifty per cent; if between twelve and eighteen months, seventy-five per cent; if between eighteen months and two years, one hundred per cent. The person redeeming shall also pay the amount of all taxes and special assessments accruing after such sale, with ten per cent interest thereon from the day of payment, unless such taxes or assessments have been paid by or on behalf of the person for whose benefit the redemption is made. ” ' The complainant did not comply with this section of the statute, and can not claim a redemption under it, as neither the penalties named in the section nor the subsequent taxes were included in the amount deposited as a redemption.

The complainant, however, claims that the redemption is valid under section 211 of the Revenue law, which declares: “If any purchaser of real estate sold for taxes or special assessment shall suffer the same to be again sold for taxes or special assessment before the expiration of the last day of the second annual sale thereafter, such person shall not be entitled to a deed for such real property until the expiration of a like term from the date of the second sale, during which time the land shall be subject to redemption, upon the terms and conditions prescribed in this act; but the person redeeming shall only be required to pay, for the use of such first purchaser, the amount paid by him. The second purchaser shall be entitled to the redemption money, as provided for in the preceding section. ” It is contended by the complainant in the bill, that as the property in question was sold in July, August and September, of the year 1877, this section applied, and all he had to do was to pay the penalty on the last sale— the simple amount of the other bids and subsequent taxes. It is clear that the section of the statute cited supra, would require a person who purchased at the annual tax sale of 1877, to protect the same property from the annual tax sales of 1878 and 1879, or if he failed to do so, and allowed the property sold in 1878 or 1879, the owner could redeem from such sale by payment of the amount of the first bid. But we do not understand that the statute has any application to a case like the one here under consideration. The judgments for the State and county taxes and the special assessments in this case were all rendered at the same term, and although the land was sold in July, August and September, it was but one sale, and must be regarded in the same light as if the property which was being sold during the most of three months had all been sold in one .day.

It is not contended that any mistake of fact existed in regard to the amount of redemption money paid, and that relief may be granted on that ground, as was done in Gage v. Scales, 100 Ill. 218. But in the bill the relief is based purely on the ground that a proper redemption was made. We do not think that the evidence establishes a redemption, and the decree setting aside these deeds was erroneous.

The decree will be reversed and the cause remanded.

Decree reversed.

Mr. Justice Dickey,

dissenting:

I do not concur in the conclusion in this case. While I think the officer making sale of this property ought regularly to have sold the same upon all of the judgments rendered at the same term, for taxes or assessments, against this land, still the record shows that this was not done. There were in fact three different sales, made in different months, the time for redemption from which began to run at three different dates. -It happens that the purchaser at each sale is the same man. That, however, can not affect the nature of the sale. I do not think we have any lawful warrant to treat these three sales as one. The purchaser’s deeds depend upon the validity of these sales. His deeds must stand or fall with these sales. To sustain his deeds they must be taken to be three separate valid sales. The relief sought is to set aside these deeds because issued after redemption. If the sales be treated as separate valid sales, then it became the purchaser’s duty, in order to entitle himself to the penalties on his first purchase, to protect the property from subsequent sale,—by paying up the other charges on which judgment had been rendered, and upon which no sale had been made. The failure of the purchaser to do this, deprived him, under the statute, of his right to the penalties under the first sale. The same is true of the second sale. (Sec. 211, chap. 120.) If this view be correct, the redemption money was sufficient. When the purchaser, at the sale made in July, suffered the property to be again sold in August, then, by this statute, the time for redemption began to run from the date of the August sale, and when he again permitted this property to be sold in September, and became the purchaser, the time for redemption began to run from the date of the September sale, and the amount required to redeem on the last days of redemption consisted, under this section, of the full redemption money on the amount of the September sale, and in addition the amount actually paid by the purchaser at each of the former sales. This amount was paid. I am not inclined to deprive an owner of his land who has literally complied with the statute as to redemption. This section applies, by its terms, to “any purchaser” at a tax sale who “shall suffer the same to be again sold” for taxes “before the end of the second annual sale thereafter.” Here the purchaser did “suffer the same to be again sold” before that time.


source: Caselaw Access Project

author: Mr. Justice Dickey

license: Public Domain

text:
    Henry Channon et al. v. William Stewart.

      Filed at Ottawa March 28, 1882

      Rehearing denied September Term, 1883.

    Chancery jurisdiction—of an account of net profits to determine compensation for services. Where an employé of a firm is to receive a certain sum per year, and one-half of the net profits of a certain branch of the business, as compensation- for his services, a court of chancery will have jurisdiction of a bill by such employé for an account of the partnership, for the purpose of ascertaining the profits of such business, although the complainant is not a partner.
    Appeal from the Appellate Court for the First District; —heard in that court on appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    In December, 1877, appellants, who were doing business in Chicago in the ship-chandlery business, wishing to add to their business a sail-making branch, employed appellee to take charge of and manage the sail-making branch of the business. His compensation, by their agreement, was to be a salary of $700 a year and one-half of the net profits accruing from the sail-making. This contract was for one year— 1878. He entered upon his duties and continued without further express contract until February 1, 1880, when by consent he left their service." They had had no full settlement, and in trying to settle, a dispute arose as to certain expenses -incurred by appellants, which they claimed inured to the advantage of the sail-making business as well as to that of the ship-chandlery business, and a part of which they insisted should be charged to the sail business as expenses, in fixing the amount of net profits, of which appellee was entitled to one-half.
    This is a suit in chancery, brought by appellee, for a settlement of the accounts between him and appellants, and especially for an adjustment of the amount of the profits in the sail-making business, one-half of which, it is conceded, is to be paid to him as part of the compensation for his services. Issues were formed, and the cause referred to the master to take proofs and state an account. The master’s report, stating the accounts in detail, .was filed. Exceptions to the report were overruled, and a decree rendered in favor of appellee for $2120.55, and that the outstanding debts, amounting to $119, be sold by appellants, and one-half the proceeds be paid to appellee. Defendants appealed to the Appellate Court, where the decree was affirmed, and they bring the record here for review.
    Mr. I. K. Boyesen, for the appellants :
    A general averment of unsettled accounts is insufficient to give a court of equity jurisdiction, and a bill for an account must show either a case of which a court of equity has primary jurisdiction, such as trust; fraud or unsettled partnership accounts, or else such intricate accounts as can not fairly be tried at law. Parsons on Partnership, 77; Harrington v. Churchward, 6 Jur. (N. S.) 576; 4 C. E. Green, 281; Darthey v. Clemens, 6 Beav. 165; Logan v. Lucas, 59 Ill. 237; Buell v. Selz, 5 Bradw. 120; Kimball v. Walker, 30 Ill. 503.
    Messrs. Moore & Peet, for the appellee :
    This case belongs to a class in which courts of equity have concurrent jurisdiction with courts of law. The accounts ran over two years and a part of a third, and no complete account has been rendered for any period. The defendants were running two branches of business, and the accounts were mixed together in the same books, of which the defendants had the entire possession and control.
    The case of Kimball v. Walker, 30 Ill. 503, applies only to cases where no circumstances whatever can give the court jurisdiction. Stout v. Cook, 41 Ill. 477; Magee v. Magee, 51 id. 500; Daniell’s Chancery Practice, 630.
   Mr. Justice Dickey

delivered the opinion of the Court:

It is insisted that a court of chancery has not jurisdiction in this case. It is said- appellee was not a partner with appellants, and hence the case does not fall under the head of accounts between partners, and that there is not any such complication of accounts as might otherwise call for the intervention of a court of chancery. It is true appellee was not a partner with appellants, but to ascertain his true compensation it is necessary to adjust the accounts of the partnership of appellants, for the amount of the net profits of that business must be ascertained before the true amount of the compensation of appellee can be fixed. Every reason for the adjustment of the accounts between partners, in a court of chancery, applies with equal force in this case, and we think the subject matter is a fit subject for a court of chancery.

As to the merits of this controversy, after a careful examination of the record we are not convinced that any error has been committed by the court by which any wrong has been done to appellants. The controversy relates chiefly to questions of fact. A discussion of the items in detail could subserve no useful purpose. We content ourselves in saying that we find no cause for disturbing the decree.

The judgment of the Appellate Court is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    Alex. W. McClure v. Edwin Walker et al.

      Filed at Ottawa March 28, 1882

      Rehearing denied September Term, 1883.

    Limitation—writ of error—in cases arising under the Burnt Records act. The limitation of twelve months from the entering of the final decree in a suit instituted under the Burnt Becords act of 1872, within which a writ of error may be sued out, as provided in the 16th section of that act, applies to cases of that character which may have been determined in an Appellate Court, as well as to cases where the writ of error is sought.to be sued out of the Supreme Court to a circuit court.
    Writ of Error to the Appellate Court for the First District.
    This was a motion to dismiss the writ of error upon the ground it was not sued out in proper time.
    Mr. I. K. Boyesen, and Mr. A. H. Lawrence, for the motion.
    Messrs. Merriam & Whipple, contra.

   Mr. Justice Mulkey

delivered the opinion of the Court :■

This is a motion to dismiss the writ of error on the ground the writ "was not sued out within one year after the rendering of the decree, as provided by the 16th section of the act of 1872, commonly known as the Burnt Becords act.

It appears that on the 20th of August, 1878, the circuit court of Cook county entered the original decree in this case, and that it was subsequently removed by writ of error to the Appellate Court for the First District, where on the 2d of April, 1879, the. decree of the circuit-court was reversed, and a final decree entered in the cause by the Appellate Court, to reverse which, on the 12th of January, 1882, the present writ of error was sued out. As more than twelve months intervened between the rendering of the decree and the suing out of the writ, and as the Burnt Records act was passed before the act establishing Appellate Courts, and consequently judgments in those courts were not specifically mentioned, the question is presented by the present motion whether this case is to be governed by the general limitation law of five years, or the limitation of one year under the Burnt Records act.

While the question is not entirely free from doubt, we are of opinion the object of the legislature in adopting the latter act, and the public interests, will be best subserved by holding the limitation of one year applies, and we accordingly so hold. Had the case been brought from the circuit court to this court, there is no question but that the limitation of one, year would apply, and to hold the limitation of five years applies in cases coming from the Appellate Courts to this court, would be to make the period of limitation depend in every case upon the accidental and inconsequential fact of whether the cause came here from the one or the other of those courts, and this could hardly have been intended by the legislature. The construction which we have given the several provisions of the statute relating to this question, makes this period of limitation uniform in all cases arising under the Burnt Records act, without regard to the court from which they may be brought to this court.

The motion to dismiss the writ of error is sustained.

Writ of error dismissed.

Walker and Scott, JJ., dissenting.


author: Mr. Chief Justice Craig

text:
    The Chicago and Eastern Railroad Company v. James Flexman.

      Filed at Ottawa May 12, 1882

      Rehearing denied, September Term, 1882.

    1. Master and servant—liability of master for trespass of servant. Where a servant goes outside of his employment, and while not acting in pursuance of the authority given him inflicts a willful injury upon one not entrusted to his care by the master, or on one to whom the master owes no duty, the act will be that of the servant alone, and the master can not be held responsible for it.
    2. Same—carrier’s duty to protect passengers—liability for acts of servant. A carrier, whether by steamboat, railway, or otherwise, is under obligation to convey his passenger safely and properly, and to treat him respectfully, and if he entrusts this duty to his servants, the law holds him responsible for the manner in which they execute the trust.
    3. A carrier must not only protect his passengers against the violence and insults of strangers and co-passengers, but also against the violence and assaults of his own servants. If this protection is not afforded, and the passenger is assaulted and beaten through the negligence of the carrier’s servants, he will be responsible for the injury, and especially for the assault of his servants.
    4. Where a passenger on arriving at the place to which he had paid his fare on a railroad train missed his watch, and supposing it to have been stolen, refused to leave the train until he should recover his watch, and the conductor consented that he might remain .on the train until it reached another station, and after the train had started and a partial search had been made, a passenger asked who he thought had his watch, when he replied, “That fellow,” pointing at a brakeman, who immediately struck him in the face with a lantern: Held, that the facts showed a right of action against the railroad company for the injury inflicted by its servant, and that the company occupied the same position towards the passenger as if he had paid his fare to such other station.
    Appeal from the Circuit Court for the Second District;— heard in that court on appeal from the Circuit Court of Iroquois County; the Hon. Franklin Blades, Judge, presiding.

      Mr. William Armstrong, for the appellant :
    The master is not liable for the willful mischief of his servant, or his acts outside of the line of his employment. McManus v. Cricket, 1 East, 106; Croft v. Allison, 4 B. & A. 500; Lane v. Cotton, 12 Mod. 488; Middleton v. Fowler, Salk. 282; Rowe v. Birkenhead R. R. Co. 7 Eng. L. & E. 546; Story on Agency, sec. 456; Wharton on Agency, sec. 540; Angell on Carriers, sec. 604; Cooley on Torts, 533; 2 Kent’s Commentaries, 260; Wright v. Wilcox, 19 Wend. 343; Vanderbilt v. Richmond Turnpike Co. 2 Conn. 479; Hibbard v. New York and Erie R. R. Co. 15 N. Y. 455; Isaac v. Third Avenue R. R. Co. 47 id. 122; Mott v. Consumers' Ice Co. 73 id. 543; Evansville and Crawfordsville R. R. Co. v. Baum, 26 Ind. 70; Indianapolis, Pitts, and Chicago Ry. Co. v. Anthony, 43 id. 183; Little Miami R. R. Co. v. Wetmore, 19 Ohio St. 110; Bryant v. Rich, 106 Mass. 180; Ramsden v. B. and A. R. R. 104 id. 117; Shirley v. Billings, 8 Bush, 147; Goddard v. Grand Trunk Ry. Co. 57 Maine, 202; Johnson v. Barber, 5 Gilm. 425; Tuller v. Voght, 13 Ill. 277; Oxford v. Peter, 28 id. 434; Halty v. Markel, 44 id. 227; Pritchard v. Keefer, 53 id. 117; Noble v. Cunningham, 74 id. 51; Chicago, Burlington and Quincy R. R. Co. v. Bryan, 90 id. 126.
    Appellee, at the time of the injury, was a stranger to the appellant, and not a passenger, and was upon the car without payment of his fare.
    There is a duty resting upon a passenger to so demean himself towards the servants as not, by misbehavior, to provoke a personal quarrel with them. Little Miami R. R. Co. v. Wetmore, 19 Ohio St. 133. See, also, Illinois Central R. R. Co. v. Whittemore, 43 Ill. 420; Chicago and Northwestern R. R. Co. v. Williams, 55 id. 185; Chicago, Burlington and Quincy R. R. Co. v. Griffin, 68 id. 499.

      Messrs. Doyle, Morris & Stearns, for the appellee :
    It is the duty of a carrier to protect his passenger from violence and insult, from whatever source, and more especially from his own servants. Goddard v. Grand Trunk Ry. Co. 57 Maine, 202; Howe v. Newmarch, 12 Allen, 115; Angell & Ames on Corporations, 404; Moore v. Railroad, 4 Gray, 365; Seymour v. Greenwood, 7 Hurl. & Nor. 354; Railroad v. Finney, 10 Wis. 388; Railroad v. Arendiver, 42 Pa. St. 356; Weed v. Railroad, 17 N. Y. 362; Railroad v. Derby, 14 How. 468; Railroad v. Hinds, 53 Pa. 512; Flint v. Transportation Co. 34 Conn. 554; Landreaux v. Bell, 5 La. (O. S.) 275; Nieto v. Clark, 1 Cliff. 145; Chamberlain v. Chandler, 3 Mass. 242; Bryant v. Rich, 106 id. 180; Chicago and Northwestern Ry. Co. v. Croaker, 36 Wis. 657; Keokuk Northern Line Packet Co. v. True, 88 Ill. 608.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

This was an action brought by James Flexman, against appellant, to recover damages for personal injuries inflicted upon him while a passenger in appellant’s cars, by a brakeman in the employ of the company.

The plaintiff, as appears from the evidence, procured a ticket from Hoopeston to Milford, and took passage on a freight train which carried passengers. Soon after plaintiff entered the car he laid down in a seat and went to sleep.

When the train arrived at Milford he was notified by the conductor. As plaintiff was about to leave the car he missed his watch, and supposed it had been stolen. He then refused to leave the train until he recovered the watch, and the conductor consented that he might remain on the train until they should reach Wátseka. After the train had started, a passenger assisted plaintiff in making a partial search for the watch, but it was not then found. The passenger then inquired of plaintiff who he thought had his watch, to which he replied, “That fellow, ” pointing at the b¿'akeman. Immediately after the remark was made the brakeman struck plaintiff in the face with a railroad lantern, inflicting the injuries complained of. These are substantially the facts, over which there is no controversy by the parties.

After the plaintiff had introduced all his testimony, the defendant entered a motion to exclude the evidence from the jury, and asked for an order directing the jury to find a verdict for defendant. The court denied the motion, and the defendant excepted. This decision of the eoftrt presents the question whether the facts proven, conceding them to be true, constitute a cause of action against the defendant.

The point is made that as plaintiff only paid fare to Milford he ought not to be regarded as a passenger on the train after he left that place. We do not regard this position well taken. The conductor did not demand or require fare from the plaintiff; had he done so, no doubt the required amount would have been paid. As the conductor failed to call for fare, it must be regarded as waived. At all events, we have no hesitation in holding that the railroad company occupied the same position towards plaintiff that it would have occupied had he paid his fare.

But it is said, “that if the plaintiff was injured by a servant of appellant, it was an act outside of the employment of the servant who committed the act, and not in furtherance of his employment by the master. ” This position is predicated upon McManus v. Cricket, 1 East, 106, and like cases which have followed it. In the case cited Lord Kenton said: “It is laid down by Holt, Ch. J., as a general position, ‘that no master is chargeable with the acts of his servant but when he acts in the execution of the authority given him.’ How, when a servant quits sight of the object for which he is employed, and without having in view his master’s orders pursues that which his own malice suggests, he no longer acts in pursuance of the authority given him, and, according to the doctrine of Lord Holt, his master will not be answerable for such act. ” The doctrine announced is no doubt correct when applied to a proper case. If,' for example, a conductor or brakeman in the employ of a railroad company should willfully or maliciously assault a stranger,—a person to whom the railroad company owed no obligation whatever, —the master in such a case would not be liable for the act of the servant; but when the same doctrine is invoked to control a casé where an assault has been made by the servant of the company upon a passenger on one of its trains, a different question is presented—one which rests entirely upon a different principle.

What are the obligations and duties of a common carrier toward its passengers ? In Keokuk Northern Line Packet Co. v. True, 88 Ill. 608, it was held that a steamboat company, as a carrier of passengers for hire, is, through its officers and servants, bound to the utmost practicable care and diligence to carry its passengers safely to their place of destination, and to use all reasonably practicable care and diligence to maintain among the crew of the boat, including deck hands and roustabouts, such a degree of order and discipline as may be requisite for the safety of its passengers. The same rule that governs a steamboat company must also be applied to a railroad company, as the duties and obligations resting upon the two are the same, or any other company which carries passengers for hire. In Goddard v. Grand Trunk Ry. Co. 57 Me. 202, in discussing this question, the court says: “The carrier’s obligation is to carry his passenger safely and properly, and to treat him respectfully; and if he entrusts the performance of this duty to his servants, the law holds him responsible for the manner in which they execute the trust. * * * He must not only protect his passengers against the violence and insults of strangers and co-passengers, but, a fortiori, against the violence and insults of his own servants. If this duty to the passenger is not performed,—if this protection is not furnished,—but, on the contrary, the passenger is assaulted and insulted through the negligence of the carrier’s servant, the carrier is necessarily responsible.” In Bryant v. Rich, 106 Mass.' 180, where the plaintiff, a passenger on a steamboat, was assaulted and injured by the steward and some of the table waiters, the defendant, as a common carrier, was held liable for the injury. In Croaker v. Chicago and Northwestern Ry. Co. 36 Wis. 657, where the conductor of a railroad train kissed a female passenger against her will, the court, in an elaborate opinion, held the railroad company liable for compensatory damages. It is there said: “We can not think there is a question of the respondent’s right to recover against the appellant for a tort which was a breach of the contract of carriage.” In Shirley v. Billings, 8 Bush, 147, where a passenger on defendant’s boat was assaulted and injured by an officer on the boat, the defendant was held liable. See, also, McKinley v. Chicago and Northwestern R. R. Co. 44 Iowa, 314, and N. O., St. L. and C. R. R. Co. v. Burke, 53 Miss. 200. Many other authorities holding the same doctrine might be cited, but we do not regard it necessary. It is true there are authorities holding the opposite view, but we do not think they declare the reason or logic of the law, and we are not prepared to follow them.

The appellant was a common carrier of passengers. As such it was not an insurer against any possible injury that a passenger might receive while on the train, but the company was bound to furnish a safe track, cars and machinery of the most approved quality, and place the trains in the hands of skillful engineers and competent managers,—the agents and servants were bound to be qualified and competent for their several employments. Again, the law required appellant, as a common carrier, to use all reasonable exertion to protect its passengers from insult or injury from fellow passengers who might be on the train, and if the agents of appellant in charge of the train should fail to use reasonable diligence to protect its passengers from injuries from strangers while on board the train, the comioany would be liable. So, too, the contract which existed between appellant as a common carrier and appellee as a passenger, was a guaranty on behalf of the carrier that appellee should be protected against personal injury from the agents or servants of appellant in charge of the train. The company placed these men in charge of the train. It alone had the power of removal, and justice demands that it should be held responsible for their wrongful acts towards passengers while in charge of the train. Any other rule might place the traveling public at the mercy of any reckless employe a railroad company might see fit to employ, and we are not inclined to establish a precedent which will impair the personal security of a passenger.

We are of opinion that the evidence showed a legal cause of action in plaintiff, and the court did not err in overruling the motion to exclude the evidence from the jury. Two instructions given for the plaintiff have been somewhat criticized, but we think they were in the main correct.

The judgment will be affirmed.

Judgment affirmed.


text:
    John B. Zanone v. Mound City.

      Filed at Ottawa May 12, 1882

      Rehearing denied September Term, 1882.

    1. License—to keep a dram-shop—arbitrary discrimination as to persons. Under a general ordinance of a city for licensing dram-shops, the city .authorities have no right to make an arbitrary discrimination in granting licenses. They can not grant the same to a favored few and refuse it to another who has in all respects complied with the ordinance and laws of the State, and who is admitted to be in every respect a suitable person.

      2. The business of dealing in liquor is recognized by the constitution as a legitimate business, and a license to keep a grocery or dram-shop is placed in the same category with licenses to carry on any other lawful business, and it must be dealt with according to law, and special privileges are not to be granted to particular persons.
    3. Same—extent of limitation—and in what manner to be prescribed. The court is not prepared to decide that municipal authorities may not refuse a license to persons of such habits and character as render them unfit persons to be licensed, or that they may not limit the number of dram-shop keepers to be licensed; but this must be done, if at all, by ordinance, and it would seem that in such a case, to avoid favoritism and monopoly, some provision should be made for a fair competition among suitable persons seeking such privileges.
    4. Same—when the granting will be compelled by mandamus. Any one who has brought himself strictly within the requirements regulating the licensing power, may compel by mandamus the corporate authorities to grant him a license when it is refused through mere caprice.
    5. Municipal corporations—of their powers, and in what manner to be exercised. Municipal corporations are "mere creatures of the legislative will, and can exercise no powers except such as the State has conferred on them. All powers they possess are held by them in trust for the people of the municipality, and for the public generally. Their governmental and administrative powers, other than those conferred by statutory or constitutional enactment, which are self-executing, can only be exercised by appropriate ordinances.
    6. Ordinances—of their requisites. Ordinances must be general in their character, and operate equally upon all persons within the municipality of the same class to whom they relate; they must not be in violation of any law, contrary to public policy, or unnecessarily oppressive, and must not unjustly and arbitrarily discriminate between citizens of the same class.
    This is an original application in this court by John B. Zanone, against the authorities of Mound City, to compel them to grant him a license to keep a dram-shop within the city. The respondents demurred to the petition.
    Messrs. Mulkey & Leek, for the relator:
    The petition shows everything necessary to entitle the relator to the relief sought, and this is admitted • by the demurrer. The power of the city to grant the license is expressly given, and it can not be pretended that the act sought to he enforced is in itself unlawful. The power of the city to license has been carried into effect by a general ordinance. People ex rel. Besse v. Village of Crotty, 93 Ill. 180.
    The ordinances of such corporations must be reasonable, and such as are vexatious, unequal or oppressive, are void. City of Chicago v. Rumpff, 46 Ill. 96.
    Any suitable person bringing himself within the requirements of an ordinance for licensing a calling, will be entitled to have a license, and it can not arbitrarily be refused to him and granted to others. City of East St. Louis v. Wehrung, 50 Ill. 32. See, also, People ex rel. Besse v. Village of Crotty, 93 Ill. 180, and Prather et al. v. People, 85 id. 36.
    Mr. Samuel P. Wheeler, for the respondents:
    The ordinance of the city provides that no license shall be issued by the clerk until the application for the same shall have been presented to and approved by the city council, and an order made for the issuing of the same. Without this ordinance the relator could not be licensed at all. People v. Village of Crotty, 93 Ill. 180.
    A license is a privilege which may be granted or denied. Had the ordinance been general in its terms, giving to any one the privilege, upon paying a certain sum and giving a bond, making the issuance of the license a mere ministerial act, the case would be different, and a mandamus might be awarded, as intimated in Kadgihn v. City of Bloomington, 58 Ill. 229.
    The city council has complete control of this matter. They, may refuse any and all licenses, or may grant licenses for the sale of wine and beer only, or in quantities of one gallon and over, or may license on particular streets. This discretion being vested in them, it will not be taken from them by the courts. The exercise of such discretion by the council is final, and not subject to review.
    The courts have always held that where the performance of a duty is discretionary, mandamus to compel such performance will not lie. The first step towards obtaining a license, is an application to the city council. This is not a mere matter of form, and to be granted of course. It means something more.
   Mr. Justice Dickey

delivered the opinion of the Court:

This is an application for a mandamus from this court, sought by John B. Zanone, a resident of Mound City, against the municipal authorities of that city, to compel them to issue to him a license to keep a dram-shop within the corporate limits of the city. The case is submitted for final decision upon a demurrer to the petition.

It is charged in the petition, and confessed by the demurrer, that Mound City is organized under the general law of 1872, for the incorporation of cities and villages; that prior to this proceeding the city council passed a general ordinance providing for the issue of licenses to keep dram-shops within the city, upon certain conditions set out in the ordinance; that the petitioner, in strict conformity with all the conditions and requirements of the ordinance, made application for such license, tendering to the city clerk, the proper officer, the license fees fixed by the ordinance, and also a good and sufficient bond, as provided by the 5th section of the Dram-shop act—both of which were refused without any reason being assigned therefor, and that the application for license was denied; that about the time of, and both before and after, his application, the respondents issued licenses to a number of other applicants to keep dram-shops in the same block of the city in which was the location where petitioner proposed, in his application, to keep one. It is also, in the same manner, alleged in the'petition and confessed by the demurrer, that the petitioner is in every respect a suitable person to be licensed to carry on such business, and that he is the only person whose application for such a license has ever been refused by the municipal authorities. In short, the record shows a clear and unequivocal case of arbitrary discrimination on the part of the defendants against the petitioner. No excuse, justification or explanation is shown or offered by defendants for their action in this regard.

It is claimed by counsel for defendants that the city council, as a matter of law, has the right to exercise this arbitrary discrimination in the matter of granting licenses. No authority has been cited which sustains this position, and we have found none. To so hold w'ould be a departure from some important fundamental principles which underlie municipal government, as framed under our constitution and laws. Municipal corporations are mere creatures of the legislative will, and can exercise no powers except such as the State has conferred upon them. All powers they possess are held by them in trust for the people of the municipality, and for the public generally. Their governmental and administrative powers (other than those conferred by statutory or constitutional enactments, which are self-executing,) can only be exercised by appropriate ordinances. Such ordinances must be general in their character, and operate equally upon all persons within the municipality, of the class to which the ordinance relates. Such ordinances must not be in violation of law, contrary to public policy, or unnecessarily oppressive, and must not unjustly or arbitrarily discriminate between citizens of the same class. These views are not new. On this subject this court has said: “All by-laws should be general in their operation, and should bear equally upon all the inhabitants of the municipality. Where privileges are granted by an ordinance, they should be open to the enjoyment of all upon the same terms and conditions.” (City of Chicago v. Rumpff, 45 Ill. 97.) The business of dealing in liquors is recognized by the constitution as a legitimate business, and license to keep a grocery or dram-shop is placed in the same category with license to carry on the business of a merchant, in eases where a merchant may lawfully be required to take out a license. So long as the law recognizes the business of keeping a dram-shop as a legitimate business, that business must be dealt with according to law, and special privileges are.to be granted to the favored few in that business no more than in any other lawful business, whatever may be the private feelings or views of judges or other public officers. Whether a license be that of a merchant, a peddler, or a keeper of a dram-shop, it confers a privilege upon the citizen for which the law requires a fixed compensation to be paid, and the privilege must be open alike to all citizens of the municipality in and on like conditions.

The case of the City of East St. Louis v. Wehrung, 46 Ill. 392, recognizes the principle that the licensing power can only be exercised through general ordinances operating uniformly upon all persons in like conditions. The case of East St. Louis v. Wider, 46 Ill. 351, decides, expressly, that mandamus is the proper remedy where an applicant has brought himself within the provisions of such an ordinance, and the municipal authorities refuse the license.

The Wehrung case, supra, was an action for a penalty imposed by an ordinance for selling intoxicating liquors without a license. The ordinance was held invalid because it authorized the city treasurer to fix the amount of the license fee to be required of each applicant, and also permitted him, with the concurrence of the mayor, to reject arbitrarily any application he might think proper. It was held that the municipal authorities could not delegate their powers, and also that the discrimination provided for could hot be lawfully exercised by the corporate authorities. If an ordinance providing for such arbitrary discrimination be void for that cause, it can not be lawful for the municipal authorities to accomplish the same end by indirection, by conforming to the law in making the ordinance general on its face, and at the same time defeating the requirements of law by the mode of carrying the ordinance into effect.

The doctrine that any one who has brought himself strictly within the. requirements regulating the licensing power may compel, by mandamus, the corporate authorities to grant him a license where it is refused through, mere caprice, is recognized, either expressly or by necessary implication, in all the cases bearing upon this subject to which our attention has been called. In the case of The People v. The Village of Crotty, 93 Ill. 180, an application for a mandamus to compel the village authorities to issue a dram-shop license was denied, under the circumstances of that case, because no bond was 'tendered, and no ordinance providing for license was shown; but the right to the writ was fully recognized, in cases of this character, where a general ordinance has been passed, and where the applicant has clearly brought himself within the provisions of the ordinance and of the law. Viewed in a legal aspect, in the light of the decisions of this court, no distinction can be perceived in this regard between applications for a merchant’s or a peddler’s license and applications for license to keep a dram-shop.

Equality before the law is a fundamental principle of our institutions, and no reason is perceived why applicants for license to keep a dram-shop, who are suitable persons to be licensed, should not stand on an equality before the law. Captious discriminations among men of that trade are as obnoxious as would be such discriminations in regard to other trades. Were this an application, under like circumstances, for a license to peddle, or to carry on the business of a merchant, could there be any doubt about the right of the applicant? It is claimed that municipal authorities may' exercise a discretion in such matters. We do not decide that they may not refuse license to persons of such habits and character as render them unfit persons to be licensed. In this case the authorities had not decided that the applicant was not a fit man -to be licensed. On this record it stands confessed that the applicant is a suitable person to be licensed. We do not decide that the municipal authorities may not limit the number of dram-shop keepers to be licensed, but this must be done, if at all, by ordinance. And it would seem that in such case, to avoid favoritism and monopoly, some provision should be made for a fair competition among suitable persons seeking such privileges.

Being of opinion that the record shows a clear right in the relator, the peremptory writ sought by the petition is ordered to be issued. ..

„ 7 Writ allowed.

Mr. Justice Scott : I dissent in toto from this opinion.

Mr. Justice Walker : I do not concur in this judgment.

Mr. Justice Sheldon also dissents.


author: Mr. Justice Scholeield

text:
    Asahel Gage v. Chauncey C. Starkweather.

      Filed at Ottawa May 12, 1882

      Rehearing denied September Term, 1882.

    Appeals and writs op error—whether a freehold involved—on bill to redeem land from tax sale. A bill in chancery to set aside a tax deed upon the ground it is without a seal, and so inoperative as an instrument of conveyance, is, in effect, simply a bill to redeem. A title invalid upon its face does not amount to a cloud. And while a redemption in such case may ultimately affect a freehold, the question of the right to redeem does not involve a freehold. So the case can not be brought from the trial court directly to this court for review, there existing none of the other conditions to give jurisdiction.
    Writ oe Error to the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    On the 9th of May, 1879, Chauncey C. Starkweather filed in the office of the clerk of the Superior Court of Cook county his bill in chancery against Asahel Gage, and therein, in substance, alleged that he was the owner of lot 37, in Rawson’s subdivision of lots, in Bradley and Honore’s subdivision of the west half of the north-east quarter of section 14, town 39, range 13, and has been such owner since the 15th day of May, 1875; that said lot was sold to Henry H. Gage for $9.90 on the 9th day of April, 1873, for the State and county taxes of 1871; that said lot was sold to 'the city of Chicago on the 6th day of November, 1874, for $4.87, for the taxes of 1873; that the lawful time of redemption from the first sale did not end until November 7, 1876, and that Asahel Gage, the assignee of Henry H. Gage, applied for and received from the county clerk, on March 15, 1876, a tax deed to said lot, which was duly recorded; that said deed, as appears by the record thereof, is not under seal, and if the same is now under seal said seal has been affixed since the record thereof, without warrant of law; that said lot was taxed in the name of J. G. Dietz, for the taxes of 1872, 1873, 1874 and 1875; that defendant, Gage, filed with the county clerk, as proof of compliance with the law, first, his own affidavit, reciting that he had published in the “Chicago Daily Courier, ” on December 7, 8 and 9, 1874, a notice that he had bought said premises April 19, 1873, that they were taxed in the name of J. G. Dietz, and that the time of redemption would expire April 19, 1875; second, the affidavit of E. L. Couch, reciting that he was the agent of Asahel Gage, that the lot was vacant September 2, 1873, and was taxed in the name of J. G. Dietz, that he made diligent search for said Dietz, and was unable to find him, and that he is a non-resident; and third, the certificate of sale assigned by said H. H. Gage to said Asahel Gage, said assignment not being under seal; that in 1873, 1874, 1875 and 1876, the said J. G. Dietz, in whose name the lot was taxed, resided in Chicago, and his name and address appeared in the directory for that year; that said deed is a cloud upon complainant’s title, and prevents the disposal of the same. Prayer for summons to said Gage, and that upon a final hearing the said tax deed may be set aside and declared to be void. Complainant offers to pay the taxes and assessments paid by said Gage, with six per cent interest, as a condition of said relief, and prayer for general relief.
    The court overruled the demurrer, and the defendant electing to stand by his demurrer, decree was rendered in accordance with the prayer of the bill. Gage prosecutes the present writ of error to reverse that decree.
    Mr. Augustus N. Gage, for the plaintiff in error.
    Messrs. Mason Brothers, for the defendant in error.
   Mr. Justice Scholeield

delivered the opinion of the Court:

This writ must be dismissed. No freehold is involved, and there is no other ground upon which we can entertain jurisdiction. The bill, in effect, is simply a bill to redeem. The so-called tax deed is alleged in the bill, and admitted by the demurrer, to have been without a seal, and so it is of no effect as an instrument of conveyance. (Pile v. McBratney, 15 Ill. 314.) Where title is invalid on its face, so that it can never be successfully maintained, it does not amount to a cloud, but may always be repelled by an action at laiv. (Overing v. Foote, 43 N. Y. 290; Ward v. Dewey, 16 id. 519; Maloy v. Dougherty, 16 Wis. 269; 2 Story’s Equity, see. 700 a.) Necessarily, therefore, a bill to set aside such an instrument as that here alleged and admitted, could not involve a freehold, and although a redemption may ultimately affect a freehold, the question of the right to redeem very clearly involves no freehold. If the right be established, the decree is simply that the party be allowed to redeem, leaving the title just as it is.

The writ of error is dismissed.

Writ of error dismissed.