text:
    The Village of Brooklyn v. James A. Smith.

      Filed at Mt. Vernon September 29,1882.

    1. Streets—boimded upon navigable stream—of their width—whether limited by figures on the plat. A town was laid out in this State, on the eastern bank of the Mississippi river, and in the recorded plat thereof a street was designated between the western tier of blocks and the river, called “Water street, ” marked as eighty feet* wide, but the western line of the street on the plat was not a straight line, but an irregular, wavy line, indicating the river as its western boundary, and the proprietors expressly reserved on the plat the exclusive right to all ferry privileges, and the proof showed that such street had always been treated and used as extending to the river, until recently: Held, that such street must be considered as extending to the river, and that the designation of the width of the street was not to limit its width, but to show the average width between the front tier of block's and .the river.
    2. A street bounded upon a navigable stream, above high water mark, like a grant so bounded, will extend to the center of the stream, unless an intention is clearly shown in the grant or act laying out the street, to stop at the , edge of the river.
    3. Same—diminishing width of streets by a re-survey and re-platting. It is the original plat, properly executed and recorded, and the act of the original proprietors of a town in making the same, that make a dedication of land for a street; and the corporate authorities of such'town, after its incorporation, have no power to change or subtract from such dedication by any re-surveying and re-platting of the lots and streets. The original survey and dedication must prevail in such case, and the village or town will not be estopped from insisting on the dedication as originally made.
    4. Same—plat—operates as a grant. The acknowledgment and recording of a plat of a town by the proprietors of the land so laid out into lots and streets, under the statute, has all the force of an express grant to convey from them the land embraced by the streets, and vest it in the corporation.
    5. Same—in whom, the fee vests—and for whom,. The fee of the streets of a village laid out by plat under the statute, and recorded, is held by the corporation in trust for the benefit of the lot owners and the public. If the village has not a corporate existence, the fee in the streets regains in abeyance, subject to vest in the corporation the moment it is created.
    6. Ice—ownership therein. In Washington Ice Co. v. Shortall, 101 HI. 46, it was held that ice formed upon a stream of water belongs to the owner of the bed of the stream. So where a street of an incorporated village situate upon the bank of the. Mississippi river, extends to the center of the stream, the fee of the street is'in the" corporation for'thé benefit of the lot owners and the public, and the village authorities ■ may properly interpose to prevent an intruder from cutting and removing ice which may have formed upon such street.
    Appeal from the Appellate Court for the Fourth District; —heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    The bill in equity in this case for an injunction, filed December 27, 1879, sets out that on the 23d day of December, 1876, James A. Smith, the complainant, leased all that part of United States survey No. 764, in St. Clair county, Illinois, which lies west of Water street, in the town of Brooklyn, and extending to the center thread of the Mississippi river, from James Purdy and wife, they then being in the actual possession thereof; that complainant then took possession of said tract of land, and placed on the shore of said river the necessary works to carry on his business of gathering ice from the river, and had gathered the crops of ice for the winters of 1876-77, and 1878-79, there being no ice crop fit to gather in the winter of 1877 and 1878; that complainant had made all the necessary arrangements to gather the present ice crop formed and forming on said land leased by him, at great trouble and expense, and had taken possession of the ice, staked it out, and his servants were engaged in marking it out for cutting; that if he was hindered from such work he would suffer irreparable injury; that the village of Brooklyn had arrested complainant’s servants, and threatened to continue arresting them, and" had sent one Joseph Yoise to interfere with complainant, and to cut ice on his said land, and that said Yoise threatened to enter upoh'and cut said ice, while the village protected him by its police force, and by the continuous arrest of complainant’s employés; that none of said lands or ice were within the limits of said village of Brooklyn. The village of Brook? lyn and Voise were made parties defendant, and - the bill asked that they, their officers and servants, be- enjoined from in any manner interfering with the complainant in and about gathering the ice crops on all that part of the Mississippi river lying west of Water street, of the village of Brooklyn, or included in United States survey No. 764, and from enter? ing thereupon to cut, or-from cutting, ice thereon, or from arresting or in any other manner prosecuting the complainant, his servants, agents or- employés, in carrying on his -business. Upon the filing of the bill a temporary injunction was granted. The answers of the defendants denied the possession, or any right of Purdy or complainant, insisting they were but mere trespassers; denied that, there was any land between the west line of said Water street and the river, and insisted that Water, street was bounded by.the river; that the premises in question formed a* part of Water street, and were within the corporate limits of the village of Brooklyn, and that any arrest, or threatened arrest, of complain? ant’s servants, was for the violation of an ordinance of said village in relation to the interference with, or obstruction of, the public landing or streets of such village. Upon final hearing, on proofs taken, a decree was entered in favor of the complainant, making the injunction perpetual, which, on appeal to the Appellate Court for the Fourth District, was •affirmed, and a further appeal then taken to this court.
    It appears that the town of Brooklyn was laid out in 1837, by the five proprietors, Collins, Austin, Tabor, Morris and Osborn, on the east bank of the 'Mississippi river, in St. Clair county, The town was surveyed and platted, and the plat recorded. The proprietors had a public sale of lots the next year, and disposed of some lots, and, as one witness says, eventually sold the lots out, from time to time. In 1839 several houses were erected on the lots, and in 1840 quite a number of houses had been put up. The witness Stiles stated that he moved there in 1841, and that there must have been between forty and fifty families, and that there was quite a village there at that time; that he bought lots of Osborn, one of the proprietors, and they sold lots from time to time to different parties; that at that time he crossed the river in the ferry boat “Brooklyn; ” that Water street then •ran parallel, with the river, and to the water’s edge, and steamboats came there and loaded.
    In 1845 the General Assembly passed an act, “that the entire town plat of the town of Brooklyn, as laid off and recorded, is hereby declared to be vacated: Provided, this act shall not interfere with or prejudice the rights of any individual or individuals who may have become the purchaser of any lot or lots in the aforesaid town.” In 1873 the village was incorporated under the general law, embracing the old town and some additional territory. It had not been incorporated before that time.
    Extensive accretions had formed on the river front of the town, comprising an area of one hundred acres or more. In the latter part of the year 1873, Louisa J. Purdy, the wife of James H. Purdy, took possession of this, ground, claiming to be owner, as her husband says, under deeds from the heirs of Thomas Osborn, made in the years 1873, 1874, 1875, and, possibly, 1876. Mrs. Purdy enclosed the ground on three sides, with a fence composed of a board nailed on posts, and put up on the land a board shanty. Part of the fence was washed away the next spring of 1874, and in 1876 what remained of the fence and the shanty was entirely carried away by the high water. From 1873 Mrs. Purdy kept the ground leased to successive tenants, from time to time, till December 23, 1876, when Mrs. Purdy and her husband, James H. Purdy, who was a lawyer in St. Louis, leased the premises to the complainant, an ice dealer in St. Louis, for the term of ten years. On December 16, 1879, the village authorities passed an ordinance “to prevent encroachments on the river front, ” making it a misdemeanor, punishable with fine, for any person to trespass or encroach upon or interfere with that part of the river front of the town lying between the easterly line of Water street and the center of the Mississippi river, for the purpose of controlling the formation of ice by artificial means, or for the purpose of cutting or taking away ice, or for any other purpose, without permission from the board of trustees, and making it the duty of the village constable to arrest all persons found violating the ordinance, upon view, and take them before the proper magistrate, to be dealt with, etc. It was under this ordinance that the arrests complained of were made, or threatened to be made. The ground was a sand-bar, which was overflowed every spring, and all the use made of it was for the purpose of taking the ice.
    The original recorded plat of the town shows a tier of blocks, six in number, on the west side, and in front of them a street, designated Water street. The surveyor’s certificate states the width of this street to be eighty feet.
    William H. Cohens, a civil engineer, residing in St. Louis, testified that in the spring of 1837 he was employed by Collins and Tabor, two of the five proprietors, to lay out the town of Brooklyn, in Illinois, fronting on the eastern bank of the Mississippi river; that he surveyed and platted the town, and got the county surveyor of St. Clair county to verify and adopt his work, so that it might go of record; that the latter did so, and the plat was recorded, and the witness recognized the recorded plat in evidence as the one he made. He says that Collins and Tabor visited the land with him, and designated the work to be done; that Water street “was located on the high bank, and extended from the front of the town to the bank of the river, and followed the course of the river from north to south, and was on an average about eighty feet wide, sometimes more, on account of irregularities of the river bank; all the land west, extending westwardly from the front of the Mocks fronting towards the river, was considered Water street, whatever that might be.” Upon the plat is the following, signed by the proprietors: “We, the undersigned, proprietors of Brooklyn town, in disposing of and recording said lots and streets, reserve to said proprietors the exclusive right to all ferry privileges to us, our heirs and assigns forever.” Upon the incorporation of the village, in 1873, the board of trustees employed one Ludwig to re-survey the original town of Brooklyn, which he did, and made a plat, which was accepted and adopted, and recorded. Upon this plat the western boundary of Water street appears to be a straight line, which touches the river at only one point, showing considerable space between such line and the river. The defendant Voise had permission from the village authorities to take the ice, and men under him had marked off the ice, and put a platform there, with the view of cutting and taking the ice before the complainant came there for that purpose.
    Mr. Wm. P. Latjntz, and Mr. M. Millard, for the appellant:
    The bill does not allege that Smith or his lessees had or claim title. It claims nothing more than possession, and the proof fails to show an occupancy or use of the ground. An injunction will not be granted in such a case. Title must be averred and proved when rights in respect to land are involved. Gleason v. Village of Jefferson, 78 Ill. 399.
    Laying out the town and recording the plat was a dedication of the streets for the use of the public, and when the corporation was created, the legal title vested in it. Until that time the fee remained in abeyance. Canal Trustees v. Haven, 11 Ill. 555; Gebhardt v. Reeves, 75 id. 301. But the dedication was just as effectual without incorporation. Leech v. Waugh et al. 24 Ill. 228.
    A dedication along the margin of a navigable stream must be construed with reference to its objects, such as affording a public landing, as well as for the purpose of a street. Godfrey v. City of Alton, 12 Ill. 29.
    The action of the local authorities in re-platting the town, in which the street is marked as eighty feet wide, was without power to bind any one. * It was a mere nullity, so far as the public easements were concerned. Where such authorities proceed without authority, no estoppel can arise. Taylor v. People, 66 Ill. 322.
    It is only when such acts have induced persons to rely on them, and it would be a.clear denial of justice to a meritorious claimant, that an estoppel can be allowed against the public. Chicago et al. v. Wright, 69 Ill. 328.
    Mr. B. P. Wingate, for the appellee:
    The re-survey of the town estopped the public from claiming that Water street, in extent, differed from the Ludwig survey and plat. Belying upon this plat showing the width of the street, complainant took his lease beyond the street. Gentleman v. Soule, 32 Ill. 271; Chicago v. Wright, 69 id. 328.
    When a line is drawn along the limits of a street, the legal consequence is that the ground between such limit and the water’s edge is reserved by the proprietors, unless the contrary is shown. Barclay v. Howell, 6 Pet. 398.
    Purchasers of lots on Water street may have paid a higher price because they would always have an open front toward the river, but they took by their purchase no right to control the land of the proprietors on the river. McLaughlin v. Stevens, 18 Ohio, 94. The mere circumstance that the river flowed by the town, raises no presumption that any ground formed between it and the town plat was dedicated as a wharf or public landing. Cowles v. Gray, 14 Iowa, 1.
    The town was not incorporated until 1873-4. Therefore from the passage of the act vacating the plat, in 1845, the fee to the streets and alleys was vested in the State, which then, by that act, relinquished that fee, and revested it iii the original grantors. Waugh v. Leech, 28 Ill. 488; 24 id. 228.
   Mr. Justice Sheldon

delivered the opinion of the Court:

The principal inquiry which arises in this case, as we view it, is as to the extent of Water street, in the town of Brooklyn, as it was originally laid out and platted—whether the western boundary of that street was the Mississippi river, or a straight north and south line, distant eighty feet west from the. front and west tier of blocks in the town. The complainant contends that the latter is the western boundary line of the street, and that this is conclusively determined to be so from the statement on the plat of eighty feet as the width of the street.

Under the circumstances appearing in this case, we can not regard this mention on the plat of the width of the street as fixing the western boundary of Water street to be a line eighty feet west from the western line of the town lots. Here is a town laid out upon the bank of a navigable river, with Water street in front of the town, between it and the river, and the idea of the street not extending to the river seems preposterous. Of what use to the proprietors' would be the reservation to them of anything between the street and the river, and what a lessening of the value of a town site upon a navigable stream would be the absence of a public landing ? It must be supposed that such a town is laid out with reference to the use and enjoyment of the river. A public landing would be viewed as a thing of prime interest, which would be an element of value pertaining to every town lot which was to be sold. As was said by this court m a similar case,— Godfrey v. The City of Alton, 12 Ill. 29: “This stream is a public highway. In contact with this another easement is granted, and .the very location of it shows it was designed for the purpose of lading and unlading freight and landing passengers from the water communication, as much as the laying out of an interior street would show it was designed for the use of travelers hy land.” The western line of Water street, as marked upon the original plat, is not a straight line, hut an irregular, wavy line, denoting, as we take it, the meandering of the river, and thus indicating the river to be the boundary. The express reservation, on the plat, of the exclusive right to all ferry privileges, indicates the understanding of the proprietors that Water street extended to the river. We have the express testimony of the civil engineer who laid out the town under the supervision of two of the 'proprietors, who visited the ground" with him and designated the work to be done, that Water street extended from the front of the town to the bank of the river, and followed the course of the river from north to south,—that all the land west, extending westwardly from the front of the blocks fronting towards the river, was considered Water street, whatever that might be. We can have no doubt, from all that appears in the case, that the western boundary of Water street was the Mississippi river. All the meaning that we can ascribe to the designation of eighty feet as the width of the street, is, that that was about the average width of the space between the front tier of blocks and the river.

A point is made upon the subsequent plat made by Ludwig in 1873, upon the incorporation of the village, its adoption and being placed on record by the board of trustees, as ¿stopping the village from claiming Water street to be any greater in extent than it appears to be as marked on that plat. It was the original plat, and the original proprietors that made the dedication. The board of trustees, or Ludwig, had no power to make any dedication, or to subtract from the original dedication. There was no authority of law for the making or recording of this plat of Ludwig. Ludwig was employed only to make a re-survey of the old town. If he misconceived the extent of Water street, and made it to appear less than it in truth was, he would have failed to make an accurate re-survey; but that would not matter—it would he the original survey and dedication which would prevail. We can not see in all this any elements for the founding of an estoppel against the village from claiming Water street in its integrity, as originally laid out. The fee of the street, as thus laid out, is held by the corporation for the benefit of the lot owners and the public.

The legislative vacation of the original plat, in 1845, is insisted upon as an annulment of that plat. This might well be, had there been no sale of lots; but at that time many, if not all, the lots had been sold. The right to the use and enjoyment of this Water street for a street and public landing, appertained to these lots as a valuable privilege, and the legislature did not undertake to do the unjust thing of destroying such rights; but the act of vacation contained the express proviso that the act should not interfere with, or prejudice, the rights of any individual or individuals who might have become the purchaser of any lot or lots in the town. The evidence, perhaps, does not show distinctly that all of the lots had then been sold, but it warrants the conclusion that a large number, if not all, had been sold. The interests of these lot owners, by its express terms, are unaffected by the act, and it is through this village corporation that they may be protected and asserted. The legal title to the streets is vested in the corporation, for the use and benefit of the lot owners and the public. It does not matter that the town had no corporate existence at the time the act was passed. If the town has not a corporate existence, the fee in the streets remains in abeyance, subject to vest in the corporation the moment it is created. (Canal Trustees v. Haven, 11 Ill. 554; Gebhardt v. Reeves, 75 id. 301.) We must regard this vacating act as inoperative upon any rights here involved.

Finding, as we do, the boundary of Water street to be on the Mississippi river, the stre’et extended to the center of the river. Grants of land bounded on rivers or upon their margins, above, tide water, carry the exclusive right and title of the grantee to the center of the stream, unless the terms of the grant clearly denote the intention to stop at the edge of the river. (Braxon v. Bressler, 64 Ill. 488, and authorities there cited.) The premises in question, then, were in Water street, of the village of Brooklyn.

It appears from the evidence that Water street was ever regarded by the inhabitants of the village as extending to the river,' and so used, with no pretense ever made of any private claim to the contrary, until in 1873, when Mrs. Purdy went upon the river front and fenced a portion of it, claiming title, as her husband says, under deeds from the heirs of Osborn. No deeds were shown in evidence. But supposing there had been shown deeds from Osborn’s heirs, they would have conveyed but Osborn’s interest, which at most could have been only a one-fifth interest, as one of the five original proprietors. But Osborn left no interest to descend and be conveyed. The acknowledgment by him and recording of the original plat, had all the force of an express grant to convey from him the land embraced by Water street, and vest it in the corporation of the village. (Canal Trustees v. Haven, supra.) The corporation was the owner in fee of the streets. In Washington Ice Co. v. Shortall, 101 Ill. 46, we held ice formed upon a stream of water to belong to the owner of the bed of the stream.

The case presented seems to be that of an intruder upon the public street of a village seeking an injunction against the village authorities to prevent their interference with his operations in cutting and removing ice from the street—that is, a trespasser asking against the legal owner freedom from interruption in the despoilment of the latter’s property. We perceive no right in the complainant which may lay claim to the interposition of a court of equity for its protection.

The decree will be reversed, and -the cause remanded for further proceedings in conformity with this opinion.

Decree reversed.

Mr. Justice Mulkey dissenting.


source: Caselaw Access Project

author: Mr. Justice Mulkey Mr. Justice Cbaig : Mr. Justice Dickey :

license: Public Domain

text:
    St. Peter’s Roman Catholic Congregation v. Nicholas Germain.

      Filed at Mt. Vernon June 21,1882

      —Rehearing denied November Term, 1882.

      1. Statutes—when two are construed together. All statutes relating to the same subject matter should be construed in pari materia, so as to give them all their appropriate effect and operation, unless there is some imperative reason for departing from this rule.
    2. ¡Religious societies—limitation upon their right to acquire lands. The limitation in the Revised Statutes of 1845, and in the act of 1872 on the same subject, as to the capacity of religious societies or corporations to acquire and hold real estate, applies to such societies formed under the act of 1869, though that act contains no words of limitation, and hence when a religious society organized under the act of 1869 has acquired ten acres of land, all contracts and conveyances to it of any other real estate are void, as falling within the statutory limitation upon its capacity.
    3. It is a well settled rule that when a corporation is forbidden to take or receive lands, such prohibition goes to its capacity to acquire, and a deed made to it under such circumstances passes no title, and the conveyance will be absolutely void; and the same rule applies when such corporation has once exhausted its capacity in- acquiring land to the limit that is given.
    4. Corporation—limitation of powers by subsequent legislation. Where a general law for the incorporation of corporate bodies contains no limitations as to the capacity to acquire and hold lands, but declares that ■ such act shall be subject to any limitation or modification that may thereafter be enacted by general law as to the amount of real estate to be held by such corporations, a subsequent general law limiting their capacity to acquire lands to ten acres will bind them, and any conveyance to them of land afterwards, when they have already acquired ten acres or more of land, will be null and void.
    Writ oe Error to the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.
    Mr. Charles W. Thomas, for the plaintiff in error:
    The plaintiff was, by section 2 of the act of 1869, (Laws 1869, p. 67,) under which it was organized, unrestricted as to its power to receive, hold, dispose of and convey any kind of property. The legislature, however, by section 10 of the same act, reserved the right to limit, by general law, the power of corporations organized under that act to hold real estate, there being no reservation in the act concerning the power to receive, dispose of or convey any kind of property.
    The general Incorporation law of 1872, (Rev. Stat. chap. 32, sec. 42,) the only general law upon the subject, contains no provision limiting the holding of land, and has therefore no application to corporations formed under the act of 1869. There is a broad distinction between the power to take and the power to hold. Angel! & Ames on Corporations, sec. 152; Banks v. Poitiaux, 3 Rand. 136.
    But even conceding that the general Incorporation law applies to corporations formed under the act of 1869, there being a power given by the former law to take a limited quantity of land, the question whether any religious corporation has received more land than is permitted by law, is one which can only be raised by the State in a direct proceeding. DeCamp v. Dobbins, 29 N. J. Eq. 36; Perry on Trusts, sec. 45; Bogardus v. Trinity Church, 4 Sandf. Ch. 633; Wade v. Am. Col. Society, 7 S. & M. 663; Angell & Ames on Corp. secs. 151-153, 777; 2 Washburn on Real Prop. 567; Vidal v. Philadelphia, 2 How. 191; Leazure v. Hillegas, 7 S. & R. 313.
    Nor do the cases of Carroll v. East St. Louis, 67 Ill. 568, Starkweather v. American Bible Society, 72 id. 50, and United States Trust Co. v. Lee, 73 id. 142, in any manner deny the principle established by the authorities above cited.
    Messrs. Hat & Knispel, and Mr. A. S, Wilderman, for the defendant in error:
    We contend the judgment of the circuit court is right, and ought to be affirmed, because—
    First—If plaintiff in error has no title, no matter why, it can not succeed. It must succeed upon the strength of its own title—in other words, it must have the legal title to the lands in question, or be defeated in this action, and an equity will not do. Fischer v. Eslaman, 68 Ill. 78; Sidwell v. Schumacher, 99 id. 426; Stumpf v. Osterhage, 94 id. 115; Mester v. Hauser, 94 id. 433; Cobb v. Lavalle, 89 id. 331.
    Second—If the plaintiff in error was prohibited by law from taking and holding lands, then the deed under which it claims title was void, and passed no title to it; hence the point made by counsel for plaintiff in error, that the question of power, etc., can be raised by the State only, has no application. Penn v. Bornman et al. 102 Ill. 523; Cincinnati Mutual Health Association v. Rosenthal, 55 id. 85; Carroll v. East St. Louis, 67 id. 568; Starkweather v. American Bible Society, 72 id. 50; United States Trust Co. v. Lee, 73 id. 142; Fridley v. Bowen, 87 id. 151; Bank of the United States v. Owens, 2 Pet. 527.
    Third—But the plaintiff in error was and is prohibited by law from taking the lands in question; therefore the deed was void, and plaintiff in error took no title, and so can not maintain this action. Rev. Stat. 1874, ch. 32, sec. 42; Public Laws of 1869, p. 67, sec. 10; Carroll v. East St. Louis, 67 Ill. 568; Starkweather v. American Bible Society, 72 id. 50; United States Trust Co. v. Lee, 73 id. 142; Fridley v. Bowen, 87 id. 151.
    Fourth—The power to regulate corporations exists in government to the same extent that it does to regulate individuals. There qan be no vested right to do wrong, and generally there can be no vested right to be exempt from the operation of the general laws of the land, whether such right be claimed by an individual or a corporation. Bank of the Republic v. Hamilton County, 21 Ill. 53; Ruggles v. The People, 91 id. 256; Illinois Central R. R. Co. v. The People, 95 id. 313; Ward v. Farwell, 97 id. 593; Gulliver v. Roelle, 100 id. 141; M-unn v. The People, 69 id. §0; Munn v. Illinois, 94 U. S. 113; Thompson on Stockholders, secs. 65, 66, 67; Morawetz on Private Corporations, secs. 445-451.
    Fifth—The power to regulate the amount of land which the plaintiff in error might take and hold, is reserved by section 10 of the act under which it is incorporated. Public Laws of 1869, pp. 67, 68, secs. 2, 10; Jackson v. Hammond, 2 Caine’s Cases, 337; McCartee v. Orphans' Asylum Society, 9 Cow. 437; Ward v. Farwell, supra; Gulliver v. Roelle, supra.

    Sixth—The act of 1869, in so far as it is a grant of corporate powers, must be strictly construed against the corporation, and in favor of the State. Cooley on Const. Lim. pp. 394, 395, 396; Sedgwick on Stat. and Const. Law, (2d ed.) p. 294.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The St. Peter’s Eoman Catholic Congregation brought to the February term, 1882, an action of ejectment, against Nicholas Germain, for the recovery of a valuable tract of land, situate in St. Clair county, consisting of about eighty acres. There was a judgment for the defendant in the court below, and the plaintiff brings the case here for review.

It appears, from á stipulation of the parties, that Catharine Agnes Germain, being the owner in fee of the premises, on the 2d day of November, 1878, executed and delivered to the plaintiff a deed therefor, properly acknowledged, and purporting to convey the same; that the plaintiff is, and was at the time of the conveyance, a religious corporation, organized and existing under the act of March 8, 1869, entitled “An act to provide for the holding of Eoman Catholic churches, cemeteries,, .colleges, and other property; ” and that at the time of said conveyance the plaintiff owned and occupied more, than ten acres of land in St. Clair county, exclusive of the land described in the deed.

Under these facts the question is presented—and indeed this is the only question in the case—whether the title to the land in dispute passed by the deed from Catharine Germain to the plaintiff. No question is made by counsel for defendant in error as to the form or sufficiency of the deed, or the manner in which it was obtained, or with respect to the right or power of the grantor to convey, bnt the only question made is as to the capacity of the plaintiff in error to take under the deed. The determination of this question depends upon the construction that must be given to the statutes then in force authorizing religious corporations to acquire lands in this State. By the 2d section of the act of 1869, above mentioned, religious societies organized under it are authorized “to receive, hold, dispose of, and convey,(any kind of property,” and by the 10th section the act is declared to be “subject to any limitation or modification which may hereafter be enacted by general law as to the amount of real estate to be held by the corporations, respectively, provided for herein. ” It will be perceived this act contains no limitation as to the quantity of lands religious societies incorporated under it may “receive” and “hold,” but, as we have just seen, the legislature, by the 10th section, reserves the right to limit and modify the amount “to be held” by .them. At the time of the adoption of this act the 44th section of chapter 35, Revised Statutes 1845, entitled “Corporations, ” was in force, which authorized any religious society or corporation then existing, or which might thereafter be formed, “to receive, by gift, devise or purchase, any quantity of land not exceeding ten acres, ” etc. This act continued in force until in 1872, when it was repealed, and section 42, of chapter 32, of the present revision, was adopted in its stead, which provides, that “any corporation that may be formed for religious purposes under this act, or under any law of this State, for the incorporation of religious societies, may receive, by gift, devise or purchase, land not exceeding ten acres, ” etc. By comparing the two sections it will be perceived that so far as the present inquiry is concerned, they are substantially the same, so that the adoption of the latter section was in effect merely continuing in force the former. This being so, it follows that in determining what, if any, effect the latter section had on the conveyance in question, it must be treated precisely as if it existed at the time of the adoption of the act of 1869.

The question then arises, assuming, as we do, the limitation contained in these two sections was in force at the time of the adoption of the act of 1869, and that it has continued to be in force ever since, what, if any, effect did it have on the conveyance in question. As already observed, the act of 1869 contains no limitation upon the power of a religious society or corporation organized under 'it to acquire real estate, and if that act is to be given effect without regard to the limitation contained in the two sections we have been considering, it is clear the title to the land in question passed by the deed. But can such a construction of these acts be maintained upon legal principles ? Both of the sections containing the limitation are undoubtedly conceived in terms sufficiently broad and comprehensive to include religious corporations organized under the act of 1869, as well as others, and no reason has been suggested, nor are we able to perceive any, why they do not so include them. Would not religious societies organized under other acts have the same right, and with the same show of reason, to contend that they do not fall within the limitation ? And if they are to be excluded from its operation also, what effect could be given to it? We see no fair, reasonable or just mode of enforcing the limitation, except by extending it to all religious societies alike. In doing so we but conform to the general, well recognized rule, that all statutes relating to the same subject should be construed in pari materia, so as to give them all their appropriate effect and operation; and courts have no right to depart from this rule unless there is some imperative reason for doing so, which is clearly not the case here. The fact that the legislature failed to impose a limitation in the act of 1869, is no evidence they intended there should be none. Why provide for such a limitation when there was already a general law imposing one? To have inserted a similar provision in that act would have been simply to declare what the law would be without it, and the fact that nothing was said on the subject is simply evidence that the existing limitation was satisfactory to the legislature.

In the light of judicial history, and the legislation of this country on the subject, we can not for a moment believe that it was the intention of the legislature to put it in the power of any religious society or corporation to acquire lands to any indefinite extent, as is claimed here. It has ever been the policy of this country, including our own State, to keep landed estates as much unfettered as possible, so that their free transfer from one person to another may not be interrupted or hindered, and it will not be denied that to permit corporations to acquire real estate to an unlimited extent would be destructive of this policy. Under the legislation of our State, which we have been considering, a religious corporation is authorized to receive or acquire lands to the extent of ten acres, and no more. Any amount in excess of that is expressly forbidden by the statute, and it follows that all conveyances, deeds or other contracts made in violation of this prohibition, are absolutely void.

It is a well settled rule that where a corporation is forbidden to take or receive lands, such a prohibition goes to its capacity to acquire, and a deed made to it' under such circumstances passes no title, such a conveyance being absolutely void; and the correctness of this rule is conceded by the learned counsel for plaintiff in error. It is claimed, however, this rule°only applies where the prohibition is total, and not merely partial, as in this case,—that where there is a capacity to take to a limited extent, and a conveyance is made for a quantity in excess of that which the law permits, the title will nevertheless pass to the whole, subject to the right of the State to interpose for the excess. We can not! give our adhesion to this doctrine, for it -would be conceding! that a corporate body might clothe itself with the legal title to an estate in contravention of an express provision of the statute, which is inconsistent with well recognized principles. Whether a deed of that kind would .be good for the amount of land that might lawfully be conveyed, and inoperative for the residue, or whether it would be regarded as void for uncertainty as to what particular ten acres passed by it, it is not necessary for us to stop to inquire, for whatever might be the rule in such a case, it could have no application to the one before us. Here it is admitted the 'plaintiff in error had, previous to the conveyance of the land in dispute, already acquired, and was then the owner of ten acres of land,—the outside limit it was permitted to take. This being so, it is clear its capacity to acquire other lands was fully exhausted, and there was a total want of power to take the land in question.

Moreover, we are of opinion that conceding the act of 1869 was not adopted subject to the limitation contained in the 44th section of the act of 1845, as we have seen it was, nevertheless the reservation, in the 10th section of the former act, of the power to regulate by general law the amount or quantity of land which corporations organized under it might hold, fully authorized the legislature—assuming the power did not exist independently of it—to prescribe the amount or quantity of land which such corporations might take or acquire. If the legislature has the power—and this is conceded—to say these organizations shall not hold to exceed a specified number of acres of land, we are of opinion, as the most effectual way of enforcing such power, it may say they shall only take or acquire the specified quantity.

Leaving out of view the legal aspects of the question, it looks like a great hardship that the purposes of the grantor in the deed should be thus thwarted, and that the church should be deprived of the estate so generously attempted to be given to it; yet such considerations must not be permitted to disturb the balance of the scales of legal justice. Ita lex scripta est, and it is the duty of all to submit to its mandate, and we are assured that none will do so more cheerfully than the plaintiff in this case.

The judgment of the circuit court is affirmed.

Judgment affirmed.

Mr. Justice Cbaig :

I do not concur in the decision of this case. The St. Peter’s Roman Catholic Congregation, a corporation existing by law, under our statute had authority to .take and! hold lands by deed or devise, and whether it has exceeded its power in accepting a conveyance of the land in question, can, in my judgment, only be inquired into by the State. The question is one between the corporation and the sovereign power, in which individuals have no concern. De Camp v. Dobbins, 29 N. J. Eq. 36.

Mr. Justice Dickey :

I concur with the view expressed by • Mr. Justice Cbaig.


author: Mr. Chief Justice Scott Mr. Justice Craig :

text:
    John N. Satterfield et al. v. The People, for use of Jefferson County.

      Filed at Mt. Vernon June 21,1882

      —Rehearing denied November Term, 1882.

    1. County officbbS'—errors and mistakes in reports of moneys received, etc., may be corrected. The reports of county officers of the earnings of their offices, and moneys received by them, etc., to the county board, and their approval by such board, are nothing more than settlements Of their accounts; and if a mistake has occurred from any cause, it may be corrected the same as a mistake in the settlement of accounts between individuals. Corrections in such matters are always allowable, on satisfactory proof being made.
    2. So, if any mistakes or inaccuracies exist in any intermediate reports made by a county clerk, they may be corrected in any subsequent or upon the final report at the expiration of his office, either in favor of the officer himself or in favor of the county; ánd such mistakes may be shown in an action upon his official bond, for the use of the county.
    3. County clebk—liability on his bond—to individuals and to the county. The bond of a county clerk, required to be given as clerk of the county court for the faithful performance of the duties of such office, among which is the duty to pay over all.moneys which shall come to his hands by virtue of his office to the parties entitled thereto, is intended to secure parties having.business in the county court, and not to secure the performance of any duty required of him to the county. The performance of such duties to the county is secured by his hond as county clerk, and hence his sureties on his bond as clerk of the county court are not liable for his neglect to pay over to the county fees received by him in probate matters in excess of his salary, clerk hire, etc.
    1 4. The condition of the bond of a county clerk is, that he shall perform all the duties which are or may be required of him by law to be performed; and the law makes it his duty to pay over to his successor in office all moneys and other things belonging to the county, and also to make report in writing to the chairman of the county board of “all fees and emoluments of his office, which report shall show the gross amount of the earnings of such office, and the total amount of receipts, of whatever name or character,” and after deducting therefrom his salary, together with all necessary expenses for clerk hire, stationery, fuel, and Other expenses, to pay the balance, if any, into the county treasury. This makes it his duty to account for the total receipts of his office, from whatever source they may be derived, whether probate fees or otherwise, and an action lies on his bond in favor of the county for his refusal or neglect to discharge such duty.
    Wbit of Ekbob to the Appellate Court for the Fourth District ;—heard in that court on writ of error to the Circuit Court of Jefferson county; the Hon. Thomas 8. Casey, Judge, presiding.
    Messrs. Pollock & Son, for the plaintiffs in error:
    We submit that the acts of the several county boards in receiving, auditing, approving, and causing the several reports to be made matters of record, were, and ought to be, binding upon all subsequent boards. Roper v. Sangamon Lodge, 91 Ill. 518; Stoner v. Millikin, 85 id. 218; Comstock v. Gage, 91 id. 328; Stull v. House, 62 id. 52.
    If the contrary rule should be established, we have the anomaly of one body setting aside the action of another of equal authority, which would, in many cases, work irreparable injury to innocent parties. Upon this point we refer to Cothran’s Annotated Statute, page 63, sec. 25; Cullom v. Dolloff, 94 Ill. 880; Briscoe v. Clark County, 95 id. 554; Gillett v. Board of Supervisors, 67 id. 256; Hughes v. The People, 82 id. 78.
    The office of county clerk being a separate and distinct office from that of clerk of the county court, though united in the same person, the sureties on the bond of the county clerk are not liable for moneys by him received in his office of clerk of the county court—they are liable only for moneys coming to him as county clerk.
    Mr.' Seth F. Crews, and Mr. W. N. White, for the defend- ’ ants in error:
    The plaintiffs’ counsel proceed upon the theory that if the clerk fails to make a full and correct report, there is no way of compelling a correction of the same. We can not assent to such a rule. In all other settlements between parties to an account, if it can be shown that items were omitted or mistakes made, the parties are not bound by the settlement; and more especially is this so when the party in whose favor the report is made is under the sworn duty of rendering a full, complete and correct account, under oath.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

This action was brought in the name of the People, for the use of Jefferson county, on the official bond of John N. Satterfield, as county clerk of Jefferson county, against such clerk and the' sureties on his bond. The declaration is in debt, and the breaches assigned state the duties of such county clerk as prescribed by law, and that as county clerk he received large sums of money in excess of his salary, necessary clerk hire and stationery, and yet he did not, and would not, make full and complete reports, as required by law, of the fees earned and collected as such clerk, nor would he pay over to the treasurer of the county the fees by him so collected in excess of his- salary, necessary clerk hire and stationery, as he was so ordered by the county board to do, and was otherwise his duty to do, but has wholly failed and neglected so to do. Pleas of general performance of the conditions of the bond were filed, and issues joined upon them. On the trial before the court, without the intervention of a jury, the issues were found for plaintiffs, and judgment rendered in debt for the penalty of the bond, to be discharged on payment of $1506.85,—the damages found by the court. That judgment was affirmed in the Appellate Court for the Fourth District, and defendants bring the case to this court.

The evidence shows the defendant, during his incumbency, from time to time made reports, as required by law, to the chairman of the board of supervisors, of the fees and other funds received by him in his official capacity as county clerk, and after deducting the sums allowed for salary, necessary clerk hire and stationery, there was sometimes a small balance due' the county, but most generally, on stating the accounts, it was found enough had not been received to discharge the allowances for salary, necessary clerk hire and stationery, and accordingly his reports showed a balance due to defendant. These reports were all, except perhaps the last one, presented, and were approved by the county board. The correctness of his reports of the earnings of his office was challenged on the trial by plaintiffs, and that, defendants insist, can not be done. The argument is, that unless such reports, when once approved, are final, the anomaly will be presented of one body setting aside the action of another of equal authority. This is a misapprehension of the law. Obviously the reports made by such officers, and the auditing of them, are nothing more than settlements of their accounts, and no reason is perceived, if a mistake for any cause has occurred, why it may not he corrected as a mistake in settlements of accounts between individuals. Corrections in such matters are always allowable, on satisfactory proof being made, otherwise serious wrong would often be done. So in this case, if mistakes or inaccuracies exist in any intermediate reports made by the clerk, there can be no reason why, upon a subsequent or upon the final report at the expiration of his term of office, they may not be corrected, either in favor of the officer himself or in favor of the county, otherwise there might be a failure of justice to one party or the other.

But the point most confidently relied on for a reversal of the present judgment te, the court admitted improper evidence to be given on behalf of plaintiffs, over the objection of defendants. That which is complained of is evidence of the amounts of probate fees, and fees in suits in the county court, received by defendant in his official capacity. It is contended the sureties on his bond as county clerk are not liable for such fees in case he fails to pay the same to the county, but that whatever liability there may be for such failure, would fall upon his sureties on his bond as clerk of the county court. This, it is thought, is not a correct construction of the statute in this respect. Section 2, chap. 25, Bev. Stat. 1874, declares county clerks shall be clerks of the county courts of their respective counties, and by section 4 of the same chapter every clerk, before entering upon the duties of his office, shall give bond, with one or more sureties, to he approved by the judge of the court of which he is clerk, in the sum of $5000, conditioned for the faithful performance of the duties of such office, and, among other duties, to pay over all moneys that shall come to his hands by virtue of his office, to the parties entitled thereto. Undoubtedly the bend required by section 4 cited, is to secure the faithful discharge of his duties as clerk of the county court, and for the payment of all moneys that may come to his hands in the capacity of clerk of that court, "to parties entitled thereto having business in such court, and does mot, and certainly was not intended to, secure the performance of any duty required of such officer, by law, to the county. It will be seen his bond to secure the performance of his duties to the county is provided for by section 2, chap. 35, Bev. Stat. 1874, the form of which is given in the statute, and that is the one upon which the present suit was brought. The conditions of this bond are, the county clerk shall perform all duties which are or may be required of him by law to be performed, and also, among other things, to pay over to his successor in office all moneys and other things belonging to the county. Section 51, chap. 53, Bev. Stat. 1874, makes it the duty of every county officer who is paid in whole or in. part by fees, to report in writing, to the chairman of the county board, “all fees and emoluments of his office, which report shall show the gross amounts of the earnings of such office, and the total amount of receipts, of whatever name or character, ” and after deducting therefrom such officer’s salary, together with all necessary expenses for clerk hire, stationery, fuel and other expenses, the balance, if any, he shall pay into the county treasury. In this ease it was the duty of the principal defendant to make reports to the county board of the total receipts of his office, of “whatever name or character, ” and so defendant must himself have understood his duty under the statute, for in every report he made he included therein, as was his duty, “probate fees,” and “fees for suits” in the county court. It makes no difference from what source the fees of his office come to his hands, whether “probate fees” or other fees,-they are in the strictest sense earnings of his office, which he is obliged to report; and after-deducting therefrom his salary, clerk hire and other expenses, as fixed by the county board, it is his duty, by law, to pay the balance of such fees so received from any source, no matter what, into the county treasury, and a failure so to do is a breach of the conditions of bis bond as countv clerk. It is a failure to perform his duties as such clerk as the same have been prescribed by law. As clerk of the county court he owes no duty to the county in this respect. It is as county clerk he is to report the earnings of his office, and the balance, after deducting allowances made by the county board, he shall pay into the county treasury, or to his successor in office. There was no error in the admission of evidence in the respect pointed out.

Whether anything remained in the hands of the clerk after deducting his salary, clerk hire, and other expenses allowed .by the county board., from the earnings of this office, was purely a question of fact; and as the trial court found a certain amount, and as that finding was affirmed by the Appellate Court, the finding of the latter court is conclusive on this court, and the question of fact can not be investigated by this tribunal.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.

Mr. Justice Craig :

I do not concur in this decision. In my judgment, where a county clerk receives money as such, which he fails to account for, an action will lie on his official bond as county clerk. When he receives money in his official capacity as clerk of the county court, the action should be brought on his official bond executed as clerk of the county court, and in the latter case an action will not lie on the bond executed as county clerk. This distinction was disregarded on the trial in the circuit court, and, in my judgment, erroneously.


author: Mr. Justice Sheldon

text:
    The Louisville and Nashville Railroad Company et al. v. Ursula Koelle et al.

      Filed at Mt. Vernon June 21,1882

      —Rehearing denied November Term, 1882.

    ' 1. Eight oe wat—in gross, not assignable. Where a grant of a right of way is in gross, it will be personal to the grantee, and incapable of assignznent; but if it is appurtenant to other lands, or an estate, it is the subject of transfer, and will pass by a conveyance of the estate to which it is appurtenant'
    2. Same—whether appurtenant or in gross. A granted a right of way across his land to B, C and D, fifteen feet wide, to the land of C, as located' by an engineer of a railway company in a section described, “to be used by said grantees and others for railroad and switch purposes,” to revert to the grantor when not so used, otherwise to remain the property of the grantees, their heirs and 'assigns forever, and it appeared that the grantees paid the consideration and constructed the switch at their own expense, and each of the grantees had coal lands adjoining such switch from which they mined and raised coal for transportation over such switch to a railroad, although the land of C alone was mentioned in the deed, and that at the time of the grant the switch had been actually located across the lands of the several grantees. It was held, that the right of way thus granted was appurtenant to the lands of B and D as well as to the land of 0, which alone was described, and as such was transferable to their grantees.
    3. Deed—circumstances looked to in construing. The ordinary rule that the rights of the parties to a deed must be ascertained from the words of the instrument, is subject to the modification that surrounding circumstances may be taken into consideration in order to ascertain the intention of the parties. Courts must give a common-sense construction to grants, and will consider the state of things and the considerations in view of the parties at the time the grant is made, which move them to its execution and acceptance.
    4. Same—plat referred to becomes a-part of description. "Where a grant of a right of way from a railroad track to certain coal mines refers to it as having been located by an engineer, the location thus referred to becomes a part of the deed,—a descriptive part of the subject of the conveyance,—the same as if the plat thereof had been set out in full in the deed.
    5. Easement—presumption that it is appurtenant. Though an easement, like a right of way, may be created by grant in gross, or attached to the person of the grantee, this is never presumed when it can fairly be construed to be appurtenant to some other estate.

      6. Same—may be in part appwrtenant and partly in gross. In the grant of a right of way to several persons, it may be a right .appurtenant as to some of the grantees, and in gross as to others. There is no incompatibility in such a grant.
    Appeal from the Circuit Court of St. Clair county; the Hon. William H. Snydeb, Judge, presiding.
    Mr. J. M. Hamill, and Messrs. Hay & Knispel, for the appellants:
    In construing a grant of an easement, or any other grant, the rights of the parties must be determined from the words of the deed. But this general rule is subject to the modification that the surrounding circumstances may be taken into consideration to ascertain the intention of the parties. The words used in a deed will therefore be construed with reference to the condition of things to which they have reference. Goddard’s Law of Easements, 275, 276; Nash v. Towne, 5 Wall. 689; Ricker v. Fairbanks, 40 Maine, 43; Hadden v. Shoutz, 15 Ill. 581; United States v. Appleton, 1 Sumner, 492; 1 Wait’s Actions and Defences, 116.
    If a contract or deed admits of more than one construction, one .of which will render it inefficacious, or nullify it, that construction should be adopted which will carry it into effect. The meaning will be adopted which is adverse to the grantor. Pugh v. Leeds, Cowp. 714; Peckham v. Haddock, 36 Ill. 38; City of Alton v. Illinois Transportation Co. 12 id. 38; Rolker v.. Great Western Ins. Co. 3 Keyes, 17.
    Several or many persons may have rights of way over one and the same road, which are easements. Goddard’s Law of Easements, 75; Semple v. London and Birmingham Ry. Co. 9 Simons, 209; Duncan v. Larch, 6 Q. B. 905.
    Grants of easements are to be construed- like other grants, deeds or contracts. 2 Washburn on Eeal Prop. 27.

      Mr. Charles W. Thomas, for the appellees:
    For a definition of a private right of way, and the requisites of such way, see Garrison v. Rudd, 19 Ill. 558. Whether a way is appurtenant to land or in gross to the grantee. Ibid.
    In Koelle v. Knecht, 99 Ill. 396, the grant in question in this case was before this court, and while the present writer urged that it contained a reservation appurtenant to Koelle’s land of a right to use the whole switch when constructed as then located, the court held that the grant was clearly a grant by Koelle of a right of way appurtenant to Schmisseur’s land. The appellees in this case are content to abide by the law as there announced, and to maintain that the decision was correct. . The terminus a quo is in Schmisseur’s land, which is in section 7. The way granted is limited to that located in section 6, which ends at the line of Schmisseur’s land. It has every element of -a way appurtenant. If it be appurtenant, it can not also be in gross. Washburn on Easements, see. 29.
    No rule is better settled by the authorities than that forbidding the owner of a private way to a particular close to extend it to other closes, or use it for purposes not mentioned in the grant. Goddard on Easements, 324, et seq.—where the subject is discussed. Washburn on Easements, sec. 186, et seq.

   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a bill for an injunction, brought by the widow and heirs of Christian Koelle, deceased, against the Louisville and Nashville Bailroad Company, Daniel Knecht, August Lenz, and the Dutch Hollow Coal Mining Company, to restrain the railroad company from transporting, and the other defendants from shipping, coal or other freight over a certain railroad switch upon complainants’ land, from coal- mines near to, and connected with, said switch, which are operated by such other defendants. On final hearing the court below decreed the relief prayed for, except as respected the Dutch Hollow Coal Mining Company, and all the defendants except defendant Lenz appeal from the decree.

The right which the defendants claim of the use of the switch in question, rests upon the following agreement, under seal, made on the 28th day of November, 1870, between Christian Koelle, in his lifetime the then owner of the land upon which the switch is in part located, and Daniel Knecht, Alpheus Boling, and Joseph Schmisseur:

“Know all men by these presents, that I, Christian Koelle, for the consideration hereinafter named, do hereby convey to Daniel Knecht, Joseph Schmisseur and Alpheus Boling, the right of „way for a switch from the St. Louis and Southeastern railway across my land, fifteen feet wide, to the land of said Schmisseur, near the turnpike, where the same was located by the said railroad company by its engineer, in section 6, township 1 north, range 8 west, in St. Clair county, Illinois, to be used by said grantees and others for railroad and switch purposes, and when not so used to revert to me, said grantor, otherwise to remain the property of said grantees, their heirs and assigns forever, for the uses and purposes named. In consideration therefor the said grantees have this day paid to said Koelle the sum of $200j the receipt whereof is hereby acknowledged, and upon the further consideration that said grantees permit said grantor to use said switch and railroad the same as the grantees.”

It appears that the switch was built from the main - track of said railroad, in accordance with said agreement, in 1871, the said Kriecht, Schmisseur and Boling doing all the grading for the switch, and building the bridges and culverts upon its line, and the railroad company furnishing and laying down the railroad ties and iron. Before the switch was completed Boling sold out his interest to Lenz, and the latter thereafter occupied Boling’s position in the enterprise. The Louisville and Nashville Railroad Company is the successor of the St. Louis and Southeastern Railway Company. The Dutch Hollow Coal Mining Company owns and operates a coal mine on the switch upon Schmisseur’s land. Lenz and Knecht own and operate coal mines on the switch on their own lands, and not acquired from Schmisseur.

The whole case turns upon the construction of the above grant of the right of way for the switch, made by Christian Koelle to Knecht, Schmisseur and Boling—upon what interest such grant conveyed to the grantees. The circuit court held that the grant was solely appurtenant to the land of Schmisseur, and that the railroad company had no right to transjiort coal or other freight over the switch from any land upon it other than from the Schmisseur land.

This same agreement was before us on a former occasion, in the case of Koelle et al. v. Knecht et al. 99 Ill. 396, where we said in reference to it: “We are clearly of opinion that this right of way became appurtenant to the Schmisseur land. ” This is relied upon as a justification of the decree of the court below. If the deed did convey a right of way appurtenant to Schmisseur’s land, it does not follow that that was all the interest which was conveyed by the instrument. There might also have been granted at the same time a right of way appurtenant to the lands of Knecht and Boling, or one to them in gross. We see no incompatibility dn such a grant. There was in the former case no occasion to pass upon the rights of Knecht and Boling, and there was no expression of opinion in regard thereto made or intended. If it should be held that there was no right of way given appendant to the lands of Knecht and Boling, there was at least granted to them one in gross. The grant is in no respect exclusive as to Schmisseur, or his land, but it is to the three equally, although Schmisseur’s land is named as the terminus. There is conveyed to Knecht and Boling the right of way for a switch across Koelle’s land as fully as one is capable of being conveyed by the language of a deed. As respects Knecht, this would be sufficient for the purpose of this case, but would not be so as to Lenz, as the grant was not to him personally from Koelle, but he claims by assignment from Boling. If the grant of the right of way was to Knecht and Boling in gross, it would be a right personal to them, and incapable of assignment, and Lenz would take nothing by the conveyance from Boling to him. Garrison v. Rudd, 19 Ill. 558, and authorities there cited; Koelle et al. v. Knecht et al. 99 Ill. 396.

. But we are inclined to think that the agreement in this case for the conveyance of the right of way may bear the construction that it granted a right of way appurtenant 'to the lands of Knecht and Boling as w.ell as to the land of Schmisseur. True, the land of Schmisseur alone is mentioned in the deed, and where an easement is granted in express terms by deed, the ordinary rule which governs in similar cases prevails, that the rights of the parties must be-ascertained from the words of the deed. Yet this is subject/to the modification that surrounding circumstances may be taken into consideration in order to ascertain the intention of the parties to the deed. (Goddard’s Easements, 275.).' In Hadden v. Shoutz, 15 Ill. 582, this court said: “In construing deeds or other writings, courts must seek to ascertain and give effect to the intention of the parties; and for that purpose they may and will take notice of attendant circumstances, and by them determine the intention of the parties. * * * The law must give a common-sense construction to grants, and consider the state of things and the considerations in view of the parties at the time the grant is made, which move them to its execution and acceptance. ”

The decree finds: “That said switch was built from the main track of said railroad in said section 6, in the year 1871, as located by the engineer of said St. Louis and Southeastern Eailway Company, across the land of Koelle, Knecht and Sckmisseur, to the coal mine of said August Lenz, near the turnpike; that said switch, where it passes the Knecht mine and reaches the Lenz mine, is upon said Sckmisseur’s land; that said Lenz owns and operates a coal mine on said switch, near the turnpike; that said Knecht owns and operr ates a coal mine on said switch where it crosses said Sekmisseur’s land to reach the coal mine of said Lenz.”

A plat of the location of the switch is made an exhibit to the bill, and is incorporated in the decree, which plat shows the switch to pass by the coal mine of Knecht, and terminate at the coal mine of Lenz, the farthest point from the main track of the railroad. . The agreement itself refers to the. switch having been located by the engineer of the railroad company, and grants the right of way for the switch where it had been located, and the switch was built where it had been thus located. It appears, then, that at the time when this conveyance of the right of way for the switch was made, the switch had been actually' located across the land of Koelle, Knecht and Sckmisseur to the coal mine of Lenz, near the turnpike, and under such circumstances Koelle conveys to Knecht, Sckmisseur and Boling the right of way for the switch where the same had been located. The location thus referred to became a part of the deed,—a descriptive part of the subject of conveyance,—making it the same as if the deed in terms had described the location of the switch for which in part the right of way was granted, as passing across the land of Knecht, and terminating at the coal mine of Lenz. In case the deed had in terms so described the location of the switch for which in part the right of way was granted, we think it would have been held that the grant was appurtenant to the land of Knecht and the coal mine of Lenz. As respects Lenz, it would have come within the very words of the definition of a way appurtenant: “Ways are said to be appendant or appurtenant when they are incident to an estate, one terminus being on the land of the party claiming.” Washburn, on Basements, 232.

The consideration for the right of way was paid by - the three, Knecht, Schmisseur and Boling, and they did the grading for the switch, and built the bridges and culverts at their own expense. There can be no question that the purpose, as respected Knecht and Boling, was for the accommodation of their lands,—for the shipment and transportation of coal from them by the railroad. It is laid down in Wash-bum on Basements, 40: “Though an easement, like a right of way, may be created by grant in gross, as it is called, or attached to the person of the grantee, this is never presumed where it can fairly be construed to be appurtenant to some other eátate.”

We think that, in view of all the circumstances here appearing, the right of way granted may fairly be construed as appurtenant to the estates of Knecht and Boling, and so the right of Boling was transferable, and passed to Lenz.

The decree of the circuit court will be reversed, and the cause remanded for further proceedings in conformity with this opinion.

Decree reversed.


author: Mr. Justice Craig

text:
    Charles W. Thomas v. The Citizens’ Horse Railway Company.

      Filed at Mt. Vernon Sept. 29,1882

      —Rehearing denied November Term, 1882.

    1. Bailboad coRPOBATiON-^powr to borrow money and give mortgage. Under the statute authorizing a railroad company to borrow money for certain purposes, to dispose of its bonds for the sum so borrowed, and to mortgage its property and franchises to secure the same, upon the concurrence of the holders of two-thirds in amount of the stock of such corporation, to be expressed at a meeting of stockholders to be called by the directors, who are to give notice, etc., a resolution of the directors at a directors’ meeting, authorizing and directing the execution of a mortgage for a loan, it being shown that they were the only stockholders except one, and that all the stockholders assented -to the making of the mortgage, while not a literal compliance with the law is a substantial compliance with its spirit, and the mortgage will be held good.
    2. The statute requires the concurrence of the holders of two-thirds in amount of the stock of the corporation to the proposition to borrow money and mortgage the corporate property. In such case, whether the stockholders received such a notice of the meeting as the statute requires, is a matter of no importance, if they met and acted upon the question. Their action is as binding as if they had the proper notice.
    3. Same—%ohen a directors’ meeting is a stockholders’ meeting. Under a statute requiring the concurrence of the holders of two-thirds of the stock of a corporation to mortgaging the corporate property for a loan of money, to be expressed at a meeting of the stockholders called by the directors for that purpose, a meeting of the directors, who are the only stockholders except one, at which all assent to the proposition, is in effect a meeting of the stockholders, and the act of the directors that of the stockholders. The requirement of the concurrence of the holders of two-thirds of the stock, is intended for the protection of the stockholder, and is a matter in which the public have no interest.
    4. Corporation—estopped to deny its liability after receiving benefits of its contract. "Where power is conferred upon a corporation to borrow» money, and secure the same by mortgage on its property, such corporation, after having received the loan on the security of its mortgage, will not be allowed to avoid liability by questioning its power to make the mortgage, or showing a defective execution of the power conferred upon it.
    Writ of Error to the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding
    Mr. Charles W. Thomas, pro set

    Bailroad companies, under the general law, are authorized to borrow money and mortgage their property only by the act or direction of their stockholders. They can not do so through their directors only acting in their behalf. The statute is not merely a law providing that mortgages shall be made in a prescribed manner, but it attaches a penalty to a breach of its provisions, and declares that any mortgage not made as it provides, shall be void, Bev. Stat. chap. 114, sec. 20, paragraph 10; Cincinnati Mutual Health Association v. Rosenthal, 55 Ill. 85.
    ■ Whatever may have been the considerations inducing the enactment, it must be taken .that when the legislature declares an act to be void, it is not merely voidable. The thing which is void is as though it never had been.
    Messrs. G. & G. A. Koerner, for the defendant in error:
    Any corporation having the power to borrow money„may give security therefor. Aurora Agricidtural Society v. Paddock et al. 80 Ill. 263; Angell & Ames on Corporations, sec. 101; Brice’s Ultra Vires, 121, 122.
    This corporation was empowered to make loans of money. Rev. Stat. sec. 10, chap. 114; also, sec. 19.
    . The acts of corporations or their directors, however irregular, can not be called in question collaterally. (Angell & Ames on Corporations, pp. 160, 161.) Here, neither the company nor its directors or stockholders are seeking to avoid the mortgage, or the sale under it. Enders v. Board of Public Works, 1 Gratt. 364; Chamberlin v. Painesville R. R., Co. 15 Ohio St. 255; Gordon v. Preston, 1 Watts, 385.
    Innocent purchasers are not affected by irregularities or defective execution of powers. Ryan v. Lynet, 68 Ill. 160; Sherlock v. Winnetka, id. 530; Maxcy v. Williamson County, 72 id. 207; Burr v. City of Carbondale, 76 id. 45.
    The record shows that the directors were the only stockholders but one, and that all the stockholders assented to making the loan arid giving the mortgage. It is laid down that even persons not present and who did not receive notice, may, by subsequent acquiescence in the resolutions passed^ if infra vires, be bound by the same, and be unable to object to the want of notice. Stebbins v. Ment, 10 Cush. 27; People v. Peck, 11 Wend. 600; Jones v. Milton T. Co. 7 Ind. 597.
    But even if the Belleville railway company had no power to make .the mortgage, yet, having received a consideration from those for whose benefit the mortgage was given, the company is estopped to invoke the doctrine ultra vires, and in this respect the purchaser under'a foreclosure of the mortgage will be protected equally with the mortgagee. Bradley v. Ballard, 55 Ill. 413; Aurora Agricultural Society v. Paddock, 80 id. 263; Ottawa North. Plank Road Co. v. Murray, 15 id. 336; Darst v. Gale, 83 id. 136; Jones v. Guaranty and Indemnity Co. 101 U. S. 628; Board of Comrs. v. Lafayette R. R. Co. 50 Ind. 85, the court in the latter case distinguishing a case like the present from Cincinnati Mutual Health Association v. Rosenthal, 55 Ill. 85.
   Mr. Justice Craig

delivered the opinion of the Court;

This was an action of ejectment, brought by Charles W. Thomas, against, the Citizens’ Horse Bailway Company, to recover the possession of certain property in St. Clair county. Both parties claimed title from a common source—the Belle-ville railway company. The plaintiff claims under a judgment rendered May 6, 1875, upon which the property was sold, and a sheriff’s deed executed purporting to convey the same to him. The defendant claims under a deed of trust executed by the Belleville railway company to Edward Abend, to secure the sum of $75,000, upon which the property was sold, and a deed made by the trustee named in the deed of trust, to him. The deed of trust, having priority over the judgment, if that instrument was valid the title to the premises without doubt passed to the defendant. But the plaintiff claims that the deed of trust was not executed in the mode provided by the statute, and hence is void.

The Belleville railway company was organized under the general Bailroad Incorporation law of 1872, now chapter 114 of the revision of 1874. Section 20 provides, that every corporation formed under this act shall, • in addition to the powers hereinbefore conferred, have power, (paragraph 10,) “from time to time, to borrow such sums of money as may be necessary for completing, finishing, improving or operating any such railway, and to issue and dispose of its bonds for any amount so borrowed, and to mortgage its corporate property and franchises to secure the payment of any debt contracted by such corporation for the purposes aforesaid; but the concurrence of the holders of two-thirds in amount of the stock of such corporation, to be expressed in the manner and under all the conditions provided in the 15th section of this act, shall be necessary to the validity of any such mortgage, and the order or resolution for such mortgage shall be recorded, as provided in the 2d section of this act. ” When the company desires to increase its capital stock, section 15 of the act requires the directors to call a meeting of the stockholders, and requires certain notice to be given each stockholder of that meeting. Section 2 provides for recording in the office of the Secretary of State, and in the recorder’s office of each county through which the road may run. No meeting of the stockholders was called or held in the manner pointed out in the statute cited above, and hence it is claimed that the mortgage or deed of trust is void.

The defendant proved on the trial that the directors of the company were the only stockholders except one, and that they all assented to the making of the mortgage, and, as directors, passed a resolution directing and áuthorizing the execution of the mortgage. This action of the directors of the company was not a literal compliance with the terms of the statute, but it may be regarded as a substantial compliance with the spirit of the law, which is all that can be required. ' The statute requires the concurrence of the holders of two-thirds in amount of the stock of the corporation to the proposition to borrow money and mortgage the corporate property. Whether the stockholders received such a notice of the meeting as the statute requires, is a matter of no importance. If they met and acted upon the question, their action will be as binding as if they had the proper notice. The proof "shows that they did meet, 6and assented to the execution of the mortgage. It may be said that the resolution which' authorized the loan was the act of the directors, but this is answered by the proof that the directors were the only stockholders of the company but one, and that all the stockholders assented. The act of the directors was, in effect, the act of the stockholders, and the resolution which authorized the loan may be regarded- as the action or concurrence of the holders of two-thirds in amount of the stock of the corporation, which is all that the statute requires. The meeting,- although called a meeting of the directors, was in fact a stockholders’ meeting. The statute requiring the concurrence of the holders of two-thirds in amount of the stock of the corporation before a loan should be made and a mortgage executed, was no doubt passed for the protection of stockholders. It is a matter in which the public have no interest, and it may be true, if the.owners of two-thirds of the stock had not concurred, they might, in a proper proceeding, have avoided the mortgage, but as they did concur in the loan and the mortgage they are concluded by such concurrence.

There is another view that may be taken of the case which is conclusive against the right of plaintiff to recover. The plaintiff claims to have acquired the title to the property held by the Belleville railway company. He has the same, but no greater, rights than the company had in the property. In legal effect he stands in the shoes of the Belleville railway company, with the right to interpose the same defence to the mortgage that the company might make, but no other defence. Suppose a bill had been filed to foreclose the mortgage, could the Belleville railway company, after it had received the money, avoid liability by questioning its authority to execute the mortgage ? A similar question arose in Ottawa Northern Plank Road Co. v. Murray, 15 Ill. 336, and this court held that where a corporate company receives money,. and executes a mortgage to secure repayment, the company can not avoid liability by questioning the authority of the persons making the loan. See, also, Aurora Agricultural Society v. Paddock, 80 Ill. 268, where a similar doctrine is announced. The statute conferred upon the Belleville railway company power to borrow money, and secure the same by mortgage, and although the directors did not observe strictly all the requirements of the statute in making the mortgage, the defective execution of the power conferred by the statute did not vitiate the mortgage.

The judgment of the circuit court will be affirmed.

Judgment affirmed,.


author: Craig, J.:

text:
    Sallie G. Owens et al. v. Russell Crossett.

      At Mt. Vernon, November Term, 1882.

    Practice in the Supreme Court—time for filing transcript of record. Where a cause is heard in the circuit court in term time, but taken under advisement by the judge, to be considered and determined in vacation, the decree to be entered in vacation as of the term at which the cause was heard, the decree so entered in vacation will not become a final decree until the next term thereafter of the circuit court, notwithstanding it be entered as of the prior term. So an appeal in such case is properly brought to this court to the term next after the term of the circuit court at which the decree became final, and the filing of the transcript of the record at such term of this court is in apt time.
    Appeal from the Circuit Court of Marion county.
    This was a suit in chancery. The cause was heard in the court below at the February term, 1882, thereof, and taken under advisement by the judge of that court, “to consider the said" cause in vacation, and decree to be entered in vacation as of this (the February) term. ” Afterwards, and in vacation preceding the August term of the circuit court, to-wit, on the 12th day of May, 1882, the judge of that court entered a decree dismissing the bill, which decree was entered of record as of the February term at which it was heard. An appeal to this court was prayed at the time of the entry of the decree in vacation, and an appeal bond filed within the time limited by the judge,—the 25th of May, 1882. The May term, 1882, of the Supreme Court intervened the February and August terms of the circuit court, but that term was adjourned before the entry of the decree on the 12th day of May. The transcript of the record in the cause .was not filed in this court until the present November term, 1882, thereof, nor was any extension of time for filing the same asked or given at the preceding May term of this court. At the present term, the appellee moves the dismissal of the appeal, upon the alleged ground the transcript of the record was not filed in proper time, it being contended the decree should be regarded as having been rendered at the February term, 1882, and therefore the transcript should have been filed at the May term of this court, or, if the appellant could not obtain a transcript in time for that term, then he should have asked for further time, which was not done.
    Mr. Thomas E. Merbitt, and Mr. M. Schaeffer, for the motion.
    Mr. Henry C. Goodnow, and Mr. ’Wm. Walkeb, contra.

   Craig, J.:

For the purposes of this appeal, the decree of the court below is not to be regarded as having become a final decree at the February term, 1882, of that court, notwithstanding it was entered of record as of that term. The cause was heard at the February term, but was taken under advisement, to be considered and determined by the judge in vacation, as might well be done under the statute. (Rev. Stat. 1874, p. 332, sec. 47.) The decree was actually rendered in vacation, to-wit, on the 12th day of May, 1882. The first term of the circuit court after the rendering of the decree in vacation, was the August term. Under the section of the statute cited, the decree so entered in vacation did not become a final decree until the next term of the circuit court thereafter. Since the August term of the circuit court, at which the decree became a final decree, there has been in this Grand Division no term of this court until the present November term. This is the first term to which the appeal could properly have been brought. The transcript of the record was filed in apt time..

Motion denied.


author: Mr. Justice Walker

text:
    Matilda E. Ryder et al. v. Rebecca Emrich et al.

      Filed at Springfield September 28,1882.

    1. Admissions—whether raime as evidence impaired by lapse of time. Evidence of the admissions of a father, made some twelve years before, that he bought a tract of land with the money of his children by a former wife, will not be rejected on account of the lapse of time since the admissions were made, nor will its credibility be affected, unless there are other reasons impairing its value.
    2. Stale claims—in equity. On a bill by the children of a person by his former wife, after his dea|h, against his devisees,.to enforce a resulting trust in their favor to land bought by him with their money < in his hands, it seems that the relief will not be barred as a stale claim for any period short of the limitation of an action of ejectment, in such case the relationship of the parties is to be considered on the question whether the delay to assert their rights is unreasonable.
    3. Chancery—enforcing resulting trust—rents amd profits, and taxes paid. Where the children of a deceased person by a former wife, on a bill to enforce a resulting trust in their favor, obtained a decree granting the relief sought, against the widow and other children of the deceased, to whom he had devised the land, it was urged by the widow that it was error not to have taken an account of the taxes paid by her, and the rents and profits of the land: Held, that as she was in the occupancy of the land, every presumption was that the rents-and profits received by her exceeded the taxes, and hence the assignment of error was not well taken.
    4. Same—‘payment of legacies by devisee—as chargeable against the real owner of the land devised. Where a widow to whom land has been devised for life, subject to certain legacies charged thereon, pays such legacies after bill is filed against her and others to enforce a resulting trust in favor of the complainants, claiming that the devisor bought the premises with complainants’ money, the widow will not be entitled to have allowed her the amount so paid by her. Her payment after the filing of such bill is at her peril.
    Appeal from the Circuit Court of Shelby county; the Hon. Jesse J. Phillips, Judge, presiding.
    Messrs. Moulton, Chapee & Headen, for the appellants:
    The evidence upon which the complainants rely to prove the trust, considering the lapse of time and circumstances, and the persons to whom the alleged statements were made, ought to be regarded as sufficient to disturb the title to real estate.
    The Statute of Limitations is a complete bar to the bill; To exempt a trust from the statute it must be a direct trust, and cognizable only in equity, and between trustee and cestui que trust. Angell on Limitations, chap. 16, sec. 166; Kane v. Bloodgood, 7 Johns. Ch. 98; The Governor v. Woodworth, 63 Ill. 254; Manning v. Warren, 17 id. 267; Godden v. Kimmel, 9 Otto, 208; Perry on Trusts, sec. 865; Hayward v. Gunn, 82 Ill. 389; Quayle v. Guild, 91 id. 378.
    In States where there are remedies against administrators and guardians, at law, and limitations are fixed to these actions, the rule in equity is the same as at law. Angell on Limitations, secs. 170, 178; Kane v. Bloodgood, 7 Johns. Ch. 98.
    After the ward becomes of age the fiduciary relation ceases, and the parties are regarded as debtor and creditor, and the Statute of Limitations applies. Angell on Limitations, sec. 178; 3 Wait’s Actions and Defences, 563; Armstrong v. Walkup, 12 Graft. 608; Gilbert v. Guptill, 34 Ill. 112; 10 Yerg. 160; 2 Edw. Ch. 343; 19 Ark. 623.
    It is an invariable rule of law that to revive a stale claim, an express promise to the parties themselves is necessary, and an acknowledgment to a stranger dogs not affect the bar. Carroll v. Forsythe, 69 Ill. 127; Wachter v. Albee, 80 id. 47; McGrew v. Forsythe, 80 id. 596; Tredway v. Forsythe, 5 Bradw. 478.
    Messrs. Mouser &- Kelley, for the appellees:
    When land is purchased with the money of one person and the deed taken in the name of another, a resulting trust is created in favor of the one whose money was used. Perry on Trusts, page 100, sec. 127; Coates v. Woodworth, 13 Ill. 654; Smith v. Smith, 85 id. 189; Mathis v. Stufflebeam, 94 id. 481.
    Guardians are trustees, and remain so until their duties are fully discharged by settlement with the court, and payment to their wards. In re Steele et al. 65 Ill. 323; Gilbert v. Guptill, 34 id. 139; Albrecht v. Wolf, 58 id. 190.
    The limitation law in force at the time the cause of action accrues, governs. Beesley v. Spencer, 25 Ill. 216.
    In 1867, a legal title, except in a few instances resting on special statutes, could only be barred in twenty years. Gross’ Stat. chap. 66, sec. 7; Kerr et al. v. Hitt, 75 Ill. 60; Turney v. Chamberlin, 15 id. 271; Weber v. Anderson, 73 id. 439. Equity applies the same rule to an equitable title. Angelí on Limitations, page 22, see. 26; Bourland v. Peoria County, 16 Ill. 545.
   Mr. Justice Walker

delivered the opinion of the Court:

This was a bill in chancery, filed by' appellees, against appeHants, to have a resulting trust declared in their favor,. for seventy-four acres of land. It appears that Jacob Emrich became the guardian of appellees, in August, 1865. They were his daughters by a former wife, and he received of their' money, as such guardian, $882.30; that he purchased the land in controversy on the 23d of January, 1867, and it is claimed he paid for it with their money, which he held as their guardian, and received a deed for the same in his own name. Emrich died after having made and published his will, by which he devised this land to his widow for life, remainder to his son Jacob in fee, but charging it with the payment of some legacies. The will was probated, but appellees renounce all benefit under its provisions. They pray that the trust be declared in their favor, and the title vested in them. On a hearing the court granted the relief asked, and defendants appeal to this court.

In defence, it is denied that the land was paid for with appellees’ money,—that if their money was paid for any land it was for another tract, and if it was paid for the land in dispute, the claim is stale, and is barred by the five years’ Limitation law; that Emrich settled with and paid to appellees all money he held as their guardian.

We regard the evidence -as entirely sufficient to clearly establish the fact that appellees’ money was paid for this land. Emrich, on repeated occasions, and to different persons (to as many as four), deliberately and distinctly admitted or stated that the money of appellees went into this land. Nor is there any evidence in the case that overcomes or even breaks its force. It is, however, claimed, that owing to the length of time since the admissions were made,—owing to the imperfection of human memory,—it is not reliable. We are aware of no rule "that mere lapse of time requires the evidence to be rejected, or limits the credibility of evidence, ' unless there be reasons impairing its force. It is true that the conversations detailed by the witnesses occurred ten or twelve years before they testified, but it is by no means remarkable that witnesses should remember occurrences for such a period. On the contrary, it would be rather remarkable that such a conversation should not be remembered by them. The very fact that the neighbors knew the father had the money of his daughters, would be a matter of discussion and curiosity to leam what disposition he had made of it, and in which all' would make it a matter of concern, and on learning the fact, they would not be likely to forget it. The proclivity of many persons to interest themselves in the affairs of their neighbors is so strong that it would be almost incredible if they did not learn and remember such an occurrence.

It is urged that the money was paid to appellees, and the fact is evidenced by their, receipts on file in the office of the probate court. The payment of the money, and the execution of these receipts, are positively denied by appellees, and they are corroborated by the testimony of as many as three witnesses who were familiar with their handwriting, who say it does not resemble, nor do they believe it is, theirs. This evidence stands unimpeached, and if it may be believed, the receipts are overcome.

It is also urged that the great delay in asserting their rights, having waited until after their father’s death, is evidence that the claim of appellees is fictitious. It seldom occurs, as experience teaches, that a child sues a parent, whatever the wrong, or the right of recovery, and when it is done, so unnatural an act renders the child odious to the community. It would not, therefore, be ex-pected that they would have sued him, however just their claim. It is a rule in chancery practice, that where a claim is barred by the Statute of Limitations in an action at law, the same rule will be applied in a suit in equity, on account of the staleness of the demand. Here is a claim to the equitable title to this land. It is a claim to the title, and not the money that paid for the land, and no action to recover title to land is barred under seven years, and others not short of twenty years." Neither the act of 1835 nor of 1839, limiting the recovery to seven years, can have any application, because neither the pleadings nor the evidence make a case under either statute. If any statute can apply in such a case, it is the limitation of twenty years, and it can not because it was not pleaded, nor has that period of time expired. The suit being to recover the land, it is, and can be, only analogous to an action of ejectment. Had this bill been for an account and for a decree for the money, there would be more plausibility for contending that because an action of assumpsit would have been barred, therefore a decree on the bill would be barred. The suit was not barred, and therefore that defence must fail.

It is urged that the court should have ordered an account to be stated of the rents and profits, and the taxes paid by the widow. She was in the occupancy of the land, and every presumption is in favor of the fact that the rents were greater than the taxes, and there is no evidence to overcome the presumption.

It is also complained that the widow was not allowed the amount of the legacies charged on the land, which she claims to have paid. If it devolved on her by the' terms of the will to pay them, she did not make payment until after suit was brought. By doing so after that time, it was at her peril. She, in making payment, hazarded loss in case of a recovery by appellees. The payment was in her own wrong, and there is no known rule of law that can visit the consequences of that wrong on others. She knew this suit questioned the very validity of these legacies, and she should have awaited the determination of that question.

The whole record considered, we are unable to find any error for which the decree of the court below should be reversed, and it is affirmed.

Decree affirmed.