text:
    The People ex rel. John. P. Neal v. John A. Roche et al.

      Filed at Ottawa January 19, 1888.

    1. Schools—title to school property and, custody of school funds, in cities of over one hundred thousand—in whom vested. Under existing legislation, cities having a population of over one hundred thousand are invested with the title to all real estate held for school purposes, and the city treasurer is given the custody of all school funds, no matter from what source derived.
    2. Same—board of ednication in cities of over one hundred thousand— of its powers and duties—especially as to school lands. The board of education in such cities is given no independent powers as to real estate held or to be purchased for school purposes. Whatever the board can do in reference to buying or leasing sites for school houses, or issuing bonds for the erection of buildings thereon, can only be done “with the concurrence of the city council.” The powers and duties the board may exercise, independently of the city council, relate mostly to furnishing school houses, the employing of teachers, and the management of schools generally.
    3. Same—board of education—at what time its powers to be exercised. The powers conferred upon boards of education in cities having over one hundred thousand inhabitants, can be exercised only at a regular meeting of the board.
    4. Same—sale of school lands—conditions to the exercise of the power. Real estate held for school pmposes in cities having over one hundred thousand inhabitants, can be sold only on two express conditions: First, the sale must be made by the city council; and second, it must be made by the city council upon the written request of the board of education; and the city council have no light to make such conveyance except upon the terms specified in such written request.
    5. Same — mortgage for purchase money, on sale of school lands—to whom to he given. On the sale of school lands by the city council, in a city having more than one hundred thousand inhabitants, on the written request of the board of education, a mortgage given to secure the payment of the purchase money, with interest, should be given to the city council, and not to the board of education, under the present legislation.
    This is an original proceeding instituted in this court. The facts of the ease appear in the opinion of the court.
    Mr. J. L. High, and Mr. Jesse B. Barton, for the relator.
    Mr. John W. Green, for the respondents John A. Boche, mayor, and A. H. Burley, comptroller.
    Mr. Charles S. Morse, for the respondent the hoard of education.
    Mr. William H. King, also for the board of education.
   Mr. Justice Scott

delivered the opinion of the Court:

This is an original proceeding in this court, and is a petition for a mandamus, brought in the name of the People, on the relation of John P. Neal, against John A. Boche, mayor, and Augustus H. Burley, comptroller of the city of Chicago, to compel respondents to execute and deliver to the relator a deed for the premises described, in conformity with the request of the board of education of the city of Chicago, and with the resolutions of instructions by the city council of Chicago to respondents. All the facts necessary to be stated appear by the stipulations of the parties, so that only questions of law remain to be considered.

On the 23d day of February, 1887, the board of education requested the mayor and city council of Chicago to consent to the sale, and to execute a conveyance, of block 88, and the north half of block 87, of school section addition to Chicago, to John P. Neal, upon the terms and conditions set forth in six distinct propositions. Nothing contained in the first, second and third paragraphs is important to the present discussion, and their contents need not be stated. The fourth and fifth clauses are as follows:

“Fourth—That the said John P. Neal and said Chicago and Great Western Railroad Company execute and deliver a mortgage to the board of education, secured upon the property conveyed, for the sum of $650,000, payable in fifty years after the 1st day of May, A. D. 1888, with interest from said date, at the rate of five per centum per annum, payable on the 1st day of November and May in each and every year during said period of fifty years, which mortgage shall contain covenants and conditions satisfactory to the board of education.

“Fifth—The said mortgage shall contain a provision that in ease of default in the payment of said semi-annual interest, or in the payment of any taxes or special assessments lawfully assessed upon said premises, or any part thereof, and such default, in either ease, shall continue for the period of thirty days after written notice to said company, the rate of interest upon the principal of said mortgage shall, for the remainder of said period of fifty years, be eight per centum per annum, instead of five per centum per annum.”

By the sixth article the railroad company is obligated, within a period stated, to erect a depot on the land to be conveyed, for railroad purposes, at a cost of not less than $250,000, and to execute bond, with sufficient sureties, conditioned upon the performance of its obligations in that regard, to be approved by the board of education. It will be observed this article contains no provision that John P. Neal, to whom the property is proposed to be conveyed, shall' do anything, and imposes no obligation upon him.

On the 21st day of March, 1887,- the city council adopted or passed the following order:

“Ordered, that the mayor and city comptroller be and they are hereby authorized and directed to execute a conveyance of the north half of block 87 and block 88, school section addition to Chicago, to John P. Neal, upon the terms and conditions as set forth in the board of education communication, hereto annexed.”

It is admitted the lots or blocks which this litigation concerns “are a part of the sixteenth section originally allotted by the act of Congress to the use of public schools, and that the General Assembly has, by one or more public acts, declared the title to said premises to be vested in the city of Chicago, for the use of public schools.” The fourth article of the request submitted tvo the city council requires John P. Neal and the Chicago and Great Western Railroad Company to make a mortgage to the board of education, to secure $650,000, payable in fifty years, with interest at the rate of five per cent per annum, payable semi-annually. It is upon the compliance with this condition, and others of less importance, the city council authorized and directed respondents to make the deed. This they declined to do, and the principal question raised is, whether the mortgage to secure this large sum of money should be made to the board of education or to the city of Chicago.

The seventh division of section 80, of the act of 1872, “to establish and maintain a system of free schools,” (Sess. Laws, 1871-72, p. 700,) which defines the duties of the board of education in cities having a “population exceeding one hundred thousand inhabitants,” declared, “they shall have power to lease school property and to loan moneys belonging to the school fund, but all conveyances of real estate shall be made to the city in trust for the use of schools, and no sale of real estate, or interest therein, whether used for school purposes or held in trust for schools, shall be made, except by the city council, upon the written request of the board of education.” It is further provided in the same division of the same section, that “all moneys raised by taxation for school purposes, or received from the State common school fund, or from any other source, for school purposes, shall be held by the city treasurer as a special fund for school purposes, subject to the order of the board of education, upon warrants to be countersigned by the mayor and the city clerk.”

It seems clear, from all the legislation on the subject, it was the intention of the legislature the city, in cities having over one hundred thousand inhabitants, should have the title to all real estate held for school purposes, and the city treasurer should have the custody of all school funds, no matter from what source derived. The board of education in such cities is given no independent powers as to the real estate held or to be purchased for school purposes. Whatever the board can do in reference to buying or leasing sites for school houses, or issuing bonds for the erection of buildings thereon, can only be done “with the concurrence of the city council.” The powers and duties, the board may exercise, independently of the city council, relate mostly to furnishing school houses, the employing of teachers, and the management of schools generally. But all school property and funds are placed in and under the care of the city council or some city officer. There is no pretense there is any express provision of law that authorizes the board of education to take to itself the conveyance of any real estate, for the purpose of holding the title as an actual owner might do, nor is there any express statute giving the board authority to hold the title to real estate by way of a pledge or security for the payment of indebtedness, and if they have any such power, it must arise, by implication, from other powers expressly conferred.

As respects the sale of real estate held for school purposes, the statute is so plain it admits of no construction. It can only be sold on two express conditions,—first, the sale must be made by the city council; and second, it must be made by the council upon the written request of the board of education. But in case it is necessary to take a mortgage to secure any portion of the purchase money, the statute is silent as to what corporate body it shall he made. As has been seen, that is the question presented for decision. Ordinarily it is the vendor that takes the mortgage to himself, to secure the unpaid purchase money, and following the custom that prevails with private individuals in this respect, it would seem the corporate body authorized by law to convey school property should take to itself the mortgage to secure the balance of the purchase money, if any remain unpaid. It might be, it would be competent for the legislature to provide, by statute, on the sale of school lands by the city council the mortgage to secure the unpaid purchase money might be made to the board of education ; hut no provision has been made, by statute, for taking a mortgage in such cases to the board,—certainly the attention of this court has been called to no such provision in the elaborate argument of counsel. Outside of statutory provisions, considerations of convenience would seem to require the mortgage should be taken to the city. This mortgage is to run through a period of fifty years, during which time the interest is to be paid semi-annually. If paid, it would necessarily have to go to the city treasurer, under that provision of the statute which requires that funds received from any source for school purposes shall be held by the city treasurer.. Again, if it should become necessary to foreclose the mortgage for any condition broken, it would seem the city would he the proper party to do it, for in the event the equity of redemption should he barred or cut off, the title would have to be vested in the city. The board has no authority, by statute or otherwise, to take the conveyance of real estate for school purposes, nor, indeed, for any other purpose. But it is thought a fair and reasonable construction of the statute leads to the same conclusion. It is for the obvious reason, all conveyances of real estate purchased or otherwise obtained for school purposes must be made to the city, where such city contains over one hundred thousand inhabitants.

But the argument is, a mortgage of real estate is not a “conveyance.” This may or may not be true, in a technical sense. Conveyances of real estate are most generally absolute or conditional. It will be difficult to find a definition of a mortgage upon real property that omits the idea of a conveyance. This court has said, in Fitch v. Wetherbee, 110 Ill. 475, “a mortgage is any conveyance of an estate to secure a debt or the performance of some act, such as the payment of money or the furnishing of indemnity, subject to be defeated by the performance of the act agreed to be done.” The notion every one has of a mortgage is, that it is a conveyance of an estate or property to secure a debt or the performance of some particular act, subject to a defeasance, usually written in the body of the same instrument. Sometimes a mortgage deed is absolute in form, and the defeasance to which it is subject is written in a separate instrument; but it is none the less a mortgage for that reason. Would any one insist a mortgage deed, absolute on its face, was not a conveyance, in the most technical sense of that term? It certainly is. It would seem to follow, a mortgage upon school property, to secure the purchase money, should be made to the city, under that clause of the section of the statute being considered. It will bear no other reasonable construction, in the opinion of this court, consistently with the whole legislation on this subject.

It is not perceived the case of Hartford Fire Ins. Co. v. Walsh, 54 Ill. 164, contains anything in conflict with the views here expressed. That was an action on an insurance policy, which contained a clause, “if any change takes place in the legal title or possession of ihe property, whether by sale, * * * voluntary conveyance, * * * without consent of” the insurer, the policy was to cease to be obligatory upon the company. It was held, the making of a mortgage by the assured after the policy was written, was not a sale, either in its ordinary or technical sense. It was said: “According to popular use, these terms, nor any of them, are understood to embrace a mortgage, and this being so, we would not enforce a forfeiture, if some one of them could be held technically to embrace such an instrument.” The point decided in that case is, that the subsequent making of a mortgage on the premises insured is not a “sale or conveyance,” in the sense those terms are used in the policy. That which would work a forfeiture must be an absolute sale or conveyance. A mortgage is a conveyance subject to a defeasance, and therefore did not come within the conditions of the policy. It would be contradictory to hold a mortgage was not a conveyance of the title to the property, and at the same time to hold, as the law is, a mortgagee, after condition broken, can maintain ejectment upon it as against the mortgagor. Oldham v. Pfleger, 84 Ill. 102.

The question discussed, whether the city or the board of education shall control the proceeds of the sale, in case it is perfected, is not involved in the present decision. It can not fairly arise until the mortgage indebtedness shall be paid, and' that may be fifty years hence. Who shall have the control or custody of this mortgage when executed and recorded, is a matter of no consequence. It is only important it shall be safely kept.

It is stipulated by counsel representing the several parties, that in the event this court should hold, as it now does, the mortgage should be executed to the city of Chicago, a final order may be made directing the mayor and comptroller to execute and deliver the conveyance to the relator upon the execution and delivery of the mortgage and the bond to the city of Chicago, instead of the board of education. This can not be done, for the reason the board of education has never requested the respondents to make the conveyance upon such terms, and it can not be known the board will ever request the conveyance to be made on such conditions. Eespondents have no rightful authority to make any conveyance of the property,' except upon the written request of the board of education. It is provided in this same division of section 80, “none of the powers herein conferred upon the board of education shall be exercised by them, except at a regular meeting of the board,” and it is apprehended counsel can not agree, on behalf of the board, that "the sale shall be made on any terms other than as expressed in the request submitted to the city council. That is a matter of discretion with the board of education it must exercise for itself. No one can do it in its stead.

This court is of opinion respondents properly refused to make any conveyance on the conditions contained in the request of the board as to the making of the mortgage, and the prayer for the peremptory writ of mandamus will be denied.

Writ denied.


source: Caselaw Access Project

author: Mr. Justice Magruder

license: Public Domain

text:
    William L. Coyne v. The People of the State of Illinois.

      Filed at Ottawa January 19, 1888.

    1. Geiminal law—attempt to suborn a witness—elements of the offence —and herein, what constitutes perjury. In order to convict a person, under section 228 of the Criminal Code, of endeavoring to incite or procure another to commit perjury, it must be shown that the accused urged the witness to give false testimony, knowing that such witness, as well as himself, was aware of its falsity. It must appear that the witness "would have been guilty of perjury if he had given the proposed false testimony, which could not be unless he knew it to be false.
    2. To commit perjury, a person must willfully, corruptly and falsely swear or affirm to some material fact or matter. The false assertion made by the witness under oath, must be known to the witness to be false, and must be intended by him or her to mislead the court or jury.
    3. If a proposed witness believes what he is asked to testify to is true, and does not know of its alleged falsity, he will not be guilty of perjury if he swears to it; and in such case, the person soliciting the witness to so testify, can not be convicted, under section 228 of the Criminal Code, of endeavoring to procure such witness to commit perjury.
    Writ of Error to the Circuit Court of Rock Island county ■ the Hon. Arthur A. Smith, Judge, presiding.
    Mr. E. D. Sweeney, for the plaintiff in error:
    The indictment failed to show properly the materiality of the evidence the defendant was charged with having sought. It is too general to charge that the evidence was material. The materiality of the evidence to the issue is necessary to its-criminality. Morrill v. People, 32 Ill. 500; Pollard v. People, 69 id. 153; Roscoe on Crim. Evidence sec. 758; 2 Wharton on Crim. Law, sec. 1304, and note.
    There was no issue averred and none proved. The bill standing on demurrer, there was no issue of fact.
    To solicit a person to testify falsely in a case not brought and pending, is no crime. State v. Joaquin, 69 Maine, 218.
    The third and fifth of the People’s instructions were erroneous, in leaving out all reference to criminal intent on the part of Coyne.
    The court had no jurisdiction of this case. The perjury referred to in section 228 of the Criminal Code, is the perjury defined in sections 225, 226 and 227, and can be no other, and the “judicial proceedings” are proceedings in the State of Illinois. People v. Merrill, 2 Park. 590; People v. Sweetman, 5 id. 90; State v. Adams, 4 Blackf. 147; People v. California, 38 Cal. 145; State v. Pike, 15 N. H. 83; Commonwealth v. Smith, 11 Allen, 243.

      Mr. George Hunt, Attorney General, for the People:
    The statute (section 228,) does not require that the attempt-shall be to procure another to commit perjury in this State, but the place where the perjury is to be committed is not mentioned. If the attempt take place in this State, the offence against the laws of this State is complete. 1 Bishop on Crim.. Law, 143; Wharton on Am. Crim. Law, (3d ed.) 280, 281 Desty on Am. Crim. Law, sec. 55; 2 Russell on Crimes, 622 3 Archbold’s Crim. Pl. 619-621, note; People v. Mather, 4 Wend. 229.
    There was a judicial proceeding pending in the State of Iowa when the solicitation took place, and the statute does not require that issue shall have been joined before this crime can be committed.
    It is urged by counsel for plaintiff in error, that the materiality of the matter upon which the attempted perjury is assigned, does not appear. It need not, if there be an averment of its materiality. Pollard, v. People, 69 Ill. 153; Kimmel v. People, 92 id. 457.
   Mr. Justice Magruder

delivered the opinion of the Court r

Plaintiff in error was indicted by the grand jury of Bock Island county at the September term, 1886, of the circuit court of that county for endeavoring to incite and procure one Margaretha Fluegel to commit perjury. The case was tried at the following January term, and the plaintiff in error was found guilty by the jury. His term of imprisonment was fixed at two- and a half years in the penitentiary and sentence was passed against him in accordance with the verdict.

On the 26th day of June, 1885, George H. Maish commenced: an attachment suit in the circuit court of Scott county in the State of Iowa against Henry Fluegel, alleging an indebtedness due from Fluegel of $4013.89, and that he was a non-resident of Iowa. The attachment writ was levied upon a farm in Scott county, Iowa, called the “Wapsie farm.” This attachment suit was afterwards tried before a jury in December, 1885, and a verdict was rendered in favor of Fluegel and ■against Maish, and, in March, 1886, a new trial was refused •and judgment entered on the verdict.

On the same day, on which the attachment proceeding was begun, a petition was filed, in said Scott county circuit court in Iowa, on the equity side thereof, against Henry Fluegel and plaintiff in error, William L. Coyne, setting up the attachment proceeding and the levy upon the Wapsie farm, and .alleging, that the Wapsie farm was in truth and in fact the property of Henry Fluegel; that, on December 8,1884, Fluegel had made a deed of the farm to Coyne for the purpose of hindering, delaying and defrauding his creditors, which deed was recorded on the day of its date in Scott county, Iowa; that there was no valid consideration for the deed, and that Fluegel made it with the intent to place his property beyond the reach of his creditors; that Coyne held the land in trust for Fluegel and for the purpose of helping the latter to defraud his creditors, and that they were about to -make sale of it, etc. The petition prays for an injunction against the sale, and that the deed be set aside and cancelled and the land subjected to the payment of the debt of Maish. On October 21, 1885, Coyne and Fluegel filed a demurrer to the petition, which demurrer does not appear to have ever been disposed of.

The deed of the Wapsie farm, which Henry Fluegel and Margaretha Fluegel, his wife, made to the plaintiff in error” on December 8,1884, recites, that it is made subject to a mortgage •of $2600 held by one Quinn, the payment of which plaintiff in •error assumes. It is claimed by plaintiff in error, that he purchased the Wapsie farm of Henry Fluegel in good faith, .and paid him therefor by deeding to his wife, at his request, a Douse and lot on Eighteenth street in the city of Bock Island .at $3700, by surrendering a note against him for $500 and a claim against him of $200 for services rendered, and by assuming the mortgage for $2600.

A deed, dated December 8, 1881, was made by Coyne toMargaretha Fluegel and is introduced in evidence. This deed recites that it is made for a consideration of $3000 and subject to a mortgage of $700 held by one Eve McKinstry, the payment of which is not assumed by Margaretha Fluegel, the grantee in the deed.

Plaintiff in error was indicted and tried and convicted upon a charge of endeavoring in Bock Island county, Illinois, to incite and procure Margaretha Fluegel to appear as a witness, on the trial in Scott county, Iowa, of the said equity cause of Maish v. Fluegel and Coyne, or on the taking of proof in said cause, on behalf of her husband and Coyne, and to swear that the conveyance of the Wapsie farm by her husband to Coyne was a “right trade,” that is to say, a valid and bona fide transfer, and that Coyne gave to her husband for the farm the note for $500, the claim for $200, and the house and lot on Eighteenth street, valued at $3000, and assumed the mortgages for $2600 and $700.

The indictment charges, that the deed of the Wapsie farm was made by Fluegel without consideration and to hinder and defraud creditors, and was not a good and valid trade, and that the conveyance of the house and lot by Coyne to Fluegel was not made for the consideration of $3700, but was merely á conveyance in trust, and that Fluegel did not owe either the $500 or the $200, and that Coyne did not assume the payment of the $2600, etc., and that all these facts were well known to the said Coyne, etc.

The prosecution in this case was conducted mainly by the attorneys of Maish rather than by the prosecuting attorney of Bock Island county. It may have been perfectly right and proper for the district attorney to call in other counsel to assist him, but an examination of the record makes upon our minds the decided impression, that a criminal proceeding has been resorted to to force the collection of a civil debt. Maish was trying to subject the Wapsie farm in Iowa to the payment of a debt of $4013.89, which he claimed to be due to him from Fluegel, and, in order to' do this, he was obliged to show, that the farm belonged to Fluegel and not to Coyne. His success in this direction would certainly be much easier with Coyne in the penitentiary and his character as a witness broken down.

On the trial in the court below two issues were presented to the jury. The first issue was as to the truth or falsity of the alleged facts, which Coyne is charged with having endeavored to incite Mrs. Fluegel to swear to. In other words, was the d.eed of the farm from Fluegel to Coyne a bona fide sale, or was it fraudulent and without consideration ? Upon both sides of this question there was introduced a large mass of testimony both documentary and oral. Coyne swore that he bought the farm in good faith and paid the consideration already stated; Fluegel and his wife swore that the deed made by them was without consideration. It is proven beyond question, that, after he received his deed, Coyne went into possession of the Iowa farm and rented it and collected the rents, and it is also proven beyond question, that, after Mrs. Fluegel received her deed of the house and lot, she and her husband went into possession and lived in the house and made repairs and changes in it, and rented a part of it to other parties. Evidence, properly introducible in a chancery proceeding to set aside a deed, was presented before the jury to substantiate a criminal charge, and, owing to the complicated nature of such evidence, a careful study of it will leave upon the candid mind a serious doubt as to whether the real truth of the matter lies with one party or the other.

The second issue, presented before the jury, was whether or not the plaintiff in error endeavored to incite and procure Mrs. Fluegel to testify to the matters already referred to. The witnesses as to the endeavor to so incite and procure Mrs. Fluegel to swear to falsehoods were Mrs. Fluegel herself, her husband, Henry Fluegel, and her husband’s brother Michael Fluegel all of whom, are contradicted by plaintiff in error. Henry Fluegel had the strongest motives of interest to sustain the prosecution against Coyne. As a result of the success of that prosecution he might get rid of his debt to Maish, and of other debts for which he had confessed judgments. His testimony bears such ear-marks as justify the greatest caution in its acceptance. He not only admits that he was party to an outrageous scheme to defraud his creditors, but he confesses that he agreed to swear to a lie and wrote down false statements in German, for the purpose of having them learned by his1 own wife that she might swear to them.

Henry, Margaretha and Michael Fluegel swear, that Coyne came into their store one day in August or September, 1885, and, taking a seat upon the counter, told Mrs. Fluegel that, when the trial should come off in Iowa, she must swear, that the sale of the Wapsie farm by her husband was bona fide, and to the other matters above mentioned. Henry claims to have been present and heard what Coyne said to his wife. Michael, a German, who admits that he does not understand English very well, claims to have been in an adjoining room and to have heard what Coyne said through the partition. As we understand the evidence, the incitement charged in the indictment consists solely and exclusively of what Coyne said to Mrs. Fluegel upon the particular occasion here referred to. She herself swears that only upon this one occasion did Coyne tell her what she must testify to.

The third instruction given on behalf of the People was as follows:

“3. The court instructs the jury that the material allegations of the indictment in this ease are, first, that there was a bill in equity, filed in the district court of Scott county, Iowa, wherein George H. Maish was complainant, and the defendant and Henry Fluegel were defendants, in which it was substantially charged that Fluegel was the real owner of the ‘Wapsie farm, ’ and that Coyne had the same in trust and for the use of Fluegel; second, did the defendant, in the county of Bock Island and State of Illinois, attempt to incite or procure the witness, Margaretha Fluegel, to testify that the trade of said Fluegel to Coyne was a right trade; that Coyne gave the Eighteenth street property at $3000, and Fluegel assumed the $700 mortgage on said Eighteenth street property, and that Coyne assumed the $2600 mortgage on the ‘Wapsie farm,’ and that Fluegel owed Coyne $500 on a note and $200 for services, and that said proposed testimony was material to said bill in equity, and was false. And if the jury believe, from the evidence, these propositions are proved, beyond a reasonable doubt, then the jury should find the defendant guilty.”

Even if the jury had found, that the propositions stated in the third instruction were proven beyond a reasonable doubt, the plaintiff in error may not have been guilty of endeavoring “to incite or procure” Mrs. Fluegel “to commit perjury.” Section 228 of the Criminal Code of this State provides that “whoever endeavors to incite or procure any other person to commit perjury, though no perjury is committed, shall be imprisoned,” etti. (Hurd’s Bev. Stat. chap. 38.) The crime, which the prisoner was accused of endeavoring to incite another person to commit was perjwry. Section 225 of our Criminal Code thus defines perjury: “Every person, having taken a lawful oath or made affirmation, in any judicial proceeding, or in any other matter where by law an oath or affirmation is required, 'who shall swear or affirm willfully, corruptly and falsely in a matter material to the issue or point in question * * * shall be deemed guilty of perjury,” etc.

To commit perjury, a person must “willfully, corruptly and falsely” swear or affirm. The false assertion made by the witness under oath must be knoivn to such witness to be false, and must be intended by him or her to mislead the court or jury. 2 Wharton on Crim. Law, (9th ed.) sec. 1244.

The third instruction is erroneous, because it leaves out of view the element of corrupt intent on the part of the person incited. It in no way intimates, that Mrs. Fluegel knew that what she was asked to swear to was false. The deed to her of the house and lot and the deed to Coyne of the farm were both absolute deeds upon their faces. The evidence tends to show, that her own husband concurred in the statements made to her by Coyne as to what she was to say on the witness stand. If she believed, that what she was asked to testify to was true and did not know of its alleged falsity, then she would not have been guilty of perjury, if she had sworn to it. 2 Wharton on Crim. Law, secs. 1245, 1246.

If plaintiff in error was trying to persuade Mrs. Fluegel, that certain alleged facts were true, and to swear to them because of her belief that they were true, he was not endeavoring to incite her to commit perjury even though he knew that the testimony he wanted her to give was false. It must appear, that he was urging her to give false testimony, knowing that she, as well as himself, was aware of its falsity. “Though a party, who is charged with subornation of perjury, knew that the testimony of a witness whom he called would be false, yet if he did not know that the witness would willfully testify to a fact, knowing it to be false, he can not be convicted of the crime charged.” 2 Wharton on Crim. Law, sec. 1329.

An instruction, similar to the one now under consideration, was, for the reason here indicated, decided to be erroneous by the Supreme Court of Massachusetts in Commonwealth v. Douglass, 5 Metc. 241. United States v. Dennee, 3 Wood’s Rep. 39; Stewart v. State, 22 Ohio St. 477.

The fifth instruction given for the People was erroneous for the same reason here urged against the third, and neither of them was cured by any instruction that was given. The fifth of defendant’s refused instructions embodied the idea of guilty intent on the part of Mrs. Fluegel and should have been given.

As already stated, the judicial proceeding, in which the testimony of Mrs. Fluegel was to have been given, was pending in the State of Iowa. The point is made and elaborately argued by counsel for the defence, that a person in this State can not be punished in a.court of this State for inciting another person, also in this State, to commit perjury in a proceeding pending in .another State. It is claimed, that our statute upon this subject contemplates perjury committed in proceedings or matters pending in this State and not in a foreign jurisdiction. We do not deem it necessary to discuss this question and pass no opinion upon it.

The indictment in- this case charges that perjury was a crime punishable by the laws of Iowa, and that the false swearing, which the defendant is accused of having endeavored to incite, would have constituted perjury under the laws of Iowa. It is also averred in the indictment, that the false testimony in question could havé been given under the laws of Iowa, or, in other words,, that Mrs. Fluegel would have been a competent witness for her husband in Iowa, though she could not have testified for him, if the proceeding above described had been pending in Illinois.

The laws of Iowa were introduced in evidence. We have ■examined the definition of perjury as contained in the code of that State and find it to he substantially the same as the definition given in our own statute. Therefore, if it be admitted that plaintiff in error can be punished for endeavoring to procure the commission of perjury in a suit pending in another State, the third and fifth instructions, considered with reference -to the Iowa definition of perjury, as well as when considered with reference to the Illinois definition thereof, are •erroneous in the respect already pointed out.

The judgment of the circuit court is reversed and the cause remanded.

Judgment reversed.


author: Mr. Justice Shops

text:
    Elisha B. Steers v. William J. Brownell.

      Filed at Springfield January 18, 1888.

    1. Limitation—as to set-off—statute construed. Section 17 of the Limitation law gives a defendant the right to plead a set-off or counter-claim barred by the statute, while held and owned by him, to any action the cause of which was owned l>y the plaintiff or person under whom he claims, before such set-off ■or counter-claim was so barred, the same as if it was not so barred; and the defendant, as to such set-off, may recover judgment against the plaintiff- for any balance found to be due him, the same as'in other cases.
    2. Section 17 of the Limitation law, and section 30 of the Practice act, relating to the same subject matter,—set-off,—are in pari materia, and must be taken and construed together. The purpose of section 17 is to extend the right given by section 30 to a class of cases where the right could not otherwise he exercised.
    3. Remedy by statute—draws rights incident to it. "Where the legislature gives a right of action, as, to maintain assumpsit, to plead set-off, and the like, when it did not and could not otherwise exist, the presumption is that all the rights incident to the assertion and maintenance of the right so given are also conferred.
    4. Construction oe statute—general rule. The general rule is, that the words of a statute are to be interpreted according to their common and popular acceptation and import, and in such way as to carry into effect the whole law; but words of known legal import are to be considered as having been used in that known sense, or according to their strict acceptation, unless there appears a manifest intention to use them in their common or popular sense.
    5. It is not permissible for the courts to insert in a statute, words not used by the legislature. The meaning and intent of the legislature are to be ascertained from the words employed, without adding thereto or taking therefrom.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.
    The plaintiff filed the common counts in assumpsit. The ■defendant pleaded general issue, payment, Statute of Limitations and set-off. To the plea of set-off, plaintiff, under leave, filed several replications, the third being that the defendant ought not to have his set-off, etc., except as to the sum that shall be found due on plaintiff’s claim, because, he says, the several supposed causes of action in the plea of set-off mentioned, did not, nor did any of them, accrue to the defendant at any time within five years before the commencement of this suit, etc., to which replication the defendant rejoined, that the claims mentioned in defendant’s plea of set-off were held and owned by the defendant at the time they became barred, and that the plaintiff’s cause of action was held and owned by-plaintiff before the defendant’s claim was barred, etc. A de.murrer was interposed to this rejoinder, and overruled, and plaintiff elected to abide by his demurrer. The cause was-tried upon the issues presented by the other pleadings, and resulted in a finding for defendant, on his plea of set-off, for $342.65. A motion for a new trial was overruled, and judgment against plaintiff on verdict. On appeal to the Appellate-Court for the Third District, the judgment of the circuit court was affirmed, and plaintiff below prosecutes this further appeal..
    Mr. Thomas C. Herrick, and Mr. Joseph W. Fifer, for the-appellant:
    The right of set-off is statutory. It did not exist at common law. 1 Chitty’s Pl. (14th Am. ed.) 568.
    To plead to an action is to answer the declaration in a formal manner. A set-off is something more than an answer to the action. As to the excess above the plaintiff’s debt or damages, it is to all intents an action.
    The counter-claim, though barred, may be used as a shield against the plaintiff’s claim; but, having served the purpose of defeating that claim, it has no further vitality. The statute-does not provide that the claim shall be revived. It merely provides that it may be pleaded to the action, and makes no-provision, as does section 30 of the Practice act, for a recovery-over.

      Mr. James E. Ewing, and Mr. John E. Pollock, for the appellee.
   Mr. Justice Shops

delivered the opinion of the Court:

. But one question arises in this ease which we deem it necessary to discuss. It arises on the demurrer to the rejoinder to a replication to the plea of set-off, and involves the construction of section 1Y, chapter 83, (Limitations,) of the Revised Statutes. The question is, whether that s’eetion of the Limitation act, in the cases therein mentioned, removes the bar of the statute from a claim pleaded as a set-off, to the extent of the entire claim so pleaded, or only so. far as may be necessary to defeat the plaintiff’s cause of action. That section is as follows: “A defendant may plead a set-off or counterclaim barred by the Statute of Limitations, while held and owned by him, to any action the cause of which was owned by the plaintiff or person under whom he claims before such set-off or counter-claim was so barred, and not otherwise.”

It is insisted by counsel for appellant, that the provision allowing the defendant to plead his set-off or counter-claim “to any action,” etc., means no more than to defeat such .action; that when the defendant seeks to recover over, he is ■ doing more than to plead to the action; that as to any excess, he is, in effect, setting up a new, independent cross-action; that the statute intends only to furnish the defendant a shield against the plaintiff’s claim. The 30th section of the Practice act, giving the right of set-off, is as follows: “The defendant in any action brought upon any contract or agreement, either expressed or implied, having claims or demands against the plaintiff in such action, may plead the same or give notice thereof under the general issue, or under the plea of payment ; and the same, or such part thereof as the defendant shall prove on trial, shall be set off and allowed against the plaintiff’s demand, and a verdict shall be given for the balance due. And .if it shall appear that the plaintiff is indebted to the defendant, the jury shall find a verdict for the defendant, and certify to the court the amount so found; and the court shall give judgment in favor of such defendant, with the costs of hisdefence.”

The section last-quoted is section 19 of the Practice act of 1845, re-written, and, together with the other section quoted, was incorporated in the general revision of 1872-74, and they are to be construed as part of said revision. The section first quoted saves out of the general Limitation law, in certain specified cases, the right to plead set-off, given by the section of the Practice act. The purpose of section 17 is to extend the right given by the section of the Practice act to a class of cases where the right could not otherwise be exercised. It is manifest that these two sections, relating to the same subject matter, are in pari materia, and must therefore be taken and construed together.

By the section of the Practice act, the right of the defendant to plead set-off or counter-claim, and to recover over as to-any excess, is clearly given. Now, if these two sections are read together, as parts of one law, as they must be, it will be observed that the right given in the cases specified in section 17 is a-s broad as that given by the 30th section of the Practice act, and is without limitation, except that the defendant must have been the holder and owner of his claim at the time it became barred, and that the plaintiff, or those under whom he claims, must then have held and owned the plaintiff’s claim. The one section provides that in all cases where set-off is pleaded, and it appears in proof that the set-off exceeds the plaintiff’s claim as proved, judgment shall be rendered over for the defendant for such excess. By the other section, the right to plead set-off, without any limitation-as to result, in the cases within the purview of such section, is also given, and it-is apparent, we think, that all the incidents of the right given by the 30th section pass to the defendant when he brings himself within the cases specified in the 17th section of the Limitation act, and that therefore, in such case, the right of the defendant to plead set-off exists precisely as if the bar of the statute had not interposed. Where the legislature gives a right of action,—as, to maintain assumpsit, to plead set-off, and the like,—where it did not.or would not otherwise exist, the presumption is that all the rights incident to the assertion and maintenance of the right so given are also conferred.

The construction contended for by counsel for appellant can not obtain, for the further reason that it would require us, by construction, to interpolate into section 17 of the Limitation act, words not there found, limiting the removal of the bar only to the extent of the plaintiff’s claim. • It is not permissible for the court to insert words in the statute not used by the Legislature. The meaning and intent of the legislature are to be ascertained from the words employed, and we are not permitted to qualify the words of the act by arbitrarily introducing words which would limit the removal of the bar to so much, only, of the defendant’s claim as might be necessary to defeat the plaintiff’s recovery. (Dwarris on Stat. 190, 199.) This author quotes Tendal, G. J., as saying, in Everett v. Mills, 4 Scott, (N. C.) 531: “It is the duty of courts to confine themselves to the words of the legislature,—nothing adding thereto, nothing diminishing. We must not import into an act a condition or qualification which we do not find there.” Dwarris on Stat. 200.

As we have seen, an argument is attempted to be based upon the language of the section giving the right to plead set-off “to the action," etc., of the plaintiff. The general rule undoubtedly is, that the words of the statute are to be interpreted according to their common and popular acceptation and import, and in such way as to carry into effect the whole law; but words of known legal import are to be considered as having been used by the legislature in that known sense, or according to their strict acceptation, unless there appears a manifest intention to use them in their common or popular sense. (Supra.) Pleas of set-off and counter-claim are pleas to the action,—pleas in bar of the action. This is well understood, and the legislature having provided that the defendant’s set-off or counter-claim may be pleaded “to the action,” it will be presumed that this language was employed in technical legal acceptation. Any plea to the merits of a cause is a plea to the action, and a plea of set-off or counter-claim is a plea to the merits.

There are some other minor objections relating to the admission and rejection of testimony, which we have carefully examined, but do not deem them of sufficient importance to require discussion. They have been correctly disposed of in the opinion of the Appellate Court in this case. The facts, as a matter of course, are settled against appellant by the judgment of the Appellate Court, and we are not at liberty to review them.

Finding no reversible error in this record, the judgment of the Appellate Court is affirmed.'

Judgment affirmed.


author: .Mr. Justice Mulkey

text:
    George D. Barrett et al. v. Watson S. Hinckley.

      Filed at Ottawa January 19, 1888.

    1. Ejectment—legal title as the basis of recovery. A plaintiff in ejectment, in order to recover, must show in himself a legal title. He can not maintain the action upon a mere equitable title.
    2. And when the plaintiff seeks to recover land, claiming a title in fee simple, he must show in himself a fee simple title at law, as contradistinguished from an equitable fee.
    3. Same—as to one holding the mere naked legal title. But one having a mere naked legal title to land in which he has no beneficial interest, and "in respect to which he has no duty to perform, can not maintain ejectment against the equitable owner, or any one having an equitable interest therein •with a present right of possession.
    4. Same—ejectment by a mortgagee—or his assignee. At the common law, by the execution of a mortgage upon land, the entire legal estate passed ■to the mortgagee, and unless it was expressly provided that the mortgagor should retain possession till default in payment, the mortgagee might maintain ejectment as well before as after default; and this is the view taken by the common law courts of England, and which has obtained, with certain limitations, in most of the States of the Union, including our own, in which the common law system prevails.
    5. But a mortgagee may not in all cases maintain ejectment. The mortgage title exists only for the benefit of the holder of the mortgage debt, and can only be asserted in furtherance of his interest. Therefore, if the mortgagee, for a valuable consideration, should assign the mortgage debt to a ■third party, and the latter, in default of payment, should take possession of the mortgaged premises, ejectment would not lie against him at the suit of the mortgagee, although the legal title is in him, for the reason it would not 'be in the interest of the holder of the debt.
    -6. The estate and interest of a mortgagee may be conveyed to the holder •of the debt secured thereby, or even to a third party, .by deed, with apt words of conveyance; and the fact that the instrument is in form an assignment, will make no difference. Such assignee, if the owner of the mortgage debt, may, no doubt, maintain ejectment in his own name for his own use, -and if not the holder of the debt, the action may be brought in his name, •for the use of the holder of the debt.
    7. A mortgagee holding a note secured by mortgage on land, in his lifetime pledged the note and mortgage to a third person as collateral security. After the death of the mortgagee, his administratrix and the pledgee, by a ■separate instrument in writing, sold and assigned the note and mortgage to a purchaser thereof: Held, that on the mortgagee’s death the legal title in the mortgaged premises vested in his heirs-at-law, and that the pledgee ¡and administratrix, by the assignment of the note and mortgage, could not pass the legal title so as to enable the assignee to maintain ejectment.
    8. Same—ejectment by a mortgagor—the mortgage as an outstanding •title. A mortgagor or his assignee is the legal owner of the mortgaged premises against all persons except the mortgagee or his assigns. So in ■ejectment by the mortgagor against a third person, the mortgage can not •be set up as an outstanding title to defeat a recovery.
    9. Mobtgages—relative nature of the title of mortgagor and mortgagee. Courts of equity, looking at the substance of the transaction rather than the form, and with a view of giving effect to the real intentions of the parties, treat a mortgage as a mere security for the payment of the debt, •and the mortgagor as the real beneficial owner of the land, subject to incumbrance of the mortgage, and the interest of the mortgagee simply as a. lien, rather than as an estate.
    10. The courts of law regard the title of a mortgagee in fee as in the-nature of a base or determinable fee. The term of its existence is measured by that of the mortgage debt. When the latter is paid or becomes, barred by the Statute of Limitations, the mortgage title is extinguished by operation of law.
    11. Assignment—of promissory note—-by separate instrument. A promissory note can not be assigned by a separate instrument, so as to pass the legal title.
    12. Same—as to note and mortgage. A transfer or assignment of a-note and mortgage securing it, by a separate written instrument, will make-the assignee the equitable owner of the note and mortgage, and give him. such an equitable interest respecting the mortgaged premises, as to entitle-him to have them sold in satisfaction of the note or debt.
    13. A mortgage can not be assigned, like negotiable paper, so as to pass-the legal title in the instrument, or clothe the assignee with the immunity of an innocent holder, except under certain circumstances; but the mortgagee, or any one succeeding to his title, may, by deed, in the form of am assignment, pass to the assignee the legal as well as the equitable interest, of the mortgagee.
    14. If a mortgagee conveys the mortgaged premises without assigning-the debt to the grantee, the latter will hold the legal title in trust for the-owner of the debt. But the mortgage interest, as distinct from the debt, has no appreciable or determinate value, and is really not a fit subject of assignment.
    15. Same—whether a seal is necessary. A mere written assignment of a note and a mortgage securing the same, though upon a separate paper, founded upon a valuable consideration, is just as available, for the purpose of passing to the assignee the equitable title to the mortgaged premises, as-an instrument under seal; but in order to pass the legal title to land, the-, instrument must be under seal.
    16. Same—evidence to show an assignment, so as to pass the legal title-A plaintiff in ejectment, who purchased a note secured by a mortgage, testified that the assignment of the note and mortgage to him was by the administratrix of the mortgagee and a pledgee of the note, but did not pretend; to state its contents, but characterized it as a full assignment of the note and mortgage and the land, which was regarded as but the conclusion of the witness: Held, that the proof of the assignment was not sufficient to-show a transfer of the legal title to the mortgaged premises. The term “assignment” does not, like the term “deed,” or “specialty,” signify an < instrument under seal, which is indispensable to the passing of the legal title to land.

      Appeal from the Superior Court of Cook county; the Hom Josbph E. Gary, Judge, presiding.
    Messrs. Whitehead & Packard, for the appellants:
    The court erred in admitting improper evidence. Before-evidence as to the contents of a lost instrument can be introduced, its due execution must be strictly proved. Mariner v. Saunders, 5 Gilm. 113.
    Whether or not a document is a “deed,” is to be determined by the document, and not by the testimony of a witness that it was-a “deed.” Massure v. Noble, 11 Ill. 531.
    An interrogatory must not assume facts to have been proved which have not been proved. Greenleaf on Evidence, see. 434.
    The loss or destruction of written instruments must be satisfactorily proved before parol evidence of their contents can be received. Whitehall v. Smith, 24 Ill. 166; Palmer v. Logan, 3 Scam. 56; Mariner v. Saunders, 5 Gilm. 113; Rankin v. Crow, 19 Ill. 626; Cook v. Hunt, 24 id. 535; Stow v. People, 25 id. 81; Dickinson v. Breeden, id. 186; Owen v. Thomas, 33 id. 325; Sturges v. Hart, 45 id. 103; Wing v. Sherrer, 77 id. 200; Williams v. Case, 79 id. 356.
    While prior possession may be sufficient to enable a plaintiff to recover, in ejectment, against a-trespasser entering without claim of right, yet prior possession of the premises in controversy by the plaintiff, not under color of title, and not brought within the bar of any one of the several statutes of limitation, is not sufficient to enable him to recover against a, defendant who entered peaceably into possession under claim and color of title. Sedgwick & Wait on Trial of Title to Land,, see. 722; Tyler on Ejectment, 784; Bledsoe v. Simms, 53 Mo. 305; Dunn v. Miller, 75 id. 260; Lore v. Hill, 3 Harr. (Del.) 530; Morehouse v. Phelps, 21 How. 294; Herbert v. Herbert, Breese, 354; Bowman v. Wettig, 39 Ill. 416; Barger v. Hobbs, 67 id. 592; Lancey v. Brock, 110 id. 609; Picard v. Williams, 7 Wheat. 106; Smith v. Burtis, 6 Johns. 218; Brown v. Smith, 83 id. 291.

      The mere assignee of a mortgage can not recover in an :action of ejectment. Speer v. Hadduck, 31 Ill. 443; Olds v. Cummings, id. 189; Griffin v. M. Co. 52 id. 130; White v. Sutherland, 64 id. 181; Camp v. Small, 44 id. 37; Bowrland v. Kipp, 55 id. 376; Kleeman v. Frisbie, 63 id. 482; Kilgour v. Gockley, 83 id. 109; Railway Co. v. Loewenthal, 93 id. 450; Wilson v. Thorp, 2 Cow. 145; Jackson v. Myers, 11 Wend. 533; 2 Washburn on Real Prop. (5th ed.) 522, 126; Carpenter v. Longan, 16 Wall. 271.
    Messrs. Wilson & Moobe, for the appellee:
    'The court did not err in admitting improper testimony. As to secondary evidence, see Dickinson v. Breeden, 25 Ill. 186; Deininger v. McConnel, 41 id. 227; Rev. Stat. chap. 30, sec. 36.
    Prior possession under claim of ownership of the fee is sufficient to enable the plaintiff to recover, in ejectment, against any one except him who has the legal title or right of possession, Smith v. Lorillard, 10 Johns. 339; Herbert v. Herbert, Beecher’s Breese, 357; Brooks v. Bruyn, 18 Ill. 542; Barger v. Hobbs, 67 id. 597.
    A mortgagee, after condition broken, may maintain ejectment. Finlon v. Clark, 118 Ill. 32; Kilgour v. Gockley, 83 id. 109; Bank v. Dayton, 116 id. 257.
    An assignment by deed puts the assignee in the place of the mortgagee. It passes the legal estate, and enables the assignee to foreclose in his own name. The mortgagee has no longer :any right or interest in or claim to the lands mortgaged, and .an action in his name in respect to them can be no longer maintained. Jones on Mortgages, sec. 787.
   .Mr. Justice Mulkey

delivered the opinion of the Court:

"Watson S. Hinckley, claiming to be the owner in fee of the . "land in controversy, on the 26th day of February, 1885, brought •an action of ejectment, in the Superior Court of Cook county, .against the appellants, George D. Barrett, Adalina S. Barrett, "William H. Whitehead, and others, to recover the possession, thereof. There was a trial of the cause before the court, without a jury, resulting in a finding and judgment for the plaintiff,, and the defendants appealed.

The evidence tends to show the following state of facts: In 1870 Thomas Kearns was in possession of the land, claiming to own it in fee simple. On August 3 of that year he sold and conveyed it to William II. W. Cushman for the sum of §80,000. Cushman gave his four notes to Kearns for the balance of the purchase money,—one for §12,500, maturing in thirty days; three for $16,875 each, maturing, respectively, in two, three and four years after date, and all secured by a mortgage on the premises. The notes seem to have all been paid but the last one. In 1878 Kearns died, and his widow, Alice Kearns, administered on his estate. Previous to his death, however,, he had hypothecated the mortgage and last note to secure a. loan from Greenebaum. Subsequently, and before the commencement of the present suit, Greenebaum, in his own right, and Mrs. Kearns, as administratrix of her husband, for value, sold and assigned, by a separate instrument hi writing, the' mortgage and note to the appellee, Watson S. Hinckley.

This is, in substance, the case made by plaintiff. The defendants showed no title in themselves or any one else. The conclusion to be reached, therefore, depends upon whether the case made by the plaintiff warranted the court below in rendering the judgment it did.

It is claimed by appellants, in the first place, that much of the evidence relied on by appellee to sustain the judgment below was improperly admitted by the court, and various errors, have been assigned upon the record questioning the correctness of the rulings of the court in this respect. They, however, go further, and insist, that even conceding the facts to be as claimed by appellee himself, they are not sufficient, in law, to sustain the action. As the judgment below will have to be reversed on the ground last suggested, it will not be necessary to consider the other errors assigned.

We propose to state, as briefly as may be, some of the reasons which have lead us to the conclusion reached. In doing so, it is perhaps proper to call attention, at the outset, to some considerations that should be steadily kept in mind as we proceed, and to which we attach not a little importance.

It is first to be specially noted, that this is a suit at law, as contradistinguished from a suit in equity. It is brought to enforce a naked legal right, as distinguished from an equitable right. The plaintiff seeks to recover certain lands, the title whereof he claims in fee simple. To do this, he is bound to ■show in himself a fee- simple title at law, as contradistinguished from an equitable fee. (Fischer v. Eslaman, 68 Ill. 78; Wales v. Bogue, 31 id. 464; Fleming v. Carter, 70 id. 286; Dawson v. Hayden, 67 id. 52.) Has he done this? He attempts to -derive title remotely through the mortgage from Cushman to Kearns, but upon what legal theory, is not very readily perceived. His immediate source of title, however, seems to be Mrs. Kearns, as administratrix of her husband, and Greenebaum, as pledgee of the note and mortgage.' ■ The instrument through which he claims, is lost or. destroyed, and all we know concerning its character is what the plaintiff himself says about it. As to its contents, he does not pretend to state a single sentence or word in it, but characterizes it as an assignment, and gives the conclusions which he draws from it, in general terms, only. After stating his purchase of the note and mortgage in January, 1880, he says: “The assignment was from Mrs. Kearns, the administratrix of Thomas Kearns’ estate, and Elias Greenebaum, the banker. At the time of the purchase a separate writing was given to me,—a full assignment. * * * It was a very explicit assignment, or full assignment of the note and mortgage and the land, the property, and all the right and title to the land.” : It will be observed, the instrument is throughout characterized as an assignment, only, "which does not, like the term “deed,” or “specialty,” signify an instrument under seal. ¡ A mere written assignment, founded upon a valuable consideration, is just as available- for the purpose of passing to the assignee the equitable title to land .as ah instrument under seal. Such being the case, we would ■clearly not be warranted in inferring that the assignment was •under seal from the simple fact that the witness gives it as his •opinion that the instrument was “a full assignment” of the land, which is nothing more than the witness’ opinion upon a ■question of law. > There not being sufficient evidence in the record to show that the assignment was under seal, it follows, that even conceding the legal title to the property to have been in Mrs. Kearns and Greenebaum, or either of them, it could not have passed to the appellee by that instrument, and if not . by it, not at all, because that is the only muniment of title relied on for that purpose. This conclusion is, of course, based "upon the fundamental principle that an instrument inter partes, , in. order to pass the legal title to real property, must be under ■seal. Í' "

[ But this is not all. Even conceding the sufficiency of the •assignment to pass the legal title, the record, in our opinion, fails to show that the assignors, or either of them, had such title; hence, there was nothing for the assignment to operate "upon, so far as the legal estate in the land is concerned. Having no such title, they could not convey it. Nemo plus Juris ad alium transferre potest quam ipse habet. • That the legal estate in this property was not either in Greenebaum or Mrs. Kearns at the time of the assignment to plaintiff, is demonstrable by the plainest principles of law. Let us see. Thomas Kearns was the owner of this property in fee. He-conveyed it in fee to Cushman. The latter, as a part of the same transaction, reconveyed it, by Way of mortgage, to Kearns. By reason of this last conveyance, Kearns became mortgagee of -the property, and Cushman mortgagor. According to the English doctrine, and that of some of the States of the Union, including our own, Kearns, at least as between the parties, took the legal estate, and Cushman the equitable. According to other authorities, Kearns, by virtue of Cushman’s mortgage-to him, took merely a lien upon the property to secure the-mortgage indebtedness, and the legal title remained in Cushman. For the purposes of the present inquiry it is not important to consider just now, if at all, which is the better or true theory. It is manifest, and must be conceded, that the-legal estate in the land, after the execution of the mortgage, was either in the mortgagee or mortgagor, or in both combined.. Such being the case, it is equally clear, appellee, to succeed, must have deduced title through one or both of these parties.. This could only have been done by showing that the legal title had, by means of some of the legally recognized modes of conveying real property, passed from one or both of them to himself. This he did not do or attempt to do. Indeed, he does, not claim through them, nor either of them. Not only so, neither Mrs. Kearns nor Greenebaum, through whom appellee does claim, derives title through any deed or conveyance executed by either the mortgagor or mortgagee. Nor does either of them claim as heir or devisee of the mortgagor or mortgagee.

; As the assignment of the note and mortgage to appellee did not, as we hold, transfer or otherwise affect the legal title to-the land, it may be asked, what effect, then, did it have ? This question, like most others pertaining to the law of mortgages, admits of two answers, depending upon whether the rules and principles which prevail in courts of equity, or of law, are to-be applied. If the latter, we would say none; because, as to the note, that could not be assigned by a separate instrument, as was done in this case, so as to pass the legal title. (Ryan v. May, 14 Ill. 49; Fortier v. Darst, 31 id. 213; Chickering v. Raymond, 15 id. 362.) ' As to the mortgage, it is well settled that could not be assigned, like negotiable paper, so as to pass the legal title in the instrument or clothe the assignee with the immunity of an innocent holder, except under certain circumstances, which do not apply here. (Chicago, Danville and Vincennes Railway Co. v. Loewenthal, 93 Ill. 433; Hamilton County v. Lubukee, 51 id. 415; Olds v. Cummings, 31 id. 188; McIntire v. Yates, 104 id. 491; Fortier v. Darst, 31 id. 213.) But that the mortgagee, or any one succeeding to his title, might, hy deed in the form of an assignment, pass to the assignee the legal as well as the equitable interest of the mortgagee, we have no doubt, though there is some conflict on this subject. (2 Washburn on Real Prop. p. 115, and authorities there cited.) Yet the assignors in the case in hand, not having the legal title, as we have just seen, could not, by any form of instrument, transmit it to another. If, however, the rules and principles which obtain in courts of equity are to be applied, we would say, that by virtue of the assignment the appellee became the equitable owner of the note and mortgage, and that' it gave him such an interest or equity respecting the land as entitled him to have it sold in satisfaction of the debt. :

There is, perhaps, no species of ownership known to the law .which is more complex, or which has given rise to more diversity of opinion, and even conflict in decisions, than that which has sprung from the mortgage of real property. By the common law, if the mortgagor paid the money at the time specified in the mortgage, the estate of the mortgagee, by reason of the performance of the condition therein, at once determined and was forever gone, and the mortgagor, by mere operation of law, was remitted to his former estate. On the other hand, if the mortgagor failed to pay on the day named, the title of the mortgagee became absolute, and the mortgagor ceased to have any interest whatever in the mortgaged premises. By the execution of the mortgage, the entire legal estate passed to the mortgagee, and unless it was expressly provided that the mortgagor should retain possession till default in payment, the mortgagee might maintain ejectment as well before as-after default. This is the view taken by the common law courts of England, and which has obtained, with certain limitations, in most of the States of the Union, including our own, in which the common law system prevails.

In Carroll v. Ballance, 26 Ill. 9, which was ejectment by the mortgagee against the assignee of the mortgagor, to recover the mortgaged premises, this court thus states the English rule on the subject: “In England, and in many of the American States, it is understood that the ordinary mortgage deed conveys the fee in the land to the mortgagee, and under it he may oust the mortgagor immediately on the execution and delivery of the mortgage, without waiting for the period fixed for the performance of the condition,—citing Coot on Mortgages, 339; Blaney v. Bearce, 2 Greenlf. 132; Brown v. Cramer, 1 N. H. 169; Hobart v. Sanborn, 13 id. 226; Northampton Paper Mills v. Ames, 8 Metc. 1. And this right is fully recognized by courts of equity, although liable to be defeated at any moment, in those courts, by the payment of the debt.” Again, in Nelson v. Pinegar, 30 Ill. 481, which was a bill by a mortgagee to restrain waste, it is said: “The complainant, as mortgagee of the land, was the owner in fee, as against the mortgagor and all claiming under him. He had the jus in re as well as ad rem, and being so, is entitled to all the rights and remedies which the law gives to such an owner.” So, in Oldham v. Pfleger, 84 Ill. 102, which was ejectment by the heirs of the mortgagor against the grantee of the mortgagor, this court, in holding the action could not be maintained, said: ■“Under the rulings of this court, the mortgagee is held, as in England, in law, the owner of the fee, having the jus in re as well as the jus ad rem.” In Finlon v. Clark, 118 Ill. 32, the same doctrine is announced, and the cases above cited are referred to with approval. Taylor v. Adams, 115 Ill. 574.

Courts of equity, however, from a very early period, took a widely different view of the matter. They looked upon the forfeiture of the estate at law because of non-payment on the very day fixed by the mortgage, as in the nature of a penalty, and, as in other cases of penalties, gave relief accordingly. This was clone by allowing the mortgagor to redeem the land, ■on equitable terms, at any time before the right to do so was barred by foreclosure. The right to thus redeem after the ■estate had become absolute at law in the mortgagee, was called the “equity of redemption,” and has continued to be so called to the present time. These courts, looking at the ¡substance of the transaction rather than its form, and with a view of giving' effect to the real intentions of the parties, held that the mortgage was a mere security for the payment of the debt; that the mortgagor was the real beneficial owner of the land, subject to the incumbrance of the mortgage; that the interest of the mortgagee was simply a lien and incumbrance upon the land, rather than an estate in it. In short, the positions of mortgagor and mortgagee were substantially reversed in the view taken by courts of equity. These two systems grew up side by side, and were maintained for centuries with-cut conflict, or even friction, between the law and equity tribunals by which they were respectively administered. The ■equity courts did not attempt to control the law courts, or even ■question the legal doctrines which they announced. On the ■contrary, their force and validity were often recognized in the relief granted. Thus, equity courts, in allowing a redemption after a forfeiture of the legal estate, uniformly required the mortgagee to reconvey to the mortgagor, which was, of course, necessary, to make his title available in a court of law.

In maintaining these two systems and theories in England, there was none of that confusion and conflict which we encounter in the decisions of the courts of this country, resulting chiefly from a failure to keep in mind the distinction between courts of law and of equity, and the rules and principles applicable to them, respectively. The courts there, by observing •these things, kept the two systems intact, and in this con■dition they were transplanted to this country, and became a ■part of our own system of laws. But other causes have contributed to destroy that certainty and uniformity which formerly prevailed with us. Chiefly among these causes may be-mentioned the statutory changes in the law in many of the-States, and the failure of the courts and authors to note those-changes in their expositions of the law of such States. Perhaps another fruitful source of confusion on this subject is the fact that in many of the States the common law forms of action have been abolished by statute, and instead of them a single statutory form of action has been adopted, in which, legal and equitable rights are administered at the same time- and by the same tribunal. Yet the distinction between legal and equitable rights is still preserved, so that although the-action, in theory, is one at law, it is nevertheless subject to be defeated by a purely equitable defence.

Under the influence of these statutory enactments and radical changes in legal procedure, by which legal and equitable rights are given effect and enforced in the same suit, the equitable theory of a mortgage has, in many of these States, entirely superseded the legal one. Thus, in New York it is said, in the case of Trustees of Union College v. Wheeler et al. 61 N. Y. 88, “that a mortgage is a mere chose in action. It gives-no legal estate in the land, but is simply a lien thereon, the-mortgagor remaining both the legal and equitable owner of the fee.” Following this doctrine to its logical results, it is held by the courts of that State that ejectment under the code will not lie, at the suit of the mortgagee, against the owner of the equity of redemption. (Murray v. Walker, 31 N. Y. 399.) In strict conformity with the theory that the mortgagee has. no estate in the land, but a mere lien as security for his debt, the courts of New York, and others taking the same view, hold that a conveyance by the mortgagee, before foreclosure, without an assignment of the debt, is, in law, a nullity. (Jackson v. Curtis, 19 Johns. 325; Wilson v. Troup, 2 Cow. 231; Jackson v. Willard, 4 Johns. 41.) And this court seems to have-recognized the same rule as obtaining in this State, in Delano v. Bennett, 90 Ill. 533.

The New York cases just cited, and all others taking the same view, are clearly inconsistent with the whole current of ■our decisions on the subject, as is abundantly shown by the authorities already cited. The doctrine would seem to be fun•damental, that if one sai juris, having the legal title to land, intentionally delivers to another a deed therefor containing apt words of conveyance, the title, at law, at least, mil pass to the grantee; but for what purposes or uses the grantee will ■ hold it, or tó what extent he will be able to enforce it, will. ■depend upon circumstances. If the mortgagee conveys the land without assigning the debt to the grantee, the latter would hold the legal title as trustee for the holder of the mortgage ■debt. (Sanger v. Bancroft, 12 Gray, 367; Barnard v. Eaton, 2 Cush. 304; Jackson v. Willard, 4 Johns. 40.) It is true, the interest which passes is of no appreciable value to the ■grantee. Thus, in the case last cited, Chancellor Kent, in speaking of it, says: “The mortgage interest, as distinct from "the debt, is not a fit subject of assignment. It has no deter- ■ mínate value. If it shoidd be assigned, the assignee must hold the interest at the will and disposal of the creditor who holds the bond.” In 4 Wait’s Actions and Defences, page 565, the rule is thus stated: “By the common law, a mortgagee in fee ■of land is considered as absolutely entitled to the estate, which he may devise or transmit by descent to his heirs.” In conformity with this view, Pomeroy, in his work on Equity Jurisqirudence, (vol. 3, page 150,) in treating of this subject, says: '“In law, the mortgagee may convey the land itself by deed, or • devise it by will, and on his death, intestate, it will descend to his heirs. In equity, his interest is a mere thing in action, assignable as such, and a deed by him would operate merely as an assignment of the mortgage; and in administering the ■estate of a deceased mortgagee, a court of equity treats the mortgage as personal assets, to be dealt with by the executor • or administrator.”

We have already seen, that under the decisions of this court,, and by the general current of authority, a mortgage is not assignable at law by mere indorsement, as in the case of commercial paper; but, on the other hand, the estate and interest, of the mortgagee may be conveyed to the holder of the indebtedness, or even to a third party, by deed, with apt words-of conveyance, and the fact that it is, in form, an assignment, will make no difference. (2 Washburn on Real Prop. 115,116.)-Such an assignee, if owner of the mortgage indebtedness, might, no doubt, maintain ejectment in his own name, for his own use; or the action might be brought in his - name, fertile use of a third party owning the indebtedness. (Kilgour v. Gockley, 83 Ill. 109.) So in this case, if the action had been, brought in the name of Kearns’ heirs, for the use of Hinckley, no reason is the action not be maintained.

It must not be concluded, from what we have said, that dual system respecting mortgages, as above explained, exists-in this State precisely as it did in England prior to its adoption in this country, for such is not the ease. It is a conceded fact, that the equitable theory of a mortgage has, in process of time, made in this State, as in others, material encroachments upon the legal theory which is now fully recognized in courts of law. Thus, it is now the settled law that the mortgagor or his assignee is the legal owner of the mortgaged estate, as-against all persons except the mortgagee or his assigns. (Hall v. Lance, 25 Ill. 250, *211; Emory v. Keighan, 88 id. 482.) As a result of this doctrine, it follows that in ejectment, by the mortgagor, against a third party, the defendant can not-defeat the action by showing an outstanding title in the mortgagee. (Hall v. Lance, supra.) So, too, courts of law now-regard the title of a mortgagee in fee, in the nature of a base or determinable fee. The term of its existence is measured by that of the mortgage debt. When the latter is paid off, or becomes barred by the Statute of Limitations, the mortgagee’s title is extinguished by operation of law. (Pollock v. Maison, 41 Ill. 516; Harris v. Mills, 28 id. 44; Gibson v. Rees, 50 id. 383.) Hence the rule is as well established at law as it is in equity, that the debt is the principal thing, and the mortgage an incident. So, also, while it is indispensable in all cases to a recovery in ejectment, that the plaintiff show in himself the legal title to the property, as set forth in the declaration, except where the defendant is estopped from denying it, yet it does not follow that because one has such title, he may, under all circumstances, maintain the action,—and this is particularly so in respect to a mortgage title. Such title exists for the benefit of the holder of the mortgage indebtedness, and it can only be enforced by an action in furtherance of his interests,— that is, as a means of coercing payment. If the mortgagee, therefore, should, for a valuable consideration, assign the mortgage indebtedness to a third party, and the latter*after default in payment, should take possession of the mortgaged premises, ejectment would not lie against him at the suit of the mortgagee, although the legal title would be in the latter, for the reason it would not be in the interest of the owner of the indebtedness. In short, it is a well settled principle, that one having a mere naked legal title to land in which he has no beneficial interest, and in respect to which he has no duty to perform, can not maintain ejectment against the equitable owner, or any one having an equitable interest therein with a present right of possession. This case, with a slight change of the circumstances, would afford an excellent illustration of the principle. ¡ Suppose the present plaintiff had obtained possession under" his equitable title to the note and mortgage, and the heirs of Kearns, who hold the legal title, had brought ejectment against him, the action clearly could not have been maintained, for the reasons we have just stated. But it does not follow, because such an action would not lie against him, that he could, upon a mere equitable title, maintain the action against others.J (Cottrell v. Adams, 2 Biss. 351; 9 Myers’ Fed. Dec. 240.) "the question in that case was -almost identical with the question in this, and the court reached the same conclusion we have. See, also, Speer v. Hadduck, 31 Ill. 439.

¡ For the reasons stated, the judgment of the court below is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. :

Judgment reversed.


author: Mr. Justice Craig

text:
    Thomas F. Harwood v. The City of Bloomington.

      Filed at Springfield March 28, 1888.

    1. Eminent domain—measure of damages—as to lamd taken and land not taken—application of benefits. Where land is taken for a public improvement, the owner will be entitled to the value of the land actually taken, without regard to any supposed benefits arising from the proposed improvement.
    2. But when the owner of a lot interposes a claim for damages to that part not taken, if such part has received special benefits, or benefits not common to other property, such benefits may be considered in arriving at the amount of damages the owner may have sustained.
    3. Same—measure of damages—of the rule under act relating to cities, cíe. In a proceeding under article 9 of the act relating to cities and villages, for the condemnation of land for a street, the same rule applies in respect to the measure of compensation and damage to land not taken, as in a proceeding under the Eminent Domain act.
    Appeal from the County Court of McLean county; the Hon. C. D. Meyers, Judge, presiding.
    Messrs. Herrick, Lucas & Spencer, for the appellant:
    This proceeding is not brought under the Eminent Domain •act, but under article 9, chapter 24, of the Devised Statutes, which act does not recognize the distinction between compensation and damages, but provides that the jury shall be im■paneled “to ascertain the just compensation to he paid,” etc. No difference is made as to the manner of ascertaining the amount of the compensation from the manner of finding the •damages.
    Mr. A. E. DeMange, City Attorney, for the appellee:
    The rule, that in assessing the compensation for damages "to which the owner is entitled for property not taken, special "benefits arising from the improvement should be considered, "is well settled by the authorities below cited; and in several of the opinions there is nothing to show that the proceeding was mot under the same act as this proceeding. Village of Hyde Park v. Dunham, 85 Ill. 569; Green v. City of Chicago, 97 id. 370; City of Elgin v. Eaton, 83 id. 535; Page v. Railroad Co. 70 id. 324; McReynolds v. Railroad Co. 106 id. 152.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a proceeding by the city of Bloomington, under ^article 9, chapter 24, of the Revised Statutes, entitled “An act to provide for the incorporation of cities and villages,” to condemn certain property belonging to appellant, for a street. "The land taken, belonging to appellant, was twenty-seven feet -off the east side of lot 7, in Phcenix addition to the city. The remaining portion of the lot was twenty-seven and a half feet "wide, upon which there was a dwelling house and other improvements. On the trial, appellant claimed compensation for that part of the lot taken, and also damages to that portion of "the lot not taken, in consequence of opening the street. The -court, on the evidence introduced by the respective parties, .allowed §200 for the land "taken, and §275 as damages to that part of the lot not taken.

We are not asked, in the argument, to review the decision •of the court on the question of fact, but in arriving at the amount of damages which should be allowed to the property mot taken, the court allowed evidence of and took into considoration the special benefits accruing to that part of the lot not-taken, in consequence of the opening of the street, and this-decision of the court is the only error relied upon to reverse-the judgment.

Where land is taken for a public improvement, the owner, under our constitution and statute, is entitled to the value of the land actually taken, without regard to any supposed benefits which may accrue by reason of the proposed improvement. (Green v. City of Chicago, 97 Ill. 371.) But where the owner interposes a claim for damages to that portion of the land not taken, in consequence of the improvement, if the land not taken has received special benefits,—benefits not common to-other property,—such benefits may be considered in arriving-at the amount of damages the owner may have sustained to-his property not taken. Village of Hyde Park v. Dunham, 85 Ill. 569; City of Elgin v. Eaton, 83 id. 535; Page v. Railway Co. 70 id. 324; McReynolds v. Railway Co. 106 id. 152.

The rule here announced is conceded to be the law where the proceeding to condemn arises under the Eminent Domain act of the State, but it is insisted, that where the proceeding arises under article 9 of the act in relation to cities, villages, and towns, a different rule should prevail. We find nothing-in the language of article 9 which would authorize a different, rule of damages, under that statute, where land is to be taken or damaged for public use, from the one established under the Eminent Domain act, and in the absence of a clear direction by the legislature we perceive no reason why one rule should be established under one statute and a different rule under the other. Had the legislature intended that special benefits should not be considered where the proceeding was under article 9, that intention would doubtless have been expressed in clear language. Such has not been done.

We -think the rule adopted by the court was correct, and the judgment will be affirmed.

Judgment affirmed.


text:
    John Groff v. Nicholas Ankenbrandt.

      Filed at Mt. Vernon January 20, 1888.

    1. Nuisance—continuing a nuisance—liability—notice to abate. Where a party comes into possession of land, as grantee or lessee, with an existing nuisance upon it, he can not be held liable to an action for damages until he has been first notified to remove it.
    2. The cases holding a party liable for the continuance of a nuisance erected by another on his land, without any notice to remove the same, are generally cases where there has been, on the part of such party, some active participation in its continuance, or some positive act evidencing its adoption, or some use of the structure complained of, like the operation of a factory which emits injurious and unwholesome smells. In the latter case, every act of using is a new nuisance, for which the injured party has a remedy for his damages.
    3. Water- courses—surface waters—dominant and servient heritage. The free passage of water which the owner of the servient heritage has no right to stop by embankments or other artificial means, so as to throw it back upon the owner of the dominant heritage, is the natural Sow of the water. Such natural flow consists either of surface water derived from rain- and snow, or the water in some natural water-course fed by remote springs, or rising upon the dominant field itself.
    4. Pleading—of the declaration—m case, for obstructing the flow of water. A declaration in case alleged that the plaintiff was lawfully possessed of a certain tract of land which was improved and used for purpose® of cultivation; that defendant was lawfully possessed of another tract adjoining the plaintiff’s; that on, etc., the defendant, by means of a certain, levee or embankment, maintained and continued by the defendant along the-east line of his said land, of great dimensions, to-wit: of the width of six feet and of the height of two feet, and without sufficient openings therein: to permit the free passage of water, wrongfully and unlawfully obstructed: the flow of large quantities of water flowing to and against said levee or' embankment on the east side thereof, and flowing down along the north-side of another tract, and thereby caused said water, which otherwise woulcff not have flowed upon the plaintiff’s land, to flow and stand upon the same, etc.: Held, bad on demurrer, for two reasons: First, because it failed to aver that the defendant was notified or requested to remove the obstruction, it being presumed against the pleader that the obstruction was on the land. "when it came into the defendant's possession; and second, because it failed to show that the embankment interfered with the natural flow of the water.
    5. Same—rule of construcMon. Each party’s pleading is to be taken most strongly against himself, and most favorably to his adversary.
    Wbit of Ebbob to the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Wabash county; the Hon. C. 0. Boggs, Judge, presiding.
    Messrs. Bell & Gbeen, for the plaintiff in error:
    The gravamen of the first count on which the case was tried was, that the defendant had obstructed the natural flow or drainage of surface and other water off the land of the plaintiff, to the injury of the plaintiff’s land, being the dominant, and the defendant’s land being the servient, heritage. Gillham v. Railroad Co. 49 Ill. 484; Nevins v. Peoria, 41 id. 502; Rudd v. Williams, 43 id. 385; Gormley v. Sanford, 52 id. 158; Railroad Co. v. Morrison, 71 id. 616; Railroad Co. v. Cox, 91 id. 500.
    The theory of the second count is, that the defendant had wrongfully obstructed large quantities of flowing water, by means of a levee, which otherwise would not have touched plaintiff’s land, and thereby caused such water to flow upon and stand on the same. Stout v. McAdams, 2 Scam. 67.
    Mr. S. Z. Landes, and Messrs. Fosteb & Campbell, for the -defendant in error:
    Each party’s pleading is to be taken most strongly against iimself. Gould’s Pleading, 141; Peipho v. Peipho, 88 Ill. 438.
    Applying this rule, we must conclude that the defendant did -not throw up this levee, but simply let it remain as he found it. To obstruct the natural flow of water, and to maintain an •obstruction, are two entirely different things. Railroad Co. v. Allen, 39 Ill. 206; Railway Co. v. Hunter, 50 id. 325.
    The count was bad in failing to show a notice or request to u’emove the obstruction. (Groff v. Ankenbrandt, 19 Bradw. 148.) It is also bad in failing to aver that the levee on defendant’s land obstructs the natural flow of water. If the natural flow of the water was diverted and wrongfully thrown on defendant’s land, he had a right to protect himself by an embankment.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is an action of trespass on the case, brought on November 2, 1885, by appellant in the circuit court of Wabash county against appellee for obstructing the flow of water and throwing it back upon appellant’s land, so as to overflow the same and make it unfit for cultivation.

Pleas of not guilty and of the Statute of Limitations were filed to the first count of the declaration and issues were joined thereon. During the trial upon the issues thus formed The plaintiff was given leave to file and did file an amended or additional count, to which the defendant put in a general demurrer. The demurrer was sustained, and plaintiff elected to-stand by his amended or additional count, and judgment was rendered against him for the costs in and about the same, etc. The cause then proceeded to trial upon the first count and the pleas thereto, and the jury returned a verdict in favor of the defendant. Motion for new trial was overruled and judgment, rendered upon the verdict, which judgment has been affirmed by the Appellate Court. The case is brought before us by writ of error to the Appellate Court.

The sole question, brought to our attention in the arguments of counsel, is the sufficiency of the amended or additional count, and whether or not the demurrer thereto was properly sustained.

The amended count alleges, that plaintiff was “lawfully possessed” of the north half of the south-east quarter of section 13, etc., which was improved and used for purposes of cultivation ; that defendant was “lawfully possessed” of the north-east quarter of the south-west quarter and the south-east quarter of the south-west quarter of said section, adjoining plaintiff’s land on the west; that, on to-wit: March 1, 1881, and, between that day and the commencement of the suit, the defendant, “by means of a certain levee or embankment, maintained and continued by the said defendant along the east line of his said real estate, of great dimensions,—to-wit, of the width of six feet and of the height of two feet, and without sufficient openings therein to permit the free passage of water,—wrongfully and unlawfully obstructed the flow of large quantities of water flowing to and against the said levee or embankment on the ■east side thereof, and flowing down along the north side of the .south half of the south-east quarter of said section 13, and thereby caused said water, which otherwise would not have flowed on to the said real estate of the said plaintiff, to flow upon and stand on the said real estate of the said plaintiff.”

This count is defective because it does not aver that defendant was notified or requested to remove the obstruction complained of. 1 Chitty’s Pleading, 89, 389; 2 id. 770, note h; ;Cooley on Torts, 611; Angelí on Water-courses, (Perkins’ 6th >ed.) sec. 403; 1 Hilliard oh Torts, 603, note a.

It is a well established rule, that “each party’s pleading is to be taken most strongly against himself and most favorably to his adversary.” (Gould’s Pleading, p. 141.) The amended count will, therefore, be most strongly construed against the plaintiff. Inasmuch as the count does not state, that the levee or embankment was erected, by the defendant or originally placed by him where it is, it will be presumed, that such levee or embankment was already upon the land when the defendant ■became possessed of it, and that, consequently, he was only responsible for allowing the obstruction to remain as it was when the premises came into his hands. The first count of the declaration averred that defendant “constructed and built and maintained and continued” the levee; the second or amended count merely charges, that defendant “maintained and continued” the levee or embankment.

Where a party comes into possession of land, as grantee or lessee, with an existing nuisance upon such land, and he merely permits the nuisance to remain or continue, he can not be held liable in an action for damages, until he has been first notified or requested to remove the nuisance. It is not right "that one, who did not put the nuisance upon the premises in "the first place, should be held responsible for injuries that may not have been caused by any act of his own. As was said in Johnson v. Lewis, infra: “A plaintiff ought not to rest in -silence and presently surprise an unsuspecting purchaser by an action for damages, but should he presumed to acquiesce ■until he requests a removal of the nuisance.” Angelí in his work on Water-courses, supra, says, “that where a party was not the original creator of*the nuisance he must have notice ■of it, and a request must be made to remove it, before any action can be brought.”

While there is some conflict among the authorities upon this -subject, the weight of authority seems to be in favor of the doctrine here announced, as will be seen by reference to the following cases: Penruddock’s case, 3 Coke’s Rep. 205; Pierson v. Glean, 2 Green, (N. J.) 36; Johnson v. Lewis, 13 Conn. 303; Noyes v. Stillman, 24 id. 14; Curtice v. Thompson, 19 N. H. 471; Carleton v. Redington, 21 id. 291; Eastman v. Company, 44 id. 143; Pillsbury v. Moore, 44 Me. 154; Nichols v. City of Boston, 98 Mass. 39; Ray v. Sellers, 1 Duv. (Ky.) 254; West v. L. C. and L. Railroad Co. 8 Bush, (Ky.) 404; Slight v. Gutzlaff, 35 Wis. 675; Grigsby v. Clear Lake Water Co. 40 Cal. 396.

The cases, which hold that a defendant may be held liable for the continuance of a nuisance, erected by another on his land, without any request or notice to him to remove the same, will generally be found, upon examination, to be cases where there has been, on the part of such defendant, some active participation in the continuance of the nuisance, or some positive act evidencing its adoption, or some use of the structure ■ complained of as a nuisance, like the operation of a factory, which emits injurious and unwholesome smells. In the latter ease, every act of using is a new nuisance, for which the party-injured has a remedy for his damages.

The declaration in this case is defective for another reason. The passage of water, which the owner of the servient heritage has no right to stop, by embankments or other artificial means, so as to throw it back upon the owner of the dominant heritage, is the nakvral flow of water. Such natural flow of water consists either of surface water, derived from the rain or snow falling upon the dominant field, or of the water in some natural water-course, fed by remote springs, or rising in a spring upon the dominant field itself. (Gillham v. Madison County Railroad Co. 49 Ill. 484; Gormley v. Sanford, 52 id. 158.) The deelaration charges that the defendant has “obstructed the flow of large quantities of water flowing to and against the said levee or embankment, ” but it nowhere avers that the natmxd flow of water has been obstructed. Non constat but that the water, alleged to have been obstructed by the embankment, was not properly turned in that direction, or did not naturally flow from plaintiff’s land over or upon defendant’s land either by reason of being surface water or water in a natural watercourse. If there was no natural flow of water from plaintiff’s farm to and upon defendant’s farm, plaintiff had no right to-complain of the embankment.

For the reasons here stated, we think that the demurrer to-the amended count was properly sustained.

The judgment of the Appellate Court is, therefore, affirmed.

Judgment affirmed.