text:
    Joseph W. Branch, Exr. v. John H. Rankin, Admr.

      Filed at Mt. Vernon January 22, 1884.

    1. Administrator with the will annexed—on application of foreign creditor. A foreign debtor, owning real estate here, died testate, and. letters testamentary were granted in the State of his domicile, and claims allowed against the estate, which proved insolvent. It was held, our statute authorized the county court to grant letters of administration with the will annexed, on the application of a creditor residing in such foreign State. The words, “any person interested,” in section 46, chapter 3, of the Revised Statutes of 1874, are not limited to a person residing in this State, but are general, with no limitation in this respect.
    2. Same—statute relating to letters with will annexed, construed. Sections 36, 37 and 38, of chapter 3, of the Revised Statutes, providing for the appointment of an administrator with the will annexed, and in what cases such appointment may be made, have reference only to the ordinary case of a principal administration in this State, and do not apply in the case of an ancillary administration. Sections 42 and 43, of the same chapter, seem to contemplate that there may be an executor in a foreign State, and an administrator with the will annexed in this State.
    3. Same—no priority in ancillary administration. The grant of letters of administration with the will annexed, to the public administrator, upon the estate of a deceased non-resident debtor, on the application of a nonresident creditor whose claim has been allowed in the State of the decedent’s domicile, will not necessarily give such creditor an undue advantage over other foreign creditors. They may have their claims also allowed here, and share in the assets.
    Appeal from the Appellate Court for the Fourth District; —heard in that court on appeal from the Circuit Court of Madison county; the Hon. William H. Snyder, Judge, presiding.
    Messrs. Irwin & Springer, for the appellant:
    There being no widow, next of kin or creditor resident of this State, and appellee being a creditor of the place of the principal administration, and having obtained judgment upon his claim there, we insist can not procure administration here. The weight of authority is clearly that way. But Bowles’ Heirs v. Rouse, 3 Gilm. 419, and Rosenthal, Admr. v. Renick, 44 Ill. 207, are cited as establishing the contrary rule. An examination of those cases will show that they are not in point, being based on essentially different facts. There is no authority or any statute for the appointment of an administrator with the will annexed, except upon refusal of the executor to qualify, or in case of a vacancy caused by death, etc.
    Where power is given in a will to the executor to make sale of the lands of the deceased for the purpose of paying debts, or for any purpose, the executor may make such sale, without first resorting to a court. The power may be given in express terms, or by implication. Rankin v. Rankin, 36 Ill. 293.
    The power of an executor is- derived from the will; that of an administrator from the law. Willis v. Watson, 4 Scam. 64.
    In Langworthy v. Baker, 23 Ill. 484, the court held that before the county court can get jurisdiction to grant letters, it must affirmatively appear that there is no relative or creditor in this State.
    The weight of authority is, that no creditor outside the ancillary administration can present his claim before the court granting the same. Redfield on Wills, sec. 15, chap. 1; Richards v. Dutch, 8 Mass. 506; Dawes v. Boyleson, 9 id. 337; Dawes v. Head, 3 Pick. 128; Hunt v. Fay, 7 Vt. 183; Churchill v. Bryden, 17 id. 319; Kent’s Com. sec. 37, p. 431. To do so would be to give such creditor a preference over others residing at the place of the principal administration.
    Messrs. Krome & Hadley, for the appellee:
    Under section 46, chapter 3, Hurd’s Stat. 1880, and the facts of this ease, appellee was entitled to have the administration of the deceased debtor’s estate committed to the public administrator. The section is not limited in its application to persons dying resident of this State, nor to persons dying intestate. It says, “whenever any person dies seized or possessed of any real estate within this State.”
    Nor does the language justify the construction that the statute can only be invoked in aid of a resident creditor. It reads: “It shall be the duty of the county court, upon the application of any person interested therein, to commit, ” etc. In support of this view, we cite Langworthy v. Baker, 23 Ill. 487, Bowles’ Heirs v. Rouse, 3 Gilm. 409, and Rosenthal v. Renick, 44 Ill. 202. We are further sustained by sections 42 and 43, of chapter 3, of the Revised Statutes, giving foreign executors and administrators power to collect, etc., in this State, only when there is no administration granted in this State. Every other creditor has the same opportunity for making his debt as appellee has. The assets, when converted into money, will be distributed to all creditors who file their claims here.
   Mr. Chief Justice Sheldon

delivered the • opinion of the Court:

Irwin Z. Smith died testate, being at the time of his death a resident of the State of Missouri. Letters testamentary were issued by the probate court of the city of St. Louis to Joseph W. Branch, who was appointed by the testator as his executor. Joseph H. Rankin, a resident of the State of Missouri, exhibited in said court a claim in his favor against the estate of Smith for allowance, which was allowed in the amount of over $11,000. Smith left real estate in Madison county, in this State, besides his estate in Missouri, but left no relative or creditor in this State. The estate of Smith was insolvent, the assets not being sufficient to pay the debts in full. Upon the petition of Rankin, the county court of Madison county, in this State, granted letters of administration upon the estate of Smith, with the will annexed, to the public administrator of Madison county. Erom the order making such grant, Branch, the executor in Missouri, took this appeal.

Appellant questions the propriety of the order appointing an administrator in this State. It is insisted that Bankin being a creditor of the place of the principal administration, and having obtained judgment upon his claim there, can not procure administration here. How this might he upon the general principles which apply in such case, in the absence of any statutory provision, we deem it unnecessary to inquire, as we have a statute which we think must control upon the subject with us. The statute is as follows: ' “Whenever any person dies seized or possessed of any real estate within this State, or having any right or interest therein, has no relative or creditor within this State who will administer upon such deceased person’s estate, it shall he the duty of the county court, upon application of any person interested therein, to commit the administration of such estate to the public administrator of the proper county.” Rev. Stat. 1874, p. 112, sec. 46.

This section, in its language, fully covers the present case. It is said, “any person interested,” means such a person residing in this State; but there is no such restriction to he found in the language of the section—the words are general, with no limitation in this respect. And there has been a construction of the statute, in this very particular, by this court. Rosenthal, Admr. v. Renick, 44 Ill. 207, was a parallel case, where, under this same provision, in the case of a resident of Ohio, who had died there, testate, leaving real estate in this State, letters of administration with the will annexed were issued to the public administrator of a county in this State. It was there said; “It is suggested by counsel for appellees that a citizen of another State in which administration has been granted, can not come here and cause administration to be taken out, a claim to be allowed, and. real estate sold for its payment. But this has always been the practice, so far as our experience and observation go, and we see no objection to it. There is nothing in our statute indicating an intention to confine this right to citizens of this State.” We adhere to this construction, and it controls the decision of this case adversely to appellant.

■ It is said the case cited differs from the present in this, that there was there no executor living, which brought the case within section 36 of the act in relation to the administration of estates, authorizing the appointment of an administrator with the will annexed, in ease of the death of an executor; and it is contended that there is no power given to appoint an administrator with the will annexed, except in the cases enumerated in sections 36, 37 and 38 of said act, namely, of the removal of an executor for misconduct, where the person named- executor by the will refuses to qualify, and where there is a vacancy in the office of executor, occasioned by death or resignation. There is the difference mentioned, that in the Rosenthal case the executor had deceased, and there had been an appointment by the court in Ohio of an administrator with the will annexed. But this is but a difference in circumstance between the cases, making no distinction in principle, as we regard, which should cause any variance of decision. The sections of the Administration act referred to have reference to the ordinary case of principal administration in this State, and do not apply in this case of an ancillary administration,-in which the present appointment is made. Sections 42 and 43 of that act, taken together, seem to contemplate that there may be the case where there is an' executor in a foreign State, and an administrator with the will annexed in this State.

We do not perceive that the allowance of this appointment will result necessarily in giving appellee any undue advantage over other creditors of the estate, as is suggested. Other creditors have the same opportunity of resort here that appellee has, and it would seem but proper, that the assets here should he distributed to all creditors who file arid have allowed their claims here, or it might perhaps be proper, in such a case as this, to order but a pro rata payment of appellee’s claim.

The order of the county court is affirmed.

Order affirmed.


source: Caselaw Access Project

author: Mr. Justice Scholeield

license: Public Domain

text:
    The City of East St. Louis v. Joseph Wittich et al.

      Filed at Mt. Vernon January 22, 1884.

    1. Special assessment—-jurisdiction at probate term of county court. The county court, at a probate term, has no jurisdiction of a proceeding to assess the cost of improving a street, under the statute relating to cities and villages.
    2. This question is not affected by the fact that judgments may be rendered for the sale of real estate for delinquent taxes and special assessments at probate terms, as a proceeding to assess the cost of a public improvement is preliminary to an application for judgment for a special assessment, and an initial step to fix the liability of the property holder.
    Writ op Error to the County Court of St. Clair county ; the Hon. Frederick H. Pieper, Judge, presiding.
    Mr. M. Millard, for the plaintiff in error.
    Mr. R. A. Halbert, for the Wiggins Perry Company, and the St. Louis, Alton and Terre Haute Railroad Company.
    Mr. Garland Pollard, for the Ohio and Mississippi Railway Company, and the Cairo and St. Louis Railway Company.

      Messrs. G-. & Gf. A. Koerner, for the St. Louis Bridge Company, and the Chicago and Alton Railroad Company.
    Mr. John B. Bowman, Mr. Frank B. Bowman, and Mr. James M. Hamill, for others of the defendants in error.
   Mr. Justice Scholeield

delivered the opinion of the Court:

This was a proceeding at a probate term of the county court of St. Clair county, to assess the cost of improvement of a certain street in the city of East St. Louis, under the provisions of the statute relating to “cities, villages and towns.” (Rev. Stat. 1874, chap. 24.) The petition was, on motion, dismissed for the want of jurisdiction in the court, and this ruling presents the only question that we deem it necessary to examine.

Section 31, article 9, of the statute referred to, provides that in such proceedings “the hearing shall be conducted as in other cases.at law,”—i. e., plainly, by implication, as the hearing in other cases at law is conducted in that court. And section 32 of the same article requires that “the hearing in all eases arising under this act shall have precedence overall other eases in such court, except criminal cases. ” There is no jurisdiction in cases at law, nor in criminal cases, at probate terms. Such cases are set for trial and can only be heard at law terms. (Rev. Stat. 1874, secs. 6, 7, chap. 37.) The fact that judgments may be rendered for the sale of real estate for delinquent taxes and special assessments at probate terms, as provided by section 5 of the last named chapter, does not affect the question. This is not that kind of case, nor is the question to be tried nor the mode of trial the same. This proceeding is preliminary to that, and one of the initial steps to fix the liability of the property holder.

We see no cause to disturb the judgment below. It is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Scott

text:
    H. G. Weber, Collector, et al. v. The Ohio and Mississippi Railway Company.

      Filed at Mt. Vernon January 22, 1884.

    1. Taxes—extending bach taxes certified by school directors. In 1875 tbe county clerk extended taxes that had been required to be levied by the school directors of certain districts, for the years 1864 to 1868, inclusive, on the basis of the valuation of property for those years, respectively. On bill to enjoin the collection of such back taxes, several certificates, purporting to be levies of taxes for school purposes by school directors, were introduced in evidence: Held, that they were improperly admitted, without proof that they were ever filed in the proper time, or at any time, in the clerk’s office, as required by law.
    2. Same—extending in succeeding years, when certificate of levy is not filed in time. Where the certificate of school directors of the sum they require to be extended and levied for the current year is not filed with the county clerk in time to enable him to extend the taxes on the tax books that year, the clerk will have no power or authority of law to extend such levy in any succeeding year, as back taxes, and if he does, its collection may be restrained.
    ' 3. Same—school taxes—certificate of levy is jurisdictional. The tax certificate which the school directors are empowered to make by the School law, (section 44,) is the basis of all school taxes. In a sense, such certificates are jurisdictional, and any tax extended for school purposes, where no such certificate has been returned by the directors as required by that section of the statute, is without authority of law, and null and void.
    4. Evidence—entries by county clerh in a booh, of substance of certificates of levy of taxes. Entries made by a county clerk of the legal effect of certificates for the levy- and extension of school taxes, on no principle are admissible as evidence of such levies. If such certificates had been copied in such book, it would have been only, secondary evidence, and in no event admissible or proper until proof was made of the return of the original certificates, or some of them, as required by statute, and Of the loss of the originals.
    Writ of Error to the Circuit Court of St. Clair county ; the Hon. Amos Watts, Judge, presiding.

      Mr. James M. Dill, and Mr. H. H. Horner, for the plaintiffs in error: ■ _
    If a tax for any year is prevented from being collected, for any cause, it'may be added to the tax on the same property for any subsequent year, in separate columns, designating the year or years. Rev. Stat. chap. 120, sec. 277.
    A failure to complete an assessment in the time required by this act shall not vitiate such assessment, but the same shall be as legal and valid as if completed in the time required hy law. Rev. Stat. chap. 120, see. 280.
    No assessment of real or personal property, or charge for taxes thereon, shall be considered illegal on account of any informality in making "the assessment, or in the tax lists, or on account of the assessments not being made or completed within the time required by law. Rev. Stat. chap. 120, sec. 281. See, also, sec. 191.
    There is no pretense that these taxes have ever been paid, or that the property is not liable to taxation. The defendant in error seeks to escape on the merest and sheerest technicalities. Munson v. Minor, 22 Ill. 595; Almy v. Hunt, 48 id. 45; Blackwell on Tax Titles, (2d ed.) 163.
    Mr. Garland Pollard, for the defendant in error:
    A certificate of the school directors showing the rate or amount of the tax required for the ensuing year, is the foundation of the authority of the county clerk for extending a school tax on the collector’s books. Gross’ Stat. 1869, p. 695, secs. 44, 45; Rev. Stat. 1874, chap. 122.
    The proof fails to show that the school directors ever returned to the county clerk any certificates of levy, as the law required. The county clerk testifies that he never saw any. The fact that none of these taxes were extended in either of the years 1864 to 1868 is conclusive evidence that no such certificates of levy were ever filed with the county clerk. Gross’ Stat. 1869, sec. 45, chap. 98, p. 696.

      . There is no statute authorizing a county clerk to review the action of his predecessor in levying a school tax. Here, Mr. Starkel, in 1875, without any certificate or authority from the school directors, or from any body, but of his own motion, proceeded to review the action of Mr. Wick, his predecessor, in levying taxes during his term,—eight and thirteen years before,—and extended these taxes.
   Mr. Justice Scott

delivered the opinion of the Court:

In the latter part of the year 1870 the county clerk of St. Clair county extended on the tax book of that year, against the Ohio and Mississippi Railway Company, a corporation existing under the laws of this State, on property owned by it, and described as “right of way, ” taxes, amounting in the aggregate to $3136.50, purporting to be arrearages or back taxes on such property for the years-1864 to 1868, both years inclusive, in favor of the town of Lebanon and certain school districts. On a bill filed for that purpose by the railway company, in the circuit court, the collection of the taxes so extended was perpetually enjoined by the decree of that court. That decree, on the appeal of defendants, was affirmed,in the Supreme Court, on the ground the extending of the taxes required to be levied for previous years on the valuation of the property for the year 1870 was illegal, and wholly without authority of law. Town of Lebanon v. Ohio and Mississippi Ry. Co. 77 Ill. 539.

- After the affirmance of the decree in the former suit in the Supreme Court, the county clerk then in office, in the latter part of the year 1S75, and before the 30th day of December of that year, entered against the railway corporation, on property described as “railroad track,” the sum of $2799.35, purporting to be arrearages or back taxes on such property for the years 1864 to 186S, both years inclusive, in favor of the same school districts that were defendants in the former suit. The sheriff, who was ex officio collector of taxes for that, county, had distrained property for the payment of such taxes, and this bill was then filed by the Ohio and Mississippi Railway Company, against the school districts and the sheriff, to restrain the sale of the property seized, and to perpetually enjoin the collection of such taxes. On the hearing the court made the temporary injunction previously awarded, perpetual, and defendants bring the case to this court on error.

That which was done by the county clerk in 1875, after the affirmance by the Supreme Court of the decree in the former suit, was an effort on his part to cure or correct what seems to have been thought was an omission of duty on the part of the former clerk. With that view he extended taxes on the valuation of the property of complainant for the years 1864 to 1868 in favor of the school districts, as was supposed to have been required to be done for school purposes for the several years mentioned. - It will be seen there was really no omission of duty on the part of the former county clerk in respect to the taxes in controversy. It appears from the testimony of the officer who extended these taxes, that he had been clerk since 1873; that he made the extension of these taxes on the basis of the valuation of the property of complainant for each year, as the same was returned to the office of the county clerk; that he extended such taxes on the statements as to the amount of taxes required to be levied for school purposes by the several school districts, for the several years, as recorded in a book kept by his predecessor in office, and that he did not know whether the directors of several districts returned any certificates requiring the levying of any school tax for the respective years mentioned, as the law requires, or not. Bernhard Wick was county clerk of the county of St. Clair from 1861 to 1869, during the time these taxes ought to have been extended on the tax books had any certificates requiring such taxes to be levied been filed in his office by the school.directors, as is required to be done -by law. In regard to the book used by the county clerk in extending the present taxes, he states he supposes from the entries being there they were made from assessments, or what purported to have been assessments, each year, by persons who were acting as directors or officers of these school districts, and that these entries were made each year as soon as the assessments were furnished by the school officers; but he says: “I have no recollection about the matter only from seeing these books; could not swear from my own knowledge that any certificates of levy were ever returned by school directors to me. I can swear that the papers on which or from which that book was made, if returned to my office at all, were not returned in time for me to compute the taxes for those years and extend the tax on the books for those years, or it would have been done. These school tax levies were sometimes made by Mr. Horner, who was township treasurer for all these school districts. I don’t presume there were other papers on file in my office for the years 1867 and 1868 than those made by Horner. I have no personal recollection of any of these missing papers having been filed in my office, only from the entries in the books. I presume the paper dated November 2, 1864, was not filed in my office before that time. If these papex-s, purporting to be levies of school directors for the different school districts (defendants in this case) had been filed in my office at the time required by law, for the years 1864, 1865, 1866, 1867 and 1868, I certainly would have extended this school tax. ” A number of certificates, purporting to be levies of taxes for school purposes by school directors, were introduced and read in evidence, over specific objections urged by complainant. One objection taken ought certainly to have been sustained,—that is, there was no proof such certificates were “ever filed in the proper time, or at any time, in the clerk’s office, as required by law. ” The objection might have been still broader. None of these certificates bear any file mark, nor is there any proof discovered in this record that any of them were ever lodged with the clerk in his office. That being so, it is clear they were not proper evidence. But upon what principle is the book used by the county clerk in extending these taxes proper evidence to be considered ? As the testimony is understood these certificates were not transcribed into this book. Only the legal effect of what the clerk thought they contained was stated. But had the certificates been copied into the book, at most it would have been nothing more than secondary evidence, and in no event would it be proper evidence until proof was made the original certificates had been returned to the clerk by the school officers, or some one for them, as required by statute, and that the originals were lost from the files. No such proof was made, and the book was not evidence for any purpose. It is seen, then, there is absolutely nothing that militates with the testimony of the former clerk that no certificates were lodged, by the school officers requiring a levy of any tax for school purposes in his office at any time while the assessor’s books for the several years mentioned were in his hands, so that he could extend such school tax for any of the years covered by this controversy.

The question then arises, could the county clerk, in any succeeding year, go back and extend a school tax on the valuation for the previous years, and bring it forward and attach it to the taxes of the current year as back taxes due on the property ? It is plain that could not be done, for the simple reason no statute has authorized him to do so. The tax certificate which the school directors are empowered to make by section 44 of the School Law, (Rev. Stat. 1874,) is the basis of all school taxes. In a sense such certificates are jurisdictional, and any tax extended for school purposes where no such certificate has been returned by the directors, as required by that section of the statute, is without authority of law, and would be null and void. ■ In the case being considered the clerk went back over a period of eleven years and extended a school tax on the property of complainant on a valuation made in 1864, when no certificate had been returned by the school officers in that year, while the assessor’s books were in the hands of the county clerk, so that he could extend such a tax. The same is true as to the succeeding years up to and including 1868, except the time was shorter. The attention of the court has not been directed to any statute that authorizes that to be done, and it is apprehended none exists. Such a statute, if any existed, might work great hardship. It would necessarily have to be uniform, and applicable alike to persons and corporations. Where real property changes hands as often as it does in this country, if the county clerk could go back and extend taxes for a long series of years against property that might have been subjected to taxation for certain purposes for those years, but was not, it might subject innocent purchasers to very grievous burdens, that could not have been anticipated or ascertained from any examination of the public records, however carefully made.

Section 281 of the Revenue Law (Rev. Stat. 1874,) has no application to a case like the one being considered.

The decree of the circuit court is warranted both by the law and the evidence, and must be affirmed.

Decree affirmed.


author: Mr. Justice Dickey

text:
    John A. Spence et al. v. Nellie Anderson.

      Filed at Springfield January 19, 1884.

      Appeal—does not lie directly to this court in forcible detainer. An appeal does not lie directly to this court from a judgment of tbe circuit court in an action of forcible detainer to recover tbe possession of land sold under a power in a deed of trust, there being no freehold involved.

      Appeal from the Circuit Court of McLean county; the Hon. Owen T. Reeves, Judge; presiding.
    Mr. Hamilton Spencer, and Mr. Wm. E. Hughes, for the appellants,
    Mr. Ira J. Blooheield, for the appellee.
   Mr. Justice Dickey

delivered the opinion of the Court:

This is an action of forcible detainer, brought against appellants, by appellee, to recover possession of real estate once the property in fee of Mrs. Spence, and which was sold for the satisfaction- of a debt of her husband, under a power contained in a deed of trust made to secure that debt, which deed purports to have been made and acknowledged in due form by both the wife and her husba-nd, and in such manner to release and discharge and pass all homestead rights to or in the same. Plaintiff claimed as grantee of the purchaser at the -sale by the trustee. Defendants denied that the deed was ever delivered by Mrs. Spence, and also denied that she acknowledged the same. The judgment of the circuit court was for plaintiff, and defendants appeal to this court.

Appellee moves this eourt to dismiss the appeal, insisting that under our laws an appeal directly to this court from the judgment of the circuit eourt does not lie. Appellants defend the right of appeal solely upon the allegation that a freehold is involved. Under the ruling of this court in the ease of Kepley v. Luke, 106 Ill. 395, the motion must be sustained. That ease is directly in point, and holds that the freehold is not involved. The position of this court on that question has become stare decisis.

It is therefore ordered that the appeal be dismissed at the costs of appellants, appellants having leave to withdraw the transcript and abstracts if they so desire.

Appeal dismissed.


author: Mr. Chief Justice Sheldon

text:
    The Columbus Buggy Company et al. v. Leonard Graves.

      Filed at Mt. Vernon January 22, 1884.

    1. Becording law—creditor—how far protected against unrecorded deed. Under the Begistry act, which provides that all deeds and title papers shall be in force and take effect from and after the time of filing the same for record, and not before, as to all creditors and subsequent bona fide purchasers without notice, etc., a creditor is one who effects a lien upon land; and a judgment creditor and a purchaser are equally protected.
    2. It is the settled law of this State that a judgment lien attaches to whatever interest in real estate the records disclose in the judgment debtor, in the absence of notice from other sources; and notice at the time of the levy of execution and sale, of an unrecorded deed or mortgage, will avail nothing as against the force of the lien.
    3. Same—purchase by several under executions held by each. Where several judgments are recovered against a common debtor at the same time, upon which executions are issued, and levied upon the same land, and at the sale the land is struck off and sold to all the judgment creditors, on separate' bids by each, and the sheriff’s deed conveys to each purchaser his proportionate undivided part of the premises, each purchaser will be held to have purchased under his own execution, and to hold under his own judgment; and if any one or more of such judgment creditors had notice at or before the recovery of his judgment of the existence of an unrecorded mortgage, his title will be subject to the lien of the mortgage, while a creditor not having such notice will acquire title to the interest purchased by him free from the mortgage or unaffected by any title acquired under such mortgage.
    4. Foreign corporations—may acquire real estate in satisfaction of debts due them. Sections 26 and 5, of the general Incorporation act, (chap. 32, Rev. Stat.) by the most direct implication authorizes foreign corporations to acquire real estate in satisfaction of any liability or indebtedness to them; and the act of April 9, 1875, to enable foreign corporations authorized by their charters to loan money, to loan money in this State, etc., and which provides that they may purchase real estate offered for sale under any judgment, etc., is not a restrictive but an enabling act, and did not take away from foreign corporations other than such as are authorized to borrow money, the power to acquire real estate which was given them by the general Corporation act.

      Writ of Error to the Circuit Court of Bichland county; the Hon. William C. Jones, Judge, presiding.
    Messrs. Wilson & Hutchinson, for the plaintiffs in error:
    Deeds and mortgages become liens as to judgment creditors from the date of filing them for record. Rev. Stat. chap. 30, sec. 30.
    Judgments in courts of record become liens from and after the date of their entry. Rev. Stat. chap. 77, sec. 1. See, also, Dryden v. Martin, 1 Gilm. 188; Massey v. Westcott, 40 Ill. 160; McFadden v. Worthington, 55 id. 362.
    The decree merely recites that the Columbus Buggy Company had notice of the mortgage at the date of the sheriff’s sale on the executions. That was clearly not in time.
    Messrs. Allen & Fritchey, for the defendant in error:
    We do not deny that a judgment or decree of a court of record from the date of entry operates as a lien upon whatever interest the defendant in the judgment might then have in real estate. The question then arises: What interest did Wheeler have in these lots at the time the judgments were obtained ? The legal title had passed to Graves under the mortgage. Wheeler had but an equity of redemption in the property, and the judgments became liens upon that equity of redemption, but nothing further. Kent lays down the doctrine that a judgment at law will not take precedence of an unrecorded mortgage. 4 Kent’s Com. 178; Wyckoff v. Remson, 11 Paige, 564.
    This is a different question from that of a purchase at a judicial sale without notice of a prior lien. If these lots had been purchased by the plaintiffs in error without any notice of outstanding mortgages, the rule would be different; but long before the sale this mortgage was put on record. It is true that Mr. Wilson testified that he knew nothing of the claim of Graves until after he had obtained for his clients a deed, but the mortgage had been on file in the circuit court, a decree of foreclosure obtained, and a sale by the master to the defendant. All this took place in his own county and own court, and subject to his observation, unless he chose to ignore the facts as they transpired. There can be no pretense that there was no record of the mortgage at the time the lots were sold.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

The premises in question, certain real estate, were formerly owned by one Wheeler. Graves and the Columbus Buggy Company are respective claimants thereof, the former under a foreclosure sale on a mortgage made by Wheeler, and the latter under an execution sale under judgments against Wheeler. The mortgage was executed prior, but filed for record subsequent, to the judgments, and before the sale under them. Graves filed his bill to have the deeds under the execution sales set aside as clouds upon his title, claiming that the mortgage lien had precedence to that of the judgments, and the circuit court on hearing decreed the relief prayed. The defendants sued out this writ of error.

The correctness of the decree as to all the defendants, except the Columbus Buggy Company, and the purchasers under the company, is. not seriously questioned, the former appearing to have had notice of the mortgage at the time they obtained their judgments, but there is no evidence going to affect the Columbus Buggy Company with such notice at the time it obtained its judgment.

Defendant in error insists that the judgments became a lien only upon whatever interest the judgment debtor in fact had in the lots at the time the judgments were obtained, which was but an equity of redemption, upon which alone, and nothing further, the judgments became liens—citing authorities elsewhere to the effect that a judgment at law will not take precedence of an unrecorded mortgage. Authorities from another State under a different statute do not apply under our statute, 'which provides that all deeds and title papers shall he in force and take effect from and after the time of filing the same for record, and not before, as to all creditors and subsequent bona fide purchasers without notice, and that as to them, all such deeds and title papers shall be adjudged void until the same shall be filed for record. A creditor, -under the statute, is held to be one who effects a lien upon land. A judgment creditor and a purchaser are equally protected, and it is the settled law of this State that a judgment lien attaches to whatever interest in real estate the records disclose in the judgment debtor, in the absence of notice from other sources; and notice at the time of the levy of execution and sale, of an unrecorded deed or mortgage, will avail nothing as against the force of the lien. Martin v. Dryden, 1 Gilm. 188; Massey v. Westcott, 40 Ill. 160.

There were three other judgments obtained by different creditors at the same time with the judgment of the Columbus Bugg^ Company, and the purchase at the execution sale was a joint purchase by all four of these judgment creditors upon executions on their several judgments, at a price which was but in part satisfaction of the executions. The sheriff’s deed was to them jointly, and it is suggested -that they must all stand together, so that the Columbus Buggy Company will be affected by the notice the other judgment creditors had. There is nothing in this point. Each is to be held to have purchased under his own execution, and to hold under his own judgment. The bids were made separately, each judgment creditor bidding a separate amount, less than that of his execution. The sheriff’s deed recites the respective bids, and conveys to each judgment creditor his proportionate interest, that conveyed to the buggy company being an undivided of the premises sold.

It is claimed that as this company is a foreign corporation not organized for the purpose of loaning money, and its judgment not being for money loaned, it could not take and hold real estate under the laws of this State. As sustaining such claim, reference is made to the act approved April 9, 1875, (Laws 1875, p. 65,) to enable foreign corporations authorized by their charters to loan money, to loan money in Illinois, etc., and which provides that they may purehase'real estate offered for sale under any judgment, etc. The argument is, that the giving of the power of acquiring real estate in such a case is the exclusion of such a power in any other case. The general act concerning corporations, (Rev. Stat. 1874, chap. 32,) by sections 26 and 5, by the most direct implication authorized foreign corporations to acquire real estate in satisfaction of any liability or indebtedness to them. That general law did not allow the formation of corporations under it for the business of loaning money, and restricted foreign corporations in the same manner as domestic ones. The subsequent act of April 9, 1875, was not a restrictive but an enabling act, and it did not take away from foreign corporations the power to acquire real estate which was given to them by the general Corporation act. .

As to the Columbus Buggy Company and the purchasers under that company the decree is reversed and the bill ordered to be dismissed, otherwise the decree is affirmed, and the cause is remanded for further proceedings in accordance with this opinion.

Decree reversed in part and in part affirmed.


author: Mr. Justice Walker

text:
    Benjamin Tucker v. Aaron Hamilton.

      Filed at Ottawa January 23, 1884.

      1. Amendment—of record, to obviate error assigned. The clerk, in entering a judgment by default in an action of ejectment, omitted to enter the finding of the court of the plaintiff’s title to the premises. After error assigned in this court for this defect, the plaintiff, on due notice to the defendant, had the record so amended that the judgment found that the plaintiff had a fee simple title to the land, and filed a transcript of the amended record in this court: Held, that the amendment below cured the error.
    2. Default—admits plaintiff’s title, in ejectment. A default in an action of ejectment admits all the material allegations in the plaintiff’s declaration, including that of the plaintiff’s ownership’ of the land, and no proof of title in such case is necessary.
    3. Ejectment—damages after judgment by default. On a suggestion of damages on a default in an action of ejectment, the proper practice is to have issued a writ of inquiry to assess the damages. Such writ is required before the damages can be assessed.

      á. Same—practice—reference to master. On default in an action of ejectment, a reference to the master in chancery to take and report evidence is wholly unnecessary, and amounts to nothing.
    Writ oe Error to the Circuit Court of Peoria county; the Hon. John Burns, Judge, presiding.
    Messrs. Hopkins & Hammond, for the plaintiff in error:
    It was error to amend the record six weeks after final judgment, without notice to the defendant. Morton v. Bailey, 1 Scam. 213.
    The judgment was erroneous in not finding the estate of the plaintiff below. Hurd’s Stat. 1880, chap. 45, sec, 30, clause 7; Rawlings v. Bailey, 15 Ill. 178; Patterson et al. v. Hubbard, 30 id. 201; Koon v. Nichols, 63 id. 163; Long v. Linn, 71 id. 152.
    It was error to refer the cause to the master to take and report proofs on the question of damages. The evidence reported, if lawful or material, could not be taken by depositions without notice to the defendant. A defendant, though defaulted, is entitled to notice of the time and place of taking depositions. Morton v. Bailey, 1 Scam. 213.
    Mr. W. E. Hughes,, for the defendant in error:
    This court will consider the transcript 'of the record, as amended, with the original transcript. Flagler v. Crow, 40 Ill. 70; Rowley v. Hughes, 40 id. 71.
    The record, as amended, shows that tbe court did, on the trial, find the plaintiff was seized in fee of the premises, and entitled to their possession. •
    It is complained that the evidence of one of the witnesses for the plaintiff below was taken by the master in chancery and reported to the court. No exception being taken and preserved in the ¿record, this objection cannot be urged in this court. Conway v. Case, 22 Ill. 127.
    In the absence of a bill of exceptions it will be presumed in favor of the judgment that evidence sufficient to warrant 'the same was heard. Thompson v. Schuyler, 2 Gilm. 271.
   Mr. Justice Walker

delivered the opinion of the Court:

Defendant in error brought an action of ejectment in the circuit court of Peoria county, against plaintiff in error, to recover a tract of land in that county. A summons was issued, and served on defendant on the 20th day of April, 1881. He having failed to enter his appearance, or to plead or demur, at the October term following, and on the 5th day of that month, he was called and defaulted. Thereupon the court rendered a judgment that the plaintiff ought to recover from the defendant the possession of the premises described in the declaration, and also his damages sustained by reason of the premises.

For some reason not apparent, the court referred the case to the master, to take and report the evidence. The master’s report was filed on the 23d day of November, 1881, that still being of the October term, and it was approved, and the court thereupon rendered a judgment that plaintiff recover possession, and that he have a writ of restitution for the same. In this and the previous order the clerk omitted to enter the finding of- the court as to the title of defendant in error. Defendant thereupon brought a transcript of the record to this court, and assigned for error that the court below had not, as the statute requires, found the estate held by plaintiff. Since the last term of this court, defendant, on due notice, applied to the circuit court and had the record amended so that the judgment in that court does find that defendant in error had, at the time he commenced his suit and at the time of the trial, a fee simple title to the land, and he has filed a transcript of the amended record in this court. Thus the amended record removes «that error.

It is insisted that the evidence fails to establish a right of recovery. There being no bill of exceptions, we are precluded from looking into the evidence. The default admitted all the material averments of the declaration to be true, and there was no. necessity of hearing evidence of titles. The declaration averred .the plaintiff was the owner of the land in fee, and the default admitted its truth. The 49th and 50th sections of the Ejectment act point out the practice, in case of a default, on a suggestion of damages. In such a case a writ of inquiry is required, to assess the damages; but there was no suggestion of damages in this case, nor did the evidence relate to damages, but to the title. The reference to the master was wholly unnecessary. It accomplished no beneficial purpose, nor did it add anything to the force of the default.

Finding no error in the record, the judgment of the court below must be affirmed.

Judgment affirmed.


author: •Mr. Justice Scott

text:
    Frederick Herhold et al. v. The City of Chicago.

      Filed at Ottawa January 23, 1884.

      1. Dedication—of street—travel and work on vacant land. Tbe public traveled over certain premises as they would over a public street, in a city, from 1850, or earlier, until in 1S66 or 1867, when tbe owner of tbe land closed tbe travel by fencing up tbe street, during wbicb time there was a line showing tbe travel, and tbe lines of tbe gutters were or bad been marked by plowing furrows and scraping tbe earth to tbe middle of tbe street, some of wbicb work was done by tbe municipal authorities, it appearing that at tbe time of such travel tbe premises were vacant and unoccupied, and there were but few bouses or other improvements in tbe vicinity: Held, that tbe facts would not justify an inference of a public street by dedication, or estop tbe owner from denying a dedication.
    2. Instructions—law may he given on either side. It matters not at whose instance instructions are given, so that if all that is proper in refused instructions is contained in those given at tbe request of tbe other side, there is no error.
    Writ oe Error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. Edward Eoby, for the plaintiffs in error:
    User makes a prima facie case of a highway, and it is unnecessary to inquire who the owner was. Regina v. Petric, 30 Eng. L. & Eq. 207; Regina v. East Mark, 11 Ad. & Ell. (Q. B.) 876; Jarvis v. Dean, 3 Bing. 446; State v. Thomas, 4 Harr. 568; State v. Sartor, 2 Strobh. 61; Schenley v. Commonwealth, 36 Pa. 58; Shaw v. Crawford, 10 Johns. 236; Greeley v. Quimby, 22 N. H. 338; Abbott v. Mills, 3 Vt. 521 ; Follansbee v. Chicago, 62 Ill. 288.
    Long use of way is evidence that it was duly laid out. Colden v. Thurber, 2 Johns. 424; Pritchard v. Atkinson, 3 N. H. 335; Commonwealth v. Cole, 26 Pa. 187; Deming v. Roome, 6 Wend. 656.

      A grant is presumed from the enjoyment of a way for twenty years. 3 Cowen & Hill’s notes to Phillips on Evidence, *510; Folkes v. Chadd, 3 Doug. 343; Lewiston v. Procter, 27 Ill. 414; Grube v. Nichols, 36 Ill. 92; Dillon on Mun. Corp. sec. 637; Angelí on Highways, sec. 323.
    Illinois authorities in harmony, with the above principles: Marcy v. Taylor, 19 Ill. 635; Alvord v. Ashley, 17 id. 368; Warren v. Jacksonville, 15 id. 240; Manly v. Gibson, 13 id. 312; Rees v. Chicago, 38 id. 336; Smith v. Town of Flora, 64 id. 95.
    Taxing the land is no evidence that it was not a street. Chicago v. Wright, 69 Ill. 328; Lemon v. Hayden, 13 Wis. 159; Wyman v. State, 13 id. 663:
    A public highway is not lost by laches of road officers, or mere non-user. Angell on Highways, secs. 168, 321; Lewiston v. Procter, 27 Ill. 414; White v. Crawford, 10 Mass. 1S3; Washburn on Easements, 670.
    Mr. Francis Adams, for the defendant in error:
    The signers of the petition are estopped from claiming that the land was a public highway, (Hines v. Jeanpert, 65 Ill. 430, Gebhardt v. Reeves, 75 id. 307,) just as the city would be estopped from claiming a dedication after instituting condemnation proceedings. Princeton v. Templeton, 71 Ill. 71.
    The proof should be very satisfactory of intent to dedicate, or of matters to estop party from denying such intent. Kelly v. City of Chicago, 48 Ill. 390; Fisk v. Havana, 88 id. 208; Manrose v. Parker, 90 id. 583; Chicago v. Johnson, 98 id. 618; Illinois Ins. Co. v. Littlefield, 67 id. 368; Kyle v. Town of Logan, 87 id. 69.
    Dedication being the joint effect of an intentional appropriation by the owner of the land, and an acceptance by the public, it follows no presumption of dedication can be made where circumstances exist which negative the presumption of an intent to dedicate. Marcy v. Taylor, 19 Ill. 634; Rees
      v. Chicago, 38 id. 322; Grube v. Nichols, 36 id. 92; Washburn on Easements, 134.
    It is not the law in this State that the public may acquire a perpetual easement over vacant, uninclosed prairie land by merely traveling across it, nor that the owner of vacant prairie land must inclose it or else lose his estate. Warren v. Jacksonville, 15 Ill. 241.
   •Mr. Justice Scott

delivered the opinion of the Court:

This is a writ of error to reversé a judgment of the Superior Court confirming a special assessment against the property of certain parties for benefits resulting to the same on account of a proposed extension of Morgan street, through to Milwaukee avenue, by condemning therefor certain premises described, in a proceeding had for that purpose. No objection is taken to any of the proceedings for the condemnation of the property for the purpose of a street, nor to the ordinance of the city requiring the extension of Morgan street to be made. The damages the owners whose property was taken would sustain were regularly ascertained in the mode pointed out in the statute, and judgment was rendered on the verdict finding the compensation to be paid to the owners. Afterwards a petition was filed under the general Incorporation law asking the court to cause an assessment to be made against the property benefited by such improvement, which was done, and as to the regularity of the proceedings had on that petition it is not understood any objection is taken,—at least none is insisted on in this court. An application was made for the confirmation of the assessments so made, and it was upon the hearing of that application the owners of property assessed came into court and filed objections. After hearing evidence the court overruled the objections, and entered a judgment of confirmation. To reverse that judgment objectors have brought the case to this court on error.

The only objections insisted on in this court are the third, and fourth of the series filed in the trial court, which are as follows: “3. That North Morgan street has long'sinee been, and now of right is, a street or highway through to Milwaukee avenue, the sides thereof being produced.in straight lines, as laid out and opened in Ogden’s addition,, through to Milwaukee avenue, and the same ought to be- opened and used as such. 4. Part of the land sought to be condemned for the proposed extension of Morgan street is already a part of Morgan street, which the public have the right to use and occupy as such.”

The assessments made against property thought to be benefited by the proposed extension of Morgan street are quite large, and in some instances no doubt they will bear heavily, if not oppressively, on the owners. But that phase of the ease is not open to consideration in this court.

The question made as to the existence of a street at the point in controversy is purely one of fact, and has been considered with that care its importance demands. There is no pretense the premises were ever condemned for the use of a street by the municipal authorities. If the public ever acquired an easement over the premises prior to the time these proceedings were instituted, it must have been by dedication by the owners, either by positive acts or by acts from which a dedication might be implied or inferred. No satisfactory evidence of prior dedication by the owners of the property now condemned appears in this record. Nor is there any proof of overt acts which ought equitably to estop the owners from asserting there had been no dedication of the land for the use of the public. It is no doubt true the public traveled over these premises as they would do over a public street, from quite an early day, perhaps further back than 1850, and continued to do so up to the time when what was then thought to be a street was closed up by the owners, in 1866 or 1867. It is proven people used Morgan street up to Milwaukee avenue. There was a line showing travel, and the lines of the gutters were, or had been, marked by plowing furrows and scraping the earth to the middle of the street. This work, at least some of it, seems to have been done by the municipal authorities. But a satisfactory explanation is given of what was done, consistently with the non-existence of any legal highway or street. At that date the premises were vacant and unoccupied, and there were but few houses or other improvements in the vicinity. The public could travel over the premises unobstructed. During much of the time the owner was a non-resident, and no particular notice seems to have been taken by the owner or his agent of the use the public was making of his property. About the year 1866 or 1867 the owners undertook to close up what persons residing in the vicinity seem to insist was a highway or street, by fencing it across. j Considerable controversy arose concerning the existence of the street at the point where the obstruction was placed. It seems a petition was presented to the city council, asking to have the premises opened as a street. The result was, the owners filed a bill, August 24, 1867, to enjoin the city authorities from extending Morgan street through to Milwaukee avenue over the locus in quo until the property should be lawfully condemned and due compensation paid. On the hearing of that cause the injunction was made perpetual, and that decree remains in full force to this day. Since then the premises have remained closed against the public until these proceedings were instituted, in 1880, to condemn the same for the purposes of a street. It will not be necessary to consider to what extent the public will be bound by that decree. The decision of the present case need not be placed on the ground the public were concluded by the previous litigation concerning the existence of a street at the point in controversy. It may be placed on the broad ground there is no satisfactory evidence of any previous dedication of the property to public use, nor of any such acquiescing on the part of the owners to the use of the property for the purposes of a street by the public as ought to estop them from asserting the fact there was no dedication. It seems clear the use the public made of the right of passage over the property was without authority of law, and it is not shown the owners ever, either expressly or impliedly, consented to that use of their property. When it became necessary to do so, the owners asserted dominion over their property, and absolute ownership, unincumbered by any easement in favor of the public, which right was sustained by a decree of the court that has never been annulled or reversed. Since then their claim of ownership has been acquiesced in by the public authorities who have control of the streets and highways of the municipality.

No objections are perceived to any of the instructions given for the city. But few in. number, they state the law applicable to the facts of the case with sufficient accuracy. On behalf of the objection a great number of instructions,— seventeen in all,—were asked, all of which were refused except the sixteenth of the series. Some of these instructions might have been given. But all that was proper in the refused instructions to go to the jury was contained in the instructions given by the court for the city, and it is a matter of no consequence at whose instance the instructions were given. Many of the instructions asked by the objectors had relation to immaterial matters, and the effect, if given, would have been to mislead rather than to enlighten the jury. All the evidence considered, no ground exists for the assumption Morgan street had previously been dedicated through to Milwaukee avenue, and a verdict finding such was the fact would not be permitted to stand. That being the case, the error, if any exists, in refusing the instructions, did objectors no o harm.

The judgment of the Superior Court must be affirmed.

Judgment affirmed.


text:
    Prentiss D. Cheney et al. v. Frederick H. Teese et al.

      Filed at Springfield January 19, 1884.

    1. Wm&—devise to two daughters construed. Under a devise of lands to the testator’s grandchildren born of the bodies of his two daughters, whatever number they may be, share and share alike, to take possession only after the death of his said two daughters, of which the latter should have full use and enjoyment during their natural lives, it was held, that the right to possession in the grandchildren was at the same moment that the right in the two daughters should cease, which was at the death of both daughters, and that they both took the full use of the lands from the death of the testator until the death of the surviving daughter, without the right of survivorship, and that upon the death of one of the daughters her interest did not pass to the other, but passed to her heirs, or in case of a will, to her devisees, until the death of the other daughter, in the absence of express words in the will creating in them a joint tenancy.
    2. Same—whether joint tenancy created by a devise of a life estate. Under the statutes of this State relating to joint tenancies, and providing against survivorship, on the death of one joint tenant before partition, unless expressly created, a devise to grandchildren born of the testator’s two daughters, to take effect only upon the death of the two daughters, who were to have the possession and enjoyment of the estate during their natural lives, creates a life estate in the two daughters until the death of both, as tenants in common, from the testator’s death, without any right of survivorship, and on the death of one of the daughters the estate devised to her does not terminate, but survives in favor of her grantees, heirs or devisees, whether any partition has been made or not.
    3. In such case the clause postponing the remainder to the death of both daughters does not change the result, as the heir or devisee of the daughter dying first, in such case, does not take under the grandfather’s will, but under the Statute of Descents or the will of the mother, as to her undetermined estate. The fact of there being grandchildren of the testator does not prevent them from acquiring such estate of their mother by purchase or devise, and such right is not affected by a recital in a deed of partition between the two daughters, showing a right of survivorship, and conveyance by each to the other only of an estate for life instead, until the death of the survivor.
    4. Same—construed, as whether giving a vested or contingent remainder. The weight of authority seems to be that when an estate is devised to-a class of persons described as survivors, such estate does not vest until the time designated for the beginning of the enjoyment of the estate by that class of persons, and that the word “survivor,” or “survivors,” in such case has reference to that period, unless the will shows a different intent.
    5. Where the words of a will are, “I hereby give the fee simple of” certain lands “to my grandchildren, whatever number they may be, * * * share and share alike, to take effect only after the death of my said daughters,” to whom a life estate was granted, a vested estate in the remainder is immediately created in the grandchildren in esse at the testator’s death, to be opened, however, upon the subsequent birth of other grandchildren by either of his daughters, to let them in to' an equal share with those in being at the death of the testator. Each grandchild, in such case, takes an equal, undivided vested remainder in the lands devised, subject to be divested pro tanto, from time to time, by the birth of other such grandchildren of the testator; and upon the death of any such grandchild after the death of the testator, his or her estate will pass to his or her heirs.
    Appeal from the Circuit Court of Christian county; the Hon. Jesse J. Phillips, Judge, presiding.
    On April 25, 1863, Edward A. D’Arey died, leaving a will, executed in 1860, which was duly proved and established in the county court of the county of Jersey soon after his death. By a clause in the will he declared: “I hereby give the fee simple of all the various pieces and lots of land owned by me in Christian county, Illinois, to my grandchildren, whatever number they may be, horn of the bodies of my two daughters, called Caroline and Catherine (commonly), share and share alike, to take possession only after the death of my said daughters, * * * which (my two daughters) shall have full use and enjoyment in possession of all said lands in Christian county during their natural lives.” At the death of the testator he left him surviving two daughters, Ann Caroline D. Teese, the wife of Frederick H. Teese, of New Jersey, and Catherine M. Cheney, the wife of Prentiss D. Cheney, of Illinois, and two grandchildren, Mary M. Teese and Catherine M. Teese, the daughters of Mrs. Caroline Teese. Mrs. Cheney had a son born in April, 1862, who died in August of the same year, and before the death of the testator. At the death of the testator Mrs. Cheney had no children living.

      On November 23, 1863, an agreement was executed, under the seals of the parties, between Prentiss D. Cheney, and his wife, Catherine M. Cheney, of Illinois, of the first part, and Frederick H. Teese, and Ann Caroline Teese, his wife, of New Jersey, of the second part, reciting that Mrs. Cheney and Mrs. Teese were possessed of a life estate as tenants in common of the lands mentioned in the above clause in the will of their father, “with the right in the survivor of them to have and to hold all” the same “for the term of her natural life, from and after the death of the other, ” and by which agreement all these lands were divided equally between Mrs. Cheney and Mrs. Teese, (giving a full description of all the lands partitioned and set off to each,) and in consideration of care and improvement to be bestowed by the husband of each upon the share set off to his wife, it was provided that the husband of the sister who should first die, if he should survive her, should have the sole use of the lands set off to his wife, for five years from and after her death, if her surviving sister should live so long; and to carry out this partition the portion of land set off to each of these sisters was conveyed to her and her assigns by her sister and her husband, “to have and to hold * * * to her and her assigns during her natural life.” Under this agreement the land thus set off to Mrs. Teese was taken to the exclusive possession and use of her and her husband, and the land thus set off to Mrs. Cheney was taken to the exclusive use and possession of her and her husband, and thus the use and possession continued of all these lands until April 23, 1877, and on that day Mrs. Catherine M. Cheney died testate, and for five years thereafter (that is, until April 23, 1882,) her husband, Prentiss D. Cheney, held and enjoyed her share of these lands without objection. After the death of the testator, Edward A. D’Arcy, Mrs. Cheney had born unto her three children,— Edward D. Cheney, born June 8, 1865, who died August 21, 1868,, and Alexander M. Cheney, born September 8, 1868, (who is still living, and one of the appellants in this ease,) and Caroline T. Cheney, born October 11, 1875, who died May 26/1877; and thus at the'death of Mrs. Cheney she left her surviving, her husband and two children, one of whom died about one month after the death of Mrs. Cheney, her mother. Mrs. Cheney, by her will, gave all her interest in this land to her husband and her children, share and share alike.
    The main controversy in this case relates to the right to the use and enjoyment of the lands set off in partition to Mrs. Cheney, from the period of five years after the time of her death, for and during the life of Mrs. Teese. This is a bill brought by Prentiss D. Cheney, the husband, and Alexander M. Cheney, the son, of Mrs. Cheney, asking for a construction of this clause of the will, claiming the use of Mrs. Cheney’s half of all these lands to be in them, or one of them, for that term. Mrs. Teese, one of the defendants, claims the use of these same lands for the period in question.
    The circuit court decreed that by this clause of the will the use and enjoyment of all the lands passed to both the daughters, ivith right of survivorship, until the death of the survivor, and that the grandchildren surviving at the death of the testator took a vested remainder in all the lands mentioned in that clause of the will, subject to open in favor of grandchildren born thereafter, and that each of the grandchildren living at the time of the death of the testator, or born thereafter, took a vested remainder in an equal share of the whole of said lands, and hence Mrs. Teese is entitled to the sole use and possession and enjoyment of all the lands mentioned in that clause of the will, and the rents and profits of the same, for and during her natural life, from and after the expiration of five years after the death of her sister, Mrs. Cheney. To reverse this decree in so far as it affects the use of one-half of this property, after five years after the death of Mrs. Cheney, and for and during the life of Mrs. Teese, Mr. Cheney and his infant son bring this appeal. Mrs. Teese and her husband assign cross-errors, insisting that none of the grandchildren take vested remainders, and that the fee to the whole will pass in equal parts to the grandchildren who may survive at the death of Mrs. Teese.
    Mr. H. M. Yandeveer, for the appellants:
    A devise to two or more during their natural lives, and at their death to their heirs, is uniformly held not to create a joint tenancy as to the life estate with a right of survivor-ship, but upon the death of one his .interest passes to his heirs. In support of this, counsel cited the following among other cases: Campbell v. Rawdon, 18 N. Y. 414; Putnam v. Gleason, 99 Mass. 454; Hunt v. Luquere, 5 Cow. 228; Bool v. Mix, 17 Wend. 127; Woolston v. Beck, 34 N. J. Eq. 75; Seely v. Seely, 44 Pa. 434; Branson v. Hill, 31 Md. 191; Adams v. Spaulding, 12 Conn. 351; Patterson v. Jackman, 5 Ind. 283; Strong v. Strong, 4 Redf. (N. Y.) 378; Tanier v. Peakes, 2 Sim. & Stu. 383; Arrow v. Mellish, 1 DeG. & Sm. 356; Ewington v. Fenn, 16 Jur. 398; Laverick’s Estate, 18 id. 304; Turner v. Whittaker, 23 Beav. 197; Wills v. Wills, 20 L. R. Eq. 342; Hawkins v. Hammerton, 16 Sim. 420; Archer v. Legg, 31 Beav. 191; Jones v. Randall, 1 J. & W. 100; Russell v. Long, 4 Ves. 555 ; Bryan v. Twig, L. R. 3 Ch. 183.
    • But if any right of survivorship ever existed in favor of Mrs. Teese, she abandoned and relinquished it by executing the deed of partition. She thereby lost all claim to the land conveyed by'her .to Mrs. Cheney.
    That the life estate continues until the death of Mrs. Teese, and that the interest of Mrs. Cheney passed to her devisees, to be held by them until the final termination of the life estate by the death of Mrs. Teese, we refer to the following: 3 Preston on Conveyances, ‘ 404; 2 Bouvier’s Inst.; Utley Dale’s case, Groke’s Eliz. 182; Williams on Real Prop. 309; 1 Jarman on Wills, 173, note 1; 4 Rent’s Com. part 6, sec. 55, p. 26; Alexander v. Miller, 7 Heisk. 83.

      We claim that the estate vested in fee simple in the grandchildren living at the death of the testator, who were divested pro tanto as other grandchildren were born during the existence of the life estate, and that the share of any grandchild dying intestate descended to his heirs at law. 4 Kent’s Com. 203-206; 2 Kedfield on Wills, 253, sec. 61; Nicoll v. Scott, 99 Ill. 540; Peoria v. Darst, 101 id. 618; Williams on Keal Prop. 233; Hempstead v. Dickson, 20 Ill. 195; Moore v. Lyons, 25 Wend. 119; Voids v. Sloan, 68 Ill. 588; Butler v. Heustis, id. 602; Ruffin v. Farmer, 72 id. 615; Marvin v. Collins, 98 id. 518.
    Messrs. J. C. & C. L. Conkling, for the appellees, to show that a right of survivorship was created by the devise to the two daughters during their lives, cited and commented upon Doe v. Abey, 1 M. & S. 432; Malcom v. Martin, 3 Brown’s Ch. 45; Pearce v. Edmeades, Y. & C. 248; McDermott v. Wallace, 5 Beav. Ch. 142; 2 Powell on Devises, 730; 2 Jarman on Wills, 759.
   Mr. Justice Dickey

delivered the opinion of the Court:

Several questions arise upon this record, and are submitted to the court in this case. It is plain that by this will a limited estate is given to the testator’s daughters, with remainder in fee to his grandchildren.

The first question relates to the extent of the estate given to the two daughters. It is suggested, as the grant to them is of the “full use and enjoyment of possession of all” the lands in question “dv/ring their natural lives, ” that this means so long as they both live, and hence that this estate ended with the life of Mrs. Cheney, and at that time vested in fee in the grandchildren. This, perhaps, is the literal meaning of these words, not considering the context. It is, however, plain that the testator intended the right of possession in his grandchildren should begin at the same moment that the right granted to his daughters should cease, and the words, “to take possession only after the death of my said daughters, ” plainly postpone the enjoyment of the estate by the grandchildren, as his devisees, until after the death of both of his daughters—that is, until the death of the survivor of them. The estate, therefore, granted to the daughters was the full use of the lands from the death of the testator until the death of the last survivor of his daughters, and did not end with the life of Mrs. Cheney.

The next question relates to the nature of the estate granted to the daughters, and especially to whether the right of survivorship was attached thereto. It is claimed by Mrs. Teese that on the death of her sister, Mrs. Cheney, the right to the full enjoyment of the whole of these lands vested in her as survivor, to continue during her natural life. If we had no statute law bearing upon this subject there would be much force in the contention, but the determination of this question is plainly controlled by our statute. On January 13, 1821, a statute was passed in this State saying: “If partition be not made between joint tenants, the parts of those who die first shall not accrue to the survivor or survivors, but descend or pass by devise, * * * and be considered, to every intent and purpose, in the same view as if such deceased joint tenants had been tenants in common.” (Rev. Stat. 1833, p. 474.) On January 31, 1827, it was declared in another statute, that “no estate in joint tenancy in any lands * * * shall be held or claimed under any grant, devise or. conveyance whatsoever, other than to executors or trustees, unless the premises therein mentioned shall expressly be declared to pass, not in tenancy in common, but in joint tenancy; and every such estate, other than to executors or trustees, unless otherwise expressly declared, as aforesaid, shall be deemed to be in tenancy in common.” (Rev. Stat. 1833, p. 130.) These two provisions have been ever since, and now are, the law in this State. See Gross’ Stat. 1871, pp. 84, 377, and Rev. Stat. 1874, chap. 56, sec. 1, and chap. 24, sec. 5.

It is to us plain that by this clause in the will of their father, made in view of these statutes, Mrs. Cheney and Mrs. Teese, at the death of their father, became possessed, as tenants in common, of an estate in these lands, to extend until the death of the survivor of them, each taking an undivided half of that estate. There are no express words in the will granting this estate making them joint tenants, nor any words expressly indicating that the estate of the one who dies first shall accrue to the survivor. Each daughter, as we understand, took an estate of the same amount and of the same duration. Such estate, as to each, was simply an estate for her own life, if she should survive her sister, but an estate for the life of her sister, if her sister should survive her. Partition was afterwards made of the lands between them. Even had no partition been made, under our statute in force when this will was made and when it took effect, the part of the tenant who died first could not accrue to the survivor. At the death of Mrs. Cheney her estate in the lands set off to her, not being terminated, was that of a devisable and descendible freehold, and passed to her heirs or devisees. It follows, that Mrs. Teese, under this will of her father, has no right or interest whatever in or to the possession and use of the lands set off in partition to Mrs. Cheney, but the same passed, by the will of Mrs. Cheney, to her devisees,—her husband and her children her surviving,—subject, of course, to the'five years’ use by her husband, which he has already enjoyed.

It is suggested that the words of the will of the testator, D’Arcy, allowing the grandchildren to take possession only after the death of both his daughters, repels the conclusion that the children of Mrs. Cheney (who are grandchildren) should enjoy the use of any of this property before the death of both of the daughters. In the view we take of this case they do not take this right of possession and nse as devisees of this testator, their grandfather.. By the grant to them in the will they take only a share of the estate in remainder. This they took by purchase. Their mother took by purchase, under the same will, a right to the use of half the property from the death of the testator until the death of the survivor of the daughters, and at her death her children then living, being part of her heirs, had she died' intestate, would have taken their share of this undetermined estate of their mother by inheritance. Had she chosen, in life, to have sold her interest in this estate, her grantee could have held the same after her death. There is nothing in the will to prevent any grantee, devisee or heir of Mrs. Cheney acquiring her estate, and the mere fact that such grantees, devisees or heirs are also grandchildren of the testator does not exclude them from the benefit of such acquisition. They take this interest not as grandchildren, nor as heirs or devisees of their grandfather, but as devisees of their mother. There is nothing in the deed of partition affecting this result. It is true it recites that the daughters, as tenants in common, have a life estate, with the right to the survivor of them to hold all of said lands for the term of her natural life, after the death of the other. This merely shows that they misapprehended their relative rights and interests, but we do not see that the action of either was affected or at all influenced by such misapprehension. They did make partition, and thus severed their possessions, and the right of survivorship, even had it ever existed, was at an end. In carrying out this partition it is true the deed of Mrs. Teese to the lands set off to Mrs. Cheney conveys the lands for the life of the grantee only, when to have covered the whole ground it ought to have been until the death of both, or of the survivors. But in a court of equity that will be treated as done which ought to have been done. There was really no need of any conveyance. It was enough that by agreement they divided the lands and severed the possession, and each afterwards occupied and enjoyed in accordance with that partition.

Another question presented is, whether the estate granted to the grandchildren became, at the death of the testator, a vested remainder, or remains a contingent remainder until the end of the term given to the daughters of the testator,— to vest at that time in the grandchildren then in esse. The weight of authority seems to be, that where an estate is granted to a class of persons described as survivors, such estate does not usually vest until the time designated for the beginning of the enjoyment of the estate by that class of persons; and the word “survivor,” or “survivors,” has, in such ease, reference to that period. The peculiar language of this will, however, shows clearly that such was not the testator’s intention. The language of the grant to the grandchildren is in presentí. There is nothing said about “surviving” grandchildren. The words are: “I hereby give the fee simple of” the lands “to my grandchildren, whatever number they may be, * * * share and share alike, to take possession only after the death of my said daughters.” Except in so far as limited by the words postponing the possession, the grant is present and unconditional of a present full fee simple to the grandchildren.

"We hold, therefore, that under this will the two grandchildren in esse at the death of the testator (the two children of Mrs. Teese) took at once a vested remainder in all these lands, to open, however, upon the subsequent birth of other grandchildren, if any, to let in those subsequently born. Each took at once a vested remainder in one-half of all these lands, subject to be divested pro tanto, from time to time, by the subsequent birth of other such grandchildren of the testator, if any. And so on the birth of Edward D. Cheney, June 28, 1865, the children of Mrs. Teese were each divested of one-third of her apparent share, and these three grandchildren, each, for the time, became invested with an estate in remainder in one-third of these lands,— and that ■ on the death of the grandchild Edward, his share or vested remainder, subject to like reduction, passed by descent to his heirs. And so on the birth of Alexander M. Cheney, (the now surviving son of Mrs. Cheney,) born September 18, 1868, the share of each of these grandchildren was reduced to that of one-fourth in such estate in remainder; and on the birth of Caroline T. Cheney, October 11, 1875, she became the owner of a grandchild’s share in this estate in remainder, which, in the then state of affairs, was one-fifth to each, and at her death, on May 26, 1877, her-share descended to her heirs. It follows, that each of the grandchildren now living, (that is, Mary M. Teese and Catherine M. Teese, daughters-of Mrs. Caroline Teese, and Alexander M. Cheney, son of Mrs. Catherine Cheney, deceased,) is the owner now, as devisee under this will, of a vested remainder of one-fifth in all these lands, subject only to be divested pro tanto by the hirth hereafter of a child or children of the body of Mrs. Teese, and that a like interest of one-fifth is now vested in the heirs of each of the children of Mrs. Cheney who were born after the death of their grandfather, and who are now dead.

There is some discussion in the briefs about the appointment of a receiver, and a motion is made in this court to set aside the appointment. We deem it unnecessary to discuss these questions in detail. By the views here presented the circuit court will find no difficulty in requiring the receiver to account, or in adjusting the accounts according to the rights of the parties, as herein presented.

The decree is reversed, and the cause remanded for other and further proceedings in accord with the views herein expressed.

Decree reversed.


text:
    Joseph Moore v. The People of the State of Illinois.

      Filed at Ottawa January 23, 1884.

    1. Appeal—reviewing questions of faet. A bastardy proceeding is one in which the finding of the facts by the Appellate Court, in affirming the judgment, is conclusive'upon the parties in this court.
    2. Evidence—affecting credibility of witness. On the trial of a bastardy suit, the prosecutrix, after being compelled, on the cross-examination, to give a detailed account of the time, place and attendant circumstances of the alleged illicit intercourse, was asked where she went and dined on that day,-counsel proposing to follow this up by showing that she had on different occasions made different statements in that respect, but the court sustained an objection to the question: Held, no error, as the matters proposed were collateral; and also, that while it might have been proper to have allowed questions as to her movements and conduct, yet her answers on such collateral matters would have been conclusive.
    3. In a bastardy trial a sister of the prosecutrix testified, that on the day the alleged illicit intercourse was had the defendant was where he might have had communication with her, and also that he was hauling different kinds of hay from one place to another. In rebuttal, defendant offered to prove that there were not different kinds of hay to be hauled by him, and that the only hauling done by him was from the farm ,on which the sexual intercourse was alleged to have been had, which the court refused to allow,. on objection: Held, that there was no error in refusing the evidence offered.
    4. Same—effect of evidence to impeach witness may be limited to that purpose. On the trial of a bastardy charge, the defendant, by way of impeaching a witness for the prosecution, proved he hadusaid there were two or three into the scrape, from what he had heard from the little girls in the family, sisters of the prosecutrix. The court instructed the jury that such statements, if made by the witness, were not evidence tending to prove that some other person than the defendant was the father of the child: Held, that the instruction was proper, the only purpose of such evidence being to impeach the witness, and that the jury were not authorized to consider it for any other purpose.
    5. Costs—on reversal in a.mere matter of form. Where a judgment is reversed by the Appellate Court solely on account of its form, in a case where the error might have been corrected without any reversal, there will be no error in refusing to make a division of the costs.

      6. Same—discretionary, on partial reversal. It is not imperative under section 24, chapter 33, of the Bevised Statutes of 1874, that in case of a partial reversal the appellee shall he taxed with a part of the costs. The apportionment in such cases is entirely within the discretion of the court.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Og'le county; the Hon. John Y. Eustace, Judge, presiding.
    Mr. J. G-. Gtarver, and Mr. Franc Bacon, for the appellant :
    The Appellate Court should have apportioned the costs. Rev. Stat. chap. 33, sec. 24.
    Contradictory statements by a witness as to immaterial matters tend to cast suspicion upon the testimony of a witness. Smith et al. v. Dennison, 101 Ill. 539.
    The court below allowed the prosecutrix to state that after the intercourse she left the house, but refused to let her be cross-examined as to where she' went that day, holding it immaterial. This was asked to test her credibility. Cross-examination is the most efficacious test of this which the law affords. Shaw v. People, 81 Ill. 150; Brosseau v. Warren, 6 Bradw. 450; Leland v. Kauth, 47 Mich. 540; People v. Arnold, 40 id. 710; Rogers v. People, 34 id. 345; Yanke v. State, 51 Wis. 464; Kischner v. State, 9 id. 140; Dagling v. State, 56 id. 586; 2 Best on Evidence, secs. 654, 655.
    John Sweeney -should have been allowed to answer the questions whether he said anything to the prosecutrix about being out so late at night, and as to her keeping company with Faulkner during March and April, 1880. Dagling v. State, 56 Wis. 586.
    Mr. W. W. Swett, and Mr. E. F. Dutcher, for the People :
    The mistake of the prosecuting witness as to the date of the illicit intercourse is immaterial. Holcomb v. People, 79 Ill. 409.

      The evidence rejected was immaterial. It was offered to contradict the prosecutrix as to immaterial matters elicited on cross-examination.
    The instruction limiting the statements testified to was proper. Its only relevancy was, that it tended to impeach another witness. It was incompetent for any other purpose.
   Mr. Justice Scholeield

delivered the opinion of the Court:

This was a prosecution for bastardy, which resulted in a judgment of conviction in the circuit court, and that judgment was affirmed on appeal to the Appellate Court for the Second District.

The real controversy is one of fact, which is conclusively settled against the defendant by the judgment of affirmance of the Appellate Court. Certain questions of law, arising upon the ruling of the circuit court, are, however, discussed in the arguments of counsel for the defendant, which it is necessary that we shall briefly notice.

In the examination in chief the prosecutrix testified simply that she was the mother of a bastard child, giving the date of its birth, and that it was begotten by the defendant. On cross-examination she was required to give a detailed account of the time, place and attendant circumstances of the illicit sexual intercourse, which she did, fixing the hour of the intercourse some time in the morning, and thereafter she was asked where she went and dined on that day. Counsel for defendant proposed to follow this up by showing that she had, on different occasions, made different statements in that respect. The court, on objection, declined to allow the question to be answered. A sister of the prosecutrix, called and examined to corroborate the prosecutrix as to the fact that the defendant, on the day the alleged illicit sexual intercourse was had, was where he might have had communication with the prosecutrix, testified, also, that he was hauling different kinds of hay from one place to another. Counsel for defendant offered to prove (but the court, on objection, excluded the testimony,) that there were not different kinds of hay to be hauled by the defendant, and that the only hauling done by him was from the farm on which the illegal sexual intercourse was alleged to have been had. There was, perhaps, likewise some other evidence of like character also excluded. There was clearly no error in these rulings. The matters were collateral to the issue, and to have gone into them would have been but to confuse, instead of enlightening, the minds of the jury. (1 Greenleaf on Evidence, sec. 449.) We think it would have been well to have allowed the questions as to the movements and conduct of the prosecutrix to have been given in evidence; but her answers as to all collateral matters would have been conclusive upon the defendant, and she could not have been impeached in the manner proposed.

It was proved, in contradiction of a statement of one Asaph Morris, a witness examined on behalf of the prosecution, that he had admitted, in testifying on the trial in the county court, that he had, in a previous conversation with defendant and his mother, at Byron, said that there were two or three in the scrape, from what he heard from the little girls in the family. The court, among other instructions given at the instance of the prosecution, gave this:

“If the jury believe, from the evidence, that the witness, Asaph Morris, in a conversation at Byron, with the defendant or his mother, in reference to Annie Hay having a bastard child, said that as near as he could learn from the little girls, sisters of Annie Hay, that two or three others were mixed up in it, that such statement is not evidence tending to prove or proving that any other person than defendant was in fact the father of the bastard child. ”

Counsel for defendant contend that the insertion of the word “others, ” is unauthorized by the evidence, and that its insertion was calculated to mislead the jury. The answer'to this is, whether the word “others” be added or omitted, what Morris said at the time and place indicated, upon no reasonable theory can be evidence tending to prove that the defendant was or was not the father of the child, and it was not improper to tell the jury to that effect. The evidence was admissible solely for the purpose of contradicting Morris, and thereby of weakening the effect of other testimony given by him on this trial, and the jury were not authorized to consider it for any other purpose.

The remaining question to which our attention is invited is, whether the Appellate Court erred in refusing to make a division of the costs. That court reversed the judgment of the circuit court solely as to the form of the judgment, affirming it'in all other respects. This in nowise affected the merits of the case, and the error might have been corrected in the Appellate Court without any order of reversal. (Pub. Laws, 1877, p. 151, see. 80,) It is not imperative, under section 24, chapter 83, of the Revised Statutes of 1874, that in case of a partial reversal appellee shall be taxed with a part of the costs. The apportionment, in such eases, is entirely within the discretion of the court, and there is no merit in taxing costs against the appellee where the reversal is merely to correct the form of the judgment in a manner that might as readily have been done in the Appellate Court’ without any reversal.

We perceive no error in the ruling of the Appellate Court which justifies a reversal of its judgment. It is therefore affirmed.

Judgment affirmed.