author: Mr. Chief Justice Sheldon

text:
    Richard Dunnigan v. Eli F. Stevens, Admr.

      Filed at Springfield September 27, 1887.

    1. Negotiable instruments—liability of indorser—by what law governed. Where promissory notes are made and indorsed in another State, the law of that State will govern as to the indorser’s liability.
    2. Same—character of liability under the law merchant. Under the law merchant, the indorsement of a note amounts to a contract on the part of the indorser, that if, „when duly presented, the note is not paid by the maker, the indorser will, upon due and reasonable notice given him of the dishonor, pay the same to the indorsee or oth§r holder.
    3. Same—waiver of presentment and notice, as qualifying character of liability of indorser. Under the law merchant in force in the State of Indiana, applicable to a note payable in a bank of that State, where there is an express waiver, in writing, by the indorser, of presentment for payment and of notice of its non-payment, the indorser’s obligation for its payment is unconditional and absolute, and on the maturity of the note the holder may immediately bring suit against the indorser, without performance of any act.

      Í. An indorser may, by the form of his indorsement, make himself absolutely and positively, in all events, liable for the payment of the note, with or without due presentment or due notice of non-payment. If there is an agreement, in writing, to dispense with any demand upon the maker, or with notice of dishonor, the language will be construed to import an absolute dispensation with the ordinary conditions of an indorsement, and the indorser will become as absolutely bound to pay the same, when due, as if a guarantor or surety.
    5. Administbation oe estates—as to claims not due—estate of indorser of promissory note. Under section 67, chapter 3, of the Revised Statutes, relating to the administration of estates of deceased persons, the indorsee of notes not yet due, where the liability of the indorser was absolute and not dependent upon any conditions, may have the same allowed against the estate of the latter, allowing the proper rebate of interest. Such indorsee or holder of the notes is a creditor of the estate, within the meaning of the law.
    6. A, on January 1, 1881, sold a tract of land in the State of Indiana to B, for $8000, of which $500 was, paid, taking notes for the balance, payable in one, two, three, four, five, six, seven, eight, nine and ten years, bearing eight per cent per annum interest, secured by mortgage on the premises sold, the last six of which the payee indorsed in blank to C. The notes provided that the drawers and indorsers severally waived presentment for payment, protest and notice of protest, and non-payment thereof, and they were made payable at a bank in Indiana, in which State they were so assigned. A statute of that State provided that notes payable to order or bearer in a bank in such State, should be negotiable as inland bills of exchange, and that the payees and indorsees thereof might recover as in a case of such bills, and the Supreme Court of that State held that the provisions of the law merchant in regard to the presentment for payment and notice of protest and non-payment might be waived by the terms of the contract, and that such waiver extended to the indorsers. A, the payee, died, and his administrator sold the other notes to a third person, who foreclosed the mortgage, making the mortgagor, B, and C, parties defendant. The sale only paid C $500 of the notes held by him. A decree was rendered against B for the sum due on the other notes, on which an execution was-returned nulla bona: Held, that the estate of A was liable to 0 on the notes so indorsed to the latter, notwithstanding they were not due at the-time of filing the same.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Edgar county; the Hon. C. B. Smith, Judge, presiding.
    Mr S. S. Whitehead, for the appellant:
    The contracts in this case were executed in the State of Indiana, in which State the notes are commercial paper, and negotiable as bills of exchange. Stat. of Indiana, 1881, sec» 5506.
    The provisions of the law merchant in regard to the presentment for payment, and notice of protest and non-payment, may be waived by the terms of the contract, and such waiver extends to the indorsers. Norvell v. Hittle, 23 Ind. 346; Neal v. Woods, id. 523; Lowery v. Steele, 27 id. 168; Hays v. Fitch,. 47 id. 21; Henderson v. Hackelmire, 59 id. 540; Booker v. Morris, 61 id. 286.
    As the waiver appears in these notes, the decedent was immediately, directly and primarily liable on the notes at their maturity, without any preliminary acts on the part of their holder, and suit might be brought against him alone, or jointly against him and the maker. Stat. of 1881, sec. 5516; Morrison v. Fishall, 64 Ind. 117; 23 id. 346.
    The contract of indorsement is a contract to pay money, by the laws of Illinois as much as it is in Indiana. Rev. Stat chap. 98, p. 771.
    Messrs. Golden & Hamill, for the appellee:
    Demand and notice are not necessary when waived in the-. notes. (Booker v. Morris, 61 Ind. 286.) But there is nothing, in the terms of the notes in this case that entitles the holder to bring suit against the indorser before their maturity. As-to the indorser of commercial paper there can be no acceleration of payment, unless there is a breach of one or more of the well-known warranties implied in an indorsement. The warranties implied in an indorsement of the class of paper mentioned, are as follow: First, that the paper will he paid according to its purport; second, that it is, in every respect, genuine; third, that it is valid; fourth, that the ostensible parties are competent to contract; fifth, that the indorser has lawful title and the right to indorse. 1 Daniell on Neg. Inst, secs. 669, 675.
    It can not be claimed, with even a shadow of truth, that either of the foregoing warranties has been violated in this-case. If other warranties exist in Indiana under the contract of indorsement, it is confidently asserted that they do not attach to paper governed by the law merchant.
    Only those promissory notes which are payable to order or bearer, at a bank in Indiana, are made negotiable as inland bills of exchange. A note payable to bearer, but not at such a bank, is subject to all defences of the maker. Woodward v. Mathews, 15 Ind. 339; Rawlings v. Fisher, 24 Ind. 52.
    Such notes only are governed by the law merchant as are-payable to order or bearer in a bank of that State. Brouse v. Bunn, 16 Ind. 406; Clark v. Carey, 63 id. 105; Bremmerman v. Jennings, 60 id. 105; Murphy v. Lucas, 58 id. 360.
    The indorser in this case is not liable until the maker fails to pay the - notes, and he is not in default until they become due. When due he may pay them, so that the liability of the indorser is conditional.
   Mr. Chief Justice Sheldon

delivered the opinion of the-Court:

On January 1, 1881, Clemuel E. Stevens, deceased, sold a farm in Sullivan county, Indiana, to one Samuel H. Kisner, for an agreed consideration of $8000. The sum of $500 was paid in cash, and for the remainder of the purchase money Eisner executed his notes to Stevens, payable in bank, in one, two, three, four, five, six, seven, eight, nine and ten years after date, with interest payable annually, at the rate of eight per cent, and secured the payment of the same by mortgage on the premises purchased. - Afterwards, Stevens purchased of Eichard Dunnigan some land situate in Clark county, Elinois, and in payment therefor transferred to Dunnigan, by indorsement in blank, six of the Eisner notes, the ones falling due January i, 1886, and after. Stevens died, and after his death his administrator sold the remaining notes,—the ones falling due January 1, 1882, 1883, 1884 and 1885,—to one John J. Brake. The notes maturing up to January 1, 1884, remaining unpaid, Brake commenced proceedings to foreclose the mortgage aforesaid, in the circuit court of Sullivan county, Indiana, making Eisner and Dunnigan the only parties defendant. Dunnigan filed an answer, also a cross-complaint, claiming an interest in the mortgaged property. A judgment of foreclosure was rendered, finding that the mortgaged property was not susceptible of sale in parcels, and directing that it be sold as a whole, and the proceeds applied, first, to indebtedness due; second, to that not due, with a rebate, etc. 'A sale under this judgment resulted in only enough to satisfy the Brake notes, and pay the sum of $500 on the notes held by Dunnigan. A personal judgment in the foreclosure suit was rendered against Eisner, and an execution issued thereon was returned no property found. Dunnigan filed'his claim against Stevens as indorser of the notes so indorsed by him to Dunnigan, for allowance against the estate of Stevens, in the county court of Clark county, where the claim was disallowed. On appeal to the circuit court there was judgment given against the administrator for $560, the amount of interest due on the notes, and that Dunnigan pay the costs in the proceeding, the claim having been filed subsequent to the time appointed by the administrator for the presentation of claims against the estate. The judgment of the circuit court was affirmed by the Appellate Court for the Third District, and this writ of error is brought to reverse the judgment of the Appellate Court.

The following is a copy of one of the notes in question, and the indorsement:

“$500.00. Terre Haute, Ind., January 1,1881.

“Five years after date I promise to pay to the order of Clemuel E. Stevens, at P. Shannon’s bank, Terre Haute, Ind„,

$500, value received, without any relief from valuation and appraisement laws, with interest at eight per cent per annum from date until paid, and attorneys’ fees.

“The drawers and indorsers severally waive presentment for payment, protest and notice of protest, and non-payment of this note. Interest payable annually.

No. 5. Samuel H. Eisner.”

Indorsed, “C. E. Stevens.”

The notes are all alike, except in amount and time of pay- • ment, the others being for $700 each. The notes and the indorsements were both made in the State of Indiana.

The statute of Indiana at the time provided as follows: '“Notes payable to order or bearer in a bank in this State ■shall be negotiable as inland bills of exchange, and the payees "and indorsers thereof may recover as in case of such bills.” It is held by the Supreme Court of Indiana that the provisions of the law merchant in regard to the presentment for payment and notice of protest and of non-payment, may be waived by the terms of the contract, and that such waiver extends to the indorsers.

Our statute concerning the settlement of the estates of deceased persons provides: “Any creditor whose debt or claim against the estate is not due, may, nevertheless, present the same for allowance and settlement, and shall thereupon be considered as a creditor under this act, and shall receive a dividend of said decedent’s estate, after deducting a rebate of interest for what he shall receive on such debt, to be computed from the time of the allowance thereof' to the time such debt would have become due according to the tenor and effect of the contract.” (Eev. Stat. see. 67, chap. 3.) And section 70’ declares that all debts and demands not exhibited to the court, within two years from the granting of letters of administration shall be forever barred, except as to subsequently discovered-assets.

Considerable stress has been laid in argument on the fact of the insolvency of the maker, Eisner,—of there having been-personal judgment against him, and his estate exhausted. Under our statute this would be important, as showing diligence to collect of the maker; but the notes and indorsements, having been made in the State of Indiana, it is the law of that'. State which is to govern in respect to the liability of the indorser. The notes being payable in a bank in that State, theindorser’s liability, by the statute there, is that which arises under the law merchant. Under that law, the indorsement of a note amounts to a contract on the part of the indorser, that, if, when duly presented, the note is not paid by the maker, he,, the indorser, will, upon due and reasonable -notice given him of the dishonor, pay the same to the indorsee or other holder. (Story on Promissory Notes, see. 135.) But here there is an express waiver, in writing, by the indorser, of presentment of the notes for payment and of notice of their non-payment.. This dispenses with the conditions precedent to the indorser’sliability, and makes his obligation for the payment of the notes-to be unconditional and absolute. On the maturity of the notes the holder might immediately bring suit against the indorser without perfprmance of any act.

An indorser may, by the form of his indorsement, make-himself absolutely and positively, in all events, liable for the-payment of the note, with- or without due presentment or due notice. (Story on Promissory Notes, sec. 461.) Where there-is an agreement in writing to dispense with any demand upon. the maker, or with notice of dishonor, the language will he construed to import an absolute dispensation with the ordinary conditions of an indorsement. (Ibid. sec. 148.) We consider that the indorser, here, by the form of his indorsement, made himself absolutely and positively, in all events, liable for the payment of the notes,—that his liability was as full as that of a surety or a guarantor; and the obligation of a surety or the guarantor of a promissory note is absolute to pay the note. Hunt v. Adams, 5 Mass. 519; Luqueer v. Prosser, 1 Hill, 256. And see Story on Promissory Notes, secs. 58, 59, and note.

It is said the indorser’s contract here was to pay the notes, if, when they became due, the maker did not pay them; and that when the notes were filed the condition had not been met. We do not consider that there is any such distinct condition as thus named—that there is any other condition than what is comprised in presentment for payment and notice of nonpayment. The condition, in this respect, as above stated by Story, is, “that if, when duly presented, it (the note) is not paid by the maker,” etc. Dispensing with presentment carries with it all condition as to paying on the maker’s failure to pay on ¿presentment. And even if the contract were, as thus supposed, to pay the notes if, when they became due, the maker did not pay them, we hardly see how, in respect of liability to the indorsee, that would vary essentially from an absolute promise to pay the notes, or that the notes should be paid. Either form of promise would oblige the payment to be made at maturity, and would create the equal liability of the indorser for their payment at maturity.

It is again said, the maker might pay the notes at maturity, and so the indorser not have them to pay. But this would not be inconsistent with the indorser’s liability for the payment of the notes.

The same might be said in respect of a surety or a guarantor, that the principal debtor might pay the debt on its coming due; yet that would not militate against the previous obligation of the surety or guarantor to pay the debt. So in the case of several makers of a promissory note, upon the death of one of them the claim of the whole note, we take it, might be filed and allowed against his estate, notwithstanding that on the note becoming due it might be paid by the surviving promisors, or each of them might pay his proportion of it, so that the decedent’s estate would have none, or but a proportional part, of.the debt to pay.

We think the indorser here undertook that these notes should be paid at maturity; that there was a binding obligation on his part for their payment; that there was no condition or contingency as to the obligation itself, but that it was absolute and positive, and constituted a claim against the estate of the indorser; that it was properly filed, as such, against the estate, and that the rejection of it by the court, except as to the amount actually due, was erroneous. The statute required it to be exhibited to the county court within two years from the granting of letters of administration, or else be forever barred, except as to subsequently discovered assets. The statute is, that .“any creditor whose debt or claim against the estate is not due may present the same for allowance and settlement.” “A creditor is he who has a right to require the fulfillment of" an obligation or contract.” (Bouvier’s Law Die.) Dunnigan certainly occupied this position, and he held a claim against the estate not due, bringing himself precisely within the statute:

The judgments of the Appellate and circuit courts will be reversed, and the cause remanded to the circuit court of Edgar county.

Judgment reversed.

Mr. Justice Scholfield : I am unable to concur in the reasoning in the foregoing opinion. The statute therein quoted, to the effect that “any creditor whose debt or claim against the estate is not yet due may present the same for allowance and settlement,” is in derogation of the common law, and, by a familiar rule of construction, is therefore to be construed strictly. So construing it, the words, “debts or claims against the estate,” must mean existing debts or claims, and not probable future debts or claims. But it is conceded, here, that the contract of Stevens, under the statutes of Indiana, where the notes were made and indorsed, is governed by the law merchant, and that by that law his liability (he having waived presentment and notice) is to pay the notes when due, if Eisner does not pay them then. Eisner is liable, absolutely, to pay the notes, but Stevens is only liable to pay them contingently, upon Eisner’s not paying them when due. The difference between the character of liability of Eisner and Stevens is plain and broad. It may be that the day of payment as to Eisner might, in the event of Eisner’s death', be accelerated without seriously impairing any right, since it would only affect the question of interest, which the statute equitably provides for. But accelerating the day of payment as to Stevens is a very different thing. He was entitled to the benefit of the chance of Eisner being able to pay the debt at any time until after maturity. Although Eisner may not now be able to pay, it does not follow that he may not be able to pay the notes when due. ’ By this opinion, a liability to pay in the future, upon condition, is converted into a present absolute liability,—a new contract is made for Stevens to which he never gave his assent. This, in my opinion, can not be done.

Mr. Justice Magruder : I concur in the views expressed by Mr. Justice Scholfield.


source: Caselaw Access Project

author: Per Curiam :

license: Public Domain

text:
    Thomas H. Bush et al. v. James R. Stanley et al.

      Filed at Springfield September 27, 1887.

    1. Evidence and depositions—admissibility of depositions after making new pa/rties. In. a chancery case, the court, by an order, found that the original complainant had no such interest in the subject matter as to enable him to maintain the bill, whereupon he was given leave to amend the same by the addition of a new party complainant, and for the filing of cross-bills, but the original bill was not dismissed; and it was ordered, by consent of the parties, that the depositions and evidence before taken, so far as competent, might be read on the final hearing, which was continued: Held, that there was no error in admitting such depositions in evidence on the final hearing.
    2. Same—stipulation that depositions taken may be read. The parties to a suit in chancery have the right to agree, and have their agreement en-1 ered of record, that the depositions and evidence already taken in certain other cases, so far as the testimony is competent, may be read on the hearing, and such an agreement waives all objections to the time and mode of taking the depositions.
    3. Same—parol evidence—to prove contents of lost deed. Under the Revised Statutes, chapter 116, section 28, providing that when it is shown orally in court “that the original of any deeds, conveyances or other written record evidence has been lost or destroyed, or not in the power of the party wishing to use it on the trial to produce the same, and the record thereof has been destroyed by fire, or otherwise, the court shall receive all such evidence as may have a bearing on the case, to establish the execution or contents of the deeds, conveyances, records or other written evidence so lost or destroyed, ” the recollection of witnesses as to the contents of such lost or destroyed instruments is clearly competent, and their recollection may be refreshed by reference to notes taken by them, and known to be correct.
    4. Same—refreshing witness’ recollection. Where a witness, on his direct examination, simply refers to memoranda to refresh his memory, and then testifies to his recollection thus aided, if such memoranda are given in evidence, on his cross-examination, at the instance of the adverse party, the latter can not complain of their admission.
    5. Same—land patent, as paramownt to certificate of entry. While the statute makes the official certificate of any register or receiver of a land office of the United States, evidence of certain things, yet it declares that the patent issued by the United States shall be deemed and considered a better legal and paramount title in the patentee, his heirs or assigns, than such register’s or receiver’s certificate.
    6. Same—certificates of redemption from sale for taxes a/nd special •assessments. The law requires the clerk of the county court to make an entry in the records of his office, of all redemptions from sales of lands for taxes and special assessments, and provides that the books and records belonging to his office, or copies thereof, certified by him, shall be deemed prima facie evidence to prove the sale of land, etc., for taxes or special assessments, and the redemption of the same. Certificates of the redemption of land made by such clerk are, within the meaning of the statute, “certified copies of the record of redemption,” and are admissible as evidence of redemption.
    7. Bankruptcy—who may plead discharge. A discharge in bankruptcy, like the Statute of Limitations, does not annul the original debt or liability of the bankrupt, but merely suspends the right of action for its recovery. It therefore follows, that no one but the bankrupt can plead his discharge in avoidance of his liability. He may, if he choose, treat his covenants and obligations as still binding upon him.
    8. Besotting tbust—when it arises. Where a party furnishes another with money to enter land for the former, and the latter enters the same in his own name, and afterwards transfers the certificate of purchase to the former, or makes him a deed, which is lost, and the patent is issued to -the latter, a resulting trust will arise in favor of the party who furnished the money, and to his grantees, and the court will decree a conveyance ■of the land accordingly.
    9. Same—by whom it may be asserted—after discharge in bankruptcy. The fact that a party who has conveyed property by warranty deed has been discharged as a bankrupt, will not prevent him from maintaining a bill to perfect the title thereto, by establishing a resulting trust in his favor, as against adverse claims, and enjoining an action of ejectment by the holder of the legal title against those claiming under his deed.
    10. Same—adjusting equities■—the trustee excluded. A decree on a bill to establish and enforce a resulting trust, found that S., one of the parties, owned the land, subject to a mortgage to 0.: Held, that the defendant (the trustee) had no interest in adjusting the equities and priorities between S. and 0.
    11. Laches—to whom availing. The doctrine of laches, in respect of the assertion of ownership of land, can be invoked only by b’ne in possession against one out of possession.
    Appeal from the Superior Court of Cook county; the Hon. Geobge Gabdneb, Judge, presiding.

      This was a bill in equity, to declare a resulting trust, compel the conveyance of the legal title, and enjoin the prosecution of an action of ejectment, exhibited in the Superior Court of Cook county, by John L. Wilson, against Thomas H. Bush, Isaac K. Palmer, Isaac R. Hitt, the city of Chicago, Thomas Fast and Lucy Bush.
    It was alleged that on the 28th of January, 1836, John L. Wilson furnished Isaac K. Palmer the money wherewith to purchase from the government of the United States, for said Wilson, the east half of the south-east quarter of section 34, town 38 north, range 14, east of the third principal meridian; that Palmer purchased the land, took a receipt from the receiver of the United States land office therefor, and on the same day assigned the same to Wilson, intending thereby to transfer the land to him; that on the 2d day of February, 1836, Wilson sold the land to Charles Petit, and transferred to him the receiver’s receipt so assigned. It is then alleged, upon information and belief, that the receiver’s receipt was lost or destroyed after its delivery to Petit, and that it was never returned to the United States land office; that the patent for the land was therefore issued by the government of the United States to Isaac K. Palmer on the 1st of October, 1839, but it remained in the land office until April, 1874, when it was delivered to Isaac R. Hitt, as agent for Averill & Armstrong ; that Wilson gave Petit a warranty deed for the land, the consideration being $250, and Petit’s title has become vested in the city of Chicago, Isaac R. Hitt, or both of them; that about forty years after the purchase of the land from the government, Palmer discovered that the patent had been issued in his name, and on or about April 5,1875, he made an agree- ' ment with Bush, whereby Bush was to take all necessary steps to establish the title in Palmer, and get possession of the land, and Bush was to have one-half of the land. Palmer, at the same time, quitclaimed to Bush. It is then charged that Bush purchased with full knowledge of the facts; that on. July 17, 1875, Bush commenced an ejectment suit against Hitt and the city of Chicago, and recovered a verdict, and at the time the hill was filed there was pending a motion for a new trial; that on the trial of the ejectment suit the defendant had offered to prove the facts set forth above, but such evidence was excluded from the jury as not constituting a legal defence; that if judgment shall be recovered on said verdict, complainant will become liable to the extent of $250, and interest, on ' his covenant of warranty in the deed to Petit, and that the defendants Thomas Fast and Lucy Bush are claiming some interest in the land. The prayer is, that the ejectment suit may be enjoined, and Bush and Palmer decreed to convey, in trust, to Wilson, for his grantees.
    The bill was amended on the 20th of March, 1878, by making John C. Palmer, B. J. 0. Hunter and E. M. Hill defendants.
    Hill, the Bushes and the Palmers filed an answer, to which the complainants filed a replication on the 13th of April, 1878. At the January term, 1881, of the court, the answer was amended, setting up that Wilson was discharged from liability on his covenants by virtue of proceedings under the Bankrupt law of 1841.
    A supplemental bill was filed on the 22d of May, 1882, alleging that since the filing of the original bill,—namely, on the 29th of January, 1881,—the title which had been vested in Hitt had passed by conveyances, particularly specified, to James B. Stanley. Stanley answered on the same day, admitting, substantially, the allegations of the bill, and on the same day the city of Chicago and said Stanley filed their cross-bill in the case, repeating, in substance, the allegations of the original bill in respect to the purchase of the land by Palmer for Wilson, and averring that Palmer either quitclaimed to Wilson or assigned the certificate of purchase; “that complainants are unable to state, from all the information which they can obtain, whether said land was conveyed by Palmer to Wilson by quitclaim deed, or whether said certificate was assigned, but, from all the facts they are able to learn, they aver and allege that said certificate was assigned.” They allege that the certificate of purchase was lost or destroyed, but they did not know how; that Wilson gave Petit a general warranty deed, among the covenants wherein was one covenanting to warrant and defend the title and the quiet and peaceable possession of the property, etc., and that by mesne conveyances, “all the title which Wilson or Petit had in and to said land has become and now is vested in the city of Chicago and James B. Stanley, and that Wilson’s covenants, which run with the land, are vested in the city of Chicago and James B. Stanley, and that by mesne conveyances from Petit, complainants will have a right of action against Wilson on the covenants in the deed from him to Petit, in case Bush should recover in the ejectment suit. Process was prayed against the Bushes, the Palmers, Wilson, Hitt, Fast, Hunter, Hill, McPherson and Charles B. Lawrence, and the prayer is that the ejectment suit be enjoined, and that the defendants be decreed to convey to Stanley, to be by him held subject to the mortgage in favor of the city. Answers were filed to the cross-bill.
    On the 12th of June, 1882, the court made this order:
    “This cause coming on to be heard upon the bill, answer, replication and proofs, and it being admitted by the parties hereto that said John L. Wilson was discharged as a bankrupt in the year 1841, under the Bankrupt law then in force, the court finds that he has no interest in the premises in controversy upon which to sustain the bill herein, and on motion of said complainant, leave is given to him to amend said bill by the addition of a new party complainant, and also, on motion of the city of Chicago, one of the defendants herein, said city is given leave to file a cross-bill herein, with James B. Stanley as co-complainant in said cross-bill; and said city moves for a continuance of the injunction heretofore granted herein, which motion is granted by the court, upon condition that said Stanley, by the 30th of June, A. D. 1882, file a new injunction bond herein, in the penal sum of $1000, with surety to be approved by the clerk of this court, conditioned as required by statute, for the payment of damages, and also expressly conditioned for the payment of the rents upon said property from the time of filing the cross-bill.
    “It is further ordered, that this order be entered as of the January term, A. D. 1882, of this court.
    “It is further ordered, by consent of parties, that the depositions and evidence heretofore taken or heard in this ease, ■or in the former case of Hitt v. Bush, (chancery,) or Bush v. Isaac B. Hitt and the City of Chicago, so far as such testimony is competent evidence, may be read on the hearing of this -cause, and the further hearing of said cause is continued.”
    Charles B. Lawrence died testate, and his sole devisee and •executrix was made a party in his stead.
    On the 30th of July, 1886, final decree was entered, finding that the averments in the original and cross-bills were true; that Palmer, as agent for Wilson, and with his money, entered and purchased the land in controversy from the United States, ■and assigned the certificate of entry to Wilson, and thereby directed the patent to be issued to Wilson, but that said certificate was lost or destroyed, so that the patent was made out to Palmer, and conveyed to him the legal title, which he holds in trust for Wilson and his grantees; that Stanley is entitled to have the legal title, subject to the mortgage in favor of the city, and it is directed that conveyance be made accordingly. It is also recited and decreed as follows:
    “And it appearing to the court that certain of said defendants have paid for the redemption of said premises from a ■sale for certain assessments upon said premises, to-wit, that Thomas H. Bush has paid the sum of $268.83, and John C. Palmer has paid the sum of $1330.73, and the said Margaret Lawrence has paid the sum of $472.51, and the said Susan M. McPherson has paid the sum of $630.03, which payments were made on the 30th day of August, 1884, therefore it is further ordered, that upon the payment of the costs of this suit, as heretofore ordered, and the delivery, by said Thomas H. Bush, John G. Palmer, Margaret Lawrence and Susan M. McPherson, to the clerk of this court, of their deed or deeds of conveyance, as hereinbefore ordered, and notice thereof to the said James R. Stanley, or his solicitor, Harvey B. Hurd, that the said Stanley pay into the hands of the clerk of this court, within ten days after such notice,’the amounts of the said secured sums, with interest thereon from August 30,1884, at the rate of six per cent per annum, for the benefit of said defendants, the same to be paid to them by said clerk, on the performance, on their part, of so much of this decree as pertains to them, respectively, and in default of such payment the said defendants have execution therefor against said James . R. Stanley.”
    The errors assigned are:
    First—The Superior Court of Cook county erred in rendering the decree aforesaid, in manner and form aforesaid, both as to the original and cross-bills.
    Second—In not rendering a decree dismissing said bill and cross-bill, and each of them, for want of equity.
    Third—In rendering said decree in manner and form aforesaid, without determining who held title paramount to that of appellants.
    Fourth—In admitting improper,, incompetent and irrelevant evidence on behalf of complainants in the original bill, and likewise in the cross-bill, and each of them.
    Ffith—In refusing to hear evidence which was offered by defendants in the original and cross-bills, and appellants herein, which was proper, competent and relevant to the issues.
    Appellees assign the following cross-error: “The Superior Court erred in receiving certificates of redemption from pretended tax or assessment sales, and requiring money to be paid to appellants, respectively, for redemption from such pretended sales.”

      Messrs. Cook & Lawrence, and Messrs. Judd, Ritchie, Esher & Judd, for the appellants:
    The evidence is not .sufficient to establish a resulting trust. Although the payment of the money may be shown by parol, yet it must be plainly proved by direct and unequivocal evidence. Browne on Statute of Frauds, gee. 91; Dorsey v. Clarke, 4 H. & J. 557; Sewell v. Baxter, 2 Md. Ch. 457; Faringen v. Ramsey, 2 id. 375; Holida v. Shoop, 4 Md. 474; Baker v. Vining, 30 Me. 126; Boyd v. McLean, 1 Johns. Ch. 590; Enos v. Hunter, 4 Gilm. 219; Bigelow on Fraud, 489 ; Cutter v. Tuttle, 19 N. J. Eq. 560; Malin v. Malin, 1 Wend. 648; Hencke v. Floring, 114 Ill. 558; Clement v. Clement, 1 Jones’ Eq. 185; Lench v. Lench, 10 Ves. 517; Kendall v. Mann, 11 Ala. 18; Mahoney v. Mahoney, 65 Ill. 406.
    Evidence as to the admissions of the alleged trustee, is viewed with the greatest suspicion, and is seldom accorded much weight. Gascoigney v. Thwing, 1 Vern. 367; Lench v. Lench, 10 Ves. 517; Clement v. Clement, 1 Jones’ Eq. 585; Grover v. Grover, 3 Y. & J. 170; Johnson v. Filson, 118 Ill. 219.
    The evidence of Jones, Hitt, Wilson and Porter should have been excluded on the hearing of the cross-bill. Stanley not being a party when they were taken, they could not be used against or for him. 1 Daniell’s Ch. Pr. *868, 869; Freeman on Judgments, sec. 162; 2 Phillips on Evidence, *9; Akins v. Humphrey, 1M. & R. 523; Weeks on Depositions, sec. 476.
    That portion of Hitt’s testimony as to. the contents of the deeds, etc., in the chain of title, was still further objectionable. He was not a maker of abstracts. His memoranda were not made from the original deeds, but from the records. King v. Worthington, 73 Ill. 161; Compton v. Randolph, 104 id. 555.
    If Palmer either assigned the certificate of entry, or deeded this land to Wilson, then there is not the slightest need here for the interposition of a court of equity. Starr & Curtis’ Stat. 1082, sec. 20; French v. Spencer, 21 How. 236; Cavender
      v. Smith, 3 G. Greene, 350; 5 Iowa, 188; Magruder v. Esmay, 35 Ohio St. 221; Simmons v. Waggoner, 101 U. S. 260; Rogers v. Brent, 5 Gilm. 573; McConnell v. Wilcox, 1 Scam. 367.
    Mr. H. B. Hurd, for the appellee Stanley:
    As to the question of laches, see Angell on Limitations, sec. 390; Owens v. Crow, 62 Md. 491; Dow v. Jewett, 18 N. H. 340 ; Perry on Trusts, sec. 141.
    Under the stipulation the depositions of Jones, Hitt, Wilson and Porter were properly admitted.
    It was competent, at common law, to prove the contents of the destroyed records, by oral testimony. 1 Greenleaf on Evidence, sec. 509.
    The assignment of a receiver’s certificate was not a conveyance of the land. Welch v. Dutton, 79 Ill. 465.
    Messrs. Barnum, Rubens & Ames, and Mr. Edward Roby, for the city of Chicago:
    Until the patent issues, the legal title remains in the United-States. Irvine v. Marshall, 20 How. 566; Wilcox v. Jackson, 13 Pet. 498.
    As to jurisdiction of a court of equity, see Patterson v. Winn, 11 Wheat. 383; Doswell v. De La Lanza, 20 How. 33; Bagnel v. Broderick, 13 Pet. 450.
    A bankrupt may ratify the original contract, and revive it. and keep it in force, notwithstanding his discharge. Underwood v. Eastman, 18 N. H. 582; Fleming v. Hayne, 1 Starkie N. P. 296; Brix v. Braham, 1 Bing. 281; Alsop v. Brown, 1 Doug. 192.
    Wilson, by filing the original bill, acknowledged his liability on his covenants of warranty, and waived his privilege. The privilege is personal, and can not be invoked by a third person.
    The depositions were properly admitted in evidence, being properly taken. The certificates of redemption were not competent evidence, no foundation having been laid for them.
   Per Curiam :

In order to determine what evidence is properly before us for consideration, it is necessary that we first-pass upon the errors assigned in regard to the rulings upon, evidence.

First—It is contended the court erred in admitting in evidence the depositions of Jones, Hitt, Wilson and Porter, on the hearing of the cross-bill. This, in our opinion, admits of two answers:

1. There was no decree dismissing the original bill, and the final decree recites that the cause came on for trial “upon an amended bill and supplemental bill of the said John L. Wilson,” and the pleadings responsive thereto, and on the cross-bill of the pity of Chicago, etc. The court, in the previous order, made on the 12th of June, 1882, it is true, recited that-it found that because Wilson was discharged as a bankrupt in the year- 1841, under the Bankrupt law then in force, “he-had no interest- in the premises in controversy upon which to-sustain the bill herein;” but it was only decreed, as a result of that finding, that leave be given to amend the bill by the addition of a new party complainant, and also that leave be given to the city of Chicago and Stanley to file cross-bill, etc., and so the original bill, as amended, was still before the court. It is obvious that if the court was mistaken as to the effect of the discharge in bankruptcy upon Wilson’s standing in the-case, and if, notwithstanding such discharge, he retained such an interest in the property in controversy as enabled him to maintain the original bill, it is unimportant whether these depositions were properly admissible to prove the allegations of the cross-bill, since the decree, so far as affects the interests of these appellants, must be the same, whether it shall be considered as under the original bill or under the cross-bill. That the court was mistaken as to the effect of the discharge in bankruptcy upon Wilson’s standing in the case, we think can admit of no doubt. We said in Marshall v. Tracy, 74 Ill. 379 : “The doctrine best sustained by authority is, that the original cause of action is not destroyed by the discharge in bankruptcy. The bar which the discharge interposes may be removed by an unconditional new promise, and debt revived upon the original consideration. ” And this was. re-affirmed in Classen v. Schoenemann et al. 80 Ill. 304. The discharge is analogous, in effect, to the Statute of Limitations, in so far as it does not annul the original debt, but merely suspends the right of action for its recovery. (F. and M. v. Flint, 17 Vt. 508; 44 Am. Dec. 351.) It follows, necessarily, that the privilege is purely personal to the bankrupt, and if he does not choose to avail of it, no one else can do it for him. Wilson here had the undoubted right to treat the covenant as binding upon him, notwithstanding his discharge, and having done so, he has now the same interest in the property that he had when he made his covenant.

2. The record recites that “it is further ordered, by consent of parties, that the depositions and evidence heretofore taken or heard in this ease, or in the former ease of Hitt v. Bush, (chancery,) or Bush v. Isaac R. Hitt and the City of Chicago, so far as such testimony is competent evidence, may be read on ■ the hearing of this cause.” The parties were then all before: the court, Charles B. Lawrence being one of the solicitors, andi no reason is pointed out why they might not agree as to what should be read in evidence. This agreement plainly waives all objections to the time and mode of taking these depositions, and that includes the objection now urged.

Second—It is next contended that the court erred in admitting in evidence certain portions of the testimony of Hitt and-Jones, as to the contents of deeds, etc., in the chain of title, because the memoranda which were testified to by them were1 not made as abstracts of title. The objection can not, in our opinion, be sustained. It is provided by section 28, chapter 116, of the Revised Statutes of 1874, that in cases like the present, where it is shown, as it here was, orally, in court, “that the original of any deeds, conveyances, or other written record evidence, has been lost or destroyed; or not in the power of the party wishing to use it on the trial to produce the same, and the record thereof has been destroyed by fire, or otherwise, the court shall receive all such evidence as may have a bearing on the ease, to establish the execution or contents of the deeds, conveyances, records or other written evidence so lost or destroyed.” The recollection of witnesses as to the contents of such lost or destroyed instruments would clearly be competent under this section, and we perceive no reason why their recollection might not be refreshed by reference to notes taken by the witnesses, and known to be correct. (Greenleaf on Evidence, sec. 436.) The memoranda of the witnesses were not read in evidence on their direct examination, but, as we understand the record, the witnesses simply refreshed then- memories by referring to them, and then testified to what they recollected. The memoranda of Jones were, on his cross-examination, given in evidence at the instance of one of the counsel for the appellants, but for that error, of course, appellants cannot complain.

Third—This brings us to the vital question in the case,— does the evidence establish a resulting trust ? Wilson testified that he procured Isaac K. Palmer to enter this land for him; that he gave Palmer $100 wherewith to enter the land; that Palmer entered it, and afterwards transferred it to him by assigning the certificate of purchase or making him a quitclaim deed,—he is not certain which. He adds: “I got Palmer to enter it, because I wanted to show that I paid him more than $100 for it, because you could go and enter up all the land around there you were a mind to, at that time, for $1.25. I recollect giving him the $100 to go and enter that particular piece of land with, just as well as if it had been an hour ago.” This evidence is nowhere disproved. Palmer, when first applied to, denied that he ever owned the land, and then offered to quitclaim to Wilson upon being assured of his identity, but after being interviewed by Bush he seems to have argued himself into the belief that the land must have been entered for him by a partner named George; but he distinctly states that he has no recollection at all of the entry. He argues, simply, that this or that must have been so because of other facts-stated by him, but does not state a single fact in regard to the entry as of his own knowledge. Such testimony is insufficient to prove anything. Wilson is corroborated by these circumstances. The land was entered on the 28th day of January, 1836, and on the 2d day of February, of the same year, he-sold and conveyed it to Charles Petit. Palmer never made-any claim to the land for a period of forty years, lacking only a few months, and then only after his attention was called to-it by other parties. He gives, as an excuse, that he became-insolvent about 1837-8, and left Chicago in 1841, and always supposed that all the land he had in Cook county had been, sold. But that did not affect his recollection of the property he did unquestionably own in Cook county. He describes that property from memory, and shows how he acquired it, but he-has no recollection at all of this land. In showing how he acquired other property, and what money he had, he always, shows, inferentially, that he could not have had the money wherewith to purchase this land.

We do not think it needful to discuss the evidence on this-question further, but deem it sufficient to say that it has all been carefully examined and considered, and we are of the-opinion that it clearly sufficiently establishes a resulting trust..

Fourth—But counsel interpose the laches of Wilson, and, those claiming in right of him, as a bar to relief. But appellants have not been, nor has any one under whom they claim ever been, in possession of the land. The doctrine of laches can only be invoked by one in possession against one out 'off possession.

Fifth—It is objected that if it be true that Palmer either-assigned the certificate of entry or deeded tins land to Wilson, then there is not the slightest need for the interposition of a court of equity. While it is true that section 20, of chapter 51, of the Bevised Statutes of 1874, makes the official certificate of any register or receiver of any land office of the United ■ States evidence of certain things, the 21st section of the same 1 chapter provides that “a patent for land shall be deemed and considered a better legal and paramount title in the patentee, his heirs or assigns, than the official certificate of any register of a land office of the United States, of the entry or purchase of the same land.”

Sixth—It is objected that the decree does not establish title either in Stanley or the city of Chicago. The decree finds that Stanley owns the land, subject to the mortgage of the city. We fail to perceive how appellants have any interest in the question of priority between these parties.

Seventh—The cross-error raises the question of the admissibility of the certificates of deposit for redemption. We think they were properly admitted in evidence. It is provided by-section 197, chapter 120, of the ¡Revised Statutes of 1874, that “when any tract or lot shall be redeemed from tax sale, the clerk shall enter the name of the person redeeming, the date,, and the amount of the redemption, in the proper column. AncI section 120 of the same statute provides that the books and records belonging to the office of the county clerk, or copies, thereof certified by said clerk, shall be deemed prima facie evidence to prove the sale of any land or lot or taxes or special assessments, the redemption of the same, or payment of taxes; or special assessments thereon.” We think these certificates; are, within the meaning of this section, “certified copies of the-record of redemption.”

On the whole, we find no cause to disturb the decree below, in any respect. It is therefore affirmed.

Decree affirmed.


author: Mr. Chief Justice Sheldon Mr. Justice Magruder,

text:
    Lewis D. Leach v. The People ex rel. O. P. Patterson.

      Filed at Mt. Vernon June 20, 1887.

    1. Special legislation—under constitution of 1848—township organization and the county court—management of comity affairs. Section 6, of article 7, of the constitution of 1848, which provides that “the General Assembly shall provide, by a general law, for a township organization,” etc., relates to the management of the affairs of the several towns of counties adopting the system, and not to the management of the fiscal affairs of counties.
    2. The constitution of 1848 provided that as to such counties as might adopt the township organization, the General Assembly might dispense with the county court for the management of the county fiscal concerns, and the affairs of such counties might be transacted in such manner as the General Assembly should provide. In this the legislature was not restricted to general laws.
    3. The adoption of the township system did not necessarily, under this constitutional provision, do away with the county court for the transaction of county business.. The management of the county affairs might still be left to the county court, or intrusted to any other tribunal created for that purpose.
    4. Statute—whether title embraces the subject. The act entitled “An act to change the time of electing certain officers in a county therein named,” approved February 28, 1867, is in violation of section 23, of article 3, of the constitution of 1848, in not having its subject or main object expressed in its title. The main subject of the act in question was, the change of the composition of the board of supervisors in Wayne county,—to diminish the number of the members of the board as provided by the general Township Organization law, and to change the mode of their election, from towns singly, to groups of towns. This subject was not expressed in the title, nor was it in any way germain to the purpose which was expressed in the title.
    5. Officebs de facto—validity of their acts—of officers acting under law which is not constitutional. The acts of de fado officers under color of legal title to the offices the duties of which they are assuming to perform, are valid as to the public, and so far as they concern the rights of third persons who have an interest in their acts done.
    6. The legislature passed an act which proved to be in violation of the constitution, whereby the management of the affairs of a county acting under township organization was attempted to be taken from the.supervisors of the several towns, and vested in a board of supervisors consisting of only five members, instead of fifteen, as before, to be elected in five districts, and hold their offices for four years. Supposing the act to be a valid enactment, such board of five were elected, and for a time acted without question, as the legally constituted tribunal having charge of the county affairs: Held, that their acts were valid and binding as those of defacto officers under color of office.
    Appeal from the County Court of Wayne county; the Hon. John Keen, Jr., Judge, presiding.
    Mr. B. Tompsons, and Messrs. Bell & Green, for the appellant :
    There can he no de facto officer or tribunal to act under the provisions of an unconstitutional act creating an office. Norton v. Shelby County, 118 U. S. 425; Hildreth v. McIntire, 1 J. J. Marsh. 206.
    An unconstitutional act is not a law. It confers no rights, it imposes no duties, it affords" no protection, it creates no office. Norton v. Shelby County, supra.

    An office is a position created by lawful authority, through which ministerial, executive, judicial or legislative'duties may be performed for the public. It must be dejwre.

    The office of a court or “board” is but one, although composed of many persons. The constitution of 1848 (sec. 6, art. 7) requires a general law for township organization, whereby the county business may be taken from the county court. People v. Brown, 11 Ill. 478; People v. Maynard, 14 id. 419; People v. Cochran, 15 id. 142; People v. Garner, 47 id. 246; Jasper County v. Ballou, 103 id. 745.
    By the vote of the people in 1860, under the general law to organize under township organization for the government of county affairs, it was fixed that the board should consist of fifteen townships, with fifteen supervisors, to constitute the board a de jwre body. A majority of all the supervisors was necessary to constitute a quorum. The legislature was powerless to provide any other office or board.

      The assumption of the five persons to act as the board of supervisors of fifteen towns and fifteen supervisors, is but an attempt to create an office by virtue of an unconstitutional act. It is an attempt to destroy the constitutional board, and supply it by creating an unknown office.
    If the power is conferred on one set of officials or individuals, it can not act through or by another, or by a different set of officials or persons. United States v. City of Columbus, 21 How. 356; Schuyler County v. People, 25 Ill. 181; Clark v. Hancock County, 27 id. 305; McClure v. Oxford, 94 U. S. 429; Gaddis v. Richland County, 92 Ill. 119; County of Jasper v. Ballou, 113 U. S. 750.
    Mr. George Hunt, Attorney General, for the appellee:
    The board of five supervisors were de facto officers, whose title can not be questioned collaterally. Both the general law and the law specially applicable to Wayne county, provided for a board of supervisors. The board of supervisors had the same power under one law that it had under the other. The only difference was in the composition of the board and the manner of electing its members. The official body representing the county, and referred to as having such power, both in the general and special act, was not the member, nor the supervisor, but the board of supervisors.
    An officer de facto is not a mere usurper, nor yet within the sanction of law, but one who, colore officii, claims and assumes to exercise official authority, is reputed to have it, and the community acquiesces accordingly. Hussey v. Smith, 99 U. S. 20 ; Wilcox v. Smith, 5 Wend. 231; Gilliam v. Reddick, 4 Ired. 368 ; Brown v. Lunt, 37 Me. 433; Railroad, Co. v. McPherson, 35 Mo. 13; Parker v. Kett, 1 Ld. Raym. 658.
    As to who is an officer de facto, and the binding force of his acts as such, see State v. Anderson, 1 Coxe, (N. J.) 318; Commissioners v. Fowler, 10 Mass. 290; Fowler v. Bebee, 9 id. 231; Parker v. Baker, 8 Paige, 428; Laver v. McGlachlin, 28 Wis. 364; In re Boyle, 9 Wis. 264; Conover v. Devlin, 24 Barb. 587; Burton v. Patton, 2 Jones’ L. 115; Kimball v. Alcorn, 45 Miss. 151.
    An officer appointed or elected under, an unconstitutional law, before the same is adjudged void, is a de facto officer. State v. Carroll, 38 Conn. 449; Cocke v. Halsey, 16 Pet. 71; People v. White, 24 Wend. 520; Carlton v. People, 10 Mich. 250; Commonwealth v. McComb, 56 Pa. St. 436; In re Ah Lee, 6 Saw. 410; Ex parte Strang, 21 Ohio St. 610; People v. Bangs, 24 Ill. 184; Mapes v. People, 69 id. 523; Barlow v. Standford, 82 id. 298.
   Mr. Chief Justice Sheldon

delivered the opinion of the 'Court:

This was an application made by the collector of taxes for Wayne county, in this State, for judgment for delinquent taxes against certain real estate of the appellant in that county. The taxes delinquent were levied to pay interest on $200,000 of bonds, purporting to be bonds issued by Wayne county in 1869, and in January, 1870,—$100,000 as a donation to, and $100,000 for the stock of, the Illinois Southeastern Railroad Company, whose railroad runs through said county.

By'an act of the General Assembly, approved February 28, 1867, entitled “An act to change the time of electing certain ■officers in a county therein named, ” it was enacted “that the board of supervisors in Wayne county shall consist of five persons, to be elected in the following manner, to-wit: The townships of Four Mile, Hickory Hill and Arrington shall ■constitute the first electoral district of said county, and shall be entitled to one member of said board; the townships of Big Mound, Laniard, Jasper and Barnhill shall constitute the second electoral district in said county, and be entitled to two members of said board; the townships of Leech, Massillon, Mount Erie and Elm River shall constitute the third electoral district in said county, and be entitled to one member of said board; the remainder of said Wayne county shall constitute the fourth electoral district, and shall be entitled to one member of said board.” The second section provides that the members of the board shall be elected in each district on -the first Tuesday in April, 1867, and each four years thereafter. The third section provides for the organization of the board so composed, and that when organized it shall perform all duties enjoined upon, and shall have all the powers and privileges of, . the board of supervisors, acting under the general township organization laws of this State, and .that any three of the board shall constitute a quorum for the transaction of any business.

The objection taken to the tax is, that the bonds are not valid, their alleged invalidity consisting in their having been issued under authority of this board of supervisors thus constituted. It is contended that the statute aforesaid is unconstitutional.

The county of Wayne was organized under township organization in 1860, under the general law for township organization, with fifteen towns, the general law being in pursuance of section 6, article 7, of the constitution of 1848, as follows: “The General Assembly shall provide, by a general law, for a township organization, under which any county may organize whenever a majority of the voters of such county, at any general election, shall so determine; and whenever any county shall adopt a township organization, so much of this constitution as provides for the management of the fiscal concerns of the said county by the county court, may be dispensed with, and the affairs of said county may be transacted in such manner as the General Assembly may provide.”

February 26,1867, the legislature passed an act chartering the Illinois Southeastern Railroad Company, (2 Private Laws of 1867, p. 750,) and one among its provisions was: That the county board, or board of supervisors, where the county had adopted township organization, of any county through which the road might pass, was authorized, under a vote of the people of the county, to donate to the railroad company, towards building the railroad, any sum not exceeding $100,000, and might order the clerk of the county board, or board of supervisors of the county, to issue bonds of the county to the amount donated. By an amendatory act, approved and in force February 24, 1869, counties through which said railroad should pass were authorized to subscribe to the capital stock of the railroad, and to issue bonds therefor, upon a vote being had in favor thereof. All subscriptions to the capital stock of or donations to the railroad company, theretofore made by any county, were, by this act, legalized.

On February 25, 1868, an election was had upon a call of this board of supervisors, composed of five persons, on two propositions submitted by them,—one to donate $100,000, the other to subscribe to the stock of the railroad company $100,000. The vote was in favor of both propositions.

It is insisted that this act in relation to the board of supervisors in Wayne county is a special act, and so in violation of section 6, of article Y, of the constitution of 1848, that “the General Assembly shall provide, by a general law, for a township organization, ” etc. Township organization respects towns, and the conduct of the affairs of'towns, not of counties. For management of the latter’s affairs there is separate provision from that of township organization. The section itself recognizes the distinction. It provides that whenever any county shall adopt township organization, so much of the constitution as provides for the management of the fiscal concerns of the county by the county court may be dispensed with, and the affairs of the county may be transacted in such manner as the General Assembly shall provide,—that is, that the General Assembly may, not shall, dispense with the county court for the management of the county’s fiscal concerns, and the affairs of the county may be transacted in such manner as the General Assembly shall provide,—as they shall provide, unrestricteclly,—not as they shall provide by general law. We do not perceive why, consistently with this section, the legislature might not have declined to dispense with the county court for the management of the fiscal affairs of Wayne county, and have suffered that court to remain as it was, in that respect; or why there might not have been a different body for the transaction of the affairs of Wayne county from such as existed in other counties, or a body differently constituted. By the constitution of 1848 there, was no prohibition of the enactment of special or local laws. This act of February 28,1867, respects only the composition of the board of supervisors of Wayne county, for the management of the affairs of Wayne ■county. It does not touch the matter of township organization for the transaction of the affairs of towns, and does not, as we conceive, contravene the constitutional provision in respect of a general law for township organization.

There is a particular, however, wherein this law must be regarded as liable to a constitutional objection. The constitution of 1848 contained the provision: “And no private or local law which may be passed by the General Assembly shall embrace inore than one subject, and that shall be expressed in the title.” (Art. 3, sec. 23.) The title here is, “An act to change the time of electing certain officers in a county therein named.” The main subject of the act in question was, the change of the composition of the board of supervisors in Wayne county,—to diminish the number of the members of the board n,s provided by the general Township Organization law, and to change the mode of their election, from towns singly, to groups •of towns. This subject was not expressed in the title, nor was it in any way germain to the purpose which was expressed in the title. To change the time of electing certain officers signified that particular merely,—the change of the time of election,—and did not at all embrace the main object of the law. The title was deceptive and misleading, giving no intimation . of the more important purposes of the act. Without disregard of this constitutional requirement, we do not see that we can do otherwise than to hold this act to be violative thereof, and therefore void. See The People v. Mellen, 32 Ill. 181; The People v. Inst. Prot. Deaconesses, 71 id. 229; Middleport v. Ætna Life Ins. Co. 82 id. 562; Welch v. Post, 99 id. 471.

The act then being held to be not valid, does it follow, as ■contended by appellant, that the acts of the official body elected under the law, in compliance with its provisions, are null and void? This body was the de facto hoard of supervisors of "Wayne county, with color of legal title, and it is the well settled principle that the acts of such officers are valid when they ■concern the public, or the rights of third persons who have an interest in the act done. But it is said that this principle applies only where there is a de jure office for a de facto officer to fill,—citing the recent case of Norton v. Shelby County, 118 U. S. 425, as so holding; and it is insisted there was no de jure board of supervisors of Wayne county. Wherever township ■organization prevails, there is, in every county, a board of ■supervisors for the transaction of the affairs of the county. The act in question merely changed the number of the members of the board from fifteen to five, and the mode of election from towns singly, to two or more towns unitedly, and the term of ■office. Nothing was added to or taken from the powers or duties of the board. After the passage of the act there still remained the board of supervisors of Wayne county, the official body for the management of the county’s affairs, and the persons elected as members, under the act, went on, under the sanction of the statute, and exercised the powers and duties of the board of supervisors of Wayne county without question. There was no rival board, but it was the sole acting hoard of •supervisors in Wayne county. Were not the public justified in relying upon it as the board of supervisors of Wayne county ?

In Norton v. Shelby County, supra, the opinion in the case of State v. Carroll, 38 Conn. 449, is referred to as containing an admirable statement of the law upon the subject of the validity of the acts of de facto officers. In the Connecticut case it was said: “An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid, so far as they involve the interests of the public and third persons, where the duties of the officer were exercised: First, without a known appointment or, election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be. * * * Third, under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise,—such ineligibility, want of power or defect being unknown to the public. Fourth, under color of an election or appointment, by or pursuant to a public, unconstitutional law, before the same is adjudged to be such.”

It appears to us that the case at bar is one which comes within the category last named. There was such a legal official body known to the law as the board of supervisors of Wayne county, the powers and duties of which official body were in the present case exercised by persons, under color of an election, as members thereof, in pursuance of a public, unconstitutional law. The real cause of complaint is, that the office legally existing was illegally filled. The eases are numerous which hold that the acts of a public officer elected or appointed under an unconstitutional law are valid as respects the public and third persons, a number of which are cited in the case of State v. Carroll, and referred to in Norton v. Shelby County. In The People ex rel. v. Bangs, 24 Ill. 184, a law providing for the election of a judge was held unconstitutional and the election under it void, yet it was said the judge so elected had color of office, no doubt, and acting as he did, under color of office, that his acts were as valid, of course, as if the law had been constitutional. In Trumbo v. The People, 15 Ill. 561, a school district was held not to be legally established. So far as that alleged district was concerned, there was no such legal school district, .and there was no de jure office of school director of that alleged school district; yet upon a proceeding to collect a tax levied by persons assuming to be and acting as school directors of the district, the tax was sustained, it being held that the school directors were officers de facto by color of an election, and that their acts, when they concerned the public and third persons, were as valid as though they were officers de jwre,—that in such a collateral proceeding the legality of the formation of the school district could not be inquired into, and that it could only be done by information in the nature of a quo warranto.

If the local law providing for the election of five members of the board of supervisors of Wayne county be unconstitutional, then the general law in regard to the board of supervisors remained in force. Under the general law, the town supervisors were members of the board of supervisors by virtue of their office as town supervisors, and under the general law they held their offices until others were elected or appointed in their places, and qualified. The case then would be, that there were two elected sets of members of the board of supervisors of Wayne county,—one of fifteen members, elected under the general law, the other of five members, elected under the local law. There was, all the while, the legally established office or official body of the board of supervisors of Wayne county. And so far as respects the present question, there would not seem to be any substantial distinction between this case and that of The People v. Bangs, where there were two elected judges, the one who was rightfully elected, and the one elected under the unconstitutional law, and it was held that the acts of the latter were valid . as those of a defacto officer. And the same as to the other cases cited and referred to as above mentioned, where there were two officers in respect of the same office, one lawfully elected, the other appointed or elected under an unconstitutional law, and it was held, the latter was a defacto officer and his acts were valid.

It is said that the general law requires a majority of the-members to constitute a quorum for the transaction of business,, which, in Wayne county, under that law, would be eight, and that five members, under the local law, would not be a sufficient, number to form a quorum for the transaction of business. But. the question in hand is, whether the members elected under the: local law are to be regarded as defacto officers. If so, then the-board which they constituted would be a defacto board, and a majority of its members would constitute a defacto quorum. After the passage of this local law, the town supervisors of' Wayne county, who, under the general law, by virtue of their office, were members of the board of supervisors, and continued such until others were elected in their places, declined all action as such members, and yielded to the persons elected as members under the local law, as the rightful board of supervisors of' Wayne county. The latter, under their election, in pursuance-of the act of the General Assembly, entered upon the duties of' their office, and went on and exercised the powers and duties of the board of supervisors of Wayne county for years, without, question of their right to do so. They had the sole management and transaction of the affairs of the county, and did all the official legislative business of the county which there was done. There was no other official body ready and willing to ■ do it. They were recognized and acquiesced in by all the public as the board of supervisors of Wayne county, and to hold their acts to be invalid would be most disastrous to the public interest, and that of individuals who were justified in relying-upon such acts as the .acts of the board of supervisors of the-county. There are present, here, all the elements which, from considerations of public policy and for the avoiding of public inconvenience, have been recognized as going to make up the-character of defacto officers, whose acts should be held valid,— as officers, by virtue of an election as such, under an act of" ¡the legislature; reputation of being public officers and public-belief of their being such; public recognition thereof, and. public acquiescence therein; and action as such unquestioned, during a series of years, with no other body ready and willing; to act as the board of supervisors.

We are therefore of opinion that this act of February 28, 1867, in relation to the board of supervisors of Wayne county, even if it be unconstitutional, was sufficient to give color of title that the official board, elected and acting under the law, were officers defacto, and that their acts should be held valid, so far as the public and third persons are concerned.

The judgment will be affirmed. J °

T , . ~ 7 Judgment affirmed.

Mr. Justice Magruder,

dissenting:

I do not concur in the conclusion reached by the majority..

The bonds in question were issued in 1868 by Wayne county, $100,000 thereof, as a donation to the Illinois Southeastern - Railroad Company, and $100,000, as a subscription to the-stock of that company. They are alleged to be void, on the ground, that the board of supervisors, so called, which issued them, and which submitted the question of their issue to the votes of the people, was an illegal and unconstitutional body, without power to act in the premises.

The charter of the Illinois Southeastern Railroad Company, passed in 1867, did not give the board of supervisors in counties under township organization any authority to subscribe for the stock of the company, or to call an election for the purpose of voting upon the question of such subscription, or to issue subscription bonds; it only authorized the board to issue donation bonds, and to call an election to vote upon the question of making a donation, in any sum, not exceeding $100,000, to the company to aid in the construction of its road.

By a general law, however, passed November 6, 1849, and entitled “An act supplemental to an act entitled ah act to provide for a general system of railroad incorporations,” (Sess. Laws of 1849, p. 28,) the legislature authorized any county in the State to subscribe for stock in any railroad company, in any sum not exceeding $100,000, and conferred upon the county court of such county the power to call an election for the purpose of voting for or against such subscription, and to pay the same in bonds of the county. On April 1, 1851, the legislature passed “An act to provide for township organization,” and the fifth clause of the 4th section of the 16th article of that act, (Sess. Laws of 1851, p. 51,) contained this provision: “The board of supervisors of each county in this State shall have power, at their annual meetings, or at any other meeting, to perform all other duties, not inconsistent with this act, which may be required of or enjoined on them by any law of this State, to the county courts.” The record in this case shows, that the county of Wayne organized under the Township law, and adopted its provisions by a vote of the people of the county in the year, 1860. The duty of calling an election to vote upon the question of subscribing for railroad stock, and of issuing county bonds in pursuance thereof, which had been imposed upon the county court of Wayne county, prior to its organization under the Township law, was not inconsistent with any of the provisions of such law, and, therefore, devolved upon the board of supervisors of that county after its adoption of township organization. Prettyman v. Supervisors, 19 Ill. 406.

On February 25, 1868, at an election in Wayne county called by the board of supervisors, two propositions were submitted to the voters and adopted by a majority of the votes cast. One was, that the county should subscribe $100,000 to the capital stock of the Illinois Southeastern Bailroad Company, and issue bonds of the county to pay such subscription. The other was, that the county should donate $100,000 to said railroad company, and issue donation bonds to pay the same. If the board of supervisors, as then constituted, had any power to submit "the question of donation to the voters of the county and to issue donation bonds, it had the same power to submit the question of subscription for stock and to issue subscription bonds. Therefore no different rule can be applied in determining the validity of the subscription bonds from that which must govern in considering the validity of the donation bonds.

The seventh section of “An act to incorporate the Illinois Southeastern Railway Company,” approved February 25,1867, and in force February 26, 1867, is as follows:

“Sec. 7. The county court, or board of supervisors (where such county has adopted township organization) of any county into or through which this road or its branch may pass, is hereby authorized and fully empowered to donate to said company, as a bonus or inducement towards the building of said railroad or its branch, any sum not exceeding $100,000, and may order the clerk of the county court, or board of supervisors, as the case may be, of such county, to countersign and deliver such bonds so issued. * * * Provided, that no donation by the county court or board of supervisors of any such county shall be of a greater sum than $50,000, until after the question of such larger donation shall have been submitted to the legal voters of such county, at an election to be called, conducted, returns made, canvassed and published in the usual manner of calling, conducting, making returns, canvassing and publishing special county elections. * * * And if a majority of the ballots east at such an election be in favor of donation, it shall be the duty of the county court or board of supervisors of such county so voting to donate some amount, not less than $50,000 nor more than $100,000, to said company, and to order the issuing of bonds of the county for the amount so provided.” 2 Private Laws of 1867, p. 750.

The power to issue the bonds in question is derived solely and exclusively from this act of February 25, 1867, and from the acts of November 6, 1849, and April 1, 1851, already referred to. The body, upon which the power was conferred by these acts, was the board of supervisors of the county. On February 26, 1867, the board of supervisors of Wayne county was organized and constituted, as provided for in the general Township Organization law of the State. (Sess. Laws of 1851, p. 51; Public Laws of Illinois of 1861, p. 216.) By reference to such Township Organization law, as passed in 1851 and amended' in 1861, it may be seen what that board was, and how it was composed. .

Tinder the then existing system of township organization, the county was divided into as many towns as there are townships, according to government surveys. The allegations of the petition in this case, which are admitted to be true, show, that Wayne county was divided into fifteen towns. Bach town, at the annual town meeting, elected one supervisor, unless the legal voters equalled or exceeded eight hundred, when it was entitled to one additional supervisor. The supervisor was a town officer, and, as such, had important duties to perform. He was required to take an oath of office, and give bond to the town for the faithful discharge of his duties. He received and paid over all moneys, raised in the town for defraying certain town charges. He was obliged to keep an account of his receipts and expenditures, and, annually, to account with the town clerk, and the two justices of the peace of the town, for his disbursements. He prosecuted, in the name of the town, for certain penalties, given to it by law, and process was served upon him in legal proceedings against the town. He and the town clerk and justices of the peace constituted a board of auditors to examine the accounts of the overseers of the poor and the highway commissioners.

The supervisors of the different towns in the county met annually for the dispatch of business, “as a board of supervisors.” There was no such officer, as a member of the board of supervisors, who was elected, as such, by the people. The-supervisors of the towns, elected as town officers, and not as-county officers, met together once a year, and, when they so met, constituted and were known as the “board of supervisors.”' The board was simply an assemblage of town supervisors. Bach supervisor was required to attend this annual meeting of the board, and to lay before it certain matters, connected with the interests of his town. The powers of the county, as a body politic, were vested in the board of supervisors. Special meetings could only be held, when requested in writing by at least one-third of the members of the board. A majority of the supervisors of the county constituted a quorum for the transaction of business.

On February 26, 1867, the board of supervisors of Wayne county consisted, under the system here described, of fifteen town supervisors, each elected by one of the fifteen towns, into which the county had been divided. It required eight supervisors to make a quorum. It is manifest, that this board of fifteen supervisors was the board, upon which the power to issue the donation and subscription bonds, now under consideration, was conferred by the acts of the legislature, already referred to.

Thereafter and on February 28,1867, the legislature passed an act, “approved February 28,1867,” and “in force February 28,1867,” entitled “An act to change the time of electing certain officers in a county therein named.” (Public Laws, 1867, p. 102.) Its first section is as follows:

“That the board of supervisors in Wayne county shall consist of five persons, to be elected in the following manner, to-wit: The townships of Four Mile, Hickory Hill and Arrington shall constitute the first electoral district of said county, and shall be entitled to one member of said board; the townships of Big Mound, Lamard, Jasper and Barnhill shall constitute the second electoral district in said county, and shall be entitled to two members of said board; the townships of Leech, Massillon, Mount Erie and Elm shall constitute the third electoral district in said county, and be entitled to one member of said board. The remainder of said county shall constitute the fourth district, and shall be entitled to one member of said board.”

The second section provides, that there shall be elected on the first Tuesday in April, 1867, and every four years thereafter, in each of said electoral districts, “one member of the board of supervisors of Wayne county,” who shall each hold their office for the term of four years, etc., except in the second district, etc., which shall elect two members, etc.

The third section provides, that said board shall perform all duties enjoined upon the board of supervisors, acting under the general township organization laws of this State, and shall have all the powers and privileges of boards of supervisors acting under such general township organization laws, and that any three of said board shall constitute a quorum for the transaction of any business.

Section 4 provides, that the members of said board shall each receive such compensation per diem as they may fix, not to exceed four dollars per day, for each day “in which said member shall be engaged in attending said court.”

Section 5 provides that said'board shall hold at least two meetings in each year, and that any special meeting may be called by any two members, etc.

Section 6 provides, that, in case of any vacancy in said board, the county clerk shall advertise a new election, etc.

Section T provides, that “all duties, not herein provided for to be done and performed, by virtue of the township organization laws 'of this State, by the supervisors of towns, in the different towns, shall be done and performed, in said county, by a justice of the peace in such town, who shall be selected by the town clerk, town assessor and town collector, for that purpose, each year,” etc.

Section 8 is as follows: “This act shall be deemed and taken as a public act, and be in force from and after its passage.”

Under the provisions of this act, five persons were elected, who proceeded to act as the board of supervisors of Wayne •county. It was the board, consisting of these five persons, who called the election, held on February 25, 1868, as above stated, and who issued the bonds in controversy in this proceeding. At a special meeting of this board, held on January 18, 1868, and called on petition of two of the five members, the election in question was ordered, as a special election.

The act of February 28, 1867, is claimed to be unconstitutional upon three grounds. First, it is said, that the act in question, being special in its character and having never been submitted to the votes of the people, vidlates section 6 of article 7 of the constitution of 1848, which provides, that “the General Assembly shall provide, by a general law, for a township organization, under which any county may organize whenever a majority of the voters of such county, at any general election, shall so determine,” etc. (People v. Brown, 11 Ill. 478; People v. Couchman, 15 id. 142; People v. Brayton, 94 id. 341.) Second, that the act in question violates the 5th section of the 9th article of the constitution of 1848, which provides, that “the corporate authorities of counties, townships, school districts, cities, towns and villages may be vested with power to assess and collect taxes for corporate purposes,” etc. (Cornell v. People, 107 Ill. 372.) Third, the act is said to be in violation of section 23 of article 3 of the constitution of 1848, a portion of which section is in the following words: “No private or local law, which may be passed by the General Assembly, shall embrace more than one subject, and that shall be expressed in the title.”

It is not necessary to express any opinion as to the first and second grounds, upon which the constitutionality of the law is attacked. It is clearly unconstitutional upon the third ground, urged against it. It violates section 23 of article 3, as above quoted. It is a local law. It applies to Wayne county and no other county in the State. It embraces a subject, which is not expressed in its title. It is entitled “An act to change the time of electing certain officers in a county therein named.” It does not change the time of electing any officers. It abolishes the office of supervisor of the town, and provides that the duties of town supervisors shall be performed by justices of the peace. It creates certain new electoral districts, and provides for the election of members of the board of supervisors, as such. No such official, as a member of the board of supervisors, had theretofore been elected, as such, hy the people. Each town supervisor, when meeting with the supervisors of all the other towns in the county, was called a member of the board of supervisors. The five members of the new board were to be elected once in four years, instead of being elected annually. They were, however, new officials, created for the first time by this act. They were not town supervisors, but district supervisors. It is apparent from the most superficial examination, that the title furnishes no information of the subjects, which are embraced in the body of the law. The view, here expressed, is sustained by the following cases: People v. Mellen, 32 Ill. 181; People v. Institution of Protestant Deaconesses, 71 id. 229; Village of Lockport v. Gaylord, 61 id. 276; Middleport v. Ætna Life Ins. Co. 82 id. 562; Welch v. Post, 99 id. 471.

It is, however, urged, that the five district supervisors, who issued the bonds in question, were officers de facto, and that their acts, as such de facto officers, are valid and binding, so far as the rights of third persons are concerned. I do not think, that this position is tenable under the facts of this case. There are some authorities, which hold, that an act of the legislature, even if it be unconstitutional, is sufficient to give color of title, and that an officer, acting under it, is an officer defacto. But the cases, which lay down this doctrine, will be found, upon a careful analysis, to refer not to the unconstitutiona-lity of the act creating the office; but to the unconstitutionality of the act, hy which the officer is appointed to an office legally existing. Such cases apply only to the invalidity, irregularity or unconstitutionality of the mode, by which a party is appointed or elected to a legally existing office. Where an office has been lawfully created, the acts of an incumbent, who holds it improperly, will be considered valid, as being the acts of an officer de facto. But there can not he an officer de facto, where no officer de jure is provided for. Before one can claim to be a de facto officer of the law, there must be a law creating the office. The office itself must be one de jwre; the officer may, then, be one de facto. There can be no officer either de jure or de facto, if there be no office to fill. (Norton v. Shelby County, 118 U. S. 425; Town of Deborah v. Bullis, 25 Iowa, 12; Wait’s Actions and Defences, s'ec. 9). Dillon in his work on Municipal Corporations (3d ed.) sec. 276, says: “The notion, that there can he a de facto office has been characterized as a political solecism, without foundation in reason and without support in law; and, therefore, a person can not claim to be a de facto officer of a municipal corporation, when the corporation or people have, in law, no power, in any event, to elect°or appoint such an officer.”

It can not be said of the act of February 28, 1867, that it merely prescribed a new mode of selecting the members of the board of supervisors of Wayne county. It endeavored to form a new board of supervisors, unknown to the Township law, under which Wayne county was organized, and opposed to the spirit and theory of that law. In the place of a board, consisting of fifteen town officers, elected by the fifteen towns of the county, eight of whom constituted a legal quorum, it provided for the organization of a board of five men, elected by five newly created electoral districts, and three of whom constituted a legal quorum. It is apparent from the observations already made, that this act sought to inaugurate a new system of government for Wayne county. It made provision for a set of officials, who,-though they were called by the same name as the old board, were yet, in fact, an entirely new governing body.

It follows, that the five men, who issued the bonds under consideration, were not incumbents of offices, already legally existing, and can not be regarded as de facto officers. As the act, which attempted to create the board of five district supervisors, never became a law, that board never really came into existence. The Supreme Court of the United States say: “An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.” Norton v. Shelby County, supra.

It is further claimed, that the issuance of the bonds, involved in this suit, has been ratified by the legislature in the passage of an act, approved February 24, 1869, and entitled, “An act to amend an act entitled an act to incorporate the Hlinois Southeastern Bailway Company.” (3 Private Laws, p. 308.) The first section of this act provides, that “all subscriptions to the capital stock, or donations, or gifts to said railway company, whether made by individuals, townships, counties or corporations, shall be and are by this act legalized; and the said company is" hereby empowered and authorized to collect - and use the same upon the conditions as donated and subscribed.”

Clearly this first section of the act of 1869 is unconstitutional, as being in violation of section 23 of article 3 of the constitution of 1848, as above quoted. This court said of it in Welch v. Post, supra: “The question is directly made, that the amendatory act of 1869 violates the constitution of 1848, article 3, section 23. * * * On the authority of Middleport v. Ætna Life Ins. Co. 82 Ill. 562, we are inclined to hold the point is well taken, and, if so, it would be conclusive of the whole case.” In Village of Lockport v. Gaylord, supra, the act under consideration was an act of the legislature, entitled “An act to amend the charter of the village of Lock-port, passed February 12, A. D. 1853,” the 6th section of which was as follows: “That the appropriations made by the president and trustees, and orders, drawn by the clerk in February, 1867, be, and the same are, hereby fully legalized in all respects.” It was there said: “The legalization of unauthorized acts of the corporation can-not be considered to be amendatory of its charter. * * * The object of the 6th section is not expressed in the title of the act, and we must hold, that it was passed in violation of the constitution, and is, therefore, void.”

There is no difference between the act, which came under review in Village of Lockport v. Gaylord,, and the act of 1869, now under consideration. The latter act, in its title, purports to amend the charter of the Illinois Southeastern Bailway Company. The first section attempts to legalize unauthorized donations and subscriptions. Such legalization is. not amendatory of the charter. The object of the first section is not, therefore, expressed in the title of the act. Hence, it must be held to have been passed in violation of the constitution, and is void. Being thus unconstitutional and void, it can not be regarded as a ratification of the illegal acts of the board of supervisors, created by the act of February 28, 1861.

For the reasons here stated I think the judgment of the county court should be reversed.

Mr. Justice Scholfield : I concur in the foregoing views of Mr. Justice Magruder.

Mr. Justice Mulicey: I fully concur in the dissenting opinion of Mr. Justice Magruder.