author: Mr. Justice Magruder

text:
    Charles L. Willoughby et al. v. Henry C. Lawrence et al.

      Filed at Ottawa January 25, 1886.

      1. Contract—for the use offences and buildings for posting advertisements—of the rights acquired thereby. A contract made by the lessees of a tract of land used for a trotting park or race course, giving the other party thereto the right to use the fences and all the buildings erected or to be erected upon the tract, except the club house, for advertising purposes, for a period of years, confers the right to use the inside as well as the outside of the main fence and the buildings inside the inclosure, except the club house.
    2. The right to so make use of the fences and buildings, involves and includes the right of entry upon the premises to reach the buildings and the inner surface of the fence, and such latter right, if not an easement, is a burden or servitude in the nature of an easement.
    3. And the right of ingress and egress so conferred is more than a mere revocable license. Such right amounts to an interest in the premises in the nature of a right of way in gross, which a court of equity will regard as, at least, an equitable charge or burden thereon in favor of the grantee.
    4. Easement—whether appurtenant or in gross. A right in the land of another, without its being appurtenant-to o.r exercised in connection with the occupancy of the land, is an easement in gross. In such case the burden rests upon the land in favor of the person entitled thereto.

      5. Purchaser—subject to a servitude—notice. To bind a purchaser of a servient estate by a servitude charged thereon, he should have notice thereof, as in case of other incumbrances upon land.
    6. Recording daw—as applicable to a contract creating a servitude upon land—as, granting the use of fences, etc., for advertising. A written contract granting or giving the right to use the fences and buildings upon a tract of land for advertising purposes, as, for posting advertising notices thereon, involving by implication a right of way upon the land to enjoy such use, is an instrument in writing relating to land, or relating to a chattel real if the grantor has but á leasehold interest, and as such, when recorded in the proper office, is notice to subsequent purchasers and creditors of the rights thereby conferred.
    7. Lease—clause forbidding sub-letting—who may avail thereof. The lessee of premises can not take advantage of a clause in his lease prohibiting the sub-letting of a part thereof, or assigning.any less portion of,the leasehold interest than the whole, to avoid a contract made by him with another, giving him a right to enter the premises and post advertising notices on the buildings and fences. If the lessor does not avoid the contract, it will bind the lessee.
    8. Chancery—protecting one in the enjoyment of a servitude upon land. If the owner of land enters into a covenant concerning the land or its use, subjecting it to easements or personal servitudes, and the like, and afterward sells the premises to one having notice of the covenant, the grantee will take them bound by the covenant, and will be compelled, in equity, either to specifically execute it or will .be restrained from violating it, whether the covenant is or is not one which in law runs with the land.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Messrs. Dent, Black & Chatty Bros., for the appellants:
    The agreement of July 11, 1878, was an instrument “relating to or affecting title” to the fence and the buildings constituting part of the real estate, and was therefore entitled to record, (Rev. Stat. 1874, chap. 30, sec. 28; Washburn on Easements, *4,) and the recording of the same was notice to the Jockey and Trotting Club.
    The agreement is proper to be enforced. It secured valuable privileges to the complainants, for which they rendered a fair compensation. Hill v. Sherey, 42 Vt. 614; Johnstown C. M. Co. v. Veghte, 69 N. Y. 16.

      Injunction is the proper remedy to prevent interference with the rights acquired. High on Injunctions, secs. 1135, 1152, 1153, 1154, 1157; Manufacturing Co. v. Stock Yard Co. 8 C. E. Green, 161; Kirkpatrick v. Peshine, 9 id. 206; Haskell v. Wright, 8 id. 389; Lattimer v. Livermore, 72 N. Y. 174.
    Even though the covenant be not regarded as running with the land, equity may still enjoin its violation by a subsequent grantee with notice, although no action at law could be maintained against him. Kirkpatrick v. Peshine, 9 C. E. Green, 206; Tulk v. Moxhay, 2 Ph. 774; S. C. 11; Beav. 571.
    Messrs. Dow & Burnham, for the appellees:
    The contract does not create an easement proper. If it creates any, it is one in gross, or, as sometimes called, a personal easement, and is not inheritable. Washburn on Easements, 10.
    If this right is not a hereditament, it does not come within the purview of the Recording law. Rev. Stat. chap. 30, sees. 28, 38.
    The privilege of using the surface of a certain fence and buildings for advertising purposes, is no interest in real estate. It is a mere license, .and executory, which may be revoked at any time.
    Payment for the license is no' ground for aid in equity. It simply gives the licensee a right of action against the licenser for a breach of contract. 1 Washburn on Real Prop. 148.
    A license is irrevocable only when coupled with a grant of an interest in the subject matter upon which the license is exercised. Woodward v. Seeley, 11 Ill. 164; Jackson v. Babcock, 4 Johns. 417; Wood v. Leadbetter, 13 M. & W. 838.
    Even when there is a valid and subsisting legal contract, it is a matter resting in the sound discretion of the court whether it will decree a specific performance. Alexander v. Hoffman, 70 Ill. 114; Hoyt v. Tuxbury, id. 331.
   Mr. Justice Magruder

delivered the opinion of the Court:

On May 1, 1878, Magie & Tree executed to Lawrence & Martin a lease of the west half of the north-west quarter of section 14, town 39, north of range 13, east, in Cook county, for ten years from its date, with the privilege, on the part of the lessees, of terminating the lease at the end of five years, upon giving three months’ written notice to the lessors. The lessees therein agreed not to sub-let any portions of the land or to assign any less portion of the leasehold interest than the whole, and not to permit the erection thereon of any buildings, except those necessary or convenient in the use and management of a trotting park or race course, and not to use said premises for any other purpose than a trotting park or race course, and the holding of fairs, and other exhibitions of a like character. On July 11, 1878, Lawrence & Martin made with Willoughby, Hill & Co. the following contract :

“Articles of agreement entered into this 11th day of July, A. D. 1878, by and between Lawrence & Martin, of the city of Chicago and State of Illinois, party of the first part, and Willoughby, Hill & Co., of the same city and State, party of the second part.
“Witnessetli, that for the consideration hereinafter mentioned, the party of the first part has sold and conveyed, and by these presents does sell and convey, all of the right and title to use the following described property for advertising purposes, to-wit, the fences and all the buildings to be erected upon the following described land (excepting the building to be called the club house, which building is not to be used for advertising purposes save by the party of the first part only,) to-wit, the west half of the north-west quarter in section 14, town 39 north, range 13, in the county of Cook, and State of Illinois. It is further agreed by the parties hereto, that the party of the second part shall have the sole and exclusive control of said fences and buildings (with the exception above stated) for advertising purposes, and, under their exclusive control, to use all of the surface of said fences and buildings to advertise thereon, for themselves or any other person, and to sell and dispose of any or all of said surface for the purposes aforesaid. That said right to so advertise shall continue until the first day of May, 1883, and as much longer as the party of the first part or their assigns shall occupy said tract of land. It is further agreed that the privilege to advertise any business, profession or occupation in and about the premises aforesaid shall be the property of and belong to the party of the second part exclusively, and that the party of the first part shall not permit any other person to advertise in or about said premises without the consent of the party of the second part. For and in consideration of the premises, privileges and appurtenances aforesaid, and in consideration of one dollar in hand paid to them, the party of the second part hereby agrees to furnish the material for and erect a fence around so much of the aforesaid tract of land as lies east of Crawford avenue. The said party of the second part agrees to build said fence of good, merchantable, common lumber, tight, and ten feet high, and to maintain the same in good condition during the continuation of this contract. It is further agreed by. the party of the first part, that after the completion of said fence they will pay to the said party of the second part the sum of $400 on demand, as a part of the expense of building said fence. It is further agreed by the parties hereto, that in case the said party of the first part or their assigns shall cease to occupy said land after the first of May, 1883, the party of the second part may remove said fence as their own property; but if this contract, with its privileges to the party of the second part, shall continue for the space of ten years, from the first day of May, 1878, then said fence shall become the property of the party of the first part. It is further agreed by the parties hereto, that the terms of this contract shall be binding upon the executors, administrators, heirs and assigns of each of the parties severally hereto.
“Witness the hands and seals of the said parties, on the day and year above written.

Lawbence & Mabtin, [seal.]

Willoughby, Hill & Co. [seal.] ”

In pursuance of this contract; the appellants, Willoughby & Hill, began the construction of the fence on the 27th day of July, 1878, and finished it in about three weeks. It cost them $2700, of which Lawrence & Martin paid them only $400, leaving $2300 of the actual- cost unpaid, and for the expenditure of which they would receive no return except from the exercise of the advertising privileges conferred by the contract.

On August 20, 1878, about the time the fence was finished, and while it was yet under the control of Willoughby & Hill, proceedings w'ere begun for the organization of the “Chicago Jockey and Trotting Club, ” -under the 32d chapter of the Revised Statutes, in reference to corporations for pecuniary profit. The preliminary statement, required by the act, was acknowledged on August 20, 1878, and filed in the office of the Secretary of State on August 21, 1878. On September 6, 1878, the subscribers to the stock met, in pursuance of ten days’ previous notice, and elected directors. The certificate of organization was issued on the 9th day of September, 1878, and recorded in the recorder’s office of Cook county on September 20, 1878. The capital stock was $75,000, divided into 750 shares, of which ten gentlemen took each one share, making $1000, and Lawrence & Martin subscribed for 740 shares, amounting to $74,000. The Corporation act provides that upon recording the certificate of organization, together with the copies thereto attached, the “corporation shall be deemed fully organized, and may proceed to business, ” yet on the 16th day of September, 1878, four days before the recording of the certificate, Lawrence & Martin assigned all their interest in the lease with Magie & Tree to the Chicago Jockey and Trotting Club. The following indorsement appears on the lease introduced in evidence:

“In consideration that we have sold to the Chicago Jockey and Trotting Club, for the sum of $75,000, our new race course, described as follows : Situated in the city of Chicago, county of Cook, and State of Illinois, and lying south of Madison street, west of Central Park, north of Harrison street, and east of Crawford avenue, with all the improvements thereon, and this lease, we, Henry C. Lawrence and Morris T. Martin, Avithin named lessees, do hereby transfer, assign, set over and deliver to the said Chicago Jockey and Trotting Club all our right, title and interest in and to the above lease, subject to the agreements and covenants therein contained.
“Witness our hands and seals this 16th day of September,
A. D. 18iS. H. C. Lawrence, [seal.]
M. T. Martin. [seal.] ”

Lawrence & Martin paid the $400 to appellants after they had receiATed their stock.

When the club Avent into possession of the premises it refused to allow the appellants to exercise all the advertising privileges provided for in the contract. The testimony shows that for a considerable length of time their advertisements were allowed upon the outer surface of the outside fence, but neither the jockey club nor any of their assigns would permit such advertisements to be placed on the inner side of the main fence, or upon any of the buildings or fences inside of the enclosure. Accordingly, in March, 1879, the appellants filed a bill against Lawrence & Martin, and the jockey club, and its president, secretary and directors, praying for an injunction against any interference with the use of the premises for the purposes named in the contract, and for an allowance of damages sustained, etc. Pending the original bill, and under a judgment against the club in favor of Henry V. Bemis, the sheriff, on October 27, 1880, sold to A. W, Richmond, for $29,500, subject to redemption, the leasehold interest of the club in said premises, “and all improvements, fixtures and appurtenances thereto belonging, meaning all buildings, fences, stables, club houses, stands, gates, sheds, ” etc., and issued to Richmond the usual sheriff’s certificate of sale. On October 29, 1880, proceedings were taken, under the Corporation act, for the organization of a new corporation, called the “Chicago Driving Park,” of which the certificate of organization was issued on December 9,1880, and recorded on December 16,1880. On December 11, 1880, the sheriff’s certificate was assigned by Richmond to the “Chicago Driving Park,” and a sheriff’s deed was issued to it on April 6, 1882. On December 11, 1880, Bemis and Richmond also executed to the driving park a bill of sale of said leasehold interest, improvements, buildings, fences, sheds, etc., and of certain personal property on the premises. March 13, 1882, appellants filed their amended and supplemental bill, setting up substantially the above facts, and that the driving park refused to allow them to use the fences and buildings for advertising purposes, and alleging the insolvency of Lawrence and Martin and the jockey club, and the questionable solvency of the driving park, charging notice of their rights against the latter by lis pendens, and praying for a decree declaring themselves to be the owners of the privileges named in said contract, and for an injunction, as in original bill, and for an accounting of the value of the use of said premises while withheld from them, and making the same parties defendant, as in original bill, with the addition thereto of the “Chicago Driving Park. ”

The first question is as to the nature of the interest acquired by appellants under their contract. It gave them and their heirs, representatives and assigns, the right to use all of the surfaces of the fences and buildings (except the club house) for advertising purposes, for a period of nearly five years, or ten years, if' Lawrence & Martin, or their assigns, should occupy the premises so long. “All of the surface of said fences” included the inside as well as the outside of the main fence. The buildings were inside of the enclosure. Therefore the right to use the fences and buildings for the purpose of posting advertising notices upon them, involved and included the right of entry upon the premises to reach the buildings and the inner surface of the fence. The privileges accorded involved and implied a right of way upon the land to the inside of the fence and to the surface of the buildings. Such a right, if not actually an easement, was a burden or servitude in the nature of an easement.

The general rule is, that two distinct tenements are necessary to the creation of an easement,—the dominant, to which the right belongs, and the servient, upon which the obligation rests,—as, if the owner of one farm has a right of way over the adjoining farm-, that in favor of which the right is exercised is the dominant tenement, that over which it is exercised is the servient tenement. (Washburn on Easements and Servitudes, p. 3, et seq.; Garrison v. Rudd, 19 Ill. 558.) In easements of this character the burden rests upon one piece of land in favor of another piece of land. But there is a class of rights which one may have in another’s land without their being exercised in connection with the occupancy of other lands, and therefore called rights in gross. (Washburn on Easements, 4.) In such cases the burden rests upon one piece of land in favor of a person or individual. The principal distinction between an easement and a right of way in gross is found in the fact that in the first there is, and in the second there is not, a dominant tenement. The right of way is in gross, and personal to the grantee, because it is not appurtenant to other premises. The owner of premises may grant the right of way in either form. (Wagner v. Hannah, 38 Cal. 111.) There is, moreover, a kind of appendancy or appurtenancy of one easement to or upon another easement, in some eases, which is sometimes called a secondary easement. It passes with the principal easement, as being necessary or convenient to the enjoyment of the same. The grant of a right of pasturage carries the right of way to and from the pasture. So, that of drawing water, or of fishing, or hunting, gives a right of access and egress to and from the estate in which it is to be enjoyed. (Washburn on Easements, p. 39; Alexander v. Tolleston Club, 110 Ill. 65.) In the case at bar, a certain right of way, or right of access and egress to and from the trotting park, passed with the privileges of using the fences and buildings for advertising purposes; as being necessary and convenient to the enjoyment of such privileges. The right conferred upon appellants by the contract was more than a mere revocable license, as claimed by appellees, because Willoughby & Hill actually constructed the fence at an expense to themselves of $2300, and fully executed their part of the agreement. (Washburn on Easements, pp. 29, 30, et seq.; Van Ohlen v. Van Ohlen, 56 Ill. 528.) They acquired, by the terms of their contract, a certain interest in these premises, which was in the nature of a right of way in gross, and which a court of equity will regard as at least an equitable charge or burden thereon in their favor.

The next question is, whether the Chicago Jockey and Trotting Club, immediate assignee from Lawrence & Martin, took the lease and improvements subject to this burden or freed from it. In order to determine this question, it is necessary to determine whether the club had notice, actual or constructive, of the rights of appellants under the contract, or made its purchase under such circumstances as put it upon inquiry as to those rights. To bind a purchaser of a servient estate by a servitude charged thereon, he should have notice thereof,' as in case of other incumbrances upon land. (Washburn on Easements, 42, note 2; McCann v. Day, 57 Ill. 101.) The contract was recorded on the second day of August,- 1878. Was it an instrument, of such a character that its record operated as notice to the club? The 31st section of the Conveyance act provides, that “deeds, mortgages, and other instruments of writing relating to real estate, shall be deemed, from the time of being filed for record, notice to subsequent purchasers and creditors, though not acknowledged or proven according to law. ” The 38th section of the same act provides, that “the term ‘real estate,’ as used in this act, shall be construed as co-extensive in meaning with ‘lands, tenements and hereditaments,’ and as embracing all chattels real.” The lease from Magie & Tree to Lawrence & Martin was a chattel real, and was entitled to record to give notice of the leasehold interest of the lessees therein. The contract in question, conveying the use for certain purposes of the fences and buildings upon land, which is particularly described, and involving a right of way upon the land in order to enjoy such use, is an instrument in writing relating to a chattel real. Under the 28th section of the Conveyance act it is an instrument “relating to or affecting the title to a chattel real. ” It imposes a charge or burden upon the leasehold interest of Lawrence & Martin, and designates an interest, which is carved out of that estate or included in it. We do not perceive why it is not embraced in the class of instruments whose record affects subsequent purchasers and creditors with notice. (Reed v. Kemp, 16 Ill. 445; Dundy v. Chambers, 23 id. 369; McCann v. Day, 57 id. 101; Harris v. Johnson, 31 N. J. Eq. 174.) The “Chicago Driving Park” is affected with notice of the rights of appellants, because it . was a purchaser pendente lite.

It is claimed that the privilege accorded by Lawrence & Martin to appellants, to use the fences and buildings for advertising purposes, is a violation of the provisions in the lease from Magie & Tree, and that for this reason the enforcement of the agreement against the “Chicago Driving Park” might lead to a forfeiture of the lease. That is a matter which concerns the lessors, and of which they alone can take advantage. If the contract is a violation of the terms of the lease, the lessors might yet choose to ratify it, or consent to such use of the premises as appellants claim. Such violation, if it exists, does not make the contract void, but only voidable. (Webster v. Nicholls, 104 Ill. 160.) The court of chancery had jurisdiction to restrain the defendants below from any interference with the exercise, by appellants, of their privileges under the contract. If the owner- of land enters into a covenant concerning the land, concerning its use, subjecting it to easements or personal servitudes and the like, and the land is afterwards conveyed or sold to one who has actual or constructive no'tice of the covenant, the grantee or purchaser will take the premises bound by the covenant, and will be compelled, in equity, either to specifically execute it, or will be restrained from violating it; and it makes no difference whatever, with respect to this liability in equity, whether the covenant is or is not one which, in law, “runs with the land. ” Pomeroy’s Eq. Jur. secs. 689, 692, 1295, 1342.

The decree of- the Superior Court, and the judgment of the Appellate Court affirming said decree, are reversed, and the cause is remanded to the Superior Court for further proceedings in accordance with this opinion.

Judgment reversed.

This case was originally assigned to Mr. Justice Dickey. As no opinion was written by him before his death, the case was re-assigned at the November term, 1885.


source: Caselaw Access Project

author: Mr. Justice Shope

license: Public Domain

text:
    M. Millard v. The Board of Education.

      Filed at Mt. Vernon January 25, 1886

      Appeal—in chancery—suit to enjoin a hoard of education in respect to its management of schools and school fund. An appeal does not lie directly to this court from an order of the circuit court sustaining a demurrer to and dismissing a bill in chancery seeking to enjoin a board of education from paying out public money in support of a school, on the grounds, first, that the board have rented a building for such school, and propose to rent the same from year to year; second, that the school is kept at a place not authorized by a vote; and third, because the school is sectarian, and in the interest of a religious denomination.
    Appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    Mr. M. Millard, pro se.

    Mr. John B. Bowman, for the appellee.
   Mr. Justice Shope

delivered the opinion of the Court:

This is a bill in chancery, filed in the circuit court of St. Clair county by appellant, against appellees, as members of the board of education of a district in that county, to enjoin them from paying out the public funds of the district in support of one of the schools of the district. The grounds alleged in the bill for equitable interposition are: First, that the board of education have rented a building or room in which to hold said school, for several years, and propose to continue so doing, and that such renting is from year to year, when, it is alleged, they have no power to rent a building, from year to year, for school purposes; second, because the school is kept at a place not authorized by a vote of the people of the district; and third, because, as it is alleged, the school is sectarian in its character, and subordinated to the interests of a religious denomination in such way as to assist in the support of the church and the propagation of its tenets. A demurrer was sustained by the circuit court to the bill, and the complainant electing to stand by his bill, a decree was entered dismissing the bill, and for costs. The complainant thereupon brings the cause directly to this court by appeal, and seeks a reversal of the decree of the circuit court.

By the statute of the State, (sec. 8, chap. 37,) entitled “Courts,” it is provided that the Appellate Courts of the State shall have jurisdiction of all matters of appeal or writs of error from the final judgments, orders or decrees of the circuit court in any suit or proceeding at law or in chancery, other than criminal cases, and cases involving a franchise, or freehold, or the validity of a statute, and that appeals and writs of error from such final orders, judgments or decrees shall lie directly to the Supreme Court, in all criminal cases, and in cases involving a franchise, or freehold, or the validity of a statute. By the 89th section of the Practice act, (Starr & Curtis, 1482,) it is provided that criminal cases below the grade of felony shall be taken to the Appellate Court, “and in all criminal cases above the grade of misdemeanors, and cases in which a franchise, or freehold, or the validity of a statute, or construction of the constitution, and in all cases relating to the revenue, or in which the State is interested, as a party or otherwise, shall be taken directly to the Supreme Court.”

The validity of the acts prescribing that appeals shall be taken to, and writs of error prosecuted from, the Appellate Court, has been so frequently sustained by this court that no discussion of that subject will be necessary. Young et al. v. Stearns et al. 91 Ill. 221; Fleischman v. Walker et al. id. 318; Meeks v. Leach et al. id. 323.

It will be apparent, we think, from a statement of the scope and purpose of the bill, and a reading of the sections of the statute referred to, that an appeal does not lie to this court in this cause directly from the circuit court. The arguments of counsel filed in the cause, on neither side raise any question of the validity of a statute or the construction of a provision of the constitution, and we are at a loss to perceive what one of the classifications mentioned in the statute, by which appeals lie to this court directly from the trial court, it falls under. It may be said that section 3 of article 8 of the constitution is an inhibition upon the power of appellees to appropriate any public funds for the support of a public school or any school under the domination or control of any church or sectarian denomination, and that section 3 of the Bill of Bights provides that “the free exercise and enjoyment of religious profession and worship without discrimination shall forever be guaranteed, ” etc. Indeed, these sections are cited in appellant’s brief, but there is^no question of construction of the constitutional provisions raised, or any necessity for an interpretation apparent. It is nowhere complained that the statute on the same subject is not in full accord with the constitution. The right of appeal is given by the statute only, and its provisions as to the court to which the party in the first instance must appeal, must be observed.

Briefs have been filed by appellant and by appellees without the interposition of a motion to dismiss the appeal; but on looking into tire record we find that this court is without jurisdiction, and the appeal will be dismissed by the court on it own motion, and each party required to pay the costs made by them respectively in this court.

Appeal dismissed.


author: Per Curiam:

text:
    Henry Keiser v. Thomas J. Cox et al.

      Filed at Springfield January 20, 1886.

    Appeal—as to the amount involved—how to be determined. The statute makes the judgment of the Appellate Court final when the amount involved is less than $1000, exclusive of costs, except in certain classes of cases. Under this statute the amount involved is determined by the amount claimed or actually in controversy at the time the suit is first brought. The accruing interest can not be added to make up the sum necessary to give an appeal or writ of error.
    Writ oe Error to the-Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of McLean county; the Hon. O. T. Beeves, Judge, presiding.
    The defendants in error entered a motion in this court to dismiss the writ of error for want of jurisdiction.
    Messrs. Williams & Capen, in support of the motion:
    The question as to the amount involved in a suit is determined by the amount actually in controversy at the time it is first commenced. The rights of the parties are determined thereby. Railroad Co. v. Trook, 100 U. S. 112; Wilson v. Daniel, 3 Dall. 401; Olney v. Falcon, 17 How. 19; Knapp v. Banks, 2 id. 73; Walker v. United States, 4 Wall. 163; Hilton v. Dickinson, 108 U. S. 165; Merrill v. Patty, 16 Wall. 338; Carrick v. Landman, 20 Fed. Rep. 209; Roberts v. Nelson, 8 Blatchf. 74; Conger v. Nesbitt, 30 Minn. 436; Culver v. Crawford County, 4 Dill. 239; Spear on the Law of Federal Judiciary, 462.
    Interest accrued since the commencement of a suit can not be considered, as regards appellate jurisdiction. See above cases.

      Messrs. Kerrick, Lucas & Spencer, contra:

    The whole question depends upon the proper construction of the statute, which is: “In all cases determined in said appellate courts wherein the amount involved is less than $1000, exclusive of costs, * * * the judgment of the Appellate Court shall be final. In all other cases writs of error may be prosecuted, ” etc.
    The maxim of the law is expressio unías est exclusio alterius. The law has excluded from the consideration of the court the costs. Can the court «add another, and thereby exclude interest ?
    The statute has reference to and speaks only of cases determined in the Appellate Court, and to the record at that time, and to that time only, can we look to know the amount involved when “determined in said Appellate Court.”
   Per Curiam:

.On October 26, 1882, plaintiff in error filed his petition for a mechanic’s lien in the circuit court of McLean county, against the defendants in error, claiming that there was due to him $850. At the November term, 1885, a decree was rendered in his favor by that court, for $795, and interest from the date of the decree. This decree, on appeal to the Appellate Court for the Third District, was reversed, and the cause remanded to the circuit court of McLean county. That court, proceeding in accordance with' the opinion of the Appellate Court, entered a decree, on March 16, 1885, dismissing the petition and amended petition of plaintiff in error. From this second decree of the McLean county circuit court, so entered on March 16, 1885, an appeal was prosecuted to the Appellate Court, and said last named decree was affirmed by the Appellate Court on August 20, 1885. On September 9, 1885, Henry Keiser, the plaintiff in error here, made a motion in the Appellate Court for an appeal to this court from the judgment of that court, rendered on August 20, 1885, and assigned, as one of the reasons why said appeal should be allowed, that the amount then (that is, on September 9, 1885,) involved, exclusive of costs, was in excess of $1000, to-wit: $1036. The motion was, however, overruled by the Appellate Court, and the appeal to this court was denied. Thereupon, on September 16, 1885, Keiser sued out a writ of error from this court to the Appellate Court for the Third District. A motion is made by defendants in error to dismiss the writ of error, on the ground that this court “has no jurisdiction to consider it, the amount involved being less than $1000.”

The statute is, that “in all cases determined in said appellate courts, wherein the amount involved is less than $1000, exclusive of costs, * * * the judgment of the Appellate Court shall be final. In all other cases, writs of error may be prosecuted, ” etc. (Rev. Stat. chap. 37, sec. 38.) The question as to the amount involved in a suit is determined by the amount actually in controversy at the time it is first commenced. (Railroad Co. v. Trook, 100 U. S. 112.) The petition in this case shows that the amount claimed at the time the petition was filed was considerably less than $1000. The fact that since the filing of the petition the interest accruing upon the principal sum therein claimed will, when added to such principal sum, make an amount that exceeds $1000, does not confer any jurisdiction upon this court.

The motion to dismiss the writ of error is therefore granted, and the writ is accordingly dismissed.

Writ dismissed.


author: Mr. Chief Justice Mulkey

text:
    Francis M. Woolley v. Florence A. Schrader et al.

      Filed at Ottawa January 25, 1886.

      1. Will—election—as to accepting a part, and rejecting the residue. A devisee, claiming under a will, must accept its provisions as a whole, or not at all. While seeking to enforce provisions favorable to him, he will not be allowed to question other provisions which are against his interests. In such case he is put to his election whether he will take under the will or not.
    2. Same—effect of a devise as giving a partial interest in land, or the entire estate therein—as affecting the question of making an election by one of the devisees holding a residuary interest in thesame land. Where a testator has a limited interest in land devised, and a devisee under the will has the remaining interest, and the testator devises the land to another than the one holding such remainder, it depends upon the intention of the testator to devise the whole interest or simply to give his own, whether the devisee having the residuary interest shall be put to his election to give up his interest and take under the will, or retain his interest and repudiate the will; and such intention must be gathered from the whole will, viewed in the light of the circumstances surrounding the testator at the time of making the will.

      3. In this case, a father advancing money in payment of land bought by his son, took the title in his own name as a security for the payment of the sum so advanced. The son took possession and made improvements on the land, worth $800, occupied the same until his father’s death, and paid him back the greater part of the money so advanced. The father, in his will, directed that this and three other tracts should be equally divided between his four children, subject to the limitation that the first named son should be repaid the value of the improvements made by him: Held, that the testator intended to devise the entire interest in the tract bought by his son, and that the son, by ratifying the will and claiming under it, was .estopped from claiming the equitable title to the tract bought by him.
    4. Tenants in common—liability for rents and profits, as among themselves. Under the statute of this State, which is materially different from the English statute, one of several tenants in common who has taken the “use” and “benefits” of the interests of his co-tenants, is required to account to them'for their just proportion of the same, or for their share of the reasonable rental value of the premises.
    5. A testator devised lands to his four children, to be divided equally between them, part of them being infants. The older son occupied and cultivated one of the tracts for a number of years without paying any rent therefor: Held, on bill for partition, that he was chargeable with the value of the use of his co-tenants’ interest in the same.
    6. Decree in partition—construed—as to the rule adopted for payiny a sum due to one of several tenants in common from the others. On bill for partition of land between four tenants in common, the court, in taking an account, found $1148 due from the estate to one of the tenants in common, and ordered a sale of the land, and out of the proceeds the payment of three-fourths of the sum so found due, to the party entitled thereto: Held, that this did not require that the share of each tenant should pay an equal fourth part of three-fourths, but that three-fourths of that sum should be paid out of the shares of the other three tenants in common.
    Appeal from the Circuit Court of Whiteside county; the Hon. William Brown, Judge, presiding.
    Messrs. C. J. & C. G. Johnson, for the appellant:
    At common law, one tenant in common of real estate is not liable to an action of account for the mere use and occupation. Coke on Littleton, 200, 209; 1 Bacon’s Abr. 44; 4 Kent’s Com. 369; 1 Washburn on Real Prop. 570.
    On decree of partition, if either of the co-tenants has been in the exclusive receipt of the rents, he may be required to account, but mere occupancy will not make him liable for rent. Adams’ Eq. (2d Am. ed.) 438; 1 Washburn on Real Prop. 570; Freeman on Co-tenancy, sec. 258; Sargent v. Pearson, 12 Mass. 149 ; Badger v. Holmes, 6 Gray, 118; Peck v. Carpenter, 7 id. 283; Brown v. Wellington, 106 Mass. 318; Nelson v. Clay, 7 J. J. Marsh. 138 ; Israel v. Israel, 31 Md. 120; Kean v. Connelly, 25 Minn. 222.
    The court should have granted the prayer of the cross-bill, and compelled the specific execution of the contract of appellant with his father. The finding of the master and the evidence show that Francis paid the full amount advanced by his father, with interest. But even if a few dollars were owing of the interest, he would not be in such default as to authorize the heirs in rescinding the contract. Sanford v. Emory, 34 Ill. 468; Murphy v. Lockwood, 21 id. 610; Taylor v. Long-worth, 14 Pet. 172.

      Francis, by the dévise to him, was not put upon his election. When the testator has a present interest in the estate disposed of, though not entirely his own, the doctrine of election does not apply. 2 Story’s Eq. Jur. sec. 1089; Wilbanks v. Wilbanks, 18 Ill. 20.
    On bill for the specific performance of a contract for the sale of land, if ’the vendor has disabled himself from performing, the court will not dismiss the bill, but will grant relief by way of compensation. Hovenden on Frauds, 4; Sugden on Vendors, 78, and note; Greenman v. Adams, 12 Ves. 395; Phillips v. Thomson, 1 Johns. Ch. 132; Parkhurst v. VanCourtland, id. 273; King v. Bardeau, 6 id. 273; Johnson v. Glancy, 4 Blackf. 94; Kelly v. Bradford, 3 Bibb, 317; Morse v. Ellendorf 11 Paige, 288; Williams v. Ordway, 106 Mass. 232.
    The measure of damages in covenant for failure to convey land, is the value of the land at the time it should have been conveyed. Buckmaster v. Grundy, 1 Scam. 310; McKee v. Brandon, 2 Scam. 339; Gale v. Dean, 20 Ill. 320; Plummer v. Rigdon, 78 id. 222.
    The court erred in charging him with his share of the incumbrance held by him, and requiring payment of the balance out of the entire estate.
    Messrs. Bennett & Green, for the appellees:
    It is true that at common law a tenant in common is to account only when he receives, not takes, more than his just share. (Henderson v. Eason, 17 Ad. & El. 701.) But a more liberal construction is adopted in the following cases: Thompson v. Bostwick, 1 McMullen’s Eq. 75; Holt v. Robertson, id. 475; Valentine v. Johnson, 1 Hill’s Ch. 49; Early v. Friend, 16 Gratt. 47; Buffum v. Lewis, 7 Leigh, 720; Graham v. Pierce, 19 Gratt. 38; Shiels v. Stark, 14 Ga. 435; Carter v. Carter, 5 Munf. 180; Cooper v. Cooper, 19 N. J. Eq. 566; Hancock v. Day, 1 McMullen, 69; Cutler v. Currier, 54 Me. 81; Darden v. Cowper, 7 Jones, 210; Hayden v. Merrill, 44 Vt. 348.
    Our statute uses language quite different from that of the English statute, making a tenant in common liable if he “shall take ancl use the profits or benefits, ” etc. Rev. Stat. title “Accounts.”
    The eases in this court recognize the liability of such tenant to account when he takes and uses more than his just share. Rowan v. Reed, 19 Ill. 28; Howey v. Goings, 13 id. 95; Holderman v. Graham, 61 id. 359; Mahoney v. Mahoney, 65 id. 406; Louvalle v. Menard, 1 Gilm. 39; Dean v. O’Meara, 47 id. 120; Bean v. Scroggins, 12 Bradw. 328.
    If one takes upon himself the charge and care of a lunatic’s or infant’s estate without appointment, he will be chargeable as a bailiff, and must account. Willard’s Equity Jur. 134; Davis v. Harkness, 1 Gilm. 173; Casey v. Casey, 14 Ill. 112; Van Epps v. Van Douser, 4 Paige, 71; Wadsworth v. Connell, 104 Ill. 369. And he is chargeable not only with what he actually received, but also with what he might have received by proper care. Gilbert v. Guptil, 34 Ill. 112; Rowan v. Kirkpatrick, 14 id. 11; Perry on Trusts, 468, 470, 471; Bond v. Lockwood, 32 Ill. 214; Hill on Trustees, mar. page 375. And. with annual interest thereon. Bond v. Lockwood, 32 Ill. 314; 2 Sutherland on Damages, 238; Sedgwick on Measure of Damages, 209, note.
    The answer of appellees to the cross-bill of Francis Woolley also sets up the fact that he had made his election to take under the will, and therefore can not claim against its express provisions. The doctrine of election is fully settled in the following authorities: 1 Jarman on Wills, 443; 2 Williams on Executors, 1449; 2 Redfield on Wills, 357, 362; Wilbanks v. Wilbanks, 18 Ill. 20; 1 Sandf. Ch. 387; 16 Wend. 141.
    In the case of a verbal contract, to which the Statute of Frauds is successfully pleaded, the recovery is not had upon the contract, but upon the theory of a rescinded or invalid contract, and a quantum meruit. This is the measure of compensation stated in the cases cited by appellant, and also by the following authorities: 2 Sutherland on Damages, 226; Fuller v. Feed, 38 Cal. 29; McClowry v. Groghans, Admr. 31 Pa. St. 22; King v. Thompson, 9 Pet. 204.
   Mr. Chief Justice Mulkey

delivered the opinion of the Court:

The appellees, Florence A. Schrader and Benjamin D. L. Woolley, on the 27th day of May, 1881, filed in the circuit court of Whiteside county a bill for the partition of certain lands, hereinafter mentioned, against Hartson C. Woolley, Francis M. Woolley, and others. The defendants not named were formal parties, merely, and have no interest in the questions to be determined. The appellant, Francis M. WMolley, filed a cross-bill, in which he claimed to be the exclusive owner of one of the tracts sought to be partitioned. The court, upon the hearing, found all the lands subject to partition, as prayed for in the original bill, and entered a decree accordingly, from which Francis M. Woolley alone has appealed to this court.

It appears that Benjamin F. Woolley, the father of the parties above mentioned, and through whom all of them claim, died testate some time in December, 1872, leaving Margaret Woolley, his widow, and five children, viz., Maria, Hartson C., Francis M., Florence, and Benjamin D. L., the last two being then minors; that at the time of his death he was the owner, subject to certain incumbrances and alleged equities, of five farms in Whiteside county, severally known as the “Platt Farm, ” the “Watson Place, ” the “Old Homestead, ” the “Gennessee Farm” and the “Jordan Farm,” containing, respectively, one hundred and twenty; eighty, one hundred and sixty, eighty, and ninety-two acres. The tract last mentioned, and which is the main cause of the present <contro_versy, was purchased in 1863, of one Alexander, for Francis, though the deed was taken in his father’s name, with the understanding that the premises were to be conveyed to Francis upon his father being reimbursed all advances made by him on the purchase. In pursuance of this arrangement, Francis took possession of the place and made valuable improvements thereon, amounting to $800 or $900. He was residing on the place at the time of the old man’s death, in 1872, and continued to so reside on it, without accounting to any one for the use and occupation thereof, up to the time of filing this bill.. It is also shown by the master’s report, which we can not say was unwarranted by the proofs, that Francis paid to his father, in his lifetime, on account of the purchase of this land, altogether, $2297.81. A reference to the time of these payments satisfactorily shows that there was but little, if anything, due from Francis to his father on account of the purchase of the land, at the time of his death, and if there were no other facts affecting the question besides those we have mentioned, we would have no hesitancy in holding that this piece of land was not subject to partition between the devisees under the will, as is directed to be done by the decree in this case, and that the court therefore erred in not granting Francis the relief prayed for under his cross-bill. But there are other important facts in the case to be considered.

By his last will and testament, Benjamin F. Woolley directed all the lands above mentioned, except the Platt farm, which constituted the .then homestead, should be equally divided between his three sons and his daughter, Florence, subject to the limitation that Francis was to be reimbursed for the improvements made by him on the Jordan farm; but the cost of such improvements was not, in any event, to exceed $800. The method of ascertaining the value of the improvements was expressly provided for by the will. It directed that they should be valued by three disinterested persons, two of whom should be chosen by the executors of the will, and the two thus selected should choose the third. Hartson and Francis were made executors of the will without being required to give bond, and upon their father’s death the will was duly probated, and they formally assumed the office and trust of executors. By a further provision of the will, Francis was appointed guardian of Florence, and Hart-son of Benjamin, but neither of them ever entered into bond as guardian, and they severally deny having assumed that relation or trust. The widow, within the year, renounced the provisions of the will, and elected to take under the statute. She and the minor children, together with Hartson, retained possession of the Platt farm about seven years, when that place was sold out in satisfaction of the incumbrances upon it. The Watson place was then assigned to her for dower in the remaining lands, and she thereafter accepted that as a homestead. Hartson and Francis, upon the-death of their father, took charge of the entire estate, consisting of these farms and some $5000 worth of personal property, a large portion of which was squandered by them, particularly by Hartson, who is wholly insolvent. The farms, other than the one claimed by Francis, were kept rented out, or were cultivated by Hartson himself, and the rents were mainly collected by him, though a portion of them were collected by Francis. The rents were applied, in part, to the support of the widow and her family, of which Hartson and the two minor children, as we have already seen, were members.

The court, on the hearing, directed an account to be taken of the rents and profits of these farms, except the Platt farm, and except, also, the Watson place, during the time it was occupied by the widow and her family as a homestead. In stating the account, Francis was charged with what'the proofs showed was a fair rental value of the Jordan place; also, with $275 received by him, in 1875, for right of way over a portion of the Platt farm. On the other hand, he was credited with all payments made by him on account of its purchase, together with all taxes and improvements thereon. Interest was allowed on both sides of the account. Stating the account in this manner, Francis’ credits amounted to $6475.12, and his debits to $5326.27, leaving a balance due him from the estate, of $1148.85. As this sum is due from the four devisees, including Francis himself, one-fourth of it' should-bé-deducted from ■ his share 'of the proceeds of the" sale of "the lánd'to bé divided, and' this the decree so orders. But it is claimed by appellant that the decree requires the other three-fourths to be paid out of the gross proceeds of such sale, which would require him to pay one-fourth of the remaining three-fourths. That, of course, ought to be paid exclusively out of the proceeds belonging to the other three devisees. If this claim was true, the decree would certainly be erroneous -in the respect stated, but we do not so understand- it-."- All of its 'provisidhs-. considered, we think a fair'construction of it Requires three-fourths of the balance found due Francis to be paid out of the proceeds of sale belonging to the other thre'e children, and so the fund must be distributed.

The main point in the case, however, is the refusal of the court to decree, under the cross-bill, a specific performance of the contract between Francis and his father for the purchase of the Jordan farm. As already indicated, we are of opinion that’at the time of his father’s death Francis was entitled to a specific performance of the contract, and consequently-the only-question to- be determined is, whether he has subsequently so- acted as to estop him from asserting such fight.' It is a familiar principle that one claiming under a will'must accept its provisions as a whole, or not at all. While he is seeking "'to enforce such provisions as are favorable to himself; he can not be heard to question other provisions which are. against his interests. In such case the party is put to his election whether he will take under the will or not. If he accepts anything under it, he must submit to whatever it takes from him,—in other words, he must accept it as a whole, or reject it altogether. The principle is thus stated in 2 Jarman on Wills, side page 443 : “He who accepts a benefit under a will must adopt the whole contents of the instrument, conforming to all its provisions, and renouncing every right inconsistent with it. ” By way of illustrating the principle, the author then adds: “If, therefore, a testator has affected to dispose of property not his own, and has given a benefit to the person to whom that property belongs, tbe devisee or legatee accepting the benefit so given to him must make good the testator’s attempted disposition. But if, on the contrary, he chooses to enforce his proprietary rig]its against the testator’s disposition, equity will sequester the property given to him, for the purpose of making satisfaction out of it to the person whom he has disappointed by the assertion of those rights. ”

The doctrine thus announced was fully recognized by this court in Wilbanks v. Wilbanks, 18 Ill. 17, and such is conceded to be tbe general current of authority on tbe subject. Under special circumstances there may be difficulty in the •application of the rule, but there can never be any doubt as to the existence of the rule itself. This may happen where the testator has a moiety or limited interest in the subject of tbe devise, and a devisee who is sought to be put to his election has the residue. Where, in such case, tbe subject of the property thus circumstanced is given to.a stranger in terms sufficiently general to pass the entire interest, whether the devisee having the residuary interest in it will be put to his election, will depend upon whether it was the intention of the testator to give the entire property to the stranger or to simply give him his own interest therein; and this intention must be gathered from a careful consideration of all tbe ■provisions of tbe will, in tbe light of all the circumstances surrounding the testator. If, when thus considered, it is found the testator intended to dispose of the entire interest, then the doctrine of election applies, otherwise not.

The appellant insists that the present case falls within the latter alternative,—in other words, it is claimed, as we understand counsel, that it was not the intention of Benjamin F. Woolley, in including the property in dispute in his will, to pass anything more than what he might be justly entitled to, on account of any part of the purchase money remaining unpaid, about which there had never been any final settlement. There is a single provision in his will, already adverted to, which we regard as wholly inconsistent with this theory. If the testator had no other purpose in disposing of this property than the one suggested, how is that provision of the will to be accounted for which requires Francis to be reimbursed for the cost of improvements made by him on the place ? Upon the hypothesis that the testator intended to put this place on a common footing with the other three, and to divide the four among Florence and the three boys, “share and share alike,” as expressed in the will, nothing could have been more natural or consonant with justice than to have required, as he did, that Francis should be reimbursed for the cost of the improvements made upon that place; and that this is the true construction to be placed upon the will we have not a particle of doubt. That the appellant has in various ways recognized the validity of the devise of this piece of land we think is equally clear. Appellant not only qualified as executor, and assumed the duties imposed upon him as such, without in any manner protesting or questioning the devise of this land, but he and Hartson, as executors, made an inventory of it as part of the land belonging to the estate, and in pursuance of the directions of the will proceeded to estimate the value of the improvements made upon it by Francis. Other acts might be mentioned recognizing the validity of the devise of this land, but it is unnecessary to do so, for in this very suit he is asserting a claim to an interest in the other lands, which we have already seen he is not permitted to do, except upon the condition he accepts the provisions of the will as a whole.

The position is next assumed, that conceding appellant to be a mere tenant in common of this tract of land, he is not liable to account to his co-tenants for the mere use and occupation of it. It is true, as claimed, that by the common law one tenant in common had no remedy against his co-tenant on account of rents and profits of the common estate, unless the latter had been appointed bailiff of the former, in which case he was liable not only for actual receipts, but also for what he might have received by the exercise of reasonable diligence, or at least without willful fault. (Bacon’s Abr. 32; Coke on Littleton, 209 b.) To remedy the defects in the law in this respect, the statute of 4 and 5 Anne, chap. 16, was passed, which provided that “actions of account shall and may be brought * * * by one joint tenant and tenant in common, his executors and administrators, against the other, as bailiff, for receiving more than comes to his share or proportion, ” etc. To make out a case under this statute, by one co-tenant against another, it was necessary for the plaintiff to allege and. prove the fact of the co-tenancy, their relative interests in the subject of the tenancy, and that the defendant had received more than his share of the rents and profits. Just what constitutes receiving more than one’s share, within the meaning of the statute, is not always easily determined from the authorities, nor do we deem the question of sufficient importance, so far as this case is concerned, to enter upon a review of the cases, with the view of eliminating the correct rule on the subject. Our own statute relating to the action of account is in the main modeled after the statute of Anne, and in many respects is substantially the same. Our own act, however, is clearly broader than that act. Ours makes any co-tenant liable who “shall take and use the profits or benefits” of the common estate “in greater proportion than liis or her interest,” liable to account. The word “take” does not occur in the English statute, and much significance is attached to its absence by Lord Cottenham, in Henderson v. Eason, 17 Ad. & El. (N. S.) 701,—the leading English case on the subject. That case holds there is no liability to account, under the statute of Anne, for mere use or occupation, however profitable it may have been; that it is only where the tenant receives from another more than his share of the money or other thing on account of the subject of the tenancy, can he be held liable to account to his co-tenants. Thus it is said in Henderson v. Eason, supra, a co-tenant “is to account when he receives, not takes, more than comes to his just share.” And further on it is added: “But when we seek to extend the operation of the statute beyond the ordinary meaning of the words, and to apply it to cases in which one has enjoyed more of the benefits of the subject, or made more by its occupation than the other, we have insuperable difficulties to encounter.” This view is not only the settled doctrine of the English courts, but it is the prevailing doctrine in this country, where the statute of Anne has simply been adopted; but where, as in our own State, it has been adopted with material modifications, it has led to corresponding differences in the rulings of the courts of this country. While it was supposed, in the case just cited, that an attempt to extend the statute of Anne to cases where there had been a mere enjojnnent of benefits, would lead to “insuperable difficulties, ” yet by the express terms of our own act the tenant is required to Recount to his co-tenant for “benefits” as well as profits, and we fail to perceive any difficulty in giving effect to this provision of the statute that may not arise in any case where the value of anything is to be ascertained from opinions of witnesses or extrinsic circumstances,—particularly in a case like the one before us.' The farm in question belonged to the four children, “share and share alike.” It would, as shown by the proofs, have readily rented to others at $315 per annum. Its use was worth just that amount of money. Appellant, instead of letting the place to others, and collecting annually that amount of money as rental, and paying over to his brothers and sister their respective shares, appropriated the entire use of the farm to himself. To the extent of their interest it was, in effect, appropriating to his own use that amount of money belonging to them, and the question is, shall he account for it ? We have no hesitancy in saying he shall. In the language of our own statute, he has taken the “use ” and “benefits ” of their interest in the land, and it is nothing more than simple justice that he should account to them for it. The propriety of the rule here announced is well illustrated by the facts in' this case. If the contrary rule should be adopted, minor children, in eases like this, would be left at the mercy of the older children.

The other points made in the case we do not regard as of sufficient importance to require special notice, or as affording any ground for a reversal of the decree.

For the reasons stated the decree will be affirmed.

Decree affirmed.


author: Mr. Justice Soholfield Per Curiam :

text:
    Adolph Le Moyne et. al. v. The West Chicago Park Commissioners.

      Filed at Ottawa January 25, 1886

      Rehearing denied March Term, 1886.

    1. Special assessment—by park commissioners under the act of 1869 —notice of application for confirmation. Under section 13 of “An act to amend the charter of the city of Chicago, to create a board of park commissioners, and authorize a tax in the town of West Chicago, and for other purposes, ” approved February 27, 1869, the notice of the application for confirmation of the assessments on property benefited is not required to be published three times for three successive weeks. Section 4, chapter 3, of the Revised Statutes, has no application, as the number of publications is specified in section 13 of the act of 1869, it being ten days in three daily newspapers, and by posting, etc., before the application.
    2. Same—waiver of objections to confirmation. Where the owner of land which has been assessed for benefits, under the act mentioned and the act supplementary thereto, fails to make his objections to the confirmation of the assessment, either before the park commissioners or in the circuit ■ court, he will be deemed to have waived his rights in that regard, and can not afterwards interpose such objections in the county court on an application for judgment.
    Writ of Error to the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.
    Messrs. Wilson & Moore, for the plaintiffs in error.
    Messrs. Campbell, Hamilton & Custer, and Mr. William E. Mason, for the defendants in error.
   Mr. Justice Soholfield

delivered the opinion of the Court:

This writ of error brings before us for review the decree of the circuit court of Cook county, confirming a special assessment in favor of the West Chicago Park Commissioners, and against property claimed by Adolph LeMoyne and others.

Three objections to the decree are urged as grounds for reversal: First, that it does not appear that the property assessed will be benefited by the improvement to the amount of the assessment; second, the whole cost of the improvement was levied upon the property benefited, without any apportionment between the property benefited and the public ; and third, due notice was not given of the application for the appointment of the commissioners, on the application to the circuit court for the confirmation of the assessment. We only find it-necessary to consider the last of these objections, since finding, as we do, that it is not well taken, -the other two were waived by plaintiffs in error, and can not be now considered.

It is provided by section 13 of “An act to amend the charter of the city of Chicago, to create a board of park eommissioners, and authorize a tax in the town of West Chicago, and for other purposes, ” approved February 27, 1869, among other things, that when the assessors shall have completed the assessment, as previously directed to be made, “it shall be signed by the assessors and returned to the said circuit court, and shall be filed by the clerk thereof. The assessors shall thereupon give at least ten (10) days’ notice, in three of the said daily newspapers, and by posting notices as aforesaid, of the filing of said assessment roll, and that they will, on a day therein named, apply to the circuit court for confirmation of the same, which said notice shall be published at least ten (10) days before the time fixed for such application.” (1 Private Laws, 1869, p. 349.) Counsel for plaintiffs in error contend that this does not specify the number of publications, and that therefore publication must be made as required by section 4, of chapter 3, of the Revised Statutes of 1845, which was in force at the date of this enactment. That section provides, that “in all cases in which, by law or order of court, any advertisement shall be directed to be published, and the number of publications shall not be specified, it shall be taken and intended that such advertisement shall be published for three times for three consecutive weeks.” We can not coincide in this view. Had it been intended that publication should be made under this section, then, undoubtedly, the legislature would have provided that the first jmblieation should have been at least at such a time that there could have been the publication for three times for three consecutive weeks before the day at which application should be made for confirmation of the special assessment, which is not possible if the first publication be no more than ten days before that time. But the number of publications to be made under section 13, supra, is specified. The language is, “give at least ten days’ notice in three daily newspapers, and by posting notices,” etc.,—i. e., by publication in three daily newspapers, and posting notices, ten days before the application for the confirmation of the assessment.

This question was not considered in Andrews v. The People, 83 Ill. 529. The objection was raised there, but it was thought a sufficient answer to show that the record did not sustain the objection, waiving all question of whether, if sustained by the record, it was legally tenable. The record here shows, affirmatively, the requisite publication, and more, and so we hold there was ample jurisdiction to adjudicate both in respect to the person and the thing.

The section of the act of 1869, quoted ut supra, after the language quoted, provides: “Said circuit court shall have power to revise, correct, amend or confirm said assessment, in whole or in part, and may make or order a new assessment, in wdiole or in part, and the same revise and confirm upon like notice. All parties may appear before said circuit court, either in person or by attorney, when such application shall be made, and may object to said assessment, either in whole or in part, provided all objections shall be in writing, and shall be filed at least three days before the time fixed for the application, and shall specify the lot, block or parcel of land on behalf of which objection is made.”

The third section of the .act supplemental to the act above referred to, approved April 19, 1869, .provides, among other things, as follows:

“When the assessment provided for in said section 13, and in this act, shall have been completed by said assessors, the same shall be returned to the said park commissioners, who shall fix a day upon which.they will review, revise and correct such assessment, and shall give at least ten days’ notice, by publication in some newspaper published in the city of Chicago, of the time and place when the said commissioners will meet to consider said assessment. The said commissioners shall have power to adjourn such meeting from time to time, and in their discretion to revise and correct the assessment as to damages, benefits or otherwise, and confirm or amend the same, or refer the same back to the said assessors for revisal, or direct a new assessment to be made. Said assessment, when confirmed by the said commissioners, shall be final and conclusive upon all parties interested therein, except as is hereinafter provided. When such assessment is confirmed by the said commissioners, they shall make a copy thereof as corrected by them, and file the same, together with their certificate of such confirmation, in the court which shall have appointed such assessors; and they shall also file therewith all such objections as shall have been made to them, in writing, to said assessment, at the meeting hereinbefore provided for. And the said commissioners shall thereupon give the notice in said section required to be given by said assessors, and upon the hearing by the said court, the said confirmation shall be conclusive upon all parties interested, except such as shall have made their objections in writing, as aforesaid, and only such objections shall be considered by the court. ” 1 Private Laws, 1869, p. 355.

No objections to the validity of this section, or to that of section 13 of the act to which this act is supplemental, have been pointed out, and none have occurred to us as tenable. Assuming these sections to be valid, then, since no objections were taken, either before the commissioners or in the circuit court, to the assessment or to its confirmation, it is plain that the first and second objections have been waived by the failure to urge them at the time or in the manner thus required by the statute. Kedzie v. West Chicago Park Commissioners, 114 Ill. 280; The People ex rel. v. Brislin, 80 id. 423; Gage v. Parker, 103 id. 528; Andrews v. The People, 84 id. 28; Blake v. The People, use, etc. 109 id. 504.

The decree is affirmed.

Decree affirmed.

Subsequently, upon an application for a rehearing, the following additional opinion was filed:

Per Curiam :

A petition for rehearing has been filed herein, which has received the careful attention of the court. It is assumed therein that the foregoing opinion holds that the confirmation of the report by the “West Chicago Park Commissioners, a non-judicial body, is final and conclusive without a day in court, ” etc. It was not intended so to decide, and it is not so decided. What is held final and conclusive is a decree of the circuit court rendered in a case wherein the court had jurisdiction of the person and of the subject matter, and after ample opportunity to the appellant to interpose objection, and his failure to do so.

It is insisted the cases cited in support of that ruling are not analogous—that the question in those cases arose collaterally. Suppose that it did; where the objection goes to the jurisdiction, and if sustained will render the decree void, it is just as good in a collateral proceeding as in a direct proceeding. That which is absolutely void is of no avail anywhere. Cooley’s Const. Lim. (4th ed.) 499, et seq. *398. These cases, then, conclusively settle that these objections are not jurisdictional. Not being jurisdictional, why is it not competent for the legislature to say that they shall be deemed waived if not made so as to be passed upon by the circuit court at the time of decreeing upon the confirmation of the report? Counsel have pointed out no reason, and we are unable to recall any.

The cases the counsel cite are not in point. In City of Chicago v. Burtice, 24 Ill. 489, and City of Chicago v. Wright, 32 id. 192, the defendants appeared and filed objections, which- were sustained by the court. In Creote v. City of Chicago, 56 Ill. 422, numerous objections were filed to the report of the commissioners, which, upon objection, were overruled by the court. And in Union Building Association v. City of Chicago, 61 Ill. 440, the proceedings with reference to the original assessment were, from the first inception through every stage, held to be totally void, upon grounds having no application here, and it was held that an assessment to make up its deficiencies was also void. It was therefore impossible that the question here involved could have been considered or decided in either of those cases.

The rehearing is denied.

Rehearing denied.


author: Mr. Justice Scott

text:
    John C. Stewart v. Catharine V. Duffy.

      Filed at Ottawa January 25, 1886.

    1. Limitation—twenty years’ adverse possession. Twenty years’ adverse possession of land under a continuous assertion of ownership hostile to all others, constitutes a bar to any right of entry by one not within any saving clause of the statute, claiming paramount title, whether the claim of the party in possession is rightful or not, or even under a muniment of title.
    2. A daughter, under a parol gift of her father, entered into possession of a tract of laud in 1856, and continued to occupy the same ever since. Prior to the death of her husband, in 1862 or 1863, the taxes were paid in his name, and after that in her own name, during all which time her nephew, the only other heir, treated the land as belonging to her, and never claimed any interest therein, and when going into bankruptcy did not schedule any interest in the same: Held, that not only the nephew was estopped from claiming any interest in the land, but that a purchaser cf his assignee was equally concluded, and barred of any right of entry.
    3. Sedation of trust and confidence—of rights acquired thereunder. Equity will not permit a party to obtain an unconscionable advantage of another whom he has assumed to'serve, even though the services he proposes to render would be gratuitously bestowed. If he consents to act through mere friendship, he must do so in good faith, and he will not be allowed to take advantage Of or profit by his relation.
    4. Where one occupies the relation of a friend and confidential adviser of another, who reposes confidence in his fidelity, a court of equity will not permit the person bolding such relation to acquire rights antagonistic to the person he assumes to serve, in property about which he has undertaken to counsel and advise such person.

      5. So where the general agent and confidential adviser of a widow lady, who looked after her interests, acquired an adverse title to her land, professedly for her use and benefit, at a price greatly less than its real value, if valid, he will be decreed to convey the same to her on being reimbursed the sum paid by him for it. Before making such purchase he should have told her distinctly that if she did not wish to buy such title he wished to do so for himself. He then might have held the same adversely.
    6. Reference to master—whether necessary—in order to ascertain the cost of property on declaring a trust, and reimbursing the trustee. On bill to declare a trust and to require the trustee to convey a title acquired by him to his principal upon being repaid what it cost him, where there is no complication in the matter or difficulty in ascertaining the amount to be paid him, there is no necessity in referring the case to a master to ascertain the cost incurred by him. In such case the court may make the computation itself, if it chooses.
    Appeal from the Circuit Court of Knox county; the Hon. Arthur A. Smith. Judge, presiding.
    Mr. G. W. Thompson, and Messrs. Lanphere & Harris, for the appellant:
    That appellee has resided on the place twenty years can not avail as a defence, for the reason the Statute of Limitations is not set up by either answer or cross-bill. Borders v. Murphy, 78 Ill. 81; Nichols v. Padfield, 77 id. 253; Vanhook v. Whitlock, 7 Paige, 373; Dey v. Dinham, 2 Johns. Ch. 182; School Trustees v. Wright, 12 Ill. 441; Story’s Eq. PI. secs. 484, 760.
    Where an heir resides with the ancestor at the time of the death of the latter, it requires cleár and satisfactory proof of a subsequent disseizin of a co-heir to characterize such possession as adverse, so as by lapse of time to bar the right of entry of the co-heir. The subsequent possession is not adverse. Ball v. Palmer, 81 Ill. 371; Nicoll v. Scott, 90 id. 529; Dugan v. Huston, 100 id. 582; Busch v. Huston, 75 id. 347; Warfield v. Lindell, 38 Mo. 581.
    Stewart even brought himself within the strict rule that could have been applied had he been appellee’s attorney, and learned all about the adjudication in bankruptcy from her, and been consulted by her as' to the propriety of her buying the interest of Smythe. Story’s Eq. Jur. sec. 310; Gibson v. Jeyes, 6 Ves. 278; Jones v. Thomas, 2 Y. & Coll. 498.
    He was not her attorney and adviser in respect to this matter, a’nd the proofs show he was not.
    Under the finding of the circuit court, the case should have been referred to the master in chancery to report the amount. Steere v. Hoagland, 39 Ill. 264; Bressler v. McCune, 56 id. 475; Riner v. Touslee, 62 id. 266; Groch v. Stenger, 65 id. 481; Moshier v. Norton, 83 id. 525.
    Messrs. Williams, Lawrence & Bancroft, for the appellee:

      • Appellant’s position towards appellee, and her interests in this matter, was such that he was interested for her, and hence he was ■ prohibited from' acquiring rights therein antagonistic to her. The rule applies hot only to attorneys and agents, but also to those occupying any position out of which a similar duty ought, in equity and good morals, to arise. Bispham’s Principles of Equity, secs. 92, '93, p. 133.
   Mr. Justice Scott

delivered the opinion of the Court:

The bill in this case was exhibited in the circuit. court of Knox county, against Catharine V. Duffy, and is for the partition of a certain tract of land described in the bill, and was filed April 20, 1883. Both parties.concede the title was originally in Francis McDonough, since deceased. He obtained a patent to the land from the government of the United States in 1817, and never made any conveyance thereof to any one. The theory of complainant’s bill is, the original owner, died intestate, and that the land • therefore passed to his heirs at law by descent. There does not seem to be any very definite evidence in the record as to the time of the death of Francis McDonough, but. it is conceded his death occurred as early as 1856. Surviving him was óne son, Lawrence McDonough, one daughter, now Mrs. Catharine V. Duffy, and one grandson, George B. Smythe, the son of a daughter who had died before her father. Afterwards, Lawrence McDonough died intestate, without ever having been married, and leaving as his only heirs at law, his sister, Mrs. Catharine V. Duffy, and his nephew, George B. Smythe. In that way the bill alleges the title to the whole tract of land vested in Mrs. Catharine V. Duffy and George B. Smythe.- Afterwards, George B. Smythe, it seems, became a bankrupt, and such proceedings were had by his assignee that the interest the bankrupt was supposed to have inherited from his grandfather and deceased uncle, was sold to complainant for the sum of fifty dollars, but at his request, the assignee made the conveyance to M. M. Tilton, who subsequently reconveyed the property to complainant. It is in this way complainant claims to be the owner of one undivided half of the tract of land involved in this litigation. On July 6, 1883, defendant, Mrs. Duffy, filed her answer to the original bill, in which she admitted her father, Francis McDonough, had been the owner of the land in his lifetime, hut averred that before his death, in consideration of natural love and affection, he gave the land to her and put her in possession, and from that time she had remained in possession, making improvements as owner, and that during all that time she claimed to be the absolute owner, and therefore she denies that George B. Smythe, the son of her deceased sister, ever inherited any interest in the land, either from his grandfather or from his uncle. Afterwards, defendant filed an amended answer, in which she stated that any and all interest acquired by complainant under the conveyance from the assignee, from the bankrupt, Smythe, were procured in fraud of her rights; that he was her trusted adviser concerning her interest and.title to the premises in question, and to whom she confided all her business, and hence he is estopped to claim any title to such premises as against her, and that he holds the same as trustee for her, subject only to be reimbursed for any disbursements and expenses incurred in the matter, which she was ready and willing to repay on receiving a conveyance from complainant. Afterwards, defendant filed a cross-bill, in which she stated the principal facts contained in her original and amended answer, and claimed affirmative relief against complainant, whom she made defendant to her cross-bill. On the final hearing of the cause the court dismissed the original bill for want of equity, and granted relief on the cross-bill of defendant, upon terms fixed by the court in its decree.

There are many equitable considerations in support of the decree, and it is thought it is sufficiently sustained by the evidence to permit it to stand. Twenty years’ adverse possession of land under a continuous assertion of ownership hostile to all others, will constitute a bar to any right of entry by one not within any saving clause of the statute, claiming to have paramount title, whether the claim of the party in possession is rightful, or even under a muniment of title. (Turney v. Chamberlain, 15 Ill. 271; Kerr v. Hitt, 75 id. 51.) The evidence is quite sufficient to warrant the conclusion defendant was in the adverse possession of the premises for more than twenty years prior to the filing of the bill in this case. It is evident she entered upon the premises as early as 1856, and this bill was not filed until 1883. There is little room to doubt she entered under a parol agreement with her father that he would give her the land, which he did, and enjoined upon her not to sell, but to keep it for a home for herself and family. Since then she has occupied the premises under a claim of ownership, making improvements upon them and asserting that dominion over the property a rightful owner may do. When she first took possession, her husband, Michael Duffy, was living, and resided with her on the premises. Prior to his death, which occurred in 1862 or 1863, the taxes on the entire tract were paid and the receipts taken in the name of the husband. After his death Mrs. Duffy paid the taxes herself. These facts would seem to bring the case within the provision of the statute that forbids any person to commence an action for the recovery of lands, or make any entry thereon, unless within twenty years after the right to bring such action or make such entry accrued. (Sec. 1, chap. 83, Rev. Stat. 1874.) Here was continuous adverse possession, open and notorious, for nearly thirty years, under claim of ownership, with the super-added fact of payment of 'taxes 'during that entire period. There was no one that could have disputed her title, unless it was George B. Smythe, a grand-son of her donor. The evidence is full to the point he always treated the land as belonging to defendant: In the receipt he took .for erecting a fence on the premises, which he wrote himself, he referred to the farm as defendant’s farm.' So in conversation with the neighbors concerning it, he spoke of the farm as the property of defendant, and never attempted to assert any claim to it of to interfere in any way with her possession. It seems he tried to get the neighbors tó induce' her to sell it,—not a part of it, but the whole of it,—and re-invest the money for her sole benefit. "No claim was ever put forth by Smythe to any interest in the- land, and when he went into bankruptcy he did not schedule with his assets any interest in this land. Having treated the land as belonging to defendant for more than twenty years, his assignee, or any one claiming under him, is as much estopped by the statute to commence an action for the recovery of the land as Smythe himself would-be.' Stress is laid on the fact that in borrowing money defendant secured it on the undivided half of the quarter section, as showing she did not claim the entire tract. No great importance need be attached to that fact or circumstance. It did not appear she had any title of record or by inheritance to more than one undivided half, and it may have been, the parties loaning the money did not care to take security upon any part ’ of the land to which it did not appear she-had a perfect title, derived .through mesne conveyances, from the government or otherwise. That is all very businesslike, and by no means proves she did not claim ownership to the entire tract. There was clearly no error in dismissing the original bill, as was done, for want of equity.

The remaining question is, whether the decree on defendant’s cross-bill, giving her affirmative relief, can be sustained. Whether he was her legal adviser in any technical sense or not, it is certain complainant was her trusted and confidential adviser and agent in a good many matters. One witness says he drew leases for her for this land, and her private papers were left in a box in his safe. She often told him that Smythe did not, and never would, claim any interest in the land, and that it was her land. He says he advised, after Smythe went into bankruptcy,'to save trouble she had better get an assignee’s deed for it, but she insisted it was not necessary, as Smythe claimed no interest whatever in the land. It was known to complainant the land had not been included by the bankrupt in his schedule of assets. When he first wrote to the assignee to buy the land, it was for defendant, and he represented himself as doing it in her interest. In his letter to the assignee he stated .to him the land had not been included in his schedule by the. bankrupt; that it was in the adverse possession of defendant; that she had said to him Smythe would not make any claim to it, and, as she is advised, that as she had lived some forty years on it, his claim is of no account. He added he would much rather defendant would have the ■ deed, but as she refused, he would pay the amount he had proposed for her,— that is, fifty dollars,—the deed to be made as he should direct. After having entered into negotiations with the assignee in bankruptcy for the obtaining of a deed from him to defendant, as her agent and trusted adviser, he could not himself buy without first disclosing to her his purpose so to do, and getting a release from h,er of his obligations to her arising out of that agency. It was by representing to the assignee that she had occupied the premises “some forty years” under claim of ownership, and for that reason any claim Smythe might make would be of “no account,” he obtained from the assignee a deed to the property for fifty dollars, that was then known to him to be reasonably worth four thousand dollars. That was bad faith towards defendant, 'for whom he had assumed to act in the first instance. Equity will not permit a party to obtain an unconscionable advantage of another whom he has assumed to serve, even though the services he proposed to render would be gratuitously bestowed. This court has said, in McDonald v. Fithian, 1 Gilm. 269: “If he (a party) consents to act in the relation of mere friendship, so far as he acts he must do so in good faith. ” The relations complainant had assumed towards defendant, no matter how they may be defined, were such he would be prohibited in law from acquiring rights in the property antagonistic to hers, about which he had undertaken to advise and counsel her. He should, in the first place, have disclosed to her, distinctly, if she did not wish to buy the assignee’s title, whatever it was, that he wished to do so himself, and would then hold it adversely to her. This he did not do—at least she denies that he did, and the court trying the cause has found in her favor as to the weight of the evidence. While no fraud, or even fraudulent conduct, in fact, may now be imputed to complainant, it seems quite clear his position and relations to defendant were such that he could not rightfully buy the property for himself, and if he obtained any title at all—which it is not conceded he did—he must be treated as having done so for defendant, and that title he will and ought to be required to surrender to her, on beihg reimbursed for the expenses incurred in that behalf. As the decree does no more than to grant that relief, it is right, and must stand.

It is insisted it was error not to refer the cause to the master, to ascertain the expenses incurred by complainant in procuring the assignee’s deed. That was not necessary. There was no complication about the matter, nor could there be any difficulty in ascertaining the amount. In such cases the court may, if it chooses to do so, make the computation without referring the cause to the master, and such is the usual practice.

The decree is warranted by the law and the evidence, and will be affirmed. ■

Decree affirmed.