author: Mr. Justice Mulkey Mr. Justice Walker

text:
    Patsy Devine v. The People of the State of Illinois.

      Filed at Springfield September 30, 1881.

      1. Evidence—in capital cases. Where a person is on trial upon the charge of murder, and the evidence relied on to connect the accused with the offence is entirely circumstantial, it is highly important to him, as well as essential to the due administration of justice in the prosecution of the case, that the State should be held to at least a substantial, if not a strict, observance of the well established rules governing the production of testimony, in its efforts to establish the charge against him. No matter or thing should be admitted in evidence, against the objections of the accused, which does not prove or tend to prove the issue, more especially if the evidence, when admitted, would have an improper influence upon the minds of the jury, or place the accused at a disadvantage before them.
    2. Same—of the theory of witness and others as to guilty party. On the trial of one for murder, where the only evidence relied on to connect the prisoner- with the crime was circumstantial evidence, a captain of the police was allowed to testify that on the night of the homicide he saw another person and learned what he knew about the prisoner and another, and that he and the police formed the theory that the prisoner and such other person did the shooting of the deceased: Held, that the admission of this testimony was unjust to the accused, and clearly erroneous.
    3. Amending bidd of exceptions—in vacation. While the mere settling and signing of a bill of exceptions may not be the exercise of judicial power, yet when one is once signed, sealed, and filed in the proper office, it becomes a part of the record, and, like other portions of the record, it imports a verity, and no plea or averment will be admitted which questions the truth of what it imports.-
    4. If what purports to be a record has been so made up by the clerk or other officer as not to speak the real facts, it must be amended so as to conform to them, and this can only be done by the court whose record is sought to be amended. If substantial amendments of the records of court are to be made, based upon extrinsic testimony, it can only be done on due notice, after a solemn adjudication of the matter in open court.
    5. In this case, after a bill of exceptions had been settled, signed and sealed by the judge who presided at the trial of the cause, and was filed in the proper office, and while the cause was pending on error in this court, the same judge who tried the cause in the court below, upon notice to the party to be affected, in vacation, and in a county other than that in which the cause was tried, signed and sealed a supplemental bill of exceptions, which purported to amend the record of the original bill of exceptions in a material point concerning the evidence. It was held, not competent for^the judge to make the amendment at chambers and in vacation.
    Wbit of-Ebbob to the Circuit' Court of DeWitt county; the Hon. Albebt Gr. Bubb, Judge, presiding.
    Mr. W. C. P. Bemine, and Mr. Joseph W. Jones, for the plaintiff in error,
    made the following among various other points:
    Evidence of a distinct substantive offence shall not be admitted as proof of the commission of the offence for which the defendant is on trial; a fortiori evidence of ah intention to commit a different offence should not he received. 1 Phillips on Ev. (6th Am. ed.) 477; 1 Wharton’s Crim. Law (7th ed.) secs. 639-640, and note n; Kribs v. People, 82 Ill. 425; Gifford v. People, 87 id. 211.
    The court erred in admitting the testimony of officer J. P. Butler, which was as follows: “That night I saw Mike McHugh and learned what he knew about Devine and Williams, and we of the police formed the theory that they were the men that had done the shooting” The natural and inevitable result of such testimony must have been to convince the jury that the police officers, who are supposed to be skilled in the detection of criminals, possessed facts which the forms of law excluded, showing defendant to be guilty.
    The writing filed, which purports to be an amendment of the original bill of exceptions, should be stricken from the files or disregarded, because the amendment was not made in open court, but in vacation, and is therefore void. The act of the judge was extra-judicial.
    The bill of exceptions being a record when signed, sealed and filed, can be amended only in the manner that any other-part of the record of the case could be,—that is, in open court in term time, and upon notice. Wallahan v. People, 40 Ill. 102; Goodrich v. City of Minonk, 62 id. 121; Newman v. Ravenscroft, 67 id. 469.
    Mr. William H. Booth, State’s Attorney of DeWitt county, and Messrs. Fifeb & Phillips, for the People.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Thomas Coyne, alias Patsy Devine, and Henry Williams, were indicted in the McLean circuit court, at its April term, A. D. 1880, for the murder of Aaron Goodfellow. Devine alone was taken, and plead to the indictment at the same term of court. Upon his application, at the following September term the venue was changed to DeWitt county, where, at the December term, 1880, of the DeWitt circuit court, he was tried before the court and a jury, and found guilty in manner and form as charged in the indictment, and duly sentenced to be hung on the 14th of January, 1881. To reverse this conviction the present writ of error is prosecuted.

The evidence shows that the deceased, Aaron Goodfellow, on Monday night of the 4th of August, 1879, about fifteen minutes past nine o’clock, was assaulted in the streets of Bloomington by two strangers, and in course of the struggle received two gunshot wounds, from which, on the following morning, he died. No one saw the transaction but the deceased and his assailants, and the evidence relied on to connect the accused with the offence is entirely circumstantial. In view of this fact, and the further consideration that the life of the accused was involved in the issue, it became highly important to him, as well as essential to the due administration of justice in the prosecution of the case, that the State should be held to at least a substantial if not a strict observance of the well established rules governing the production of testimony, in its efforts to establish the charge against him. The trial should have been conducted with the utmost fairness, and no matter or thing should have been admitted in evidence, against the objections of the accused, which did not prove or tend to prove the issue, more especially if the evidence, when admitted, would have had an improper influence upon the minds of the jury or place the accused at a disadvantage before them. Without expressing any opinion whatever upon the sufficiency of the testimony to sustain the conviction, we do not think the rule here indicated was sufficiently observed.

J. P. Butler, captain of the night police of the city of Bloomington, and a witness on behalf of the People, testified, among other things, against the objection of the accused, that “that night (the night of the homicide) I saw Michael McHugh, and learned what he knew about Devine and Williams, and we of the police formed the theory that they were the men that had done the shooting.”

The admission of this testimony was unjust to the accused, and clearly erroneous. Indeed, this is not seriously questioned, but it is claimed, as a matter of fact, that this portion of the original bill of exceptions is untrue, and in support of this hypothesis defendants in error rely on a. supplemental record, which purports to be an amended bill of exceptions, in which it is recited that that portion of Butler’s testimony above mentioned, and to which exception is taken, “is stricken out, ” and other statements of the witness, less objectionable, substituted in its place. The original bill of exceptions was settled, signed and sealed by the learned judge who tried the cause, on the 7th day of January, 1881, and on the same day was duly filed in the office of the clerk of the DeWitt circuit court, and thereby became a part of the record of the cause. After the ease was brought to this court, it was discovered, as is claimed by defendants in error, that the bill of exceptions was erroneous in the respect we have mentioned, and with a view of correcting it, a diminution of the record was suggested, founded upon affidavit; whereupon a rule was issued out of this court, requiring the clerk of the circuit court to send up a complete record of the cause; in answer to which there was filed in this court a transcript of what purports to be an additional or supplemental bill of exceptions, upon the filing of which plaintiff in error interposed a written motion, supported by suggestions verified by oath, to strike the same from the files, and this motion was reserved for the final consideration of the case.

Upon examination of this so-called supplemental bill of exceptions, and the suggestions in support of the motion to strike it from the files, it appears that after the record was filed in this court, to-wit, on the 19th day of January, 1881, counsel for plaintiff in error was served with notice by defendant in error to appear before the Hon. A. dr. Burr, who heard said cause, at the Leland Hotel, in Springfield, at the hour of 7 o’clock P. M. of the 24th’ of the same month, to show cause why the former bill of exceptions, then a matter of record, should not be amended in the respect heretofore mentioned; that without any appearance on the part of plaintiff in error, the said judge, in pursuance of said notice, did, at the time and place therein specified, make out, under his hand and seal, the above mentioned additional or supplemental bill of exceptions, wherein it purports to amend the record of the former bill of exceptions in the manner already stated.

It is a well recognized principle that judges can exercise no judicial functions in vacation, except such as they are specially authorized to do by statute. It is true the mere settling and signing of a bill of exceptions may not be the exercise of judical power, yet when one is once signed, sealed and filed in the proper office, it becomes as much a part of the record as an indictment or declaration when so filed, and, like other portions of the record, it imports a verity, and no plea or averment will be admitted which questions the truth of what it imports. If what purports to be a record has been so made up by the clerk or other official as to not speak the real facts, it must be amended so as to conform to them, and this can only be done by the court whose record is sought to be amended, and must, as a general rule, be done on due notice to all such as will be affected by the amendment. It would certainly be competent for the legislature to authorize judges to hear and determine questions of this character in vacation, but we are aware of no statute that authorizes them to do so. Wallahan v. The People, 40 Ill. 102; Goodrich v. City of Minonk, 62 id. 121; Newman v. Ravenscroft, 67 id. 469.

It follows, from what we have said and the authorities here cited, that the motion to strike the amended bill of exceptions from the files must be sustained, and the ease must be disposed of without any reference to it.

It would certainly be a dangerous precedent to establish, in the absence of any statutory" authority warranting it, to hold that the judge of a court of record might sit at chambers in any foreign county in the State that might suit his convenience or pleasure, for the purpose of hearing applications of this character. The existence of such a power would not only be fraught with danger to private and public rights, so far as they depend upon the inviolability of the records of our courts, but might lead to great abuses and hardships. If substantial amendments of the records of a court are to be made, based upon extrinsic testimony, it can only be done on due notice, after a solemn adjudication of the matter in open court.

As this case will have to-be reversed for the error already indicated, we do not deem it necessary, or even proper, to discuss the testimony, or to consider other important questions discussed by counsel in their briefs.

The judgment of the court below is reversed, and the cause remanded, with directions to award a venire de novo.

Judgment reversed.

Mr. Justice Walker

dissents.

Mr. Justice Scott was not present when this case was considered.


source: Caselaw Access Project

author: Mr. Justice Walker

license: Public Domain

text:
    Charles D. Gilmore v. Matilda Sapp et al.

      Filed at Springfield September 30, 1881.

    1. Publication—sufficiency of, in chancery, to non-resident. Where the publisher’s certificate of publication of a notice to non-resident defendants in chancery states that the paper was weekly in its publication, and that the notice was published four weeks successively, beginning on December 17, 1875, and ending on the 7th of January, 1876, it appearing that the first and last insertions were each on a Friday, it will be sufficient to show that each insertion was in a separate week, and will satisfy the statute.
    2. Multieabiousnbss—in bill no ground of reversal on default. The practice is well settled that multifariousness in a bill can not be urged as a ground of reversal of a decree rendered on a default. « •
    3. The objection that a bill is multifarious may be waived, and is so considered, unless taken in apt time and in an appropriate manner, although courts, to avoid embarrassment in the trial of a case, may, suo sponte, enforce the objection.
    4. Patent—when title passes by. Where a patent is filled, countersigned, sealed, and recorded in the general land office, the title to the land vests in the ¡person named as the grantee in the patent, without a formal delivery of the instrument, and when so vested it can not be taken away by any mere ministerial officer of the government.
    5. Any effort by a ministerial officer to cancel a x>atent which transfers title to a grantee, and reinvest the title in the government, is absolutely void, and can not affect the rights of any one, and legislative authority is incompetent to confer such power upon a land officer.
    6. Constitutional bights—as to security in property. It is a fundamental principle that before a person can be deprived of a right, even by judicial sentence, he must have notice and reasonable opportunity to be heard in defence of his rights.
    7. Supreme Court oe the United States—decision when binding on State courts. A decision of the Supreme Court as to the effect of a patent, being in relation to an act of Congress, is authoritative and binding on all other tribunals.
    8. Cloud on title—sufficiency of bill to remove. A bill which shows the establishment of a preemption right to land by one under whom the complainant claims, the issue of a certificate of purchase, and finally a patent, which was duly recorded in the general land office, and that afterwards the commissioner of the land office, without authority or notice, and without the knowledge of the patentee, set aside and cancelled the certificate of purchase and patent, and issued a patent to another, the original patentee being in possession all the time, is sufficient, on default, to authorize a decree setting aside the last patent as a cloud upon the title of the complainant.
    Writ of Error to the Circuit Court of Vermilion county;the Hon. Oliver L. Davis, Judge, presiding.
    Mr. N. M. Broadwell, and Mr. C. M. Swallow, for the plaintiff in error:
    The record fails to show a sufficient publication of the notice of the pendency of the suit. The statute requires that it “shall be published at least once in each week, for four successive weeks.” Chancery Code, ch. 22, sec. 12.
    This mode of service' being in derogation of the common law, the.statute must be strictly pursued, and no presumptions indulged. Lickins v. McCormick, 39 Wis. 313; Bradley v. Jamison, 46 la. 68; Fountain v. Houston, 58 Ind. 316.
    It is not the mere date of the issue, but the "time of publication, that the statute regards. The notice is required to be published, or made public, by putting the paper into circulation. Publication is something more than the mere printing of the paper. Hinchman v. Barns, 21 Mich. 556; Price v. Butlers, 21 Kan. 124.
    The bill is fatally deficient in showing any ground for relief against the cancellation of the Swisher entry. The allegation is: “The commissioner of the general land office, without authority or notice to and without the knowledge of the said Henry Swisher, set aside and cancelled the said purchase, and caused the said certificate of purchase and the record of said patent to be cancelled. ” The presumption being in favor of the regularity of the official acts of a public officer, a general charge such as this, without appropriate specifications, can not be regarded.
    The finding of land officers upon the facts in matters of preemption has been held conclusive by the courts, upon the familiar ground that such officers, in their findings, were acting in a quasi judicial capacity. Robbins v. Bunn, 54 Ill. 51; Gray v. McCance, 14 id. 343; Shipley v. Cowan, 1 Otto, 330; Marquez v. Frisbie, 11 id. 473.
    The bill is multifarious. Three distinct and separate tracts of land are involved in the suit, and the claimants of each tract have and claim no interest in either of the other tracts. Different complainants cannot join when the cause of action is not joint. Yeton v. Lennox, 8 Pet. 123; Armstrong v. County, 10 Ohio, 235; Story’s Eq. Pl. sec. 279.
    Mr. E. S. Terry, for the defendants in error:
    There can not be any substantial difference between the words “shall be published at least once a week - for four successive weeks,” and “published for four successive weeks, beginning with the issue dated December 17, 1875, and ending with the issue dated on the 7th day of January, 1876.”
    It is objected that it does not appear, from the finding of the record, whether the paper was a weekly, semi-weekly or monthly paper, nor that it was issued in the interval between the days mentioned. The certificate of the printer shows the paper in which the notice was printed to be a weekly paper.
    It was held in Underhill v. Corwin, 15 Ill. 556, that the certificate of the printer certifying that a notice “was inserted in said paper commencing with August 21,1852, and ending October 2, 1852—six weeks,”—would be taken to show that publication had been made for four successive weeks within these periods.
    This court has also held, that where a statute required a notice for three weeks successively, and the publication was in a weekly paper, on the 16th, 23d and 30th, the publication was sufficient. Madden v. Cooper, 47 Ill. 359.
    So, a notice published for four successive weeks, the first publication being on the 20th of March, so that sixty days intervened between the first insertion and the date of the judgment, was held good. Pierce v. Culton, 12 Ill. 364.

      It is complained that the publication in this case was made for twenty-one days only—just three weeks. The statute requires only that the notice should be published once a week for four consecutive weeks, and the notice. in this case is sufficient, though four full weeks have not elapsed between the first and last publications. Andrews v. The People, 84 Ill. 28; St. Joseph Manufacturing Co. v. Daggett, id. 556.
    Also, it is objected that different plaintiffs can not unite their claims where the cause of action is not joint.
    It is a rule-that if the grounds of the several actions joined arise out of one and the same transaction or series of transactions, all tending to the same end, and if one connected story can be told of the whole, the objection made can not apply. Story’s Eq. Pl. sec. 271. See, also, Story’s Eq. Pl. secs. 533, 535; Howard v. St. Clair Dr. Co. 51 Ill. 130; Mt. Carbon C. and R. R. Co. v. Blanchard, 54 id. 240.
    As to effect of cancellation of patent or entry, see Robbins v. Bunn, 54 Ill. 52; Baty v. Sale, 43 id. 351.
    When land is purchased and paid for, it is no longer the property of the United States, but of the purchaser. He holds for it a final certificate, which can not be cancelled by the United States, if there be no fraud or mistake. Carroll v. Stafford, 3 How. 441, and recognized by this court in Rogers v. Brent, 5 Gilm. 578.
   Mr. Justice Walker

delivered the opinion of the Court:

Complainants claim to derive title to the land in controversy under an entry made at the land office located at Dan-ville, in this State, under the preemption laws then in force. The proof of preemption was filed, the entry was made, and the money paid on the 6th day of October, 1834. The certificate of entry was issued to Henry Swisher. Afterwards a patent was issued to him for the land, but was never delivered. Swisher subsequently sold and conveyed the land to different persons, from whom complainants claim to hold title by conveyance or descent, either directly or indirectly.

The bill alleges that on the 15th day of July, 1837, the commissioner of the general land office, without authority or notice to and without the knowledge of Swisher, set aside and cancelled the purchase, and caused the certificate of purchase and patent to be set aside. The land has been in the occupancy of Swisher, and those claiming under him, since before his entry of the same. Plaintiff in error located land warrants on this land, and made an entry of the same on the 12th day of January, 1875, and procured from the commissioner of the general land office patents for the land. The bill was filed to set aside and cancel the patents issued to plaintiff in error, and to quiet defendants in error in their several titles. The bill was taken as confessed, and the relief granted, and defendant prosecutes error to reverse that decree.

Three questions arise on this record: First, was the notice of publication sufficient to sustain the decree; second, is the bill so far multifarious as to preclude the relief sought; and, third, whether the allegations of the bill, as confessed by the default, warrant the decree rendered.

On turning to the record we find the certificate of the publisher conforms in every respect to the requirements of the statute. It states that the paper was weekly in its publication'; that the notice was published four weeks successively, beginning on the 17th of December, 1875, and ending on the 7th of January, 1876. The first publication was on a Friday, and so was the last, and we must presume the intermediate publications were on the same day of the week. On turning to a calendar it will be found that if each publication was on a Friday, then each was- made in a separate week, and being four publications there was one in each, of four weeks, and the statute is satisfied.

It is, however, said, the service by publication is not according to the common law, and should be strictly according to the requirements of the statute. By various ancient statutes service was had hy proclamation, in different proceedings. Hence, since as early as the time of Richard II, such service was resorted to in a number of' different proceedings. But even if strictness is required, this certificate fulfills the most rigid requirement of the statute. Nor is there the slightest force in the suggestion that it fails to appear the papers were not circulated and made public. The certificate states the notice was published four weeks. If published, it unquestionably was made public. It also states the papers were issued, and if so, they must have been put in circulation, and the notice must have become public. To give so strict a construction would violate all canons of construction, and tend to stifle justice. It would be extremely technical, sub-serve no beneficial end, and be virtually to repeal the statute by defeating its obvious purpose.

The objection that the bill is multifarious, can only be raised by demurrer, according to strict practice. But some courts have held that it may also be raised by answer. The practice is well settled that multifariousness can not be urged as a ground of reversal on appeal or error to a decree on a bill taken pro confesso. See Luckett v. White, 10 Gill & Johns. 480; Abraham v. Plestoro, 3 Wend. 538; Grove v. Fresh, 9 Gill & Johns. 280; Thurman v. Shelton, 10 Yerg. 383; Buffalow v. Buffalow, 2 Ir. Ch. 113. We have found no case that announces a different rule of practice, and the rule accords with reason. The objection that a hill is multifarious may be waived, and is so considered unless taken in apt time and in an appropriate manner, although courts, to avoid embarrassment in the trial of a ease, may, suo sponte, enforce the objection.

It is urged, with apparent earnestness, that the hill is wholly wanting in setting up sufficient ground for granting relief. The bill sets out and alleges that the various requirements of the preemption acts of Congress had been complied with by Swisher to entitle him to enter the land; that he filed his proofs and paid the price fixed by the government on the land, and received a certificate of purchase for the land, and that a patent therefor was made out, signed, sealed, and recorded in the general land office. This vested the legal title in Swisher. The Supreme Court of the United States has held that when a patent is filled out, countersigned, sealed, and recorded in the general land office, the title to the land vests in the person named in the patent, without a formal delivery of the instrument; and as this decision relates to a construction of an act of Congress, it is authoritative and binding on all other tribunals. See United States ex rel. v. Shenz, 102 U. S. 379.

If, then, as held by that court, the fee simple title vested in Swisher when the patent was recorded, we are aware of no means by which he -could be involuntarily deprived of his title, except by a judicial proceeding. That is the only means knowm to the law. The legislative power of the government is not competent to transfer title from one person to another, nor to the government. That is beyond its power. That branch of government can only declare what acts of the owner may authorize the courts to declare that the title shall be transferred. Hence, it follows that legislative authority is incompetent, if it would, to confer such power upon a mere ministerial officer, and any effort by such an officer to cancel a patent which transfers title to a grantee, and reinvest the title in the government, is absolutely void, and can affect the rights of no one. Such an officer, under the division of the powers of our government, possesses no such authority, and can be invested with no such functions. The act, then, of the commissioner of the general land office, in setting aside and annulling the entry and patent, was void, and did not produce the slightest effect on the title of Swisher.

Again, even if the commissioner had the power, he could not exercise -it until Swisher had actual or constructive notice of the proceeding, or entered his appearance, and the bill charges and the default confesses there was no such notice. It is a' fundamental principle that béfore a person can be deprived of a right by judicial sentence, he must have notice and reasonable opportunity to be heard in defence of his rights. This is so elementary that it must be known to all persons in the profession, if not to all others.

We perceive no error in this record, and the decree of the court below is affirmed.

Decree affirmed.


author: Mr. Justice Sheldon

text:
    Champaign County v. Thomas A. Reed.

      Filed at Springfield September 30, 1881.

    1. Taxation—exemption of lands of Illinois Central Railroad Company. Lands selected, by the Illinois Central Railroad Company, under the act of Congress on that subject, are liable to taxation when sold by the company and paid for, although no conveyance may have been made.
    2. Same—application to refund. On an application to the county board for the refunding of taxes erroneously collected or paid, on the ground the land was not subject to taxation, the board may well refuse to have the same refunded, where they have not reasonable grounds to be satisfied that the property is not liable to taxation.
    Writ oe Error to the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.
    Mr. M. W. Matthews, State’s Attorney, and Mr. Francis M. Wright, for the plaintiff in error.
    Mr. J. W. Sim, for the defendant in error.
   Mr. Justice Sheldon

delivered the opinion of the Court:

At a meeting of the board of supervisors of Champaign county, in September, 1878, Thomas A. Reed applied to have refunded to him certain moneys paid by him at a tax sale of lots in the town of Tolono, Ill., made in 1868 for the taxes of the year 1867, together with the taxes paid on s.aid lots since that time, on the ground that the lots were assessed before they became taxable. The amount paid at the tax sale was $198.74; the subsequent taxes were $203.35, making, in the whole, $402.09. The board disallowed the claim. On appeal to the circuit court, judgment was rendered against the county for the whole amount of the claim. The county brings the case here on error.

The application was made under section 268, Rev. Stat. 1874, p. 902, which provides: “If any real property shall be * * * assessed before it becomes taxable, and the taxes so erroneously assessed shall have been paid, either at sale or otherwise, * * * the county board, on application of the person paying the same, or his agent, and being satisfied of the facts in the ease, shall cause the State and county taxes to be refunded, pro rata, by the State and county, and the city and incorporated town or village taxes and special assessments by the city or incorporated town, village, or other proper authorities or persons. ” There was a stipulation in the case that the claim as filed by Reed was correct as respects the lots and amount paid at the tax sale and for subsequent taxes; that the lots are a part of the southeast quarter of section 26, town. 18 north, range 8 east, which quarter section is a part of the lands selected by the Illinois Central Railroad Company under the act of the legislature of this State chartering that railroad company; and that on December 12, 1856, the company and one John C. Smith entered into a written contract, which is made part of the stipulation, whereby the company, in consideration of the payments stipulated to be made, agreed to sell to Smith the quarter section for the sum of $25,000, of which $3000 was paid down, and the residue was to be paid in five annual payments, the last one on December 12, 1861, with a provision of forfeiture on failure of making punctual payment. It was agreed that the question to be tried was whether the lots were taxable at the time they were assessed and sold, and for the years the subsequent taxes were paid. The foregoing are all the facts appearing in the case.

Section 22 of the charter of the Illinois Central Railroad Company provides: “The land selected under said act of Congress, and hereby authorized to be conveyed, shall be exempt from all taxation under the laws of this State until sold and conveyed by said corporation or trustees, ” etc. The quarter section in question is embraced within this provision.

In Illinois Central R. R. Co. v. Goodwin, 94 Ill. 262, where this company had made a contract of sale of certain of its lands, but the purchasers had failed to pay the purchase money according to the terms of the contract, and the company had declared a forfeiture of the contract, and the company had resumed possession of the lands, we held that, under the provision above, the lands were not subject to taxation. But we there said: “If the purchase money had all been paid, or it had all been due, and the contract had not been declared forfeited, then, it may be, a different question would have been presented.”

If the purchase money here had all been paid, we are of opinion the land would be taxable. In such case the whole purpose of the exemption of the land from taxation would have been subserved. The whole beneficial interest in the land would be in the purchaser. The company would have left no substantial right in the land. It would have but the naked legal title, which the purchaser could at once compel it to release. Though not in fact conveyed, the purchaser would be entitled to have the land conveyed. The rule of equity would well apply, that what ought to be done should be considered as having been actually done. To hold to the letter of the statute, that the land must be conveyed before it is taxable, would enable it, where it has been sold and paid for, to be held exempt from taxation for all time, by withholding a conveyance of it. This would be a fraud upon the statute, and not to be permitted. As respects liability to taxation, the land, when sold and paid for, is sold and conveyed, according to the true intendment of the statute.

Has, then, the purchase money of the land been paid, or, rather, are we satisfied that it has not been paid ? The last payment, by the written contract of sale, became due December 12,1861. The first tax in question, that for which the lo^s were sold, was for the year 1867,—the sixth year after the time of the last payment. Had not the purchase money been paid by that time? Nothing is heard from the Illinois Central Railroad Company in connection with the land since the last payment fell due. A large payment was made down, $3000, showing that the purchaser would not be likely to suffer the land to be forfeited.

The contract was most stringent in the strict requirement of the payments to be made at the very times they became due, to save the land from forfeiture. A town, Tolono, seems to have been laid out on the land. All these are indications toward the purchase money having been paid.

In order to grant this application to refund taxes, the statute requires that the county board “shall be satisfied of the facts in the case, ”—that is, that the land was not taxable. We hold that if the purchase money for this quarter section had been paid, then the lots were taxable.

Is there not enough here to create in the mind a belief that this purchase money was paid, or, at least, to show the probability óf it ? And might not the county board, in view of all that appears in the .case, say that they were not satisfied that this purchase money had not been paid, and therefore were not satisfied that the lots were not taxable, and so, under the statute, have well refused the application ? We think they might, and that their determination in the matter should not have been reversed.

The judgment of the circuit court will be reversed; and the cause remanded.

Judgment reversed.


author: Mr. Justice Mulkey

text:
    Jacob A. Goodell v. Roswell W. Dewey.
    Filed at Springfield September 30, 1881.
    1. Chattel mobtgage—mortgagee may pwrchase at his own sale by consent of mortgagor. A purchase by a mortgagee at his own sale under a chattel mortgage will not be set aside and a redemption allowed, where the sale and purchase were made with the consent of the mortgagor, and under an understanding with him.
    2. Sale tjndeb poweb in mobtgage—when made to mortgagee by consent will not be set aside. Where the mortgagor and his wife gave the mortgagee an absolute conveyance of the mortgaged premises in full satisfaction of the indebtedness, and the mortgagee, to avoid certain intervening judgment liens, made a sale under a power in his mortgage of the property to one, who immediately conveyed back to the mortgagee, without paying anything on the purchase, and the mortgagee then surrendered the notes and the mortgagor’s deed, and received possession of the premises, and held them without any claim or objection by the mortgagor for over three years, and it appearing that the property was worth but little more than the indebtedness, and no fraud or overreaching being shown, it was held, that a bill to set aside the sale and allow a redemption was properly dismissed.
    Writ of Error to the Circuit Court of Fulton county; the Hon. S. P. Shore, Judge, presiding.
    Mr. J. S. Winter, for the plaintiff in error:
    Dewey, holding the relation of trustee to Goodell in both the chattel mortgage and trust deed, could not be a purchaser at his own sale. 2 Sedgwick on Vendors, 109; 1 Story’s Eq. Jur. 321, 322; Michoud v. Girod, 4 How. 503; Devone v. Fanning, 2 Johns. Ch. 252.
    A court of chancery will set aside such sale on application in apt time, and order the property reéxposed to sale under the direction of the court. Michoud v. Girod, 4 How. 503; Munn v. Burges, 70 Ill. 604.
    Plaintiff in error acquired no better title to the lands by employing his nephew to purchase them at a specific price agreed upon before the sale, and as trustee making a deed for the premises to his nephew, and immediately taking a reconveyance back to himself, than if he had been the bidder and purchaser himself at his own sale. 1 Story’s Eq. Jur. 218; Munn v. Burges, 70 Ill. 604; Bush v. Shearman, 80 id. 160; Hoit v. Russell, 56 id. 559; 2 Jones on Mort. sec. 1877.
    The delay in bringing suit was not unreasonable. Hamilton v. Lubukee, 51 Ill. 416; Munn v. Burges, 70 id. 604; Bush v. Shearman, 80 id. 160.
    Messrs. Barreré & Grant, for the defendant in error:
    We claim that after the plaintiff deeded the land to defendant in satisfaction of the debt, if the defendant, for the purpose of avoiding any judgment or other hens upon the land, sold it as trustee, and either directly or indirectly became the purchaser at his own sale, the plaintiff has no right, either in law or equity, to complain. Having no further right or interest in the land, he can take no exception or advantage of the sale or any irregularity therein.
    But aside from this, if the plaintiff knew of the fact that the trustee was the purchaser at his own sale, and did not take immediate steps to have the sale set aside, but allowed the defendant to continue in the use and occupancy of the property, he thereby ratified the sale, by implication, and relief was barred by the confirmation or acquiescence on the part of the beneficiary. Hill on Trustees, 538; Sloan v.
      Graham, et al. 85 Ill. 26; Mulvey v. Gibbons et al. 87 id. 367; Munn et al. v. Burges et al. 70 id. 605; Hamilton v. Lubukee, 51 id. 514; Bush et al. v. Shearman, 80 id. 169.
   Mr. Justice Mulkey

delivered the opinion of the Court:

On the 29th of December, 1871, Jacob A. Goodell, plaintiff in error, being indebted to Boswell W. Dewey, the defendant in error, in the sum of $2390, executed to him three notes, two for the sum of $800, and one for the sum of $790, payable, respectively, in one, two and three years. For the purpose of securing these notes, Goodell at the same time executed to Dewey a mortgage on certain real estate, and also, by way of further security for the second note, gave him a chattel mortgage on a steam saw mill. Default having been made in the payment of this indebtedness, Dewey, on the 8th of January, 1874, sold the saw mill at public sale, under the power in the chattel mortgage, and the same was struck off to himself at $300. Goodell was at the sale and made no objection to the purchase by Dewey, or the manner in which the sale was-conducted. Indeed, the weight of evidence shows the sale and purchase by Dewey were in pursuance of an understanding between him and Goodell. On the same day Goodell and wife executed and delivered to Dewey a deed absolute on its face, to the mortgaged premises. Notwithstanding this conveyance, Dewey, on the 6th of February following, proceeded under the power in the mortgage to sell at public sale the said mortgaged premises; and the same were struck off and conveyed to one F. O. Dewey for the balance then due on the mortgage, who, oh the same day, without having paid anything therefor, and without any consideration, reconveyed the premises to defendant in error. A few days after this sale Dewey surrendered to Goodell his three notes and his deed of the 8th of January, above mentioned, remarking at the time, “that makes us square. ” On the 3d of March following, Goodell surrendered the mortgaged premises to Dewey, and from thence until the filing of the hill in this case, on the 29th of' November, 1877, Dewey has had the exclusive, quiet and peaceable possession of the premises in controversy, without his right or title thereto being in any manner questioned, and without any claim being preferred against him on account of them.

So far there is no controversy about the facts. Plaintiff in error, by the present bill,-seeks to redeem from the sale under the mortgage. On a hearing upon the merits, in the Fulton county circuit court, a decree was rendered dismissing the bill, and plaintiff in error brings the record here for review.

Goodell admits the conveyance by himself and wife, to Dewey, of the equity of redemption on the 8th of January,-1874, as heretofore stated, but claims that the conveyance was so made with the understanding that Dewey was to pay him $1000 at the time of the delivery of the deed, and was to also pay him in addition thereto whatever Dewey might subsequently sell the premises for in excess of the balance due on the mortgage and this $1000. The only evidence tending to establish. such an agreement is the testimony of Goodell himself. On the other hand, Dewey swears positively there was no such an agreement or understanding between them, and he is strongly corroborated in his statement by the testimony of James Saville, and also hy an agreement in writing that was entered into by them at the time of the execution of this deed. It is in these words:

“I, Jacob A. Goodell, have this day sold my farm, situated on the N. E. 32, and 15 acres off of south end of S. W. of the S. E. 29, township 7 north, range two east, in Fulton county, Illinois, and agree to give possession of the same on the 1st day of March next; and I, Boswell W. Dewey, agree "to let said Goodell reserve three acres of wheat on said place.

Signed, R. W. Dewey,

January 8, 1874. . J. A. Goodell. ”

If any such an understanding had existed’ between the parties as that claimed by plaintiff in-error, it is but reasonable to suppose they would have embodied it in this agreement, or it would have been found in the deed itself.

Defendant in error swears that about the time the notes were maturing, plaintiff in error proposed to give him the mill and lands in satisfaction of the indebtedness, when witness told him he was obliged to sell the mill or he might lose his lien, and plaintiff proposed to deed witness the land, which he agreed.to accept if there were no judgments against plaintiff on record. The deed was made and delivered to witness, but upon inspecting the records he found judgments against plaintiff. So far as witness knew, the arrangement was made with the advice and consent of plaintiff. Whether it was or was not, witness supposed his only safety was to sell under the trust deed, consequently he advertised the land, as required by the deed of trust, and sold it on February 6, 1874, to Frederick O. Dewey, for $2800.

This statement of defendant in error is entirely in harmony with the conduct of the parties, and the statement of Goodell is not. If, as he claims, Dewey was to pay him $1000 upon the conveyance of his equity of redemption, it is hardly reasonable to suppose he would have permitted him to quietly put the deed in his pocket in the manner he says he did, and walk away without making such payment or giving some satisfactory reason for not doing so. And it is still more unreasonable to suppose that under such circumstances Goodell would have quietly stood by for over three years without even so much as asking Dewey for the money, as he in substance says he did.

Upon the whole of the evidence we are of opinion that it was the intention of the parties to cancel the indebtedness on one side, and all claim to the land on the other. To accomplish this the notes were surrendered by Dewey to Goodell, and an absolute conveyance of the land was made by Groodell to Dewey. The evidence further shows that the mortgaged property was worth but little, if anything, more than the indebtedness, and after such a long acquiescence in the adjustment made by the parties themselves, and in the absence of any fraud or overreaching on the part of defendant in error, we do not think it would be equitable to open the matter up again.

The decree of the circuit court will be affirmed.

Decree affirmed.


author: Mr. Chief Justice Craig

text:
    Ellis Davis v. The American and Foreign Christian Union et al.

      Filed at Springfield September 30, 1881.

    1. Cross-bill—whether germane to the original bill. On bill against the parties foreclosing a mortgage and the purchaser at the sale, to compel a transfer of the certificate of purchase to the complainants, the heirs of the mortgagor, on the ground that the payee of the notes was insane when he assigned the same, a cross-bill by the purchaser against the complainants, seeking to have a deed made to him on the same certificate, is not improper, as presenting new and distinct matter from that in the original bill.
    2. Same—time in which it may be filed. The filing of a cross-bill is a matter of right, and it may be filed at any time before the hearing, so that it does not delay the hearing on the original bill. "When not filed in time, the court is under no obligation to stay a hearing until the cross-bill is at issue and ready for trial.
    3. Same—on change of venue. Where a defendant has a right to file a cross-bill in a suit in equity, he may exercise it after a change of venue has been had in the original suit. The change of yenue will not change his rights.
    4. Chancery practice—preserving the facts found, in decree. It is sufficient to uphold a decree that the facts as found by the court from the evidence are recited in the decree, and such finding must be taken as true when the evidence has not been preserved in the record.
    5. Master’s deed—demand—limitation. The demand of a deed upon a certificate of purchase issued upon a judicial sale, in proper time, and the refusal of the master or officer, wrongfully, to make the same, will defeat the bar of the statute, which otherwise would make the sale void in five years after the expiration of the time of redemption.
    6. Pkactice—variance from summons—when objection must be taken. The neglect to make the objection of a variance between a cross-bill and the summons issued thereon, in the court below, is a waiver of the objection. Such an objection can not be made in the appellate court for the first time.
    Wbit ob Ebbob to the Circuit Court of McLean county; the Hon. Thomas F. Tipton, Judge, presiding.
    Mr. E. S. Tebby, for the plaintiff in error:
    The object of a cross-bill is to obtain affirmative relief. It is an adjunct to the original bill, and must be confined to the subject matter thereof. Fleece v. Russell, 13 Ill. 31; Thompson v. Shoemaker, 68 id. 256; Kennedy, v. Kennedy, 66 id. 190; 2 Danish's Ch. Pr. 1649; Story’s Eq. Pl. sec. 401.
    A cross-bill should he filed with as little delay as possible. The proper time to do so is at the putting in of the answer. Irving v. DeKay, 10 Paige, 319; Beauchamp v. Putnam, 34 Ill. 378.
    When no time is fixed for executing and delivering a deed, a demand is necessary, and such demand must be averred specially. Baker v. Whiteside, Breese, 175.
    The land being in a different county, the cross-bill conferred no jurisdiction, either of the subject matter or of the person of Davis.
    Messrs. Henby, Cook & Lobd, for thq defendants in error:
    The plaintiff in error, as shown by the decree, was duly served with process and failed to appear, and the court had jurisdiction of the persons of the defendants. This is sufficient to confer jurisdiction, in the absence of anything in the record to contradict it. Mulvey v. Gibbons et al. 87 Ill. 380; Reddick et al. v. Pres. etc. State Bank, 27 id. 147; Miller v. Handy, 40 id. 449.
    It is objected that the cross-bill must be germane to the original bill. The rule, as settled by this court, is, that “the cross-bill must he connected with the subject matter of the original suit, ” and it is so connected in this case. Jones v. Smith, 14 Ill. 229; Robins v. Swain, 68 id. 201; Hurd v. Case, 32 id. 49.
    It is not essential, nor is it usual, that all the facts which go to show that the appellant is entitled to .the relief sought should appear in the original bill. Robins v. Swain, 68 Ill. 201.
    We insist that the objection should have been made in the court below, and it can not be made for the first time in this court.
    It is next objected that plaintiff in error was sued in the wrong county. The rule is general that all objections to the writ or to the jurisdiction of the person must be urged in apt time, and in the circuit court. Allen v. Watt, 69 Ill. 656.
    The objection that the cross-bill was not filed in apt time is not. well taken. The right to permit the cross-bill to be filed was one within the discretion of the court, and can not be assigned for error. See Beauchamp v. Putnam, 34 Ill. 378.
    The decree finds that a deed was demanded from the master within the five years, and this is sufficient. The objection that a party has another remedy, comes too late after decree. It can not be taken for the first time in this court. Stout v. Cook, 41 Ill; 447; Ohling v. Luitjens, 32 id. 28; Kimball v. Walker, 30 id. 503.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

Stephen Griffith, in his lifetime, was seized of the lands involved in this litigation, which he sold and conveyed to Ellis Davis and Yerney A. Pierce, and they, in payment for the same, executed and delivered to Griffith their five promissory notes for the sum of $5600, and to secure the payment thereof they gave a mortgage on the premises. Afterwards, Pierce conveyed his interest in the lands to Davis. It also appears that Griffith sold and transferred one of the notes, for $1000, to the American and Foreign Christian Union, and another note of $1000 he assigned to the Church Extension Society, and to the trustees of the Methodist Episcopal Church he transferred another of the notes, for $1700. It further appears that the assignees of the notes filed their bill in the circuit court of Vermilion county to foreclose the mortgage; that a decree of foreclosure was rendered, and the premises "sold on the 8th day of June, 1872, in satisfaction of the decree, and purchased by the complainants in the bill. It also appears that Davis failed to redeem the premises within the time provided by law, and that the complainants in the bill of foreclosure were entitled to a deed. It also appears that Griffith died in the year 1873. After his death his heirs and legal representatives brought this bill against the purchasers of the notes and mortgage, who had foreclosed the mortgage and held the certificate of purchase, to compel a transfer of the certificate to. them, on the alleged ground that Griffith was insane at the time he transferred the notes; that the several societies which purchased the notes were bodies corporate organized under the laws of other States, and were incompetent, under the laws of this State, to acquire and hold title to lands here. The bill prayed that the certificate of purchase be assigned to complainants, and that the master in chancery be required to execute a deed thereon to them.

The defendants answered the bill, and also filed a cross-bill, in which Ellis Davis was made a party defendant, and required to answer under oath. In the cross-bill it was asked, that on a final hearing a decree be entered dismissing the original bill, and that the master be directed to execute a deed on the .certificate of purchase. The original bill seems to, have been abandoned by the complainants therein, and Davis, who was made a defendant to the cross-bill, failing to appear, a default was taken as to him, and a decree rendered as prayed for in the cross-bill.

It is first urged that the cross-bill is not germane to the subject matter, of the original bill, and hence can not be maintained. It is said by Story, section 401, that “a cross-bill should not introduce new and distinct matters not embraced in the original suit, for as to such matters it is an original bill, and they can not properly be examined at the hearing of the first suit. ” The rule laid down in the text is no doubt the correct one, but it by no means condemns the cross-bill in this case. Upon an examination of the original bill, it will be found that the title to the land and the foreclosure proceedings set up in the cross-bill were involved in the original bill. As was said in Robins v. Swain, 68 Ill. 198, the matters alleged in the cross-bill are sufficiently connected with the matters alleged in the original bill to authorize relief in this way. In the original bill the complainants therein sought to obtain an assignment of the certificate of purchase, which was issued on a sale of the lands under the foreclosure proceedings, and a deed on such certificate, and the cross-bill seeks to obtain, and did obtain, a deed to the lands under the same certificate of purchase. It will thus be seen that new and distinct matter was not introduced by the cross-bill, but the cross-bill was confined to the subject matter of the original bill.

It is also urged that plaintiff in error was sued in the wrong county,—that as he resided in Vermilion county, and the lands were situated there, the process issued in McLean county could not confer jurisdiction of the person or subject matter. The original bill was filed in Vermilion county, and the venue changed to McLean. While the cause was pending in Vermilion county the defendants in the bill had the right to file a cross-bill and bring Davis into court as a defendant. This is not disputed. If that right existed before the venue of the cause was changed, it likewise existed after the venue was changed to another county. The mere fact that the venue was changed, in no manner changed the rights, of the parties.

It is next urged that the decree is erroneous because of a variance between the cross-bill and the summons issued thereon. Had the plaintiff in error appeared in the circuit court and interposed the objection here made, the question might have been raised here; but a failure to appear and make the objection in the circuit court must be regarded as a waiver of it. At all events, such an objection can not be raised for the first time on error in this court.

It is next urged that the cross-bill was not filed in apt time. The filing of a cross-bill is a matter of right,—Beauchamp v. Putnam, 34 Ill. 378,—and there was no such delay in this ease .as would cut off or bar that right. Where a cross-bill is not filed in time, the court is under no obligation to stay a hearing on the original bill until the cross-.bill may be at issue and ready for trial; but here the original hearing was in no manner delayed by the filing of the cross-bill, and although some years had elapsed after the filing of the original bill before a cross-bill was filed, yet we are of opinion that the cross-bill was interposed in proper time.

Some other objections of a technical character have been urged to reverse the decree,.but we do not think they are well taken.

The testimony upon which the decree is based is not incorporated in the record, but the facts recited in the decree as found by the court, which must be taken as true, where the evidence has not been preserved, are ample to rest the decree upon. The plaintiff in error does not pretend that he paid the notes and mortgage which were given for the purchase price of the premises, or that he redeemed or attempted to redeem from the sale under the. foreclosure. His ground of reversal is based entirely upon technicalities which are without merit. It is true that section 30, chapter 77, page 625, provides that a certificate of purchase shall be void where a deed has not been made under it within five years from the expiration of the time of redemption, but from the allegations of the cross-hill, which are found to he true by the recital of facts found in the decree, it sufficiently appears that &■ deed was demanded from the master in chancery within five years, and wrongfully withheld. This was sufficient to defeat the bar of the statute.

The decree will be affirmed.

Decree .affirmed.


text:
    Carrie Kingman v. James G. Higgins et al.

      Filed at Springfield September 30, 1881.

    1. Witness.—of party suing as heir. Parties suing to have a cloud upon their homestead removed, which they claim as heirs of their deceased father, are competent witnesses to testify in their own behalf as to circumstances and facts which occurred after the death of the father of the defendants, who also claim as heirs.
    2. Chanceby—only proper evidence considered. On the hearing of a bill in equity the court will consider only such evidence as is competent.
    3. Homestead—can be released only in the statutory mode. The homestead right can be released or waived only by a writing to that effect by the householder, acknowledged as required by the statute, or by the surrender or abandonment of possession to a purchaser under a conveyance. It can not be waived by any parol declaration not carried into effect.
    4. Same—sufficiency of proof of. On the claim of a homestead by the minor children of a deceased person, the proof showed that the deceased occupied the premises up to the time of his death by residence thereon, that he was married, had children, and that he lived with them on the premises as the head of the family, and that the land was not of the value of $1000: Held, that the proof was cle'arly sufficient, and brought the case within every requirement of the statute.
    5. Same—of minor heirs—how extinguished. Where a homestead estate devolves upon the minor children of a deceased owner, it can be extinguished only by an order of court directing a release thereof.
    6. Same—widow can not release after her abandonment. After a widow has permanently abandoned the homestead of her deceased husband, and the children of her husband by a former wife, taking her. own infant child, with her, she will have no interest in the estate of homestead to release, and any attempt on her part to do so will be void as to the minor step-children remaining upon the premises, and they will succeed to such estate.
    7. Same—right of widow to abandon or release children’s right. The widow of a deceased householder being the natural guardian of her own infant child, may bind it by her abandonment or release of the homestead, but being under no obligation to support the minor children of her husband by a previous wife, and having no power or control over them, she has no power whatever to release or transfer their rights in the homestead.
    8. Pbaotioe—evidence taken, good against a new party. There is no error in admitting evidence already taken to be read in evidence on the hearing against one made a party after the same was taken. In such case, if the new party is denied the privilege of cross-examining the witness whose testimony had been taken, on a proper application, there would be error.
    Appeal from the Circuit Court of Cumberland county; the Hon. William C. Jones, Judge, presiding.
    This was a bill in chancery, filed by John G. Higgins in his lifetime, against Carrie Kingman, to set aside a sale of his homestead under execution, in which Carrie Kingman claims title.
    The evidence in this case shows, that in 1875 a judgment was rendered against John G. Higgins, father of appellees, in favor of the Johnson estate, and that the indebtedness was for goods and merchandise, and not for anything preferred by the statute as a lien upon the homestead rights of the said John G. Higgins, or his widow or heirs. The evidence further shows, that John G. Higgins owned and lived upon, as a homestead, with his family, the lands in question, long prior to that time (1875), commencing about the year 1870, and so continued until his death, and that he died leaving Jennie Higgins, his second wife, and step-mother of the appellees, and Lou L. Higgins, a child of Jennie Higgins, and half sister of the appellees, all residing on the land as a homestead.
    It further appeared, that from the date of the judgment up to the filing of the bill, and since, the premises were not worth more than $1000, and that shortly after the death of John Gr. Higgins, his widow took Lou L. Higgins, her infant daughter, and permanently removed to her father’s in a foreign county, abandoning the land and her step-children, the appellees. After the death of John G-. Higgins, his children, William W. Higgins, Mary L. Higgins, John T. Higgins and Robert Gr. Higgins, by a former wife, became parties to the bill • as complainants. Afterwards, Jennie Higgins, the widow, and Lou L. Higgins, her infant child, were made defendants. Shortly before the hearing, Jennie Higgins, the widow, conveyed all her interest in the premises to Carrie Kingman, releasing any claim she had to the homestead. It also appeared that Carrie Kingman derived her title or claim under the sale under the judgment through her deceased father, Dudley K. Johnson, she being his only heir.
    Messrs. Decius & Everhart, for the appellant:
    It is claimed that the estate of homestead at the death of the husband passes to the widow, and during her lifetime, under the statute of 1873, she had a right to dispose of it as she saw fit, no difference what.the hardship imposed upon the minors. Whatever estops her from claiming a homestead, estops the minor children. Buck v. Conlogue, 49 Ill. 391; Shepard v. Brewer et al. 65 id. 385; Clubb et al. v. Wise, 64 id. 160; Wright et al. v. Dunning, 46 id. 271; McCormick et al. v. Kimmel, 4 Bradw. 121.
    The entire evidence taken and reported by the master is not admissible, because it was taken before Lou L. Higgins, a minor, was a party to the suit, before a guardian ad litem was appointed for her, and without notice to her or her guardian ad litem of the time or place of taking the same, which alone renders the evidence inadmissible, and to admit it was error. Turner et al. v. Jenkins, 79 Ill. 228.
    The evidence was not sufficient to show a homestead. It failed to show the premises were occupied as such at the date of the judgment, or' that the judgment was not for improvements made on the land.
    The decree was erroneous in finding a homestead only in favor of the complainants. It should also have found it in favor of their half sister, who was made a defendant.
    The first and second errors assigned are in relation to the admission of evidence taken and reported by the master.
    The appellants are both defending in this case, by reason of being heirs of deceased persons,—Carrie Kingman as heir of Dudley K. Johnson, deceased, through whom, as his only heir at law, she became vested with the title to the lands in controversy, and from the very nature of the case the original consideration is involved, for if given to secure the purchase money, or for improvements, etc., it would defeat a homestead right, and certainly appellees are not competent witnesses against her in their own behalf.
    Mr. N. L. Scranton, for the appellees:
    Lou L. Higgins, through the abandonment of the premises and her conveyance and release of the same afterwards to Carrie Kingman, by her mother, was not entitled to any standing in court, and this obviates the objection that evidence was used against her which was taken without notice to her.
    The judgment, levy, sale and sheriff’s deed are all since the death of Dudley K. Johnson, and therefore appellees were competent witnesses to these facts, as well as others transpiring after his death.
    We admit that the father, as the head of the family, has the power to abandon the homestead for himself and family, and that the mother, when the head of a family, can also abandon the homestead and make such abandonment binding upon her children of the family, as decided by the author-' ities cited by counsel. We, however, assert the law to be, that as no laches of the father will conclude the rights of homestead, so no laches of the mother will bar the rights of the children. Hubbell et al. v. Canady, 58 Ill. 428.
    A release by her of her interest in the estate does not conclude even her children. Miller v. Markle, 27 Ill. 405.
   Mr. Justice Walker

delivered the opinion of the Court:

It is objected that the heirs of John G. Higgins, deceased, were not competent witnesses, and their evidence was improperly heard on the trial below. We are unable to appreciate the objection urged. It is true, they sue to have a cloud upon their homestead title removed, and they are heirs, and claim the homestead as heirs of their father; but all of the material portion of the evidence of those who testify relates to circumstances and facts which occurred after the death of their father. It is true, they state that their father occupied the premises as a homestead before and at the time of his death; but if this evidence were rejected, there is an abundance of other evidence to prove that fact beyond all cavil, and on a hearing on a bill in equity the court only considers such evidence as is competent. As to what they said in reference to the conversation between their father and the sheriff, that was wholly immaterial, as the homestead estate could not be released in that manner. The fourth section of the Exemption act provides that there shall be no release or waiver unless it be in writing, subscribed by the householder, etc., and acknowledged, or possession shall be abandoned or surrendered to a purchaser under a conveyance. There is not, ppr can there be, the slightest pretence that Higgins,' in his lifetime, did any of these acts, and without one of them there was no waiver of the homestead. This provision is so plain that it must have been overlooked, or such a defence would not have been urged in the court below.

It is next urged that the evidence fails to establish a homestead estate in Higgins in his lifetime, and consequently his children can claim none. The evidence abundantly, shows that he occupied the premises; that he was married, had children, and that he lived with them on the premises as the head of the family, and the land was not of the value of $1000. He died whilst living on the place, and had never abandoned it. It is difficult to perceive that a clearer case could be made. The proof seems to bring the case strictly within every requirement of the statute.1 A homestead estate is clearly made out in him.

The first section of the Exemption act creates the estate of homestead, and provides for its exemption from forced sale. The second section provides that the exemption shall continue after the death of the householder, for the benefit of the husband or wife surviving, so long as he or she continues to occupy such homestead, and of the children until the youngest child becomes twenty-one years of age; and in case the husband or wife shall desert his or her family, the exemption shall continue in favor of the one occupying the premises as a resident. Thus, it is seen that the father or mother might occupy the premises exempt from levy and sale, and in case of their death or desertion it is continued to the children until the youngest shall attain the age of twenty-one years.

The fourth section provides the manner of extinguishing the estate of homestead. It enacts that the waiver shall, to be operative, be in writing, subscribed by the householder and his or her wife or husband, if he or she have one, and acknowledged, etc., or possession abandoned or given pursuant to the conveyance, “or if the exemption is continued to the children, ” no waiver or release shall be valid “without the order of the court directing a release thereof. ” Here the exemption was continued to the appellees as the children of deceased. The only means, therefore, by which their right can be extinguished is by order of court, and no such order has been made.

Although it was held in White v. Plummer, 96 Ill. 394, that a widow holding the entire estate of homestead which had been set off to her, might release and transfer the estate to a third person, still she must be invested with and hold the estate when she makes the release. If she has previously lost the estate, by abandonment or otherwise, she has nothing to release. In this case the widow, soon after the death of her husband, abandoned the homestead, and went to her father’s, in a foreign county, taking her own child with her, and she intended to abandon the homestead permanently, and has never returned to live upon the premises. The husband died in January, 1878. When the widow removed to her father’s she left appellees in possession, and they have so remained ever since. The widow afterwards, on the 2d day of February, 1881, to release the homestead to Carrie Kingman, the purchaser under execution, quitclaimed the premises to her.

The question is then presented whether the widow had any interest in the estate of homestead to release. She had left, and continued absent for nearly two years, with the intention of permanently abandoning the homestead. This was, within the provisions of the second section of the act, an abandonment of the family, and by so doing, under the same section, the homestead estate devolved on and vested in the children of the deceased husband, who remained in possession. The right having vested in them, she having in law no power or control over the step-children, she did not have the slightest pretence of power to release or transfer their right therein. After it vested in the children their release could be had only by an order of a court of competent jurisdiction, as provided in the fourth section, and there is no pretence that there was any such order ever made requiring them to release their estate of homestead. Being the natural guardian of her own child she had its custody and control, and had the right to remove it permanently from the homestead, and thereby abandon all of its claim to the estate of homestead. She possessed that power to the same extent that the head of a family may remove his family from and abandon the homestead.

It is urged that the court below erred in permitting the evidence taken in the case before Lou Higgins was made a party defendant to be read in evidence on the hearing. Had her guardian ad litem or solicitor desired, the witnesses could have been cross-examined; but no application or effort was made for the purpose. Had such a cross-examination been applied for and refused by the court, or had the cross-examination been made on notice to the other parties, and the court had excluded the evidence, there would have been error; but neither was done. In the case of Bruner v. Battell, 83 Ill. 317, the bill was taken as confessed, and proof was made before the master, and subsequently defendant was permitted to answer, and the evidence so taken was permitted to be read on the hearing, and it was held not to be error.

It is claimed that if complainants are entitled to the benefits of the Homestead act, the infant child, Lou Higgins, is also entitled to such an interest therein. In the cases of Wright v. Dunning, 46 Ill. 271, Buck v. Conlogue, 49 id. 391, Clubb v. Wise, 64 id. 157, Shepard v. Brewer, 65 id. 385, and Brown v. Coon, 36 id. 243, it was held that the homestead may be abandoned, and although the statute has preserved the right to the wife and children at the death of the husband, still, the children living under the control of the widow, when she abandons the property and takes the children with her, their right is gone. Hence in this case, the mother having the right to control her child, when she permanently removed to another county, taking the child with her, she and the child lost all homestead rights in the premises, and the court did not err in refusing to decree that this child had homestead rights.

The rights of complainants depend on a different principle. The law does not impose on the step-mother the duty of supporting them, nor does it give her a right to them custody. In this case she abandoned both the premises and her husband’s children, hence her acts did not, nor could they, affect their rights of homestead. The statute conferred the right upon them all alike, and it provides that the exemption shall continue in favor of the surviving husband or wife so long as he or she shall occupy the homestead, and of the children until the youngest child becomes twenty-one years of age. Here the step-children took, as against creditors, the same rights as did the widow, and her abandonment of the homestead did not affect their rights any more than had one of the complainants become of age or abandoned the home- - stead. The right is vested in the widow and children alike, each taking the same right, but that of the children being liable to the control of the parent having custody and control of .them. Had the widow in this ease died at the time she abandoned the homestead and her step-children, no onej we apprehend, would have doubted the right of the children to occupy the homestead as against creditors, and her abandonment of them and the homestead had precisely the same effect.

There was, therefore, no error in decreeing the sale void and setting it aside, and confirming complainants in their right of homestead, especially as they continuously occupied the homestead from their father’s death.

The decree of the court below must be affirmed.

Decree affirmed.


author: Mr. Justice Scott

text:
    George N. Black v. Helen Womer.

      Filed at Springfield September 30, 1881.

    1. Practice—amending declaration as to one defendant after demurrer sustained, equimalent to dismissal as to others. Where the plaintiff, after a demurrer is sustained to his declaration against all the defendants, under leave to amend files a declaration against only one of the original defendants, this is equivalent to a dismissal of the suit as to the omitted defendants, which is allowable under the. statute.
    2. Stockholders—ininswance companies—sufficiency of proof for a recovery. In- a suit by a party against a stockholder in an insurance company to enforce his individual liability for a loss by the plaintiff, it was admitted by stipulation that the plaintiff had recovered a judgment against the insurance company on its alleged liability upon a policy of insurance, as described in the declaration,-issued by the company to the plaintiff as owner of the goods, against loss by fire, and that afterwards the same were destroyed by fire, the plaintiff then still owning the same: Held, that the admission was sufficient proof of the execution of the policy and of the loss.
    3. Same—when proof of notice of loss not necessary. In a suit against a stockholder of an insurance company to enforce his individual liability for a loss under a policy of insurance,-the admission of the loss by fire of the property insured renders proof that notice of that fact was given to the company wholly unnecessary, especially when judgment has been recovered against the company for the same loss.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. Charles S. Zane, Judge, presiding.
    This -was an action of debt, brought in the circuit court, by Helen Womer against George N. Black, wherein it was sought to hold the defendant liable, as a corporator and stockholder in the Lamar Insurance Company, under a policy of insurance issued to the plaintiff by the said company. Upon a trial in the circuit court the plaintiff recovered. On appeal by the defendant to the Appellate Court for the Third District the judgment of the circuit court was affirmed. The defendant thereupon appealed to this court.

      Messrs. Stuart, Edwards & Brown, for the appellant:
    The rendition of judgment against one of several joint defendants in an action ex contractu is erroneous.
    The judgment against the corporation on the policy is not evidence against the stockholder in a suit to make him liable, personally, for its payment. Chesnut v. Pennell, 92 Ill. 55.
    Unless the judgment against the company shall be held as sufficient evidence, there can be no pretense of proof necessary for a recovery. There is no proof of notice, or of loss, rendered to the company,—no proof of the value of the property at the time of the loss, nor of' the existence of the policy. The admission is only as to the allegations of the declaration in the suit against the company.
    Messrs. McClernand & Keyes, for the appellee:
    The amendment of the declaration after the judgment sustaining a demurrer to it, by striking or leaving out the names of the other defendants, is to be considered a dismissal of the suit as to them.
    The judgment against the company in favor of appellee, it being bankrupt, is evidence establishing prima facie, if not conclusively, the liability of appellant in this action to make good the judgment to the extent of the stock held by him in the company. Slee v. Bloom, 20 Johns. 684; Moss v. Oakley, 2 Hill, 267; Belmont v. Coleman, 21 N. Y. 101; Moss v. McCulloch, 7 Barb. 296; Conklin v. Furman, 57 id. 484; Thayer v. Lithographic Co. 108 Mass. 528; Grand v. Tucker, 5 Kan. 78; Wilson v. Whitehouse, 49 Me. 527; Peake’s Ev. 68; 1 Phillips on Ev. 27.
    In the broader view, stockholders of a corporation stand towards its creditors as partners conducting its business. Mokelumne Co. v. Woodbury, 14 Cal. 265; Davidson v. Rankin, 34 id. 503; Ilarger v. McCullough, 2 Denio, 119; Marcy v. Clark, 17 Mass. 330; Southmayed v. Russ, 3 Conn. 56; Simonson v. Spenser, 15 Wend. 548; Todhunter v. Walters, 20 Ind. 105.
   Mr. Justice Scott

delivered the opinion of the Court:

This case comes to this court on the appeal of defendant from the Appellate Court for the Third District, the judges of that court having certified the cause involves questions of law of such importance, both on account of principal and collateral interests, as that it should be passed' upon by the Supreme Court. It is an action of debt, and was originally brought against George N. Black, Erastus N. Bates, Henry H. Glidden and Rufus S. Lord. Service of process was had on all the defendants, and to 'the declaration filed against them, all of the defendants, except Glidden, filed a demurrer, which was, by the court, sustained. Leave was given to plaintiff to amend her declaration, which was done by filing an amended declaration against George N. Black, alone. That was equivalent to a dismissal of the suit as to all other defendants, which, under the provisions of our Practice act, is allowable. Defendant Black pleaded to the amended declaration, and thereafter the suit progressed against him alone, and the case was treated as at an end as to all other defendants after the sustaining of the demurrer to the declaration.

Elaborate arguments have been made as to the legal liability of defendant under the general law applicable to insurance companies, notwithstanding the provisions of the special charter of the company, in which defendant was a shareholder. Every question made in this case was made in, and fully discussed in, Hendryx v. Spruance, and Gulliver v. Roelle, ante, p. 141,—pases decided by this court since this cause was submitted in the Appellate Court, and determined adversely to the positions assumed by counsel for defendant. It would answer no useful purpose to renew that discussion, and reference may be made to the cases cited for an expression of the views of this court on the questions raised in the case at bar.

The ease of Chesnut v. Pennell, 92 Ill. 55, is most confidently cited as conclusive as to the insufficiency of the proof as to the damages alleged to have been sustained. In this case, as in the one cited, plaintiff’s right to recover is based upon a loss by fire, against which she was insured by a policy in the Lamar Insurance Company, in which defendant was a corporator and stockholder. The decision in that case was placed on the ground there was no proof of the execution of such a policy, and no proof of loss by fire. All the evidence introduced in that case touching these essential facts was a decree of the Superior Court of Cook county, in which it was recited the company issued to plaintiff its policy in a stated sum, good for a definite period, and that the buildings insured were within that period destroyed by fire; but to that decree defendant was not a party, either actually or constructively, and so it was held he was not bound by the recitals contained in it. • But the evidence found to be wanting in that case is supplied in the present case by the stipulation of the parties. Here, it is admitted plaintiff recovered a judgment, in the sum of $1500, against the insurance company, on the alleged liability of the company upon a policy of insurance of the date and number in the declaration mentioned, issued by the company to plaintiff, as owner of the articles of property described in the declaration, for a valuable consideration, against loss by fire, and afterwards, while plaintiff was still the owner, the same property was destroyed by fire. No more definite and certain proof of the execution of the policy or the loss by fire could reasonably be made; certainly nothing more would be required to satisfy the mind of the existence of those facts. The admission of the loss by fire of the articles of property insured, renders proof that notice of that fact was given to the company wholly unnecessary. It would be useless to prove the company had notice of a fact it never denied, but admitted on the record it was true.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


text:
    The People ex rel. The Illinois Midland Railway Company v. The Supervisor of Barnett Township.

      Filed at Springfield September 30, 1881.

    1. Attorney at law—presumption as to authority. Where a proceeding purports to have been instituted by the party whose name appears of record, by his attorney, who is an attorney of this court, the presumption of the authority of the attorney will prevail over the bare statement by the defendant to the contrary, unsupported by affidavit.
    2. Mandamus—of an alias peremptory writ of mandamus to the successor in office. Where a peremptory writ of mandamus has been awarded against the supervisor of a town, commanding him to execute, in behalf of the town, certain bonds to the relator, and the officer has not obeyed the command of the writ, and his term of office has expired, an alias peremptory writ may properly be awarded against his successor in office, to compel him to perform the acts which the former had been by the first writ ordered to perform. This is but a repetition of the writ against the same party represented by another person. It is not making a new party, or any amendment to the judgment or record, within any rule not allowing amendments. The duty upon the officer first commanded to execute it, is a continuing duty upon him and his successors in office until it is performed.
    3. Office and officer—tenure of office—effect of resignation as ending the term before successor is qualified. Where the tenure of an office is fixed for a specified period of time, “and until a successor shall be elected or appointed, and qualified," the mere expiration of the specified period of time for the duration of the term of office will not operate to vacate the office, or to impair the powers of the officer to continue in the performance of the duties of the office, nor will the election or appointment alone of his successor have any such effect, for there must be superadded to the election or appointment of a successor, his qualification, in order' to the complete divestiture of the prior incumbent of his official authority.
    4. No distinction in this regard is to be taken between a resignation, and the expiration of the time fixed for the holding of the office. A resignation, and its acceptance, ends the term of office, the same as the expiration of the time of the tenure of the office does, and no more effectually. Whatever power there is in the latter case to act officially until the qualification of a successor, must exist equally in the case of a resignation.
    5. In this case a peremptory writ of mandamus was awarded to compel the supervisor of a town to execute, in behalf of the town,, certain bonds to the relator. The supervisor did not obey the command of the writ. After Ms term of office expired and Ms successor was duly elected and qualified, a rule was entered against the latter to show cause why an alias peremptory writ should not be awarded to compel him to perform the acts wMch Ms predecessor in office had been by the former writ ordered to perform. The respondent, among other things, gave as a reason why the alias writ should not issue, that’ prior to the entering of the rule he had resigned his office of supervisor, and Ms resignation had been accepted, and that Ms successor in office had been elected. But it did not appear that the person so alleged to have been elected had qualified. So the rule was made absolute, and the alias peremptory writ was awarded against the respondent, notwithstanding his resignation.
    This was an application to this court for an alias peremptory writ of mandamus, to compel the present supervisor of Barnett township to perform a duty which his predecessor in office had refused to perform, as indicated in The People ex rel. v. Supervisors of Barnett Township, 91 Ill. 422.
    Mr. T. C. Mather, Mr. S. D. Scholes, and Mr. Geo. H. Estabrook, for the relator.
    Messrs. Moore & Warner, for the respondent.
   Mr. Justice Sheldon

delivered the opinion of the Court:

A rule of this court, based upon an affidavit filed by the relator, was entered in this cause on January 13, 1881, against Lyman Barnett, to show why he should not he made party defendant to this suit, and why an alias writ of mandamus should not he issued to him, commanding him to perform the acts which his predecessor in office was, by the former writ in the case, ordered to perform, which was, to execute, on behalf of the town of which he was supervisor, certain bonds to the relator. The respondent made return to the rule, to which the relator has demurred.

• The first cause shown in the return against the rule is, that neither the railway company nor its receiver has authorized this proceeding. It purports to be instituted by the railway company by its attorney, who is an attorney of this court, and the presumption of his authority in this regard will prevail over the bare statement, unsupported by affidavit, of the return to the contrary.

The second and third causes are, that there has before been issued and served one peremptory writ of mandamus to the supervisor of the town, and that no new party or amendments can now be made to the judgment and record, and that an alias writ of peremptory mandamus can not issue,— that the power of the court was exhausted by the issuing of the first writ.

We do not regard the relator as seeking by this rule to make a new party or any amendment, within any rule not allowing of amendments, but only as simply asking an alias writ like the first, directed against the supervisor of the town of Barnett, commanding the performance of this ministerial duty, which is a continuing duty upon the supervisor and his successors in office until it is performed. It is but asking-for the repetition of the writ against the same party, represented by another person.

In High on Extraordinary Remedies, sec. 38, it is-stated, where a continual and perpetual duty is incumbent upon certain public officers, the fact that the officers hold their tenure by annual elections will not prevent the court from interfering, since the duty being continuing in its nature, may be enforced against the officers generally, and their successors.

. Section 8 of the Mandamus act provides, that “the death, resignation or removal from office, by lapse of time or'otherwise, of any defendant, -shall not have the effect to abate the suit, but his successor may be made a party thereto, and any peremptory writ may be directed against him. ”

In Reece v. Watertown, 19 Wall. 117, where there had been three peremptory writs of mandamus issued by the circuit court in the case, it was remarked, in reference to such a writ, that it might be repeated as often as the occasion required.

The fifth and last canse shown in the return is, that on June 2, 1879, respondent resigned his office of supervisor of the town, and his resignation was accepted, and that at the next election held in the town his successor was elected supervisor of the town.

Section 92 of the Township Organization act, Rev. Stat. 1874, p. 1078, provides, that “town officers, except as otherwise provided, shall hold their offices for one year, and until others are elected or appointed in their place, and are qualified.” This is the provision which applies here, there being no provision otherwise in respect to the supervisor’s term of office. Section 61 reiterates the same provision—that they shall hold their offices for one year, and' until their successors are elected, and qualified. Section 100 provides, that any two justices of the peace of a town may, for sufficient cause shown to them, accept the resignation of any town officer of their town. Section 85 provides, that every person elected or appointed to the office of supervisor, etc., before he enters upon the duties of his office, and within ten days after notification of his election or appointment, shall take and subscribe the oath or affirmation of office prescribed by the constitution, which shall, within eight days thereafter, be filed in the office of the town clerk. Section 86 provides, that if any person elected or appointed to either of the offices enumerated in section 85 shall neglect to take and subscribe such oath, and cause the certificate to be filed as above required, such neglect shall be deemed a refusal to serve. And section 101 provides, that the supervisor, before entering upon the duties of his office, shall give bond to the town, with sureties, for .the faithful discharge of his duties as such supervisor.

The statement in the return, as also the affidavit in verification of it, are silent as to the qualification of a successor, while the affidavit upon which the rule -was granted, as also affidavits subsequently filed in support thereof, allege that respondent is still supervisor and that his successor, though elected, never qualified. The relator insists that respondent can only cease to he supervisor, where the rights of creditors are concerned, by both the election and qualification of a successor. We are disposed to concur in this view.

This provision that officers shall hold their offices for a time named, and until their successors are elected and qualified, is not peculiar to the Township- Organization act. It is likewise the provision of the State constitution, that the judges of the courts, State’s attorneys, justices of the peace and constables, and county officers, shall hold their offices until their successors shall be qualified. All this shows a significance in this provision, and denotes as the policy of our law that the public convenience shall not suffer from a vacancy in such public offices, but that the office shall ever be full, so that there will always be some one competent to perform the duty belonging to the office. If we were not to allow to this respondent the power, before his successor shall qualify, to perform the merely ministerial official act of signing these bonds, which this court has .ordered his predecessor in office to perform, then this careful provision of the law that the officer shall hold his office until his successor is elected and qualified, will be denied effect, and be made nugatory. No distinction in this respect is to be drawn between a resignation and the expiration of the time fixed for the holding of the office. A resignation ends the term of office, the same as the expiration of the time of the tenure of the office does, and no more effectually. The effect in either case is just the same. Whatever power there is in the latter ease to act officially until the qualification of a successor, must exist equally in the case of a resignation.

This view that the qualification of his successor was necessary to divest respondent of his office, has the support of authority. The very question here, came under the consideration of the Supreme Court of the United States in the case of Badger et al. v. United States ex rel. Bolles, 93 U. S. 599, where, upon an examination of the several provisions of our Township Organization act and constitution bearing upon the subject, it was held that a supervisor, town clerk or justice of the peace in this State, although his resignation is tendered to and accepted by the proper authority, continues in office and is not relieved from his duties and responsibilities as a member of the board of auditors, under the Township Organization law of this State, until his successor is appointed or chosen, and qualified. In reference to a resignation it was there said: “When it is said in the statute that the resignation may be thus accepted, it is like to the expiration of the term of office. In form the office is thereby ended, but to make it effectual it must be followed by the qualification of a successor.”

People ex rel. Williamson v. McHenry, 52 N. Y. 374, was the case of a quo warranto to test the title to the office of town collector. The defendant was elected such collector on April 5, 1870. On April 4, 1871, the relator was elected collector of the same town, but did not take or file an oath of office or execute any bond to the supervisor of the town. The board of supervisors, on November 4, 1871, delivered to the defendant the warrant for the collection of the taxes of 1871. Afterward the relator brought the suit. It was held, that the relator not having qualified, the defendant was rightfully executing the duties of the office of collector when the action was commenced, and defendant had judgment that he was the legal collector.' The statute of New York was in substance the same as ours. It was: “Town officers shall hold their offices for one year, and until others are chosen or appointed in their places, and have qualified. ”

The fourth cause shown in the return is the same as the fifth, stated in a more general form, that respondent is not now, and has not been at any time since the 7th day of June, 1879, supervisor of the town of Barnett, either de jure or de facto. This impliedly admits that respondent was supervisor until on June 7,1879, and states but his own conclusion that he then ceased to be supervisor, without stating the facts, as he should, showing that he has ceased to be supervisor.

The return fails to show sufficient cause against the rule, and the demurrer to it is sustained, and an alias peremptory writ of mandamus awarded, as prayed for.

Mandamus awarded.

Craig, C. J., Walker and Scott, JJ., dissenting.