author: Mr. Justice Craig

text:
    John Kelderhouse v. Edgar A. Hall, et al.

      Filed at Ottawa January 25, 1886.

    1. Practice—mode of raising question on trial by the court. Where a jury is waived and the cause tried by the court, and no objection is made to the admission of evidence, and no propositions of law presented to the court calling for a ruling of the court, this court can not inquire into the correctness of the rulings of the trial court.
    2. If an award of arbitrators and the agreement of submission are admitted in evidence on a trial by the court without a jury, in order to raise the question as to the validity of the award the party objecting to it should prepare a proposition of law, and have the court pass upon the same, and the ruling thereon would then be subject to review on appeal or error.
    3. Prior suit pending—action at law for moneys in the hands of a receiver, pending a suit for a partnership accounting between the plaintiff and another. The earnings of a vessel were placed in the hands of a receiver pending a litigation, to be held for the party entitled thereto, and after the dismissal of the suit in which the receiver was appointed, one of the claimants of the fund sued the receiver in assumpsit for money had and received. It was held, that the pendency of a bill in equity by another against the plaintiff, for a partnership accounting in respect to the same subject matter, was no bar to the action at law. A recovery by the plaintiff in such case would be no bar to an adjustment of the partnership account.
    Appeal from the Appellate Court for the First District;— beard in that court on appeal from the Superior Court of Cook county; the Hon. S. M. Moore, Judge, presiding.
    Mr. William H. Condon, for the appellant.
    Mr. Daniel J. Avert, and Mr. W. I. Culver, for the appellees.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action of assumpsit, brought by Edgar A. Hall, in the Superior Court of Cook county, against John Kilderhouse, to recover certain moneys earned by the schooner T. B. Pomeroy, while running on the lakes between Chicago and Buffalo. At the time the earnings were made the schooner belonged to Hall & McGrew, and a dispute arose between them in regard to the person entitled to the funds. A suit was pending in the Supreme Court of Erie county, New York, between Hall and McGrew, wherein Kelderhouse was appointed receiver, and while acting in that capacity the moneys cáme into his hands. This suit was, by agreement, dismissed on the 14th day of June, 1881, and a stipulation was executed, and assented to by Kelderhouse, that he should hold the money and pay it over to the person entitled to the same by the order of arbitrators who .had been selected to settle the matters in controversy between Hall and McGrew. It seems that the arbitrators, or a majority of them, subsequently determined that the money belonged to Hall, and made an award directing Kelderhouse to. pay over the money to him, but this order he disregarded, and afterwards, upon receiving a bond of indemnity from McGrew, paid the money over to him. In the Superior Court a jury was waived, and a trial had, by agreement, before the court, which resulted in a judgment in favor of the plaintiff, to reverse which Kelderhouse appealed to the Appellate Court, where the judgment of the circuit court was affirmed, and defendant appealed to this court.

The record presents but a few questions of law for consideration. We will first consider the objections to the admission of evidence.

The award of the arbitrators, offered in evidence, was objected to on the ground that it was not the award of the umpire. This objection is not well taken. The matters in dispute were referred to two arbitrators selected by the parties, and in the submission it was agreed that if the two did not agree, they should select an umpire. The two selected did not agree, and they appointed an umpire, and the award was signed by one of the arbitrators and the umpire. This was clearly the decision of the umpire. He signed it as his aw'ard, and it was proper for one of the other arbitrators to sign the award with him. . Indeed, where the submission provides for an umpire, the general rule requires the award to be signed at least by one of the arbitrators and the umpire. Morse on Arbitration and Award, page 163, says: “Where the submission is to two, with a provision that in case they can not agree a third is to be called in, it is an inevitable inference that the decision of two out of the three will be binding, and an award made by two will be upheld. ”

The order of two arbitrators upon the defendant to pay the money to Edgar A. Hall is also objected to, but we perceive no valid objection to the evidence.

It is claimed in the argument by appellant, that before the award of arbitrators was made McGrew revoked^ the agreement of submission, and that the award was not binding on either of the parties. After the award, and the submission under which it was made, were admitted in evidence for the consideration of the court, if the award was illegal, and not binding because the agreement to submit had been revoked, or for any other reason not appearing on the face of the award, the question of its invalidity should have been raised by an appropriate instruction. If an instruction had been prepared and asked, the decision of the court in regard to the validity of the award might have been obtained, and that decision would have been subject to review on appeal or writ'of error; but as the court was not called upon to rule in regard to the validity of the award, that question can not now be raised here. Had any defect appeared on the face of the award, such defect might have been raised when it was offered in evidence; but such was not the case. The award, upon its face, seemed to conform to the submission.

The record shows that it was admitted on the trial that McGrew had filed a bill in chancery, in the circuit court of Cook county, against Hall, for a settlement of partnership matters between them, which included the fund involved in this action, and that the suit is still pending. Under this admission it is urged that it was the duty of the court, sitting as a court of law, to leave the matters here involved for settlement in the chancery case, where an account could be properly stated. We perceive no merit in this position. This action was assumpsit, brought by Hall, claiming that the fund in the hands of Kelderhouse belonged to him, and no reason is perceived why a court of law might not settle that matter as well as a court of equity. After the money is recovered from Kelderhouse, if, on an accounting in a court of equity on the bill now pending between Hall and McGrew, it should turn out that McGrew is entitled to this money or any other unsettled matter growing out of a partnership transaction, if the parties occupy that relation, the court of equity may make a proper decree; but that right of McGrew does not militate against the right of Hall to maintain this action. The question here is, whether Kelderhouse has money in his hands which belongs to Hall.

Some questions of fact have been discussed in the argument, but as controverted questions of fact are not reviewable here, they will not be considered.

The evidence before the court was amply sufficient to authorize the judgment, and as no error of law appears in the record, the judgment will be affirmed.

Judgment affirmed.

This record was assigned to Judge Dickey, but he failed to prepare an opinion, and the cause was re-assigned at the November term, 1885.


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    William G. Canon et al. v. Silas Grigsby et al.

      Filed at Ottawa January 25, 1886.

    1. Aetebation—as to one of several makers of a promissory note, consenting to an alteration. Notes for the price of certain property purchased by the makers, were filled up and1 signed by the makers thereof, leaving a blank as to the place of payment, and providing for interest at the rate of six per cent, and given to one of the makers with which to complete the purchase. He took the same to the seller, who refused to receive them with the rate of interest provided, when the party having the notes consented to filling the blank and changing the rate of interest to seven per cent, and then delivered them and received the property: Held, that the maker who delivered the notes, knowing of the change, was bound by them, and could not take advantage of the alteration.
    2. Same—by filling blank as to place of payment. Where one of the makers of a note intrusted with it by the other for delivery, consents to the filling of a blank, thereby fixing the place of payment, and delivers the same so changed, the note will not be rendered void from such alteration.
    3. Same—ratification by failing to repudiate on notice. Two parties desirous of purchasing certain personal property, filled up two notes for the price, bearing six per cent interest, and prepared a bill of sale of the property, with a warranty showing the giving of the notes at six per cent interest. One of the makers took these instruments to the seller, who refused to take notes 'bearing that rate of interest, and it was then agreed -by such maker to change the rate of interest to seven per cent in both the notes and the bill of sale, which was done and the purchase concluded. The other maker of the notes afterward saw and read the the bill of sale, which showed the notes bore interest at seven per cent, and he failed to rescind the contract and return the property: Held, that if the miker last mentioned knew of the alteration of the notes, and did not in a reasonable time rescind the contract for that reason, by offering to return the property, he must be treated as having ratified the alteration, and was bound by it.
    4. Appeal—reviewing the facts. Where the Appellate Court affirms a judgment of the circuit court in a suit upon a note in which there is a conflict of evidence, it will be presumed that whatever the evidence tends to establish, was found in favor of the successful party by both the trial and Appellate courts, and the finding of the latter court upon the controverted questions of fact will be conclusive upon this court.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Stephenson county; the Hon. William Brown, Judge, presiding.
    Mr. James I. Neff, and Mr. J. H. Stearns, for the appellants :
    It is only after a partnership is shown to exist that the ■ admission or act of one of the parties is received in order to affect the others. 1 Greenleaf on Evidence, sec. 177; Gordon v. Bankard, 37 Ill. 147; Degan v. Singer, 41 id. 28; Hahn v. Savings and Ins. Co. 50 id. 456; Gardner v. Manufacturing Co. 52 id. 367; Rogers v. Batchelder, 12 Pet. 221.
    An agent can not enlarge his authority by his acts and declarations, and his acts not within the scope of his authority do not bind the principal. Mussey v. Beecher, 3 Cush. 511.
    A note materially altered is void, even in the hands of a bon a fide holder for value; but if the alteration is made by mistake, and without fraudulent intent, the right of action upon the original consideration remains. 2 Daniell on Neg. Inst. sec. 1413.
    Joint ownership of a chattel, with an agreement to share the profits thereof, does not constitute a partnership. Smith v. Vanderburg, 46 Ill. 34; 1 Lindley on Partnership, *25; Parker v. Fergus, 43 Ill. 437.
    Cases between alleged firms and third persons, grounded upon estoppel, have no application here. Smith v. Knight, 71 Ill. 148; Hefner v. Palmer, 67 id. 161.
    The authority of a partner to bind his co-partners by note is confined to commercial partnerships. Ulery v. Ginrich, 57 Ill. 531; Gray v. Ward, 18 id. 32; Morse v. Richmond, 6 Bradw. 166.
    A ratification, to be binding, must be made with a full knowledge of all the facts. Reynolds v. Fence, 86 Ill. 570; Farwell v. Meyer, 35 id. 40 ; Railroad co. v. Kelly, 77 id. 426; Kerr v. Sharp, 83 id. 199.
    Mr. E. P. Barton, Mr. H. M. Baenum, and Mr. H. C. Hyde, for the appellees:
    The judgment of affirmance by the Appellate Court conclusively settles that the evidence justifies the verdict. Sconce v. Henderson, 102 Ill. 376; Bennett v. Connelly, 103 id. 50; Railroad Co. v. Lewis, 109 id. 120.
    If one, with full knowledge of the facts, accepts the avails of an unauthorized treaty in his behalf, he thereby ratifies it. Brown v. City of Aurora, 109 Ill. 165; Hall v. Harper, 17 id. 82; Strasser v. Conklin, 54 Wis. 102; 1 Parsons on Contracts, 50.
    Filling of blanks in a note, as to the place of payment, is no alteration. 2 Parsons on Notes and Bills, 566; Kitchen v. Place, 41 Barb. 465; Angle v. Life Ins. Co. 92 U. S. 330; Redlich v. Doll, 54 N. Y. 234; McGrath v. Clark, 56 id. 34; Pohlman v. Taylor, 75 Ill. 629.

      The agreement to share profits in the use of the stallion made appellants partners. 1 Lindley on Partnership, 19, 22, 21; Collyer on Partnership, 68; Robbins v. Laswell, 27 Ill. 370; Lockwood v. Doaue, 107 id. 335.
   Mr. Justice Scott

delivered the opinion of the Court:

This suit was brought in the circuit court of Stevenson county, by the firm of Grigsby Bros. & Co., against William G. Canon and Uriah Woodring. The declaration counts on two promissory notes, each for the sum of $500, payable to the order of J. & C. Huston, one year after date, at Blandinsville, Illinois, with interest thereon at the rate of seven per cent per annum. At first defendants filed a plea of the general issue to the whole declaration, but afterwards, by leave of court given for that purpose, they filed a joint and several plea of - non est factum, verified by their several affidavits. Plaintiffs are the assignees of J. & C. Plus ton, to whom the notes were delivered after they had been indorsed, and before maturity, by the payees. On the trial in the circuit court, the jury found the issues for plaintiffs, and assessed their damages at $1137.47. The court overruled the motion entered by defendants for a new trial, and rendered judgment on the verdict. That judgment was affirmed in the Appellate Court for the Second District, and defendants bring the ease to this court on their further appeal.

Many of the important facts in this record are either admitted or are so fully proven, no controversy exists as to them. As to others, the evidence introduced in the trial court is sharply conflicting, and it will be presumed that whatever the evidence tends to establish was found in favor of plaintiffs by both the trial and Appellate courts. The finding of the latter court upon controverted questions of fact involved in the case will, of course, be taken as conclusive upon this court, and will be so treated in considering all questions of law discussed as arising upon the record.

There is no question made as to the fact defendants bought a stallion of the payees of the note sued on, for which they were to pay them $1000 within one year from the date of the sale, the purchase money to be secured by their promissory notes. But whether defendants bought the horse jointly, or-as partners, or whether they were to pay interest at six percent per annum or at the rate of seven per cent per annum, are matters of contention between the parties. The makers of the notes resided at or near Davis, and the payees at orín the vicinity of Blandinsville. It seems one of the defendants,—Woodring,—was at Blandinsville, and saw the horse, and on his return home reported his negotiations to his co-defendant, Canon. Thereupon defendants went to a justice of the peace and had two notes prepared, each for the sum of $500, payable one year after date, with interest at the rate of six per cent per annum. At the same time the justice prepared a warranty as to the horse, to be signed by the seller, in which it was stated, among other things, the price to be paid, and that the notes given in payment drew interest at six per cent per annum. Both defendants signed the notes so prepared for them, and then they were taken with the warranty, by Woodriug, to Blandinsville, to complete the trade for the horse. Defendant Canon was not at Blandinsville when the trade was closed, nor, perhaps, at any other-time. When Woodring arrived a second time at Blandinsville, there was no controversy as to the price to be paid forth e horse or as to the credit to be given, but when the payees saw the notes had been prepared to bear only six per cent interest, they declined to receive them and deliver the horse. A controversy then arose. The payees required interest at the rate of eight per cent per annum, because they had to pay that rate at the bank where they expected to raise money upon the notes. The result of the controversy was the notes were so changed as to bear seven per cent interest instead of six per cent interest per annum, and the warranty that had been prepared was so changed as to describe the notes as bearing seven per cent interest instead of six per cent, as originally written. The trade was then completed. The horse, sold with the warranty, as it was changed, was signed by J. & C. Huston, and was delivered to Woodring, to be taken to Davis, and the notes as altered were delivered to the payees by Woodring.

The defence insisted upon is, the notes, after they had been signed by the makers, were changed- in two material respects, without their consent or subsequent ratification, in manner as follows: First, the notes were probably printed blanks, filled up by the justice. The blank left to be filled, with the name of the place where the notes were to be paid, was left blank. The notes read, “payable at......,” and afterwards this, blank was filled with the words; “Blandinsville, Illinois.” And second, that the words six per cent interest were erased, and seven per cent inserted. Although plaintiffs were assignees of the notes before maturity, the alterations of the notes in- the respect indicated were so manifest, it is insisted it was sufficient to charge them with notice. That fact may be conceded as to the rate of interest, but is hardly true as to the place of payment. As the ease comes before this court, there can be no defence to the notes on the merits, so far as defendant Woodring is concerned. There is evidence tending to show the notes in suit were delivered by him to the payees after the blank had been filled with the words “Blandinsville, Illinois, ” and after the rate of interest had been changed from six to seven per cent, and that the alterations had been made, in both respects, in his presence and with his consent. Conceding these were controverted questions of fact at the trial, as seems to have been the case, the finding as to them by the Appellate Court was against defendants, and that finding is not open to review in this court, and is conclusive. So far, then, as defendant Wood-ring is concerned, he having delivered the notes after he knew they had been changed, he is bound by them the same as he would have been had they been written that way in the first instance.

It remains to be considered whether the notes, since the alterations made in them after they had been signed by defendant Canon, although made without his consent at the time, are obligatory upon him. Where the notes may have been made jiayable is a matter of little consequence. Defendants’ original obligation was to pay the money secured by the notes “at.......,” but afterwards the blank was filled up with the words, “Blandinsville, Illinois, ” and that, too, without his knowledge or consent. There are cases that hold that the filling of a blank left in a note, with the place of payment, will not render the note invalid in the hands of an innocent holder. The leaving of the blank after “at,” has been held, by some courts, as carrying on its face implied authority to fill the blank with the place of payment. In this case, one of the makers, to whom the note was intrusted by his co-maker for delivery, consented the blank might be filled as was done. That brings the case within the strictest rule held by any of the cases on this subject, and the notes are not rendered void by this alteration. Although not entirely analogous, the principles of the following cases, in a measure, at least, sustain this view of the law: Elliott v. Levings, 54 Ill. 213; Kitchen v. Place, 41 Barb. 465; Redlich v. Doll, 54 N. Y. 234; McGrath v. Clark, 56 id. 34; Angle v. Northwestern Mutual Life Ins. Co. 92 U. S. 330.

As respects the change of the rate of interest in the notes from what it was when defendant Canon signed them, whether he subsequently acquiesced and ratified the alteration in that regard, is a question of fact, and not of law. There was testimony to the effect defendant read the warranty after the horse was delivered to him, which plainly informed him, by the description given of the notes, that the rate of interest had been changed from six to seven per cent. ' After notice of that fact, lie still retained the horse, and never offered to rescind the contract because of such alterations in the notes, or for any other reason. That was evidence tending to prove defendant ratified the change made in the notes, and as the Appellate Court has so found, its findings in that respect must be regarded as conclusive as to this controverted fact in the case. Assuming, then, that defendant Canon knew of the alteration in the notes as to the rates of interest, and that he did not, within any reasonable time, rescind the contract for that reason, and return the property bought, he must be held to have ratified the alterations made in the notes, and will be bound by the notes in like manner as if no change had been made in them.

This court fully'concurs in the view taken by the Appellate Court, it is unnecessary to discuss the question whether defendants were or were not partners in the transaction out of which this litigation arose. Conceding, if need be, they were not partners, the evidence establishes a joint liability, and that is sufficient to sustain the present judgment. Nor is it deemed important to enter upon any critical analysis of thd instructions. To do so would extend this opinion to a most unusual length, and would answer no good purpose. This much may be said: the instructions given at the instance of both parties are far more numerous than the nature of the case required. It may be, that on a close analysis this court would not approve of dll of the instructions given on behalf of plaintiffs, and does not wish to be understood as approving of them. But they have been examined, and jt is not perceived they contain anything that was especially injurious to defendants, under the evidence contained in this record. It is apparent the jury were not misled by anything contained in them. As respects the instructions given for defendants, it may be safely stated more were given than ought to have been. Every principle of law strictly applicable to the defence sought to be made, was contained in the instructions that were given, and there was no error in refusing the unreasonable number of others asked by defendants.

On the whole record considered, the judgment of the Appellate Court should be affirmed. T 7 . „ ¿

T 7 . ¿ Judgmeiit ajjmned.


author: Mr. Justice Tunnicliff

text:
    The Illinois Central Railroad Company v. Theodore W. Thompson.

      Filed at Mt. Vernon January 25, 1886.

    1. Use and occupation—when liability therefor arises. If a party continues to occupy and use premises after being notified by the owner that if he does so he will be expected to pay rent, the occupant will thereby become liable to the owner for the use and occupation.
    2. Notice to agent—whether notice to principal. A railway company is bound by notice to an agent having a general supervision and control of a particular branch of its business, in respect to a matter within the scope of his authority.
    3. Appeal—reviewing the facts. Where there is evidence tending to show a right of recovery in an action at law not involving a freehold or a franchise, and a judgment in favor of the plaintiff is affirmed by the Appellate Court, this court has no power, under the statute, to pass upon the sufficiency of the evidence.
    4. Same—for what purpose this court may examine the evidence. This court may, however, look at the evidence in an action of assumpsit, to ascertain whether or not there is any evidence tending to establish a proposition upon which an instruction is predicated.
    . Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of Union county; the Hon. D. M. Browning, Judge, presiding.
    Messrs. Green & Gilbert, for the appellant:
    Our statute of 1845, concerning landlord and tenant, so far as it gave a right of action, was as follows: “In all cases in which rent -may be due and in arrears on a lease for life or lives, and where land shall be held and occupied by any person without any special agreement for rent, it shall and may be lawful for the owner or owners of such lands, ” etc. Rev. Stat. 1845. chap. 60.
    The case of Dudding v. Hill, 15 Ill. 61, the ease of McNair v. Schwartz, 16 id. 24, and likewise the ease of. Oakes v. Oakes, 16 id. 106, were all decided under the statute of 1845, above quoted.
    The present statute gives 'an action for rent when due on a lease for life or lives, and when lands are held and occupied by any person without any special agreement for rent.
    The action for use and occupation is founded upon contract, express or implied. The relation of landlord and tenant must exist. Dudding v. Hill, 15 Ill. 62; McNair v. Schwartz, 16 id. 25; Greenup v. Vernon, id. 26; Hadley v. Morrison, 39 id. 398; Benjamin v. Benjamin, 5 N. Y. 388.
    Mr. A. D. Duff, for the appellee,
    after reviewing the evidence, claimed that the facts shown raised an implied promise on the part of the appellant to pay rent,—citing Oakes v. Oakes, 16 Ill. 106.
   Mr. Justice Tunnicliff

delivered the opinion of the Court:

This was an action of indebitatus assumpsit, brought by appellee, against appellant, to recover for the use and occupation of a certain piece of land used by appellant in obtaining a supply of water for its engines at Makanda. The case was twice tried before a jury, resulting each time in a verdict for appellee, and upon the last trial a judgment was rendered in his favor for $300, which was affirmed by the Appellate Court for the Fourth District, and is brought to this court by appellant, two of the judges of the Appellate Court having certified that the case involved questions of such importance that it should be passed upon by this court.

It is not claimed by counsel for appellant that any errors were committed by the trial court, either in the giving of instructions on behalf of appellee, or in refusing or modifying those asked for appellant. Nor is any objection made to any ruling of the court touching the admission of evidence. We are asked to reverse the case solely on the ground that the evidence in the case was not sufficient to establish the relation of landlord and tenant between appellant and appellee as to the premises used by appellant, and that without this, appellee was not entitled to recover. It is very properly conceded by appellant’s counsel that we have no power to pass upon controverted questions of fact. That power is vested in the trial and Appellate courts, but not in this. We may look at the evidence, in cases of this character, simply to ascertain whether or not there is any evidence tending to prove a proposition upon which instructions to the jury have been predicated.

The appellee testified on the trial that he had notified agents of the appellant that the company was occupying his premises, and that he should expect it to pay him rent therefor, against which neither of these agents made any protest or objection, or disclaimed authority to bind the company in that behalf. This was some years before suit was brought, but the company continued to use the property the same as before. One of the agents thus notified was a Mr. Hilton, who was at Makanda to look after the company’s pumps, and see about fixing the water works, engines, etc.; another was a Mr. George Stewart, who was supervisor of the tracks, and another was Mr. J. S. Shaw, wffio was the supervisor of waterworks for the appellant, and had been since 1856, and himself put the pipes in, and the ice house upon appellee’s land. This evidence was received without objection, and although two of these parties, Hilton and Shaw, were introduced as witnesses by appellant, there was no attempt made to prove by them that they were not authorized by the company to contract on its behalf to pay for the use of premises to be used by the company for the purposes for which this property was used. If they had no such power, it would have been a very easy matter for the appellant to have proved it. It was a fact peculiarly within the knowledge of the officials of the company, and the fact that they offered no evidence on this subject, tends strongly to the inference that these parties, or some of them, did have the power to bind the company in this regard. Corporations do all their acts through agents, and where, as in this case, one is shown to have had the general supervision and control of a particular branch or department of its business for many years, and he is notified by the owner of property that if the corporation continues to. use his property in that particular department or branch of business, such owner will expect it to pay him rent therefor, arid it continues to use the property thereafter, without objection from this or any other of its agents, that this evidence, in the absence of any other to show that such agent was not authorized and had no power to assent to such use and payment of rent, tends, at least, to show that the relation of landlord and tenant exists, we have no doubt. There being evidence then tending to establish this fact, we have no power, under our present statutes, to pass upon its sufficiency.

That a party who continues to occupy premises after being notified by the owner that if he does so he will be expected to pay rent, thereby becomes liable therefor, does not seem to be controverted, and, indeed, could not be, under repeated decisions of this court. See Griffin v. Knisely, 75 Ill. 411; Higgins v. Halligan, 46 id. 173.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Chief Justice Mulkey

text:
    The Chicago and Evanston Railroad Company v. Barnum Blake.

      Filed at Springfield January 22, 1886.

    1. Eminent domain—measure of damages—of contemplated improvements on the land sought to he condemned. On a proceeding to condemn a strip of fifty feet off one side of a lot or block in a city, for a right of way by a railway company, the court allowed the lot owner to exhibit before the jury the plan of a structure he had contemplated erecting on the premises,. t limiting it in its effect as evidence to the purpose of showing the capabilities of the property: Held, that so limited there was no error in admitting the same in evidence.
    2. If the object of such evidence had been to enhance the damages by showing such a structure would be a profitable investment, it would clearly have been inadmissible.
    3. Same— considering the value of a part not taken, as a part of the entire lot of ground, and not as a separate property. Where a part of a lot sought to be taken for public use is of greater value considered as a part of the entire lot than if taken as a distinct and separate property entirely disconnected from the residue of the lot, the just compensation for the part so taken is its fair cash or market value when considered in its relations to and a part of the entire lot, and not simply what may appear to be its value as a separate and distinct piece of property.
    4. Same—of benefits not special to the land a portion of which is sought to he taken. In a proceeding by a railway company to condemn a part of a lot for a right of way, no benefits or advantages which may accrue to lands or property in common with all other property along the line of the proposed railroad by reason of its construction and operation, can be set off against or deducted from the compensation for the value of the property taken and damaged by such proposed road.
    5. Evidence—opinion as to the value of property sought to he condemned—competency of witness. Heal estate brokers in a city who testify they are acquainted with the value of real estate in the neighborhood of property sought to be condemned for a right of way, are competent witnesses to give their opinions as to the value of the same, even though their knowledge of values in the locality is not satisfactorily shown to be based on actual' sales. Such objection goes to the value of their testimony rather than its. competency.
    6. New triad—on ground of excessive damages. In a proceeding to condemn land for a right of way by a railway company, where- there is a diversity of opinion and conflict of testimony as to the value of the property sought to be taken, and where the jury have made a personal inspection of the property, this court will not reverse on the ground the damages allowed are excessive, or that the evidence does not support the verdict.
    Appeal from the Circuit Court of Cook county; the Hon. John G-. Booers, Judge, presiding.
    Mr. E. Walkeb, for the appellant:
    As to competency of real estate brokers to give their opinions to the value of property, see Railroad Co. v. Van Horn, 18 Ill. 257; Green v. Chicago, 97 id. 370; Village of Hyde Park v. Dunham, 85 id. 570; Winans v. Railroad Co. 21 How. 101.
    The court erred in admitting in evidence plans of contemplated improvements on the property. Prospective improvements can not be shown. Mills on Eminent Domain, sec. 173.
    The market value is the true measure of compensation. Matter of William and Anthony Streets, 19 Wend. 678; Furman Street, 17 id. 670; Pinkham v. Chelmsford, 109 Mass. 228; Fairbanks v. Fitchburg, 110 id. 224.
    The court erred in giving respondent’s instructions.
    Mr. Bobebt Hebvey, and Mr. C. Stuart Beattie, for the • appellee:
    The value of land consists not only in its actual uses, but in its capabilities, so far as they add to its market value. Haslam v. Railroad Co. 64 Ill. 355.
    The correct rule is the value of the property for sale in view of the uses to which it may be put, and not simply its productiveness to the owner in the condition in which he has seen fit to leave it. Mills on Eminent Domain, sec. 173; Cooley’s Const. Lim. secs. 567-568; Bridge Co. v. Ring, 58 Mo. 491; Railroad Co. v. Dougherty, 22 N. J. L. 495 ; Dolan v. Railroad Co. 46 Pa. 520.
    The appellee’s instructions are not subject to the criticism made on them. The sixth is almost in the language of this court in Page v. Railway Co. 70 Ill. 324. See, also, Railway Co. v. Barnum, 107 Ill. 161; Green v. Chicago, 97 id. 373.
   Mr. Chief Justice Mulkey

delivered the opinion of the Court:

This proceeding was commenced in the circuit court of Cook county, by the Chicago and Evanston Railroad Company, to condemn for railroad purposes a strip of land fifty feet wide, off the east side of lot 6, block 95, Elston’s addition to the city of Chicago. The lot of which the fifty feet condemned was a part, is bounded by the adjoining lot on the north, Chicago avenue on the south, Larrabee street on the east, and by the Chicago river on the west. The following diagram shows the situation of the property:

Barnum Blake, the appellee, is owner of the entire lot. The jury, after having heard the testimony of many witnesses on both sides, and made a personal examination of the premises, awarded to ajDpellee as compensation the sum of $39,000, upon which award the court entered judgment, and the petitioner appealed to this court.

With respect to the claim the damages are excessive, we see no cause for reversing the judgment on that ground. The witnesses, as generally happens in this class of cases, widely differed both as to the value of the land taken and the extent of the damage to the remaining portion of the lot. Very nearly all of them, on both sides, were real estate agents and dealers in real property, living and doing business in the city, and most, if not all, swore they were acquainted with the value of property in that locality. Had the jury disregarded their own examination of the property, and accepted without qualification the opinions and theory of the witnesses for the respondent, the compensation and damages awarded would have been increased by thousands of dollars. On the other hand, had they simply accepted the theory and opinions of the petitioner’s witnesses, the amount found by them would have been greatly diminished, so it is clear the jury must have exercised their own judgment in the matter. In such a diversity of opinion and conflict of testimony, we are aware of no rule or principle that would authorize us to interpose on the ground the evidence does not support the verdict, especially as it may reasonably be supposed their verdict is based, at least to some extent, upon their own examination of the property.

The point is made that the court erred in permitting respondent’s witnesses to testify at all, for the alleged reason. they did not, in a preliminary examination before the court, furnish satisfactory evidence of their knowledge of the market value of property in that locality, as based on actual sales. This point is clearly not well taken. Even admitting the court, in an extreme case, would have the right to exclude a witness on the ground of incompetency, where he had had no opportunities at all to obtain such information as would enable him to form an intelligent opinion on the question of value, about which we express no opinion, there was clearly no ground for the application of such a rule in this case. So far as this case is concerned, whatever there is in the objection goes to the value of the testimony, rather than to its competency. It is the uniform practice of the courts to admit such evidence, and it is stated in Lawson’s work on Opinion and Expert Evidence, that there is but one State in the Union where such evidence is not received. It would certainly be a startling announcement to go out to the profession, that this court had reversed a judgment in a condemnation case in Chicago because the trial court had permitted a number of resident real estate dealers to give their opinions as to the value of the land taken, without requiring them to first satisfy the court that their opinions on the subject were based upon their knowledge of actual sales in that locality. While such knowledge is always desirable, it is by no means a test of a witness’ competency. Nor is it, in many cases, the chief •element in determining the weight or value of a witness’ testimony when given. The uses and capabilities of a particular property; the prices at which like property in the neighborhood is held or offered; knowledge or observation of the growth and development of towns and cities ; a general knowledge of trade and business, and of the commercial advantages •or prospects of the place where the property is situated, are all matters more or less taken into account by the intelligent witness in forming his opinion as to the value of a particular piece of property.

It is also urged that the court erred in permitting the respondent to exhibit before the jury the plans of a certain structure he had contemplated, for a number of years past, •erecting on the premises. Whether evidence of this kind is proper or improper, depends entirely upon the purpose for which it is offered and to which it is limited by the court. If the object of such evidence is to enhance the damages, by ■showing such a structure would be a profitable investment, the testimony would clearly be inadmissible. If, on the other hand, it is offered merely as an illustration of one of the uses to which the property is adapted, or, in other words, by way of showing the capabilities of the property, and it is expressly limited by the court to such object, as was the case here, there will be no error in admitting it. The practice, however, of introducing such evidence, should not be encouraged, as there is generally more or less danger of its being misunderstood by the jury. But the purpose of the testimony in this case was so clearly and repeatedly stated by the court that it is almost impossible there could have been any misapprehension in respect to it, and consequently there was no error in admitting it.

Eespondent asked the court to give the jury the following instruction:

“If the jury find, from the evidence, that the part of the lot proposed to be taken in this case is of greater valuq when considered as a part of the entire lot than it would be as a separate and distinct piece of property entirely disconnected from the residue of the lot, then the jury, in order to make the owner of the lot just compensation for the part of the lot taken, may allow to him the fair cash or market value of the part of the lot taken, when considered in its relations to and as a part of the entire lot, and not simply what may apiDear to be its value as a separate and distinct piece of property entirely disconnected from the residue of the lot. ”

—Which the court refused to do, but modified the same by adding the following: “But in the event of the jury giving a greater value for the part of the lot taken by reason of its being a part of an entire lot, then, in assessing damages, if any, to the residue of the lot not taken, the jury should not estimate that greater value given to the part of the lot taken, by reason of its connection with the balance of the lot, ” and then gave the instruction, as modified, to the jury,—to the giving of which the petitioner excepted.

The instruction, as originally drawn, contained a clear, accurate statement of the law, and should have been given as asked. It in effect told the jury that if there was a difference in the value of the land sought to be condemned when considered as a part of the lot from which it was taken, and when considered as a distinct and separate property, the higher or greater value should control or be allowed. So far, we think, there can be no question as to the correctness of the instruction. If, therefore, there is any error in the instruction as given, it arises from the modification of it by the court. As we understand the modification, it tells the jury, in effect, that in assessing the damages to the part of the lot not taken, if any such damages are allowed, they are not to include in the assessment the difference between the higher and lower value of the part of the lot taken, as contemplated by the instruction, should any such difference exist, —or, more plainly yet, it tells the jury that in assessing the damages they should not include any part of the compensation allowed for the land actually taken. While we think this was unnecessary, and was doubtless the result of extraordinary caution on the part of the trial judge, yet we see nothing in it of which the appellant has any right to complain, as the modification was clearly in its interest. If the objection came from the other side, there might be some apparent force in the claim that it was “confusing.”

The instruction for respondent is also complained of. It is as follows:

“Under the law of this State, no benefits or advantages which may accrue to lands or property, in common with all other property along the line of the proposed railroad, by reason of the construction and operation of such railroad, can be lawfully set off against or deducted from a just compensation for the value of the property taken and damaged by such proposed railroad, as the same may appear from the evidence. ”

In Page v. Chicago, Milwaukee and St. Paul Ry. Co. 70 Ill. 324, an instruction substantially the same as this was approved. The only objection urged to it is, that it is not expressly limited to the value of the property taken. We think this is hypercritical, and affords no ground for a reversal. Even conceding the instruction vicious in the respect claimed, which we do not, appellant’s fourth instruction clearly cures it.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Magruder

text:
    The St. Louis and Sandoval Coal and Mining Company et al. v. The Sandoval Coal and Mining Company.

      Filed at Mt. Vernon January 25, 1886.

    1. Corporation—grounds for dissolution. When a corporation ceases to do business, leaving debts unpaid, and is insolvent and unable to prosecute the work for which it was organized, the court, under section 25 of the ■Corporation act, has the power to dissolve it.
    2. Same—assets as a trust fund—and for whom. In equity a corporation is regarded as a trustee, holding the corporate property for the benefit of its creditors and shareholders, which, upon its dissolution, a court of chancery will lay hold of as a trust fund, and distribute for their benefit.
    3. Same—priority of creditors over stockholders. Creditors of a corporation for pecuniary profit have a lien or right to priority of payment over the stockholders. The latter are the owners of the franchise, property and assets of the company which remain after its debts and liabilities are discharged.
    4. Same—who are stockholders interested in distribution of assets. A subscriber to the capital stock of a corporation for pecuniary gain, who has never paid anything for stock, and who neglects to pay assessments, and suffers a forfeiture for non-payment, can not be regarded as a stockholder in any such sense as to permit him to object to any disposition the court may make for the distribution of the assets of the corporation.
    5. Same—estoppel to claim as a stockholder, as against a new company •which he had sought to have organized. A stockholder in an insolvent ■ corporation for mining coal, joined in a bill to have the corporation dissolved • and its business closed, and was instrumental in having a receiver appointed, who made a sale and conveyance of the property, which, however, proved invalid, and he was also instrumental in organizing a new company and in■ducing it to purchase the property, and afterward to expend large sums of money in improving the property and developing the mine: Held, that under these circumstances he was estopped from asserting any interest as a stockholder of the old company, as against the new one.
    6. Subrogation—in furor of a new company, and against a prior corporation and its stockholders—purchase money paid by the new company discharging the debts of the older corporation. Where a corporation has become insolvent, and ceased business largely in debt, and its property is ■sold under a proceeding to dissolve it, and a deed is made by the receiver which is adjudged void, and a new company, claiming title under such deed, having advanced for the purchase of the property a sum sufficient to pay all • creditors in full, and which is so used, such new company will be entitled to be subrogated to the rights of the creditors of the old company', and may enforce the trust for its own benefit as cestui que trust, to the extent to which the purchase money discharged the debts of the old’ corporation.
    7. On bill filed to dissolve and wind up the affairs of an insolvent corporation, its property, consisting of two acres of ground, was sold by the receiver to a person who conveyed the same to a company, which paid all it was worth, and which payment was applied in payment of the debts of the old corporation. It was held, that the new company being entitled to be subrogated to the rights of the creditors so paid, the receiver’s sale and deed being void the •court having control of the trust estate not divested by the sale, and being ■authorized to apply it in discharge of the debts of the insolvent company, had the power to direct the old company to convey the trust property to the new company as one of the cestuis que trust for whose benefit the legal title was held, providing that the stockholders constituting the second class of the ■cestuis que trust, and to whom alone the remainder of the property, if any, would belong after the payment of the debts, should make no objection, or ■should be estopped for any reason from opposing it.
    8. Where a new corporation is entitled, by way of subrogation, to all the interest of the creditors of an insolvent corporation after it is dissolved by a decree, and also to all the interest of the stockholders in the property of the •old company, the new company becomes the sole cestui que trust, and a sale ■of the property is not necessary, but the court having control of the trust property may direct the trustee, the old company, to convey the title to the .new company.
    Writ of Error to the Circuit Court of Marion county; the Hon. William H. Snyder, Judge, presiding.

      Mr. Upton M. Young, and Messrs. Koerner & Horner, for the plaintiffs in error.
    Mr. M. Schaeffer, and Messrs. Green & Gilbert, for the defendant in error.
   Mr. Justice Magruder

delivered the opinion of the Court:

The property involved in this controversy is a coal mine and its appurtenances, situated at Sandoval, in Marion county, Illinois. In St. Louis and Sandoval Coal and Mining Co. v. Sandoval Coal and Mining Co. 111 Ill. 32, we decided that the legal title to the property was in the St. Louis and Sandoval Coal and Mining Co., (called the old company,) and that the sale by the receiver in this cause to Isaac Main was void, and, by consequence, that the Sandoval Coal and Mining Co., (called the new company,) which held under a conveyance from Main, had no legal title to the property. The new company bought the property in good faith, supposing that its title was good. As a consideration for its purchase it paid off the debts of the old company, amounting to about $2400. It went into possession of the property upon getting its deed from Main, and has spent $28,145.74 in improvements upon the two acres upon which the coal shaft is located, and, besides this, has paid out $6835 for railroad chutes, tramways, scales, revolving screens, elevators, engine, elevator building and steam connections, making a total expenditure of $34,-980.74. The old company sank the shaft to a depth of one hundred and fourteen feet, and then abandoned the enterprise for want of means. The new company continued the sinking of the shaft, at a cost to themselves of $9000, until they reached coal at a depth of six hundred and fifty feet. To take the property away from the new company, after this immense outlay of money and labor, will be a great hardship, and ought not to be done, unless its equities as a bona fide purchaser are necessarily overborne by the inexorable rules of law.

The decision- in St. Louis and Sandoval Coal and Mining Co. v. Edwards, 103 Ill. 472, reversed the decree rendered in this cause, on August 15, 1878, for want of proper service upon the old company. After such reversal, the old company came in and filed its answer, on August 15, 1882. Thereafter, on August 7, 1883, the court rendered a decree finding that the old company had “ceased doing business, leaving debts unpaid, ” and decreeing that it be dissolved, and continuing the cause for further report from the receiver, who had, by a previous order, been directed to take measures to collect money enough from the stockholders to pay the debts. A motion was made to set aside the decree of August 7, 1883, which was continued from term to term, and finally overruled at the February term, 1885. We think that this decree was warranted by the facts in the case. The evidence shows that the old company had ceased to do business, and had left debts unpaid, and was insolvent and unable to prosecute the work for which it was organized. Under the 25th section of the Corporation act, the court had power to dissolve it.

After the decision of the ejectment suit, already referred to, in 111 Ill. 32, the complainants in the original bill filed a supplemental bill, setting up the sale by the receiver, and that it had been declared void; that the new company had advanced money to pay off the debts of the old company, and had taken possession of the property and expended some $34,000 on it, and asking that the ejectment suit be enjoined, and that the equitable claims of the new company he adjusted. The latter filed its answer, and also a cross-bill, setting up all the previous proceedings in this cause, alleging that the sale to it and its improvement of the property had been approved and sanctioned by all the legal stockholders of the old company, and praying that such stockholders be required to deliver to it a deed, in the name of the old company, conveying the two acres it had purchased. The old company and five of the defendants to the original bill, claiming to be stockholders, filed a demurrer to the cross-bill, which' was overruled, but, without standing by the demurrer, they answered.

On August 25, 1885, a decree was finally entered in accordance with the prayer of the cross-bill, finding that the-complainants in the original bill were the only legal stockholders of the old company, and that the defendants to the; original bill were not stockholders, and entitled to no voice; in 'the distribution of the assets; that the sale by the receiver to Main, a stockholder and director, had been made to enable; him to raise money to pay the debts, and that the new company had paid the debts, and that its purchase and improvements had been made with the knowledge and approval of all the stockholders, and decreeing that the legal stockholders; execute to it a deed of the property in the name of the old company. The record presents the question of the propriety and correctness of this decree.

The old company "was before the court for the purpose of having its business closed up, under the 25th section-of the Corporation act. Its corporate existence was extended by the statute in order that there might be, under the direction of the court, a just and equitable distribution of its assets. Substantially the only asset which it possessed was the two acres of ground in question. It held the legal title to these two-acres in trust for the creditors and stockholders. “In equity the corporation is regarded as a trustee, holding the corporate-property for the benefit of its creditors and shareholders, which, upon its dissolution or civil death, a court of chancery will lay hold of as a trust fund and distribute for their benefit.” (Life Association of America v. Fassett, 102 Ill. 315.) The creditors have a lien or priority of payment in preference-to the stockholders. (Hastings v. Drew, 50 How. Pr. 254.) The stockholders are the owners of the franchise, property and assets of the company which remain after its debts and liabilities are discharged. (Chetlain v. Republic Life Ins. Co. 86 Ill. 220.) The old company whose dissolution had been already decreed, stood before the court in the attitude of a mere trustee, holding the naked legal title to a piece of land which the court had the power to dispose of and distribute among the creditors, in the first place, and in the event of a surplus, among the stockholders in the second place. The creditors, as a prior class, and the stockholders, as a subordinate class, were the sole and only cestuis que trust, and they, together with their trustee, were all before the court.

The new company advanced for the purchase of the property an amount of money which was sufficient to pay all the creditors of the old company in full, and which was in fact actually used to pay such creditors; therefore the new company was entitled to be subrogated to the .rights of the creditors, notwithstanding the fact that the deed from the receiver, through which it held, ivas declared void. In Kinney et al. v. Knoebel et al. 51 Ill. 112, where a sheriff’s sale was held to be void, and the title of Morrison, the purchaser at said sale, was held to be invalid, the court say: “Notwithstanding the sale was unauthorized, Morrison has advanced money which has paid and discharged liens of creditors to a large amount on the property; and inasmuch as he acted fairly and without fraud in his purchase, it is manifestly equitable that he should be subrogated to the rights of the creditors whose debts he has-paid.” As a result of its subrogation to the rights of the creditors so paid off with its money, the new company stepped into the place of the creditors; and, therefore, the old company held the legal title to the property as trustee, for the benefit of the new company, as cestui que trust, to the extent to which the purchase money of the latter had discharged the debts.

The evidence is clear that the property was not worth any more than the new company paid for it at the time the payment was made. By the original contract with Seymour, which required the shaft to be sunk six hundered and fifty feet, at $18 per foot, $11,700 was the estimated expense of reaching coal. Until coal was reached, the two acres were worth almost nothing. Seymour quit work after he had sunk the shaft one hundred and fourteen feet, because he was not paid for what work he had already done. The abandoned shaft became filled with water, and was in that condition when the new company made its purchase.

Inasmuch as the new company had advanced the money and paid the creditors and become subrogated to their rights, the court, having the trust estate under its control, and being authorized, under the law, to apply it in discharge of the debts, had the power to direct the old company to convey the trust property to the new company, one of the cestuis que trust, for whose benefit the title was held, provided that the stockholders, constituting the second class of the cestuis que trust, and to whom, alone, the remainder of the property, if any, would rightfully belong after the payment of the debts, should make no objections to such conveyance, or- should be estopped, for any reason, from opposing it.

It will not be denied that after the old company came in and answered, the court could have compelled it to transfer its legal title to the receiver, and could then have directed the receiver to make a re-sale of the property, and out of the proceeds of such re-sale to pay the creditors, or the new company that had been subrogated to their rights, and then to distribute the balance of such proceeds, if any, among the stockholders. But if the new company was equitably entitled to all the interest of the creditors in the property, and also to all the interest of the stockholders in the property, it was itself the sole cestui que trust, and therefore no re-sale was necessary. The court could direct the trustee, the old company, to convey the title to the equitable owner—the new company.

The question then arises whether the relation of the stockholders towards the new company is such as to estop them from opposing its claim to the property. The decree finds that certain persons, whose names it is not necessary^ here to mention, are not equitable or valid stockholders, and have no interest in the assets of the old company. After a careful examination of the record we think that this finding is sustained by the evidence. Some of these persons never paid anything for their stock in the first place. The stock of all of them has been duly and legally forfeited for nonpayment of assessments. When the sinking of the shaft was stopped for want of funds, they were assessed a certain percentage on the amount of their stock to raise money to carry on the enterprise, but refused to pay, and suffered a forfeiture of their stock, under the rules and by-laws of the company. In Terwilliger v. Great Western Telegraph Co. et al. 59 Ill. 249, it was held that the only real stockholders in the telegraph company, referred to in that ease, were the persons who had paid their money as subscribers. The position of certain of the parties in that case who claimed to be stockholders, but were held not to be such, is very much like the position of certain persons claiming to be stockholders in the ease at bar. One of the plaintiffs in error herein was a nominal subscriber for two hundred and eighty-six shares of stock, amounting to $28,600, but never paid a cent on his subscription. The company acknowledged an indebtedness to him of $10,000, which, in fact, did not exist, and in discharge of such fictitious indebtedness, issued for him $10,000 of paid up stock,—$5000 to his wife, $4000 to one of his friends, and $1000 to another of his friends, none of whom, however, paid anything.

The decree further finds that the complainants in the original bill in the court below are the only valid stockholders in the old company, and the evidence sustains the finding. Such complainants are the only parties who are interested in the distribution of the assets of the old company, after the payment of its debts. All of them, except Henry Wellhorner, filed an answer to the new7 company’s cross-bill, and in their answer consented to the prayer of the cross-bill and to the conveyance of the property to the new company. As to Wellhorner, he was one of the complainants in the original bill and in the supplemental bill. He was instrumental in getting; the receiver appointed and in having the sale made through' Main to the new company. Wellhorner was one of the stockholders of the old company who induced Martin, the president of the new company, to go into it, by representing that the-old company was insolvent and had been dissolved, and had. been settled up by the court. He solicited Martin to proceed with the sinking of the shaft within the time limited by the' .deeds. Owing to these representations and solicitations,. Martin took stock in the new company. Wellhorner himself' took part in the organization of the new company, and took, stock in it, knowing that the purpose of its organization was to improve and develop the mine which the old company had abandoned. He was present on the ground, and encouraged the new company in the w7ork of improving the two acres purchased by it, and in the work of sinking a shaft thereon,, at great cost. Under these circumstances, he is estopped from asserting any interest, as a stockholder of the old company, in these premises, as against the new company. Wade v. Bunn, 84 Ill. 117; Eldridge v. Walker, 80 id. 270; Noble v. Chrisman, 88 id. 186; Anderson v. Armstead, 69 id. 452;. Lloyd v. Lee, 45 id. 277; Weaver v. Poyer, 79 id. 417; Herman’s Law of Estoppel, sec. 336; 1 Story’s Eq. Jur. (12th ed.) secs. 385, 389. Hence the new company may be regarded as equitably entitled to all the interest which the legal stockholders can claim in the two acres in question, being the sole remaining asset of the old company.

The decree of the court below is affirmed.

Decree affirmed-


author: Mr. Justice Scholfield

text:
    Thomas Jennings v. Maurice Joyce.

      Filed at Mt. Vernon January 25, 1886.

    1. Contested election—jurisdiction. The circuit court, as a court of chancery, has no jurisdiction of a proceeding to contest the election of one to the office of mayor of a city.
    2. Same —former decisions. The decisions of this court in the case of Dale v. Irwin, 78 Ill. 175, and that of Talkinglon v. Twrner, 71 id. 234, therein referred to, only gave a construction to sections 113, 114, 115,116 and 119, of chapter 46, of the Revised Statutes. What was said in the first case refers solely to the practice in the proceeding to contest an election, as being similar to that in chancery, and has no bearing upon the question of the jurisdiction of a court of chancery in such cases.
    Writ of Error to the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.
    Mr. E. E. Davis, and Mr. Frank B. Bowman, for the plaintiff in error.
    Mr. Charles W. Thomas, for the defendant in error.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was a bill in equity exhibited by Thomas C. Jennings, against Maurice Joyce, in the circuit court of St. Clair county, to contest an election to the office of mayor of the city of East St. Louis. The circuit court, on motion of the defendant, dismissed the bill for want of jurisdiction, and that ruling presents the only question on this record for our consideration.

It is contended, against the ruling of the circuit court, that this court held in Dale v. Irwin, 78 Ill. 175, that contesting an election is a chancery proceeding. That, and the preceding case of Talkington v. Turner, 71 Ill. 234, therein referred to, but gave construction to sections 113, 114, 115, 116 and 119, of chapter 46, of the Revised Statutes of 1874, entitled “Elections.” Prior to the enactment of that statute, it had been held that a court of chancery had no jurisdiction to inquire into the validity of an election, (Moore v. Hoisington, 31 Ill. 243,) and in Dickey v. Reed et al. 78 Ill. 271, decided since its enactment, it has also been held that a court of chancery has no power to contest an election, even where the statute has not provided a mode for contesting. But it was held in the case first cited, not that a court of chancery has jurisdiction in cases of contested elections, but that the proceeding for contesting elections, provided by the sections of the statute to which we have referred, “from its incipiency * * * to the final judgment, has all the incidents of a regular bill in chancery. ” What was said had no bearing whatever upon the question of the jurisdiction or power of courts of chancery, but refers solely to the practice, in this particular statutory proceeding, to contest elections, and holds that it is as in cases of bills in chancery.

The only jurisdiction conferred by that statute upon circuit courts in cases of contested elections, is “to hear and determine contests of the election of the judges of the county court of their counties, and in regard to the removal of county seats, and' in regard to any other subject which may by law be submitted to a vote of the people of the county. ” (Rev. Stat. sec. 97, ut supra.) Since, therefore, apart from the statute, the court had no jurisdiction, and the statute itself confers none, the bill was properly dismissed for want of jurisdiction. It is unnecessary to consider what, if any other, tribunal has the requisite jurisdiction. That question is not before us.

The decree is affirmed.

Decree affirmed.


author: Mr. Justice Sheldon

text:
    The People ex rel. William C. Seip v. The Chicago and Western Indiana Railroad Company.

      Filed at Ottawa January 25, 1886.

    1. Taxation—railroad property, by whom to be assessed. Bolling stock and railroad track, as well as capital stock of railway companies, are by the statute required to he assessed for taxatidn by the State Board of Equalization, but all other railroad property is to be assessed by the local assessors.
    2. Same—what property to be listed as “railroad track.’’ Lands held by a railway company for right of way, when the road is located and in process of construction, are required to be returned as “railroad track, ” for taxation, and this, even though some of the lands acquired for right of way are occupied by tenants residing thereon. Actual use for railroad purposes is not essential to the property being classified as “railroad track, ” but it is enough that it has in good faith been acquired and is “held for right of way. ”
    Appeals from the County Court of Cook county; the Hon. Richard Prendergast, Judge, presiding.
    Mr. E. R. Bliss, for the appellant:
    Rolling stock and railroad track, as well as capital stock, are to be assessed by the State Board of Equalization, but all other railroad property is to be assessed by local assessors, and the board of equalization has nothing to do with its valuations, except as a board of equalization. Railroad Co. v. Siders, 88 Ill. 325; Railroad Co. v. People, 98 id. 350.
    The property as to which the court below overruled the objections, is all within the statutory denomination of “real estate other than railroad track. ” '
    Mr. Charles M. Osborn, for the railroad company.

       With this case was heard Chicago and Western Indiana Railroad Co. v. The People ex rel. Seip.

   Mr. Justice Sheldon

delivered the opinion of the Court:

At the July term, 1883, of the county court of Cook county, on the application of the county collector for judgment for the unpaid taxes of 1882, objections having been made by the Chicago and Western Indiana Railroad Company to the entry of judgment against certain lands described in a list filed by it, the court overruled the objections as to certain of the property, and rendered judgment for the taxes, and from this judgment the railroad company appealed. The court refused to enter judgment as to certain other of the property mentioned in the list, and from this judgment the collector appealed. It was agreed that both appeals should be considered together.

It appears that in accordance with section 41, chapter 120, of the Bevenue act, (Rev. Stat. 1874, p. 865,) the Chicago and Western Indiana Railroad Company made its schedule of property denominated “railroad track, ” for the year 1882, and returned it to the county clerk of Cook county. In this schedule was included, by specific description, all of the property which is embraced in both of these appeals. The return was made upon a form furnished by the State Auditor under section' 273 of the Bevenue act, and named schedule “A.” Together with schedule “A,” the railroad company was furnished with another form, named schedule “D, ” upon which it was required to list for local assessment all its real estate other than “railroad track. ” Schedule “D” was returned with the word “none” written upon it. All of this property returned in schedule “A” was assessed by the board of equalization, and the taxes extended upon this assessment the county collector collected of the railroad company. The local assessor, conceiving that these lots in question were improperly listed by the company in schedule “A, ” as a part of its “railroad track, ” proceeded to make an assessment of them himself, and upon this assessment made by him the taxes were also extended, and it is for these taxes judgment here was asked. Bolling stock and railroad track, as well as capital stock, are to be assessed by the State Board of Equalization, but all other railroad property is to be assessed by local assessors. Chicago, Burlington and Quincy Railroad Co. v. Siders, 88 Ill. 325.

The material question arising, then, is, were the lots included in schedule “A” by the company, properly denominated “railroad track, ” under the Bevenue law ?—as, if they were, the local assessor had no power to assess them; if they were not, then tbie board of equalization had no power to assess them, and the assessment by the local assessor was valid. It is provided by section 40 of the Bevenue act, that every corporation “owning, operating or constructing a railroad in this State, shall return sworn lists or schedules of the taxable property of such railroad.” By section 41 of the same act, such railroad corporations are required to file with the county clerks of the counties through which the railroad is located, a statement or schedule showing the property “held for right of way, ” and the length of the main and all side and second tracks, etc., and the value of the improvements and stations located on the right of way. “New companies shall make such statement in May next after the location of their roads. ” By section 42, “such right of way, including the superstructure of main, side or second track and turn-outs, and the stations and improvements of the railroad company on such right of way, shall be held to be real estate, for the purposes of taxation, and denominated ‘railroad track,’ and shall so be listed and valued.”

It thus appears that it is not necessary the road should be ■constructed, but if ,it shall be “located” and in process of construction, the company is to make the returns provided by law, and that all property which it holds for right of way is to be placed in its schedule of “railroad track. ”

The condition, as respects the railroad and the property in question, on May 1, 1882, as appears from the evidence, was, that the railroad company was constructing its railroad; that it had located the road over the property, and had purchased all the property mentioned in these appeals, for its right of way, and held it for that purpose; that it had not acquired all -the intervening property, hut was proceeding, by condemnation and purchase, to acquire it all, so as to make continuous lines of road, and so as to actually use it all for tracks and stations, but that it had not, on May 1, 1882, continuous lines of track over the property. The property, mainly, is situate north of Twelfth street and south of Van Burén street, they being east and west streets, and between Third and Fourth avenues, running north and south, in the city of Chicago. The railroad was being operated from the south to a temporary passenger depot at Twelfth street. There were, at that time, four tracks across Twelfth street, connecting with the tracks south, but these tracks were not in use north of the south line of Twelfth street. Two tracks had been built across each of the intervening cross streets up to VanBuren street, but there was not a continuous line of track north of Twelfth street. The road had been located to VanBuren street. The company had suits for condemnation pending as to a large amount of other intervening property between Twelfth and Van Burén streets, and was negotiating for the purchase of the remainder. It had filled in some of the lots required, in preparation of them for the tracks. Some of this property already acquired had buildings upon it, and some of these buildings were occupied by tenants under the railroad company.

The position taken by the collector is, that it was only such property upon which tracks were laid, or as was in actual use by the company for railroad purposes, that could be properly classed as “railroad track, ” and the court below held with the collector, in part overruling the railroad company’s objections as to all lots actually occupied by a building, and sustaining them as to the lots which were vacant. We perceive no good reason for this distinction. The accidental circumstance of some of the lots having buildings upon them at the time they were purchased by the railroad company, and the occupancy of the buildings being suffered to continue under the company, should not make a difference. The lots were not purchased for the purpose of their occupancy by dwellings, or for the use of drawing rents from them, and were not, by a fair interpretation, being held for such a use; but they, together with the vacant lots, were alike all purchased for railroad purposes, for right of way, and were alike all “held for right of way, ” and we think the improved and unimproved lots "should be similarly viewed, as to being “railroad track” or not.

We regard it a too narrow construction that the property must have been in actual use by the railroad company for railroad purposes, to admit its being classified as “railroad track. ” The requirement of the statute is, that schedule “A” shall show the property not actually used for right of way, but “held for right of way.” And we are of opinion, where property is circumstanced as all this was, the road being in process of construction, and the property in good faith acquired and held for right of way, and the delay of its immediate use for such purpose coming only from the non-acquirement of intervening property which was being obtained, that such property is to be considered as much a part of the “railroad track, ” as denominated in the Bevenue law, as if tracks had been actually constructed upon it. Five lots, it is admitted by the company’s counsel, were improperly listed in schedue “A,” but not one of these lots, we understand, is involved in either of the appeals.

The judgment as to the lots included in the collector’s appeal will be affirmed, but as to the lots included in the railroad company’s appeal the judgment will be reversed and the cause remanded.

Judgment affirmed in part and in part reversed.


text:
    John Dryden v. Jerome B. Newman.

      Filed at Ottawa January 25, 1886.

    1. Limitation—under act of 1839—right limited to the color of title, •as to its extent. In 1856, the owner of the undivided one-third of a tract of land made a warranty deed to A, purporting to convey to him the undivided two-thirds of the same, and A, in 1866, executed a similar deed to B, purporting to convey a like interest. A and B held possession of the premises and paid all taxes thereon for more than seven successive years, the latter ■claiming the entire interest in the same: Iield, that as B’s color of title was for only an undivided two-thirds, his title, under the Limitation law of 1839, ■as against the other co-tenant, must prevail to the extent of his color of title, but no further.
    2. It is well settled that under the Limitation act of 1839, the color of title of a party must be co-extensive with his claim of title.
    3. Same—twenty years as against tenant in common. To bar the right of entry of one tenant m common by twenty years’ actual possession of land by his co-tenant, not under color of title, such possession must be so adverse and -hostile in its character as to amount to a constructive ouster of the former.
    Appeal from the Circuit Court of Stark county; the Hon. IN. M. Laws, Judge, presiding.
    Mr. Miles A. Fuller, and Mr. M. Shallenberger, for the appellant:
    Every possession is adverse when not subservient to the title of another, either by a direct acknowledgment of some kind, or an open or tacit disavowal of right on the part of the occupant. Tyler, on Ejectment, 861; United States v. Arredonda, 6 Pet. 743; Clark v. Courtney, 6 id. 354.
    Such possession need not be under any deed or other muniment of title, nor any rightful claim. It is sufficient if it be actual, visible and exclusive, and acquired and retained under claim of title inconsistent with that of the true owner. Turney v. Chamberlain, 15 Ill. 273.

      It must be open, and of such a character as to clearly show that the occupant claims the land as his own, exclusively. Ambrose v. Raley, 58 Ill. 509 ; McClellans. Kellogg, 17 id. 498.
    Such possession is construed co-extensive with the land described in his deed, under which he entered. Turney v. Chamberlain, 15 Ill. 273.
    Whether an entry is for a party’s exclusive benefit, or in common with others, depends upon the intent with which it was made, (Angell on Limitations, sec. 429,) and that intent .is best shown by the conduct of him .who enters, and his management of the estate. Dubois v. Campau, 28 Mich. 309.
    Here the entry is by a several title, and none of the obligations resting upon co-tenants receiving title by the same ■conveyance, exist. Allwood was not required to protect their interests. To him and to his title they were strangers. Frentz v. Klotsh, 28 Wis. 318; Wright v. Sperry, 21 id. 343.
    Mr. W. W. Weight, for the appellee:
    As a general rule the Statute of Limitations does not run ■as between tenants in common, especially where all parties derive title from the same deed. Angell on Limitations, 422, 423; Dugan v. Follett, 100 Ill. 588.
    Prior to the defendant’s purchase he no doubt occupied the relation of co-tenant, and so long as that relation existed, the possesion and payment of taxes, however long continued,' could not be relied upon as a bar to recovery. In such cases the Statute of Limitations does not apply. Winters v. Haines, 84 Ill. 589.
    Where a party is in possession in privity with the rightful -owner, nothing short of an open, explicit disavowal of a holding under that title, and an assertion of title in himself brought home to the owner, will satisfy the law. Floyd v. Mintsey, 7 Rich. 181.
    The rule is, that to constitute an adverse possession it must be hostile in its inception, and not only that, it must be an actual, visible and exclusive possession, acquired and retained under claim of title inconsistent with that of the true owner. Turney v. Chamberlain, 15 Ill. 271; Bolden v. Sherman, 101 id. 483.
    It is a general rule of law that all acts done by the co-tenant relating to or affecting the common property, are presumed to have been done for the benefit of all the co-tenants. West Chicago Park Comrs. v. Coleman, 108 Ill. 591.
    It would seem that the Statute of Limitations does not run in favor of one against another tenant in common. If, however, there has been an actual ouster and adverse holding, the Statute of Limitations will run from the time of such ouster and adverse possession. Tyler on Ejectment, 112, 927; 1 Green, 91; Nicoll v. Scott, 99 Ill. 529; Angell on Limitations, sec. 435.
   Mr. Chief Justice Mulkey

delivered the opinion of the Court:

The appellee, Jerome B. Newman, on the 31st day of August, 1882, filed in the Stark circuit court a bill in chancery, against John Dryden, the appellant, praying for the partition of a certain tract of land situate in said county, consisting of forty-nine acres. Appellee, by his bill, claimed to be owner in fee of two-thirds of the premises, and conceded the other third to belong to the appellant. The latter answered denying the tenancy in common, and asserting exclusive ownership to the entire premises. Appellant relies, in part, upon possession and payment of all taxes for seven years under claim and color of title made in good faith, and also upon actual possession, by himself and those through whom he claims, for a period of over twenty years. These defences are'both specially set up in the answer. Upon the hearing, the court found appellee to be the owner in fee of one undivided third part of the premises, and appellant to be owner of a like estate in the residue, and entered a decree accordingly, to reverse which this appeal is brought.

It is not necessary for the purposes of this opinion to set out the particulars of the titles respectively relied on by the parties to this suit. It is sufficient to say, that leaving out of view the Statute of Limitations, each of them has shown a clear, connected chain of title to an undivided interest in the land,—appellee to two-thirds, and appellant to one-third. This being so, it follows the trial court must have found that one-half of appellee’s interest was barred by the Statute of Limitations, thus leaving his title good to but a third instead of two-thirds of the property, and we are of opinion the proofs fully warranted this view of the subject.

It appears that James McNaught and Thomas Durand, at the time of the latter’s death, were equal owners, as tenants in common, of the land in question; that Durand died intestate in August, 1847, leaving Francis P. Durand and Elizabeth McNaught, his only children, and Tilla Bedford, a grandchild, who respectively inherited a third of the undivided half of said premises. Some time between 1850 and 1854, Elizabeth McNaught conveyed her interest to her brother, Francis P. Durand, who in 1855 conveyed his entire interest, being then one-third of the whole, or two-thirds of the half, to John B. Smith. The latter, in 1856, executed to Thomas Allwood a warranty deed for an undivided two-tliirds of the entire tract, when, as it will be perceived, he really owned but one-third. In June, 1866, Allwood executed a similar deed to appellant, purporting to convey a like interest in the premises, under which appellant has had exclusive possession ever since. Appellee has, by mesne conveyances, succeeded to the half interest of James McNaught, and the sixth interest of the grand-child, Tilla Bedford. The evidence satisfactorily shows that appellant, and those through whom he claims, have been in the actual possession of the premises, and have paid all taxes thereon, for a longer period than is necessary to make a good title under the Limitation act of 1839, and if the color of title under which he and they have held possession and paid the taxes was co-extensive with his claim of title, we have no doubt his title would be good to the whole of the premises; but such is not the case. The deeds under which he claims purport to convey but two-thirds of the property. To this extent he has shown a good title under the-Limitation act of 1839, but no further, for nothing can be-better settled than that under that act the color of title must be co-extensive with the claim of title.

So far this case presents no difficulty whatever. The only questions in it about which there is any doubt, are: First, whether the appellant, and those through whom he claims, were in the actual possession of the whole of the premises for a period of twenty years or more before the commencement of this suit; second, assuming they were, was that possession so adverse and hostile in its character as to amount to a constructive ouster of the other co-tenants, and thereby put the twenty years’ limitation act in motion. As already seen, the court below by its decree must have found adversely to appellant upon one or the other of these questions, which necessarily defeated his claim to the extent made. The evidence relating to the extent and character of the possession relied on by appellant is both voluminous and conflicting,— too much so, indeed, to justify an attempt on our part to- ■ discuss it in detail. Suffice it to say, that after a very careful examination of it we are unable to say that the conclusion reached by the lower court is not warranted by the evidence.

This branch of the case was not free from doubt, but the whole of the evidence considered, we think the decree is correct, and it will therefore be affirmed.

Decree affirmed.

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


text:
    Frank Keating v. Garrett F. Stack.

      Filed at Mt. Vernon January 25, 1886.

    Contested election—jurisdiction—as to office of alderman in East-St. Louis. Under the special charter of the city of East St. Louis, the city-council is invested with the power and duty of determining ail contested; elections of its own members. A contest of an election before that body is. not a judicial but a ministerial proceeding, and its finding is not a judgment, in the ordinary sense of that term. No other tribunal than the city council, has jurisdiction in such case.
    Writ of Error to the Circuit Court of St. Clair county;; the Hon. William H. Snyder, Judge, presiding.
    Mr. E. E. Davis, and Mr. Frank B. Bowman, for the plain-tiff in error.
    Mr. Charles W. Thomas, for the defendant in error.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a proceeding in chancery, brought by Frank; Keating, in the circuit court of St. Clair county, to contest the election of Garrett F. Stack to the office of alderman of' the Fourth ward of the city of East St. Louis. The circuit, court, on motion, dismissed the petition, on the ground that-, the court had no jurisdiction of the subject matter, and that, decision is assigned for error.

The city of East St. Louis is organized and acting under-a special charter, which was adopted by the legislature on the 26th day of March, 1869. Section 5, article 2, of the charter, (1 Private Laws 1869, p. 887,) provides: “The city council shall judge of the qualification and of the election and returns of their own members, and shall determine all contested elections.” It would seem plain, from, this section,. of the charter, that the legislature intended that all contests in regard to the election of aldermen in the city should be settled and determined by the city council, and the will of the legislature in this regard must prevail, unless the act is in conflict with some provision of our constitution,- which, so far as we understand the terms of the constitution, is not the case. Indeed, in Linegar v. Rittenhouse, 94 Ill. 208, where the question arose whether the county court had jurisdiction to hear and determine a contest of an election of an alderman in a city organized under the general law, we held that the county court had no jurisdiction,—that section 34 of the general Incorporation act entitled, “Cities and Villages, ” conferred the power on the city council, and that no other tribunal had jurisdiction. The language of the general act, under which this decision was made, is as follows: “The city council shall be judge of the election and qualification of its own members. ” It will be observed that the charter of the city of East St. Louis contains the same provision, and in addition the following emphatic language: “And shall determine all contested elections.” If there could be any doubt in regard to the construction to be placed on section 34 of the general Incorporation act, there is no room for doubt in regard to the construction to be placed upon the language of the charter of East St. Louis.

But it is said in the argument, the city council, under the constitution, has no power to adjudge any controversy, in law or equity; that judicial power is vested exclusively in the courts. It is true that a city council can not be invested with judicial powers such as are conferred upon the courts, but a city council may determine who has been elected as a member of a body of that character without exercising judicial powers. The character and nature of a contest of this sort is described in Linegar v. Rittenhouse, as follows: “The jurisdiction, the mode of trial-, and the whole contest is purely statutory, and is not regulated or governed by the common law. At the common law it was not a judicial proceeding except in a proceeding in the nature of a quo warranto, in which evidence was heard, and the court determined whether the defendant was entitled to the office. If it was found he was a usurper, he was ousted; hut it was only by such a proceeding that the courts interfered in such contests.”

We do not regard a contest of this character which comes before a city council, as a judicial proceeding, as that term is understood, but rather in the nature of a ministerial act to ascertain who has been elected—a duty which the legislature had the undoubted right to confer upon a city council. The finding of such a tribunal is not a judgment, in the sense in which that term is used in the law. In Dickey v. Reed, 78 Ill. 262, it was held that courts of equity have no inherent -power to try contested elections, and they have never exercised such power except in cases where it has been conferred by express enactment or necessary implication therefrom. In Moore v. Mayfield, 47 Ill. 169, a contest under the statute then in force was not regarded as a “case,” but it was merely a statutory proceeding to re-eanvass the votes and ascertain the result. In Dale v. Irwin, 78 Ill. 175, a proceeding to contest the election of a county judge in the circuit court was held, to all intents and purposes, to be a chancery proceeding, and that the court had jurisdiction. But that decision has no bearing here. It was predicated upon section 97, chapter 46, of the Revised Statutes of 1874, which in express terms confers jurisdiction on the circuit court to determine contests of the election of judges of the county court, in regard to the removal of county seats, and in regard to any other subject which may by law be submitted to the vote of the people. This act does not, however, include the contest of an election of an alderman in a city or incorporated town.

The judgment of the circuit court will be affirmed.

Judgment affirmed.