author: Mr. Justice Scott

text:
    The Illinois Central Railroad Company v. Henry Willenborg et al.

      Filed at Mt. Vernon May 12, 1886.

    1. B Alisto ad—farm, crossings—of a clause in a deed for right of way— way, containing a clause to the effect that it “ shall erect and maintain such ■ crossings as may be necessary to the accommodation of persons whose lands are divided by”-its track, this will clearly create a duty on the part of the company to erect and maintain suitable farm crossings for the owners of the land divided by its track, and a court of equity will not regard with favor a bill seeking relief from such duty. duty of company. Where a railway company accepts a deed for its right of
    2. Same—of the statutory requirement—constitutionality—retrospective operation of the statute. The act of 1874, in relation to fencing and operating railroads, which imposes the duty on the railway companies to construct farm crossings for the use of the owners of land adjoining their tracks, is a valid and constitutional law, even in respect to railway corporations organized under charters long before its passage, its requirements being but police regulations.
    3. The statutory regulations in regard to fencing railroad tracks, and the construction of farm crossings for the use of adjoining land owners, are police regulations, in the strict sense of those terms, and apply with equal force to corporations whose tracks are already built as well as those thereafter constructed. They have reference to the public security, both as topersons and to property.
    4. All property devoted to public uses, takes on a nature or qualification quasi public, and for that reason is held to be subject to- legislative control, ■in a greater or less degree, and to which'mere private property of the citizen is not subjected. But-even private property must be so used as not unnecessarily to injure another.
    5. Same—farm crossing—in case the owner malting the crossing—as to the place where built. It being the duty of a railway company to construct farm crossings when and where necessary for the use of land owners whose lands are divided by its track, it will not be allowed to enjoin the owner from making such crossing, on its neglect to make the same on notice, on the ground the proposed crossing may be dangerous, when it has not offered to make one at some other place, and" without proof that a crossing at the place proposed would be more dangerous than elsewhere.
    6. Same—in.case the company had already provided a crossing—but not sufficient or safe. A railway corporation will not be relieved of its duty, by law, to make a farm crossing over its track for an owner whose land is divided by the track, merely because many years before it may have built a crossing upon other lands, and to make use of which would be attended with danger to such owner.
    7. Same — remedy of land owner—negleet to build farm crossing by railroad. The remedy of a land owner whose land is divided by a railroad track, for a refusal or neglect of the railway company to construct him a suitable farm crossing, whether the duty to make it arises out of a contract or under the statute, is full, complete and adequate at law. Therefore a court of equity has no jurisdiction to enforce performance of the duty.
    Writ oe Error to the Circuit Court of Effingham county; the Hon. Thomas S. Casey, Judge, presiding.
    Messrs. Green & Gilbert, for the plaintiff in error:
    No matter what right to a crossing defendants below might have had by virtue of any contract, the law did not permit the enforcement of that right by the strong hand of a trespasser. But they were claiming to act, not as trespassers, but under a power assumed to be granted in sections 51 and 52 of chapter 114 of the Bevised Statutes of 1880. These sections were enacted nearly twenty years after the location and completion of the railroad of the complainant. The im-. position of these new burdens is repugnant to the constitution. Railroad Co. v. Bloomington, 76 Ill. 447.
    The pendency of a suit at law to recover damages for a breach of the covenant to construct a farm crossing, is a bar to relief in equity to enforce its specific performance. Mason v. Richards, 3 Gilm. 31.
    Mr. John C. 'Wsite, for the defendants in error:
    It was the duty of the company to make the farm crossing. The statute imposes the duty. Statute of 1880, chap. 114, secs. 48, 51, 52.
    This statute is a valid exercise of the police power of the State, and a salutary regulation of the use of property, that other property may also be enjoyed. Potter’s Dwarris, 444, 456; Cooley’s Const. Lim. (5th ed.) 710,715; Thorp v. Railroad Co. 27 Vt. 149; Commonwealth v. Alger, 7 Cush. 53; Hyeman v. Railroad Co. 16 Barb. 353; Railroad Co. v. McClelland, 25 Ill. 144; Railroad Co. v. Appleby, 28 id. 283; Railroad Co. v. Jacksonville, 67 id. 40; Ruggles v. The People, 91 id. 262; Railroad Co. v. The People, 92 id. 100; Railroad Co. v. Warrington, 92 id. 162; Railroad Co. v. Railway Co. 105 id. 400; Railroad Co. v. The People, 105 id. 238; Munn v. Illinois, 94 U. S. 113.
    By acceptance of the deed for right of way and enjoyment of the grant, plaintiff agreed and is equitably bound to make the farm crossing. Gray v. Railroad Co. 37 Iowa, 122; Atlantic Docket Co. v. Leavitt, 54 N. Y. 35; Kellogg v. Robinson, 6 Vt. 279; Masury v. Southworth, 9 Ohio, 340; Railroad Co. v. Mitchell, 47 Ill. 166; Willenborg v. Railroad Co. 11 Bradw. 298; 1 Washburn on Real Prop. (2d ed.) 14, sub-secs. 14, 16, pp. 621, 622.
    A farm crossing properly constructed at the place selected by the defendants would discharge the duty owed by plaintiff, and satisfy the rights of defendants. Abson v. Fenton, 1 B. & C. 87, *201; Wheeler v. Railroad Co. 12 Barb. 227; Wademan v. Railroad Co. 51 N. Y. 568; Gray v. Railroad Co. 37 Iowa, 122; Boggs v. Railroad Co. 54 id. 440; Jones v. Seligman, 81 N. Y. 191.
   Mr. Justice Scott

delivered the opinion of the Court:

The original bill in this case is for an injunction and relief, and was brought by the Illinois Central Eailroad' Company, against Henry Willenborg and Frank Beckerman. It appears from the allegations of the pleadings, the right of way on which the road of complainant is constructed, divides lands owned by defendant Willenborg, and that a farm-crossing over complainant’s road is necessary for the convenient use of the lands by the owner and his tenants. Defendant Beckerman is a tenant of his co-defendant Willenborg, and has no other interest in the litigation. As early as 1852 the railroad company acquired the right of way over the premises by deed from Heinrich Fisher, and soon after constructed, its road over the same, and since then has operated its trains thereon. On the 25th day of May, 1882, defendants notified the railroad company to build or construct, for the use of the farm, a private crossing over its track at a certain point indicated, and that if it did not build such crossing, defendants-would proceed under the statute to construct it. The railroad, company refused or neglected to build a crossing at the point-indicated, or elsewhere on the farm, and defendants having entered upon the work of constructing such crossing, the bill in this case was brought to perpetually enjoin the further prosecution of the proposed work. It is alleged as a ground of relief, that at the point where the notice to defendant required the crossing to be constructed, there is a deep cut, where it is alleged it would have been manifestly unsafe to make a farm crossing; that when complainant purchased the right of way it realized the danger of building a farm crossing at the point in question, and had voluntarily made a crossing for the use of the owner of the land at a point three hundred feet north of the point now insisted upon, which for more-than twenty years had been satisfactory.

The bill makes the point, sections 51 and 52, chapter 114,. of the Eevised Statutes, under which, it is alleged, defendants had entered upon the right of way and were constructing the crossing, are not obligatory on the railroad company, for the reason they were enacted many years since complainant received its charter from the State, under which it had constructed and operated its road, and if enforced, the result-would be the taking of the private property of the company for the private use and benefit of the adjoining land owners, which, it is charged, can not be done, under the constitution,, without first making compensation. In their answers defendants insist that sections 51 and 52, cited, are applicable and. binding on the railroad company; and if enforced will violate no provision of the constitution. They also insist upon the duty resting upon the company, arising out of a clause of the deed from Fisher to the corporation, which obligated the com-. pany to erect and maintain for him, and to whose rights-defendants have succeeded, a convenient crossing, which is-as follows: “It is understood that said company shall erect- and maintain such crossings" as may. be necessary to the accommodation of persons whose lands are divided by said track. ” They also deny that such crossing, when constructed, would be dangerous, either to the parties using it, or "to the railroad company. After filing their answer, defendants filed their cross-bill, alleging the duty of the company to construct the crossing, both under the statute and also under the covenants contained in the right of way deed. On hearing the evidence, the circuit court dismissed the original bill for want of equity, and dissolved the injunction, with damages, and granted relief on the cross-bill. To reverse that decision complainant brings the case to this court on error.

There would seem to be no equitable considerations in support of the original bill, since complainant, by accepting the deed of the right of way, had covenanted to erect and maintain such crossings as may be necessary for the accommodation of persons whose lands are divided by the track of its road. Under that covenant, it is and was the clear duty of the railroad company to erect and maintain a suitable farm crossing for the owners of the land divided by its track, and equity will hardly listen with much favor to the complaint of a party who seeks relief against an obvious duty arising out of a covenant entered into upon a valuable consideration.

But the decision dismissing the original bill, as was done, may be sustained on the broad ground it was the duty of the company, under the statute, to construct suitable farm crossings for the use of the parties through whose lands its-road-bed is constructed. Section 1, of the act of 1874, in relation- to fencing and operating a railroad, makes it the duty of every railroad corporation, within six months after its line is open for use, to construct farm crossings “when and where the same may be found necessary for the use of the proprietor of the land adjoining such railroad.” Section 3 of the same act provides, whenever a railroad corporation shall neglect or refuse to build or repair such farm crossings, as provided in that act, the owner .or occupant of the lands adjoining such railroad through which the railroad track is or may be laid, may give notice in writing to such corporation to build such crossing ten days after service of the notice. Section 4 provides, in case the corporation refuses to build such crossing after notice, as provided in section 3, the owner or occupant of such land may build it, and may recover double the value thereof from the defaulting corporation, with damages. Had similar provisions with these sections of the statute been incorporated in the charter of the corporation, or existed in some law that entered into its charter, it would hardly have been insisted the company would not be bound to observe them, or that their enforcement would violate any provisions of the constitution.

The point is made, however, that these provisions are not obligatory on this corporation, because they were enacted many years since it received its charter from the State. This is a misapprehension of the law. The regulations in regard to fencing railroad tracks, and the construction of farm crossings for the use of adjoining land owners, are police regulations in the strict sense of those terms, and apply with equal force to corporations whose tracks are already built, as well as those to be .thereafter constructed. They have reference to the public security, both as to persons and to property. All property devoted to public uses takes on a nature or qualification quasi public, and is for that reason held to be subject to legislative control in a greater or less degree, and to which the mere private property of the citizen is not subjected. Bights purely and exclusively private, in nowise affecting others, and in no way affecting public morals, are not regarded as being within the control of the police, power; nor can mere private property be taken for public uses without making to the owner just compensation; yet the law has always required the citizen to so use his property as not unnecessarily to injure another, and, to compel the observance of that rule, even private property may be brought within legislative control to that extent. But where property, whether belonging to a natural person or to a corporation, becomes “affected with a public-interest, it ceases to he juris privati only. ” Where a party devotes his property to a public use, the community at large acquire such a qualified interest as will subject it to legislative control for the common welfare. Accordingly, the property of railroads, and other similar corporations transacting business for and with the public, has been subjected to burdens not imposed on the owners of mere private property, used purely and exclusively for private interests. The distinctions in this regard have been uniformly observed. It is for this reason it has been frequently held that railroad corporations, notwithstanding no such right had been reserved in their charters, may be required to fence their track, to put in cattle-guards, to place upon their engines a bell, and to do many other things for the protection of life and property. No public exigency has ever made it necessary to impose such burdens on the citizen exercising no functions or occupations in their nature public or quasi public. Bail-road companies are public corporations, in a limited sense, although the right of way, the road-bed, and the track thereon, are for the exclusive use of the owners, over which only their own conveyances are propelled. All others are excluded. The traffic, however, on railways, bears no analogy to our notions of travel on an ordinary street or highway. The uses are totally different, and even inconsistent. The one is exclusive in favor of the owner, and the other is open and free to all. The common use of railroads by the public could not be otherwise than dangerous. It is for that reason their use is. restricted to the owner. The fact railroad corporations are granted' exclusive franchises to conduct a business in its nature public, must subject them to all reasonable control to secure the public safety and welfare. It is now the settled law, that railroad corporations are within the operation of all reasonable police regulations, otherwise there would be no security for the life or property of the citizen residing in the vicinity.

No reason is perceived why, upon the same principle on which a railroad corporation may be required to fence its track and construct cattle-guards, it may not be required also to construct farm crossings. The one is as much required as the other for the convenience and safety of the adjoining land owners. Such coiqoorations are permitted, in order to secure the best and most useful road-bed, to make deep cuts and throw up embankments on their right of way through farms. On account of the peculiar construction of all railways, it is obvious it is impracticable for the owner whose lands are divided by the track, to pass from one part to another unless crossings are provided. Indeed, it would be most dangerous if persons should attempt to cross a railroad track at a point where no provision is made for that purpose, and persons are not permitted to do so. It certainly can not be inferred the legislature would irrevocably grant to a railroad corporation a franchise to construct a railway through farm lands in such manner as to cut off all right of passage to and from the portion separated by the road-bed. The proposition a corporation can construct a railroad from Galena to Cairo, and can not, under the police power of the State, be compelled to construct “farm crossings ” over its track for the use of the owners of lands over which it passes, is too absurd to be considered seriously. That would occasion irreparable injury to the adjoining proprietor, and would be in violation of that maxim of the law, sic utere tuo ut alienum non Icedas.

The conclusion seems inevitable, the statute that requires a railroad corporation to construct farm crossings “when and where the same may become necessary for the use of the proprietors of the land adjoining such railroad, ” as well as to fence its track and construct cattle-guards, is a reasonable police regulation, and the enforcement of the duty enjoined by the statute violates no provision of the constitution.

The case of Illinois Central Railroad Co. v. Bloomington, 76 Ill. 447, is not analogous, in its facts or otherwise, with the ease being considered, and is therefore no authority in support of the position taken by counsel in this case. In that case a new street was opened by the corporate authorities of the city across the track of the railroad, and it was sought to impose the whole burden upon the company to construct the approach of such new street to and over the track, and this, it was held, could not be done under any power conferred by the city charter. Constructing approaches to and crossings over the track for any number of streets that may be laid out by a municipal corporation, is a very different thing from constructing an ordinary farm crossing that is made indispensable by the construction of the track itself. The latter could reasonably be anticipated when the railroad was constructed, but it could hardly be expected the company could anticipate the municipal corporation wrould open new streets where none had existed when the track was located. Inasmuch as there was no law that made it the duty of a company to conform to a new state of facts that might transpire, it was held the General Assembly had no rightful authority, under the constitution, to impose such burden upon the company by a subsequent law. Nor is the ease of Chalcraft v. Louisville, Evansville and St. Louis Railroad Co. 113 Ill. 86, sufficiently analogous in its facts to be an authority against the views expressed in this opinion.

The objection the construction of a crossing at the point indicated would be dangerous, can not be allowed to prevail. It is not shown there is any other place on the premises where the crossing would be less dangerous. That defendants are entitled to a crossing somewhere on their own land, either under the contract in the deed or under the statute, not the slightest doubt is entertained. But would a farm crossing at the point in question be dangerous ? It is not proved it would be. It is shown the cut at the point in question is not much more, if any, than six feet below the line of the natural surface. Some dirt has been thrown from the cut upon the adjacent bank, and that,makes the cut seem deeper than it really is. It is quite apparent a farm crossing properly constructed at the point indicated would not be dangerous for all the use that would be made of it for an ordinary farm crossing. Such crossings are only intended for the use and benefit of the farm, and the persons using it would be expected to observe more care than is ordinarily observed by the public on an ordinary highway. It may be that if there were another point on the farm of defendant where a crossing would be less dangerous, the company, when notified to build it, would have had the privilege to select it; but no such proof is made, nor did the company elect to build a crossing elsewhere on the land of defendants: Nor were defendants under any obligation to accept the crossing on other lands that had been provided many years before. To make any use of that crossing they had to follow the track on the right of way for a considerable distance before reaching it, and then return on the right of way on the other side of the track, to their own land. Such a mode of crossing the track is most dangerous, and the law will not require defendants to expose themselves to such hazards as its use would involve. In any view that can be taken, the decree dismissing the original bill is correct.

Coming now to the branch of the case made by the cross-bill of defendants, it is thought the decree rendered in their favor can not be sustained. Whether they are entitled to have a crossing constructed by the company for their use, either under the covenant in the right of way deed, or under the statute, or both, their remedy is clearly in a court of law, and they will be remitted to that forum, where such matters are properly cognizable. The remedy for the complaint made against the railroad company for the omission of duty, whether it arises out of a contract or under the statute, is full, complete and adequate at law, and no reason appears why a court of equity should assume jurisdiction. The decree of the circuit court dismissing the original bill will be affirmed, and the decree granting relief to defendants on their cross-bill will be reversed, and the cross-bill dismissed. Each party will be required to pay its own costs in this court.

Decree reversed in part and in part affirmed.


source: Caselaw Access Project

author: Mr. Justice Scholtteld

license: Public Domain

text:
    Mary F. Kimball v. James Cuddy et al.

      Filed at Ottawa May 15, 1886.

      1. Mental capacity—undue influence—in respect to the malting of a deed or will. To set aside a deed on the ground of mental weakness of the grantor, it is necessary to show such a degree of mental weakness as to render him incapable of understanding and protecting his own interests. The mere fact that his mental powers have been somewhat impaired by age or disease, is not sufficient, if the maker of the deed still retains a full comprehension of the meaning, design and effect of his acts, unless by reason of undue influence of the grantee he is unable to exercise his will in that respect.
    2. The fact that a party is physically unable to look after his property, or his mind is enfeebled by age or disease, if not to the point of lunacy or absolute imbecility, does not take from him the power to dispose of his property by deed or will, as he pleases.
    3. Weakness of mind from age and sickness, short of absolute incapacity, may be considered, in connection with undue influence, as making the grantor an easier victim to such influence; but weakness and opportunity for undue influence do not prove that undue influence has been exercised.
    á. The undue influence which will avoid a deed must be such as to destroy the freedom of the maker’s will. Mere advice or argument or persuasion will not vitiate it, if made freely and from conviction, though it may appear that the instrument would not have been made but for such advice or persuasion.
    5. Neither a deed nor a will can be impeached merely because of the injustice or impropriety of the provisions thereby made. If the maker is sane, he may, from caprice, causeless malice or foolish prejudice, cut off his children, and give his property to strangers. The moral injustice or caprice may be considered only as a circumstance on the question of insanity, but it is not a controlling one; and if, from other evidence, it be clear the party was sane, it is of no moment whatever.
    Appeal from the Circuit Court of Will county; the Hon. Charles Blanchard, Judge, presiding.
    Mr. P. C. Haley, for the appellant:
    'The burden of proof is upon the complainants. English v. Porter, 109 Ill. 285; Roe v. Taylor, 45 id. 485; Richie v. Carter, 42 id. 376.
    The bill alleges that the deed was procured by the use of intoxicants. To sustain this charge it must be clearly shown the deed was made during a time when reason was dethroned from this cause. The onus was upon appellees to show such was the case. 1 Jarman on Wills, 98, 99.
    An influence, even if used, must be a present coercive power operating at the time of the execution of the deed. Broomfield v. Broomfield, 43 Ill. 155; Moore v. Barclay, 17 Ohio St. 302.
    A draft of a previous will, though never executed, may throw considerable light upon a testator’s intention. Thornton v. Thornton, 39 Yt. 122.
    A man’s memory may be impaired; his brain may have lost its normal vigor; he may have been paralyzed; he may be over eighty years of age; he may be an inmate of a lunatic asylum.; still, if he has capacity to understand the nature and effect of his act, it is valid. Fish v. Newell, 62 Ill. 195; Rutherford v. Morris, 77 id. 397; Willemin v. Dunn, 93 id. 511; Brown v. Riggin, 94 id. 560; English v. Porter, 109 id. 285.
    In Lowe v. Williamson, 1 Gr. Ch. (N. J.) 82, it is said, though the influence acquired by kind offices be exercised over a testator above eighty years of age, whose bodily faculties are impaired, and who, with good reason, entertains feelings of hostility toward his family, the will can not on that account be invalidated.
    Even where a man lives with a woman to whom he is not married, and leaves her his estate, the law will not presume undue influence. Main v. Ryder, 84 Pa. St. 217; Farr v. Thompson, Cheves, 37; Roe v. Taylor, 45 Ill. 485; English v. Porter, 109 id. 285.
    Influence will never be presumed from mere opportunity. Boyse v. Rossborough, 6 H. L. C. 2; Cudney v. Cudney, 60 N. Y. 62.
    Where a man in an enfeebled condition was so dependent upon his wife that she must naturally possess great influence ■over him, made a will making an unequal disposition of his property, it was held to create no presumption of improper influence. Meeker v. Meeker, 75 Ill. 260. See, also, Brown v. Riggin, 94 Ill. 560; Carpenter v. Calvert, 83 id. 62.
    Mr. C. W. Brown, for the appellees:
    The acts and contracts of persons of weak understanding, who are thereby liable to imposition, will be held void in ■courts of equity, if the nature of the act or contract justify the conclusion that the party has not exercised a deliberate judgment, but that he has been imposed upon, circumvented or overcome by cunning, artifice or undue influence. 1 Story’s Eq. Jur. sec. 238; 1 Ohio St. 58.
    It is immaterial from what cause the weakness arises. 1 Story’s Eq. Jur. sec. 234.

      For cases where gifts of feeble old men set aside for undue influence, see Todd v. Grove, 33 Md. 188; Dean v. Phillips, 5 W. Va. 188.
    When parents are aged and infirm, courts of equity will regard witli suspicion their contracts with their children, unless plainly for the advantage of the parent. 57 Barb. 453.
    If a person is of feeble understanding, and the. bargain is unconscionable, what better proof can one wish of its being obtained by fraud or imposition, or undue influence, or by the power of the strong over the weak? 1 Story’s Eq. Jur. sec. 236; 2 Johns. Ch. 238; Oard v. Oard, 59 Ill. 46; Frazier v. Miller, 16 id. 49.
    In Huegenin v. Basely, 14 Yes. Jr. 273, and Purcell v. McNamard, 16 id. 118, deeds were cancelled upon the ground of ignorance and undue influence. See, also, Van Horn v. Keenan, 28 Ill. 445; 1 Story’s Eq. sec. 309b.
    In all cases of alleged undue influence, the mental strength and capacity of the testator are directly in issue. Waterman v. Whitney, 11 N. Y. 137.
    When a will is written or procured to-be written by a person benefited'by it, these are circumstances to excite stricter scrutiny, and require stricter proof of volition and capacity. Duffield v. Robeson, 3 Harr. 384; Tompkins v. Tompkins, 1 Bailey,. 92.
    In this case the testator substantially ignored his children,, and who can say it was a free and deliberate act of a poised and clearly disposing mind ? The attesting witnesses could not swear to the antecedent agencies by which that will and. codicil were procured. That evidence is wanting in this case, and the will should be set aside. Harrell v. Harrell, 1 Duv. 203; Cramer v. Krambaugh, 3 Md. 431.
    It is not to be supposed that fraud and undue influence-are ordinarily susceptible of direct proof. In some cases the courts have held that fraud and undue influence will be inferred from the nature of the transaction, alone. Tyler v. Gardner, 35, N. Y. 595; 2 Sheld. 272.
    The inquiry whether undue influence was exerted over the mind of the testator should not be confined to the execution of a will. It should be whether any undue influence operated on him in the disposition of his property. White v. Bailey, 10 Mich. 155; Beaubien v. Cicatle, 12 id. 436; Willetts v. Porter, 42 Ind. 250.
    The feebler the mind the less evidence will be required to invalidate the will of such a person on the ground of undue influence. Reynolds v. Allen, 90 Ill. 149.
   Mr. Justice Scholtteld

delivered the opinion of the Court:

Hugh Kennedy died intestate, in Will county, on the 10th day of August, A. D. 1880, leaving surviving him his daughters, Ann Cuddy, Eliza Cunningham, Kate Kerwin and Mary E. Kimball, his only children and heirs at law. Before his death, on the 27tli day of April, A. D. 1880, he conveyed all his real estate,—an eighty-acre tract of farm land in that county,—and gave all his personal property, to his daughter Mary E., taking back from her an obligation to support, maintain and nurse him during his life, and to pay all his debts, and his funeral expenses, etc., after his death. This bill is filed by Ann Cuddy, Eliza Cunningham and Kate Kerwin, (their husbands joining them,) against Mary F., to set aside the deed, on the ground that Kennedy was imbecile, and mentally incapable of making a deed at the time this deed was executed, and that it was caused to be executed by the undue influence of Mary F. She answered, denying the material allegations of the bill. On final hearing, the court decreed in conformity with the prayer of the bill, and the case comes here- by the appeal of the defendant.

We have given the evidence, as it is presented in the printed abstract before us, careful consideration, and wé are of opinion that it does not sustain the decree.

It must be kept in mind that the burden is upon complainants to prove the allegations of their bill; that they must show such a degree of mental weakness as renders the maker of the deed incapable of understanding and protecting his own interests; that the mere circumstance that the mental powers have been somewhat impaired by age or disease is not sufficient, if the maker of the deed still retains a full comprehension of the meaning, design and effect of his acts, unless, by reason of the undue influence of the grantee, he ■was unable to exercise his will in that respect. (Willemin v. Dunn et al. 93 111. 511, and eases there cited.) Moreover, the undue influence which will avoid an instrument of this character, must be such as to destroy the freedom of the maker’s will. Mere advice or argument or persuasion would not vitiate it, if made freely and from conviction, though it might appear that the instrument would not have been made but for such advice or persuasión. Roe et al. v. Taylor, 45 Ill. 485; Carmichael v. Reed, id. 108.

The general condition physically, and, to some extent, mentally, of Kennedy, is presented by the testimony of Dr. George H. Hosmer, his attending physician throughout -his illness, embracing the time when the deed was made. He was called and examined on behalf of the complainants, and evidently testifies without feeling or bias. He testified: “I attended Hugh Kennedy in his last illness; called about last of January until June; case of senile bronchitis with asthma. First, I treated him to relieve immediate suffering^; that treatment extended through February. Then I became convinced that illness would be his last sickness. After that I called and prescribed for him with no hope of cure, but to relieve present suffering. In February found him up and sitting around; after that in bed. Did not know if invariably confined to bed, but think he was after February. Judge his age over seventy. In March, April and May found him in bed; generally more or less difficulty in conversation. At times he didn’t appear to be very stupid, at times he did. Had most of conversation 'with Mary, as it seemed to hurt him to talk. At first he could talk sensibly about himself, but gradually became weaker, bodily and mentally, until the end.' Can’t state whether after February and March his mind was in condition to transact important business. I didn’t have that in mind, and made no test. There may have been times that it was; probably not always. At times I visited him in February and March, he may have been of capacity to execute a deed. If I had that in view could tell, but made no test. There were times when he was not of sufficient understanding. I recollect, too, when he Was in a stupor; it must have been last of May or first of June. After February he seemed to comprehend my coming, all but those two times. Could not say whether at that time I deemed him a man in full possession of his faculties. Think at times his faculties were impaired. He told me it hurt him to talk, and I mostly talked with his daughter. Would press on some part and ask him if it hurt him, and he would nod. I advised cough mixtures; opiates to relieve diarrhea; stimulants to relieve pustiation, and suitable nourishment. I advised brandy and whisky, suitable quantity, and. left it to herself. I always found her a good nurse. Six or eight ounces a day would be reasonable for a man in his condition. A quart would intoxicate and prostrate.”

Cross-examined—“First visit found him sitting by stove, suffering from senile bronchitis. Mental condition sound for man of his age ^ answered all questions directly and intelligently. First month he was in chair; after that in bed, and may have been in chair at times. Prescribed opiates in May for painful diarrhea; set in about May 1, continued to death; resulted in involuntary discharges, due to general debility. Want of control of bowels may exist where patient has not lost mental faculties. Resumed visits in six weeks after March 1; found him in bed, weakened down; after that saw him four or five times. During visit saw James P. Murphy, J. P., in house where Mr. Kennedy was, some time in month of February. On that occasion Mr. Kennedy was sitting in chair by the fire in sitting room. Before illness he had been in habit of using whisky; It was understood to give him whisky when he was weak and sinking, and leave it a good deal to himself when he wanted it. She told me she had bought wine for his use, and I told her wine would gripe him, and to get whisky or brandy. I recollect that very distinctly. Persons in his condition, dying of general debility, are apt to be stupid and weak at times, and at other times revived, and more clear and active, mentally. In May and April he had difficulty in bronchial region that made conversation painful, and for a person not a physician to judge of his mental condition, it would be necessary to observe him constantly or .frequently when not under the influence of stimulants, and after periods of rest and before, to form correct opinion of his mental condition. It was more difficult to judge of his mental condition than of a person dying of general debility whose vocal organs were all right. Nothing in his case more likely to affect mental faculties than any- man sinking under asthma and bronchial affection. He exhibited no signs of mental disorder existing prior to his illness, except such as naturally produced by his bodily ailments. Nothing in his case likely to produce mental disease more than other ailments producing similar bodily and nervous prostration.”

At such times as he was revived and mentally more active, no reason is given in this evidence, though tj;he doctor shows that he made no examination of Kennedy’s mind with reference to an opinion upon that subject, why Kennedy could not make a deed. He thinks after February and March there may have been times when his mind was competent to make a deed—probably it was not at all times.

Now, Murphy, the justice of the peace, an apparently intelligent and disinterested witness, visited him for the purpose of transacting business, in February, and he also took the acknowledgment of the deed. This is what he says: “Knew Hugh Kennedy over ten years. In 1880 saw him in Joliet. Saw him in Joliet on Jefferson streeet, and shook hands with him. I wrote out his will and testament at Mrs. Kimball’s house. He was sick. He got out of bed and sat in a chair. He signed the will. It was witnessed by William Killeen and James Woods. Nobody present "when the will was drawn, but Mr. Kennedy and myself. He gave me such directions as were necessary to the draft of the will. Nobody else gave me any directions. Once or twice his daughter came in and asked if he wanted anything, but the old man did not say anything, nor I didn’t say anything, nor either of us do anything, until she went out. Two witnesses signed the will, and he gave it to me. He understood what he was doing. He was weak and sick, and as rational as anybody I could talk to. I think he was as sensible as anybody. Had possession of his senses then, in my opinion, as perfectly as when I had known him in good health. Saw him again in same house. That will was changed a little. I drew what is called a codicil. Can’t tell how long I talked with him then. When I was drafting the codicil nobody present but Mr. Kennedy and I. He was in the same room, sitting in the same chair as before. He signed the codicil, and the two persons that witnessed the will witnessed it. His mind was as clear then as when I drew the will. Saw him again in the same house. Can’t tell how long after. Went there with J. L. O’Donnell, near evening. I think O’Donnell requested me to go to acknowledge a deed. Mr. Kennedy was sitting up in bed. I got the deed and went into his room—next room to sitting room. I asked the old man if that was his signature, and if he understood the contents of the deed, and he said ‘Yes.’ Think O’Donnell drafted the body of the deed. Mr. Kennedy was sane and in his right' mind then, but a little weaker than when I saw him previously. He and I talked about how comfortable he was, how well he was taken care of, and that it would probably be the last time I would see him, as the man expected to die in a short time. He told me to destroy the will and codicil, after the deed was made. When he told me that, I think he was as sane and as reasonable as at any time I ever conversed with him. Near as I recollect I stood close by his bed while there. Mary Kim-ball was grantee in that deed. I destroyed the will and codicil in obedience to his directions. There was land given to Mrs. Kimball in the will. He told me it was the same land mentioned in the deed. That for fear there would be trouble about the will, and to put an end to that, he thought he would make it into a deed. The real estate mentioned in the will was given by the will to Mary Kimball. There were notes, a watch, a hat, and other things I can’t remember, in the will. The notes were given to his brother, the other little articles to' his daughters and daughters’ children. The codicil made •some change, but I am positive it was not the real estate. I think he was at all times determined that Mary Kimball should have the land. Think codicil was that his funeral expenses be paid, and what was 'left of the notes be divided, amongst his daughters. The will and codicil were in. my writing, and after they were executed no person ever saw them hut me. I destroyed them the same evening I drew the deed. When I drew the will I learned his feelings were friendly towards Mary Kimball, and he was very grateful .to her. I learned from him that Cuddy didn’t treat him very well, and he wasn’t very well pleased with Kerwin either. Don’t recollect he said anything about Kavanaugh. My impression is it was from Cuddy he feared trouble.”

Mr. O’Donnell, an attorney at ¡law, testified that he went to-see Kennedy on request communicated to him by the husband of the defendant, as having been made by Kennedy; that Kennedy talked intelligently of some general matters, and then told witness that he had made a will, and that he was. afraid his son-in-law, Cuddy, would make Mary trouble when he died; that he wanted to make it safe; that Mary had been very kind to him; that Kennedy then inquired if he could make a deed of the property to her, and upon being informed that he could, but that she would have to pay all his debts, Kennedy said, “Well, she can pay the debts; I want to make a deed to her. ” The witness then detailed some further conversation showing an intelligent understanding of his property, after which the witness left, promising to return on a future day. This conversation all, the witness says, occurred in the absence of the defendant. Some days afterwards, the defendant called upon the witness, saying that her father desired to see him. The witness then went again to Kennedy, taking Murphy, the justice of the peace who had drawn the will, with him. He testified that Kennedy then inquired why the witness had not come sooner, and he details conversations showing that Kennedy had an intelligent appreciation of his condition, and of the business in hand. The deed was then drawn, read over to Kennedy twice, and he signed it. He inquired what he owed the attorney, took out his pocket book, which was within reaching distance, and paid $5, promising to pay the residue when informed of the amount. The witness then proceeds thus : “Before the ’squire came in he said he wanted his daughter to pay his debts, give money to the priest for prayers, and build a monument, and wanted her bound in life to do that. I could get no paper but narrow note paper the child had. I said I would come again, and ’Squire Murphy said, ‘Yes, Mr. O’Donnell can come up here any time.’ Then the ’squire and he commenced talking Irish, and I went out and left them talking Irish in the room. The ’squire came out. I went back and asked what to do with the deed. He said give it to Mary, and let her do what she likes with it.” On a subsequent day the witness drew the obligation binding the defendant to perform her part of the contract, and after the witness read it over to Kennedy, the defendant signed it. The witness afterwards adds : “I haven’t any doubt Mr. Kennedy understood what he was doing, or I wouldn’t have drawn the deed. I am one of the attorneys in this case. At time I drew the deed I was not the attorney of Mrs. Kim-ball. I was paid by Mr. Kennedy. Once when I was- there he said he trusted me to see that this thing was all right; said, ‘I will trust you to see that my wishes are carried out as I want it,—that my property goes to Mrs. Kimball, and that she is not disturbed.’ ” On cross-examination, the witness further testified: “He (i. e., Kennedy,) asked me if he could give a deed; I never saw his will; told him will was as good as deed; he said they were lawing about wills all the time; he never told me about his personal property except what I have said; don’t recollect he ever told me what the will contained; he said he might linger a long time; he was a great burden to Mrs. Kimball, and she was very kind to him; he said Mr. Cuddy was very fond of lawing, and would make her trouble.”

■ E. P. Dunham, a witness called for the complainants, testified that he served a summons on Kennedy on the 4th of May, A. D. 1880, and that Kennedy said he was as helpless as an infant, and had to be lifted out and in every day; that the defendant then told the witness that she thought Kennedy was not getting any better; that he talked better than common that day; that there were days that he lay stupid, and did not say anything. The witness added that Kennedy seemed confused, and did not know what to do. This, however, it will be recollected, was some eight days after the deed was executed, and Kennedy was, therefore, necessarily weakened and impaired each day, gradually,—slightly, though it may be,—by the constant acceleration of the disease which ivas wearing his life away. Still, in what this witness shows that Kennedy then said, there is no evidence of imbecility or serious mental impairment. The witness said: “He was in bed. I read summons, and he did not know what he could do; asked my advice. I told him it was note of hand. He asked what he had better do. I told him it would not make any difference whether he was -there or not.” On cross-ex-animation the witness further said: “Voice low and feeble; asked my advice; he said he was too feeble and sick to attend to it; told him he was sued with McPartland, and it would make no difference whether he was there or not, they would get judgment anyway, and he said if that was so he would let it go. ” It is clear that he knew what the summons meant, and on being informed on what account the suit was brought, he seems to have as perfectly comprehended the situation as any one could. He talked as rationally as any one ordinarily would, lying physically helpless, in regard to a suit on a surety debt to which there was no legal defence.

Hugh McLaren testified, that he saw Hugh Kennedy at several different times after he went to the house of the defendant, which other evidence shows was the 20th of December, A. D. 1879. First time, he was sitting up. Talked with him. Next time, he was in bed. Kennedy then talked with witness. His mind was all right.

Peter Downey testified: “Visited Kennedy in spring and in July, A. D. 1880. Had conversations with him. ” And he says: “He recognized me, and conversed the same as during the last seventeen years. No difference, only I could see he was weaker. He was as rational talking and sensible as when I saw him in 1863.”

Catherine Downey testified, she saw Hugh Kennedy; saw him frequently before and after he was taken sick, and conversed with him. She saw and conversed with him in May; he was then sitting up, but very weak. She-also saw him in June and July. She says: “All that time I seen him he was capable of transacting any business, up to the 20th of July, by giving him a little time to talk.?

Eliza Foley testified: “His mind was clear and bright in April. He understood what he was saying. Very weak, but his mind clear. So far as I could understand, he was able to sign a deed of land intelligently. ”

C. J. Kimball: “Saw Kennedy almost every week during .spring and summer of 1880. Saw him short time before he died.” And he says: “During all that time I know he was in his right mind.”

John H.-Foley says: “Saw Hugh Kennedy at Kimball’s very often. Saw him sick in bed, and talked with him up to a week before he died. * *- * During- that time he was in possession of his senses sufficiently to understand an ordinary business transaction.”

William Stapleton testified, that he saw Hugh Kennedy in February, A. D. 1880, and again "ten or twelve days before his death. In February he was perfectly sane.

Mary A. Wood testified, that after the middle of February, A. D. 1880, and until Hugh Kennedy died, she saw him sometimes every day, and sometimes two or three times a week, and she assisted in taking care of him from May until he died. She says; “In my opinion, there was no time before June 1 that he could not transact ordinary business.”

■ John H. Kimball, the husband of the defendant, testified, that Hugh Kennedy came to his house, without the knowledge •of himself or wife that he was coming, in 1879. He. was taken sick in February following. For the first two months of his illness he thought he would recover,—after that, he expected to die. He details how Murphy ivas Sent for to draw ■the will, and how O’Donnell was afterwards sent for in regard to the deed, and that it was of his own volition, etc., and that, his mind was all right. On the other hand, the complainant Eliza Cunningham testified, that she was with her father at the time he died, and for three weeks before; that during that time she was in his room six or seven times a day; that he recognized her only about three times; he did not talk rationally, at all times; he did not talk much; they would ask him questions, and sometimes he would answer and sometimes he would not; and she details some flighty and incoherent remarks that he made at one time. He lay all the time in a slumber; when roused would wake with a wild look, say one word, and drop off again into slumber. She says that no medicine was given him while she was there but whisky; that the defendant gave him a common-sized glass nearly, full,—always half full,—five or six times a day, and she said he drank a quart a day. The witness also further testified, that defendant did not allow her to nurse her father, and tried to prevent her talking to him. In the opinion of the witness, he was not able-to comprehend the most ordinary business matters. She says, also, the defendant was a bad daughter, not a favorite of her father, and that she did not care for him well, and that he was not treated right. She admits that she does not feel kindly towards the defendant.

Three weeks before the death of her father, which was on the 10th day of August, would not be earlier than the 20th of July, lacking but a few days of being three months after the execution of the deed. Recalling the testimony of Dr. Hosmer, that Kennedy “exhibited no signs of mental disorder existing prior to his illness, except such as naturally produced by his bodily ailments,—nothing in his case likely to produce mental disease more than ailments producing similar bodily and nervous prostration, ” there is no conflict between this testimony and that of Murphy and O’Donnell, that Kennedy had sufficient mental capacity to execute the deed at the date it was executed. When this witness was with him he was in the last stages of a lingering disease, and stupor and weakness were the necessary results upon a mind which otherwise would be unclouded and bright. That he was not then competent to make a deed, proves only that fact; but no deed was then made. The complainant Ann Cuddy saw her father four times in February, then, again, saw him in March, for a few hours, then again in July, and she does not think he was at any of these times of sufficient mental capacity to transact business. How his mind was, in April, she does not, therefore, know; and she details flighty remarks that he made in her presence. She thinks the defendant tried to prevent her talking with him. She also says that the defendant was not a good and kind daughter. She says the defendant told her that her father drank a quart of whisky a day. Saw him get no medicine, and saw the defendant give him a half a glass of liquor, sometimes less, five or six times a day. Both this witness and the preceding one say that they .were on affectionate relations with their father, and this witness says that she never heard him, when well, express an intention to give his property to the defendant.

Mary Daley testified that she saw Hugh Kennedy in March, two or three times, and once in April or May, and she says: “In the four times I.saw him his mind was not fit to do business of any kind. ” She says that defendant said she gave him stimulating drink; that she used a quart a day, but did not say what she used it for. The witness shows that Kennedy talked with difficulty, on account of the asthma. She did not talk much to him, as it seemed to give him pain.

John Kennedy testified that he was at the house of the defendant from the 15th to the 17 th of March. He spoke to Kennedy and said, “Uncle, I am sorry to see you sick, and he said, ‘I know that John,’ and asked how was my father, and that was all that he said. He went into a kind of a doze. I had no other conversation with him. I saw him several times, and he did not appear to recognize me, ”—all of which only proves that .the witness, for two days, was about the house of a sick man, who, because of his sickness, or for some other reason, was not inclined to talk.

The complainant James Cuddy testified, that he saw Hugh Kennedy in the middle of February, sick abed, and not able to turn himself, drowsy and stupid. Saw him again in February, four or. five days afterwards; his face pale; had a sharp, piercing look in his eyes. Saw him last of March. Asked him how he felt. He said he would be well in a few day's. Next saw him in July; was thin, weak, pale and drowsy. Did not think him able to talk much. Saw him get whisky every time was there, half glassful. Heard defendant say that he used a quart a day. Gives some flighty talk of Kennedy that he heard. Says relations of father with daughters were friendly. Kerwin and family are in Kansas, and suffering for something to eat. On cross-examination said: “I am not sure that defendant said he used or drank a quart of whisky a day. ”

A letter written for the defendant to Ann Cuddy, dated April 2, and a letter written by the husband of the defendant,' with her consent, to John Kerwin, on the 20th of August, A. D. 1880, containing admissions that Kennedy was prostrated, and unable to help himself from an early period in his sickness, were also read in evidence. And this embraces the substance, as we understand the record, of all that was proved to sustain the bill.

There is no evidence tending to prove that the defendant even requested a will or deed to be made in her favor, and there is evidence affirmatively showing that it was purely voluntary on the part of Kennedy. He was not even solicited to make her house his home. But Cuddy having sued him, and obtained a judgment against him on the 24th of November, A. D. 1879, which Kennedy seems to have regarded as unjust, he ceased to live with him. One of Kennedy’s daughters lived in Kankakee county, and another in the State of Kansas, and .the defendant only residing near by, it was quite natural that, being on good terms with her, he should go to her house, as he did. It is not improbable that his feeling against Cuddy was extended to Cuddy’s wife, and unjust as, in a moral sense, this may have been, it furnishes no excuse for setting aside the deed. Morrison, the justice of the peace before whom the suit of Cuddy against Kennedy was tried, says: “Cross words passed between both parties at the time. Mr. Kennedy said he could get that judgment out of him. All he got after that, he was going to cut him off—something like that. ”

We have omitted to notice the testimony of another physician examined on behalf of the complainants, because we do not regard it as of controlling importance, and Mrs. Downey testifies that when that physician visited Kennedy, he, witness, was too drunk to attend to business,—that he could hardly stand up. It has been seen that the use of whisky by Kennedy "was under the. direction of' his attending physician, Dr. Hosrner. The defendant’s husband testified that whisky was never given to Kennedy except at his request, and then only two or three tablespoonfuls at a time; that he gave him liquor, and his wife gave it to him, and Mrs. Cuddy gave it to him two or three times while she was there; that they used whisky with which to bathe him; that he has helped to bathe him with it two or three times in twenty-four hours. Mary A. Wood testified that he was bathed every morning with water and whisky; sometimes a pint of whisky was rubbed on his person with a sponge. That he was at all' times under the influence of whisky is- effectually disproved by the evidence.

The statement in the testimony of the complainants that Kennedy was not well nursed and cared for by the defendants, is effectually disproved by the evidence of other witnesses who have no apparent motive for speaking untruly. Thus, Dr. Hosrner says: “He had the best of nursing and care. Mary Kimball is the best nurse of my acquaintance. He was in a good-sized room for such a house, on a good bed, clean and neat. Surroundings as to comfort and cleanliness, good.” Peter Downey said: “I have seen many sick men, and never saw a sick man better taken care of for comfort and cleanliness.” Eliza Foley said: “He received the best kind of care.” John H. Foley testified to substantially the same. William Stapleton said: “He seemed to be cared for in the tenderest manner, with a great deal of affection, and everything about him exquisitely neat and clean.” Mary A. Woods shows that very great care was taken in nursing him, and she and several other witnesses testify that Kennedy frequently spoke gratefully of the kind attentions he received.

It is to be taken into consideration that the complainants, honest as their intentions may be, testify under feelings and motives calculated to bias; and yet everything to which they testify may be conceded, and it will not follow that Hugh Kennedy was mentally incompetent to make a deed when this deed was made. Neither of them was present at that time. What the condition of his mind then was, they do not necessarily know. They do not even show, affirmatively, that at every time they saw him before that period he was incapable of'making a deed. Dr. Hosmer says: “Persons in his condition, dying of general debility, are apt to be stupid and weak at times, and other times revived, and more clear and active, mentally. ” And according to the evidence of Murphy and O’Donnell, whom we are not warranted in disbelieving, it was at a time when he was “revived, and more clear and active, mentally, ” when the deed was made. Seeing him in a paroxysm of pain, or in the' stupor following relaxation from pain, could afford no accurate knowledge of the state of his mind at other and more favorable periods for mental operations.

It may be that Kennedy felt more grateful toward the defendant for her attentions than they deserved, and less kindly toward his other daughters than he should. There may have been many matters in the history of their lives and his, and many present considerations also, that, to have been entirely just, in a moral sense, should have been present in his mind and carefully weighed before he made the deed; but the law does not compel men to be entirely just, in a moral sense, in their gifts to their children. Neither wills nor deeds can be impeached because of injustice, in a moral sense, alone. If the party be sane, he may, from caprice, causeless malice or foolish prejudice, cut off his children and give his property to strangers. The moral injustice or caprice, in such cases, may be considered as a circumstance on the question of insanity, but it is not a controlling one; and if, from other evidence, it be clear the party is sane, it is of no moment whatever.

There is, especially with juries, and, it may sometimes be, even with courts, a disposition, originating in the better feelings, to step in, where a parent or other relative does not make an equal division, or a satisfactorily meritorious division, of his property, and make the proper division for him. This is not warranted by the law. The property owner, unless an idiot or lunatic, must be allowed to make his own division and disposition of his property. Nor does the fact that a party is physically unable to look after his property, or that his mind is enfeebled by age or disease,—if not to the point of lunacy or absolute imbecility,—take from him this power. It may be that such weakness makes him an easier victim of undue influence, and it is proper to consider it in that view; but weakness and opportunity for undue influence do not prove that undue influence has been exercised. But there is nothing startling, in. its unreasonableness, in what Kennedy here did. His nursing imposed great labor and care. For several months before he died he was bedfast, and' unable to control his bowels. This, of course,' necessitated frequent removals from his bed and changing of linen, bathing, etc., and imposed a kind and amount of labor and care that it would be difficult to buy. In his remark to O’Donnell he showred that he fully realized this, and acted upon it. He said “he might linger a long time; he was a .great burden to Mrs. Kimball, and she was very kind to him. He said Mr. Cuddy was fond of lawing, and would make her trouble. ”

The decree below is reversed, and the cause remanded, with directions to the court below to dismiss the bill.

Decree reversed.


author: Mr. Justice Magruder

text:
    The Village of Hyde Park v. The Washington Ice Company.

      Filed at Ottawa May 15, 1886.

    1. Eminent domain—measure of damages to property not taken. In a proceeding to condemn a strip of land for a street, through premises made into a pond for freezing ice thereon, the proof showing that the property could not be devoted to any other use without a cost much in excess of its value, the court instructed the jury, in behalf of the land owner, to ascertain from the evidence, after their own view, the fair market value of the property sought to be taken, and also the damages to the property from which the strip was to be taken, and that if they believed, from the evidence, that the property of the defendant, in its (then) present condition, had a special capacity, as an. entirety, for the purpose of ice freezing, cutting and transporting, and as an entirety was devoted to such purposes, and that the value of such tract would be depreciated and lessened by the taking of the strip in question, then the owners of the property were entitled to recover a sum equal to such depreciation in value: Held, that the instruction was correct.
    2. Same—benefits as an offset to damages. The question of damages in a condemnation proceeding is to be determined with reference to the special benefits, only, to the property not taken. Any mere general and public benefit or increase of value received by the land in common with other lands in the neighborhood, is not to be taken into consideration in estimating the damages.
    3. Instruction—directing attention to the party’s theory of the ease. Where an instruction is given announcing a correct rule of law upon the theory of the party asking it, if the other party desires that the attention of the jury be directed to his theory of the case, he should ask an instruction embodying such theory.
    Appeal from the County Court of Cook county; the Hon. Richard Prendergast, Judge, presiding.
    Messrs. Willard & Driggs, for the appellant:
    The court erred in giving the first and second instructions for the appellee, on the question of damages, under the evidence before the jury. The true question was, the effect of the proposed improvement upon the market value of the property,

      —what it would have sold for unaffected by the proposed street, and what it would sell for as affected by it. Page v. Railroad Co. 70 Ill. 524; Shawneetown v. Mason, 82 id. 357; Hyde Park v. Dunham, id. 569; Railroad Co. v. Hall, 90 id. 42; Green v. Chicago, 97 id. 370.
    Mr. Frederic Ullmann, for the appellee:
    The first instruction is not open to the objections made against it. It does not ignore any evidence there may have been as to the benefits which the property, if used for other than ice purposes, would receive from the opening of the street. The jury must deal with the property as it finds it, and with the uses to which it finds it is adapted,—not such as it may be adapted to after the expenditure of more. than the property is worth.
   Mr. Justice Magruder

delivered the opinion of the Court:

This was a proceeding by appellant to condemn certain land of appellee, and others, for the opening and extension of Onehundredth street, in the village of Hyde Park. Appellee filed its cross-petition, setting forth, that the proposed improvement would damage certain of its land not taken, and-praying that such damages might be assessed, etc. There is no dispute, and can be none, under the stipulation in the record, in relation to the damages, awarded for the land actually taken. The sole contention is as to the damages to the lands, not taken.

The only error, insisted upon by appellant, is the giving of appellee’s second instruction, which is as follows:

“The jury are instructed that they are to ascertain from the evidence, after their own view of the property, the fair market value of the property sought to be taken, and also the damages, if any have been proven, to the property from which the strip is to be taken. And if the jury believe, from the evidence, that the property oecuj>ied' by the ice company,- in its present condition, has a special capacity, as an entirety, for the purpose of ice-freezing, cutting and transporting, and as an entirety is devoted to such purposes, and that the value of such tract will be depreciated and lessened by the taking of the strip in question, then the owners of the property are entitled to recover a sum equal to such depreciation in value. ”

The second sentence of this instruction, which is the only part of it, that is objected to, is an almost literal copy of the language of an instruction, which was approved.of by this court in Chicago and Evanston Railroad Co. v. Dresel, 110 Ill. 89.

We do not think, that the instruction is improper,, when considered in reference to its particular application to the facts of the case at bar. The objection, urged against it, is, that it ignores and excludes from consideration the evidence, which tended to prove, that the opening of the proposed street would benefit the property for use, for dockage and manufacturing purposes.

The property in question consists of about sixty-four acres in South Chicago, bounded on the west by the Pittsburgh and Fort Wayne railroad, on the east by the Calumet river, on the south by the lands of the South Chicago Dock Company, and, on the north, by certain forge works. In 1878 appellee constructed an ice .pond upon the tract, which was a mere marsh. Large embankments, eighty feet wide, were thrown up around some thirty-five or forty acres of the tract, on the north, east and south sides, the railroad embankment protecting it on the west side. The enclosure was dredged, and thoroughly improved, and water pumped in from the river. A large ice house was built, and some $70,000 expended in fitting and preparing the pond for the business of freezing, cutting and transporting ice. The property has been used for the carrying on of such business since 1878 or 1879. Since that time it has increased in value. Docks, manufactures and lumber yards have been built and located around it since the ice business was started there. The chief advantages of the locality for the purposes of making ice are the facts of the river on one side, where water can be obtained, and the railroad on the other, so that easy transportation can be procured.

The proposed street, eighty feet wide, will run through appellee’s ice pond from east to west, splitting it into two parts. The part south of the street and between the street and the property of the dock company, will be a strip, one hundred and thirteen feet wide and one thousand eight hundred and twenty-five feet long, and will be practically useless for almost any purpose. The only ground, upon which it is claimed, that the opening of the street would benefit the property, is the fact, that it would thereby be more accessible, when used for dockage or manufacturing purposes. The evidence, however, shows, that- the tract is only worth from $3000 to $3600 per acre, and that it will cost $4000 per acre to fill it up, and that it can not be used for dockage or manufacturing purposes, until it is filled up. The opening of the street will confer no benefit upon the property, situated as it is. $256,000 will have to be expended upon the sixty-four acres, in order to get it into such shape, that the benefits can be made available. Under this view of the testimony, it is questionable, whether an instruction, which had called the attention of the jury to the subject of benefits to be derived from the proposed improvement, would have been based on the evidence. The question of damages is -to be determined with reference to special benefits to the property, not taken.. (Village of Hyde Park v. Dunham, 85 Ill. 569.) Any mere general and public benefit, or increase of value received by the land, in common with other lands in the neighborhood, is not to be taken into consideration in estimating compensation. Page et a,l. v. Chicago, Milwaukee and St. Paul Ry. Co. 70 Ill. 324.

But, even if there was evidence, which tended to show a special benefit to the property not taken, the instruction here under discussion, when taken in connection with the other instructions, given for appellee, did not necessarily exclude the consideration of such benefit. The jury were asked to inquire, whether the opening of the street would depreciate the value of the property not taken. If the jury had found, that there was no depreciation, they may have reached that conclusion, because the benefits equalled or exceeded the depreciation. If they found, that the property was depreciated, they may have reached that conclusion, because the benefits derived were less than the depreciation produced. Either finding involved a consideration of benefits.

It is to be noted, that the appellant asked no instructions w'hatever of the trial court. Consequently none were given for it, nor can it complain of the refusal of any. If counsel for appellant had desired, that the attention of the jury should be directed to a particular theory of the case, they should have asked an instruction, embodying that theory.

The judgment of the county court is affirmed.

Judgment affirmed.


author: Mr. Justice Gbaiq

text:
    George H. Barnes v. Francis H. Suddard.

      Filed at Ottawa May 15, 1886.

    1. Corporations—foreign and domestic—placed on the same footing. The purpose of section 26, chapter 32, of the Be vised Statutes of 1874, was to produce uniformity in the powers, liabilities, duties and restrictions of foreign and domestic corporations of like character, and bring them all under the influence of the same law. Therefore a foreign corporation doing business in this State possesses the same, but no greater, powers, than a corporation organized under our statute.
    2. Same—power to acquire real estate—extent of the power. Corporations for pecuniary profit, organized under chapter 32 of the Bevised Statutes of 1874, are invested with power and capacity to hold and own so much real estate as may be necessary for the transaction of their business. So a corporation organized under the laws of another State which confer upon it similar or greater capacity, may acquire title to real estate in this State, so far as the same may be necessary for the transaction of its business.
    3. Same—acquiring real estate for a purpose not authorized—who may complain. If a corporation, foreign or domestic, has the power to acquire and hold real estate for any purpose, a deed to it will divest the grantor of his title, whether, it is acquired for the purpose authorized, or not; and whether the corporation -has exceeded its powers in purchasing, as, a purchase for a purpose not authorized, is a question between it and the State, and does not concern the grantor or those claiming under him adversely to the corporation.
    Appeal from the Circuit Court of Cook county; the Hon. . Kirk Hawes, Judge, presiding.
    Mr. Frank J. Crawford, for the appellant:
    When a foreign corporation undertakes to acquire title to land in this State beyond what is necessary in the transaction of its business or the collection of its debts, the conveyance is absolutely void. Carroll v. City of East St. Louis, 67 Ill. 568 Starkweather v. Bible Society, 72 id. 50; Trust Co. v. Lee, 73 id. 142; Catholic Congregation, v. Germain, 104 id. 440.
    The courts of Connecticut have declared that the powers of such corporations do not extend beyond the express authority conferred by the statute. Occurn Co. v. Manufacturing Co. 34 Conn. 541; Fire Ins. Co. v. Ely, 5 id. 560; Green v. Dennis, 5 id. 293.
    Mr. John M. G-artside, for the appellee:
    The corporation was authorized by the laws of Connecticut to “hold any property necessary for its purposes, and such as shall be taken in payment of or as security for debts due to it.” Rev. Stat. of Conn. 1875, p. 313.
    Section 5 of the act of 1872 of this State, relating to corporations, gives such corporations, organized in this State, power to “own-, possess and enjoy so much real and personal estate as shall be necessary for the transaction of their business,” etc. Section 26 of the same act provides that foreign corporations doing business in this State shall be subject to .all the liabilities, restrictions and duties that are or may be imposed upon corporations of like character organized under the general laws of this State.
    The right of "a corporation to take and hold real estate can only be questioned by a direct proceeding prosecuted in behalf of the State. Hough v. Land Co. 73 Ill. 23; Baker v. Neff, 73 Ind. 68; Alexander v. Tolleston Club, 110 Ill. 72; National Bank v. Matthews, 93 U. S. 628.
    If there is capacity to purchase, the deed to the corporation divests the estate of the grantor, and there is a completed sale; and whether the corporation, in purchasing, exceeds its power, is a question between it and the State, and does not concern the vendor. Dillon on Mun. Corp. sec. 444; Hayward v. Davidson, 41 Ind. 214.
   Mr. Justice Gbaiq

delivered the opinion of the Court:

This was an action of ejectment, brought by George H. Barnes, appellant, to recover two certain lots in Chicago. Both parties claim title under Charles D. Fairbanks as a common source,—the plaintiff, under a deed executed by Charles D. Fairbanks, September 24, 1881, recorded October 14; 1881, conveying the premises to Achsah P. Fairbanks; and the defendant, under a deed executed by Charles D. Fair■banks, October 3, 1879, recorded October 11, 1879, eonvey.ing the premises to the United States Steam Feed Company, a corporation organized under the laws of the State of Connecticut, and doing business in the city of Boston. The corporation conveyed the premises to Mary B. Gardner by deed dated December'29, 1879, and the title thus conveyed passed, by mesne conveyances/ to the defendant.

. The deed made by Fairbanks to the corporation being first in date, must prevail over the second deed executed by the same party, unless the first deed is invalid. It is contended by appellant that the corporation had no power to acquire or convey the land, and that the deed made to it by Fairbanks is void, and this is the only question presented by the record.

In order to determine whether the Connecticut corporation had the power to acquire and convey the lots in question, it will be necessary to examine its charter and the law of the State where it was organized, and also our own statute in relation to the powers of foreign corporations in .this State.

Section 1 of article 3 of the act of Connecticut, under which the corporation was organized, is as follows: “Every such corporation may hold any property necessary for its purposes, and such as shall be taken in payment of or as security for debts due to it.” (See Bev. Stat. of Connecticut, 1875, page 313.) The corporation was organized March 23, 1877, and its certificate of incorporation declares the business of the corporation to be “to make and sell feed-for horses and cattle under letters patent No. 98,849, dated January 18, 1870, and analogous articles, and to buy and sell, and deal generally in, such real and personal estate as may be necessary and convenient in the prosecution of said business. ”

Section 5, of the Bevised Statutes of 1874, entitled “Corporations,” provides: “Corporations formed under this act shall be bodies corporate and politic, for the period for which they are organized; may sue and be sued.; may have a common seal, which they may alter or renew at pleasure; may own, possess and enjoy so much real and personal estate as shall be necessary for the transaction of their business, and may sell and dispose of the same when not required for the uses of the corporation. They may borrow money at legal rates of interest, and pledge their property, * both real and personal, to secure the payment thereof; and may have and exercise all the powers necessary and requisite to carry into effect the objects for which they may be formed.” Section 26 of the same act provides, that “foreign corporations, and the officers and agents thereof, doing business in this State, shall be subject to all the liabilities, restrictions and duties that are or may be imposed upon corporations of like character organized under the general laws of this State, and shall have no other or greater jjowers.

It appears from the evidence introduced on the trial, that the corporation sold Fairbanks the right to make, use and sell feed for horses and cattle, under letters patent No. 98,849, in and for the State of Colorado, and that the deed to the Chicago property was made to the corporation for the right thus sold. So far as appears, this is the only business transacted by the corporation, in this State. From the language of the statute and the charter of the corporation, we think it is apparent that the corporation is empowered, in the State where it was organized, to acquire and hold at least such" real estate as may be necessary for the transaction of its business, and also such as may be taken in payment of or as security for debts. It is also plain that under section 5 of our statute in relation to corporations, corporations organized under that statute are authorized to hold so much real estate as may be necessary for the transaction of their business. This section of the statute clearly confers the power on domestic corporations to hold lands, and section 26 of the same statute, as we have seen, provides that foreign corporations shall be subjected to all the liabilities, restrictions and duties that are or may be imposed upon corporations of like character organized under the general laws of this State, and shall have no other or greater powers. What was intended by the legislature in the enactment of this provision of the statute ? The answer to the inquiry may be found in what was said in Stevens v. Pratt, 101 Ill. 217. “The manifest and only purpose was to produce uniformity in the powers, liabilities, duties and restrictions of foreign and domestic corporations of like character, and bring them all under the influence of the same law. From this it would seem that a foreign corporation doing business in this State, possesses the same but no greater powers than a corporation organized under our statute. Indeed, the language of the last sentence of section 26, that foreign corporations shall have no other or greater powers than our domestic corporations, can imply nothing less than they are tó have the same powers.

If we are correct in this position, that the Connecticut corporation had the power to acquire real estate in this State necessary for the transaction of its business, or such as may be taken in payment or as security "for debts, as we think it is clear it had, the remaining question to be determined is, whether the deed is void for the reason and upon the ground that the property purchased was not necessary for the'transaction of the business of the corporation. It will be remembered that this question arises collaterally, and not in a direct proceeding against the corporation to determine its powers, rights or privileges. -Dillon, in his work on Municipal Corporations, sec. 444, in the discussion of tlie question says: “Whether- a municipal corporation with power to purchase and hold real estate for certain purposes, has acquired and is holding such property for other purposes, is a question which can only be determined in a proceeding instituted at the instance of the State. If there is capacity to purchase, the deed to the corporation divests the estate of the grantor, and there is a complete sale; and whether the corporation, i-n purchasing, exceeds its powers, is a question between it and the State, and does not concern the vendor or others.”' The rule announced by Dillon has been indorsed by two well considered cases in Indiana,—Hayward v. Davidson, 41 Ind. 214, and Baker v. Neff, 73 id. 68. Other States where the question has been presented, adopted the same rule, and the Supreme Court of the United States, in National Bank v. Matthews, 98 U. S. 628, hold to the same doctrine.

The question, however, is not a new one in this State. In Hough v. Cook County Land Co. 73 Ill. 23, the authorities were cited, and it "was expressly held that where the corpora-

tion had the power to purchase and hold real estate for a specified purpose, the title to. the land will pass,, although the corporation may have exceeded its powers; that whether the corporation has exceeded its powers in making the purchase, is a question between the corporation and the State, with which the grantor has no concern. 'The same question arose in Alexander v. Tolleston Club of Chicago, 110 Ill. 65, and it was there held, where a corporation, by the law of its creation, is authorized, in some cases or for some purposes, or to a certain extent, to take and hold the title to real estate, it can not be made a question by any party except the State whether the real estate has been acquired for the authorized uses or not, or is in excess of the capacity of the corporation to take and hold. The State alone must assert her policy in that regard. Here, the corporation organized under the laws the State of Connecticut was clothéd with • power to take and hold real estate for certain specified purposes, and when the deed was executed, the title held by Fairbanks passed, and whether the corporation exceeded its powers in accepting the conveyance, is a question which can not be raised by Fairbanks or his subsequent grantee, on the trial of an action of ejectment. Had the corporation been clothed with no power to acquire real estate in this State, or if the purchase had been prohibited by statute or contrary to the manifest policy of our laws, a different question would be presented,, and the cases of Carroll v. East St. Louis, 67 Ill. 568, and Starkweather v. American Bible Society, 72 id. 50, might properly be invoked as authority; but such is not the case. We think the judgment of the circuit court is correct, and it will be affirmed..

Judgment affirmed.

Shore and Magruber, JJ.: We do not concur in this opinion. .


author: Mr. Justice Sheldon

text:
    Philip A. Wooley v. Thomas R. Lyon.

      Filed at Ottawa May 15, 1886.

    1. Assignment—transfer by an executor. Where promissory notes indorsed in blank by the payee, are held by the executor of a deceased person, he may transfer the legal title thereto by delivery, without an order of the probate court for their sale.
    2. Same—liability of assignor—notice of protest by mail—subsequent promise to pay. It is sufficient to fix the liability of the assignor of notes, if notice of their protest for non-payment is mailed to him at his place of residence, or at any post office where he, at the time, is in the habit of receiving his mail, although he may resicle and receive mail at a different place.
    3. Where the necessary steps have been taken, under the laws of this State, to charge' the assignor of a promissory note, it is immaterial whether or not he has made a subsequent promise to pay the note.
    4. Same—liability of assignor—by what law governed—conflict of laws. The law of the place where a promissory note is made payable, governs as to the time and mode of presentment for payment, manner of protest; and giving notice, to fix the liability of the assignor.* So where a note was payable at a place in this State, but was indorsed by the payee in the State of Michigan, where he resided, it was held, that the assignor’s liability was governed by the law of this State.
    5. Instruction—omitting an element involved in the case. Where an executor of an estate had agreed with a debtor to take lands in payment of a debt, if the' consent of the probate court could be had for that purpose, in an action on the indebtedness, an instruction on behalf of the defendant basing 'the refusal to take the lands wholly upon the ground of a failure and inability to obtain the consent of the court, and wholly omitting the fact of defects in the title to the lands, is properly refused, as being misleading and erroneous.
    Writ of Error, to the Appellate Court for the Second District ;—heard in that court on writ of error to the Circuit Court of Kane county; the Hon. C. W. Upton, Judge, presiding.
    Mr. Frank Crosby, and Mr. John W. Banstead, for the plaintiff in error:
    By the laws of Michigan, “all notes in writing * * * shall have the same effect, and be negotiable in' like manner, as inland bills of exchange, according to the custom of merchants. ” Wooley’s liability as indorser, then, is regulated by the common law, and the notarial certificate of protest was inadmissible, since no protest is required of inland bills. Union Bank v. Hyde, 6 Wheat. 572; Kaskaskia Bridge Co. v. Shannon, 1 Gilm. 15; Bond v. Bragg, 17 Ill. 69; McCord v. Carlee, 59 id. 221.
    Notice should be sent to the place where the party is most likely to receive the same. Edwards on Bills, 575, 576; Hazelton Coal Co. v. Ryerson, 40 Am. Dec. 217.
    The holder is bound to give notice of the dishonor of the bill to the parties to be charged, by the next practicable mail. Talbott v. Clark, 8 Pick. 54; Robinson v. Arnes, 20 Johns. 146; Jones v. Wardell, 6 Watts & Serg. 399; Carter v. Burley, 9 N. H. 558.
    A party suing upon a note must show he had title at the time .of the commencement of the suit. Moore v. Maple, 25 Ill. 341.
    It was incumbent upon the Ward estate, if there were questions as to the sufficiency of the title tendered by Wooley, to show the defects. Waterman on Spec. Per. sec. 419.
    Any promise made by the indorser to pay a note after a legal discharge for want of protest or proper notice, must be shown to have been made with a full knowledge of the facts. Hopkins v. Liswell, 12 Mass. 52; Tabey v. Burley, 26 Ill. 426; Morgan v. Peet, 32 id. 281; Walker v. Rogers, 40 id. 278.
    Mr. R. N. Botsford, Mr. W. W. Gurley, and Mr. R. M. Ireland, for the defendant in error:
    The liability of the indorser is fixed by the laws of the State where the contract of indorsement was made. Barber v. Ball, 77 Ill. 470; Crouch v. Hall, 15 id. 263; Mason v. Burton, 54 id. 349.
    The indorsement in this case was in Michigan, where the delivery took place. Gay v. Rainey, 89 Ill. 221..

      The law of the place where the bill is payable governs as to the time and manner of its presentation and mode of protest. 2 Parsons on Notes and Bills, 344; Snow v. Perkins, 2 Mich. 238.
    Our statute has made the notarial certificate prima facie evidence of the facts therein stated. Rev. Stat. chap. 99, see. 14; Montettins v. Charles, 76 Ill. 310; Cook v. Renick, 19 id. 598; Eddy v. Peterson, 22 id. 535.
    When the indorser resides in one town and does business in a neighboripg city or village, and receives letters at the post office nearest to his residence, and also at his place of business, a notice of protest may be sent to the latter place. Edwards on Bills, 603, 604; Downer v. Remer, 21 Wend. 10; Bank v. Marsh, 3 Seld. 481.
    A note indorsed in blank is like one payable to bearer, and passes by delivery.. McHenry v. Ridgely, 2 Scam. 309; Kent’s Com. 86; Parks v. Brown, 16 Ill. 454; Palmer v. Nassau Bank, 78 id. 381; Palmer v. Marshall, 60 id. 289; Laflin v. Sherman, 28 id. 391.
    The title to the lands not having been cleared up, it is immaterial whether Potter ever applied to the probate court for leave to make the trade.
   Mr. Justice Sheldon

delivered the ojnnion of the Court:

This action was brought by Lyon, as indorsee, against Wooley, as indorser, of two promissory notes, (one for $632.36, the other for $626.85, both dated July 9, 1875, one payable in sixty, the other' in ninety days,) made by Dobbins & Co., and payable to the order of Wooley, at the maker’s office in Chicago, Illinois. Upon the trial in the court below, there appeared upon the notes, over the indorsement of Wooley, the following: “Pay to order of Thomas R. Lyon. ” There also appeared the following: “Without recourse.—Orrin W. Potter, as.executor estate E. B. Ward.” The plaintiff had judgment for the amount of the notes, which was affirmed by the Appellate Court for the Second District, and the defendant brings this writ of error.

The errors which are here insisted upon are in respect of instructions to the jury. The notes were indorsed in blank by Wooley, and were negotiated by him, so indorsed, in Michigan, having been sent, after some correspondence, from Fruitport, Michigan, to Ludington, Michigan, in-payment for lumber purchased by Wooley of the estate of E. B. Ward, or rather in payment of two other similar notes which had been so given by Wooley for lumber.

The second and fourth instructions given for the plaintiff informed the jury that the notice to an indorser was sufficient to fix his liability, if the notice was mailed to him at his place of residence, or any post office where he was then in the habit of receiving his mail, and that the notice was sufficient if mailed to the defendant at Fruitport, Michigan, if he then had a place of business there, or was in the habit of receiving and sending out mail there, even if he then resided at Grand Haven and received some of his mail there. Objection is made to these instructions that there was no proof of notice to the indorser mailed to a post office where he was then in the habit of receiving his mail. The objection is groundless. It appears from the testimony of Wooley himself, that he had a place of business at Fruitport, Michigan, received mail there, and sent mail from that point, kept a clerk or agent there, and had various men employed there ; and there was distinct evidence that the notice was mailed to him at that place.

The sixth instruction given for the plaintiff is objected to, which was to the effect that if, after the maturity of the notes, the defendant was informed of their non-payment, and being so informed, acknowledged his liability, as indorser, and agreed to settle or pay the amount due, then it is immaterial, under the Michigan law, whether the protest was legal or proper. This instruction, if faulty, could have done the defendant no harm, for the reason that the. necessary stejis, under the law of this State, were taken to charge defendant as indorser, viz, demand of payment, protest for non-payment, and notice of non-payment, addressed to defendant at a proper place,— all which, the evidence shows, were duly made and given in-accordance with our own law, whereby defendant’s liability became fixed, and it wa>s immaterial whether or not he made a subsequent promise to pay the notes. The notes being payable in this State, and the contract of indorsement being made in Michigan, and the indorser residing there, the law of the place where the notes were payable, we consider, governed as to time and mode of presentment for payment, manner of protest, and giving notice. 2 Parsons on Notes and Bills, 344, 345; 1 Daniell on Neg. Inst. secs. 911, 912; Rothschild v. Currie, 1 Ad. & El. (N. S.) 43; Hirschfield v. Smith, L. R. 1 C. P. 350.

There is a conflict of authority as to what law should govern in the giving of notice of dishonor,—whether the law of the place of payment, or the law of the place where the indorsement is made. Aymer v. Sheldon, 12 Wend. 439, and some other American cases, hold the notice should be according to the law of the place of the indorsement. And see Redfield & Bigelow’s Lead. Gas. upon B. & N. 712, in note to above ease of Aymer v. Sheldon. We are disposed to adopt the rule that the notice should be in accordance' with the law of the place where the bill or note is made payable, as resting upon the better reason.-

It was set up in defence that defendant had settled' this liability with the executor of the Ward estate, while the notes were the property of the estate, by an agreement with the executor to take certain lands for the notes. On the part of the plaintiff, it was claimed that defendant was not able to make title to the land; and further, that the. proposition of the executor was conditional upon obtaining an order of the probate court, which order could not be obtained,—in view whereof the seventh instruction for the plaintiff was given, substantially as follows: If the executor of Ward’s estate had no authority to settle-or compromise without the approbation of the probate court of the county where the estate was being administered, then he could not bind the estate, without the approbation of- such probate court, by agreeing to accept the land in payment; and a sale of the notes, if shown by the evidence, by the executor, under order of said court, would pass to the purchasers at such sale, and their assigns, all rights of said estate in the notes, unaffected by any unauthorized action or agreement of the executor. It is objected to this, that there is no evidence that the notes were sold under the order of any probate court; that this not being shown, the title to the notes still remains in the Ward estate, and that if the title passed to the purchasers at the sale, then it is still in them, as no indorsement from them has been shown. It was not material that there should have been an order of court for the sale of the notes, as they bore the blank indorsement of the defendant, and were transferable by delivery, and the executor could so transfer them without any indorsement of them by himself. We perceive no substantial error in the instruction, prejudicial to the defendant. It was harmful rather to the plaintiff, in implying that an order of sale of the notes was necessary.

Defendant asked an instruction, which was refused, to the effect that if an arrangement was made between defendant and the executor of Ward’s estate, while the notes were in the latter’s hands, by which certain Michigan land was -to be taken in payment of the notes, and that the executor declined to carry out the arrangement, upon the ground that leave could not be obtained of the Michigan probate court, then the proof must show that such leave was asked and refused; and if the declining to carry out the arrangement was for any other reason, which was not communicated to defendant, and he was ignorant of the same, and had no reason to believe the arrangement had fallen through, and, while so ignorant, was unable to secure the payment of the notes in his settlement with the -railway company, then any damage the proof may show he has sustained by reason of his so being kept in ignorance, must be allowed to him by the verdict. Defendant had testified that he did not know the notes were outstanding against "him until the summer of 1881; that he had a settlement with the Chicago, St. Paul and Milwaukee Bailroad Company in March or April, 1880; that he supposed at that time these notes had been paid by his conveyance of the Michigan land, and so-lie did not include them;in this settlement when he was paid for all other notes and claims which he had against Dobbins & Co., the makers of these notes; that he could have obtained payment of the notes from the railroad company if he had had notice that they were out against him. The instruction was misleading and defective in placing the failure to carry out the land -arrangement upon the ground that leave of court could not be obtained, and wholly omitting the important element of the defects in the title to the land.. All the evidence respecting the land arrangement consists in the written correspondence between defendant and the executor, they never having met personally. Defendant’s own letter shows there was a mortgage' upon one eighty of the land, and a tax title against the other eighty. As far as the executor went in the matter, as appears, is in his letter of May 24, 1877, to-wit: “If you will send clear deeds of the lands, I will apply to the probate court for permission to make the trade, which I have no doubt that it will grant. ” November 6, 1877, the executor wrote again, speaking of the defect of title. The title was never cleared. March 29, 1878, the executor writes: “The time for closing this estate has so nearly expired, that some other method of settlement of the matter than the trade proposed will have to be adopted. * * * The deeds, abstracts, etc., sent me by the Messrs. Ferry, will b.e, returned to them, and I shall expect; from you an immedíate payment of the amount due on the notes,—failing to receive which, it -will be necessary for me to place them in course of collection by law. ” In defendant’s answer of April 6, 1878, after speaking complainingly, he concludes: “All I can say, under the circumstances, is, you better put it in for collection. ” This appears to be the last letter that passed between them relative to the land transaction.

In view of all this, defendant would hardly seem to have ground of complaint for refusal of an instruction predicated upon his not knowing and not having reason to believe, two years afterward, when he settled with the railway company, that the arrangement for taking the land had fallen through.

No error appearing, the judgment is affirmed.

Judgment affirmed.