author: Mr. Justice Dickey

text:
    St. Louis, Jerseyville and Springfield Railroad Company v. Nathaniel T. Kirby.

      .Wiled at Springfield September 28, 1882.

    1. Eminent domain—measure of damages. In a proceeding to condemn land to be used for right of way for a railroad, across a farm, the court instructed the jury, in behalf of the land owner, that under the law the company was not bound to fence its road until six months after its completion, and that in estimating the damages the jury might consider the damage the keeping open of the road would be to the farm: Held, that there was no error in giving the instruction.
    2. The inconvenience of having one’s land temporarily thrown open in the progress of constructing a railway over the same, may be a material element of damage, and justly require compensation.
    3. It seems that the value of a training track to the owner, which will be destroyed, is allowable as a part of the compensation to be paid for the right of way through a farm. The value of land consists in its fitness for use, present or future; and before it can be taken for public use the owner must hate just compensation. If he has adopted a peculiar mode of using that land by which he derives profit, and he is to be deprived of that use, justice requires that he be compensated for ttie loss. It is the value which he has, and of which he is deprived, which must be made good to him.
    4. Same—consideration, of benefits. In assessing the damages to another portion of a farm, aside from the value of the land taken for a right of way for a railroad, the jury should consider the road as running only through the farm, and not consider any general benefit which the road may prove in making a better market or convenience for travel, and in some cases they would be justified in estimating the damages to the farm the same as though the road commenced on one side of it and ran across it to the other side, and no further.
    5. Instructions—singling out parts of evidence. As a general rule, an instruction is faulty which calls attention specially to a part of the evidence bearing upon a given question, omitting to mention other parts of the proof bearing upon the same question. Where, however, the damages to be ascertained rest upon several separate alleged grievances, which may be considered separately as items, attention may properly be called to any one of the subjects.
    6. Same—may assume facts conceded and not disputed. It is not error for an instruction to assume a fact in the case where it is not disputed, but fully recognized by both parties.

      Appeal from the County Court of Jersey county; the Hon. Robert A. King, Judge, presiding.
    Messrs. Warren & Pogue, and Mr. George W. Herdjman, for the appellant:
    The defendant’s instruction told the. jury that plaintiff had six months in which to fence its road after its completion, and that in estimating the damages they might consider the damages the keeping open of the road would be to the farm. We do not believe a decision can be found in support of this doctrine. Still more objectionable is his instruction which tells the jury that if the proposed track goes through defendant’s race track, and destroys the same for use, and that it is worth to defendant $500, they should take the same into consideration. This assumes that defendant had a race track, and that the jury are to estimate what it was worth to defendant, and not what was its fair and reasonable value. Under the instruction the jury were justified in valuing the race track like valuing an acre of ground,—as a farm. We do not think the law contemplates such damages in a case of this character.
    These companies ought to pay a fair price for the land taken, and damages, if there are any outside of the right of way condemned, for actual inconveniences. Eberhart v. Chicago, Milwaukee and St. Paul Ry. Co. 70 Ill. 347. Actual damages .can be assessed, but not those tortured up for effect. Keithsburg and Eastern R. R. Co. v. Henry, 79 Ill. 290.
    The jury are told, in defendant’s ninth instruction, that they were justified in estimating damages to this farm “the same as though this road commenced on one side of said farm and run across said farm to the other side thereof, and run no further, ”—in other words, to allow no benefits. The question really is, how much,, if any more, would the farm be worth after the railroad is upon it, than without it.

      Mr. A. A. Goodrich, and Mr. T. S. Chapman, for the appellee,
    contended that the instructions given were correct, as applied to the facts of this case, which they reviewed and discussed, and that the verdict was warranted. Also, that though the court may have erred in some of its instructions, a new trial will not be granted, if, upon the whole record, it is apparent that substantial justice has been done. Curtis v. Sage, 35 Ill. 22; Boynton v. Holmes, 38 id. 61; Paulman v. King, 49 id. 266; Hubner v. Feige, 90 id. 208._
   Mr. Justice Dickey

delivered the opinion of the Court:

This is an appeal from the judgment of the county court of Jersey county, fixing the compensation to be paid by appellant for the right of way across the land of appellee for railroad purposes.

Objection is made to the fourth instruction, given at request of appellee, which states that under the law the railroad company is not bound to fence its road until six months after it is completed, and that in estimating the damages the jury may consider the damage the keeping open of said road would be to the farm. It is not denied that the law is as stated. We see no objection to calling the attention of the jury to that subject. The inconvenience of having a man’s land temporarily thrown open in the progress of the construction of the road may be a material element, and justly require compensation.

Exception is also taken to the ninth instruction, which was as follows:

“You are further instructed, for the defendant, that in estimating the damages to the balance of the farm, you should consider this railroad as running only through this farm, and should not consider any general benefit which the road might be in making a better market or convenience for travel, and you are justified in estimating the damages to this farm the same as though this road commenced on one side of the said farm and run across said farm to the other side thereof, and run no further.”

. No particular objection to this is pointed out by counsel. The first branch of the instruction is undoubtedly the law, under our statutes. The last sentence may not be a proper statement of the law as applied to some cases, but so far as the proofs show, in this case it is but another mode of stating the idea expressed in the first clause of the instruction.

Lastly, it is contended that it was error to charge the jury that if they believe, from the evidence, that the proposed line of railroad will go through and destroy for use the training track of appellee, and they further believe, from the evidence, that such training track was worth to appellee $500, they should , take .suoh.sum into--..consideration in estimating-the damages to be allowed him, etc. As a general rule, it is faulty to call attention specially to a part of the evidence bearing on a given question, omitting to mention other parts of the proof bearing upon the same question. Where, however, the damages to be ascertained rest upon several sepa-rate alleged grievances, which may be considered separately as items, attention may properly be called to any one of the subjects. This instruction is no doubt faulty in naming a specific sum as the value of the training track, but when we look into all the proofs, it is found that the_ sum named is the lowest price or value placed upon the training track by any witness.- Looking at the finding of the jury, (which placed the damage to land of appellee at only $973.12,) in connection with the testimony as to injury to arise from causes other than disturbance of the training track, it seems plain to our minds that the jury were not misled, or led at all, by naming the sum of $500. Considering all the proofs, the jury could not have allowed more than about $300 for the loss of the use of the training track.

It is objected that the instruction assumes that appellee had a training track. This is not error. That was a fact as fully recognized by both sides as was the fact that appellee had land, or the fact that appellant proposed to construct a railroad.

Again, it is objected that what the training track was worth to appellee was not the true measure. Why not ? It is said he can not recover for damage to his business. That may be true in so far as his business does not consist in the use of the land. The value of land consists in its fitness for use, present or future, and before it can be taken for public use the owner must • have just compensation. • If he has adopted a peculiar mode of using that land, by which he derives profit, and he is to be deprived of that use, justice requires that he be compensated for the loss. That loss is the loss to himself. It is the value which he has, and of which he is deprived, which must be made good by compensation.

These are the only instructions complained of by counsel for appellant. We find in them no sufficient ground to disturb the judgment of the court below. The judgment will therefore be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    William Scully v. The People of the State of Illinois.

      Filed at Springfield September 28, 1882.

    1. Taxation—rents of land, as distinguished from the lemd itself. Bent arrear is a chose in action, and taxable as a credit, but rent to grow due is a part of the land,—an incident to it, passing as such to a grantee,—and is therefore not subject to taxation against the owner of the land which is also taxed. The taxation of rents before due, is the taxing of something included in the taxation of the land.

      2. An owner of lands leased the same, for several years in succession, for a cash rent, payable on the first day of January in each year, the terms commencing on the first day of March in the year. The assessor, through a period of years, assessed him with two months’ rent,—that is, from March 1 to the first day of May,-—as having accrued, though not due. The taxes not having been paid on these assessments, suit was brought against the owner to recover a personal judgment for the same: Held, that no recovery could be had, and the judgment below for the taxes was reversed.
    Appeal from the Circuit Court of Logan county; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Blinn & Hoblitt, for the appellant:
    The leases executed by William Scully to tenants, before time of payment of rent, are not the subject of taxation under the revenue laws of this State, because the real estate having been taxed, the income from the real estate, before it is earned or collected, can not be assessed for taxation, and because neither the residence of the owner of the leases nor the situs of the personal property was in this State. Sangamon and Morgan R. R. Co. v. County of Morgan, 14 Ill. 165; Mills v. Thornton, 26 id. 301; Irwin v. New Orleans, St. Louis and Chicago R. R. Co. 94 id. 108; St. Louis v. Ferry Co. 11 Wall. 428; Hoyt v. Commissioners, 23 N. Y. 228; People v. Hibernia Bank, 51 Cal. 243.
    Mr. B. B. Forrest, State’s Attorney, for the People:
    • Bents to become due, payable in cash at a fixed period, are credits, and as such are assessable property.
    Agents located in this State, conducting and carrying on a permanent business, are required to list to the assessor all credits belonging to their principals. Div. 2 of see. 6, and secs. 9, 19, Revenue Laws of 1872; Board, etc. v. Davenport, 40 Ill. 197.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a suit instituted by attachment, against William Scully, for the recovery of $1427, as personal property taxes for the years 1875, 1876, 1877, 1878, 1879 and 1880, appearing upon the collector’s book of East Lincoln township, in Logan county, to be due and unpaid. There was a recovery by the plaintiff, and the defendant appealed.

The facts of the case are these: William Scully was a resident of England, and owned a number of farms in Logan county, in this State, which he leased through agents residing in Logan county. The rent under these leases was payable in cash, on the first day of January in each year. The assessor, in making his assessments for the years in question, assumed that on the first day of March, in each year, the leases were made, running for one or more years, and estimated that from March 1 to May 1 two months’ rent had accrued upon the lands, and, upon that basis, that on the first day of May there was two months’ rent accrued but not due, the assessor assessed, during the several years in question, this two months’ rent, from March 1 to May 1, in each year, as a credit. It is the taxes levied upon these assessments which are the subject of this suit. It is the provision of our statute, that personal property shall be listed by the assessor with reference to the quantity held or owned on the first day of May of each year.

We are of opinion the claim here asserted is the taxation of something which was included in the taxation of the lands. The lands themselves were all the while taxed. In the valuation of the land itself for taxation there would be included in it, as an element, the value of the use of the land. The rent is but a representative of the use of the land, and taxing such rent against the owner of the land before it has accrued due, and during the same time the land is taxed, appears to be taxing a thing which was covered by the taxation of the land. Bent is defined as a certain profit issuing yearly out of land; and while accruing due to the land owner, is it not embraced in such year’s valuation, assessment and taxation of the land? Had the owner himself personally used and enjoyed the land, it would not be thought such use and enjoyment would be taxable aside from, and in addition to, the land. Bent arrear is a chose in action, and would be taxable as a credit; but rent to grow due is a part of the land,—is an incident to it,—and passes as such to a grantee, by a grant of the land. On the leases made on the first day of March, the rent payable on the first day of January after, there had no rent accrued due on May 1, two months after the making of the leases, but it had to grow due, and would not become due until January. Had the lessor, for, say, the last month of December, before the rents became due, evicted the lessees from the premises, then there' would have been no rent at all due and collectible under the leases.

Being of opinion that the two months’ rents in question were not properly taxable, it becomes unnecessary to consider other questions which have been raised. The judgment of the circuit court must be reversed, and the cause remanded.

■Judgment reversed.


author: Mr. Justice Scholfield

text:
    Charles W. Fitzsimmons, Admr. v. Anna J. Cassell, Ex’x.

      Filed at Springfield September 28, 1882.

    1. Appeals—reviewing facts. Where the Appellate Court finds, from the evidence, the facts the same way the circuit court did, by affirming its judgment, and there is no disputed question of law, the judgment of the Appellate Court is conclusive.
    2. Same—former decision—distinguished. The case of Wilson v. Kirby, 88 HI. 566, is unlike the present. The facts there were embodied in a written agreement, and no controversy as to the facts was before the court, and the question debided was one of law, namely, whether money received pursuant to that agreement was received in trust for any purpose, under a certain provision of the statute.

      Writ of Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Morrison, Whitlock & Lippincott, for the plaintiff in error.
    ° Mr. William Brown, and Mr. Egbert D. Eussell, for the defendant in error.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This is a contest between the estates of Joseph J. Cassell and Charles Cassell, deceased. Charles Cassell was one of the executors, under the will, of Joseph J. Cassell, deceased. A large amount of money came into his hands while he was acting in that capacity,—either from the assets of the estate administered, or from the rents and profits of real estate,— in acknowledgment of which he drew and signed four instruments in writing, of each of which the following is a copy:

“Jacksonville, III., April 1, 1869.
“ One day after date I promise to pay to Anna J. and Charles Cassell, executors of the estate of Joseph J. Cassell, deceased, two thousand and fifty-five dollars and eighty-eight cents, value received, with interest from date, at ten per cent per annum.
Charles Cassell. ”

Each note is indorsed in lead pencil: “Interest paid on this note to April 1, 1873, and $892 on one note. ” Each bore the same indorsement,' and on paper attached to these notes or papers was this: “These notes were given in settlement of account of Charles Cassell.”

Defendant in error exhibited a claim in favor of the estate of Joseph J., against the estate of Charles, based on these instruments, and sustained, to some extent, by other evidence, ■to the county court of Morgan county, and that court rendered judgment thereon, allowing the claim in favor of the estate of Joseph J. for $11,785.42, as. a sixth class claim, under the statute, to be paid in due course of administration. An appeal was prosecuted from that judgment to the circuit court of Morgan county, by the administrator of the estate of Charles, and there the claim was rejected. The surviving executrix of the will of Joseph J. appealed from that judgment to the Appellate Court- for the Third District, and that court reversed the judgment of the circuit court. Subsequently the cause was re-tried in the circuit court, and that court then gave judgment allowing the claim in favor of the estate of Joseph J. as a sixth class claim, under the statute, for the sum of $12,889, to be paid in due course of administration. A writ of error was sued out upon that judgment from the Appellate Court for the Third District, and that court, at its May term, 1882, affirmed the last named judgment of the circuit court. This writ of error brings the record of that judgment before us for review.

After the Appellate Court had reversed the judgment of the circuit court, and the cause had been remanded to the circuit court pursuant to the order of the Appellate Court, and after the circuit court had re-tried the cause and rendered judgment allowing the claim in favor of the estate of Joseph J., the administrator of Charles prosecuted a writ of error from this court, on the said judgment of the Appellate Court reversing the judgment of the circuit court, and this court rendered judgment reversing that judgment of the Appellate Court. (Fitzsimmons v. Cassell, 98 Ill. 332.) Subsequently, on the cause being again brought up in the Appellate Court, on motion in that court to render judgment in conformity with the order of this court, and that court construing this court to have allowed it a discretion to enter a different judgment from that formerly entered on the same judgment, by a new order entered the same judgment, reversing and remanding the cause. No appeal has ever been taken from that judgment, or writ of error prosecuted to procure its reversal.

When this case was here before, we said: “So far as we have been able to discover, from the record before us, this whole controversy turns upon a pure question of fact, namely7, whether the moneys unaccounted for by Charles Cassell, and upon which the claim sought to be allowed against his estate as a sixth class claim is based, belonged to Joseph Cassell’s estate, and as such came to the hands of Charles Cassell, as his executor. This question is one which the law has not authorized us to determine, and we could not undertake to do so without disregarding the express provisions of the statute.”

The circuit court, in rendering judgment in favor of the claim, necessarily must have found that the moneys unaccounted for, and on which the claim is based, belonged to the estate of Joseph J. Cassell, and the Appellate Court, in affirming that judgment, must have found the same way. But whether so or not, its judgment settles the question of fact, and there is no disputed question of law. Indeed, after having gone through all the evidence in the record, we are unable to perceive, if it were proper for us to express any opinion thereon, that there is any error in the finding of fact. There was ample evidence to authorize the conclusion that the money for which Charles had become liable was assets of the estate, received by him in his capacity as executor, and not rents, etc., which he had collected, belonging to the heirs. But we place our judgment solely on the ground that this was purely a question of fact, and, being the only question in the case, the judgment of the Appellate Court is conclusive. Wilson v. Kirby, 88 Ill. 566, is cited as holding a contrary doctrine. That case was totally unlike the present. The facts there were embodied' in a written agreement, and no controversy in that regard was before-the court. The question was one of law, namely, whether money received pursuant to that agreement was received “in trust for any purpose, ” within a certain provision of the statute. Pulsifer v..Winterhoff, 102 Ill. 400, Tenney v. Foote, 95 id. 99, Aurora v. Pennington, 92 id. 564, Carr v. Miner, id. 604, Hayward v. Merrill, 94 id. 349, and Hewitt v. Board of Education, 94 id. 528, are in harmony with, and sustain, what we said as quoted supra, when the case was formerly here.

The judgment is affirmed.

judgment affirmed.


author: Mr. Justice Craig

text:
    Ella Douthett v. Daniel Kettle.

      Filed at Springfield September 28,1882.

    1. Taxation—sales of land for taxes—right of redemption—the constitution construed. Sections 4 and 5, of article 9, of the constitution, relating to the sale of lands for taxes, and redemption., therefrom, have no reference whatever to a sale of land upon an execution when a personal judgment has been rendered in an ordinary action to recover delinquent taxes. These sections both relate to sales on judgment against the delinquent .lands themselves—a proceeding in rein, and not to a suit in personam against the owner, or party whose duty it is to pay the taxes.
    2. The design of section 4 was to establish throughout the State a uniform system, and require one general officer in each county, and only one, to make sale of delinquent lands, and that, too, upon the order or judgment of a court of record. The judgment required was, no doubt, a judgment in rem—a judgment against the land upon which the taxes had been levied.
    3. The right of redemption provided for in section 5, of the same article, was intended to embrace such sales as were mentioned in section 4, and none others, so that section 5 has no bearing upon a sale of land upon an execution directed to a sheriff', although the judgment was rendered-in the .case for delinquent taxes.
    4. County—power to buy lands for taxes. The act of 1879, which authorizes suit to be brought for delinquent taxes in the name of the People, or in the name of the proper county, is broad enough to ■authorize such county to purchase under the judgment.

      5. Judicial sale—of several distinct parcels together. Three distinct tracts of land not adjoining each other, one of twenty acres, one of forty, and the other of eight acres, and worth §4000, were levied upon and sold era masse for $123. The sheriff at the sale offered each tract separately, and receiving no bids, offered and sold the three pieces together: Held, that the sheriff should have offered two of the tracts before offering all together, and that for the error in selling era masse, and the inadequacy of the price, the sale could not be upheld.
    Appeal from the Circuit Court of Effingham county; the Hon. Thomas S. Casey, Judge, presiding.
    This was a bill in chancery, exhibited in the court below by Kettle, against Ella Douthett, Henry B. Kepley, Bernard H. Wernsing, county treasurer, and the county of Effingham, to set aside a sheriff’s deed to Ella Douthett, alleged to be a cloud upon complainant’s title to certain real estate. The principal cause alleged for -setting aside the deed is, that as it was a sale on execution issued on a personal judgment against complainant for taxes on a part of the land sold, the complainant was entitled to two years to redeem from the sale, while under the salé, as made, but fifteen months was given for redemption. Defendants demurred to the bill, and the demurrer being overruled, defendants excepted and stood by the demurrer, and the decree was rendered as prayed. Ella Douthett appealed, and by agreement the case is taken to the Central Grand Division.
    Mr. Henry B. Kepley, for the appellant.
    Mr. B. F. Kagay, for the appellee.
   Mr. Justice Craig

delivered the opinion of the Court:

It is contended by appellee, that under the constitution of 1870 lands can not be sold for taxes, either on a personal judgment or a judgment in rem, except by a general officer to whom a return of unpaid taxes is made; that no sale is valid without two years’ redemption is allowed, and that no title under such sale is good unless notice is given, to the owner at the expiration of the time of redemption. This position is predicated upon the construction which appellee places on sections 4 and 5, of article 9, of the constitution. Section 4 provides: “The General Assembly shall provide, in all cases where it may be necessary to sell real estate for the non-payment of taxes or special assessments for State, county, municipal or other purposes, that á return of such unpaid taxes or assessments shall be made to some general officer of the county having authority to receive State and county taxes; and there shall be no sale of said property for any of said taxes or assessments but by said officer, upon the order or judgment of some court of record. ” Section 5 provides, that the right of redemption from all sales of real estate for the non-payment of taxes or special assessments shall exist in favor of the owner of such real estate for a \ period of not less than two years.

These two sections of the constitution, in our judgment, have no reference whatever to a sale of land upon an execution where a personal judgment has been rendered in an action brought to recover delinquent taxes. In Leindecker v. The People, 98 Ill. 21, we had occasion to examine section 4, of article 9, of the constitution, and it is there said: “Prior to the adoption of the present constitution many of the cities and towns had tax collectors of their own, who, under the charters of the cities and towns where they were elected, were authorized to apply for and obtain judgment against delinquent lands, and to sell the same for the non-payment^of taxes and assessments levied by the city or town. The purpose of the section of the constitution cited was to obviate this supposed evil, and to prevent a sale of lands by these various officers, and to require a return to be made to some general officer of the county, "who shall in all cases, when it becomes necessary, make the sale of delinquent lands for taxes or assessments. ” The design was to establish throughout the State a uniform system, and require one general officer in each county, and only one, to make sale of delinquent lands, and that, too, upon the order or judgment of a court of record. The judgment or order required was no doubt such a judgment as the statute then in force authorized,—not a personal judgment, but a judgment in rem,—a judgment against the land upon which the taxes had been levied. When this section of the constitution was framed we had no statute authorizing a suit to be brought against a person who had failed to pay his taxes, and the rendition of a personal" judgment, and while it may be that a suit at common law might have, been maintained for the collection of taxes," the general practice was to proceed against the land.

Much stress has been placed in the argument on the language used in section 5, but this section must be considered in connection with section 4, to determine what was intended. It will not do to take a few lines of a given section, of the constitution and undertake to determine the meaning of the instrument from those lines alone. Bach part of the instrument must be considered in connection with every other part relating to the same matter. In this way, and only in this manner, can an intelligent judgment be formed as to the intention. The right of redemption provided for in section 5 was intended to embrace such sales as were mentioned in section 4, and none others, and as section 4 had no reference to a personal judgment, but only to a judgment against the land, or an ordinary proceeding to sell lands for the nonpayment of taxes, it follows that section 5 could not have any bearing upon a sale of land upon an execution directed to a sheriff, although the judgment was rendered in the action upon which the execution issued for delinquent, taxes.

Again, the land in this case was not sold for the non-payment of taxes, in the ordinary acceptation of that term. It was sold upon a judgment rendered after personal service of summons in an action of debt. Whether the subject matter of the suit was taxes or a promissory note, can make no difference. The same rule which would control the sale and redemption of the land in the one case would govern in the other.

It is also contended that the county of Effingham had no authority to purchase the lands at the sale under the judgment. We are of opinion that the act of 1879, (Laws of 1879, 239,) which authorizes suit to be brought in the name of the People, or in the name of the county, is broad enough to authorize the county to purchase under the judgment. See, also, see. 24, chap. 34, of statutes of 1874.

There is, however, one fatal objection to the validity of the sale. It appears, from the allegations of the bill, that the lands sold consisted of three distinct tracts, which did not lie adjoining each other,—one of twenty-acres, one of forty acres, and the other containing eight acres; that the three pieces were worth $4000; that the sheriff at the sale offered each tract separately, but receiving no bid, offered and sold the three pieces en masse for $123. In Phelps v. Conover, 25 Ill. 312, the rule was established that where several adjoining tracts of land were levied upon, it was the duty of the sheriff to offer each tract separately, and if no bids were made for one tract add another to it, and so on until all the pieties were offered, and if no bid was made, then sell all the tracts en masse for a reasonable bid. This rule was considered and approved in Morris v. Robey, 73 Ill. 462, and a- sale like the one under consideration was expressly condemned. Had two of the tracts been offered for sale together after the sheriff had failed to obtain a bid for one, it is probable a bid might have been made, and thus a sacrifice of the property avoided. At all events the law required the sheriff to pursue the course indicated, and as he failed to do so, and as the property was sold for so small a price in comparison with its true value, the sale can not be upheld.

The decree of the circuit court will be reversed, and the cause remanded for further proceedings consistent with this opinion. The costs in this court will be equally divided between the parties.

Decree reversed.


text:
    Columbus Cassel v. Eliza Cassel et al.

      Filed at Springfield September 28,1882.

    1. Witness—competency—of a-party,-against heirs. 'A party seeking a decree for the specific performance of an agreement of his father to convey to him a tract of land, after the father’s death, as against his heirs, is not a competent witness in his own behalf to prove the contract.
    2. Specific performance—must be based on contract, and not on expressions of an intent to give. A specific performance of an alleged agreement of a father to convey a tract of land to his son on the performance of certain conditions, will not be decreed when the evidence, instead of showing any contract of the father on the subject, shows only the expression of an intention or expectation on his part to let the son have the land upon his paying off a mortgage on the same, given by the father, which has not been done, and when the rents and profits of the land have compensated the son for all his outlays in respect to the same.
    Writ of Error to the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.
    Mr. Francis M. Wright, for the plaintiff in error.
   Mr. Justice Sheldon

delivered the opinion of the Court:

, This was a bill in equity, for a specific performance, brought by Columbus Cassel, against the heirs of John Cassel, deceased, to compel the conveyance of a certain eighty acres of land.

The bill sets out, in substance, that John Cassel, in his lifetime, being the owner of the land, and the father of the complainant, on March 4, 1878, agreed with the complainant that the land should be his upon the conditions that complainant would pay the taxes then due and to accrue on the land, the interest then due, or that might become due, upon a certain mortgage for $1000 on the land, executed by John Gassel ,to one Jewell, payable in* three years from its date, April 2, 1877, with nine per cent interest, and when the mortgage became due would pay or assume the payment of the principal of the mortgage; that thereupon complainant went into the possession of the land, and has ever since occupied the same, and farmed and improved it as his own, making valuable and permanent improvements thereon; that he has paid such taxes and interest, and assumed the payment of the mortgage debt, to the satisfaction of said Jewell, and that on--July 15, 1880, the said John Gassel departed this life, without having executed a deed of the land to the complainant, although he was equitably entitled thereto. The defendants answered, making a general denial, and setting up the Statute of Frauds. The circuit court, on final hearing, dismissed the bill, and the complainant took a writ of error.

The testimony of complainant himself, which was taken and objected to, we disregard, as not being competent in such a case, by the express provision of our statute.

The testimony introduced by the complainant in proof of the alleged contract was quite scanty, consisting only of statements of John Gassel, made by him on two different occasions, as testified to by the witnesses Clark and Seed. Clark, who was the father-in-law of complainant, testifies to a conversation had with John Gassel, in which the latter stated that he had bought the land for Columbus, intended it for him, and the latter had gone on it, and was improving it as he liked; that the rents and profits were to be used hr liquidation of the mortgage and interest, and expenses on the land, and keeping up the improvements, and on the coming due of the mortgage Columbus was to take the land, pay this mortgage, and he was to make Columbus a warranty-deed of the land. Mrs. Clark testifies to the same conversation. Eeed, who was the agent of Jewell, who held the §1000 mortgage on the land, testifies that at about the time this mortgage became due, in April, 1880, John and Columbus Cassel came to his office together, for the purpose of having the mortgage extended; that John said he had given the land the mortgage was on, to Columbus, and that witness must thereafter look to the latter for the interest; that Columbus would pay the mortgage, and interest on it until it wras paid; that the mortgage was afterward extended to John, first, and after the death of John the extension was changed to Columbus; that John Cassel paid the interest on- the mortgage for the first two years, and Columbus paid it afterward. The land appears to have been purchased by John Cassel, in 1876, for the price of §2600.

Without adverting especially to the opposing testimony on the part of the defendants, we think, from all the evidence in the case, that John Cassel intended to let Columbus have the land when the latter paid up the §1000 mortgage which was upon it, and the taxes on the land, but that this rested only in intention and expectation, and that there was no contract upon the subject which can be specifically enforced. After the death of his father, Columbus executed his agreement for the, payment of the mortgage, but this did not release his father's estate from the payment of the mortgage debt. Columbus seems, from the evidence, to have paid but two years’ taxes, and to have paid but one year’s interest on the mortgage. He made some improvements, but the proof does not lead us to believe that all the above exceeded the rents and profits of the land which Columbus enjoyed.

We find no- ground of equity entitling plaintiff in error to have decreed to him a conveyance of the land, and the decree of the circuit court dismissing the bill must be affirmed.

■Decree affirmed.


author: Per Curiam :

text:
    Willis Marlatt v. The People of the State of Illinois.

      Filed at Springfield September 28,1882.

    Criminal law—guilt must be shown beyond a reasonable doubt. Unless it appears that a party on trial for crime is guilty beyond a reasonable doubt, an acquittal must follow, and if the jury disregard this familiar rule of law, and convict, it will be error to refuse a new trial, and a reversal of the judgment will follow, on writ of error.
    Writ of Error to-the Circuit Court of Champaign county ; the Hon. C. B. Smith, Judge, presiding.
    Mr. M. B. Thompson, for the plaintiff in error.
    Mr. James McCartney, Attorney General, for the People.
   Per Curiam :

At the March term, 1882, of the Champaign circuit court, Willis Marlatt was indicted for the alleged crime of perjury. It is charged that on the trial before a justice of the peace, in a cause wherein the People of the State were plaintiff, on the complaint of John Marlatt, against Fletcher T. Neff, it was a material question whether the defendant in that case had threatened to shoot the complaining witness, and that on such trial, accused, after being duly sworn according to law, did “feloniously, willfully, corruptly and falsely” swear and testify that Neff did “threaten, to shoot the said John Marlatt,” and did “threaten to blow out the brains of the said John Marlatt, ” whereas in truth and in fact accused well knew the said Neff did not “threaten to shoot the said John Marlatt, ” or “threaten to blow out the brains of the said John Marlatt. ”

Accused, on being arraigned, pleaded “not guilty.” On the trial the jury found accused guilty, and by their verdict fixed the term he should serve in the penitentiary at the period of three years. Motions for a new trial and in arrest of judgment were severally overruled, and the court pronounced judgment on the verdict.

It is not thought necessary to remark upon all the questions raised on the record, as the court, after a full and careful examination of the evidence, is satisfied it is not sufficient to warrant the conviction. Unless it appears the accused on trial for crime. is guilty beyond a reasonable doubt, an acquittal must follow. The jury must have disregarded this familiar rule of law. Without entering upon any analysis of the testimony found in this record, it is sufficient to say it falls sho.rt of proving the. guilt of.accused even.by a preponderance of the evidence. Indeed, it may be said as to the evidence contained in the present record, the weight is in favor of the innocence of accused. It was manifest error in the court not to grant the motion for a new trial.

The judgment will be reversed, and the cause remanded.

Judgment reversed.


author: Mr. Justice-' Scholfield

text:
    George B. Conner et al. v. James W. Goodman.

      Filed at Springfield September 28, 1882.

    1. Limitation—act of 1889—what is color of title. An administrator’s deed for land sold under an order of a competent court, for the payment of debts of the intestate, is good color of title under the seven years Limitation law.
    2. Same—of the good faith of purchaser. The testimony of the occupant of land that he bought and acquired title in good faith, is not rebutted by proof of general reputation that the title of the person whom he succeeded was bad.
    3. Same—want of knowledge of ground of relief to prevent the bar. The fact that a party failed to learn of his equitable rights to have a sale of his interest in land set aside, until a short time before the expiration of the period fixed as a limitation to his remedy, will not take his case out of the bar of the statute, when his cause of action has not been fraudulently concealed from him.
    4. Same—in what case the statute applies. The possession of land, and payment of all taxes thereon for seven successive years, under color of title acquired in good faith, is a bar to a bill in chancery to set aside a decree and sale of such land in a proceeding for partition.
    5. Notice—by possession of land. A person’s possession of land is notice to all the world of his claim to the same, and if another party does not learn of his rights to the property until the bar of the Statute of Limitations has attached, it will be his own neglect and inattention, from which he can claim no immunity.
    Appeal from the Circuit Court of Monroe county; the Hon: Amos Watts, Judge, presiding.
    Mr. Spencer Tompkins, for the appellants:
    The minors were not made parties to the partition suit. If not parties, they were not bound by the decree. Hassett v. Ridgway, 49 Ill. 197.
    Even if Jarrott and wife were guardians of appellants at the time of the partition proceedings, such minors are entitled to have the decree set aside as in fraud of their rights. No judgment can be rendered to bind minors who appear only by a general guardian. Story’s Equity, secs. 44, 58, notes 3, 7; 1 Daniell’s Chancery Prac. 229, 563; 39 Mo. 536; Hunter v. Hutton, 4 Gill, 115; Greenman v. Harvey, 53 Ill. 386.
    The Partition act is not designed as a cover under which a guardian may obtain a sale without establishing a necessity therefor, the same as in an application for sale under the Guardian’s act. Hartman v. Hartman, 59 Ill. 103; King v. King, 15 id. 157; Redfield on Wills, 448, 454, 456; Story’s Eq. Jur. 169-172.
    It is a well settled rule that statutes of limitation do not begin to run until the fraudulent proceedings, or adverse possession with claim of title, are brought to the knowledge of the parties against whom it will run. Kerr on Frauds, 10, 11; 2 Story’s Eq. Jur.. 1520 a; McIntosh v. Sanders, 68 Ill. 128; Hancock v. Harper, 86 id. 445; Oliver v. Platt, 3 How. 411; Kane v. Bloodgood, 7 Johns. Ch. 89.
    A purchaser of land is estopped from denying a knowledge of anything contained in his title papers, or in the records of courts, affecting his title. White v. Kirby, 42 Ill. 510; Miles v. Lockwood, id. 111; Illinois Ins. Co. v. Littlefield, 67 id. 368; Byrne v. Morehouse, 22 id. 603; Pinckard v. Milmine, 76 id. 453.
    Messrs. Slate & Winkelman, for the appellee:
    The Statute of Limitations is a complete bar to this suit, unless complainants come under some of the saving clauses of the statute. They claim as minors. Under our statutes a minor has the right reserved to him for the period of two years after arriving at majority, and no more; and unless he comes within that period, he is estopped, and the statute effects a complete bar to a recovery under the seven years clause, under color of title and payment of taxes. Newland v. Marsh, 19 Ill. 376; Stearns v. Giddings, 23 id. 387; Dickinson v. Breeden, 30 id. 327; Beaver v. Taylor, 1 Wall. 637.
    Ignorance of their rights will not prevent the operation of the statute. Campbell v. Long, 20 Iowa, 382; Martin v. Bank, 31 Ala. 115; Bank v. Waterman, 26 Conn. 324; Abel v. Harris, 11 Gill, 367; Davis v. Colten, 2 Jones’ Eq. (N. C.) 430; Boward v. White, 9 Rich. Eq. (S. C.) 483.
   Mr. Justice-' Scholfield

delivered the opinion of the Court:

This was a bill in equity, filed in the office of the clerk of the circuit court of Monroe county, on the 9th' of September, 1879, to set aside a certain decree for sale on application for partition, and also sale of real estate, and deed thereunder, etc. The answer of the defendant, -James W. Goodman, in addition to putting in issue the allegations of the bill generally, alleges that Goodman entered into possession of the real estate under color of title made in good faith; that he has continued in such possession for seven successive years, and has, during- said time, paid all taxes legally assessed on such real estate.

We are of opinion this defence has been made, out, and it is, therefore, unnecessary to examine the questions raised upon the decree and sale for partition sought to be set aside.

The purchaser at the partition sale was one Isaiah Cheek. He died intestate in 1870, and on the 11th of November, 1871, this real estate was sold by his administrator, pursuant to a decree of a competent court, to raise assets to pay the debts due from his estate. James W. Goodman was the purchaser at that sale, and received an administrator’s deed. He shows that, he at once entered into the possession of the property, which he has continued to enjoy ever since, and that during all that time, being more than seven successive years, he has paid all taxes legally assessed on the property. The deed was unquestionably color of title. Brooks v. Bruyn, 35 Ill. 392; McCagg v. Heacock, 34 id. 476; Stubblefield v. Borders, 92 id. 279 ; Davis v. Hall, id. 85 ; Payne v. Markle, 89 id. 66; Whitney v. Stevens, id. 53; Coleman v. Billings et al. id. 183; Scott v. Delany, 87 id. 146.

' Goodman testified that he bought and acquired title in good faith, and this is not rebutted by proof of general reputation that Cheek’s title was bad. McCagg v. Heacock, supra, and same case again in 42 Ill. 153; Cook v. Norton, 43 id. 391; Rawson v. Fox, 65 id. 200; County of Piatt v. Goodell, 97 id. 84; Smith v. Ferguson, 91 id. 304.

But counsel contend appellants did not learn of the fraudulent transaction, whereby they allege they were deprived of their property, until within two years of the filing of their bill, and hence that they are not affected by the Statute of Limitations. There is no claim made that the cause of action was fraudulently concealed from them by Goodman, and so the case is not affected by the 22d section of the Limitation act of 1874. (Rev. Stat. 1874, p. 676.) And Goodman’s possession was notice to all the world of his claim to the property, (McConnel v. Reed, 4 Scam. 117, Williams v. Brown, 14 Ill. 200, Cowen v. Loomis, 91 id. 132,) and so if appellants did not learn of their rights, it was purely through their own neglect and inattention to their property, and they are consequently entitled to no immunity on that account.

The decree is affirmed.

Decree affirmed.


author: Mr. Justice Walker

text:
    Archibald C. Wadsworth v. Mary M. Connell et al.

      Filed at Springfield September 28, 1882.

    1. Former adjudication—what matters to be regarded res judicata. An order or judgment of the county, court on an executor’s final account presented, sustaining an objection to his claim of commissions, in part; but reserving a decision on the other objections, is not res judicata as to those claims of credit by the executor on which the judgment of the court was reserved for further evidence, presented in an amended account, and to which objection was made on appeal to the circuit court from the subsequent order of the county court approving the report, and hence no bar to contesting such other items in the circuit court.
    2. Testamentary guardian—necessity of giving bond and receiving a commission before actually becoming guardian. The statute relating to guardians authorizes a parent to appoint a testamentary guardian for the custody and education of his minor child, and the custody of its property, or to give the custody and tuition to one and the custody of the property to another; but the guardian of the property is required to give a bond, as in other cases, unless this is dispensed with by the will, and to receive a commission from the county court to act, and when such bond is not so dispensed with, such appointee will not become the guardian of the minor until he gives a bond as such, and is commissioned by the county court.

      3. Executor—as such, has no power to loan funds of the estate. An executor has no power, under the law, to loan the funds of the estate, and if he does so, it is of his own wrong, and he must be held accountable to the heirs for any loss in consequence of such loaning. Nor has the county court authority to give him credit for any moneys so lost, and thus render an illegal act valid. Such allowance, when the widow and heirs are riot in court 'on the approval of his report, is void for want of jurisdiction.
    4. Executor—guardian—in which capacity liable. Where an executor of a will, under a power therein conferred upon him, sells the real estate of the testator, and receives the proceeds as executor, he must be held as holding the money in that capacity, though he may have also been appointed testamentary guardian of the testator’s minor children, when he has failed to qualify in the latter capacity.
    5. If one appointed by will as executor and also as testamentary guardian, qualifies only in the former capacity, so that he is not a legal guardian, but nevertheless acts as such by loaning the funds of the estate, which he might have done as guardian had he qualified in that capacity, he will in equity be held liable to account as guardian; and if he loans the funds of the estate as executor, in which capacity he has no authority to do so, and a loss occurs, he will be required to make it good on the settlement of his accounts before the county court.
    6. County court—its equitable jurisdiction. The county court, in the settlement of estates, has equitable jurisdiction—not full jurisdiction, but such as is adapted to its organization and modes of proceeding. That court, or the circuit court on appeal, may apply equitable relief in the settlement of the accounts of executors and administrators, and hold them liable for loss upon equitable principles and rules.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Brown, Kirby & Bussell, for the appellant:
    The matters here in controversy, were heard and determined by the county court, from which judgment no appeal was taken, and it is conclusive. Wadhams et al. v. Gay, 73 Ill. 417; Boileau v. Rutlin, 2 Exch. 665. The items of the executor’s report are separate and distinct, and the judgment on any one is conclusive. Curts v. Brooks, 71 Ill. 126 ; Morgan v. Morgan, 83 id. 196. An appeal being given, unless it is taken the order of the county court must stand as final and conclusive. Gates v. Treat, 17 Conn. 392; Dubois v. Dubois, 6 Cow. 495. It is immaterial what the form of the judgment is. If the court can see that the issue in the former suit is the same as in the suit at bai^, and the order is entered on that issue, it is sufficient. Guild v. Hall, 91 Ill. 223; People v. Gray, 72 id. 343; Freeman on Judgments, secs. 47, 50.
    Mr. Wadsworth, in his trust capacity, carried out the expressed will of the testator, used as great care as the law requires, and can not be held personally liable for a loss. If he is guardian at all, it is under the power contained in the will, and his action is measured and limited by its terms. Tyler on Infancy, 250, sec. 170. The will is the sole measure of his duty. Waldo v. Cummings, 45 Ill. 421. A fair interpretation of that is, that he shall exercise the prudence and care which a good business man would exercise in his own affairs. The statutory provision as to loaning a ward’s money, no matter how construed, can not bind him. As a trustee he was not bound to invest on real estate security. It is sufficient that he conducts himself faithfully, and exercises a sound discretion. Lowell v. Minott, 20 Pick. 119; Harvard College v. Amory, 9 id. 446; Clark v. Garfield, 8 Allen, 427; Carter v. Elliott, 9 Gratt. 511; Myers v. Zetelle, 21 id. 733.
    Executors and administrators stand in the position of those interested in the estate which they administer, and are only liable for want of due care and skill. State v. Meager, 44 Mo. 356; State v. Richey, 64 N. C. 172.
    Mr. M. T. Layman, and Mr. J. B. Connell, for the appellees : . *
    The county court made.no final order or judgment on the account, in February, 1881, and hence the order then made is no bar. Forgay v. Conrad, 6 How. 206; Bernard v. Gibbon, 7 id. 650; Craighead et al. v. Wilson, 18 id. 199;
      Rudolph v. German Mutual Fire Ins. Co. 71 Ill. 191; Vanlandingham v. Ryan, 17 id. 25.
    The executor was a testamentary guardian. He settled with the heirs as such, and mingled the funds held in such capacity, in his reports, and can not now be heard to say because he failed to give bond he is not guardian. He can not take advantage of his own wrong,; but will be presumed to have done what he should have done. Bell et al. v. People, 94 Ill. 230. It was his. duty to have put his ward’s money at interest on -real estate security. Gilbert v. Guptil, 34 Ill. 112. Taking insolvent securities is' prima facie evidence of a neglect of duty.' Gurry v. People, 54 Ill. 263. An administrator is liable for allowing money to remain in bank until the bank becomes insolvent. Rucker v. Redman, 67 Ill. 187.
    As to the duty of a trustee to loan the trust funds, and his liability for loss from insufficiency of security, see Perry on Trusts, secs. 453, 460; Hill on Trustees, *369; Lathrop v. Smalley, 12 Am. L. E. (N. S.) 198; Norris’ Aptpeal, 12 id. 787; King v. Talbot, 9 id. 62; Worrell’s Appeal, 2 id. (O. S.) 447; Smith v. Smith, 4 Johns. Ch. 281; Ackerman v. Emos, 4 Barb. 626; Holmes v. Dring, 2 Cox, 1; Watts v. Girdlestone, 6 Beav. 188 ; Child v. Child, 20 id. 50 ; Pocock v. Reddington, 5 Ves. 794; Mills v. Osborne, 7 Sim. 30; Gray v. Fox, Saxton, 259; Moore v. Hamilton, 4 Flor. 112; Nyce’s Estate, 5 Watts & Serg. 254; Worrell’s Appeal, 9 Barr, 508; Morris v. Wallace, 3 id. 319; Commonweath v. McAlister, 4 Casey, 480; Hemphill’s Estate, 6 Harris, 303.
   Mr. Justice Walker

delivered the opinion of the Court:

It is conceded that Joseph O. Connell died in the year 1867. He made and published his will, which was probated. By it he made -some specific devises. He also bequeathed to his wife one-third of the remainder of his estate for life, and the remaining two-thirds he divided equally between his three children. His estate consisted principally of real estate, and he required his executor to sell it at such time, and on such terms, as might be advantageous, and to invest one-third of the proceeds for the benefit of his widow during her natural life, “with as little delay as possible, on safe securities.” Wadsworth, the executor, is named in the will as guardian for his children, and to him is committed their care, tuition, and the management of their property, and to provide for their education, and moral and religious training, and by his personal and judicious investments, and the care of their expenses, to improve their estates. Wadsworth qualified as executor, but not as guardian. He took charge of, and sold, the property, and made reports annually to the probate court; kept the money invested at the highest legal rate of interest, none being lost but two loans,' of $500 each, one to the Seiberts and the other to the Dunlaps. In his report to the court these loans were included, and the reports were approved.

Wadsworth, on the 23d of October, 1880, filed a report and asked a final settlement, and to be discharged as executor, and to be relieved from further executing the trust. In this report he credited himself with commissions on the amount to be paid over to his successor, and some other commissions on former disbursements. To this report appellees filed objections to the allowance of the commissions, and to allowing him a credit for the amount lost on the loans to the Seiberts and the Dunlaps. A hearing was had on these objections on the 19th day of February, 1881. The court sustained the objection to allowing the commissions, in part, and reserved a decision on the other objection until the amount due the widow should be ascertained. No appeal from this order was ever perfected. On the 22d of the same month, appellant having filed an amended report, as was required by the order of the 19th, a hearing was had. To this amended report no objections were filed, and it was approved. An appeal was perfected to the Morgan circuit court by appellees. On a trial in that court, it was found that two-tliirds of the money loaned by appellant to the Dunlaps and to the Seiberts was held by him as testamentary guardian of Eva, Joseph B., and Charles H. Connell, and was their money, with which he should be charged, and which was found to amount to $933.33. The court also found there was in his hands $731.67, due to the widow, and to Charles H. Connell $3617.78. The court ordered him to pay the widow the sum found due her, and that he pay Charles H. $3609.25, and retain out of these sums, for his own use, $108.53, as commissions, and that he turn, over to his successor the balance of the assets in his hands; including the moneys loaned to the Dunlaps and the Seiberts, amounting to $1257.44. From this order the executor appealed to the Appellate Court. On a trial in that court the judgment of the circuit court was affirmed, and he appeals to this court.

It is urged that the order of the 19th of February, 1881, involving the same matters presented in this case, precludes any further litigation of the same matters, as that order was not appealed from, and remains in full force; or, if that is not conclusive as res judicata, that the order is erroneous in holding that appellant was testamentary guardian, and holding him liable as such, and in also holding him liable for the loss of the money loaned to the Dunlaps and the Seiberts.. We are at a loss to perceive how it can be held that the order of the county court of the 19th of February is res judicata as to this claim. There is no pretense that it was passed upon or decided at that time. On the contrary, it was expressly held up, and a decision withheld, until further evidence was heard and additional facts were ascertained. It is believed that no case has ever gone the length of holding anything res judicata short of a judgment on the facts in controversy. If such a decision could be found, it would be violative of plain legal principles, and would not be authoritative. There was no decision rendered on the question of the liability of appellant, by the order of the 19th of February, and there is, therefore, no bar to this judgment or order of the circuit court.

But was appellant a testamentary guardian? He was so named by the will, but he never qualified by giving bond or receiving letters of guardianship. The 5th section of the chapter entitled “Guardian and Ward, ” authorizes the parent to appoint a testamentary guardian for the custody and tuition of his unmarried minor child. The 6th section of the act provides that the custody and tuition of the minor may be given to one, and the custody and control of his property to another, guardian. The 8th section confers on a testamentary guardian the same powers, within the scope of his appointment, as a guardian appointed by the county court. The 9th section provides that a testamentary guardian, except for the custody and tuition of the minor, shall, before he can act, be commissioned by the county court of the proper county, and give the bond prescribed in section 7 of this act, unless otherwise requested by the testator in his will, when none shall be required, unless the guardian’s circumstances have changed, or for other sufficient reasons a bond may be required. It seems that counsel in the case were not aware of these provisions, or decisions of this court bearing on this question, as they are not referred to in their briefs. When considered together, the 5th and 9th sections authorize the appointment of a testamentary guardian for the custody and tuition of the minor, and the custody of his property, or to give the custody and tuition to one, and the custody of the property to another. The guardian of the property is expressly required, unless otherwise provided by the will, to give bond, as- in other eases, and to receive a commission to act. The will in this case does not dispense with a bond, and none being given, and no commission being issued, appellant never became the guardian of the minors. It is but as if the county court should designate of record the appointment of a person as a guardian, and he were never to give bond or receive letters of guardianship. He could not, by such an order, become a legal guardian, because the statute has made a bond indispensable. So of the appointment by will.

In what capacity, then, does appellant hold this property ? He was appointed, and qualified, as executor. He entered upon the discharge of the duties of the trust, and in pursuance of the powers conferred by the will he sold the property and converted it into money. This he did as executor. There can be no reasonable claim that this was done as guardian, as the power is given in connection with his appointment as executor, and no such power is conferred on him as guardian. It was as executor, and not as guardian, that he received the money, and he so holds it, as it was never paid over to a guardian,- and he never became such. The statute has not conferred on executors or administrators power to loan the funds of the estate, nor was there any such power conferred by this will. It then follows, that appellant made these loans without legal authority, and of his own wrong. This being the ease, what are his liabilities ? Having wrongfully retained the money, and failing to pay it over to those entitled to it, as required by the statute, he has clearly rendered himself liable for the amount thus received, with interest, less any sum or sums paid out under the order or by the approval of the county court. Nor can he be heard to say, as a defence, that he, of his own wrong, and without legal authority, loaned the money, and it was thereby lost. He loaned it at his peril. Nor had the county court any power whatever to render an illegal act valid and binding. That was without jurisdiction, and void, as the widow and heirs were not in court when the report was approved. Appellant is therefore liable to account for these loans to the Dunlaps and the Seiberts for the full amount. •

In the cases of Gilbert v. Guptill, 34 Ill. 112, and McIntyre v. The People, 103 id. 142, we held that a guardian failing to conform his acts to the statute, and loaning money contrary to the requirements of the statute, does so at his own risk, and in case of loss he is liable to make it good; and the same principle applies to all persons entrusted by the statute with the custody of the money of others. Their safety consists in an adherence to legal requirements. In the case of Davis v. Harkness, 1 Gilm. 173, it was held that where a step-father received the money of his minor step-children, by reason of his marriage with their mother, who held them money as administratrix of their deceased father, and he appropriated it to his own use, and claimed it as his own, in equity he would be held and required to account for it, as their guardian, and would be held to the duties imposed on guardians appointed by law for the custody of the property of minors. Under this decision appellant may be held in equity as a guardian, and under Gilbert v. Guptill, supra, he rendered himself liable by failing to loan on the security required by the statute.

The 22d section of the Guardian’s act requires the guardian to keep the ward’s money loaned at interest, upon security to be approved by the court. It allows sums of less than §100 to be loaned on personal security, but loans in large amounts shall be on real estate security. If, then, as he may be, appellant be held as a guardian, he did not loan this money on real estate security, as the statute.requires, and he is therefore liable for its loss. Then, whether appellant held the money as executor or guardian, he is liable to make' good the loss. The law does not authorize an executor or administrator to loan the trust fund in his hands. The will in this case authorized him to loan the money as guardian, but not as executor, and, as we have seen, he never became the guardian of the minors, by giving bond as guardian, by the law. But under the above authorities he may be held to account as guardian, if he so acted in' making the loans; or if he acted as executor, it was without authority, and he is liable. ■ .

If it be said that it is only in equity that appellant can be treated as a guardian, and this was simply a settlement before the court' of his accounts as executor, it may be answered that it has been repeatedly held the probate court may exercise equitable jurisdiction in the settlement of estates,—not its full jurisdiction, but such as is adapted to its organization and the mode of proceeding in that tribunal. Moore v. Rogers, 19 Ill. 347, Hurd v. Slaten, 43 id. 348, Dixon v. Buell, 21 id. 203, and Moline Water Power, etc. v. Webster, 26 id. 233. The county court is as competent to afford the relief in this ease as a court of equity, and it pertains to the settlement of the estate. It therefore follows, that on this ground the county court, or the circuit court on appeal, had full power to apply the equitable relief, and hold appellant liable for this loss.

On either of these grounds appellant was liable, and the judgment of the Appellate Court must be affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    The County of McLean v. Laura B. Humphreys.

      Piled at Springfield September 28, 1882.

    1. Industrial school—not sectarian, within meaning of constitutional prohibition. There is nothing in the various provisions of the act of May 28, 1879, entitled “An act to aid industrial schools for girls,” which authorizes or contemplates the organization of these schools for sectarian purposes, within the meaning of section 3, article 8, of the constitution, prohibiting any appropriation or pay from any public fund, or anything in aid of any church or sectarian purpose, by any public.corporation, but on the contrary, it is expressly prohibited in the last section of the act.
    2. If, notwithstanding this inhibition in the act, such a school should be prostituted to any church or sectarian purposes, the law affords ample means, for a speedy correction of such an abuse of the act.

      3. Same—constitution not to be so construed as to deprive the legislature of the power of protecting dependent and unfortunate infants. It is the unquestioned right and imperative duty of every enlightened government, in its character of parens patrice, to protect and provide for the comfort and well-being of such of its citizens as, by reason of infancy, defective understanding, or other misfortune or infirmity, are unable to take care of themselves, and all constitutional limitations must be so construed and understood as not to interfere with thd proper and legitimate exercise of this important governmental function.
    4. Same—act does not infringe constitutional guaranty of personal liberty. The act of 1879, in relation to industrial schools for dependent infant females, is not obnoxious to the objection that it infringes upon the constitutional guaranty of the personal liberty of the citizen. The restraint which the act imposes is only such as is essential to the comfort and well-being of the unfortunate class brought within its provisions. All governmental and parental care necessarily imposes more or less wholesome restraint.
    5. Same—remedy for abuses under act. The claim that the act is not well guarded with a view of preventing abuses, is a matter that addresses itself more properly to the legislative than to the judicial department of the government, and if conceded to be well taken, affords no ground for declaring the act unconstitutional. If such objection is well founded, the constitution clothes the judiciary with ample authority to correct any abuses that may arise under the act.
    6. County—liable for expenses of keeping dependent infant female. "Where an order of the county court is duly and properly made, committing a dependent infant female to an industrial school, under the act of 1879 relating to industrial schools for girls, and is executed by those in charge of such a school to which the girl was sent, the county from which such person is sent will be liable for the reimbursement of the proper expenses of carrying out the order of the court.
    Appeal from the Circuit Court of McLean county; the Hon. Owen T. Reeves, Judge, presiding.
    Mr. Robert B. Porter, State’s Attorney, and Mr. Frank B. Henderson, County Attorney, for the appellant:
    Appellee can not recover if the act of May 28, 1879, is unconstitutional. Cooley’s Const. Lim. side page 188, (4th ed.) p. 227; Meagher v. County of Story, 5 Nev. 244; Strong v. Daniels, 5 Ind. 348; Sumner v. Beeler, 50 id. 341.

      The act of May 28, 1879, is unconstitutional—
    First—Because it violates sec. 3, art. 8, by providing that counties shall pay towards the support of a school which, by the very terms of section 14 of the act, may be sectarian. Const. 1870, art. 8, sec. 3.
    Second—Because it violates separate sections on page 82 of Hurd’s Stat. 1881, by compelling counties to make’*donations to private corporations. Const. 1870.
    Third—Because by it the legislature imposes taxes on counties for corporate purposes, in violation of see. 10, art. 9, of the constitution of 1870.
    Fourth—Because it conflicts with the general laws on paupers, and guardian and ward. Rev. Stat. 1874, sec. 16, chap. 107, p. 756; also, sec. 3, chap. 64, p. 558.
    Fifth—Because it deprives an unfortunate girl of her liberty without her being found guilty of any crime, and without due process of law, in violation of see. 2, art. 2, Bill of Bights, 1870; People ex rel. v. Turner, 55 Ill. 280.
    Sixth—Because it deprives a county of its property without a chance for the county to defend, and without due process of law, in violation of see. 2, art. 2, Bill of Bights, 1870.
    Seventh—The word “person” includes a body corporate or politic—hence a county. Bev. Stat. 1874, clause 5, sec.. 1, chap. 131, p. 1011.
    Eighth—Because it deprives the girl charged, of the right of trial by a jury of twelve, in violation of sec. 5, art. 2, Bill of Bights, 1870.
    Ninth—Because it deprives the county of a trial by jury, and any trial whatever, in a proceeding where the county is financially interested, in violation of sec. 5, art. 2, Bill of Bights, 1870.
    Mr. A. E. DeMange, for the appellee:
    The school in question is not sectarian, or in the interest of any church-. Should it be so perverted, the Board of

      Public Charities has the power to interfere. Laws of 1879, p. 309.
    The expense of providing for the education of dependent girls is not in the nature of a donation, but a discharge of a public duty.
    The act is not an infringement of the right of personal liberty. Civil liberty is natural liberty abridged, and enjoyed under reasonable municipal laws, made for the benefit of society. 1 Blackstone’s Com. 125; Cooley on Const. Lim. 339.
    The statute in question is similar to the statute of Wisconsin on the same subject, and the latter was held to be constitutional. Milwaukee Industrial School v. Supervisors of Milwaukee County, 40 Wis. 328; Roth v. House of Refuge, 31 Md. 330; Ex parte Crouse, 4 Whart. (Pa.) 11; People v. Governors, 18 How. Pr. (N. Y.) 409; People v. Turner, 55 Ill. 280.
    Guardians may be appointed and removed without the intervention of a jury. 2 Story’s Eq. Jur. secs. 1337, 1340; Bev. Stat. chap. 64, sec. 2.
    Public corporations are subject to legislative control, and the legislature may impose public burdens on them. Dillon on Mun. Corp. see. 10; Hamilton County v. Mighels, 7 Ohio St. 109.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Under the provisions of the act of May 28, 1879, entitled “An act to aid industrial schools for girls, ” Mary E. Stoner, a female infant of the age of seven yeárs, was brought before the county court of McLean county, at its October term, 1880, on the charge of being a dependent girl. The cause was submitted to a jury, who found-the facts set forth in the petition to be true, and the court thereupon entered an order “that the said Mary E. Stoner be committed to the Industrial School for Girls, at South Evanston, to be in such school kept and maintained until she arrives at the age of eighteen years, unless sooner discharged therefrom in the manner provided by statute.” This order was duly executed, with respect to the commitment, by Laura B. Humphrey, the appellee, under the direction of the court, at an expense of $34. The county having refused, upon proper application, to reimburse appellee, she brought an action in the McLean circuit court against the county, which resulted in a judgment in her favor for the amount of her claim, to reverse which the county prosecutes this appeal.

• No question is made as to the regularity of the proceedings under the Industrial School act, or as to the justness of appellee’s claim, provided the provisions of that act are legally binding on the county; but appellee’s'claim is resisted solely on the ground the act in question is unconstitutional. Birst, it is claimed the act is in conflict .with section .3, of article 8, of the constitution, which provides, that “neither the General Assembly, nor any city, town, township, school district or other public corporation shall ever make any appropriation, or pay from any public fund whatever, anything in aid of any church or sectarian purpose, or to help support or sustain any school, academy, seminary, college, university, or other literary .or scientific institution, .controlled. by any church or sectarian denomination whatever; nor shall any grant or donation of land, money or other personal property ever be made by the State, or any such public corporation, to any church, or for any sectarian purpose. ” Upon a careful examination of the various provisions of the act, we fail to discover anything Which authorizes or contemplates the organization of these industrial schools, for sectarian purposes, but on the contrary, by the last section of the act it is expressly prohibited. If, however, notwithstanding this inhibition, they should be prostituted to such purposes, the law affords ample means for a speedy correction of such an abuse of the act. In the present case there is no pretense-for the claim that the institution to which the subject of this controversy was committed, was, or is, organized or conducted" in the interest of any particular church or religious organization. The provisions of the act extend to “every female infant who begs or receives alms while actually selling, or pretending to sell, any article in public, or who frequents any street, or alley, or other place, for the purpose of begging or receiving alms; or who, having no permanent place of abode, proper parental care or guardianship, or sufficient means of subsistence ; or who, for other cause, is a wanderer through streets and alleys, and in other public places; or who lives with or frequents the company of, or consorts with, reputed thieves, or other vicious persons; or who is found in a house of ill-fame, or in a poor-house. ” It would be difficult to conceive of a class of persons that more imperatively demands the interposition of the State in their behalf than those we have just enumerated, and for whose benefit the act under consideration was adopted, and it would be a sad commentary on our State government, if it is true, as is contended, there is no constitutional power in the legislature to provide, by suitable legislation, for their education, control and protection. It is the unquestioned right and imperative duty of every enlightened government, in its character of parens patria, to protect and provide for the comfort and well-being of such of its citizens .as, by reason of infancy, defective understanding, or other misfortune or infirmity, are unable to take care of themselves. The performance of this duty is justly regarded as one of the most important of governmental functions, and all constitutional limitations must be so understood and construed as not to interfere with its proper and legitimate exercise.

We perceive no force in the objection that the act in question is an infringement upon the personal liberty of the citizen, as guaranteed by the constitution. The restraints which the act imposes are only such as are essential to the comfort and well-being of the unfortunate class of persons who are brought within its provisions. All governmental and parental care necessarily imposes more or less wholesome restraint, and wé see nothing in the act which looks beyond this.

Assuming then, as we do, the legislature has the right to provide for the education, support and control of these unfortunate beings, it clearly has the right also to provide the necessary instrumentalities or agencies for the accomplishment of these objects. The claim that the act in question is not as well guarded, in some respects, as it might be, with a view of preventing abuses, even if well founded, is a matter that addresses itself to the legislative rather than the judicial department of government, and would be no ground for declaring the act unconstitutional. But conceding the claim to be well founded, we are nevertheless of opinion that the constitution clothes the judiciary with ample authority to correct any abuses that may arise under the. act.

These general views fully meet all the objections urged against the act, and we therefore" deem it unnecessary to further notice them in detail.

The conclusion reached in this case is, in our judgment, fully sustained by the authorities. Milwaukee Industrial School v. Supervisors of Milwaukee County, 40 Wis. 328; Prescott v. The State, 19 Ohio St. 185 ; Roth v. House of Refuge, 31 Md. 330; Petition of Ferrier, 103 Ill. 367.

The judgment of the court below will be affirmed, with costs.

Judgment- affirmed.