author: Mr. Justice Scholfield

text:
    Henry C. Gray et al. v. The Suspension Car Truck Manufacturing Company.

      Filed at Ottawa January 25, 1889.

    1. Specific performance—change of conditions of contract hy parol. The owner of a tract of land entered into a written contract with a manufacturing company, wherein he agreed to convey to the latter five acres thereof when it should locate its factory thereon and expend $30,000 in buildings, etc., by a time given, and upon payment of $15,000 in money. The contract authorized the land owner to declare the contract void if the company should not expend $5000 by the first day of the then next October. On September 16 the parties mutually agreed, verbally, to modify the contract, extending the time for the expenditure of the $5000 one month, and substituting another five acres in the same tract. No forfeiture was ever attempted to be declared for not expending this sum by the time agreed on. The company in good faith entered upon the land, located its shops, etc., thereon, and expended at least $37,000 on the land, in improvements: Held, that under the facts the company was entitled to a decree for the specific performance of the contract.
    2. ¡Rescission op contract—for non-performance. The owner of land, through his trustee holding the legal title, entered into a written agreement with a manufacturing company for the donation of a part of the land, to be used for shops, etc., in which it was provided, “that if the said company shall locate and construct upon the said tract of land” therein “described, the shops, buildings, plant and improvements aforesaid therein agreed to be constructed during the year ending on the first day of July, 1885, at an outlay of $30,000, a certain deed,” (describing it,) “deposited in escrow for that purpose with G., shall be delivered to the said grantee therein named,” (the company,) “and shall take full effect as of the day of its date.” The agreement also contained a proviso in regard to the payment of $15,000 to G. by the company, if not paid by others, and gave the trustee power to declare the contract void if the company failed to place on the land $5000 worth of labor and materials by a day named. The company paid G. the $15,000 and expended $30,000 within the time agreed, but did not expend the $5000 until after the time fixed. No forfeiture was ever declared on that account. The equitable owner of the land filed his bill to set aside the deed left in escrow, and to compel his trustee to convey to him: Held, that his bill was properly dismissed.

      3. Mere false representations of an intention, not amounting to a matter of fact, is no excuse for non-performance. Such misrepresentation will not justify a rescission of a contract, or a refusal to decree a specific performance.
    4. Varying written contract—by parol—only for fraud, etc. Where a bill to set aside an agreement to convey land fails to allege that the execution of the writing was obtained by misrepresentation and fraud, the writing must be accepted as the only evidence of the contract between the parties.
    5. Bubden oe pbooe—alleged change of contract by parol. On bill for the specific performance of a written contract to convey land, if the defendant sets up a subsequent change of the terms of the contract, whereby the complainant agrees to perform further conditions to entitle him to a deed, the burden of proof will rest on the defendant to establish such .modification.
    Appeal from the Circuit Court of Cook county; the Hon. Lobin C. Collins, Judge, presiding.
    This was a bill in equity, by appellants, against appellees, in the circuit court of Cook county, to compel Henry R Barnes, who held the legal title to a tract of land therein described, to convey the same to appellants. After some preliminary negotiations, a contract was entered into on the 10th day of June, 1884, as follows:

      “Know all men by these presents, That whereas, by certain articles of agreement made and entered into this 10th day of June, A. D. 1884, by and between the Suspension Car Truck Manufacturing Company, a corporation organized under the laws of the State of New York, as party of the first part, and Franklin D. Gray, of the city of Chicago, county of Cook and State of Illinois, as party of the second part, the said corporation covenanted and agreed, among other things, to locate and construct upon the premises known as the B. of the S. of the N. W. i of the N. W. J of section sixteen (16), township thirty-eight (38), N. of B. fourteen (14), E. of the 3d P. M., in the said county of Cook, excepting therefrom a strip of land thirty-three (33) feet in width from the east side of said premises, the main construction and repair shops of said Suspension Car Truck Manufacturing Company for the Northern and Western States, and operate the same upon the said premises for a period of not less than ten (10) years from and after the date of said articles. And further, that the buildings, machinery, fixtures and appurtenances, including the entire manufacturing plant and improvements to be placed upon said land during the year ending on the first day of July, A. D. 1885, should aggregate an actual cash outlay to the said corporation of not less than thirty thousand (30,000) dollars, and that during the three (3) years next ensuing said last named date, a further actual cash outlay should be made in the construction of buildings, machinery and plant for manufacturing purposes, upon the premises aforesaid, by the said company, or by its successors or assigns, aggregating a further actual cash outlay of not less than thirty thousand (30,000) dollars, making a sum of not less than sixty thousand (60,000) dollars to be expended for improvements upon said premises. And further, that all such buildings should be of a permanent and substantial character, and the walls thereof brick, stone, iron or other fire-proof material, and built in a workmanlike manner. And further, that the said company agreed not to use, or permit the use of, said premises, during said period of ten (10) years, for any purpose other than as shop grounds for manufacturing purposes, and would not, during said period of ten (10) years, sell, convey or lease said premises, or any parcel thereof, for residence purposes.
    .“And whereas,.it was and is further agreed in said articles, between the said Gray and the said company, that if Charles W. Eigdon and Frederick S. Fames, or one of them, do not pay, or cause to be paid, to the said Franklin D. Gray, his representatives or assigns, the sum of fifteen thousand (15,000) dollars, with interest at the rate of six per cent per annum from the first day of July, 1884, the said company would pay to the said Gray the sum of fifteen thousand (15,000) dollars, .and interest, on or before said day, to be in full satisfaction, with the construction of the improvements aforesaid, of the consideration moving to said Gray for the purchase of the land aforesaid.
    “And whereas, it is the intention of the parties to these presents, that in case the said Suspension Car Truck Manufacturing Company is compelled to pay the said Gray the said sum of fifteen thousand (15,000) dollars, and interest, the land hereinafter mentioned shall be conveyed to said company, absolutely, and in satisfaction for the advance and payment required to satisfy the said claim of said Gray for the purchase money of the tract first herein described, it being fully understood and agreed that in that event the said Chisholm, president of said company, shall be the purchaser and grantee of both said five-acre tract and said first named tract, upon full consideration paid said Gray and Barnes, respectively, absolutely and according to the form and purport of said deeds:
    “Now, therefore, in consideration of the said premises, and of one dollar paid by said company to said Barnes, the said Barnes covenants and agrees with said company, its successors and assigns, and with said Chisholm, his heirs and assigns, that if said company shall locate and construct upon the said tract of land first above described, the shops, buildings, plant and improvements aforesaid- therein agreed to be constructed during the year ending on the first day of July, 1885, at an outlay of thirty thousand (30,000) dollars, a certain warranty deed, of even date herewith, from the said Barnes and wife to James W. Chisholm, president of the said Suspension Car Truck Manufacturing Company, conveying the five acres of ground in said section seventeen (17), described as follows, to-wit: The S. E. five (5) acres, in a square form, of the south-east quarter of the north-east quarter of the north-east quarter of section seventeen (17), T. 38 N., B. 14, east of the 3d P. M., deposited in escrow for that purpose with Franklin D. Gray, shall be delivered to the said grantee therein named, and shall take full effect as of the day of its date: Provided, however, that if, on or before the first day of July, 1885, the said Baines and Rigdon, or either of them, shall have paid to said Gray the said sum of fifteen thousand (15,000) dollars, and interest to the date of such payment, so that the said company shall hereby have been relieved from such payment as between it and said Gray, then said escrow shall be returned by said custodian, undelivered and of no effect, to the said Barnes. It is further agreed, however, that in case by the first day of October, 1884, the said Suspension Car Truck Manufacturing Company shall not have placed labor and materials upon said first named tract, in the construction of said buildings, to the amount of at least five thousand (5000) dollars, these presents, at the option of said Barnes, shall be null and void, and be, at his request, surrendered to him as of no effect, together with said deed so placed in escrow.
    (Signed) Frederick S. Fames,
    (Signed) Suspension Car Truck Mane. Co.,
    By J. W. Chisholm, Pres.,
    (Signed) J. W. Chisholm.”
    It is alleged in the bill, “that said company wholly failed to carry out and fully perform the "covenants and agreements on its part to be performed to entitle it to the deeds of conveyance from Frederick S. Fames, as aforesaid, deposited in escrow; that said company did not, by October 1,1884, place labor and material on said premises in section 16, in the construction of buildings, to the amount of $5000; that it wholly failed to locate and construct on the first mentioned premises its main construction and repair shops for the Northern and Western States, and wholly failed to expend, in actual cash, an outlay of $30,000 during the year ending July 1,1885, on its shops, etc., to be located on said premises; that said company falsely and fraudulently pretended that the time within which the covenants and agreements were to b'e performed was extended, by verbal agreement made with the said Frederick S. Eames, and that they have fully performed and kept all of said agreements by it to be kept, and have caused said agreement between Frederick S. Eames and said company and said Chisholm to be recorded in the recorder’s office of Cook county, Illinois, and have demanded of said Eames said agreement and deed now deposited in escrow, as aforesaid, to be delivered up to become operative as a conveyance to the premises therein described; that the claims of said company are false and fraudulent; that it has wholly failed to perform the covenants and agreements by it to be performed and kept to entitle it to the delivery of said conveyance in escrow; that its pretended claim as to the extension of time aforesaid is false and fraudulent, and made with the intention to harass orators, and that the recording of said articles of agreement, as aforesaid, is a cloud on the title of orators, and has the effect greatly to depreciate the value thereof, and prevent orators from making a sale of the same. The prayer is, that said agreement be declared null and void, and as a cloud upon the title of orators be removed and delivered up to be canceled; that such deed in escrow also be declared null and void, and delivered up and canceled, and that said Henry F. Eames be ordered to deed to orators one-half of said forty-eight lots, and such other and further relief,” etc.
    Answer was filed, putting in issue the allegations of the bill, and the Suspension Car Truck Manufacturing Company thereafter filed its cross-bill, alleging performance of the contract, and praying that Eames convey the five acres therein described to it. Answer was filed denying its material allegations. On hearing, .the court below dismissed the original bill, and decreed in favor of the prayer of the cross-bill.
    The decree recites the execution of the contract before herein recited, and finds “that on or about September 16, 1884, by mutual agreement of parties to said agreement, said agreement was modified in respect to giving said company additional time for expenditure of $5000 till the first day of November, 1884, and the premises in said deed in escrow described as the south-east five acres, in a square form, of the south-east quarter of the north-east quarter of the north-east quarter of section 17, township 38 north, range 14, east of third principal meridian, were changed, so that the land 'to be conveyed to said company was described as that portion of the northeast quarter of the north-east quarter of said section 17 bounded as follows, viz.: On the south by the north line of Fifty-seventh street; on the east by the west line of Halsted street, extending from the corner of Halsted and Fifty-seventh streets north about 169j^4q- feet; thence of the same width, including seven lots, less a fraction of a lot, in depth, across the west boundary of said north-east quarter of the north-east quarter, so as to include therein five acres,—which was to be conveyed as in said original agreement provided, in lieu of the five acres in square form described in said deed held in escrow; that after the making of the modification of said agreement, said company proceeded to, and did, in good faith, carry out and perform all of the undertakings on its part to be performed; that since the making of said original contract, said north-east quarter of the north-east quarter above described, and including the premises in controversy, was conveyed to Lester H. Fames, by him subdivided into lots, blocks, streets and alleys, and by said Lester H. Earpes the premises in controversy were conveyed, as follows: Under the-description of lots and blocks, to said Henry F. Fames, lots 19 to 30, inclusive, in block 5, lots 19 to-30, inclusive, in block 6, lots 18 to 31, inclusive, in block 7, lots 19 and 30, in block 8, in Fames’ subdivision of said north-east quarter of the north-east quarter of said section 17; and to said defendant in cross-bill, Henry C. Gray, lots 18 and 31 in block 5, lots 18 and 31 in block 6, lots 18 and 31 in block 8, in the same subdivision as last above mentioned ; that said Henry C. Gray made a trust deed to said Henry F. Fames, covering the last mentioned lots, which was duly recorded; that the legal title to said lots first above described stands in said Henry F. Fames, and the legal title to the lots last described stands in said Henry C. Gray, subject to said trust deed, but that said Lester II. Fames, Henry C. Gray and Henry F. Fames, at the times of making the several conveyances vesting the legal title in them, respectively, had full notice and knowledge of all the rights and equities in said premises of said complainant in the cross-bill, and received said conveyances subject thereto, and said Henry F. Fames and Henry C. Gray now hold the title to said lots in trust for said complainant in the cross-bill.”
    The complainants appealed to this court, and assigned errors bringing in question the different rulings of the circuit court.
    Mr. Henry S. Monroe, for the appellants:
    The company failed to put its works in operation. The consideration which moved Fames to agree to convey the five acres of land had absolutely failed when the suit was brought. The decree below takes this five acres for absolutely nothing.
    Specific performance will be refused if there is anything that makes it unconscionable from a change of circumstances, as, lapse of time, or otherwise. Kimball v. Tooke, 70 Ill. 553; Harrison v. Polar Star Lodge, 116 id. 279.
    The contract must be founded upon a consideration, fair, reasonable' and valuable. If it be such that justice revolts at it, it will not be enforced, even though it be binding at law. Lear v. Choteau, 23 Ill. 39; Stone v. Pratt, 25 id. 25; Webb v. Fire Ins. Co. 5 Gilm. 223.
    ■ Specific enforcement will not be granted unless the contract has been entered into with perfect fairness, and without misrepresentation or misapprehension, or when it would be unjust or inequitable to enforce it. Fish v. Leser, 69 Ill. 394.
    If any unfairness or reprehensible means are used to obtain a contract, it will not be enforced. (Taylor v. Merrill, 55 Ill. 52; Kelly v. Kendall, 118 id. 650.) The same is true if .the contract is itself unfair or unjust. Proudfoot v. Wightman, 73 Ill. 553.
    A court of equity will not enforce a contract tainted with fraud or into which fraud has entered, or where wrong or injustice would be done, or where it would be inequitable or work a hardship. Ryan v. Ryan, 97 Ill. 38; Hetfield v. Willey, 105 id. 286.
    A contract will not be enforced if its enforcement would permit one party to reap an advantage not just to the other. Harrison v. Polar Star Lodge, 116 Ill. 279.
    Mr. Jebemiah Beaming, and Mr. B. S. Thompson, for the appellee.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The correctness of the ruling of the court below in dismissing the original bill, depends upon what the car truck company was required to do, by the terms of the written contract, to entitle it to a deed. The writing is explicit-in that respect. It says: “That if said company shall locate and construct upon the said tract of land first above [therein] described, the shops, buildings, plant and improvements aforesaid therein agreed to be constructed during the year ending on the first day of July, 1885, at an outlay of thirty thousand (30,000) dollars, a certain deed, [describing it particularly,] deposited in escrow for that purpose with Franklin D. Gray, shall be delivered to the said grantee therein named, and shall take full effect as of the day of its date.” The proviso in regard to the payment of $15,000 by Eames and Bigdon, and the further proviso authorizing Eames to declare the contract void for the not placing of $5000 worth of labor and materials upon.the designated tract of land in the construction of the buildings, are irrelevant to the question, because it is admitted that Eames and Bigdon did not pay the $15,000, and the car truck company did pay it. And it is also admitted that Eames did not elect to declare the contract void for the not placing of $5000 worth of labor and materials upon the designated tract of land in the construction of the buildings.

There is no allegation in the original bill that the execution of the writing was obtained by misrepresentation and fraud, and in the absence of such an allegation the writing must be accepted as the only evidence of the contract between the parties. The consideration for the execution of the deed is one thing, but the conditions to be performed precedent to its execution are other and entirely different things.

The original bill proceeds entirely upon the ground that the car truck company did not perform its part of the agreement with respect to the execution and delivery of the deed, and it was therefore incumbent on it to prove that the company did not locate and construct the shop buildings, etc., at an outlay of $30,000, during the year ending on the first day of July, 1885, as provided by the contract. It is not seriously contended that such proof was made, and it admits of no controversy that the evidence preserved in the record proves directly the reverse.

More difficulty is presented by the decree granting the prayer of the cross-bill. It is therein found, that on the 16th of September, 1884, the parties to the agreement set out in the original bill mutually agreed that the time for placing the $5000 of labor and materials upon the designated tract, to be used in the construction of said buildings, was extended from the first day of October to the first day of November, 1884, and the premises described in the deed in escrow were changed, so that the land to be conveyed is, instead of that described in the deed in escrow, “that “portion of the north-east quarter of the north-east quarter of section 17, bounded as follows: On the south by the north line of Fifty-seventh street; on the east by the west line of Halsted street, extending from the corner of Halsted and Fifty-seventh streets north about 169feet; thence of the same width, including seven lots, less a fraction of a lot, in depth, across the west boundary of said north-east quarter of the north-east quarter, so as to include therein five acres.” Both parties claim that there was a mutual agreement on the 16th of September, 1884, whereby the time was extended, in the respect mentioned, from the first day of October until the first day of November, 1884, and they agree that the land to be conveyed was also changed from that described in the deed in escrow, but they differ as to the description of that to be conveyed in lieu of it,—appellees contending that it is to be measured as recited in the decree, and appellants contending that it is to be as thus recited, with this exception: that the south line should be the center line, instead of the north line of Fifty-seventh street. But appellants further contend, that by this agreement Barnes was not to execute and deliver the deed until the car truck company had complied with its contract in respect to the erection of buildings, etc., and had also proceeded to manufacture car wheels, employing at least three hundred men in the business. Appellees deny that there was any such agreement.

The contention of appellants is sworn to by two witnesses. It is denied by twro witnesses with equal opportunity of knowledge, and, in our opinion, the latter are, to some extent, corroborated by circumstances. Chisholm, the president of the company, emphatically denies it, and Raymond, who was at the time attorney for the company, testifies that an agreement was made between the parties, and that on the same day, and immediately afterwards, he reduced it to writing, and sent a copy to Barnes, asking him'if it was correct, and that Barnes made no reply. He is corroborated as to the reducing of the agreement to writing, by Chisholm, and it is not denied by Barnes that the copy was received by him. The making of this writing was so soon after the making of the agreement that it excludes the idea that Raymond had forgotten. If it was not correct, it was either because he did not understand the agreement, or it was made incorrect willfully. There is no apparent motive why he should willfully have misstated the terms of the agreement. He is evidently disinterested, and it is hardly to be supposed that he could have been mistaken.

The writing of Raymond directly contradicts the two witnesses on behalf of appellants. But counsel for appellants insist that Raymond’s testimony shows that negotiations between Barnes and himself were continued after the letter was written and sent by him, and that Barnes declined to make any further agreement or sign any contract in the matter, but said he would do what was right if the other part of the contract was carried out. This is very true, but it has relation entirely to an attempt upon the part of Raymond to get subsequent modifications of the contract. He expressly states that it had no reference to the agreement made on the 16th of September, 1884. A circumstance corroborative is, that the Barnes employed Mr. Whiton as their attorney in this matter, and in attempting to adjust the differences between the parties, he made no claim that the execution of the deed was to be postponed, as it is now contended by appellants that it was, and proposed an adjustment entirely excluding that idea.

There was a dispute, as before observed, whether the deed should include or exclude one-half of Fifty-seventh street, making a difference of one acre of ground, or about that. This, of course, was subsequent to the agreement of the 16th of September, 1884. That dispute, it is shown, led to warmth of feeling, and, probably, bitterness of expression, and it was not until after the 16th of September, 1884, as we understand the evidence, that the circumstances occurred which seemed to have begotten distrust ‘in the "minds of the Barnes as to the success of the company’s enterprise; and so, it is readily discernible that the Barnes may have forgotten the time when they first insisted that the deed should not be delivered until after the company was manufacturing, with three hundred hands, etc. This is the most charitable view to take of the evidence. The evidence is satisfactory that the extension of time from October 1 to November 1 was not regarded by the company as vital, but as a matter of convenience, only; and the change of the five acres from that described in the deed, to a different location, was regarded as desirable by Barnes,— certainly as much so as the extension of time was by the company. Mr. Frederick Barnes testified that he requested Chisholm to put in the original contract his representation that the company would employ and continue in employ, three hundred men, but Chisholm declined to do so, alleging that he did not want to bind the company to always have this business, for a period of ten years. The result was, the company did not, by that contract, bind itself to employ that number of men for any time. It would have been strange,— quite inconsistent,—that he should, subsequently, in order merely to obtain an extension of time for one month for the expenditure of $5000 in labor and materials in the buildings, have consented, in addition to the change in the description of the property conveyed, to this postponement of the execution and delivery of the deed. Somebody is mistaken, or there has been perjury. It is most charitable to suppose somebody has been mistaken in this matter, and if so, we think the evidence preponderates that the mistake is with the witnesses on behalf of appellants, in assigning a wrong time to the commencement of a claim they now insist upon, as to this change in the agreement, and have, undoubtedly, heretofore insisted upon as to proposed changes in the agreement, but which changes were never made.

It is contended the evidence shows misrepresentation and fraud as to the consideration of the agreement decreed to be specifically executed. We are unable to say that the evidence sustains this contention. We have found no evidence of the misrepresentation of an existing fact which we can say would justify a rescission, and hence a refusal to decree performance of the contract. Mere false representation of an intention, not amounting to a matter of fact, is no excuse for non-performan.ee. Kerr on Fraud and Mistake, (Bump’s ed.) p. 88; Fry on Specific Performance, (new Am. ed.) p. 150, sec. 191. The failure of the company to proceed in manufacturing, two witnesses, Messrs. Chisholm and Barnum, testify, is solely because of the failure of these appellants to do what they contracted to do. While there is some evidence of the insolvency of the company, there is evidence directly to the contrary.

It is said the ease is one of failure of consideration. That is hardly accurate. The consideration was tlie erection of the buildings, etc., at the cost of $30,000, by the first of July, 1885, and the payment of $15,000 to Franklin D. Gray by the company,—all of which was done. The motive influencing Fames, doubtless, was the anticipated benefits to result to his other property from the successful operation of a factory of this character in proximity to it. But he made no conditions in the contract in that respect, and mere expressions of opinion, hope, expectation and the like, relating to matters which, from their nature, situation or time, as here, can not be supposed to be within the knowledge or under the power of the party making the statement, do not justify the party to whom they are made, to rely upon and assume them to be true. 2 Pomeroy’s Eq. sec. 891.

We are unable to say that the court below erred in its findings of fact, or in the decree it rendered. The decree is affirmed.

Decree affirmed.

Mr. Justice Bailey : I am unable to concur in this decision.


source: Caselaw Access Project

author: Mr. Justice Wilkin

license: Public Domain

text:
    The Ottawa Gas Light and Coke Company v. Nicholas Downey, Collector.

      Filed at Ottawa January 25, 1889.

    1. Taxation—capital stock of gas companies—to he assessed hy the State Board of Equalization—constitutionality of the statute. Under the present legislation, (Rev. Stat. 1874, chap. 120, secs. 3,32 and 33,) the capital stock of gas companies is required to be assessed by the State Board of Equalization.
    2. The fourth clause of section 3 of the Revenue law requires that the capital stock of all companies, etc., shall be assessed by the State Board of Equalization, including the franchise, over and above the assessed value of the tangible property of such company, etc. In a proviso it is declared that companies and associations organized for purely manufacturing purposes shall be assessed by the local assessors. Sections 32 and 33 of the same law expressly require the capital stock of gas and other named companies to be assessed by the State Board of Equalization: Held, that the including of gas companies in the sections subsequent to section 3, is clear, if not conclusive, proof, that the intention was not to class such companies with those organized for purely manufacturing purposes.
    3. The statute, in distinguishing gas companies from purely manufacturing companies, and classing them with banking, mining and other corporations named in section 32 of chapter 120, and in requiring their capital stock to be assessed by the State Board of Equalization, 'is not in violation of section 1, article 9, of the State constitution.
    4. Constbtjction op statutes. When there is no uncertainty or ambiguity in a statute, there is no necessity for Judicial construction. Courts can not, as a general rule, disregard the plain language of a statute. It is their duty to accept it as they find it, and enforce it as it is plainly written.
    Appeal from the Circuit Court of La Salle county; the Hon. Charles Blanchard, Judge, presiding.
    Messrs. Bull & Strawn, for the appellant.
    Messrs. Moloney & Stead, for the appellee.
   Mr. Justice Wilkin

delivered the opinion of the Court:

By its bill in chancery, appellant sought in the court below to enjoin the collection of a tax assessed against its capital stock by the State Board of Equalization, for the year 1884. The theory of the bill is, that the complainant company is a corporation “organized for purely manufacturing purposes, ” subject only to assessment by the local assessors, as provided in the fourth clause of section 3, chapter 120, of the Revised Statutes, entitled “Revenue,” and that so far as other sections of the Revenue act purport to subject the capital stock of gas companies to taxation, they are unconstitutional and void. A temporary injunction was ordered and issued, but at the final hearing the same was dissolved and the bill dismissed at complainant’s costs, and this last order of the circuit court is the only error assigned on the record. There is no dispute as to the facts, and whether or not, under our statute, the capital stock of gas companies is liable to assessment by the State Board of Equalization, is the only question submitted for our decision.

The sections of the Revenue act affecting this question are the third, thirty-second and thirty-third. So much of the third as is pertinent is found in the fourth clause, as follows:

“Fourth—The capital stock of all companies and associations now or hereafter created under the laws of this State, (except those required to be assessed by the local assessors, as hereinafter provided,) shall be so valued by the State Board of Equalization as to ascertain and determine, respectively, the fair cash value of sftch capital stock, including the franchise, over and above the assessed value of the tangible property of such company or association. * * * This clause shall not apply to the capital stock, or shares of capital stock, of banks organized under the general banking laws of this State: Provided, further, that companies and associations organized for purely manufacturing purposes, or for printing, or for publishing of newspajiers, or for the improving and breeding of stock, shall be assessed by the local assessors, in like manner as the property of individuals is required to be assessed.”

The language of section 32 is as follows:

“Banking, bridge, express, ferry, gravel-road, gas, insurance, mining, plank-road, savings bank, stage, steamboat, street railroad, transportation, turnpike, and all other companies and associations incorporated under the laws of this State, (other than banks organized under the general banking laws of this State, and the corporations required to be assessed by the local assessors, as hereinbefore provided,) shall, in addition to the other property required by this act to be listed, make out and deliver to the assessor a sworn statement of the amount of its capital stock, setting forth, particularly,—
“First—The name and location of the company or association.
“Second—The amount of capital stock authorized, and the number of shares into which such capital stock is divided.
“ Third—The amount of capital stock paid up.
“Fourth—The market value, or, if no market value, then the actual value of the shares of stock.
“Fifth—The total amount of all indebtedness, except the indebtedness for current expenses, excluding from such expenses the amount paid for the purchase or improvement of property.
“Sixth—The assessed valuation of all its tangible property.
“ Such schedule shall be made in conformity to such instructions and forms as may be prescribed by the Auditor of Public Accounts. In all cases of failure or refusal of any person, officer, company or association to make return or statement, it shall be the duty of the assessor to make such return or statement from the best information which he can obtain.”

By section 33 it is provided that the foregoing statement shall be scheduled by the assessor, and the schedule, with the statement, returned to the county clerk, to be by him forwarded to.the Auditor. The Auditor shall, annually, on the meeting of the Board of Equalization, lay before it such schedules and statement, “and said board shall value-and assess the capital stock of such companies or associations in the manner provided in this act.”

Taking the language of section 32 as it reads, together with the provisions of section 33, and the first paragraph of clause 4 of section 3, there is no ground for controversy on the question submitted. These sections as effectually provide for the assessment of the capital stock of gas companies, as they do for that of banking, bridge, or other companies named in section 32. So far there is no uncertainty or ambiguity in the statute, and therefore no necessity for construction. Courts can not, as a general rule, disregard the plain language of a statute. It is their duty to accept it as they find it, and enforce it as plainly written. Cooley’s Const. Dim. 55; Foley v. People, Breese, 57; Chicago, Milwaukee and St. Paul Railroad Co. v. Dumser, 109 Ill. 402, citing Newell v. People, 7 N. Y. 9; Potter’s Dwarris, 145.

But it is said, gas companies are organized for purely manufacturing purposes; that by the provision in clause 4, section 3, such companies are to be assessed only by the local assessors, and therefore that provision and section 32 are in conflict; and it is insisted that in order to harmonize the two sections, 32 should be read omitting the word “gas” in the first line. Admitting the premises to be correct, the conclusion does not follow. Nor does it necessarily follow, that because gas companies may fall within the general definition of manufacturing companies, the legislature therefore intended to include them in the said proviso in section 3. The fact that by plain and unequivocal language in the subsequent sections 32 and 33, provision is made for assessing their capital stock, is clear, if not conclusive, proof, that the intention was not to class such associations with those organized for purely manufacturing purposes, and the decision of this branch of the case might safely rest on this ground alone.

Counsel for appellant earnestly contend, that by comparing the law in force, with the act of 1872, to which it is an amendment, it will appear that gas companies are mentioned in section 32 by an oversight on the part of the legislature. On the other hand, appellee’s counsel maintain, that by the same means it will be made clear that the intention was to subject their capital stock to assessment by the Board of Equalization, and in support of that view cite, by way of argument, a very clear and satisfactory opinion rendered by Judge Blodgett, in Williams v. Rees, 9 Biss. 405. We have examined the two acts with reference to what is said in support of the respective positions of counsel, and are unable to find anything in them to justify the construction contended for by appellant. Section 32 of the act of 1872 was in the following language: “Banking, bridge, express, ferry, gravel-road, gas, insurance, manufacturing, mining, plank-road, savings bank, stage, steamboat, street railroad, transportation, turnpike, and all other companies and associations incorporated under the laws of this State, (other than banks organized under the general banking laws of this State,) shall, in addition to the other property required by this act to be listed, make out and deliver to the assessor a sworn statement of the amount of capital stock,” setting forth particularly, etc. When this section was adopted, the legislature evidently understood gas companies to be distinguishable from manufacturing companies, else why name both ? If manufacturing companies were understood to include gas companies, why should the latter be expressly named ? When the subsequent legislature took manufacturing companies out of that section, and transferred them to the proviso in clause 4 of section 3, and left gas companies in section 32, it must have intended to treat the two differently, still understanding the former did not include the latter.

We are satisfied those companies are not within the intent and meaning of clause 4 of section 3, but were intentionally left by the legislature in section 32. What consideration may have moved the General Assembly to distinguish these from other manufacturing companies,—whether because of special privileges sometimes accorded them in the use of streets, to convey, by pipes, gas to consumers, or because, owing to the peculiar nature of their product, it can not be subjected to assessment and taxation as can the articles made by other manufacturing companies,—we do not deem it important to consider. We think the legislative will sufficiently appears in the act itself, and especially when considered with reference to the act to which it is amendatory.

The remaining question is, does the statute, thus understood, contravene section 1 of article 9 of the constitution of this State ? We have already seen that the legislature has distinguished gas companies from purely manufacturing companies, and, for the- purpose of taxing their capital stock, classed them with banking, mining and other corporations mentioned in section 32, supra. If we are correct in this conclusion, the case of Coal Run Coal Co. v. Finlen, 124 Ill. 666, is directly in point, and decisive of the question here presented. There the coal company sought to enjoin the extension of a tax against its capital stock and franchise, assessed by the State Board of Equalization, on the ground that the statute was unconstitutional ; hut we held otherwise, adhering to what had been previously decided in Porter v. Rockford, Rock Island and St. Louis Railroad Co. 76 Ill. 579.

The decree of the circuit court is affirmed.

Decree affirmed.


author: Mr. Justice Shore

text:
    Asahel Gage v. William W. Stewart et al.

      Filed at Ottawa January 25, 1889.

    1. Tax title—notice■—as„a prerequisite to a deed. A strict compliance •with the statute in respect to the service of notice of the purchase and when the time of redemption will expire, and of the proof thereof, is a prerequisite to the making of a valid tax deed.
    2. Same—notice—amendatory act of 1879 — its operation as respects sales made prior thereto. The requirements of section 216 of the Revenue law, as amended in 1879, not included in that section before such amendment, are, that service of notice shall be had upon “the owner of or parties interested in said land or lot, if they can, upon diligent, inquiry, be found in the county,” etc. Provision is made for publication in case the land or lot is unoccupied, or the person in whose name it is assessed, or the owners or parties interested therein, can not be found in the county, or if the owners, etc., are unknown to the purchaser or his assignee, publication maybe made as to them, as unknown owners, etc.
    3. This amendment of 1879 was intended to take effect in presentí as to all notices to be thereafter served, and to apply to all purchasers at tax sales and their assignees, irrespective of when the sales for taxes were made. The amended act applied to all steps to be taken after it went into effect, and which could be performed according to its requirements. This construction does not give the act a retrospective operation.
    4. A retrospective effect will not be given to a statute, unless the legislative intent that it shall so operate is clearly manifested. But no such effect is sought to be given to this statute. It, for the protection of those having the right to redeem, required that notice be served upon the owner, if to be found in the county, at least three months before the expiration of the time of redemption. The amendment in no way affects or applies to the sale, or any of the precedent steps lawful under the former statute, but relates solely to acts to be performed by the purchaser or his assignee subsequent to its taking effect, and by which his inchoate right in the land may ripen into a title.
    5. These requirements—of giving notice of the sale, when the time of redemption will expire, and making proof thereof to the clerk—. are in the nature of remedies to be pursued by the purchaser or holder of the certificate of purchase, to mature and perfect his title to the land under the tax sale. As to all those acts which could he performed by the purchaser or his assignee after the statute became in force, it necessarily operated prospectively.
    6. This amendatory act of 1879, in requiring notice to be served on others, not before included, of the time when redemption from a tax sale would expire, is not void, as impairing the obligation of the contract between the State and the purchaser at the tax sale.
    7. Betboactive effect of statutes—to what extent allowable. It is competent for the legislature, in its discretion, to regulate or change the methods of conducting public business, and to impose such restrictions and conditions upon those having contracts with the State as public policy may demand, although such restrictions, conditions or changes may require the observance of new forms by the public officers or by the party to the contract-. The exercise of such power is, in effect, the same as the exercise of the power for the enforcement of contracts. Within the limitation that- the right itself shall not be impaired, it is to be regarded as within legislative control.
    8. A law, however, which deprives a party of all legal remedy, or imposes impossible conditions to the assertion of his right, will necessarily be void. The power of the legislature in this regard is subject to the limitation that every provision of substantial benefit in the contract must be preserved. No new conditions can be imposed requiring the payment of additional consideration, or that may hinder or prevent the purchaser or his assignees from acquiring title, or extending the time of redemption.
    Appeal from the Circuit Court of Cook county; the Hon. Lorin C. Collins, Judge, presiding.
    Mr. Augustus N. Gage, for the appellant:
    The law in force when the tax sale took place required service of the notice on, first, the occupant of the land; and second, the person in whose name the land'was listed or taxed, if to be found in the county. The property, here, was taxed in the name of A. C. Stewart, and he was dead, and the notice was served on his heirs, and the only persons in the actual occupancy of the land. Gage v. Bailey, 102 Ill. 11; Garrick v. Chamberlain, 97 id. 620; Frew v. Taylor, 106 id. 159.
    It is also objected, that 'the affidavits do not show service on the owners or parties interested in the property. At the time of the tax sale, these persons were not required to be served. All persons were duty served that the law required to be served when the sale was made.
    Mr. H. S. McCartney, for the appellees:
    The act of 1879, imposing additional duties on purchasers at tax sales to entitle them to deeds, is a valid enactment as to sales made before its passage. State v. Hundhausen, 24 Wis. 196; Curtis v. Morrow, id. 669.
    The affidavits fail to show a sufficient service. Price v. England, 109 Ill. 395; Davis v. Gossnell, 113 id. 121; Gage Bailey, 100 id. 531.
   Mr. Justice Shore

delivered the opinion of the Court:

This was a bill filed by appellees, to set aside as clouds upon their title to certain lots in the city of Chicago, three certain tax deeds held by appellant. An answer was filed to so much of the bill as related to two of said deeds, and a demurrer interposed to the residue of the bill, which averred the invalidity of the third of said deeds,—which demurrer was overruled by the court. Appellant electing to abide by his demurrer, the cause was heard upon the issues presented by the answer, and a decree rendered in accordance with the prayer of the bill.

The only questions here presented, relate to the overruling of the demurrer, and the rendering of the decree upon the allegations of the bill as to the last of said deeds.

The deed in controversy bears date March 9, 1881, and is based upon a sale for taxes made October 21, 1878, and from which redemption expired October 21, 1880. The bill, after setting forth the title of appellees, alleges that defendant claims title under said deed; that it is void; that in making proof to the county clerk preliminary to its execution, appellant did not comply with the law, for the reason that the affidavit and notice filed for that purpose (copies of which are attached as exhibits, and made part of the bill,) are defective, and insufficient, in law, to authorize the making of said deed. Specific objections thereto are alleged, among which is, that no notice was shown to have been given to the owner of the lots, or proof filed that upon diligent inquiry he or they could not be found in the county, etc.

The question is fairly presented by the bill, and demurrer thereto, whether, in respect of this particular deed, service of notice upon the owners of or parties interested in the land or lots must be shown, or that upon diligent inquiry he or they could not be found in the county, or that some person in the actual occupancy of the premises, as tenant of the owner, or holding possession under him or them, was served with notice, must be made to appear by the affidavits filed, before the clerk could lawfully execute the deed. That compliance with the statute is a prerequisite to the -making of a valid tax deed, has been so repeatedly held that no discussion thereof is necessary. Holbrook v. Fellows, 38 Ill. 440; Gage v. Bailey, 100 id. 530; Frew v. Taylor, 106 id. 159.

The difficulty arises in determining what were the requirements in this particular instance. What the notice must contain, upon whom and when it is to be served, with the manner of service, is prescribed by section 216 of the Revenue act; and if that section, as amended by the act of the legislature of May 31, 1879, (in force July 1, 1879,) is to control in this case, it is substantially conceded, as it must be, that the demurrer was properly overruled.

The requirements of the section as amended, not included in the act in force at the date of such sale, are, that service of notice shall be had upon “the owner of or parties interested in said land or lot, if they can, upon diligent inquiry, be found in the county,” etc. Provision is made for publication in case the land or lot is unoccupied, or the person in whose name it is assessed, or the owners or parties interested therein, can not be found in the county, or if the owners, etc., are unknown to the purchaser or his assignee, publication may be made, as to them, as unknown owners, etc. No service of notice, by publication or otherwise, upon the owners, was shown by the affidavit filed, nor was it shown that upon diligent inquiry they could not be found in the county.

It is insisted that, the sale occurring October 21,1878, the law then in force will control in the subsequent proceedings necessary to maturing the tax title, and therefore no notice to the owner was required to be shown as a prerequisite to the making of the deed. We are of opinion that the section of the act of 1879 was intended to take effect in presentí, as to all notices served or to be served thereafter, and to apply to all purchasers at tax sales, and their assignees, irrespective of when the sale for taxes was made. This is, we think, the clear import of the language employed. The provision is not in respect of sales thereafter to be made, but is, that “hereafter no purchaser, or assignee of any such purchaser, of any land or lot, for taxes, etc., at any sale,” etc., shall be entitled to a deed until he shall have complied with the conditions prescribed in that section of the statute. The amended act applied to all steps to be taken after it went into effect, and which could be performed according to its requirements. Nor does this construction give the act a retrospective operation, as Seems to be supposed. The rule undoubtedly is, that a retrospective effect will not be given to the statute unless the legislative intent that it shall so operate is clearly manifested. But no such effect is sought to be given this statute. The legislature, for the better protection of those having the right of redemption, required that notice be served upon the owner, if to be found in the county, at least three months before the expiration of redemption. No other change affecting the right of the purchaser or holder of the certificate of purchase is wrought by this amendment. It in no way affects or applies to the sale, or any of the precedent steps in the proceeding, lawful under the former statute, but relates exclusively to acts to be performed by the purchaser, or his assignee, subsequent to its taking effect, and by the performance of which his inchoate right in the land, under his certificate of purchase, might ripen into a title. These requirements,—of giving notice of the sale, when redemption will expire, and making proof thereof to the clerk,—are in the nature of remedies to be pursued by the purchaser or holder of the 'certificate of purchase to mature and perfect his title to the land under the tax sale. As to all these acts, which could be performed by the purchaser, or his assignee, after the statute became in force, it would necessarily operate prospectively. Bacon’s Abr. Stat. 9.

The cases of Stamposki v. Stanley, 109 Ill. 210, and People v. Thatcher, 95 id. 109, are not in point. Those cases would be authority for the contention of counsel if the time of redemption had expired in this case prior to the act of 1879 going into effect, or if sufficient time had not intervened between that act becoming the law and the expiration of redemption, in which to give the prescribed notice. Here no such question arises, the act, as amended, having been in force more than a year before the notice was required to be given.

For the same reason, the position of counsel, that the act of 1879, if held applicable to this case, would be void, as impairing the obligation of the contract between the State and the purchaser at the tax sale, is not well taken. It is clearly competent for the legislature, in its discretion, to regulate or change the methods of conducting the public business, and to impose such restrictions and conditions upon those having contracts with the State as public policy may demand, although such restrictions, conditions or changes may require the observance of new forms by the public officers or by the party to the contract. The exercise of such power is, in effect, the same as that which may be exercised in respect of remedies for the enforcement of contracts, which, within the limitation that the right itself shall not be impaired, is to be regarded as within the legislative control. Cooley’s Const. Lira. (5th ed.) 350, 443, and cases cited.

A law which would deprive the party of all legal remedy, or impose impossible conditions to the assertion of his right, would necessarily be void. The power of the legislature over the subject under consideration is necessarily subject to the limitation that every provision of substantial benefit in the contract must be preserved. No new condition could be imposed requiring the payment of additional consideration, or that would hinder or prevent the purchaser or his assigns from acquiring title, or extending the time of redemption. (Gault’s Appeal, 33 Pa. St. 94; Cooley on Taxation, 369, par. 11.) But the change made by the legislature in no way interfered with the rights under the contract. The rights of the land owner are not enlarged, or those of the holder of the tax certificate diminished. He is required simply to comply with the new forms, to serve notice upon a party upon whom service was not before required by law, and ample time is given for compliance. By the observance of this formality his rights are preserved to him unimpaired. This in no way impairs the obligation of his contract. State ex rel. v. Hundhauser, 24 Wis. 196.

From what has been said, it is apparent that, in our opinion, the act of 1879 was applicable, and the holder of the certificate of purchase was required to give the notice therein prescribed, and make proof thereof as required by the 217th section of the Revenue act, and not having done so, the deed was properly held void.

The decree will therefore be affirmed.

Decree affirmed.


author: Per Curiam :

text:
    The Chicago, Milwaukee and St. Paul Railway Company v. Mary Yando.

      Filed at Ottawa January 25, 1889.

    1. Bill of exceptions—when necessary—certificate of clerk, not sufficient. Where the bill of exceptions contains no instruction given or refused, an appellate court can not consider an assignment of error based on the refusal of the trial court to give instructions asked.
    2. After the affirmance of a judgment of the trial court by the Appellate Court, the defendant procured from the clerk of the trial court his certificate that certain instructions thereto attached were asked by defendant and refused by the court, and on such certificate filed a petition for a rehearing, which was denied. The instructions were not embodied in the bill of exceptions: Held, that such certificate was not properly before the Appellate Court at any time, and could not be considered by either that or this court.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. E. Walker, for the appellant.
    Mr. Joseph F. Kennard, Jr., and Messrs. Brandt & Hope-man, for the appellee:
    There is no question of law presented to this court. The instructions can be brought before the Appellate and this court only by bill of exceptions. Daniels v. Shields, 38 Ill. 197; Gill v. People, 42 id. 321; Tarble v. People, Ill id. 120; James v. Dexter, 113 id. 654; Graham v. People, 115 id. 566.
   Per Curiam :

Action on the case, for personal injury. The declaration contained six counts. The first five charge negligence on the part of the servants of appellant, and due care by appellee. The cause of action set forth in the last count is correctly stated by Justice McAllister in the opinion of the Appellate Court, as follows:

“This was an action by the appellee, against the said railroad company, appellant, to recover damages for a personal injury occasioned May 15, 1885, by reason, as it is alleged, of the gross, willful and culpable negligence of the engine-driver of the defendant, in running his engine against and over the plaintiff while being inadvertently on, or in dangerous proximity to, the track on which said engine was going, and being unaware of her danger, but he, said engine-driver, having seen the plaintiff, and become aware of her danger a sufficient distance from her to have stopped his engine by the exercise of ordinary care, and avoided the injury, did not do so, but ran such engine over her, inflicting a grievous and permanent injury.”

The general issue was filed by appellant, and a trial had before the Hon. Joseph E. Gary, of the Superior Court of Cook county, and a jury, resulting in a judgment for appellee for $5000, and costs. The Appellate Court found the evidence on behalf of appellee tended to prove all the elements of the cause of action stated in the last count of the declaration, and that there was no such countervailing evidence as to justify that court in interfering with the verdict of the jury. Appellant urged as a ground of reversal in the Appellate Court, the refusal of all the instructions asked by it in the trial court. No instructions whatever appeared in the bill of exceptions, and it was properly held that none were before that court for its consideration. This question, and that of the sufficiency of the evidence to sustain the action, being the only ones raised in the Appellate Court, the judgment of the Superior Court was affirmed, and an opinion filed. Afterward, appellant procured from the clerk of the trial court his certificate, to the effect, that certain instructions thereto attached were asked by the appellant on the trial of the case, and refused by the court, and on that certificate filed a petition for a rehearing in the Appellate Court, but it was denied. We are now asked to review that action of the Appellate Court, and pass upon the instructions said to have been refused in the court below.

It can not be maintained that the instructions were contained in the bill of exceptions, as filed in the Appellate Court. An amended bill of exceptions containing them was not even presented on the motion for rehearing, but the mere certificate of the clerk was relied upon to engraft them into the record. It was clearly ineffectual to do so. They are, therefore, no part of the record, were not properly before the Appellate Court at any time, and can not be considered here. No attempt is made to raise other questions of law, and as the finding of the Appellate Court is conclusive as to the facts, but one result can. follow,—the judgment of the Appellate Court must be affirmed.

Judgment affirmed.

Mr. Justice Bailey, having heard this case in the Appellate Court, took no part in its decision here.


author: Mr. Justice Scholheld

text:
    Henry H. Gage v. George A. Du Puy.

      Filed at Ottawa January 25, 1889.

    1. Limitation — assignee in bankruptcy—power of Congress to prescribe limitation. Congress had the undoubted power to enact section 5057 of the Revised Statutes of the United States, limiting the time of bringing suits in all courts, State as well as United States, between assignees in bankruptcy and claimants to adverse interests in property transferred to them.
    2. Same—as to grantee of assignee in bankruptcy. The grantee of an assignee in bankruptcy is barred by section 5057 of the Revised Statutes of the United States, whenever the assignee himself would have been barred. That section embraces every suit at law and in equity between an assignee in bankruptcy and a person claiming an adverse interest touching any property or rights of property transferred or vested in such assignee.
    3. Same—application to suits under the Burnt Records act. So where the grantee of an assignee in bankruptcy files his bill, under the Burnt Records act, to establish and confirm his title to a lot, in which he seeks to have certain tax deeds set aside as clouds upon liis title derived from the assignee, the two years’ limitation in section 5057 of the Revised Statutes of the United States will be a bar to the suit in so far as the bill seeks to have the tax title set aside.

      4. Where titles are to be settled under the Burnt Records act, this is but an additional mode of doing what could have been done in some other mode before the passage of that act. But restoring the evidences of title under that act is something that could not have been done without it, and it may be that where this alone is sought, the limitation of the Bankrupt act will have no application.
    5. Sake—allowing the plea of limitation in chancery—effect upon the rights of the. parties. On a bill by the grantee of an assignee in bankruptcy to set aside tax deeds as clouds on the title derived from the bankrupt’s estate, the allowance of the plea of limitations under section 5057 of the Revised Statutes of the United States, simply defeats the prayer of the bill. It confers no affirmative rights upon the defendant, but leaves the parties as they were before the bill- was filed.
    6. Former adjudication—prior judgment in Federal Court, under Limitation act. On a bill in the Circuit Court of the United States, by the purchaser of land of a bankrupt, to set aside certain tax deeds as clouds on the title, that court sustained a plea of the two years’ limitation of the United States statute, (sec. 5057.) Afterward the purchaser filed his bill in the State court, under the Burnt Records act, to restore the records which had been destroyed, and to confirm his title, alleging the existence of the tax deeds and asking to have them set aside: Held, in regard to the relief sought in respect of setting aside the tax deeds, that the decree of the Circuit Court of the United States was conclusive on the complainant.
    Appeal from the Circuit Court of Cook county; the Hon. Oliver H. Horton, Judge, presiding.
    Mr. Augustus N. Gage, for the appellant:
    The court properly sustained the plea. U. S. Rev. Stat. title 61, chap. 4, sec. 5057; Harvey v. Gage, 31 Fed. Rep. 275; Phelan v. O’Brien, 13 id. 656; Banks v. Ogden, 2 Wall. 67; Bailey v. Glover, 21 id. 342; Gifford v. Helms, 98 U. S. 248; Upton v. McLaughlin, 105 id. 640; Doe v. Hyde, 114 id. 248; Jenks v. International Bank, 106 id. 571.
    The court having sustained the plea, and the complainant having thereafter put the plea in issue upon the truth thereof, by replication thereto filed, the only issue is one of fact upon the allegations of the plea; and if the plea is proved, the bill must be dismissed. Story’s Eq. Pl. sec. 697; 1 Daniell’s Ch. Pl. and Pr. chap. 15, secs. 4, 5, pp. 695, 697, and cases cited; Mitford & Tyler’s Pl. and Pr. 390.
    This is elementary, and the- replication is an admission of the sufficiency of the facts pleaded as a bar to the suit. Fish v. Miller, 5 Paige, 26; Brownswood v. Edwards, 2 Ves. 247; Wood v. Strickland, 2 V. & B. 158; Hughes v. Blake, 6 Wheat. 453; Rhode Island v. Massachusetts, 14 Pet. 210.
    If the defendant proves the truth of the matter pleaded, the suit, so far as the plea extends, is barred, even though the plea is not good, either in point of form or of substance, and the bill must be dismissed. Story’s Eq. Pl. see. 697.
    Mr. Geobge A. DuPuy, for the appellee:
    There is a radical difference between a bill to remove- a cloud from the title to land, and a bill to restore lost records. In the latter, the petitioner need not set out the defendant’s claim of title, or allege any defect therein. The defendants must allege and sustain their own titles.
    The court is required to investigate and settle the interests and rights of all parties interested in the premises. Mulvey v. Gibbons, 87 Ill. 367; Robinson v. Ferguson, 78 id. 538; Smith v. Hutchinson, 108 id. 662; Smith v. Gage, 11 Biss. 217;
    There was error in holding the idea of the statute of limitations good. In re Conant, 5 Blatchf. 54; Stevens v. Hanser, 39 N. Y. 302.
   Mr. Justice Scholheld

delivered the opinion of the Court:

This was a petition in equity, under the “Burnt Records act,” (Rev. Stat. 1874, chap. 116,) by appellee, against appellant, in the circuit court of Cook county, to establish and confirm the title of appellee to a lot in the city of Chicago.

Appellant claims title under two tax deeds, one dated and recorded in 1877, and the other in 1880. Appellee is the grantee of an assignee in bankruptcy, who took title by deed of assignment in 1873, and conveyed to appellee July 6,1887. Before the conveyance by the assignee to appellee, the assignee filed a bill in chancery against appellant, in the Circuit Court of the United States for the Northern District of Illinois, to remove appellant’s tax deeds as clouds upon his title. Appellant pleaded as a defense to that bill, the limitation of section 5057 of the Bevised Statutes of the United States, and the court sustained the plea. (Harvey v. Gage, 31 Fed. Rep. 275.) Appellant interposed the same plea as a defense to the present bill. The court below held the plea a defense, and thereupon issue was joined on the plea. Evidence was introduced sustaining the plea. The court, ’ however, decreed granting the prayer of the bill.

The section of the Bevised Statutes of the United States pleaded, provides that “no suit, either at law or in equity, shall be maintainable in any court between an assignee in bankruptcy and a person claiming an adverse interest touching any property or rights of property transferable to or vested in such assignee, unless brought within two years from the time when the cause of action accrued for or against such assignee.” The grantee of the assignee is barred by this section whenever the assignee would be barred. Gifford v. Holmes, 98 U. S. (8 Otto,) 248; Howe v. South Park Commissioners, 119 Ill. 101.

If the bill by the assignee to remove the tax deeds as clouds were precisely the same as the present bill, the adjudication in that case would be conclusive in this. There may be very great difference between bills to restore burnt records, under the statute, in some cases, and an ordinary bill to remove a cloud from the title; while in other cases, (and such is the present case,) the only difference is, that the records are burned. It is here alleged “that Henry H. Gage and Augustus N. Gage claim, as your orator is informed and believes, an estate in fee, or some interest, in said lot, or some other part thereof; * * * and if it shall appear," on the hearing of this cause, that either or any of said parties above named claim any interest in or to said lot through or under any tax deed or tax deeds, your petitioner prays that such tax deed or tax deeds may, if found void, be removed, and set aside and cancelled, as clouds upon the title of your petitioner,” etc. And so, if the plea was properly sustained in Harvey v. Gage, supra, it should he sustained here.

It will be remembered that the section under consideration embraces every suit at law and in equity between an assignee in bankruptcy and a person claiming an adverse interest, touching any property or rights of property transferred to or vested in such assignee. In giving construction to its language, the Supreme Court of the United States, in Bailey v. Glover, 21 Wall. 342, held that it applies to all judicial contests.between the assignee and any person whose interest is adverse to him. And in the same court, in Jenkins v. International Bank, 106 U. S. 575, speaking of this section, it was said: “It was intended to say, that in any such ease, in any court where the suit touched the property or rights to property of the bankrupt passing to the assignee, it would be a good defense that. it was not brought within two years after the right of action accrued.”

A reference to the “Burnt Records act, ” supra, will show that the jurisdiction of courts of equity is enlarged to include suits brought pursuant to its provisions, and so this is a suit in equity. Thus, by section 15, jurisdiction of such suits is expressly given “to any and all courts in each county having chancery jurisdiction.” By the 16th section the petition is to be filed “in any court having chancery jurisdiction,” and the defendants are to be brought into court “in the same manner as is now or may hereafter be required in chancery proceedings by the laws of this State.” And section 27 provides, that “the rules and regulations governing courts of chancery in this State shall apply to the proceedings under this act, so far as they are not inconsistent therewith.”

This property was transferred to the assignee by the deed of assignment, and the quotation from the bill, supra, shows that appellant claims an adverse interest to the assignee and his grantee, touching it. It is, moreover, alleged in the plea, and was proved at the hearing, that the interest claimed by appellee in this property was transferred to the assignee in bankruptcy on the 8th of July, 1873 ; that the assignee conveyed it to appellee on the 6th of July, 1887, and that appellant claims under two tax deeds of the property, one dated February 10, 1877, and the other the 19th of April, 1880,— and so it would seem the case is within both the letter and the spirit of the limitation of the Bankrupt law.

The court below seems to have entertained the view, that because, in a proceeding under the “Burnt Records act,” the petitioner need not set out the defendant’s claim of title, but the defendant must allege and establish it, and the decree of the court is binding and conclusive as to the interests of all the parties, the limitation of the Bankrupt act can not be interposed as a defense,—in other words, when the petition is filed under the “Burnt Records act” the court is bound to go ahead and determine the rights of the parties under that act. We can not concur in this view. We perceive no reason why the same position thus contended for can not be maintained, with equal plausibility, in regard to an action of ejectment or a bill to set aside a fraudulent conveyance. In those eases, as well as in proceedings under the “Burnt Records act, ” it devolves upon the defendant to establish his claim, and if he does not do so, the judgment or decree becomes forever conclusive upon him. Where titles are to be settled under the “Burnt Records act,” it is manifest it is but an additional mode of doing what could have been done in some other mode before the passage of the act. Restoring, under that act, the evidences of title, is undoubtedly something that could not have been done without it, and, it may be, that where that alone is sought, the limitation of the Bankrupt act can have no application. But where titles are to be adjudicated,—the one defeated and the other established,—it can, on principle, make no difference whether it is in an action of ejectment, or on a bill to set aside conveyances fraudulent as against creditors, or in a proceeding under the “Burnt Records act, ” to set aside conveyances and establish title. Each, alike, is either a suit at law or in equity, “between an assignee in bankruptcy and a person claiming an adverse interest, touching property or rights of property transferred to and vested in such assignee.” And the Congress of the United States, having plenary power in regard to all matters of bankruptcy, when it chooses to exercise it, had the undoubted power to enact, as was enacted, limiting the time of bringing suits in all courts,—State as well as United States,—between assignees in bankruptcy and claimants to adverse interests in property transferred to them. The allowance of the plea simply defeats the prayer of the bill. It confers no affirmative rights upon the defendant, but leaves the parties as they were before the bill was filed.

The decree below is reversed, and the cause is remanded to the circuit court with directions to that court to find the issue "for the defendant, and thereupon to dismiss the petition.

Decree reversed.


text:
    John H. Gordon, Admr. v. Mary A. Adams et al.

      Filed at Ottawa January 25, 1889.

    1. Promissory note—delivery. It is not indispensable to the delivery of a promissory note that it shall pass into the personal possession of the payee. If delivery is made to another for the payee, without condition, his acceptance of it may be presumed, and the delivery will be complete.
    2. In determining the question of delivery in any case, the intention of the parties with respect thereof is the controlling element. This intention may be shown by direct proof, or by proof of the acts and declarations of the parties evincing such intent, or may be inferred from circumstances shown which are sufficient to create the presumption of delivery. Thus, if a deed or note is found in the possession of the grantee or payee, its delivery will be presumed.
    3. In this case, upon a review of the evidence, it was not considered sufficient to establish the fact of delivery of certain promissory notes which were shown to have been executed.
    Writ op Error to the Appellate Court for the Second District ;—heard in that court on writ of error to the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding.
    Messrs. Lanphere & Brown, for the plaintiff in error:
    When a note is shown to have been executed by a party, and is found out of his possession, every presumption of law is in favor of its delivery. 1 Parsons on Bills and Notes, 49; Sinclair v. Baggally, 4 M. & W. 312; Anderson v. Weston, 6 Bing. 296; Roberts v. Bethell, 12 C. B. 778.
    A note is presumed to have been delivered on the day of its date. 1 Parsons on Bills and Notes, 49.
    The holder of a promissory note is presumed to be the owner, and that he paid a valuable consideration for it. 1 Parsons on Bills and Notes, 51; Burnap v. Cook, 32 Ill. 168; Farwell v. Meyer, 35 id. 40.

      The maker of a note must pay it to the person in whose hands it is found, unless he can prove that the holder came by it unlawfully. 1 Parsons on Bills and Notes, 50; Griswold v. Davis, 30 Vt. 390.
    Delivery may be made to the payee or grantee, or to some one for him. Rivard v. Walker, 39 Ill. 413; Thompson v. Candor, 60 id. 244; Bodley v. Higgins, 73 id. 375.
    Acceptance is necessary to a delivery, but the court will presume an acceptance when it can see that it is for the benefit of the payee to accept. Taylor v. Davis, 11 Ill. 10; Reid v. Douthit, 62 id. 348; Rivard v. Walker, 39 id. 413 ; Masterson v. Cheek, 23 id. 72; Ferguson v. Miles, 3 Gilm. 358.
    Actual knowledge at the time, by the payee, of the delivery of a note to a party for him, is not necessary to the validity of the instrument or of its delivery. 1 Parsons on Bills and Notes, 154; Morse v. Clayton, 13 S. & M. 373; Many v. East India Co. 5 B. & A. 204.
    The delivery of a note to A for the benefit of B is not an agency, but a trust and confidence, and the trust can be enforced by B. 1 Parsons on Contracts, 347; Burrill on Assignments, 589; 2 Bouvier’s Law Dic. 407.
    The note payable to Marion is valid, notwithstanding his minority. 1 Parsons on Contracts, 310; Jancy v. Alden, 12 Mass. 375; Magee v. Magee, 65 Ill. 255; Holmes v. Holmes, 44 id. 168; Scott v. White, 71 id. 287.
    A valuable consideration for the relinquishment, by the parent, of. the services of the son, is not necessary. Holmes v. Holmes, 44 Ill. 168; Scott v. White, 71 id. 287; 1 Parsons on Contracts, 310.
    Messrs. McKenzie & Calkins, for the defendants in error:
    There never was a delivery of the notes to the payees, or to Mrs. Gordon for their benefit, and such delivery was necessary to their validity. A note is not executed until delivered. Hunt v. Weir, 29 Ill. 83; Hienterberger v. Weindler, 2 Bradw. 410.

      Delivery to the payee, either actual or constructive, is necessary. Bank v. Strang, 72 Ill. 559.
    The delivery must be the act of the maker. If the payee obtains possession by fraud, or without the consent of the maker, he can not recover. Carter v. McClintock, 29 Mo. 464.
    Leaving a check upon the desk of the clerk, without his knowledge, is not delivery to the clerk or his employer. Delivery is a thing in which both parties must join. The minds of both parties must concur. Kinne v. Ford, 52 Barb. 194.
    A executed a promissory note, payable to B or order, but did not deliver it.' Subsequently B took the note from the possession of A, against his previous direction, and without his knowledge, and put it into circulation: Held, that A was not liable thereon, even to a bona fide purchaser and holder. Burson v. Huntington, 21 Mich. 415; 4 Am. Rep. 497; Thomas v. Watkins, 16 Wis. 574.
   Mr. Justice Shore

delivered the opinion of the Court:

The only question of importance arising on this record is one of fact,—that is, were the promissory notes sought to be collected from the estate of James A. Bundy, deceased, or either of them, executed by the said Bundy and delivered to the payees thereof, respectively, or to any one for them, or for their use. Upon careful consideration of all the evidence, we are inclined to hold that a preponderance thereof shows that they were severally executed by the said Bundy. The signature to each of the notes is testified by a number of witnesses, seemingly possessed of the requisite means of knowledge, to be in his handwriting; and while there is some conflict upon this point, when this evidence is considered in connection with the circumstances shown to have existed about the time the notes purport to have been made, and the declarations of said Bundy that he made notes to his sons, it leaves little or no doubt of their execution by him.

No discussion will be necessary of the points made, that the notes are without consideration, and that one of them had been altered materially after its execution, for, if it becomes necessary, it will be found that there was a sufficient consideration for each of said notes, and the alteration complained of, being the writing of the word “five” over the word “ten, ” so that the note would read for $5000 instead of $10,.000, is sufficiently explained upon the face of the instrument itself, the original of which is properly certified to this court in the record.

The question presenting most difficulty is in respect of the delivery of the notes. It is conceded, as it must be, that neither of the two notes was delivered to the payees thereof personally, or that either thereof was, at any time, in their individual possession or control. It is not, however, indispensable to the delivery of a promissory note, that it should pass into the. personal possession of the payee. If delivery is made to another, for the payee, without condition, his acceptance of it may be presumed, and the delivery of it will be complete. (Thompson v. Candor, 60 Ill. 244; Bodley v. Higgins, 73 id. 375.) In determining the question of delivery, the intention of the parties with respect thereof is the controlling element. This intention may be shown by direct proof, or by proof of the acts and declarations of the parties evincing such intent, or may be inferred from circumstances shown which are sufficient to create the presumption of delivery. Thus, if a deed or*note is found in the possession of the grantee or payee, its delivery will be presumed. (Parsons on Bills and Notes, 49; Masterson v. Cheek, 23 Ill. 76; Walker v. Walker, 42 id. 311.) It is not here shown that either of these notes was ever in the possession of the payees, or either of them, or that they were ever delivered to any one for their use. It does appear, however, that in the summer of 1873, substantially five years after the maturity of the notes, they -were found among the papers of Mrs. Gordon, a deceased daughter of the maker, and sister of the payees. There is no legitimate evidence showing, or tending to show, how or when the notes came into possession of Mrs. Gordon, or for what purpose they were in her keeping. It is not shown that the payees ever lived with her, or at her house; nor, indeed, is there any circumstance or fact shown from which an inference could arise that she received the notes from the payees.

'The circumstances out of which it is claimed this indebtedness arose, and from which the inference of the delivery of these notes is mainly sought to be drawn, may be briefly stated. In 1853 James A. Bundy owned about eight hundred acres of land in Knox county, and his two sons, Milton and Marion, resided with him, the latter being under age. The record contains evidence tending to -show that the father promised the sons, if they would go on and work faithfully in improving his land, he would give to each a quarter-section thereof; that the sons continued to work for their father until 1857, when the father sold all the lands, applying the proceeds to his own use; that much trouble and dissatisfaction were thereby produced in the family,—the mother taking the part of the sons; that, the father tried to get the land back, but failing in this, it is-shown that he consulted with the witness Reynolds about giving the boys his obligation, payable in ten years. The witness testifies: “He said, if he could not get the farm back, he was ■ going to provide some other way by which they would get their ■ pay; but if he had to do that, he would do it in his own time- and way. After he found he could not get the farm back, he-asked me what way he had better fix it for the boys. He said he was going to fix it in some shape right away, and asked me what I thought about making an obligation to the boys, payable ten years after date.” The witness gave his opinion; when the father, speaking of not getting the farm back, said: “I will do the next best thing,—make out notes for the boys.” The witness further says: “Afterwards he told me he had made the notes as he told me;” and farther, “he always said he would put the notes in Rebecca’s hands, (his then wife,) and the boys couldn’t have them for ten years.” This witness also testifies, that the father said the boys had become reckless, and were trying to force him into measures, but he would show them that he would pay them in his own time and way; that he would not do anything until they became “settled down;” that he thought in ten years they would know something of the value of money.

The evidence tends to show that the sons were wild and dissipated. It is apparent, from the testimony, that the domestic trouble occasioned by the sale of the land ceased about the time of the date of these notes, and from that fact it is argued that the notes must have been delivered. The notes were dated August 22, 1858, for $5000 each, one payable to Milton and the other to Marion, ten years after date, without interest. It is shown that Mrs. Bundy, the mother, died in 1869, Marion in 1873, the father in 1875, and Milton in 1878. It is not shown when Mrs. Gordon died, but, as before stated, the notes were found in 1873, after her death, among her papers,— substantially five years after their maturity, and at least in the lifetime of the maker, and of Milton, the payee of one of the notes. It is shown that James A. Bundy had a farm in Missouri, where, for at least a portion of the time, one or the other of the sons lived. It is clear, that at least up to 1870 the sons drew considerable amounts from the father, in money or property, and the communication between them was appar-' ently continuous and- uninterrupted. It appears, that upon the marriage of the father, in 1870, with the defendant, now Mary A. West, ill-feeling and bitterness arose between the father and sons. In 1874, Milton brought suit against his father, and when asked by the father why he did it, and if he owed him anything, replied: “You don’t owe me anything, but I am going to torment you as long as you live for marrying that woman. You made a will once, giving your property to your children, and now you have changed it, and given it all to your wife.” In 1870, two years after these notes became due, Marion told the witness Sanders he had nothing, but was to have the Missouri farm; and like conversations are, in substance, testified to by other witnesses.

Conceding that the notes were executed, as the maker is shown to have stated to Reynolds, it is apparent, from the declarations made to the same witness, that the father did not intend that his sons should have the control or power to dispose of said notes, for ten years, or until they had “settled down.” There is no evidence to show that the notes were ever placed in the hands of his wife, Rebecca, and no inference to that effect can be drawn from the possession of Mrs. Gordon. It seems impossible, in view of the relations existing in the family, that if the notes had been in her possession, she would not, at least after their maturity, have delivered them to her sons, especially as the necessities of the sons were great, and they were, to a considerable extent, compelled to live on the bounty of their father. It is quite as probable that they were placed in Mrs. Gordon’s hands by the father for purposes of his own, as that she obtained them from any other source. This would be entirely consistent with his statement that he intended to provide for the boys, but he would pay them in his own time and way. If it could be presumed that the notes were placed in the hands of Mrs. Gordon, or her mother, or other person, in escrow, there is no evidence showing the. condition upon which they were to be delivered, or of performance of the- condition, whatever it might be.

It is apparent that all’ these persons were living when the notes matured, including the mother of these boys; yet it is not shown or pretended that any claim was made by either of the sons, or by the mother, that there was any liability of the father to the sons on account thereof, or that, during the lifetime of any of these parties, it was claimed that such notes ever were made, or were in existence. Nor is it shown that the sons, or either of them, ever had any knowledge that the notes were made. Indeed, the contrary is quite apparent. It is improbable that the sons would have taken no steps to obtain possession of the notes,—at least after their maturity,— and enforce the liability of their father thereon, if they had known of their existence. And especially is this so after the alienation growing out of the second marriage of their father, and in view of their own financial necessities, as disclosed in this record. It seems probable that the family troubles were settled by some arrangement, by which the father was to provide for the sons, and it may be that these notes were executed for that purpose. But it is evident that the father did not intend to lose control over the obligations he executed. By a delivery of the notes, the sons would have had absolute power to dispose of them. The fact that payment could not be enforced before their maturity would afford no protection against their transfer, and the squandering of the proceeds, which it is clearly apparent their father feared, and intended to avoid. Just what the father did to satisfy his wife and sons is not certainly shown, and it is quite as probable that the will spoken of by Milton may have healed the family dissension, as that peace was restored by the execution and delivery of these notes.

The execution and delivery of the notes is denied by sworn answer, and we are unable to say, from this record, that they are valid evidences of indebtedness. The burden being upon the complainant to establish the liability of the estate, it follows, that in our opinion, the decree of the circuit court dismissing the original bill was properly rendered.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.

Mr. Justice Baker, having participated in the decision of this case in the Appellate Court, took no part in its 'consideration here.