author: Mr. Justice Mulkey Mr. Justice Craig,

text:
    The Insurance Company of North America v. Helen N. Garland.

      Filed at Ottawa June 16, 1883.

    1. Insurance—waiver of condition upon notice of breach in condition. A policy of insurance upon a dwelling house against loss by fire contained a condition that “if the assured shall allow the building herein insured to become vacant or unoccupied, and so remain, * * * unless the consent of this company be indorsed hereon, this policy shall become void. ” The assured transferred the property' and left th e premises unoccupied. On application of the assignee the company indorsed its consent to the transfer of the policy, “subject, nevertheless, to all the terms and conditions” therein mentioned. It was shown that before such indorsement was made the agent of the company had notice that the building was then vacant and unoccupied, but there was no proof of an express consent that the house might remain unoccupied. It did so remain- about twenty months, when it was destroyed by fire: Held, that the company w'as not liable on the policy' for the loss.
    2. Same—effect of breach of condition by allowing the property to become unocmpied. A policy' of insurance having such a condition does not become absolutely void by reason of the premises becoming vacant or unoccupied. Nor is the insurance company', in case of the breach of such a condition, bound, at its peril, upon notice of such breach, to declare the policy forfeited for that reason, even if it had such power. But if it does not exercise this power while the assured is in default, and the premises are again occupied, its right to do so ceases, and its liability on the policy again attaches.
    3. 'Same—effect of consent to transfer of policy. The effect of aeon-sent to a transfer of a policy of insurance by the company, subject “to all the terms and conditions therein mentioned, ” is nothing more than to place the assignee in the same position with respect to all rights and liabilities under it that the assured occupied before the transfer. It amounts only to a substitution of the assignee as a party to the policy for the assured. In other words, it is the same as a re-issue of the policy to another party upon precisely the same terms and conditions as in the original.
    4. Same—condition in policy construed. Under a condition in a policy of insurance that “if the assured shall allow the building” insured “to become vacant and unoccupied, and so remain,” etc., the policy shall become void, it is not sufficient, to avoid the policy, that the assured shall allow the premises to become vacant or unoccupied, but he must allow them to “remain so. ” Under-such a provision,' if the premises are suddenly vacated the assured is bound to procure, without unreasonable delay, another tenant or occupant. If he does not, the company would have the right to declare the policy forfeited altogether, but it is not bound to do so in order to avail itself of such condition.
    5. Same—construction of words in notice. "Where an agent of a purchaser of insured premises applied to the agent of the insurance company to procure its consent to a transfer of the policy, and informed the latter that the premises were vacant, and such agent of the company informed him that he would have to produce the policy, and at the time of the transfer told him that “if the house was vacant he had better attend to that part of the business, because it would not amount to anything if the house was destroyed:” Held, that the expression, “that part of the business,” had no reference to the transfer of the policy, but to the vacancy of the premises.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.
    Messrs. Miller, Lewis & Bergen, for the appellant:
    Before a company can be said to have waived a condition in its policy by recognizing its obligation after the condition has been violated, it must appear that this recognition was made upon full knowledge of the fact that the condition has been violated. Allen, Safford & Co. v. Vermont Mutual Fire Ins. Co. 12 Vt. 336; Wood on Insurance, sec. 496; Finley v.

      Lycoming Ins. Co. 30 Pa. St. 313; Mershon v. National Ins. Co. 34 Iowa, 87; Phoenix Ins. Co. v. Stevenson, 78 Ky. 156.
    A waiver can not be implied unless the language or act of the insurer is such as fairly leaves the assured to understand that nothing further is required to be done by him. Wood on Insurance, sec. 496, p. 834.
    Where the assignee of a policy, who had purchased the property insured, called upon the agent and informed him of that fact, and the agent told him to bring the policy and he would indorse consent to the transfer thereon, which the plaintiff failed to do, it was held. that there was no waiver, because what the agent said was merely confirmatory of the condition, and required the assignee to do precisely what the policy required. Equitable Ins. Co. v. Cooper, 60 Ill. 507.
    Mr. J. Blackburn Jones, for the appellee:
    Although the condition, by its terms, provides that the .policy shall be “void” on a breach thereof, its legal effect is simply to render it voidable at the election of the insurers. If they do not elect to avoid it, neither the insured nor third parties could treat it as void, and the insurers could waive the forfeiture and continue the policy in force. New England Fire and Marine Ins. Co. v. Schettler, 38 Ill. 166; David v. Hartford Ins. Co. 13 Iowa, 69; Keenan v. Missouri State Mutual Ins. Co. 12 id. 126; Bigler v. New York Central Ins. Co. 22 N. Y. 402; Atlantic Ins. Co. v. Goodall, 35 N. H. 328; Carpenter v. Prov. Wash. Ins. Co. 16 Pet. 509; Coursen v. Pennsylvania Ins. Co. 46 Pa. St. 323; Frost v. Saratoga Ins. Co. 5 Denio, 154; Clark v. Jones, 1 id. 516; Cartwrights. Gardener, 5 Cush. 281; Warner v. Peoria Ins. Co. 14 Wis. 323; Miners. Phoenix Ins. Co. 27 id. 699; Commercial Ins. Co. v. Spankneble, 52 Ill. 53; Viele v. Germania Ins. Co. 26 Iowa, 53; Insurance Co. s. Stockbower, 26 Pa. St. 199.
    Waiver of a condition need not. be in writing. Viele s. Germania Ins. Co. 26 Iowa, 53; 1 Greenleaf on Evidence, secs. 302-304; 2 Phillips on Evidence, (Cowan, Hill & Edward’s notes,) 692, note, 505; Fleming v. Gilbert, 3 Johns. 528; Merrill v. Ithaca and Oswego R. R. Co. 16 Wend. 586.
    Any course of dealing whereby the assured was led to believe that the "condition was dispensed with or forfeiture waived, will be sufficient to preclude the setting up of the breaches of the condition as a defence. Viele v. Germania Ins. Co. 26 Iowa, 53; North Berwick Co. v. Insurance Co. 52 Maine, 336; Franklin v. Atlantic Fire Ins. Co. 42 id. 456; Columbia Ins. Co. v. Cooper, 50 Pa. St. 331; Lycoming Ins. Co. v. Stockbower, 26 id. 199; Wing v. Harvey, 27 Eng. L. & Eq. 140; Frost v. Saratoga Mutual Ins. Co. 5 Denio, 154; Ames v. New York Union Ins. Co. 26 N. Y. 263; Liddle v. Market Fire Ins. Co. 28 id. 184; New York Ins. Co. v. National Protection Ins. Co. 20 Barb. 468; Bochen v. Williamsburg Ins. Co. 35 N. Y. 131; Goit v. National Protection Ins. Co. 25 Barb. 189; Commercial Ins. Co. v. Spankneble, 52 Ill. 53.

       Per Curiam:—A rehearing having been granted in this case we have again carefully examined it, and find no reason to change the conclusion reached on the former hearing. The opinion heretofore filed in the cause is approved and re-adopted as expressive of our views on the subject.—Filed at Ottawa January 23, 1884.

   Mr. Justice Mulkey

delivered the opinion of the Court:

This is an appeal from a judgment of the Appellate Court affirming a decree of the circuit court of Cook county, in favor of Helen L. Garland, the appellee, and against the Insurance Company of North America, the appellant, for the sum of $3000, the amount of a loss by fire, under a policy of insurance issued by the company to Mariq G. McConnell on her dwelling house, on the 23d day of November, 1876, and by her assigned, with the consent of the company, to appellee, less the sum of $1746, the amount of a certain mortgage upon the insured premises, then held by the company.

After the issuing of the policy, and but a few days before the 23d of January, 1878, Mrs. McConnell, the assured, sold and conveyed the premises to Mrs. Garland, the appellee, and thereupon moved out, leaving them vacant and unoeeupied, in which condition they so remained until the time of their destruction by fire, on the 25th of September, 1879, being a period of some twenty months. The policy, among others, contained this provision: “And if the assured shall allow the building herein insured to become vacant or unoccupied, and so remain, * * * unless the consent of this company be indorsed hereon, this policy shall become void.” On the 23d of January, 1878, and but a short time after the sale and transfer of the property to appellee, her husband, John C. Garland, called at the company’s office for the purpose of obtaining the company’s assent to the transfer of the policy, which, after some little delay, by reason of the policy not being present, was indorsed thereon in these words:

“The‘property hereby insured having been purchased by Helen L. Garland, the Insurance Company of North America consents that the interest of Maria G. McConnell in the within policy may be assigned to said purchaser, subject, nevertheless, to all the terms and conditions therein mentioned and referred to.
0. H< Cas^ Ageni„

Garland’s account of. what occurred at the company’s office is as follows: “After the purchase of this property from McConnell, and after the McConnells had moved out of the house, I called at the office of Mr. Case, agent of this company, whose name is'signed to the policy, at No. 120 La Salle street, to have the insurance transferred from Mrs. McConnell to Mrs. Garland, and the clerk at the desk said that I would be obliged to bring the policy before the insurance could be transferred on their books. I remarked to the clerk that it was late in the afternoon, and I had just got knowledge that the house was vacant, and desired to have the transfer made. The clerk remarked that they could put it on their book,— put the transfer on their books,—but it would not be legal without I had the policy with Mrs. McConnell’s signature attached, and if the house was vacant I had better attend to that part of the business, because it would not amount to anything if the house was destroyed,—they would not be liable for any loss. I then went out to find McConnell, and found him. Got his wife’s signature to the assignment on the back of the policy. It was signed by Mr. McConnell, who said he was his wife’s agent. I then took the policy back to Mr. Case’s office, and they wrote on it their transfer. The policy was then taken back in where Mr. Case was sitting, and signed by him, and brought and handed to me. ” In answer to the question, “Now state again precisely what you said, if anything, with reference to the property being vacant?” he further said: “I told this clerk that I wanted the transfer put on the books that day, because the property was vacant, and it had just come to my knowledge that the McConnells had moved out of it and moved into the city. ”

Upon this state of facts it is claimed by appellee that the company having assented to the transfer of the policy in the manner stated, with notice that the insured premises were at the time of such transfer vacant and unoccupied, was in law a waiver of the condition which declares the policy void upon the happening of such contingency,—and so the Appellate Court held. We do not think the evidence, or a proper construction of that clause of the policy, warrants the conclusion reached. We see nothing in Garland’s statement of what occurred at the company’s office that would justify the inference that the company intended a waiver of that condition in the policy. There was certainly nothing said by any one present to warrant that conclusion,—so that if the position can be maintained at all, it must be solely on the ground that the consent of the company, having notice of the fact the property was at the time unoccupied, is of itself, in law, a waiver of the condition. We are aware of no authority sustaining this view, and certainly none has been cited going that length. We do not understand that a policy having a condition in it like the one under consideration becomes absolutely void by reason of the premises becoming vacant or unoccupied. Nor do we understand that in ease of a breach of the condition of the policy in this respect the company is bound, at its peril, upon notice of such breach, to declare the policy forfeited for that reason, even conceding it has the power to do so, of which it is unnecessary now to express any opinion. And it is well settled if the company should not exercise this power while the assured is in default, and the premises should again become occupied, its right to do so would cease, and its liability on the policy would again attach. Schmidt v. Peoria Marine and Fire Ins. Co. 41 Ill. 295; Insurance Company of North America v. McDowell, 50 id. 120; Westchester Fire Ins. Co. v. Foster, 90 id. 121.

Now, the object of the company in assenting to the transfer ' of the interest of the assured in the policy to the purchaser was clearly nothing more than to place the latter in the same position, with, respect to all rights and liabilities under it, that the assured herself occupied before such transfer. Suppose Mrs. McConnell had simply vacated the property without selling it or assigning the policy, and it had remained vacant until the loss by fire in the same way it did, and this action had been brought by her instead of Mrs. Garland, and the company had invoked the breach of this condition in the policy as a defence, would it have been any answer to have replied the company knew the premises were vacant and unoccupied, and had declared no forfeiture of the policy? Surely not. And yet, on principle, we can see no difference in this case and the one supposed, if, as we have already seen, the transfer of the policy with the company’s consent is a mere substitution of appellee as a party to the policy for Mrs. McConnell. Upon such change of parties, her relation to the policy, the company, and the subject matter of the contract, became precisely the same as that of Mrs. McConnell before the substitution. It was, in effect, re-issuing the policy to another party upon the same terms and conditions it had been issued before. Suppose this had been an original policy, issued to appellee in the first instance, under the same circumstances, how would thi’ case stand ? To say the delivery of. the policy under such circumstances would be a waiver of the condition altogether, would be to not only disregard the manifest intention of the contracting parties, but would be clearly doing violence to an express provision of the contract itself. We have no doubt in such case the condition would remain in full force to the same extent as other provisions in the contract, and that in order to secure the benefits of the policy the assured would be bound to see the premises did not “remain” vacant or unoccupied. In such a case we have no doubt the company would have a clear right to insist on the performance of the condition, and until that was done its liability under the policy would not attach. On the other hand, whenever the terms of the policy in this respect were complied with, the company’s liability would at once begin.

The case in hand does not, in our opinion, differ in principle from the one supposed. The precise language of the policy affecting this question should be particularly noted. The condition is not that the policy shall become null and void if the assured shall allow the building to become vacant or unoccupied. That is not sufficient. By the very terms of the policy the assured must go a step further. She must not only allow the building to become vacant or unoccupied, but, in the language of the- policy, she must also allow it to “remain so.” It is clear that under a provision of this kind, if the premises were to be suddenly vacated the assured would be bound to-procure without delay another tenant or occupant, for until that was done his or her rights under the policy would be suspended, though the policy for that reason would not become void. On the contrary, as soon as the premises were re-occupied the company’s liability would again attach. It may be, for any unreasonable delay by the assured in re-occupying the property the company would have the right to declare the policy forfeited altogether, but it is not bound to do so in order to avail itself of this condition. In the present ease there was a wanton disregard of the condition in question altogether, and we think justice to the company demands that its rights under the policy should not be sacrificed by a láx or latitudinous construction, which would do violence to the very terms of the company’s consent to the transfer. By those terms it agreed that Mrs. McConnell’s interest in the policy might be .assigned to appellee, “subject, nevertheless, to all the terms and conditions therein mentioned and referred to.” And yet we are asked to hold, in the face of this express stipulation to the contrary, that the company thereby waived this condition in the policy. We can not give our assent to any such construction.

So far as this case may be supposed to depend upon whether the company had notice of the fact the premises were vacant and unoccupied at the time of the transfer, the evidence is by no means satisfactory or conclusive, yet in the view we take of the question it is not important to discuss the evidence relating to it. Conceding it to be sufficiently established, it distinctly appears, as we understand the testimony, the company, at the very time of receiving such notice, informed the appellee’s husband, who was then acting as her agent, that the company would not be liable for any loss so long as the premises remained vacant and unoccupied. Garland himself swears he was informed, at the time of the transfer, that if the house was vacant he “had better attend to that part of the business, because it would not amount to anything if the house was destroyed,—they would not be liable for any loss. ”

It is claimed, however,< the expression, “that part of the business, ” has reference to the transfer of the policy. But that would certainly, in the connection in which it occurs, be a very forced construction. We think the plain common sense of the thing requires this expression to be referred to the vacancy of the premises, and not the assignment of the policy. There was no occasion to admonish Garland to quicken his steps in getting the policy assigned. He was already there, in the company’s office, for that purpose, and doing all that one reasonably could do to accomplish that object. But not so with respect to the property being occupied. That was liable to be overlooked, and some time would necessarily be required in procuring an occupant, hence the admonition.

The judgment of the Appellate Court is reversed, and the cause remanded, with directions to reverse the decree of the circuit court, and remand the cause to that court for further proceedings in conformity with the views here expressed.

Judgment reversed.

Mr. Justice Craig,

dissenting:

I do not concur with a majority of the court in the decision of this case, and I have concluded to give my reasons for dissenting.

On the 23d day of November, 1876, the Insurance Company of 'North America issued to Maria G. McConnell a policy of insurance on her dwelling house in Winnetka, for §3000, to be in force from its date until February 18, 18S0. On the 25th day of September,<1879, the building was burned. The only question involved in this record is, whether the policy was in force at the time the building was destroyed.

The policy contained a provision that if the property was sold to a third party the policy might be assigned to the purchaser, with the written consent of the company. The property was sold to Helen L. Garland, and the company, by C. H. Case, its agent, on the 23d day of January, 1S78, agreed to the assignment, in writing, which was indorsed on the policy, as follows: “The property hereby insured having been purchased by Helen L. Garland, the Insurance Company of North America consents that the interest of Maria G. McConnell in the within policy may be assigned to said purchaser, subject, nevertheless, to all the terms and conditions therein mentioned and referred to.”

The policy contained this provision: “If, during the continuance of this insurance, the risk shall be increased, by any means whatever, with the knowledge of the assured, and the assured shall neglect to notify the company thereof, * * *' and if the assured shall allow the building herein insured to become vacant or unoccupied, and so remain, * * * in each and every such case, unless the consent of this company be indorsed hereon, this policy shall be null and void. ”

It appears, from the evidence, that a short time before the assignment of the policy, the McConnells, who had been occupying the property, moved out and left the house vacant, and it remained vacant until it was destroyed by fire. On behalf of the company it is claimed, that as the property became vacant and unoccupied, and so remained until it was destroyed, it is not liable for the loss; while on the other hand it is claimed, that the company was notified on the 23d day of January, 1878, (before the policy was assigned,) that the property was vacant, and that after receiving such notice the company assented to the assignment of the policy, and that such assent was in effect a re-insurance of the house as vacant property, and hence the policy was in force at the time the property was destroyed.

Whether the company had notice of the fact that the house was vacant when it assented to the assignment of the policy, is a question of fact upon which the evidence is not entirely harmonious. Upon this point John G. Garland in substance testified: “I know that the Insurance Company of North America, complainant in this case, had notice that the house was vacant before it burned. After the purchase of this property from McConnell, and after the McConnells had moved out of the house, I called at the office of Mr. Case, agent of this company, whose name is signed to the policy, at No. 120 LaSalle street, to have the insurance transferred from Mrs. McConnell to Mrs. Garland, and the clerk at the desk said that I would he obliged to bring the policy before the insurance could be transferred on their books. I remarked to the clerk that it was late in the afternoon, and I had just got knowledge that the house was vacant, and desired to have the transfer made. The clerk remarked that they could put it on their book,—put the transfer on their books,—but it would not be legal without I had the policy with Mrs. McConnell’s signature attached, and if the house wras vacant I had better attend to that part of the business, because it would not amount to anything if the house was destroyed,—they would not be liable' for any loss. I then went out to find McConnell, and found him. Got his wife’s signature to the assignment on the back of the policy. It was signed by Mr.McConnell, who said he was his wife’s agent. I then took the policy back to’ Mr. Case’s office, and they wrote on it their transfer. Thé policy was then taken back in where Mr. Case was sitting, and signed by him, and brought and handed to me.” In answer to a further question he said, before the indorsement was made by Mr. Case he told the clerk that he wanted the transfer put on the books that day because the property was vacant, and it had just come to his knowledge that the McConnells had moved out of it and moved into the city. At the time of this occurrence three men were at work in the office of the company,—Case, the agent, Graves, a book-keeper, and Robinson, a clerk in the office; but these men have no recollection whatever of the transaction. Case says he had no notice that the building was vacant. Graves does not remember that Garland ever called at the office. Robinson wrote the indorsement on the policy, which was signed by Case, and he says nothing was said at the time about the building being vacant", that he remembers. But this negative evidence can not overcome the clear and coneise statement of the witness Garland, who seems to be positive in regard to what was said and done, and if his evidence is true, (and so far as appears from anything in the record there is nothing to overcome or impeach it,) the company, at the time it assented to the assignment of the policy, had notice that the building was vacant.

If, then, the company had notice that the building was vacant at the time it consented to the assignment of the policy, what construction is to be placed upon the contract of insurance after the assignment, existing between the company and the assignee, Helen L. Garland?

In Fogg v. Middlesex Mutual Fire Ins. Co. 10 Cush. 337, 'the effect of an assent to an assignment by an insurance company is stated by the court in the following language: “As a policy of insurance is not a negotiable instrument, it can not be legally transferred so as to enable the assignee to maintain a suit in his own name without the assent of the other party. But in general, at the common law, where one party assigns all his right and interest in the contract, and the assignee gives notice to the other party to the contract, and he agrees to it, this constitutes a new contract between one of the original parties and the assignee of the other, the terms of which are regulated and fixed by those of the original contract.”

In Wilson v. Hill, 3 Met. 66, a like question arose, and the court said: “If the assured has wholly parted with his interest before they (the buildings insured) are burnt, and they are afterwards burnt, the underwriter incurs no obligation to pay anybody. The contract ivas to indemnify the assured, and if he has sustained no damage the contract is not broken. If, indeed, on a transfer of the estate, the vendor assigns his policy to the purchaser, and this is made known to the insurer, and is assented to by him, it constitutes a new and original promise to the assignee to indemnify him in like manner whilst he retains an interest in the estate; and the exemption of the insurer from further liability to the vendor, and the premium paid for insurance for a term not yet expired, are a good consideration for such promise, and constitute a new and valid contract between the insurer and the assignee.”

If the docti’ine of these cases is sound, which I believe it to be, the written assent of the insurance company to the assignment of the policy created a new contract of insurance between the company and the assignee of the policy,—Helen L. Garland. In legal effect the contract of insurance w7as the same as if Mrs. Garland had surrendered the old policy, and the company had issued to her, and in her name, a new one for the unexpired term the old policy had to run.

If I am correct in this view, the only remaining question to be determined is, whether an insurance company which issues a policy on vacant property, knowing the fact that the property is vacant, can, in case of loss, defeat a recovery on the policy on the ground that the policy contains a provision that it shall be void in ease the property becomes vacant during the term for which the property is. insured.

A similar question arose on a policy of insurance in Commercial Ins. Co. v. Spankneble, 52 Ill. 60, and in that case it is said: “As to the objection that the premises were unoccupied when the fire occurred, it is a sufficient'answer to say that the brewery was in the same condition when the fire occurred that it was when the policy w'as issued, and the agent of the company was informed of its condition when he issued the policy. The company took the premium knowing the condition of the premises, and their condition being the same when destroyed by the fire, they should not be permitted to escape liability on that ground. The premises were no more vacant or unoccupied at the time of the fire than when the insurance was effected.” See, also, Williamsburg City Fire Ins. Co. v. Cary, 83 Ill. 454, where a similar doctrine is announced.

In Georgia Home Ins. Co. v. Kinnet, Admx. 28 Gratt. 88; the policy upon which the action was brought contained a clause that it should be vitiated if the premises became vacant, and the court, in deciding the question, held: “If, at the time the agent of the company received the premium of insurance and delivered the policy, he had knowledge of the vacation of the property, and did not then avoid the policy, but treated it as valid and subsisting, such conduct of the agent was a waiver of the condition, and a breach of it could not be relied on by the defendant to defeat the plaintiff’s recovery.”

In Williams v. Niagara Fire Ins. Co. 50 Iowa, 561, the policy contained a similar .condition, and it is there said: “The company, with full knowledge that the house was unoccupied, and would be for a time, issues the policy and receives the premium, and then, after a loss occurs, insists that it is not bound, and the policy never had a legal existence, because said house was vacant. Having issued the policy, taken the premium, and thereby induced the plaintiff to believe she was insured, the defendant is estopped from alleging or proving the policy never had a legal existence. By issuing the policy the defendant waived the conditions as to the occupation of the building.”

In Aurora Fire Ins. Co. v. Kranich, 36 Mich. 289, it was held that a condition similar to the one under consideration had no application to a case where buildings insured were vacant at the time the policy issued.

The Supreme Court of Maine, in North Berwick County v. New England Fire and Marine Ins. Co. 52 Maine, 336, hold that a renewal of a policy, with knowledge of the existence of facts which would authorize the insurer to declare a forfeiture, would be regarded a waiver.

But it is unnecessary to multiply authorities on the question, as wre regard it well settled by authority that the insurer can not invoke the aid of a proviso like the one in que'stion to defeat a recovery, where the policy was issued with knowledge at the time that the property was vacant. When the insurance company was notified by Garland that the house was vacant, if it did not desire or intend to be bound as an insurer of vacant property it had the right, and good faith required, that it should refuse to consent to the assignment, and thus the contract of insurance might have terminated; but it did not pursue this course, but chose to consent to the assignment of the policy, and thus entered into a new contract of insurance with the assignee. Having done this with knowledge that the property was vacant, justice and fail-dealing will not now permit the company to escape' liability by claiming that the contract made by it was, at the time, worthless and void.

It is claimed by appellant that appellee did not, in her answer or cross-bill, rely upon the point that the assent of the company to the assignment of the policy ivas a waiver of the condition against vacancy, and hence “the case made by the decree is not the case made by the answrer and cross-bill.” It is set up, both in the answer and the cross-bill, that the building was vacant, and that the company had full knowledge that it was vacant, and this is relied upon as a waiver by the company of the right to insist upon the proviso named in the policy. It may be, and perhaps is, true, that the ground upon which appellee relied to recover on the policy might have been more accurately stated; still, it was substantially stated, both in the answer to the bill and also in the cross-bill, and that was all that could be required.

In conclusion, after a careful consideration of the case I am well satisfied that the judgment of the Appellate Court was correct, and in my j udgment it ought to be affirmed.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    Martha A. Walker v. John W. Doane.

      Filed at Ottawa, November 20, 1883.

    1. Set-off—in equity—rents and profits against dower—insolvency. Dower was allowed a widow in the homestead premises at $350 a year, payable quarterly, on her petition for dower in these and other lands, the decree not preserving her homestead estate. The homestead property was, under a decree of court, sold and conveyed by the administrator of the estate of her deceased husband to a purchaser, subject only to such lien thereon for dower, and the widow refused the possession of the homestead to the purchaser, its rental value being at least double the yearly dower assessed to her, which rents she received, but suffered the taxes to accumulate on the property, and it to go to sale. The widow was insolvent: Held, on bill by the purchaser at the administrator’s sale for possession and for an equitable set-off, that a decree charging the widow with the value of the use of the premises from the date of the administrator’s deed until surrendered to the purchaser, and for taxes paid out by the purchaser, except those which were a lien on the land at the administrator’s sale, and providing that if not paid within a certain time the value of the use of the premises and the taxes paid should be set off against the dower due the widow on the same premises, discharging them from the lien for its payment as far as the amount found against the widow might go, was equitable and proper.
    2S Same—equitable. Where there is anything peculiar in a case, so as to render it impossible for exact justice to be done by a court of law under the statute, a court of chancery will afford relief through the medium of an equitable set-off. The insolvency of the defendant holding an incumbrance for a yearly allowance in lieu of dower on property bought by the complainant, who is wrongfully kept out of possession by the defendant, affords jurisdiction to a court of equity to apply complainant’s damages in discharge of the incumbrance pro tanto.

    3. Dower—power of court to decide widow’s right to occupy homestead until dower is assigned in all the lands.. Where a widow files her bill or petition for the assignment of her dower in all the lands left by her husband, the court is thereby invested with jurisdiction to pass upon whatever rights she may have in the homestead property, including the right to occupy it until her dower is assigned in all the lands.

      4. Same—effect of decree on toidow’s future right to occupy the homestead. A decree on the bill of a widow giving her dower in the home place and in some other tracts, without providing for her future occupancy of the home property until dower is assigned in all the lands of which her husband died seized, is conclusive against her, and she can not be heard to insist upon any rights with respect to the property not secured by the decree itself.
    5. Same—severance by reversal of decree as io pari of lands. Where a decree entered in a cause giving a widow dower in each of several tracts of land is, on appeal, reversed as to one tract and affirmed as to the other lands, this will amount to such a severance that the part of the decree which is affirmed, and the dower allotted thereby, will no longer depend upon or be affected by the decree to be rendered as to the other tracts.
    6. Evidence—records of court—parly not bound to introduce anymore than relates to the issue. A party, for the purpose of proving the contents of a petition, decree, etc., in a proceeding by a widow for dower, instead of producing a certified copy of the entire record produced the originals, one at a time, and offered them in evidence, to which objection was made, and overruled: Held, that the evidence was properly admitted, it being unnecessary to introduce any more of the record than affected the question at issue. The other party might, in such case, offer any part important to his or her interest.
    7. Same—relevancy—facts not affecting parlies’ interests or rights. The reversal of the part of a decree affecting one piece of property and the affirmance of the part affecting another tract- which is the principal subject of the litigation, creates such a severance of the former unity of the decree and proceedings as that thereafter those relying on the one part will not be chargeable with the consequences resulting from the other part, and therefore in a contest-between the dowress and a purchaser at administrator’s sale of the tract as to which the decree of dower was affirmed, proof that such purchaser is in possession of the other tract is irrelevant and immaterial.
    8. Bes judicata—matters decided on first appeal conclusive on second appeal.' A second appeal in the same case, where the decision of reversal and remandment on the first appeal covers the merits of the controversy in all its bearings, brings before this court only the subsequent proceedings had after the mandate of this court has been sent down.
    9. Administrator’s sale—subject io proceeding for dower. During the pendency of a widow’s petition for dower in various jueces of land,- the administrator of her deceased husband’s estate applied for an order to sell one of the tracts or lots to pay debts, making the widow a jmrty. She answered, setting up no defence or claim except that which she was seeking to enforce through her petition for dower, and tlie administrator’s sale was made subject to her right of dower: Held, that the purchaser at the administrator’s sale became simply bound to abide by the decree giving her dower, whatever it might be.
    10. Appeal—only suspends judgment or decree—does not vacate. An appeal from a decree does not vacate the same or destroy its lien, but merely suspends its operation or execution, and where the decree is’ affirmed it stands for all purposes just as if no appeal had been taken.

      11. Homestead—when assignment of dower is a release of. If dower is allotted out of other lands beside the homestead, the acceptance of such allotment is a waiver and release of the estate of homestead of the person entitled to dower, and his or her children, unless it be otherwise ordered by the court. Dower assigned on a party’s own petition must be regarded as accepted.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Messrs. Isham, Lincoln, Burry & Ryerson, for the appellant :
    Complainant has'a complete remedy at law by an action of ejectment. The dower decree did not impliedly cut off the right of quarantine. For the purpose of showing the effect of a failure in a decree to protect the right, we refer to Asher v. Mitchell, 92 Ill. 481; Leopold v. Krause, 95 id. 441; Suitterlin v. Connecticut Mutual Life Ins. Co. 90 id. 484. See, also, Toledo, Peoria and Warsaw Ry. Co. v. Curtenius, 65 Ill. 120.
    But if, as appellee contends, the widow’s dower has been assigned, or her quarantine has expired, the heir or his assigns may maintain ejectment against her, and it is the proper remedy. 2 Scribner on Dower, 31; Jackson v. O’Donoghy, 7 Johns. 247.
    Courts of chancery in this State have no jurisdiction in suits to recover possession of land held adversely. Such relief is only granted when incidental to the main object of the bill. (Green v. Spring, 43 Ill. 280.) Neither is there any matter of account involved in this case such as will call for interference by a court of chancery. There are no mutual or cross-accounts between the parties. The account must be very complicated before chancery will entertain such jurisdiction. Craig v. McKinney, 72 Ill. 312.
    If the decree in this case is allowed to stand, then certainly the widow is deprived of a homestead right which even the second opinion filed intimates can not be lost by any of the circumstances which are taken as true in that opinion, and which are there held to be sufficient to waive and defeat quarantine. Homestead and dower rights may both exist in the same tract of land. (Walsh v. Reis, 50 Ill. 477; Peyton v. Jeffries, id. 148.) They ought, therefore, both to be set off to the appellee, before possession is taken from her. Montague v. Selb, 106 Ill. 49.
    Mr. W. H. Moore, and Messrs. Paddock & Aldis, for the appellee:
    This court having settled the law upon the facts alleged in the hill and discussed in the case cited below, the only proposition that need be maintained by the appellee is, that the facts proven at the hearing support all, or a sufficient part, of the material allegations of the bill, and justify the decree complained of. We submit that such facts were so proven, and that they so sustain the decree. Doane v. Walker, 101 Ill. 628.
    It was held by this court that the widow was concluded by the decree of dower, and that it impliedly cut off her rights in the premises not affirmatively preserved in the decree, and that Doane was right in relying upon it. A decree not reversed, so far as the rights of purchasers under it are concerned, must be taken in law to be in force. It is true that the right to final process on a decree may be temporarily suspended by an appeal. Where, on the appeal, the decree is affirmed, the rights of all parties stand as if no appeal had been taken.
    Various other points were made upon the facts of the case, and in reply to appellant’s counsel.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This case was before us at our March term, 1882, on the appeal of the complainant (the present appellee) from a judgment of the Appellate Court for the First District, affirming the decree of the Superior Court of Cook county. The questions then considered arose upon demurrer to the bill, and our judgment reversed that of the Appellate Court. Reference may be made to the report of the case as published, under the title of Doane v. Walker, 101 Ill. 628, for a full statement of the allegations of the bill and the questions discussed and decided at that time.

After the cause was remanded to the Superior Court of Cook county, the defendant in the bill (the present appellant) answered the bill, putting in issue all its material allegations. The cause came on thereafter to a hearing, and the Superior Court, by its decree then made, found all the material allegations of complainant’s bill true, and that the equities therein are with the complainant; that defendant has, without right, since the date of the administrator’s deed, withheld from complainant the possession of the Ellis avenue property; that complainant, by virtue of the decrees in the dower proceeding, was entitled to the possession of the premises, as against the defendant, since the date of the deed, and held them in fee simple, except as to the dower allowance of $350 per annum, payable quarterly, as provided by the decree; that the dower decree is still in force and unreversed as to the Ellis avenue property; that defendant is insolvent, and has permitted waste on the .premises, as alleged in the bill, and failed to pay taxes, and therefore ordered that defendant surrender possession of the premises to complainant, and in default of such surrender that complainant be entitled to a writ of assistance upon application to the court, and such further order as may be required to put him in possession. The court thereby further found that complainant was entitled to an accounting for occupancy, taxes and waste, and thereupon decreed that the amount so to be found due be set off against the dower allowance to make his title clear from the cloud of arrears of dower under the dower decree, and that it be referred to a master in chancery to take an account between the parties, giving credit to the defendant at the rate of $350 per year from October 15, 1878, (the date of the administrator’s deed,) and to charge against defendant the value of the use of the premises since said October 15, 1878, and until they are surrendered to complainant, and all taxes and assessments accruing since the date of the administrator’s deed are paid by complainant, charging against defendant the proportion equitably chargeable to her • and also that the master report all damages by reason of waste.

At a subsequent day the master made his report in writing to the court. In it he reports, in substance, thus: He finds that complainant has paid out ’since the date of the administrator’s deed, for taxes, the sum of $3517.78, of which he charges the defendant with the payment. He therein charges the defendant with the payment of $1050 as the yearly value of the use of the premises, and he adopts this estimate because it is the amount fixed by the verdict of the jury in the dower proceedings. He does not charge the defendant with any special taxes and assessments paid by complainant, because the work of improvement which such taxes and assessments were levied and collected to pay for, have contributed to the permanent advantage of the property. He does not charge the defendant with the taxes of 1878, because they were a lien on the property when the complainant purchased. He does not charge the defendant with waste, because, in his opinion, the evidence fails to sustain that charge. Exceptions to this report were filed by both parties before the master, and they were all overruled by him. They were renewed in the Superior Court, and all—except one by the complainant, which is of no importance in the consideration of the questions discussed in the argument of counsel,—overruled, and the court thereupon decreed, in accordance with the report of the master, as approved, that the .defendant pay to the complainant $4344.39; that in default of such payment said sum stand and be set off as to tbe quarterly allowance for dower accruing to defendant from the Ellis avenue property, at the rate of $350 a year. The decree of the Superior Court, on appeal to tbe Appellate Court for tbe Eirst District, was in all things affirmed. We are now asked to reverse that affirmance.

When tbe case was here before (Doane v. Walker, supra,) we hel'cl that a court of equity bad jurisdiction to effect the set-off prayed of a part of the rental value of the property against and in discharge of such of tbe installments of dower 'as were then due, and the residue against and in discharge of such as should thereafter become due, until the same should be exhausted, upon the ground of the allegations that during the time the premises were unlawfully detained by the defendant the rental value of the property amounted to double her claim for dower, and she was insolvent. There was, also, it is true, an allegation of waste referred to and treated as a ground of equitable jurisdiction, but that of set-off, on tbe grounds above stated, was held, of itself, to be amply sufficient for that purpose, and it was dwelt upon in the opinion as the most satisfactory. After quoting from Bispham’s work on Equity Jurisprudence, to the effect that ■in cases of set-off, “where there is anything peculiar in the case, so as to render it impossible for exact justice to be done by a court of law under tbe statutes, a court of chancery will afford relief through the medium of an equitable set-off, ” we said: “That the present ease falls directly within ’the rule bere announced there is, in our judgment, no just reason for doubt. * * * To recover a judgment at law against her would not place him in any better position than be now is,—bis estate would still be incumbered with .the lien for unpaid dower. The relief which is indispensable to him is to have such an adjustment of their respective claims as will result in tbe removal of this incumbrance from bis estate, and this can only be enforced in a court of equity. ”

At the same time, upon the main question on the merits, namely, whether the defendant was liable to the complainant for the use and occupation of the premises from the date of his deed, we held that the court, by the defendant’s bill to assign dower, acquired jurisdiction to pass upon whatever rights she had in this property, including the right to occupy it until her dower was assigned in all the lands of which her husband died seized, and that consequently, the court having entered a decree in the cause without therein providing for her future occupancy of the property, and without having therein postponed its operation till that event, she is concluded by its provisions, and can not be heard to insist upon any rights with respect to the property that are not secured by the decree itself; that^the appeal from that decree did not vacate it, but simply suspended its operation, and when, by the judgment of the Appellate Court, so much of the decree as related to this and certain other property was affirmed, and so much as related to the Fort Dearborn property was reversed and remanded, there was such a severance that the decree with respect to this property was no longer dependent upon, nor to be affected by, the decree relating to the Fort Dearborn property, and necessarily that the decree with respect to this property was final and conclusive upon the rights therein of the^defendant, wherefore she was liable to the complainant for use and occupation from the date of his deed, the decree for the payment of dower to her on account of this property having been rendered, and the first installment thereof being due, prior to the date of his deed.

We have given the evidence preserved in the record a thorough and careful examination, and we are of the opinion therefrom that the evidence sufficiently sustains the material allegations of the bill. The reasonable conclusion from the evidence is, that the use and occupation of the property is worth the amount found by the master; and that Mrs. Walker is and was insolvent, the evidence, though not excluding all doubt, unquestionably preponderates. It is unnecessary to recapitulate the evidence at length, or to make further comment upon it.

The bill filed by Mrs. Walker for the assignment of dower, and all the proceedings thereunder up to and including the decree thereon, were in the same court in which this suit was instituted and tried,—i. e., the Superior Court of Cook county. Accordingly, upon the hearing herein, Doane, by his counsel, for the purpose of proving the contents of the petition, decree, etc., instead of producing a certified copy of the entire record, produced the originals, one at a time, and offered them in evidence. Mrs. Walker’s counsel objected to each and all of them, upon the ground that proof should be made of the entire record, and not of parts of it. The objection was overruled, and the originals were read in evidence, as offered. The objection is still pressed that this evidence was not competent, on the ground of the objection urged at the hearing. We think the evidence was properly admitted. It was unnecessary to introduce any more of the record than affected the question at issue. (Phillips et al. v. Webster et al. 85 Ill. 146.) The existence of the petition and the decree was alleged in the bill and admitted in the answer. There was no question respecting jurisdiction, and the only question was, what was by the petition put in issue, and what wp.s the decree therein ? The files and records introduced were proved beyond doubt to be the originals alluded to in the bill and answer, and none other.

Counsel say, if the whole record had been introduced it would have appeared that the dowress never acquiesced in the decree, but assigned cross-errors therein as to this very homestead property, etc. It may be answered, first, that if any part of the record not introduced by Doane had been deemed important to the interests of Mrs. Walker, she should have offered it in evidence herself; second, that we are unable to perceive how any importance can be attached to the circumstance whether Mrs. Walker did or did not assign cross-errors in the Appellate Court in respect of so much of the decree as affected this property. The transcript of the record of the Appellate Court clearly shows no such errors were regarded hy that court, for it shows the court affirmed so much of the decree as affected this property. We have at no time laid any stress upon the question whether this decree was such an one as Mrs. Walker desired. We have rested our opinion upon the fact that instead of being satisfied to enjoy the right of quarantine until her dower was assigned by the heir, as provided by statute, she, herself, instituted proceedings to have dower assigned in this and other property, and thereon obtained a decree that there be paid her, on account of her right of dower in this property, $350 yearly, in quarterly installments, commencing on the 21st of May, 1878, (several months before the sale at which Doane purchased,) and for the non-páyment of any of these installments the property is to be sold, and that by the affirmance of this part of the decree, and by the reversal of that part relating to the Fort Dearborn property, there was such severance as relieves anj7 parties interested in this property from all consequences that may result from the part of the decree relating to that. The same order was observed in introducing the records of the petition, decree, etc., in relation to the administrator’s sale at which Doane purchased, and like objection was urged, and a like answer must be given.

It is said, if the whole record had been introduced with reference to that decree and sale it would have appeared that Doane also bought the Fort Dearborn property. If it was deemed important to the interests of Mrs. Walker to prove this, we can perceive no reason why her counsel did not, themselves, introduce that part of the record. Evidence was subsequently offered by the counsel of Mrs. Walker to prove that Doane was then in the possession and control of the Fort Dearborn property,—not that he bought it at the administrator’s sale,—but this was, as we think, properly excluded. If, as we held* before, the reversal of the part of the decree affecting that property, and the affirmance of that part affecting this, created such a severance of the former . unity as thereafter those relying upon the one part were not chargeable with the consequences resulting from the other-part, then it can be of no importance here who became the purchaser of the Fort Dearborn property. The dower decree, and its effect upon the rights of parties, must stand or fall by matters appearing of record, and not by the accidental circumstance of who may have subsequently'become the owner of the property on account of which the dower was allowed, and against which the payment of its installments is made chargeable.

The real point and gist of the very able and ingenious argument filed by counsel for Mrs. Walker, is directed, though. covertly, against our former opinion. We are not convinced there is any substantial error in any of its positions, but the question whether we were then right is not now before us. In Newberry v. Blatchford et al. 106 Ill. 584, we held, where there is a second appeal in the same case, and the first decision covers the merits of the controversy in all its bearings, it brings before us only the subsequent proceedings had after the mandate of this court had been sent down. Some little matters of makeweight were thrown in as aids to argument, oías illustrations, in the original opinion, which have not been literally proved, but they were unimportant. The decision did not turn upon any question of whether acts of Mrs. Walker, disconnected from the records, referred to in the pleadings and offered in evidence upon the hearing, affected the action of Doane; and the record now before us shows precisely the samé records, and the connection of Mrs. Walker therewith, as the former record did. Mrs. Walker petitioned for the assignment of dower in the property whereof her husband died seized. There is no proof-that she was entitled to dower in any other at that time, and she is entitled to no presumption in that regard. That petition included the property in which her husband had his homestead at the time of his death. We conceive the reasons which actuated her to file this petition wholly unimportant. The act was voluntary, however much she may have felt, or may in fact-have been, wronged by conduct of others, which induced her to do the act. The decree was in accordance with the prayer of the petition. In her answer to the petition of the administrator to sell the property to pay debts she set up no defence, and no claim save that which she was seeking to enforce through her petition for dower. The administrator’s sale was therefore made subject to that right, and Doane, when he purchased thereat, became simply bound to abide by that decree, whatever it might be. The appeal from that decree did not vacate it or destroy its lien—it merely suspended its operation, and when it was affirmed, it stood, for all purposes, just as if the appeal had not been taken. (Oakes v. Williams, 107 Ill. 154.) The reversal as to the part affecting the Fort Dear-born property, in legal presumption took from Mrs. Walker nothing to which she is entitled. We must presume she will obtain there all that is her due, and -when it is legally proper she should have it. Had Mrs. Walker not asked and obtained a decree for the payment of dower out of this property, or had the proceedings been commenced against instead of by her, and she had meanwhile remained in possession and insisted upon her right of quarantine, the case would have been quite different.

A point not considered before is urged with reference to the estate of homestead as distinguished from the right of quarantine. This seems to be effectually answered by the 37th section of the Dower act, (chap. 11, Rev. Stat. 1874,) which is as follows: “The surviving husband or wife shall have the homestead or dwelling house, if he or she desires, and such allotment shall not affect his or her estate of homestead therein; but if the dower is allotted out of other lauds, the acceptance of such allotment shall he a waiver and release of the estate'of homestead of the person entitled to dower, and his or her children, unless it shall be otherwise ordered by the court.” Here the dower has been allotted to Mrs. Walker out of other lands. It must be regarded as accepted by her because allotted upon her petition, and the decree of court does not otherwise provide.

The decree is affirmed.

Decree affirmed.

Walker and Cbaig, JJ., dissenting.


author: Mr. Chief Justice Sheldon

text:
    James Quinn et al. v. Thomas C. Eagleston.

      Filed at Ottawa November 20, 1883.

    1. Ancient deeds—of the proof of their existence for thirty years. Certain deeds purporting to have been executed in 1832 and 1839, but not acknowledged according to law, were admitted in evidence in behalf of the plaintiff in an action of ejectment, as ancient deeds, on proof that they had been actually recorded in the proper county twenty-nine years before the commencement of the suit in which they were received, and they being shown to have been in the possession of the party in possession of the land before the plaintiff, and to have remained with him until his death, and it being shown that one of the deeds had been recorded more than forty years before the suit was brought: Held, in the absence of evidence of fraud or suspicious circumstances, that this was satisfactory proof that the deeds had been' in existence for thirty years, and entitled them to be read in evidence as ancient deeds.
    2. Evidence—declarations and statements as part of the res gestee. On a question of a boundary line, when it appears that a prior owner, since deceased, built his fence á rod within his lines, the declarations of such person, while the owner and in possession of the land, explanatory of his intention in leaving a strip of land open, is properly admitted in evidence in behalf of a person claiming under such prior owner, as part of the res gestee, as accompanying the act of throwing the strip open and keeping it open.
    3. So on the question of the boundary line between two tracts of land, where the owner of one tract left a strip on one side of it a rod wide uninclosed, and the owner of the adjoining tract, in 1831, joined his fence around the other tract to that, the declarations and statements of such latter party at the time of taking possession of his tract and joining his fence to that on the adjoining premises, was held proper evidence in favor of his grantee, as accompanying his acts and going to show the character of the act 'as being hostile or otherwise, but that they would be but slight evidence of adverse possession as to the strip, being made in the absence of the owner of the other tract.

      4. Instbtjction—as to the legal effect of deeds in ejectment. In an action of ejectment the court instructed the jury that the plaintiff having produced in evidence deeds showing a complete chain of title from the United States to himself for the land sued for, had proved title in himself. There was no evidence in opposition to the deeds: Held, that the instruction was proper, it being the duty of courts to construe writings, and instruct juries as to their forcé and effect.
    5. Same—as being based on evidence. An instruction is not improper, as not being based on the evidence, merely because there is no direct evidence of the fact upon which the instruction seems to be based, when the jury is warranted in inferring such fact from the circumstances of the case and the acts and conduct of the parties.
    6. Ejectment—proof of defendant’s possession. Where a defendant attempted*!» fence up a strip of the plaintiff’s land, but did not complete his fence entirely across the same, his object being to take possession of the whole strip, itwas held, that the jury were justifiedin finding that the defendant had dispossessed the plaintiff of such strip.
    Appeal from the Circuit Court of Stark county; the Hon. David McCulloch, Judge, presiding.
    This was an action of ejectment, commenced February 21, 1883, and brought by Thomas C. Eagleston, against James Quinn and John Gustafson, to recover possession of a strip of land about one rod in width, across the north end of the west half of the north-west quarter of section 14, town 13 north, range 7 east, in Stark county, in this State, lying north of the line of a hedge running across said tract of land, containing about one-half acre.

      It appears from tlie evidence that in the year 1851 John T. Eagleston, the father of the plaintiff, and under whose title plaintiff claims, purchased the said north-west quarter of section 14, which at that time W'as in the open prairie, at a distance from any improvement. The county surveyor, after much difficulty, succeeded in finding what ivas considered the original mound of the government survey, at the north-west corner of section 14, and established it as such corner. A stone was placed in the mound, which has remained there ever since.- Soon after purchasing the land, John T. Eagles-ton built a cabin, and moved oh the land in the fall of 1851, and in 1852 he inclosed it with a rail fence according to the survey of the county surveyor, running his fence directly east from the corner stone set as on the north line of his quarter. Some years after that he planted a hedge upon the north and west sides of his land, setting the hedge in upon his own land one rod from his supposed line. After the hedge was grown, the old rail fence was permitted to decay and fall down, except some twenty-five or thirty rods on the north, where the hedge-failed to grow, in a pond or flat piece of ground. Across this flat ground the rail fence has always been kept up upon the line, making the offset one rod wide and about twenty-five or thirty rods long between the hedge line and the line of the rail fence, there being connecting fences with these lines on the east and west ends of the offset, which has always remained within Eagleston’s inclosure until December, 1882, when defendant Quinn entered and erected a fence on the line of the hedges nearly across the flat ground, claiming the hedge to he the boundary of Eagleston’s land, and that the strip one rod wide between the hedge and the line of the old rail fence belonged to him. Defendant Quinn claims to own the west half of the south-west quarter of section 11, in the same township and range, and derives his title from one William Luce, who fenced it about 1861, joining the fences on the east and west lines to Eagleston’s fence' on the south. Neither Luce, nor Quinn, who bought from Luce in 1867, ever built any fence across the south end of their tract. Quinn claims the hedge to be the north boundary of Eagleston’s land, and that the strip one rod wide between the hedge and the line of the old rail fence belongs to him, Quinn. The other defendant is his tenant. The plaintiff recovered in the court below, and the defendants appealed.
    Mr. Feed. S. Pottee, for the appellants:
    There was error in admitting the three deeds not properly acknowledged, as ancient deeds. There 'is no presumption that a deed is thirty years old that arises from anything on the paper. It must be shown to be that old at the time it is offered in evidence, by evidence aliuncle, and it should appear that the party claimed under such deed. Smith v. Rankin, 20 Ill. 14; Whitman et al. v. Henneberry, 73 id. 109.
    These deeds and their genuineness were questions for the jury, under all of the evidence. Plaintiff’s first instruction told the jury that “the plaintiff has produced in evidence deeds showing a complete chain of title from the United States to himself.”- The deeds complained of were in the “chain.” The permitting them to be read does not decide on the final influence of the evidence as to its reality—that is for the jury. 2 Phillips on Evidence, (4th Am. ed. C. & H.’s notes,) 477, also pp. 475-180.
    The court improperly admitted proof of the declarations of the plaintiff’s father after .he had fenced out the strip in question. Such declarations are admissible only as a part of the res gestee, and they must be a part of the thing done. Had they been made while the fence uras being set, or before he lost possession, it might have been within the rule.
    Ejectment will not lie in favor of one in possession. Reed et al. v. Taylor et al. 56 Ill. 291.
    If plaintiff’s father’s declarations were proper evidence, certainly those of Luce, made at the time he built his fence and joined it to the Eagleston hedge, in regard to the ownership of the land down to the hedge, were.
    Plaintiff’s first instruction, that the iilaintiff had shown title, is bad, as taking the finding of important facts from the jury. The court has no right to tell them what facts are proved. Van Duzor v. Allen, 90 Ill. 504; Hubner v. Feige, id. 212.
    Mr. Miles A. Fullee, for the appellee:
    The proof made in respect to the deeds, with no evidence of fraud or suspicious circumstances, was sufficient to show they had been in existence thirty years, and entitled them to be read in evidence. Whitman v. Henneberry, 73 Ill. 113; Fell v. Young, 63 id. 106.
    TVe understand the rule to be well established that the declarations of a party in possession, explanatory of his acts or of his possession, are admissible in evidence as á part of the res gesta, and in this case were competent to show that by placing his hedge inside of the line he did not thereby intend to surrender possession, or his claim, to the land outside of the hedge. 1 Greenleaf on Evidence, secs. 108-111; Proctor v. Town of Lewiston, 25 Ill. 153; Buchanan v. Curtis, 25 Wis. 107; Irwin v. Dixon, 9 How. (U. S.) 10; Fyffe v. Fyffe, 106 Ill. 646.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

It is assigned for error that the verdict of the jury is not supported by the evidence.

There seems to be no question as to the plaintiff’s ownership of the north-west quarter of section 14, and the principal point of controversy is as to the location of the boundary line between the parties, though it is also contended by the defendants that the strip of land in question has been occupied by them under a claim of ownership for over twenty years, which constitutes a har to a recovery. Without attempting a review of the evidence, we will say that after a full examination of it we are satisfied with the finding of the jury in favor of the jilaintiff on both the above named points of contest, and find no reason for disturbing the verdict on the ground of its not being warranted by the evidence.

It is insisted that at least as to that part of the land, in the slough, or what is called the “offset,” defendants are not guilty, on plaintiff’s own testimony that “no fence has been on the line of the hedge across the space; the strip in the jog has been in my field, and has never been separated from it until last fall, when the defendants built one there, but not clear across. ” The fence not being built clear across, would not take that part out of the possession of plaintiff, it is said, and that plaintiff could not recover for land in his own possession. We can not say that the jury were not justified in finding that part was essentially separated from plaintiff’s field, although the fence did not extend entirely across the offset. The evident purpose in making the fence was to withdraw that part from Eagleston’s inclosure and include it in Quinn’s own, and extend his possession to the line of the hedge, and the jury might regard that this had been done, practically.

Various rulings of the court are excepted to. The first is as to the admission in evidence of the following deeds: Con-nor to Eoads, dated February 18, 1832, and recorded December 31, 1853; Eoads to Bixler, dated April 13, 1839, and recorded December 31, 1853; and Bixler to Drummond, dated July 31, 1839, and recorded December 23, 1839. The deeds were not acknowledged according to law, and were admitted as ancient deeds. The objection is that there was not proof that the deeds were in existence at least thirty years before they were offered. Mr. Fuller testified that as plaintiff’s attorney he made inquiry and search for these deeds, which were not in plaintiff’s possession, and found them tied up in a package, with other deeds, among the old papers of John T. Eagleston, deceased. They were shown to have been actually recorded in Stark county over twenty-nine years before the commencement of this suit, and to have been in the hands of John T. Eagleston, the party then in possession of the land, and to have remained with him until his death. The last deed of the three, (Bixler to Drummond,) which is dependent upon the other two, and would not, we may suppose, have been made had not they (the deeds from Connor to Eoads, and from Eoads to Bixler,) been previously executed, was actually recorded in Stark county more than forty years before this suit was begun. This, with no evidence of fraud or suspicious circumstances, was, we deem, satisfactory proof that these deeds had been in existence for thirty years, and entitled them to be read in evidence as ancient deeds. Fell v. Young, 63 Ill. 106 ; Whitman v. Heneberry, 73 id. 109.

Another ruling complained of is in permitting the plaintiff to prove what was said by John T. Eagleston (now deceased) ■when he was in possession of the premises, as to his reason for planting his hedge in from the line of his land, and leaving a strip of land one rod wide outside of the hedge. The planting the hedge in from the line of the land was an equivocal act. It might be interpreted as a dedication to the public, or as setting the hedge on the true line. The declarations of Eagleston when he was the owner and in possession of the land, explanatory of his intention in leaving the strip of land open, we think were properly admitted in evidence as a part of the res gestee, as accompanying the acts of throwing the land open and keeping it open. Proctor v. Town of Lewiston, 25 Ill. 153; Buchanan v. Curtis, 25 Wis. 99.

Exception is also taken to the refusal .to permit the witness Dickerson to answer the following question, put by defendants’ counsel: “What did Luce say, if anything, at the time he took possession of his eighty, and built his fence on his west line, and joined it up to the Eagleston hedge; state what he •said upon that point, if anything?” There was no objection •to the form of the question. We think it should have been allowed, for the same reason that evidence was properly received of Eagleston’s declarations. It would be evidence accompanying the act of Luce, going to show the character of the act as being hostile or otherwise to Eagleston’s title, and as bearing upon Luce’s and defendant’s possession of the strip in question, whether it was permissive on the part of Eagleston, or adverse to him, twenty years’ adverse possession being one ground of defence. Still, we are not prepared to say that the denial of this evidence was an error so material that it should 'cause a reversal of the judgment. Such .claim of ownership on such an occasion, in the absence of Eagleston, would be but slight evidence of adverse possession, and especially as all the evidence besides does not seem to show any reasonable ground of claim of an adverse possession arising before 1867, which would be less than twenty years before suit brought, when a new survey was made by another county surveyor, and a different corner was established as the north-west corner of section 14 from the one established by the former county surveyor. Until that time there does not seem to have been any question of the correctness of the corner first established, and so no reason until then for regarding defendants’ possession as adverse.

Objection is taken to the ruling on instructions. That the jury were instructed for plaintiff that he having produced in evidence deeds showing a complete chain of title from the government of the United States to himself, for ninety-three acres of the west side of the north-west quarter of section 14, etc., had proven title to himself in that part of the quarter section. There was no evidence in opposition to the deeds, and the instruction was proper. It is the duty of courts to construe writings, and to instruct juries,as to their force and effect.

Plaintiff’s fourth instruction was, in substance, if Eagles-ton permitted Luce to join on to his fence, and it was understood by them that the land was Eagleston’s, then Luce’s possession was not hostile. The objection to this instruction is, that it was not based on the evidence; that there was no evidence tending to show that Luce and Eagleston ever met or spoke to each other on this subject. Such an understanding might have existed between the parties, and the jury have been warranted in inferring that it did, from circumstances in the case, such as, that the rail fence was still standing on the line, the purpose for which plaintiff set the hedge in from the line, the fact that the county surveyor had established the north-west corner, and it had never been questioned, etc., without proof at this late day of any conversation between the parties. Such circumstances'go to show that the joining of Luce’s fences to Eagleston’s,-without permission, would have been regarded as a trespass, and it is not likely that a trespass was committed and suffered. We do not think the objection well taken. •

The sixth instruction relates only to the part within, the “offset,” and the criticism made upon that is, that it assumes that the defendants built their fence across it, when the evidence is that the fence was not built “clear across.” We have before remarked upon the circumstance of the fence not being built entirely across the strip in the offset, as warranting a recovery for that part, and according to what we have said it will be seen that we regard this variance in the instruction from the evidence as immaterial.

We perceive no error in the refusal of instructions asked by the defendants.

Finding no material error in the record, the judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Walker

text:
    'Z. Dowden et al. v. Jesse F. Wilson.

      Filed at Springfield Oct. 1, 1883

      Rehearing denied January Term, 1884.

    •1. Pbactice—remedy of party aggrieved by a decree in vacation. Where a cause is taken under advisement by the court-, and a decree, order or judgment therein entered of reeord in vacation, under sec. 30, chap. 37, Eev. Stat. 1874, the party objecting thereto should, on or before the second day of the next succeeding term of the court, enter a motion, on notice to the opposite party, to set aside or modify the same, and if not so set aside or modified it becomes final. This statute, by having prescribed a mode of practice in such a case, must be treated as excluding any other. Therefore, a motion made to the judge in vacation to set aside a decree so entered is not allowed.
    2. Same—entering decree as of the term the cause is submitted. Sec. 31, chap. 37, Eev. Stat. 1874, requires the consent of the parties appealing of record to authorize a decree rendered in vacation to be entered as of the term at which the cause is submitted, and where the record shows no such consent, the party objecting will not be deprived of his right to apply to the court by the second day of the next term for a new hearing, under section 30, chapter 37.
    3. Evidence—secondary—certified copies of depositions on destruction of originals. Where depositions taken in a cause were destroyed by fire, and in a second suit, in which the parties and subject matter are identical with the first, an agreement was made to admit the transcript of the record of the first suit filed in the Supreme Court, as evidence, which, on application, was not allowed to be withdrawn, it was held, that copies of depositions of a party in the former suit, duly certified by the clerk of the Supreme Court, were competent evidence on the hearing of the second suit, and proper to be considered.
    4. EaixjTJBE op consideeation—sale of patent—evidence must establish defence. Where a defence is interposed to the foreclosure of a mortgage given to secure notes given for the sale of a patent for a wagon brake, that the patent is worthless, the defendant must prove that fact, and where he has had ample time to make and test the quality of such brakes at a slight expense, and does not, and produces no witness that ever saw such brake practically tested, but relies solely on the opinions of witnesses not shown to be experts, his defence will not be established.
    5. Same—must have its foundation in the pleadings, or must be pertinent to an issue. The allegations in an answer to a bill in chancery, and proofs, must agree, to render a defence available. So where an answer to a bill to foreclose a mortgage to secure notes given on the purchase of a patent contains no allegation that certain representations were made, which were false, to induce the purchase, proof of such fact will not avail as a defence.
    6. Fraud—in representations .usual in commendation of thing sold. Bepresentations, such as are usual in commending an article sold, can not be relied on as fraud to defeat a suit to recover the price agreed to be paid for the same.
    7. Bescission for fraud—party seeking must place vendor in statu quo. A party purchasing a patent for the manufacture of a brahe to wagons, before he can rescind the contract of sale on the ground of fraudulent representations must first restore or offer to restore the patent to the vendor. He can not hold'that and escape paying for the same according to his cpntract.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Ford county; the Hon. Owen T. Beeves, Judge, presiding.
    Mr. Calvin H. Feew, for the appellants:
    The depositions of Dowden taken in the first suit upon the identical issue in defence in this suit, are legitimate evidence on the hearing of this cause, and being destroyed by fire, secondary evidence of their contents was proper. 1 Greenleaf on Evidence, secs. 82-84, note 2.
    This rule does not require that the evidence shall be an exact copy of the whole instrument. Richley v. Farrell, 69 Ill. 264; Fisher v. Greene, 95 id. 94.
    The transcript of the record filed in the Supreme Court is competent evidence, but when the copy has become a record of a court, an examined copy or a certified copy may be .used. 1 Greenleaf on Evidence, sec. 91; Dickinson v. Smith, 25 Barb. 105; Robertson v. Lynch, 18 Johns. 451; Jackson v. Cole, 4 Cow. 595.
    The certificate of the evidence, though styled a copy, may well be considered an original for certain purposes. Cornell v. Williams, 20 Wall. 245; Radcliff v. United Ins. Co. 7 Johns. 43; Eagle Manf. Co. v. Bradford, 57 Ga. 249; Reynolds’ Stevens on Evidence, 110; Hoyt v. Shipherd, 70 Ill. 309;
      White et al. v. Herrman, 62 id. 73; Harding v. Larkin et al. 41 id. 413.
    If the patent is not for a new invention, possessing no novelty, it is invalid, and no consideration for a grant. Hind-march on Patents, 64; Brown v. Guild, 23 Wall. 181; Smith v. Nichols, 21 id. 117; Rubber Tip Pencil Co. v. Howard, 20 id. 498; Sewall v. Jones, 1 Otto, 91; Cross v. Huntley, 13 Wend. 386; Burnham v. Brewster, 1 Vt. 90; Dickinson v. Hall, 13 Pick. 230.
    If the patent is shown to be worthless, no recovery can be had on notes given for the same. Pecky. Farrington, 9 Wend. 44; Fallas v. Griffith, Wright, (Ohio,) 303; Kernodle v. Grant, 4 Blackf. (Ind.) 61; Dart v. Brockway, 11 Ohio, 471; Geiger v. Cook, 3 W. & Serg. 270; Mullikin v. Latchum, 7 Blackf. (Ind.) 138; Jolliffe v. Collins, 21 Mo. 343; McClure v. Jeffrey, 8 Ind. 82; Foss v. Richardson, 11 Mo. 670; Scott v. Sweet et al. 29 Greene, 224; Cragin et al. v. Fowler et al. 34 Vt. 326; Clough v. Patrick, 37 id. 421.
    The decree was made in vacation, with the understanding that neither party should thereby waive any of their legal rights. Then, if the court had no authority to grant a rehearing in vacation, the decree entered in vacation was void.
    Messrs. Tipton & Gray, for the appellee:
    There was no error in overruling the motion for a rehearing. Consent can not confer jurisdiction nor authorize a judge in vacation to exercise the power of a court. Bancroft v. Eastman, 2 Gilm. 264; Welch v. Bynes, 38 Ill. 20; Keith et al. v. Kellogg et al. 97 id. 147; Blair v. Reading et al. 99 id. 600.
    Motion for rehearing must be made at the term the decree is rendered, (Delahay v. McConnell et al. 4 Scam. 156,) and must be had before decree entered. Hughes et al. v. Washington et al. 65 Ill. 245.

      No attempt was made to rescind the contract, nor can the sale be rescinded in this proceeding. 52 N. H. 316; Buchanan v. Harvey, 12 Ill. 336.
    To rescind, the party must offer to put the other party in statu quo. Barge v. Cedar Rapids R. R. Co. 32 Iowa, 101; Parker v. Marquis, 64 Mo. 38; White v. Thayer, 121 Mass. 227; Barfield v. Price, 40 Cal. 535; Groves v. Sanders, 3 Otto, 55; Constants. Chapman, 3 Moak, 178.
    A party can not rescind a contract and at the same time retain the articles purchased. Jennings v. Gage, 13 111. 610; Cooley v. Bingham, 1 Metc. 550; Miner v. Bradley, 22 Pick. 457; Persley v. Balch, 23 id. 286; Norton v. Young, 3 Greenlf. 30; Cushman v. Marshall, 21 Maine, 122; Sumner v. Parker, 36 N. H. 449; Scott v. Billney, 40 Miss. 119 ; Underwood v. West, 42 Ill. 403; Larned v. Holmes, 40 Miss. 30; Harding v. Hoodley, 11 Wheat. 103; Slaughters. Green, 13 Wall. 379.
    If the admission of the depositions in evidence could not have changed the decree, there was no error in excluding them.
    The general rule as to the admission of office copies does not apply to depositions. Rex v. Howard, 1 M. Robb. 189.
    A copy of a copy is not admissible. Starkie on Evidence, (9th ed.) 270 ; 1 Wharton on Evidence, sec. 133, and note 5; Liebman v. Pooley, 1 Btarkie’s N. P. 167.
   Mr. Justice Walker

delivered the opinion of the Court:

Appellee in this ease filed a bill in the Eord circuit court, against appellants, to foreclose a mortgage given on a tract of land in that county, to secure three promissory notes, amounting in the aggregate to $1000. This is a second suit commenced in that court to foreclose the same mortgage. The first bill was filed by the same complainant against the same defendants. That ease was heard, a decree rendered, and appealed to this court, where the decree was reversed, and the cause ordered to be remanded, but the order was not applied for or issued within two years, and the Case became discontinued.

On the trial of this case it was proved that the records and files in the former case were destroyed by the burning of the clerk’s office of that court. On the hearing appellants offered and read in evidence copies of two depositions of defendant Dowden, taken and read in evidence on the trial in the .former case. The copies were from the transcript of the record in this court, and were properly certified to be true copies by the clerk of this court. They were read on the hearing, subject to the objections of complainant.. There had been filed among the papers of this case, at or before the hearing, an agreement between counsel of the respective parties, that counsel for defendants might, on the hearing, read the transcript of the record in this court, but being unable to procure leave to withdraw it for the purpose, on an application he procured the copies thus certified, and complainant’s counsel objected because they were copies. In deciding the case the court, it is claimed, declined to consider the copies of these depositions. When the case was heard and submitted at the April term, 1882, the court took the ease under advisement, to be decided in vacation, and on the 30th day of August following, a final decree foreclosing the mortgage was filed, entitled of the preceding April term, and recorded by the clerk as of that term. Subsequently appellants’ counsel, on the 4th day of October, 1882, applied to the judge in vacation for an order for a rehearing, but the application was denied, and defendants perfected an appeal to the Appellate Court for the Third District, where the decree of foreclosure was affirmed, and they appeal to this court.

The first question we shall consider is, whether the judge erred in refusing, on the application in vacation, to grant a rehearing of the case. We regard the 47th section of chapter 37 as settling the practice in such cases. It provides that where a cause or matter is taken under advisement, and it is decided in vacation, the judgment, decree or order may he entered of record in vacation, but such judgment, decree or order may, for good cause shown, be set aside, or modified, or excepted to -at the next term of the court, on motion filed on or before the second day of the term, of which the opposite party, or his attorney, shall have reasonable notice, and if not so set aside or modified, it shall thereupon become final. This section afforded appellants the opportunity, at the December term, 1882, to apply and show cause for setting aside the decree and obtaining a re-trial. The statute does not contemplate such an application in vacation, nor can we see the slightest necessity for such a practice, as all can be had by an application in term time that could be in vacation. Where the statute has prescribed one mode of accomplishing a purpose, which is full and complete, it must be presumed that other modes were intended to be excluded. Nor were defendants deprived of, this right by the decree being entitled of, and the clerk recording it as of, the April term. That could be done only as prescribed by the 48th section of the same act. That section requires the consent of the parties to authorize a decree rendered in vacation to be entered as a decree of the term at which the case was submitted and taken under advisement. The record in this case shows no such agreement, and inasmuch as appellants took no steps to set aside the decree at the December term, they have waived all right to have the decree set aside, and to have a re-trial.

Inasmuch as the copies of the depositions of Dowden were read in evidence, they must be considered, unless complainant’s objection was well taken. Were they properly admitted under the agreement that the record might be read? We think they were. In substance and in fact there was not a particle of difference between that portion of the transcript and the true copies that were read. It is a mere quibble to say that they are not the same in substance, or to say that complainant was taken by surprise, or that he sustained a particle of injury by reading the copies instead of the originals as contained in the transcript on file in this court. Although copies were not specifically named in the agreement, they were within the implication and spirit of the agreement, and were properly admitted, and should have been considered by the court below. But we, on an appeal in a chancery case, consider all the evidence properly in the record, and must consider the depositions in connection with the other legitimate evidence in the case.

Having disposed of these preliminary questions, we shall proceed to consider the ease on its merits. Does the evidence sustain the decree ? There is no question that the notes were given for the purchase of a patent right to a brake for wagons, etc. There was no other consideration for the notes or the mortgage securing them. Had appellants been fully satisfied the brake was worthless, why did they not, in the years that have elapsed since the decree was reversed, have a brake constructed, and its quality fully tested? It would have required but slight expense or trouble. It was not done, and no doubt because it would in all probability have proved to be all that it wras represented. None of the witnesses, except one, pretend ever to have seen a brake made from this model, and he only saw it attached to a wagon standing still. It is not probable that he could, from the standing wagon, form a correct opinion as to its working in descending a hill, when its operation would be tested. None of the other witnesses ever saw anything more than the model, and they say that they had seen others that were worked on the same principle, and this was worthless. They only state their opinions. They do not state or explain the principle, or give any reason why it would not work. Although they say they are experts, we fail to see they were.

■ Again, independent of that, the defence fails for other reasons. It is claimed that the invention was not new, and that fact is proved by the evidence, and not being true, there was a fraud perpetrated on appellants, and the consideration had failed. On turning to the answer we find that no such representation is alleged to have been made when Wilson purchased. The allegations and proofs must agree to render a ^defence available. Whatever the proofs may establish, there is no allegation in the answer that the patent was represented to be a new invention, and hence this evidence has no application to the answer, as that is not set up as a defence. The other representations were only such as are usual in commending an article for sale, and were not fraudulent, and require no further consideration. Moreover, appellants, so far as we can see from the record, have never offered to release or cancel the deed conveying to them the right to manufacture and vend the brake, nor do they offer in their answer to do so, but so far as we can see they still hold the right to manufacture and vend the brake. Even if there was fraudulent representation set up as a defence, or failure of the consideration in the purchase, appellants should have restored, or offered to restore, the title to the patent to the vendors. They have no right to hold that and escape paying the consideration for the notes and mortgage. What else the proofs may show, there is no allegation or proof that the title was reconveyed, or offered to be reconveyed. This, of itself, precludes appellants from insisting upon the defence

Eor these reasons the decree of the court below is affirmed.

Decree affirmed.

Mr. Justice Scott : I d,o not concur in this opinion.