author: Mr. Justice Cbaig

text:
    The Chicago, Milwaukee and St. Paul Railway Company v. William P. Hock et al.

      Filed at Ottawa November 13, 1886.

    1. Eminent domain—elements of damages—cost and inconvenience of removal of business. Where an entire lot of ground upon which the owner is engaged in business, is condemned for the use of a railway company, the cost and inconvenience of the removal of the business to some other place are proper elements of compensation.
    2. Triad by jury—in condemnation proceedings—and the waiver of the right. In a proceeding to condemn land for railroad uses, either party has the right to have the compensation to be paid, assessed by a jury, and it will be error to deny such privilege.
    3. But the right to a trial by jury, conferred by the constitution, in a proceeding to condemn lands for public use, is a privilege which the parties may waive or dispense with; and a waiver of a jury, and finding by the court without a jury, will not render the assessment and judgment void.
    4. Waiver—of party’s rights. A right or privilege conferred by the constitution or a statute, may be waived by a party in a civil proceeding, where no one else is to be affected thereby.

      Appeal from the Superior Court of Cook county; the Hon. Joseph B. Gaby, Judge, presiding.
    Mr. B. Walkeb, for the appellant,
    contended that the court had no jurisdiction to enter a judgment, except upon the finding of a jury,—citing the following among other cases: Rich v. Chicago, 59 Ill. 286; Kine v. Defenbaugh, 64 id. 291; Mitchell v. Railroad Co. 68 id. 286; McManus v. McDonough, 107 id. 95; Fleischman v. Walker, 91 id. 319; Hoagland v. Cree, 81 id. 508; Fahs v. Darling, 82 id. 144.
    The cash value of the property was the only proper measure of damages. Railroad Co. v. Walsh, 106 Ill. 253.
    Mr. Fbancis Lackner, and Mr. George F. Blanks, for the appellees,
    contended that the trial by jury was a privilege that a party might waive, and that the jurisdiction of the court did not depend upon an assessment by a jury,—citing in support of their various propositions, Bowman v. Railroad Co. 102 Ill. 472; Rockwell v. Jones, 21 id. 285; Hill v. Ward, 2 Gilm. 293; Bowden v. Bowden, 75 id. 111; Cancemi v. People, 18 N. Y. 128; Tombs v. Railroad Co. 18 Barb. 583; Cooley’s Const. Lim. 239; Embury v. Dunlap, 6 Col. 554; Sedgwick on Stat. and Const. Law, 88.
   Mr. Justice Cbaig

delivered the opinion of the Court:

This was a proceeding instituted by the Chicago, Milwaukee and St. Paul Eailway Company, in the Superior Court of Cook county, to condemn, for railroad purposes, lot 7, block 18, in Carpenter’s addition to Chicago, under the law of eminent domain. The title to the property was in William P. Hock, and Wilhelmina Hock, his wife. Others, who were made parties to the proceeding, claim an interest in or lien on the premises. All the parties, in open court, waived a jury, and agreed to a trial of the cause by the court. The court heard the evidence, and entered on the record a finding and judgment, as follows: “The court being sufficiently advised, doth find that the value of the property in controversy, to-wit, lot 7, in block 18, in Carpenter’s addition to Chicago, is the sum of $10,000. The court also finds that the value of the frame buildings, situated in the rear of said lot, is the sum of $2500. The court also finds that the value of the partially constructed brick building upon the front part of said lot, as a part of a .building to be completed upon said lot, including the piresent cost of the construction thereof, and the respondent’s own trouble and loss of time in the preparation of said building, and for loss of use of capital invested therein, for architect’s fees, the amount for which the respondent is liable to contractors, and the inconvenience and cost of the removal of his business from said premises, the sum of $5500, making a total compensation for all damages resulting from the taking of said premises, the sum of $18,000. Therefore it is ordered and adjudged by the court, that the full compensation for the taking of the said premises, and for all damages to the respondents, William P. Hock, and Wilhelmina Hock, his wife, .shall be the sum of $18,000, of which sum $966 is to be paid to Gustav Wolff, in full of his claim upon the premises; * * * that petitioner may enter upon said premises, and shall have exclusive possession thereof, for the use and purpose of said railroad company, upon the payment of said sum of $966 to said Wolff, and the sum of $17,034 to the said William P. Hock. ”

Two grounds are urged for a reversal of. the judgment, by the railway company: First, the judgment is claimed to be excessive; second, that the court had no jurisdiction to hear and determine the cause in the absence of a jury.

No complaint is made, in the argument, in regard to the value the court placed upon the lot itself, nor is any particular fault found with the valuation of $2500, which the court, under the evidence, placed upon the frame buildings in the rear of the premises. But the amount ($5500) allowed by the court on account of the brick building on the front of the lot, which was partially constructed, appellant claims is in excess of a just compensation. We have carefully examined the evidence bearing upon this item, and while the amount allowed, in view of all the evidence, may seem somewhat large, still there was evidence introduced on the trial which might justify the amount fixed by the court, and we are not prepared to say that the amount allowed was so excessive as to authorize an appellate court to reverse upon that ground alone. The court saw all the witnesses, and heard them testify on the stand, and was thijs better prepared to determine what weight should be given to the testimony of each witness, than we are from an examination of the evidence on paper.

It has been suggested in the argument, that the court, in assessing damages, heard and took into consideration evidence of the loss of profits sustained by Hock in the interruption of his business for three months. In the finding of the court, incorporated in the record, no mention whatever is made in regard to loss of profits, and from the judgment and finding it is evident that element formed no part of the judgment. The inconvenience and cost of removal of the business from the premises condemned, are mentioned as elements of damages proper for consideration. This, however, is in harmony with the ruling in St. Louis, Vandalia and Terre Haute Railroad Co. v. Capps, 67 Ill. 607.

In regard to the second question,—that the court had no1 jurisdiction,—it is predicated on the terms of section 13, article 2, of the constitution, which provides as follows: “Private property shall not be taken or damaged for public use without just compensation. Such compensation, when not made by the State, shall be ascertained by a jury, as shall be prescribed by law. ” Prior to the adoption of the constitution of 1870, neither the organic law nor the statute guaranteed a jury trial where property was condemned for public use. This section of the constitution was no doubt intended as a new protection to the citizen,—one not theretofore enjoyed,—an additional safeguard placed in the hands of the citizen, to which he might resort when a necessity seemed to exist, to afford him full compensation for property taken. In a proceeding to condemn lands for railroad purposes, it may be regarded as a plain proposition that each party has a right to have the matter involved tried by a jury, and should the court, when the proceeding may be pending, deny the right, and proceed to judgment, the judgment rendered would be erroneous. But is a judgment in a proceeding of this character, where a jury has not been called, void, or is such judgment merely erroneous? The facts set up in the petition to condemn, filed by the railroad company, were sufficient to confer jurisdiction of the subject matter. The service of summons conferred jurisdiction of the person. The court therefore had jurisdiction both of the subject matter and of the parties, and where the court has jurisdiction of the parties and of the subject matter, the general rule is, that the judgment, although it may be erroneous, is valid until reversed on appeal or writ of error. In Bowman v. Venice and Carondelet Ry. Co. 102 Ill. 472, this court held that the filing of a petition and service of process, in a proceeding to condemn lands for railroad purposes, conferred jurisdiction of the person and subject matter. It was also held, that the rule requiring great strictness in statutory proceedings had no application to a proceeding to condemn lands, under the statute. Section 42 of our Practice act provides: “In all cases in any court of record of this State, if both parties shall agree, both matters of law and fact may be tried by the court. ” Here is a statute expressly authorizing parties to waive a jury, and why they may not waive a privilege conferred by a constitution, when expressly authorized to do so by the statute, is not readily seen.

We think the right of trial conferred by the constitution was a mere privilege, which, in a civil proceeding like this, may be waived or dispensed with by the parties, and in this we are sustained by other courts. In Sedgwick on Statutory and Constitutional Law, 111, it is said a party may waive a constitutional as well as a statutory provision made for his benefit. So it has been repeatedly decided that a party may waive the right to a trial by jury, although that mode of proceeding be guaranteed to him by the constitution. In New York it has been held that a privilege conferred by a constitution may be waivfed in a civil proceeding. (People v. Murray, 5 Hill, 472; Lee v. Tillotson, 24 Wend. 337; Embury v. Conner, 3 N. Y. 515; Baker v. Braman, 6 Hill, 47.) Here, the constitutional provision was made for the benefit and protection of the land owner,—a privilege given him in all cases where a proceeding was instituted to take his land for public use,—that he might have the compensation to be awarded, determined by a jury. But is that right so sacred that he can not waive it if he thinks best? We think not. It will be remembered that this is a civil .proceeding,—a civil suit,—a case in which the railroad,.,a private^ corporation', is interested on the one .side, and the land owner on the other. .The amount of damages to be awarded does not affect, or in any manner concern, the public, or any person, except the railroad and the land owner, and we perceive no reason why the parties, the public having no interest, might not, on the trial, avail themselves of the statute, and waive a jury, and submit to a trial before the court. This they did, and, as said before, the court had jurisdiction of the person and of the subject matter, and the judgment was valid, the error or irregularity in proceeding without a jury having been waived by the parties. ,

The judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Chief Justice Scott

license: Public Domain

text:
    Owen Evans v. Mary Price et al.

      Filed at Ottawa November 13, 1886

      Rehearing denied March Term, 1887.

    1. Descents—as to estate of illegitimate—on renunciation of ivill by ■widow. Under the act of 1872, where an illegitimate person died testate, leaving a widow and no descendants, his widow, upon renunciation of his will within one year after its probate, took, absolutely, the whole of his estate, both real and personal.
    2. Same—of the terms of the widow’s renunciation, as affecting her rights under the statute. Where a widow of a deceased illegitimate testator renounces the provisions made for her by will, the statute fixes her rights in the estate, whether she claims them specifically or not in her renunciation.
    A statement in her written renunciation that she elects to take dower, will not prevent her from taking as heir, where the testator left no issue or descendants.
    3. WILL—power to dispose of property by will—subject to control of the law. The privilege of a person to dispose of his property by will is not a natural right, but depends for its existence on positive law. It is wholly within the control of law.
    4. Same—“devise”—“bequest"—“legacy”—defined and distinguished. A legacy is a gift of personal estate by will, while the word “devise” is usually employed to denote a gift, by will, of real estate, or an interest therein. But the word “bequest” may mean any gift by will, whether of real or personal property. In section 10 of the Dower act of 1845, the words “devise” and “bequest” seem to have been used as convertible terms.
    Appeal from the Circuit Court of Kane county; the Hon. Isaac G. Wilson, Judge, presiding.
    •'Mr. George Burry, and Mr. George Bass, for the appellant :
    Every man of sound mind may make a will. The construction urged hy the defendants would, without reason, deprive a class of that right. Rev. Stat. chap. 109, sec. 1; McMurphy v. Boyles, 49 Ill. 110.
    The surviving wife of a testator may renounce the will, and claim dower as widow, or if the husband was childless, she, having renounced the will and claimed dower as widow, may further renounce the dower and claim an absolute estate as. heir. Rev. Stat. 1845, chap. 34, secs. 10, 11, 15; McMurphy v. Boyles, 49 Ill. 114; Skinner v. Newberry, 51 id. 204; Sturgis v. Ewing, 18 id. 180; Lessley v. Lessley, 44 id. 528; Rev. Stat. 1874, chap. 41, secs. 10, 11, 12.
    In this case the widow elected to take dower as widow,— not an absolute estate as heir.
    The legislature does not possess power to pass unequal and partial laws. It can not pass a law giving all persons the-right to dispose of property by will, and by a proviso deny such right to certain persons. Cooley’s Const. Lim. 393 Lewis v. Nibb, 3 Greenlf. 336; Durkee v. Jaynesville, 28 Wis. 464; Bull v. Conroe, 13 id. 238 ; State Bank v. Cooper, 2 Yerg. 599; Budd v. State, 3 Humph. 483.
    Mr. A. J. Hopkins, Mr. N. J. Aldrich, and Mr. F. H.. Thatcher, for the appellees,
    referred to Rev. Stat. 1845, chap. 34, secs. 10, 11, 15; Rev. Stat. 1874, chap. 3, sec. 78; 2 Gross’ Stat. chap. 109, sec. 2.
   Mr. Chief Justice Scott

delivered the opinion of the Court r

The bill in this case was brought by Owen Evans, against. Mary Price and others, and is for the partition of certain lands-of which David J. Evans died seized, and for other relief. Under the will of David J. Evans, which was duly admitted to-probate, complainant claims one-half of the lands involved,, and concedes the other half belongs to Mary Price, the widow of the testator, or to her grantees. After the payment of his debts, the testator, by his will, gave the residue of his property, both real and personal, to his wife, during the term of her natural life, and after her death, to complainant, on condition he would live on his farm in the town of Big Rock. On the same day the will was admitted to probate, the widow filed. her written renunciation of its provisions in her favor, and requested that it be made a matter of record, which was done. There is no controversy as to the other principal facts out of which the questions of law involved arise. It is conceded the testator was an “illegitimate person,” as that term is used in the statute; that his parents never intermarried; that he died leaving no child nor descendant or descendants of any child, and that his widow, now Mary Price, survived him.

On this state of facts, since the widow renounced the provisions of the will in her favor, the sole question is, what interest does the surviving widow take in the estate of her late husband ? Complainant insists, that under the will he is entitled to one-half of the residue of the property, after the payment of the debts of the estate, while defendant insists, that under the statute then in force the widow took the entire residue of the property, both real and personal, as her absolute estate. .

As the questions raised involve a construction of the statute then in force, it becomes necessary to note that the testator died on the 20th day of March, 1874, that his will was admitted to probate on the 20th day of April, 1874, and that the renunciation by the widow, of the provisions of the will in her favor, was made on the same day. Section 78 of the act of March, 1872, in relation to the administration of estates, was then in force. It provides, “the widow or surviving husband of a testate may, at any time within one year from the time at which the will of her or his testate husband or wife was admitted to probate, renounce, in writing, all her or his claim to the legacy and bequest made for her or him in such will, in which case she or he shall be allowed the same property as if the husband or wife had died intestate.” . This section of the statute was repealed by the 47th section of the Dower act, in force July 1, 1874, but with the proviso, the repealing section should “not be so construed as to affect any right existing or action pending at the time this act shall take effect.”’ It would therefore seem, this section of the statute must be considered in determining the rights of the parties.

Regarding this section as a valid law, it may be inquired, what share of the estate of a deceased “illegitimate intestate” does his surviving widow take, where the deceased leaves no child? That question is definitely settled by the third division of section 2 of the act of 1872, in relation to “Descents, ” which declares : “In case of the death of an illegitimate intestate, leaving no child nor the descendants of a child, the whole estate, personal and real, shall descend to and absolutely vest in the widow or surviving husband. ” Were these the only provisions of the statute affecting the interests of the parties involved, and construing them together, the case would present no difficulty whatever. The testator was an illegitimate person, and died leaving no child nor descendants of a child, and his widow renounced the benefit of the will in her behalf. That being so, the 78th section of the statute is imperative, “she shall be allowed the same property ” as if her husband had died intestate. What would that be ? In case of illegitimate intestates the statute provides, the “whole estate, personal and real, shall descend to and absolutely vest in the widow. ” Of course, under these sections of the statute, admitting their controlling force, the surviving widow in this case would take the whole estate, both personal and real, as in the case of the intestacy of an illegitimate person dying childless, and the provisions of the statute in this respect are so plain as to admit of no construction.

The principal argument, however, is made on the other branches of the case. It is said the wife of a testator may renounce the will and claim dower, or, if the husband was childless, she having renounced the will and claimed dower, as widow, she might further renounce, and claim an absolute estate as heir. This proposition, so far as it can be pertinent to the present discussion, rests on the assumption, the widow of the testator, in «this case, should have complied with" sections 10, 11 and 15 of the Dower act of 1845. That was not necessary when her renunciation was made. It is true, neither of these sections was repealed by the act of 1872, by any specific reference to them. It will be recollected the renunciation was made on the 20th day of April, 1874. Section 78 of the act of 1872, in relation to the administration of estates, was then in force. It is essentially different from the sections of the Dower act of 1845, cited by counsel. Section 10 of that act declares, any devise of land, or any interest therein, will bar the widow’s dower in land, or her share of the personal estate of her husband, unless otherwise expressed in the will; but she was given an election whether to renounce the benefit of such devise or bequest, and take dower in the lands and her share of the personal estate. Section 11 of the same act does little more than give the form of the renunciation, and declares when it must be made, and the effect thereof when made,—that is, that the widow, on renouncing the will, shall be entitled to dower in the lands, and to her share in the personal estate of her husband. Section 15 of the same act has always, since the decision in Sturgis v. Eiuing, 18 111. 182, been held to be applicable to testate estates. It declares, the widow, on making an election, when the husband dies leaving no children nor descendants of any children, may take in lieu of dower, absolutely and in her own right, one-half of all the real estate of her husband. But section 78 of the act of 1872, as has been seen, gives the widow, on simply renouncing, in writing, the will, at any time within one year from the date of the probate thereof, the same property as if her husband had died intestate. That, in case of illegitimate persons, would be the whole estate, personal and real. Section 78 of the act of 1872 was a later expression of the legislative will on this subject, and must control, so long as it remained in force, and since, as to all rights saved by the repealing clause of the act of 1874. Hence the sections cited from the Dower act of 1845 can have no application.

Another objection pressed on the attention of the court is, that by the written renunciation in the case she elected to take dower as widow, and not an absolute estate as heir. The form used in making the renunciation was no doubt an old.one, used under the former statutes, and was not prepared with reference to the recent statute. However that may be, it is plain, the widow plainly and clearly renounced all the provisions of the will of her husband, and the law then fixed what estate she would take. It matters little what she claimed or did not claim. Her rights were fixed by statute, on renouncing the will, and they could not be affected by claiming, or omitting to claim, any specific estate. Such rights were determined by section 78 of the act of 1872, and not by sections 9 and 10 of the Dower act of 1845.

But an objection broader in its scope is, that if section 78 of the act of 1872 is to control, instead of section 15 of the Dower act of 1845, the effect would be to repeal section 1 of “Wills,” which provides that all persons of certain ages and of sound mind, under certain forms, shall have power to devise their estate, at least so far as illegitimates are concerned, who may die without lineal descendants, because when such persons die intestate the widow takes the whole estate,—that is, it would render it impossible for an illegitimate person who is married, and has no children nor descendants of any children, to dispose of any of his property, either personal or real, by will, as other persons may do. That, it is said, would be “unequal and partial legislation, ” and ought not to be permitted. Two answers may be made to the position taken: First, it is not more unequal than many other provisions of the statute in regard to wills or the descent of property of deceased persons, the validity of which are not now, and never were, called in question. No married man or woman who has no children nor descendants of children, can dispose of by will, notwithstanding section 1 of the Statute of Wills, of more than one-half of his or her estate, both personal and real, unless his widow or her husband may acquiesce in the provisions of his or her will that he or she has made for her ■or him. Either may renounce the will, and take, under the statute, one-half of the whole estate, both real and personal, in her or his own absolute right. On the other hand, celibates may dispose of their entire estates by will. Second, the privilege of a person to dispose of her or his estate by will is not a natural right. It depends for its existence on positive law. It is wholly within the. control of the law-making power. It may be given, or it may be taken away. 'When the legislature has declared the law in respect to such matters, the ■court can do no more than cause such laws to be administered, whether they affect all persons exactly alike or not. It has been seen that the laws of descent are variant as respects certain classes of persons under certain circumstances, but such laws will not be regarded as inoperative for that reason. It may be said, as the fact is, the statute now being considered, as do all other statutory laws of descent, operates precisely "the same in respect to all persons coming within the same •description under like circumstances, and it is not accurate, "therefore, to say, it is “unequal and partial legislation, ” and for that reason without the domain of legitimate legislation.

It is also said, in argument, that section 78 only requires the widow to renounce all claim to the legacies and bequests, and that she might therefore claim all the devises, and, having renounced all legacies and bequests, claim all benefits given by that section. This is not a correct reading of this section of the statute. A legacy, of course, is a gift of personal estate by will. The word “devise” is usually employed to denote a gift, by will, of real estate, or an interest therein. But the word “bequest” may mean any gift by will, whether it consists of personal or real property. In section 10 of the Dower act of 1845, the words devise and bequest seem to have been used as convertible terms, and as meaning a gift, by will, of land, or an interest therein.

The circuit court construed the statute correctly, and its decree must be affirmed.

Decree affirmed.

Scholfield, Mulkey and Shore, JJ., dissenting. See page 663, post.


author: Mr. Justice Craig

text:
    Charlotte A. Whitford v. Johanna Drexel et al.

      Filed at Ottawa November 13, 1886.

    1. Limitation—extent of one’s possession of land—as affecting the bar of the statute. Possession of a part of an entire tract of land, under color of title for the whole, will be possession of all of the tract not in the adverse possession of another.
    2. Where a person enters into the actual possession of a part of an entire tract, which was vacant and unoccupied at the time, under a conveyance for the whole, his possession will be regarded as embracing all the land called, for in his deed. But possession of a part, only, of an entire tract, even under a deed for the whole, will not extend to and embrace another portion in the. adverse possession of another.
    3. So in an action of ejectment to recover a strip off a lot of ground, the plaintiff showed color of title for the whole lot, and also proved the payment of all taxes thereon for seven successive years, under such color of title, but failed to show any possession of such strip at any time: Held, that the evidence did not authorize a recovery, and that the court properly instructed the jury to find for the defendant.
    4. Ejectment—plaintiff must recover on the strength of his own title. Where the plaintiff in ejectment fails to prove title to the premises, or show a right of possession, and is therefore defeated, he can not complain that he was not allowed to rebut the proof of the defendant’s title. The plaintiff must recover on the strength of his own title, and not on the weakness of that of his adversary.
    5. Same—recovery when plaintiff is in possession. A plaintiff in ejectment is not entitled to a judgment of recovery as to premises of which he had possession when suit was brought, and is in the possession at the trial.
    6. Practice—directing what the verdict shall be. Where the plaintiff in ejectment fails to establish a fact necessary to his right of recovery, the court may properly instruct the jury to find for the defendant.

      Appeal from the Circuit Court of Bock Island county; the Hon. Abthub A. Smith, Judge, presiding.
    Messrs. Johnson & Johnson, for the appellant:
    Under the pleadings, the plaintiff was not called upon to prove that the defendants were in possession of the premises, or that they claimed title or interest therein, at the time of bringing suit, or that plaintiff demanded possession, but she could have recovered any part she showed herself to be entitled to, either the whole or less than the whole. Rev. Stat. chap. 45, sec. 12; Rupert v. Mark, 15 Ill. 540.
    The court erred in taking the case from the jury, as the evidence showed a right of recovery as to all of the property except the narrow strip. Almond v. Bonnell, 76 Ill. 539.
    As to this strip, the plaintiff was, in contemplation of law, in possession of this when she was in possession of the rest of the lots, claiming the title to the whole. Davis v. Eastley, 13 Ill. 199 ; Winkler v. Meister, 40 id. 351; Austin v. Rust, 73 id. 493; Scott v. Delaney, 87 id. 148.
    Mr. J. T. Kenwobthy, for the appellees:
    The color of title, payment of taxes for seven successive years, and possession, must have concurred, and the seven years must be prior to the demise laid in the declaration. Wood v. Morton, 11 Ill. 547; Pitkin v. Yard, 13 id. 251; Holt v. Rees, 44 id. 30; Clark v. Lyon, 45 id. 388; Iberg v. Webb, 96 id. 415.
    Where possession is relied on for any legal purpose, in the absence of paper title, it must be an actual and not a constructive possession. City of Champaign v. McMurray, 76 Ill. 353.
    It is true that when a party enters into lands according to the description in his deed, his occupancy of a part, claiming the whole, is construed as a possession of the entire tract. But this can only apply when there is not an adverse posses-

      sion. Brooks v. Bruyn, 18 Ill. 539; Coleman v. Billings, 89 id. 183; Goewey v. Urig, 18 id. 238.
    The appellant, therefore, having" failed entirely to make out a part of her case essential to a recovery, there is no error in the court instructing the jury to find for the defendant. Smith v. Gillett, 50 Ill. 290; Crowley v. Crowley, 80 id. 469; Poleman v. Johnson, 84 id. 269; Frazier v. Howe, 106 id. 563; Abend v. Railroad Co. 111 id. 202; Ayers v. Chicago, id. 406; Alexander v. Cunningham, id. 511.
   Mr. Justice Craig

delivered the opinion of the Court •

This was an action of ejectment, brought by Charlotte A. "Whitford, in the circuit court of Rock Island county, against Johanna and Frank Drexel, to recover possession of lots 3 and 8, block 2, in the town of Cordova. The two lots described in plaintiff’s declaration, join lots 4 and 7 on the west, as appears from the following plat, put in evidence on the trial:

In the declaration the plaintiff claimed to recover all of lots 3 and 8, but the proof showed that she was in the possession of the whole of said lots, except a strip of land three or four feet wide, on the east side, which was occupied by the defendants, and inclosed with lots 4 and 7, which they owned. After the evidence was all in, the court instructed the jury to find for the defendants, and a verdict was rendered in accordance with the instruction, upon which the court rendered a judgment. In order to determine whether the instruction to the jury was correct or incorrect, it will be necessary to examine the evidence introduced on the trial.

The plaintiff did not undertake to establish a regular chain -of title from the government to herself, to the property, but xelied on color of title, possession, and payment of taxes for seven successive years, as required by section 6, chapter 83, -of the Revised Statutes of 1874, p. 467. For this purpose, she read in evidence a deed dated December 2, I860, made by Joseph Spencer and wife to herself, purporting to convey the property. She also proved payment of taxes for seven successive years after the execution of the deed, but she failed to establish seven successive years’ possession in connection with color of title and payment of taxes, which was necessary in order to render her color of title availing under the statute. Indeed, she never was in the possession of the strip of land in dispute, or any part thereof. The proof is clear and positive, that the strip of land was fenced in with lots 4 and 7, by a fence running north and south, as early as 1856, by the person who then owned lots 4 and 7. That fence has remained there ever since, and the strip of land has been in the possession of defendants and their grantors, in connection with lots 4 and 7, since that time.

It is said in the argument, that possession of a part of a tract of land under a deed for an entire tract, in law, is possession of such entire tract, and under this head it is argued, that as plaintiff proved possession of a part of lots 3 and 8 for seven successive years, under a deed for the whole, she was thus in possession of the whole of both lots. Where a tract of land is vacant, and a person enters into possession of a part of the tract, and makes improvements thereon, under a deed for the entire tract, the possession of the part will be regarded as possession of the whole tract, as described in the deed under which the entry is made and possession taken. But this doctrine has no application to a case like the one under consideration. Here, the strip of land in controversy, when plaintiff first went into possession of lots 3 and 8, was in the adverse possession of the defendants, and has so remained ever since, and the possession she acquired of the remaining portion of the lots, had no bearing whatever on the strip held adversely.

From what has been said, it is apparent that the evidence failed entirely to establish title in the plaintiff, and the charge of the court to the jury, to find for the defendants, was correct.

It is said plaintiff ought to have been permitted to recover, in any event, that part of lots 3 and 8 not embraced in the strip. The evidence shows that plaintiff had, when the suit was commenced, and still has, possession of that part of the lots, and how or why she should recover possession when she has possession, is not quite apparent.

It is claimed that the court erred in refusing plaintiff the right to rebut defendants’ proof of twenty years’ adverse possession. Whether the defendants had been in possession of the strip of land for twenty years, was immaterial. It was established beyond controversy, that plaintiff never was in possession of the strip of land, and hence had no title. This being so, whether the defendants had title was of no consequence, as plaintiff was bound to recover on the strength of her own title, and not on the weakness of that of her adversary. No ground is. disclosed by the record under which plaintiff could recover, and even if some slight error had been committed on the trial of the cause, it would be no ground to-reverse the judgment.

The judgment will be affirmed.

Judgment affirmed„


author: Mr. Justice Magruder

text:
    Cherrick Schoonmaker v. Philetus S. Doolittle.

      Filed at Ottawa November 13, 1886.

    1. Limitation—continued possession by a grantor who has conveyed to a co-purchaser more than his portion. A person purchased land, in his own name, for himself and another, each paying one-half of the purchase money. The two owners established a division line by a survey, and fencing with reference to it, and some four or five years after, the one holding the legal title conveyed to the other, intending to convey the half of the tract as shown by the survey, but in fact conveying a small strip more than such half. Such original purchaser occupied his half of the land according to such division line, under claim of ownership, for thirty-six years. ' It was held, that he became the owner of such strip of land under the Limitation law.
    2. Pleading!—declaration in ejectment. The demise of the plaintiff in ejectment should not be alleged as of a date prior to his having acquired the title. If his title has been acquired by twenty years’ adverse possession under claim of title, the demise should be laid at some time after the bar of the statute is complete, otherwise his evidence may be excluded for variance.
    3. It was averred in a declaration in ejectment, that on June 1, 1860, the plaintiff was possessed of the land in dispute, and that, “the said plaintiff being so possessed,” the defendant, on May 28, 1885, entered and ejected him, etc.: Held, that such allegation was equivalent to an "averment that the plaintiff was in possession on May 28, 1885.
    4. Ejectment—demand of possession. Where the defendant in ejectment has not entered into possession under the plaintiff or by his consent, so that there is no relation of landlord and tenant, nor any privity between them, but each claims adversely to the other, no demand of possession or notice to quit is necessary before action brought.
    5. Practice— time to object—as to variance between allegations and proofs. An objection as to a variance between the declaration and the proof, in an action of ejectment, must be interposed when the evidence is offered, or at least by motion to exclude after the evidence is closed, so that it may be obviated by amendment. Such an objection comes too late on appeal or writ of error.
    Appeal from the Circuit Court of Winnebago county; the Hon. William Brown, Judge, presiding.

      MivChables A. Wobks, for the appellant:
    Under his declaration, appellee was not entitled to recover upon the evidence introduced by himself. It was incumbent, on him to prove that he had the legal estate in the premises at the time of the demise laid in his declaration. Rev Stat. 1874, chap. 45, sec. 11; Wood v. Morton, 11 Ill. 547 ; 2 Greenleaf on Evidence, sec. 304.
    To acquire title by adverse possession, requires a possession of at least twenty years’ duration. Appellee did not have such title in 1860.
    If it were true that a division line was established and could be located, while it might estop either party from ejecting the other, it could not pass title. Grim v. Murphy, 110 Ill. 271.
    Mr. Bobebt Bew, and Mr. N. G. Wabneb, for the appellee:
    All the proof shows, appellee and David Goodhue practically located a boundary line in 1849, and fenced, and thereafter maintained the fence, by themselves or grantees, for thirty-six years, in such manner as to embrace every element of title by adverse possession. Turner v. Chamberlain, 15 Ill. 273; Bolden v. Sherman, 101 id. 486; Flaherty v. McCormick, 113 id. 544.
    There is no proof countervailing the testimony of appellee, Martin McCoy, W. D. Armstrong, and the survey bill, dated May 23, 1849, to the effect appellee and Goodhue expressly agreed, in 1849, to the line then run by Armstrong as the true and permanent boundary line between them, nor to the testimony of Myron H. Doolittle and Alonzo Doolittle, that such agreement was followed by actual possession according to such agreed line; and this is sufficient to conclude both parties and their grantees, or privies in estate. Crowell v. Maughs, 2 Gilm. 423; Mauer v. Gottmanhausen, 65 Ill. 503 ; Cutler v. Callison, 72 id. 113; McNamara v. Seaton, 82 id. 498; Hubbard v. Stearns, 86 id. 37.

      The proof of acquiescence, independent of any question of practical location, hy express parol agreement, in 1849, is overwhelming and undisputed, and establishes the boundary line claimed by appellee, by estoppel, which is as conclusive upon appellant as upon appellee. Hubbard v. Stearns, 86 Ill. 38; Reed v. Farr, 35 N. Y. 113; Vosburgh v. Teator, 32 N. Y. App. 567; Cutler v. Cullison, 72 Ill. 115; Inhabitants, etc. v. Benson, 31 Me. 385; Stuyvesant v. Thompkins, 9 Johns. 63 ; Herman on Estoppel, p. 1268, secs. 1131, 1139.
    No demand of possession was necessary, because no privity existed between appellant and appellee.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is an action of ejectment, begun on July 27,1885, by appellee against appellant in the circuit court of Winnebago county, to recover a strip of land, 36 links wide and 32^°^. chains long, near the middle of the south-west fractional quarter of section 18, township 45, range 2, in the town of Harlem, in that county. The ease was tried before a jury in the court below, and verdict was returned, and judgment rendered in favor of appellee. Appellant appeals to this court.

In 1849, appellee and one David Goodhue, whose farms adjoined, agreed to buy the quarter section of land, above described. It was then owned by an estate of which Martin McCoy was administrator, and was duly sold, at public auction, by the administrator, and bid in by appellee for himself and Goodhue. Each was to pay one-half of the purchase money, and each to have one-half of the fractional quarter section, though the title to the whole of it seems to have been taken in the name of appellee. A surveyor, by the name of Armstrong, was at once employed to survey the land. He ran a line through the tract, running east and west, and dividing it into two parts, Goodhue taking the north part, and appellee the south part. The division line, as established by the surveyor, was agreed to by appellee and Goodhue, and they built a division fence upon that line, and at once went into possession, Goodhue of the portion, north of the fence, and appellee of the portion, south of the fence. The south portion, so taken by appellee, included the whole of the strip, for which this suit is brought, the north line of the strip being the division line established by the surveyor, and upon which the division fence was built.

On January 29,1854, appellee executed a deed to Goodhue, who had by that time paid up his half of the purchase money, intending thereby to convey to him the north portion of the tract, which was assigned to him in 1849. It was supposed at the time, that this deed only conveyed such part of the quarter section, as lay north of the division fence, established in 1849. Goodhue and his grantees have been in possession of the land, north of the division fence, ever since 1849. Appellee was in the open, notorious and uninterrupted possession of the land, south of the division fence, including the strip, now in controversy, from 1849 down to the spring of 1885, a period of thirty-six years,

In the spring of 1885, appellant purchased the Goodhue tract from one Odgers, who then owned it, and discovered, that the description of the land in his deed from Odgers, instead of covering only the part of the tract, north of the original division line, did, as matter of fact, embrace the strip, now in controversy, which lay south of that line. Examination disclosed the fact, that the original deed from appellee to Goodhue, and the deeds from Goodhue and his successive grantees, all contain the same description, as that which is shown in the deed made directly to appellant. Appellant thereupon took possession of all or a portion of the strip, now in dispute.

The proof clearly shows, that, when this suit was commenced, appellee had become the owner of this strip, by reason of his adverse possession thereof, “hostile to all the world” and under a bona fide claim of ownership, for a period of more than twenty years. Hence, the judgment in his favor should stand, unless the errors, assigned by appellant, are sufficient to reverse it.

It is objected, that, according to the evidence in the record, appellee did not acquire his title, until after the date of the demise, laid in his declaration. The declaration avers, that “plaintiff, on the 1st day of June, 1860, was possessed of a certain close, ” etc. The proof shows, that the term of twenty years, during which the plaintiff held adverse possession, did not expire until 1869 or 1870, and, therefore, that he did not acquire the legal estate, until some nine or ten years after-June 1, 1860. There is great force in this objection, and it is difficult to understand, why the pleader did not lay the time of the demise, as of some date, subsequent to the lapse of the twenty years.

The 11th section of chapter 45 of the Revised Statutes provides, that “it shall be sufficient for the plaintiff to aver, in his declaration, that (on some day therein to be specified, and which shall be after his title accrued,) he was possessed of the premises in question,” etc. This same provision was contained in the 7th section of chapter 36 of the Revised Statutes of 1845, and was construed by this court in Wood v. Morton, 11 Ill. 547, which case was referred to, with approval, in Pitkin v. Yaw, 13 Ill. 251, and Holt v. Rees, 44 id. 30. In Wood v. Morton, the proof showed, that the plaintiff acquired his title on June 21, 1844, while the declaration averred, that he was possessed of the premises, and also, that “he was ejected by the defendant,” on June 1, 1844. In Holt v. Rees, the proof showed, that the title was acquired on August 22, 1865, while the declaration laid the date of the demise and also the date of the ejection, as being on May 3, 1865. In Pitkin v. Yaw, the deed, introduced to show title, was dated January 4, 1851, and the declaration alleged title on June 1, 1850, but the facts, as recited, do not disclose, on what date the declaration avers the ouster to have taken place.

The cases in 11 and 44 111. are distinguishable from the case at bar, in that, in those cases, the title, entry and ouster are all laid in the declaration, as of an earlier date, than the date, when the testimony showed the title to have been acquired. In the case at bar, the declaration alleges the ouster to have taken place on May 28, 1885. It avers, that, on that day, which was long subsequent to the acquisition of the title, “defendant * * * entered into the said premises and ejected the said plaintiff therefrom.” Where the plaintiff is-alleged to have been in possession at. one date, and to have been ejected therefrom at a later date, it is a reasonable presumption, that he continued in possession until the date of the ouster. The declaration, in the present case, alleges, that plaintiff on June 1, 1860, was possessed of the strip, and that “the said plaintiff being so possessed, ” the said defendant, on May 28, 1885, entered and ejected him. We regard this allegation as equivalent to an averment, that plaintiff was in possession on May 28, 1885. He could not have been, ousted, unless, at the time of ouster, he was in possession.

In the cases of Wood v. Morton and Holt v. Rees, supra, it does not appear, that the objection, here under consideration, was not made before the trial court. In Pitkin v. Yaw, supra, it was made upon the trial below, and the deed, showing the-title, was excluded, on the ground, that it bore a later date than the time of the demise, as laid in the declaration. The objection points out a variance between the proofs and declaration. The defendant should have objected to the evidence at the time, or, at any rate, after the evidence was all in, should either have entered a motion to exclude it from the jury, or have asked the court to instruct the jury to find for the defendant. But nothing of this kind was done. If this-question had been raised in the trial court in either of the ways here suggested, it would have afforded the plaintiff an opportunity of amending his declaration, so as to correspond with the facts proved; but, instead of this, the defendant remains silent, raises no objection to the relevancy of the evidence, goes before the jury on the proofs as submitted, speculating on the chances of a verdict in his favor on the merits, and, being unsuccessful in this, removes the case to a court of review, where, for the first time, this specific objection is raised. Even in the motion for a new trial we do not find it. To permit the defendant, after all this, to finally prevail here, on this defence, would be highly unjust to appellee. City of Mattoon v. Fallin, 113 Ill. 249.

It is again objected, that appellant took possession of the strip by the permission and with the consent of appellee, and, therefore, that appellee should have been required to prove a demand for possession, or a notice to quit, before bringing his ejectment. The refusal of the trial court to give aii instruction, asked by appellant, embodying the objection, here stated, is assigned for error. The proof, however, does not show, that appellee consented to an entry by appellant upon the strip in question. When appellee was informed of the mistake in the description, he consented to have a new survey made, and took part with appellant in making such survey, with a view of ascertaining whether the description in the deed did really cover the strip in controversy. But, while they were measuring the land, he told appellant, with considerable emphasis, not to move the fence southward, so as to enclose the strip. There was no relation of landlord and tenant, nor any privity of any kind between appellant and appellee, in relation to these premises. They were claiming under independent, hostile titles. Appellee claimed to be owner by virtue of twenty years’ adverse possession. Appellant claimed to be owner by virtue of a series of conveyances from appellee down to himself. The rule, requiring notice to quit, or demand of possession, has no application, where parties occupy such an attitude towards each other, as is here stated. Herrell v. Sizeland, 81 Ill. 457.

The instructions, given for the defendant below, presented to the jury fairly and favorably to his view of the controversy, the question, whether a new line of division was established by agreement between the parties in the spring of 1885. The jury found against the existence of such an agreement.

The instructions, which were given for plaintiff below, may be inaítiñcially drawn, but contain no error, for which the judgment should be reversed. The verdict does justice between the parties. Armstrong, who made the survey of 1885, •as well as that of 1849, says of the line, run in 1849: “It "was right; it divides the land into two equal parts according "to government survey. ” He says of the line, run in "1885: ■“This last line does not divide the land into two equal parts. It gives about thirty-six links more to the north part than to the south part. His evidence is uncontradicted.

The judgment of the circuit court is affirmed.

Judgment affirmed.


author: Mr. Justice Sheldon

text:
    John J. Clause v. The Bullock Printing Press Company.

      Filed at Ottawa November 13, 1886.

    1. Pleading and evidence—when there may be a recovery on the common counts—and when the plaintiff must declare specially. Where a person has been employed to make and construct certain machinery for a given price, one-half to be paid when shipped by the maker, and the balance when received and applied to the use intended, and it working satisfactorily, and before the work is completed the manufacturer is notified by the other party that he will not receive the same, the former can not recover for the machinery under the common counts. He can only recover damages for a breach of the contract, and must declare specially.
    2. Same—set-off under the common counts—what recoverable. So damages growing out of a breach of a contract to accept and pay for certain work when completed, can not be set off under a plea containing only the consolidated common counts.
    3. Set-off—unliquidated damages. Unliquidated damages arising out of a contract unconnected with the subject matter of the plaintiff’s suit, are not the subject of set-off in that suit.
    4. Pleading and practice—allowing plea of set-off after issues are made up. After a cause has been brought to issue, and has been continued, when called for trial, on the defendant’s application, and when it has again been reached for trial, it having been pending over a year, this court is not prepared to say it is error to refuse leave to file a plea of set-off.
    5. Promissory note—construed, as to credits to he allowed. A clause in a promissory note, to the effect that amounts becoming due to the maker on account with the real payee, should be indorsed as payments on the note as they become due, does not contemplate that unliquidated damages, arising upon a breach of a contract, may be applied as a payment, but only money due the maker.
    6. Error will not always reverse—instruction that could have done no harm. Where the jury fail to award any damages against a defendant for an alleged breach of contract, this court will not inquire whether there was error in the instructions given in behalf of the plaintiff, in respect to the damages claimed, as, whatever they may have been, they could not have done the defendant any harm.
    Appeal from the Appellate Court for the First District;—• heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. Frank J. Smith & Helmer, for the appellant:
    The court improperly refused leave to file the plea of set-off. It being the object of courts to effectuate that which is just and right, even a discretion ought not to be so exercised as to defeat justice, and prevent the proof of a meritorious defence. Griswold v. Shaw, 79 Ill. 449; McCarthy v. New, 91 id. 127; Scott v. Connell, Breese, 25.
    That is payment which by the parties shall be accepted as such. Hoffman v. Walker, 26 Gratt. 316; Insurance Co. v. Mason, 5 Bradw. 141; Mines v. Moore, 41 Ill. 273; Wilson v. King, 83 id. 237.

      Messrs. Follansbee & O’Connor, for the appellee:
    The court properly exercised its discretion in refusing to allow a new defence at the time leave was asked to file the plea.
    The folder being unfinished at the time the plaintiff gave the notice of March 26, 1883, the defendant could only recover damages for a breach of the contract. Brand v. Henderson, 107 Ill. 141; Hosmer v. Wilson, 7 Mich. 294; Danforth v. Walker, 37 Vt. 239.
    Unliquidated damages arising out of a contract unconnected with the subject matter of the plaintiff’s suit, are not the subject of set-off. Hawks v. Lands, 3 Gilm. 227; Sargeant v. Kellogg, 5 id. 273; DeForrest v. Oder, 42 Ill. 500; Robison v. Hibbs, 48 id. 408.
    To be the subject of recoupment, the defendant’s claim must arise out of the very cause of action sued on. Hubbard v. Rogers, 64 Ill. 434; Evans v. Hughey, 76 id. 115; Morehouse v. Baker, 48 Mich. 335.
   Mr. Justice Sheldon

delivered the opinion of the Court:

The appeal here is taken from a judgment of the Appellate Court for the First District, affirming a judgment of the Superior Court of Cook county, rendered, where, 'on the trial, three separate causes then pending in the court were consolidated, and tried as one cause. The first suit was one in assumpsit, brought by the Bullock Printing Press Company, against John J. Clause, in said Superior Court, on July 2, 1884, claiming damages for the non-performance of a contract (or non-fulfillment of orders accepted under a contract) between the parties, dated May 19, 1882. This contract related to the construction of folding machines by the defendant, to be used in connection with printing presses to be made by the plaintiff. The declaration consisted of special and the common counts. The first three special counts charge that the plaintiff ordered, and the defendant agreed to build, a folding machine for the “Boston Herald, ” under the contract of May 19, to be used in connection with a Bullock printing press, and that defendant did not construct the machine properly. The fourth, fifth and sixth special counts'charge that plaintiff ordered, and defendant agreed to build, under the same contract of May 19, a folding machine for the Philadelphia Press Company, and charging defendant with improper construction of the-machine. The seventh and eighth special counts set out an order for a cylinder for a folding machine for the “Boston Advertiser, ” and alleging a failure, on defendant’s part, in the construction of such cylinder.

On August 2, 1884, the plaintiff brought another suit in assumpsit, against the defendant, in said Superior Court, upon a note, as follows:

“$1000. Chicago, Dec. 15, 1882.
“Three months after date I promise to pay to the order of James G. Knapp, treasurer, $1000, with six per cent interest, value received. Amounts becoming due to me on account -with Bullock Printing Press Co., to be indorsed as they become due. Jno. J. Clause.”

On the back of the note were the following indorsements: “This note is given in lieu of another note for same amount, dated June 12, 1882.” “Reed, on this note, Dec. 20, 1882, the sum of three hundred and fifty-one dollars ($351.29.) Jas. G. Knapp, Treas’r.” “Pay to the order of the Bullock Printing Press Co.—Jas. G. Knapp, Treas’r.” The special count, after describing the note, avers: “That no amount or amounts have ever become due to said defendant on account with said plaintiff. ”

The third suit of the same plaintiff, against the same defendant, was commenced August 9, 1884, upon a note precisely like the one above shown, excepting that it fell due four months after date, instead of three, and there were the same indorsements on the back, except there was no indorsement of any payment on the last. The plea of the general issue, alone, was filed in each case.

Shortly after the causes were at issue, a stipulation for their consolidation was entered into. The plaintiff proceeded to take the evidence of non-resident witnesses in support of its claims, the evidence going almost entirely to support the item in the first suit for damages sustained by reason of the failure of the defendant to furnish such a folding machine for the “Boston Herald” as he had contracted to furnish. When the cause was reached for trial, on motion of the defendant, it was continued. Subsequently, testimony was taken, by deposition, by both parties, all having reference only to the amount of the damages claimed in the above named item. In November, 1885, the suits having been pending about a year and a quarter, the cause was again reached for trial, and was upon the trial call when an application was made by the defendant for leave to file a plea of set-off, which plea should consist of the consolidated common counts. The court refused such leave. The cause afterward coming on for trial, the plaintiff entered a nolle prosequi as to all of the counts in the declaration in the first cause, except those relating to the “Boston Herald” folding machine, on which abandoned counts plaintiff had taken no proof, and as to which no account sued on had ever been filed, whereupon defendant renewed his motion to file a plea of set-off, consisting, as before, of the consolidated common counts, which application the court again refused. The amount of the verdict rendered by the jury, and of the judgment, was $1935.48, the amount due upon the two notes sued upon.

The following reasons are urged why the judgment should be reversed: That the court erred in refusing leave to file the plea of set-off; in not admitting evidence, on the part of the defendant, of a counter-claim against the plaintiff, under the plea of the general issue; and in giving and refusing instructions.

We are not prepared to say that the court erred in refusing leave, at that stage of the cause, to file a plea of set-off. But conceding there to have been error in this, it was an error that worked no injury to the defendant. The leave asked was to file the “consolidated common counts.” It appears that it was a claim for damages which the defendant had sustained by reason of plaintiff’s failure to take the “Philadelphia Press” folder, which was sought to be availed of under the plea of set-off. The evidence shows that the plaintiff ordered a three-fold single folder for a new press, for the “Philadelphia Press,” on November 22, 1882, the price for which was fixed by the contract of May 19; that its construction was entered upon, but before it was completed the plaintiff wrote to the defendant, saying that he should decline to take it. To this letter the defendant replied: “As to the Philadelphia folder, I shall hold it subject to your order, when I have made a thorough test of it in my shop, demonstrating before good witnesses that it does all I claim for it.” By the terms of the contract of May 19, under which the folder was ordered, it was to be paid for, one-half in cash, when shipped from Chicago, and the balance when it was attached to the press for which it was built, and running satisfactorily. Under these circumstances, the defendant could only recover damages for breach of contract, and which recovery could not have been had under the consolidated common counts, but only under a special plea. Brand v. Henderson, 107 Ill. 141; Hosmer v. Wilson, 7 Mich. 294; Danforth v. Walker, 37 Vt. 239. Further, unliquidated damages arising out of a contract unconnected with the subject matter of the plaintiff’s suit, are not the subject of set-off. Hawks v. Lands, 3 Gilm. 227; Sargeant v. Kellogg, 5 id. 273; DeForrest v. Oder, 42 Ill. 500; Robison v. Hibbs, 48 id. 408. We do not see, then, what benefit it would have been to the defendant to have filed this proposed plea of set-off, as defendant could not have introduced his evidence under it.

What is complained of as the exclusion of evidence of a counter-claim, under the general issue, consists in not admitting evidence as to defendant’s claim in respect of this “Philadelphia Press” folder, in payment or reduction of the amount due upon the two notes sued on. The notes provide that amounts becoming due to defendant on account with Bullock Printing Press Company, to be indorsed as they become due. The trial court did not regard what defendant claimed in respect of the “Philadelphia Press” folder, as an amount due, but as unliquidated damages, and excluded the offered evidence in regard thereto. At the same time, the court ruled that it would receive evidence of any actual sums of money due, but that, under the pleadings, defendant could not go into proving up damages for the non-performance of any contract. We regard the court’s construction of this provision of the notes as correct,—that it did not contemplate that unliquidated damages arising upon breach of a contract might be applied as payment on the notes, but only sums of money due, and that as defendant was allowed to prove the latter, he has no just ground of complaint for this ruling of the court.

As respects the instructions complained of, they had reference solely to the question of damages which the plaintiff claimed to have sustained by the failure to furnish such a folder as defendant had agreed to furnish to the “Boston Herald.” Appellant’s counsel says: “The verdict of the jury was for the precise amount due on the face of the two notes,— $1935.48. The jury manifestly found against the appellee, on the claim for damages.” It becomes unnecessary, then, to consider these instructions, as, whatever they might have been, the finding of the jury, in respect of these damages, could not have been any more favorable to the defendant than it was.

The judgment will be affirmed.

Judgment affirmed.


text:
    Van H. Higgins v. Stephen White et al.

      Filed at Ottawa November 13, 1886.

    1. Chancery—new matter set up in answer—effect thereof when not put in issue in the pleadings. On creditors’ bill to set aside a deed from the debtor to his daughter-in-law as fraudulent, the defendants set up in defence, in the answer, a prior deed made by the same grantor several years before, and while he was not in debt, to his only son, as an advancement, the father retaining ample property at the time, under which prior deed possession was taken before any liens attached. The bill contained no charge as to such prior deed, nor was the bill amended so as to attack its validity: Held, that there was no error in dismissing the bill.
    2. Fraudulent conveyance ■—advancement by a parent to a child. The law is well settled that a parent who is not indebted may make a voluntary settlement of property on a child, when it is reasonable, considering the grantor’s circumstances in life; and such a settlement will not be fraudulent as to subsequent creditors of the parent.
    3. Notice—of unrecorded deed—by possession. Where a grantee enters into the actual possession of the land conveyed to him, and continues in such possession as owner, his possession is notice to all the world of his rights in the premises under his unrecorded deed.
    4. Evidence—acts and declarations of grantor after conveyance, as affecting grantee. A grantee in a deed will not be affected by the declarations of his grantor made after the execution and delivery of the deed, unless made in his presence, or unless, with full knowledge of such declarations, he acquiesces in them or sanctions them.
    Writ oe Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. T. A. Moran, Judge, presiding.
    Mr. George Burry, for the plaintiff in error:
    The deed of 1879, to Emma H., is invalid as against the plaintiff. The law allows no man, beyond the specific exemptions of the statute, by any form of contract, to secure the use of the property to himself, to the exclusion of his creditors.
      Robinson v. Stewart, 10 N. Y. 195; Goodrich v. Down, 6 Hill, 438; Jackson v. Parker, 9 Cow. 84; Annis v. Bonar, 86 Ill. 128.
    The deed of 1865, to John 0., is invalid as against the plaintiff, because it has never been recorded, and the plaintiff had no notice of it by possession. McMechan v. Griffing, 3 Pick. 154; Plumber v. Robertson, 6 S. & R. 184; Cook v. Travis, 20 N. Y. 400; Staples v. Fenton, 5 Hun, 172; Bell v. Twilight, 18 N. H. 159; Billington v. Welsh, 5 Binn. 129; Smith v. Yule, 31 Cal. 180; Clark v. Morris, 22 Ill. 434; Stone v. Cook, 79 id. 424.
    That deed was also invalid because of the secret trust reserved for the benefit of the grantor,—the agreement of the son to support and take care of the grantor. This constitutes a secret trust. Lukins v. Bird, 6 Wall. 79; Rice v. Cunningham, 116 Mass. 469; Adiorne v. Mason, 9 N. H. 31 ; Coolidge v. Melvin, 42 id. 510; Moore v. Wood, 100 Ill. 451.
    Such a reservation is conclusive evidence of fraud, and makes this conveyance void, not only against precedent, but also against subsequent, creditors, for it is a continuing fraud. Coolidge v. Melvin, 42 N. H. 510; Jones v. King, 86 Ill. 229; Moore v. Wood, 100 id. 452; Ledensparker v. Ledensparker, 52 Me. 490; Griffin v. Bank, 74 Ill. 259; Bump on Fraud. Con. (3d ed.) 325, 326; Hook v. Mowre, 17 Iowa, 195; Clark v. French, 23 Me. 227.
    That the benefit reserved was not the entire interest, makes no difference. The conveyance being void in part, is void altogether. Ledensparker v. Ledensparker, 52 Me. 490; Moore v. Wood, 100 Ill. 452.
    Mr. Allan C. Story, for the defendants in error:
    The possession of a" party under an unrecorded deed is notice of his rights and title. Coari v. Olsen, 91 Ill. 273, and cases there cited; Brainard v. Hudson, 103 id. 218.
    The settlement of property by a husband upon a wife, or by a parent upon a child, when the donor is solvent at-the time, and the settlement is a reasonable one, can not be attacked by subsequent creditors of the donor. Crawford v. Logan, 97 Ill. 396 ; Moritz v. Hoffman, 35 id. 553; Matthews v. Jordan, 88 id. 602; Tunison v. Chamblin, id. 378; Patterson v. McKinney, 97 id. 41; Mixell v. Lutz, 34 id. 382; Gridley v. Watson, 53 id. 186; Bridgeford v. Riddle, 55 id. 261; Pratt v. Myers, 56 id. 23; Emerson v. Bemis, 69 id. 527; Patrick v. Patrick, 77 id. 555.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by Van H. Higgins, in the circuit court of Cook county, against Stephen White, John C. White and Emma H. White, to set aside a deed executed December 3,1879, by Stephen to Emma H. White, purporting to convey a tract of land in Cook county, consisting of fifty-one acres, and to subject the land to sale on execution. It is alleged in the bill, that the deed was made to hinder, delay and defraud complainant, a judgment creditor of Stephen White; that an execution had been levied on the land, but the deed was an obstruction to the enforcement of its collection. The defendants put in an answer to the bill, and subsequently, by leave of the court, an amended answer. Eeplication was filed, and a hearing had on the pleadings and evidence, and on the hearing, a decree was rendered dismissing the bill. The decree was affirmed in the Appellate Court, and this writ of error was sued out by the complainant to reverse that judgment.

It appears from the evidence contained in the record, that Osgood recovered a judgment against the Protection Life Insurance Company, in July, 1877; that the company took an appeal to the Appellate Court, and filed a bond August 4, 1877, with Stephen White and one Simons as sureties. The judgment was afterwards affirmed, and Osgood assigned it to Higgins. In February, 1880, Osgood, for the use of Higgins, recovered a judgment on the appeal bond, against Stephen White, for the sum of $11,500. On April 9, following, an execution was issued on the judgment, and levied on the land in question. It also appears from the evidence, that John G. White is a son of Stephen White, and that Emma H. was the wife of John; that on the 3d day of December, 1879, Stephen White, by deed of that date, conveyed the premises described in the bill, to Emma White, which was recorded on December 15, following. The consideration of this deed was an agreement, on the part of Emma White, to support Stephen White during his natural life. It also appears, that, at the time of making this deed, Stephen White was insolvent.

In the answer first put in by the defendants, the defence mainly relied upon to defeat the complainant’s bill was, that the contract entered into by Emma White to support Stephen White during his natural life, was a sufficient consideration for the deed of the lands, made by Stephen White to her. Afterwards, the defendants obtained leave of the court to put in an amended answer, in which it was set up, in substance, that the premises were conveyed by Stephen White to John C. White on the 19th day of July, 1865; that at the time of making the conveyance, Stephen White was not indebted, and retained a large amount of property after the conveyance. The execution and delivery of the deed, at the time it bears date, were clearly established, by evidence of the most satisfactory character. The object of the father in making the conveyance, was to make a settlement of the property on the son, and the son, in consideration of the conveyance, executed an agreement to provide a home for Stephen White, and to support him during the remainder of his life. The deed was not recorded until after this controversy arose, but, as shown by the evidence, the deed was delivered when it was executed, in 1865, and, before the great fire of 1871, John C. White used the deed in court as evidence of his title to the property conveyed, in the trial of several causes he had brought against different persons in regard to different parts of the land. It also appears, that the existence of the deed was well known to those living in the neighborhood where the land is located.

It will be observed that complainant’s bill contained no charges respecting the deed of 1865, nor does the record show any amendment of the bill in this regard. It seems, from the record, that an amendment was prepared, but it was not filed, nor has it been incorporated in the record, so that the nature or character of the amendment may be seen and known. The deed of 1865, therefore, stands unchallenged, so far as is shown by the record, and as the deed was set up and relied upon as a defence, and no allegations were made in the bill against its validity, the decree dismissing the bill may be sustained upon this ground alone. But we prefer to place the decision on broader grounds. In 1865, when Stephen White executed the deed conveying the land to his son, he was free from debt. He retained in his possession, after this conveyance, $10,000 worth of property. Under such circumstances, if he saw proper to make a settlement of property on his son, who was an only child, he had a right to do so. The law is well settled, that a parent, who is not indebted, may make a settlement of property on a child, where the settlement is reasonable, considering the grantor’s circumstances. Higgins can not complain, unless he was a creditor at the time, which he was not, or unless the conveyance was made by White with a view of contracting future fraudulent indebtedness, which does not appear.

But it is insisted that the deed is invalid, as against complainant, because it was not recorded until after his judgment had become a lien. There might be force in this position if the complainant had acquired a lien without any notice of the rights of John G. White in the property; but such was not the fact. The object of recording a deed is to afford subsequent purchasers or incumbrancers notice. But the recording of a deed is not the only method under which such persons may receive notice of a conveyance. Where a person purchases a tract of land, and obtains a deed, and enters into the possession of the land, and continues in the possession as owner, such possession is notice to all the world of the grantee’s rights in the premises, under his unrecorded deed. As held in Coari v. Olsen, 91 Ill. 273, actual occupancy is equal to the record of a deed under which the occupant claims, and the purchaser is bound to inquire by what right or title he holds. Here, John C. White went into the possession of the land under his unrecorded deed. He claimed to own the property, exercised all the acts of ownership that an owner ordinarily does over his property. He brought suits, in his own name, against trespassers, sold and conveyed a part of the land,—indeed, he exercised all the acts of ownership that a prudent person ever does over property purchased or acquired, as owner. Under such circumstances, his possession was notice of his title to any person who subsequently undertook to obtain any claim in or against the property. The fact that Stephen White, the grantor, after the execution of the deed, may have claimed the land, or may have filed an affidavit, when he executed the bond, that he was the owner, • can have no bearing on the case, in the absence of all evidence that such facts were brought home to the knowledge of John 0. White. A grantee in a deed is not affected with the declarations of the grantor made after the execution and delivery of the deed, unless, with full knowledge of such declarations, he acquiesces in or sanctions them.

We have said nothing in regard to the deed of 1879, to Emma H. White, holding, as we do, that the deed of 1865 was valid, and passed the title to John 0. White. The validity or invalidity of the deed of 1879, as to complainant’s judgment, is a matter of no moment.

We think the decree of the circuit court was correct, and the judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    The First National Bank of Monmouth v. John C. Dunbar.

      Filed at Ottawa November 13, 1886.

    1. Banks and banking—special deposit in national bank—right and duty in respect to it. A national bank, even after its failure, and after its property has passed into the hands of the Federal authorities, has the right, and it is its duty, under section 5228 of the Revised Statutes of the United States, to deliver special deposits to those to whom they belong.
    2. Same—special deposit of bonds—whether demand necessary, in order to maintain trover. In case of bonds deposited with a national bank, which afterwards fails, a demand for their delivery, and refusal, before possession is taken of them by the Federal authorities, is necessary in order to maintain an action for their conversion; but if the bonds have been wrongfully transferred by the bank or its cashier, and put with the funds of the bank, and reported and treated by the bank as a part of its assets, this being a conversion, no demand and refusal will be necessary in order to maintain trover.
    3. Witness—competency—os against one suing as administrator—in respect to matters transpiring after an agency has ceased. In an action by an administrator against a bank, for the conversion of municipal bonds specially deposited, the bank directors, being parties in interest, are incompetent to testify, generally, as witnesses, in behalf of the bank; and the fact that the cashier of the bank may have bought the bonds for the intestate, as his agent, and testified in the case, will not authorize the directors to testify to matters happening after the termination of such agency.
    4. Agency—when it ceases—notice to agent as'notice to principal. Where a bank customer employs the cashier of the bank to purchase bonds for him, and after the purchase places them on special deposit with the bank, the cashier, after such purchase and deposit, ceases to be agent for the owner of the bonds; and if he afterwards transfers the bonds to the bank, to conceal his own embezzlement of funds, he will be acting as the agent for the bank, and notice to him of the ownership of the bonds will be notice to the bank.
    5. Practice—general objection to leading question. A general objection to a question to a witness will not reach the objection of its being leading, and a trial court has a large discretion as to the form of questions to be propounded to the witnessed.
    6. Instruction—when good as to particular count. Where an instruction is expressly limited to a particular count in the declaration, it will not be erroneous if substantially good as to that count.

      7. Error will not always reverse—as to admission of evidence. Where a plaintiff recovers alone on one of several counts in his declaration, errors in the admission of evidence relating solely to the other counts, will not be considered, as they could have worked no prejudice.
    8. Same—in the matter of instructions. Although an instruction may be too broad in laying down a proposition of law, yet when the facts are such as to bring about the same result, the error in the instruction will not call for a reversal, as it could not mislead the jury.
    Writ of Error to the Appellate Court for the Second District ;—heard in that court on writ of error to the Circuit Court of Warren county; the Hon. Arthur A. Smith, Judge, presiding.
    Messrs. Grier & Dryden, and Messrs. Kirkpatrick & Alexander, for the plaintiff in error:
    No demand was made for the bonds until after the bank examiner had taken possession,—when it was beyond the power of the bank to do anything. We submit, that if, while the bank was still doing business and had control of the property, it might, on demand and refusal, have been liable in trover for a conversion, it could not have been so liable after-possession had been taken by the authorities of the United States. The bank is not responsible either for the acts of the officers of the United States, or of Hubbard, beyond his. authority as cashier.
    Conversion is a positive, tortious act. Mere non-feasance or neglect of some legal duty will not suffice to support trover. Sturges v. Keith, 57 Ill. 451.
    Again, the evidence of Hartly, the town clerk, shows that the bonds in question were made payable to bearer. Trover wrould not lie, unless it be shown that at the time action was brought, plaintiff w'as the owner of the legal title to the property. 2 Parsons on Notes and Bills, 435; Collins v. Martin, 1 Bos. & P. 648; Garvin v. Wiswell, 83 Ill. 215; 1 Chitty’s Pleading, 148.
    It was error to allow leading questions to be put to Hubbard, as his bias and feelings were all with the plaintiff below. Hubbard having acted as the agent of Byers, and testified to the matters, the directors were competent to testify about the same transaction.
    ■ The bank, occupying the position of gratuitous bailee, was not bound, absolutely, to keep the bonds safely. Manhattan Co. v. Lydig, 4 Johns. 377; Smith v. Bank of Westfield, 99 Ill. 611; Hindman v. Borders, 89 id. 336; Sturges v. Keith, 57 id. 451.
    Messrs. Mathews & Peacock, and Messrs. McKenzie & Calkins, for the defendant in error:
    If the cashier of the bank put the bonds of Byers in the bank safe and with the bank funds, and reported them as assets of the bank, this was such an assumption of ownership by the bank as of itself amounted to a conversion, and no proof of a demand and refusal became necessary. Chitty’s Pleading, 155; Marsh v. Thompson, 78 Ill. 62; Hamilton v. Hunt, 14 id. 472.
    This was a special deposit. If the package was sealed, it was a breach of trust on the part of the bank for any officer of the bank to open it. Would the act of the cashier in taking the bonds from the package and mingling them with the funds of the bank, without the consent of Byers, change their character from that of a special deposit ? And if a special deposit, did the failure of the bank, and its passing into the hands of the United States authorities, change them to funds of the bank? We think not. And upon the failure of the bank, when the bank passed into the hands of the comptroller, one of the only two classes of business it could transact, under the law, was to deliver special deposits; and it had the right, and it was its duty, to deliver this special deposit on demand. U. S. Stat. 1878, sec. 5228.
    If the four bonds placed on deposit by Byers were stolen by Hubbard, and by him transferred to the bank, the bank could not, in any sense, be an innocent purchaser, since, being the agent of the bank in making all purchases, Hubbard had notice that the property was stolen, and notice to the agent is notice to the principal. Bryan v. Primm, Breese, 59; Rector v. Rector, 3 Gilm. 119; Singer Manf. Co. v. Holdfodt, 86 Ill. 460; Insurance Co. v. Wells, 89 id. 82; Insurance Co. v. Chipp, 93 id. 96; Parmly v. Buckley, 103 id. 115.
    The allowance of leading questions is a matter of discretion with the court, and can not be assigned for error. Green-leaf on Evidence, sec. 435; Greenup v. Stokes, 3 Gilm. 210; Parmlee v. Austin, 20 Ill. 36.
   Mr. Justice Scholfield

delivered the opinion of the Court :

We have had some difficulty in ascertaining the precise questions intended to be presented upon this record, to this court, since there has been no oral argument of the case, and counsel have simply re-filed, here, their printed arguments used in the Appellate Court, in which questions of law and fact are, to some extent, intermingled. We have, however, carefully gone over the entire record, and considered all of the questions, except those of fact, discussed in the Appellate Court, and we are unable to perceive any reason justifying a reversal of the judgment of that court.

The declaration contains three counts—two in case, for negligence, and the third for trover and conversion.

The facts which the evidence tends to establish, and which the judgment of the Appellate Court requires us to assume are established, are, briefly, that on the 17th day of March, 1882, Solomon Byers employed B. T. 0. Hubbard, defendant’s cashier, to purchase for him four Boseville township railroad aid bonds, of $1000 each; Hubbard purchased the bonds, and paid for them from the proceeds of a check drawn by Byers on the defendant; that on the same day, Byers made a special deposit of these bonds with the defendant; that Hubbard, having embezzled funds from the defendant while acting as cashiér, subsequently, and while still acting as defendant’s cashier, without the knowledge or consent of Byers, in order to conceal, in part, the fact or extent of his embezzlement, took these bonds from their place of special deposit in the bank, and put them with the assets, including other like bonds, of the defendant, and thereafter reported them to the defendant as so much of its assets; that the defendant afterwards became insolvent, and its assets, and also these bonds, were taken charge of by a bank examiner, on the 8th of April, 1884, and that the defendant has, since, been demanded, by Byers, to deliver the bonds to. him, and has refused.

The Appellate Court, in its opinion filed on affirming the judgment of the circuit court, held—

First—That the circuit court did not err in holding that the evidence sustained the verdict.

Second—That the circuit court did not err in holding that in order to sustain the action, a demand should have been made for the delivery of the bonds before the bank examiner took possession of them; that if the special deposit was wrongfully transferred by the bank or its cashier, and put with the funds of the bank, and reported and treated by the bank as a part of its assets, then this was a conversion, and no demand and refusal were necessary to sustain trover, but that if the bonds should be regarded as still a special deposit, notwithstanding such transfer, yet the bank, although it had failed, and its property was in the hands of the Federal authorities, had the right, and it was its duty, under section 5228 of the Revised Statutes of the United States, “to deliver-special deposits.”

Third—The court did not err in overruling the objections to the questions put by plaintiff to the witness B. T. 0. Hubbard, on his direct examination; that the objections were general, and it does not appear that they were placed upon the ground that the questions were leading, and, in any view, that the trial court, in the examination of witnesses, has a large discretion as to the form of the questions to he put, which, in this instance, does not appear to have been abused.

Fourth—Objections to questions propounded to Guy Stapp were properly sustained, because the answers called for were with reference to matters that were res inter alios acta, and would have been but secondary evidence.

Fifth—The directors of the bank were all stockholders in the bank, and therefore parties in interest in the suit. The plaintiff, on the trial, was suing as administrator. Although Hubbard, in purchasing the bonds, was agent for Byers, yet when they were deposited in the bank, and when he took them from the special deposit and placed them with the assets of the bank, he was acting as the cashier, and, therefore, the agent of the bank. It was not proposed to prove, by the directors, any transaction or conversation with Hubbard while acting as the agent of Byers in making the purchase, or any transaction or conversation between Hubbard and Byers, even, and hence the proposed testimony of the directors was not admissible, under the second exception of section 2 of the statute in relation to “Evidence and Depositions, ” and it was properly excluded.

Sixth—The questions put to Stapp and Young on cross-examination, to which objection is urged, related entirely to the issues under the first and second counts of the declaration; and since the jury found for the plaintiff only on the third count, it is impossible that the defendant can have been prejudiced by those questions.

Seventh—The first instruction given at the instance of the plaintiff, was limited to the count in trover,—the third count; and, as applied to that count, it was substantially correct.

" Eighth—Conceding that the third and fourth instructions of the plaintiff were too broad in stating that the legal owner of personal property is never divested of title by the wrongful act of any other person, yet, inasmuch as these bonds are payable to bearer and negotiable by delivery, and since, here, Hubbard was the cashier of the bank from the date of the purchase of the bonds to the day the bank was closed, notice to him was notice to the bank, that the bonds were held on special deposit, and it could not by any purchase, having such notice, obtain a title to the bonds, and the instructions could not, therefore, have misled the jury to the defendant’s prejudice.

Ninth—The plaintiff’s fifth instruction was not objectionable. It merely left the jury to pass upon the credibility of the witnesses.

Tenth—The salient points to establish the case for the plaintiff were, that a special deposit was made as claimed, and that, without the knowledge or consent of the depositor, the deposit was transferred to the general funds of the bank, and converted to its use. Those points were fully and explicitly covered by the instructions given, and must have been affirmatively found by the jury, and hence it is immaterial that, as to some matters of detail, the instructions were not technically correct. Those that were given at the instance of the defendant, presented the law of the case fully and fairly in its behalf.

These rulings, as we understand the record, cover every point made,—or, at least, substantially so. We believe each of them, so far as depending on the facts, to be sustained by the record, and, so far as enunciating a rule of law, to -be sustained by authority. Indeed, as legal rulings, we do not conceive there can be any question in regard to their accuracy. The only difficulty in, the ease is of fact,—namely, did Hubbard ever purchase any bonds with Byers’ money, and if so, are those bonds among the bonds in the possession of the bank when the examiner took possession, and afterwards, when the demand was made for their possession, by Byers. These questions being found in the affirmative,—and there was evidence tending to sustain that finding,—the liability of the bank must inevitably follow. Although, in the mere act of purchasing the bonds, Hubbard was the agent of Byers, when the purchase was complete that agency ended. As cashier, in receiving the bonds on special deposit, he was the agent of the bank; and it was as cashier and agent of the bank, that, to hide, in part, his embezzlement from the bank, he took the bonds from the special deposit and placed them among and reported them as assets of the bank. His knowledge was its knowledge, and it could not, in this way, acquire a legal title to the bonds without the knowledge or consent of Byers.

The judgment is affirmed.

Judgment affirmed.