text:
    Henry B. Kepley et al. v. The People of the State of Illinois.

      Filed at Mt. Vernon January 20, 1888.

    1. Eepbal of statutes—by implication. If two inconsistent acts be passed at different times, the last is to be obeyed, and if obedience can not be observed without derogating from the first, it is the first which must give way.
    2. Same—repeal by substitution of new section. Where an amendatory act declares that a certain section of the amended act “shall be so amended that it shall read as follows,” and then proceeds to make a distinct provision on the subject, that will operate to repeal the section of the amended act named, substituting therefor the amendatory section.
    3. Teems of oibouit oouets—time of changing them—constitutional limitations. Section 14, article 6, of the constitution of 1870, prohibits the legislature from changing the times of holding the circuit courts at any session of the legislature, except the one next preceding the general election for judges of those courts. As the first election of circuit judges was, in the same section, fixed for the first Monday in June, 1873, it follows that the legislature which sat in 1881 had no power to change the terms of the courts as fixed in 1879.
    4. The constitutional prohibition against changing the times fixed by the act of 1879 for holding the circuit courts in each county except Cook county, includes and involves a prohibition against repealing and then immediately re-enacting so much of that act as fixed the terms.
    5. Same—providing additional terms, at any time. The constitution expressly permits the General Assembly, at any session, to provide for additional terms of the circuit court in any county, and it may designate the character of business to be done at certain terms.
    6. Same—terms in Effingham county, as fixed by the acts of May and •June, 1885. There is a clear repugnance between the act of May 29, 1885, which fixes the terms of the circuit court in Effingham county on the fourth Monday of April and the third Monday of October in each year, and the act of June 30,1885, fixing the terms of that court on the third Mondays of March and October in each year, and being inconsistent, the latter act must prevail as the latest exposition of the legislative will.
    7. Recognizance—scire facias thereon—as to showing there was an indictment. In a proceeding by scire facias upon a recognizance given in open court for the appearance of the principal to answer to an indictment, it is not necessary to aver and prove that an indictment was ever found, to render the recognizors liable.
    8. Same—preliminary order requiring a recognizance—whether necessary. lío order of court requiring or directing a party to enter into a recognizance is necessary to the validity of the one in fact given. , The recognizance itself is evidence that the party was required to enter into it, and did so.
    9. Same—validity of indictment—estoppel to question it, on scire facias. Where a recognizance states that it is for the appearance of the principal to answer an indictment then pending against him for perjury, this will imply that the requisite preliminaries with reference to the indictment were had. Its recitals will estop the parties from raising any question, in a proceeding by scire facias, as to the validity of the indictment.
    10. Same—evidence to authorize judgment on forfeited recognizance. The recognizance of record, and judgment of forfeiture, are competent and sufficient evidence, under appropriate averments in the scire facias, to authorize judgment of execution according to the form, force and effect of the recognizance, and, in an action of debt, to authorize judgment for the amount of the recognizance.
    Wbit of Ebbob to the Circuit Court of Effingham, county; the Hon. W. C. Jones, Judge, presiding.

      Mr. Sylvesteb F. Gilmobe, and Mr. Henby B. Kepley, for the plaintiffs in error:
    There was no authority of law for holding a term of the cir•cuit court on the third Monday of March, 1886, therefore all proceedings had in this case at that time were null, and the judgment rendered herein is void.
    The time of holding terms of the circuit courts in this State, is fixed by the legislature. No judge can hold a term of the circuit court in any of the counties of the State except at the time prescribed by the legislature, or at special terms called in pursuance of the provisions of the statute. Telegraph Co. v. National Bank, 74 Ill. 217; Archer v. Ross, 2 Scam. 303; Goodsell v. Campbell, 1 id. 555.
    The legislature, by an act approved May 24, 1879, in force July 1, 1879, fixed the time of. holding the circuit courts in the second judicial circuit. (See Rev. Stat. chap. 37, par. 78 b, sec. 3.) By an act approved April 19, 1881, section 3 above was amended, having fixed the time of holding the circuit court of Effingham county on the fourth Monday of April and the third Monday of October of each year. (See Laws of 1881, p. 69.) It was by virtue of this act alone that any regular term of the circuit court could be held in any of the counties of the second judicial circuit. The act of May 24, 1879, was no longer in force. It was superseded by the amendatory act of April 19, 1881. People v. Supervisors, 67 N. Y. 109; 23 Am. Rep. 96.
    In the case above cited the court says: “The earlier statute had been merged by being incorporated and united with new provisions in the amendatory act substituted for it. * * * The substance and body of this act of 1867 were incorporated in and made a part of the act of 1873. * * * During the existence of the law of 1873, no part of the law of 1867 was in force,” etc.
    “When an amendatory act declares that a certain section of the amended act ‘shall be so amended that it shall read as follows,’ and then proceeds to make a distinct provision on the subject, that will operate to repeal the section of the amended act named, substituting therefor the amendatory act.” People ex rel. v. Young, 38 Ill. 490.
    In the light of these authorities, we invite the attention of the court to the subsequent legislation with reference to the fixing of the terms of the circuit courts of the second circuit.
    By an act approved June 26,1885, the legislature purported to fix the time of holding the circuit courts in the second circuit, by amending section 3 (and other sections) of the act of May 24, 1879. (See Session Laws, 1885, p. 68.) The legislature, on the 29th day of May, 1885, passed an act fixing the time of holding the courts in the second circuit by amending section 3 (and other sections) of the act of May 24, 1879, as amended by the act approved and in force April 19, 1881. (See Session Laws, 1885, p. 66.) Again, the legislature, by an act.approved June SO, 1885, amended section 3 of the act of May 24, 1879. See Session Laws, 1885, pp. 67, 68.
    The legislative intent, as evinced by these several acts, is not apparent, for, upon examination, it will be seen they greatly vary the time of holding the courts in the same counties in the circuit. If the legislative intent is to be ascertained by the act last approved, it will be observed that it is an amendment of section 3 of the act of May 24, 1879,—a law that had ceased to be operative more than four years prior thereto.
    The act of May 29,1885, which fixes the fourth Monday of April and the third Monday of October as the time for holding the circuit court in Effingham county, being the only enactment amendatory of the then existing law,—an amendment of the only law that was in force fixing the time of holding circuit courts in the second circuit,—became and still is the only law authorizing the holding of regular terms of the circuit courts in the second circuit.

      The acts of June 26 and June 30, 1885, purporting to fix the time of holding the circuit courts in the second circuit, not by an independent enactment, but by amending an act that had ceased to exist April 19,1881, were null and void, and a court held in conformity with the provisions of either would be without authority of law, and all proceedings of such tribunal would be void.
    The record of the recognizance read in evidence was improperly allowed, for the reason that there was no record of the proceedings of the court upon which it was based.
    There is no record of the return of the indictment into the circuit court, and of the order for recognizance. Book “H” does not purport to be the record of the criminal proceedings of the court. It is only a record of the recognizances taken in the court. The original, record showing the return of the indictment by the grand jury into open court, the order for a recognizance; and the fixing of the bail by the court, are all preliminary, and essential to the taking of any legal recognizance. Such evidence not being adduced, no judgment could properly be rendered upon scire facias.

    In bailable cases, the court, by an order, must fix the amount of bail upon the return of the indictment into court, or when the accused is brought before the court. Grim. Code, see. 414.
    Mr. B. G. Haep.ah, for the People:
    Under the condition of the recognizance and the law, as it has been long regarded, and, it is believed, uniformly settled, and is regarded the doctrine of this court, it is not necessary that it should be averred or proved that an indictment was ever found to render the principal and his recognizors liable on default by the principal. O’Brien v. People, 41 Ill. 459. See, also, Chumasero v. People, 18 Ill. 406; Shattuck v. People, 4 Scam. 477; Mooney v. People, 81 Ill. 134.
    The recognizance states it was for the appearance of the principal to answer an indictment then pending against him for perjury. This implies that the requisite preliminaries, with reference to the indictment, were had. Shattuck v. People, 4 Seam. 477.
    They are estopped by the recitals in the recognizance from raising any question as to the validity of the indictment.
    It is not necessary that there should be a formal order for recognizance and fixing the bail, when the recognizance is taken in open court. It needs no formal order to sustain it. It is evidence, of itself, that the court directed the recognizance to be taken for the amount mentioned in it. Chumasero v. People, 18 Ill. 405.
    It is immaterial in what book the clerk enters a recognizance of record, so it is a record of the circuit court and contains the proceedings had in taking recognizances. The fact that it is a recognizance record, in which nothing is entered of record except recognizances in criminal cases, does not destroy its validity as a record. Its introduction, without any specific objection, fully sustained the averment in the scire facias, “which said recognizance then and there became a matter of record in said circuit court in the county of Effingham, aforesaid.”
    The act approved June 30, 1885, amending section 3 of an act concerning circuit courts, and to fix the time for holding the same, approved May 24, 1879, in force July Í, 1879, is a valid enactment of the legislature, and repeals, by implication, all prior conflicting laws, being the last expression of the legislative will.
    If two inconsistent acts be passed at different times, the last is to be obeyed, and if obedience can not be observed without derogation from the first, it is the first that must give way. Potter’s Dwarris, 155; Dingman v. People, 51 Ill. 277; Devine v. Comrs. of Cook County, 84 id. 690; Geisen v. Heiderich, 104 id. 540.
    It is urged that because the titles of the two last acts fail to refer to section 3 of the act of 1879, as amended April 19, 1881, (see Session Laws of 1881, p. 69,) the laws are void, and the holding of a term of the circuit court in the county of Effingham the third Monday of March, 1886, as provided in each of said acts, was without authority of law.
    The amendment of April 19, 1881, could not change the time of holding courts in any of the counties in that circuit, for the reason it would have been in violation of section 14, article 6, of the constitution. “The General Assembly shall provide for the times of holding court in each county, which shall not be changed, except by the General Assembly next preceding the general election for judges of said courts; but additional terms may be provided for in any county. The election of judges of the circuit courts shall be held on the first Monday in June, in the year of our Lord, 1873, and every six years thereafter.” All the legislature, at that time, had the power to do, was to provide additional terms of court.
   Mr. Justice Magruder

delivered the opinion of the Court;

This was a proceeding by scire facias for the purpose of obtaining judgment against Joseph N. Drewry, Henry B. Kepley, Sylvester F. Gilmore and David L. Drewry upon a recognizance entered into by them and forfeited, Joseph N. Drewry being the principal and the others sureties for the appearance of Joseph N. Drewry in the circuit court of Effingham county to answer to an indictment for perjury returned against him by the grand jury of that county. Judgment was rendered against all the defendants. Kepley and Gilmore bring the case up.

At the October term, A. D. 1884, of the circuit court of Effingham county Joseph N. Drewry was indicted for perjury, and the indictment was, at that term, duly returned by the grand jury in open court. At the same term Drewry was held to bail to answer the indictment, and he and his sureties, on October 25, 1884, entered into a recognizance in open court for the appearance of Drewry before said court at the next term beginning on April 27,1885. Drury failed to appear at the April term, 1885; the recognizance was declared forfeited and a scire facias was ordered to issue and did issue on July 29, 1885, commanding Mm and Ms sureties to appear at the next term of the court, beginning on the third Monday of October, 1885. The three sureties were served, but the writ was returned “not found” as to Joseph N. Drewry.

On October 25,1885, Kepley and Gilmore appeared and filed a plea of nul tiel record, to which the People replied. At the October term, 1885, judgment by default was entered against all the defendants, but was set aside on October 26, 1885, on motion of the State’s attorney.

At the next term of the court beginning on the 'third Monday of March, 1886, leave was given to file an amended plea. On March 23, 1886, such amended plea was filed by Kepley and Gilmore. It was a plea to the jurisdiction of the court, setting up that there was no March term of the circuit court of Effingham county provided by law, and that no special term had been called to be held in March, 1886, and that the March term then attempted to be held was not authorized by law and the court had no authority to try and determme the cause. To this plea the People filed a demurrer. The court below sustained the demurrer, which ruling was excepted to. Jury was waived; the cause was submitted to the court for trial; evidence was heard; judgment was rendered against the defendants for the amount of the recognizance and the costs, and adjudging the order of forfeiture theretofore entered to be made absolute. Kepley and Gilmore excepted to the judgment and ruling of the circuit court, and bring the case before us by writ of error to that court.

The main question presented by the record is this: was the term of court held by the circuit court of Effingham county beginning on the third Monday of March, 1886, at which the judgment in tMs case was rendered, a legal term and such as was provided for and authorized by law ?

The legislature of this State passed “An act concerning circuit courts, and to fix the time for holding the same, in the several counties in the judicial circuits in the State of Illinois, exclusive of the county of Cook,” which was approved May 24, 1879, and in force July 1, 1879. The third section of this act fixed the times for holding the circuit courts in the several counties composing the second judicial circuit of the State, among which was Effingham county. By that section the circuit court of Effingham county was given two terms in each year, beginning respectively “on the fourth Monday of April and third Monday of October.” Bradwell’s Laws of Illinois of 1879, p. 83.

Two years later the legislature passed “An act to amend section three (3) of an act entitled ‘An act concerning circuit courts, and to fix the time for holding the same in the several counties in the judicial circuits in the State of Illinois, exclusive of the county of Cook,’ approved May 24,1879. Approved and in force April 19,1881.” (Bradwell’s Laws of 1881, p. 66.) This amendatory act of 1881 did not change the times of holding court in any of the counties, composing the second judicial circuit, but left the terms as they had been fixed by the act of 1879. Under the act of 1881, as under that of 1879, the terms of the circuit court of Effingham county began on the fourth Monday of April and the third Monday of October. The only respect, in which the act of 1881 amended the act of 1879, was in a matter relating to White county alone and will be mentioned hereafter.

At its session in 1885, the legislature passed three acts upon this subject. The first was approved May 29, 1885. It is entitled “An act to amend sections two (2), three (3) and ten (10) of an act entitled, etc., approved May 24, 1879, as amended by act approved and in force April 19, 1881.” This act of May 29, 1885, left the terms of the circuit court of Effingham county, as they had been in the acts of 1879 and 1881, to-wit: the fourth Monday of April and the third Monday of October. It will be noted that the act of May 29,1885, amends the amendatory act of 1881, or, in other words, it amends the act of May 24, 1879, as amended by act approved and in force April 19, 1881. Bradwell’s Laws of 1885, p. 60.

The second act passed in 1885 was approved June 26,1885. It is entitled “An act to amend sections 3, 5, 8, 11 and 14 of an act entitled, etc., approved May 24, 1879.” This act of June 26, 1885, fixes the terms of the circuit court in Effing-ham county as beginning “on the third Monday of Mcvrch and the third Monday of October.” It is to be noticed, that the-act of June 26, 1885, amends the act of 1879 and not the act. of 1881, or, in other words, it purports to amend the original act of May 24, 1879, and not the act of May 24, 1879, as amended by act approved and in force April 19, 1881. Brad-well’s Laws of 1885, p. 61.

The third act passed in 1885 was approved June 30, 1885. It is entitled “An act to amend section three (3) of an act entitled, etc., approved May 24, 1879; in force July 1, 1879.”' The act of June 30, 1885, like that of June 26, 1885, names-the third Monday of March and the third Monday of October, as the terms of the Effingham county circuit court, and it purports to amend section 3 of the original act of 1879, and not section 3 of the act of 1879 as amended in 1881. Bradwell’s Laws of 188""5, p. 62.

Defendant in error claims, that the act of June 30,1885, is-a valid enactment, and that, after its passage, the third Monday of March was the legal beginning of the spring term of the circuit court of Effingham county, while the plaintiffs in error contend, that the only valid enactment upon this subject passed by the legislature in 1885 was the act of May 29, 1885, and. that the fourth Monday of April was the legal day for the opening of the spring term of that court.

There is a clear repugnance between the act of May 29, 1885, and the act of June 30, 1885, so far as relates to the time of holding the spring term of the circuit court in Effing-ham county. If, therefore, the objection hereafter discussed is not well founded, the act of June 30, 1885, must be taken to be the law, as being the last expression of the legislative will. “If two inconsistent acts be passed at different times, the last is to be obeyed, and if obedience can not be observed without derogating from the first, it is the first which must give way.” Devine v. Commissioners of Cook County, 84 Ill. 590.

Hence it remains to be considered whether the objection urged by plaintiffs in error against the act of June 30, 1885, is a valid one. That objection is, that, on June 30,1885, the act of May 24, 1879, had been repealed or merged in the amendatory act of 1881, and that the act of June 30, 1885, was void as being an attempt to amend a law which, at the time of the attempted amendment, had no existence. Section 1 of the act of 1881 is as follows: “That section 3 of an act entitled, etc., approved May 24, 1879, and in force July 1, 1879, be amended to read as followsetc. In The People v. Young, 38 Ill. 490, it was held, that, when an amendatory act declares that a certain section of the amended act “shall be so amended that it shall read as followsand then proceeds to make a distinct provision on the subject, that will operate to repeal the section of the amended act named, substituting therefor the amendatory section. Upon the authority of this case, it is urged, that section 3 of the act of 1879 as amended by the act of 1881 became substituted for the original section 3 in the act of 1879; that after April 19, 1881, such original section 3 was no longer in force; that the act of June 30, 1885, could not, therefore, have the effect of amending a section that did not exist. It will be observed, that the objection applies as well to the act of June 26, 1885, as to that of June 30, 1885. These acts both indicate a legislative intent to make the term begin on the third Monday of March.

As a further step in the argument, it is claimed, that the act of May 29, 1885, fixing the term on the fourth Monday of April, was valid because it amended the act of 1879 as amended by the act of 1881; that on May 29, 1885, section 8 as amended in 1881 was in force, and hence the act of May 29, 1885, which amended it, amended an existing law.

There is much force in the position taken hy plaintiffs in error. The doctrine in The People v. Young, supra, is sustained by respectable authorities, and, among them, by the following cases: Blakemore v. Dolan, 50 Ind. 194; State v. Ingersoll, 17 Wis. 631; Goodno v. City of Oshkosh, 31 id. 127; The People v. Supervisors, 67 N. Y. 109. The principle announced in these cases is undoubtedly a sound and correct one. It has no application however, to the case now under consideration.

Section 14 of article 6 of the- constitution of 1870 is as follows: “The General Assembly shall provide for the times of holding court in each county, which shall not be changed, except by the General Assembly next preceding the general election for judges of said courts; but additional terms may be provided for in any county. The election of judges of the circuit courts shall be held on the first Monday in June, in the year of our Lord 1873, and every six years thereafter.”

Judges of the circuit court were elected on the first Monday of June, 1879. The legislature next preceding the general election of June, 1879, passed an act, approved, as above stated, on May 24,1879, which provided for the times of holding the circuit courts in the different counties, and fixed the' fourth Monday in April and the third Monday in October as such times in Effingham county.

The next general election for judges of the circuit court was on the first Monday in June, 1885. Under the constitution the only legislature, which had the power to change the terms of the courts, as fixed in 1879, was the legislature next preceding the election of 1885, that is to say, the General Assembly, which was in session in 1885 and passed the foregoing act of June 30, 1885. Manifestly no legislature, which sat in 1881, had any power to change the terms as fixed in 1879.

If the amendatory act of 1881 had attempted to make any such changes, it would have been void. But it did not attempt to do so. The only change it made in the original section 3 of the act of 1879 was to provide an additional term for White county and to designate the character of business to be done at certain terms in White county. The constitution expressly permits any session of the General Assembly to provide for additional terms in any county.

It may be said, that the act of 1881 re-enacted section 3 of the act of 1879, so far as the times of holding the courts were concerned. But we think, that the constitutional prohibition against changing the times fixed by the act of 1879 included and involved a prohibition against repealing and then immediately re-enacting so much of that act as fixed the terms. If the legislature of 1881 could not change the times of holding court as designated in section 3, it could not repeal the section 3 itself, which so designated those times, either expressly or by implication, nor could it merge that section into a new and amended one.

The evident intention of the constitution was to prevent legislative action upon this subject exceptúa! the sessions next preceding the general elections. It was the design of that instrument that the laws fixing or changing the times of holding the courts should be passed at the particular sessions named and should bear date as of those sessions. If the legislature of 1885 thought best to change the times of holding the courts, it was to look for the terms of court to be changed to a law passed at the session next preceding the last general election for judges, and not to a law passed in some intermediate year.

We are, therefore, of the opinion, that, for the reasons here indicated, the amendatory act of 1881 did not have the effect of repealing or merging or re-enacting section 3 of the act of 1879, but that said section 3 was in force when the acts of June, 1885, were enacted, and that the act of June 30, 1885, is a valid law.

It follows, that the demurrer to the plea was properly sustained, and that judgment was properly entered at the term beginning on the third Monday of March, 1886.

Plaintiffs in error claim that the evidence fails to show that an indictment was returned in open court by the grand jury. The scire facias alleges that. the indictment was returned by the grand jury in open court. The original indictment was introduced in evidence by the State, and the file mark recites that it was filed in open court on October 24, 1884. Its introduction was not objected to. It is now objected, that the only legal evidence of the return of an indictment in open court is the record of the court showing such return, and that no such record was introduced in this case. Under the condition of the recognizance and under the law as settled by this court, it is unnecessary to aver or prove that an indictment was ever found to render the recognizors liable on a default by the principal. Mooney v. The People, 81 Ill. 134, and cases there cited.

It is also insisted that no record was shown of an order for recognizance. It was held in Chumasero v. The People, 18 Ill. 405, that there need be no order of court requiring or directing the party to enter into a recognizance; that the recognizance itself is evidence that the party was required to enter into it and did so. The recognizance states it was for the appearance of the principal to answer an indictment then pending against him for perjury. This implies that the requisite preliminaries with reference to the indictment were had. (Shattuck v. The People, 4 Scam. 477.) The parties to the recognizance are estopped by its recitals from raising any question as' to the validity of the indictment.

■ The recognizance of record and judgment of forfeiture are competent and sufficient evidence, under appropriate averments in the scire facias, to authorize judgment of execution according to the form, force and effect of the recognizance, and in an action of debt to authorize judgment for the amount of the recognizance. The People v. Witt, 19 Ill. 169.

The judgment of the circuit court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    R. M. Blackman et al. v. Preston Bros. et al.

      Filed at Mt. Vernon January 20, 1888.

    1. Fraudulent conveyance—voluntary settlement on wife or child. While a man has the undoubted right to settle real estate upon his wife and children when existing creditors are not affected thereby, yet he will not be allowed, under the guise of settling property upon his family, to perpetrate a fraud upon others. He may not be allowed to retain the actual possession of real estate, and have the records disclose title in himself, and by claiming title in himself obtain credit, and afterward say that he had conveyed the property to his wife and children, and that it shall not therefore be liable for his debts.
    2. In this case, the owner of lands made conveyances of a farm of two hundred acres to his two minor sons, one aged about eleven or twelve years and the other about six, and shortly afterward made and acknowledged another deed to his wife for his remaining land. There was no proof of the delivery of the latter deed, and the deeds to the sons, after being handed to them, were placed in the father’s desk, and afterward remained in his custody. It would appear, from his evidence, that these deeds were made to take effect in case of his death, only. No change of possession was ever made, the grantor receiving all the rents and use of the land and paying all the taxes thereon. He engaged in the mercantile business, and became involved in debt, and represented to those giving him credit that the -lands were his, the deeds not having been placed on record. He obtained credit on the faith of his apparent and avowed ownership, and the fact of his possession, and the fact that the record showed title in him. Finding himself insolvent, some six years after the date of his deeds he placed them on record: Held, in the absence of anything charging his creditors with notice of these conveyances, that they had a right to rely on his possession and representations of ownership, and that the conveyances were fraudulent and void as to such creditors.
    3. Evidence—declarations of grantor as against grantee. While innocent grantees in a deed are not concluded by the acts and declarations of their grantor, those who fail to place their deed upon record, and who permit their grantor to remain in possession and exercise the acts of an owner, are not innocent grantees as to those whom-the grantor has induced to give him credit on the faith of his assumed and apparent ownership of the property.

      4. Deed—necessity of delivery—of a testamentary disposition. A deed td be valid as a conveyance of real estate, must be delivered. A testamentary disposition of property is ambulatory until the death of the testator, when it takes effect; but a deed of an interest in land must take effect upon its execution, or not at all.
    Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on writ of error to the Circuit Court of Saline county; the Hon. David J. Baker, Judge, presiding.
    This was a creditors’ bill, originally filed by Preston Bros, in the Saline circuit court, at the September term, 1884, against the plaintiffs in error. The other defendants in error, upon their petitions, were made complainants.
    The bill sought to cancel certain deeds made by C. S. Black-man to his wife and two minor sons, and to have the lands therein described subjected to sale on executions issued upon judgments in favor of defendants in error, and against C. S. Blackman. On the hearing, the court granted the relief sought, and the Blackmans took the case to the Appellate Court, where, the decree below was affirmed, and they now seek to have the judgment of that court reversed. ■ The facts appear in the opinion.
    Messrs. Green & Gilbert, for the plaintiffs in error:
    We concede that a voluntary conveyance, when the grantor is indebted at the time of its execution, is presumptive evidence of fraud; that a fraudulent intent will be presumed from the fact he was indebted at the time, and also that as to preexisting creditors, every conveyance not made for a consideration, valuable in law, is voidable. Moritz v. Hoffman, 35 Ill. 553.
    A debtor may execute a valid voluntary conveyance, if he continue to hold property sufficient to discharge all Ms debts which are in existence at the date of execution of the alleged fraudulent conveyance. The case must be such that the insolvency was the fruit of the voluntary conveyance. Moritz v. Hoffman, 35 Ill. 556.
    An advancement to a child, or a gift to a wife, made by a father or a husband while in debt, is valid, provided the debtor fairly retains in his hands property sufficient to pay all debts existing at the date of the advancement or gift. Van Wick v. Seward, Paige Ch. 62.
    In Hinde’s Lessee v. Longwarth, 11 "Wheat. 210, the court say: “It was certainly competent for the defendant to show that the grantor was indebted at the time he made the conveyance. This was a necessary step toward establishing the fraud. * * * A deed from a parent tó a child, for the consideration of love and affection, is not absolutely void as against creditors.”
    But it is the doctrine of the court that only creditors having claims when fraud is committed, can avoid such conveyances, unless it is shown that the deed was made in anticipation of incurring debts, to avoid payment of which the conveyance was made. Tunison v. Chamblin, 88 Ill. 285.
    It is not sound reasoning to contend that the omission to file the deed for record till August 6,1881, is evidence of fraud. Defendants in error gave credit to C. S. Blackman after August 6,1881, just as they had done before that date. At different times subsequent to that date, they accounted with him, and expressed their satisfaction with the security he gave them.
    If the conveyances to the sons were made in good faith, as fair advancements, with no fraudulent intent at the time, any subsequent scheme of rascality by 0. S. Blackman could not affect the validity of the conveyances, unless the grantees were parties to the scheme. Ewing v. Runkle, 20 Ill. 448; Rust v. Mansfield, 25 id. 336; Wilson v. Pearson, 20 id. 81; Bowen v. Parkhurst, 24 id. 261; Meyers v. Kinzie, 26 id. 36; Cadogan v. Kennett, Cowper, 434; United States v. Hoge, 3 Cranch, 88; Mclntire v. Benson, 20 Ill. 500.

      The land was given to the sons for their own use. There could be no implied trust. It is not true that there can be a secret trust in property given to another for his own use. Bragg v. Geddes, 93 Ill. 58; Remington v. Campbell, 50 id. 516; Sheldon v. Harding, 44 id. 68; Holmes v. Holmes, 44 id. 268; Stephenson v. Thompson, 13 id. 186.
    Messrs. Parish & Parish, Messrs. Boyer & Choisser, and Messrs. Marsh & Scott, for the defendants in error:
    A party out of debt can make a settlement of his property, or any part of it, on whom he pleases, if done in good faith; and any one dealing with him after such settlement is made a matter of record, will have no right to assail it, or say it was fraudulent as to him. Durand v. Weightman, 108 Ill. 489.
    If the disposition of his property does not deprive others of an existing claim to it, no one can complain, if the transfer be made a matter of public record, and be not designed as a sham, to defraud future creditors." Jones v. Clifton, 11 Otto, 225.
    A deed not fraudulent at first may afterward become so, by being concealed or not pursued, by means of which creditors have been drawn in to lend their credit. Hungerford v. Earl, 2 Vern. 261; Hildreth v. Sands, 2 Johns. Ch. 46; Bank v. Housman, 6 Paige, 526; Coates v. Gerloch, 44 Pa. 43; Hilliard v. Cagle, 46 Miss. 309; Scrivener v. Scrivener, 7 B. Mon. 374; Blennerhasset v. Sherman, 15 Otto, 100; Bump on Fraud. Con. 325, 326, 39, 40; Waite on Fraud. Con. 324.
    The retention of possession, receiving the rents and profits by the grantor after the execution of a deed therefor, absolute upon its face, manifests a secret trust in favor of the grantor, and renders the conveyance void not only against precedent, but subsequent creditors, without notice. Jones v. King, 86 Ill. 225; Hildreth v. Sands, 2 Johns. Ch. 46; Moore v. Wood, 100 Ill. 451; Power v. Alston, 93 id. 587; Anderson v. Armstead, 69 id. 454.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The general principles applicable to the questions presented by this record are familiar. They have been quite often discussed and applied by this court in kindred cases. The right of a party to settle real estate upon his wife and children, when ■existing creditors are not affected thereby, is undoubted; but no one is allowed, under the guise of settling property upon his wife and children, to perpetrate a fraud upon others. He may not be allowed to retain the actual possession of real estate, and have the records disclose title in himself, and, by then claiming title in himself, obtain credit, and afterwards say that he had conveyed it to his wife and children, and that it shall' not, therefore, be subject to the payment of the debt. While the innocent grantees in a deed are not concluded by the acts and declarations of their grantor, those who fail to place their deed upon record, and who also permit their grantor to remain in possession, are not innocent grantees as to those whom he has induced to give him credit upon the faith of his claimed owner-' ship of the property. Bank of the United States v. Housman et al. 6 Paige Ch. 526; Jones et al. v. King et al. 86 Ill. 225; Moore, Admr. v. Wood, 100 id. 451; Power v. Alston, 93 id. 587; Hildreth v. Sands, 2 Johns. Ch. 35; 2 Pomeroy’s Eq. sec. 973. Moreover, a deed, to be valid as a conveyance of real estate, must be delivered. A testamentary disposition of, property is ambulatory until the death of the testator, when1 it takes effect, but a deed of an interest in land must take ■ effect upon its execution, or not at all. Cline et al. v. Jones et al. 111 Ill. 563.

The facts, here, are briefly these: Calvin S. Blackman was the owner of a farm of two hundred acres, lying within a short •distance of Stone Fort, in Saline county. He also owned a separate tract of twenty acres, near by. His title to all of these lands was of record. He was a married man, having a .family, consisting of his wife, B. M. Blackman, and four sons and several daughters. He and his family resided upon the-two hundred acre tract, making it their homestead. On the 17th of March, 1875, he signed and ■ acknowledged deeds purporting to convey eighty acres of the two hundred acre tract to his son Samuel, then eleven or twelve years of age, and the-remaining one hundred and twenty acres of that tract to his-.son John, then about six years of age; and all the material evidence with regard to the delivery of those. de.eds and the purpose of their execution is as follows: Blackman, on his-direct examination, testified: “Well, right after the time (i. e., the signing and acknowledging of the deeds,) I called the boys-to me. I had a-spell of rheumatism, and couldn’t get around, and gave the deeds to them. * * * I had been in ill health for some years, and had just got over a pretty severe attack of the rheumatic pain, and after I got better I concluded that was as good a time to close the deeds while I was able to get around, and while I was living with the expectation of going out west to improve my health, not knowing but what I might get worse while I was out, and not be able to get back; and if so, I wanted the boys to have the home place,—the two-youngest.” He had previously testified that he had advanced his older children, and that he was not in debt at this time. On cross-examination, he testified: “I just told them, (t. e., Samuel J. and John,) here was the deeds I had. made them to-the home farm. I had' made a deed, to where the house was, to Johnny, and told Sammy his was down on the east side,. where the well was. He had taken that. I told them I wanted them to have the home farm, if I dropped off or anything happened, and Sam he just said to keep the deed for him, and I do not recollect what John said. I had them and put them in a desk, or they did, or some one. I rather believe Sam put them in the desk, but I am not positive.” The desk belonged 'to the witness, and was used for retaining papers of himself and family, and to write upon, and he added that the-deeds have been there ever since. The family continued to-live upon the land after this as before. In the fall of 1876 the witness went to Texas, and he spent the winter of 1876-1877 there, returning in the spring of 1877, hut the balance of the family remained on the farm. In November, 1877, the witness engaged in the mercantile business at Stone Fort, and he continued therein until, perhaps, in August, 1881. During the year 1878, witness and his family lived at Stone Fort, but at the end of that time they returned to the farm, and, with that exception, he and his family lived continuously upon the farm from the time that he returned from Texas until after this suit was commenced. While they lived at Stone Fort he rented the farm, in his own name, and the lands have been assessed in his name, and he has paid all taxes thereon since.he signed and acknowledged the deeds, just as he did before. It is clear, beyond question, that he, at no time, has acted towards the public as if the lands belonged to his sons. His stock and other property have remained on the farm, and the family have lived upon the proceeds of the farm, and Samuel J. and John have had no rents and profits, or benefits in any way, from it, other or different than those enjoyed by the other children.

Although there is conflict in the evidence, the clear preponderance is, that in 1879 some of these complainants becoming uneasy about the extent of liabilities Blackman was incurring to them, sent agents to him to make special inquiries in regard to his financial standing, and he then represented to these agents that he owned these lands; and the proof is satisfactory, that upon the faith of his actual possession and apparent ownership of all these lands, and without either actual or constructive notice to the contrary, all these debts were incurred. In August, 1881, it became apparent that Blackman was insolvent, and then, on the sixth day of that month, after all these debts were incurred,—but a few days before notes therefor were executed,—he placed these deeds upon the record for the first time. The reasonable conclusion is, that it was not intended, when these deeds were signed and acknowledged, that they should take effect until after the death of Blackman; that they were in the nature of testamentary devises, and therefore inoperative as deeds. On the 29th of October, 1875, Blackman made and acknowledged a deed of the twenty-acre tract of land to his wife, B. M. Blackman. He seems to have not then had title himself, but the tract was conveyed to him on the 4th of March, 1876, and on the 11th of November, 1876, he placed this deed on record. But there is- not satisfactory proof that he ever delivered the deed that he made to his wife. She is not shown to have ever had any independent control of it. It was not placed on record until the 6th of August, 1881, and then it was done by Blackman at the same time that he placed on record the deeds to the boys. She never received any rent of this tract, nor exercised any control over it. It was assessed in his name, and he paid the taxes thereon. He rented it in his own name, and acted as if owner, and represented to the agents of complainants that he was owner.

There is, it is true, evidence that neighbors heard Black-man, long before August, 1881, and at various times, speak of having made deeds of these lands to his wife and two sons ; but this is unimportant, since the preponderance of evidence fails to show that knowledge of these deeds was brought home to the complainants. They, under the circumstances in evidence, had a right to rely on his possession and representations, in view that the records disclosed no title inconsistent therewith.

The decree below must be affirmed.

Decree affirmed.


author: Mr. Chief Justice Sheldon

text:
    Charles J. Goodall v. The People of the State of Illinois.

      Filed at Mt. Vernon January 20, 1888.

    1. Circuit court of White county—of the terms of that court— August term done away with. The act of June 30, 1885, fixing the terms of the circuit court in the second judicial circuit, fixed the terms in White county on the first Mondays of January, June and October, and on the second Monday of March in each year, and being the latest expression of the legislative will, by implication repealed the act of June 29, 1885, which fixed the terms in that county on the first Mondays of January, June and August, thus doing away with the August term.
    2. Repeal of statute—by reconstruction of a section. The amendment of a section of a statute, by declaring it shall be amended so as to read as follows, (setting out in words how it shall read,) of necessity-repeals all of the section, as it before stood, which is left out of and is not included in the reading which is written in the amendatory act for the section to have.
    3. Jurisdiction—out of term time as established by law. A circuit court has no jurisdiction to try one for a criminal offence at a time not provided for by law, or any other time than at a term fixed by law, and a judgment of conviction at an unauthorized term will be reversed.
    Writ of Error to the Circuit Court of White county; the Hon. G. S. Conger, Judge, presiding.
    Mr. P. A. Pearce, for the plaintiff in error:
    The only point relied upon in this case hy appellant is, that the court trying said cause had no jurisdiction, for the reason that the law authorizing the circuit court of White county in August was invalid. Kepley v. People, ante, p. 367.
    Mr. John W. Horr, State’s Attorney, Mr. J. E. Williams, and Mr. B. S. Organ, for the People:
    The legislature of 1881 might lawfully give White county an additional term or terms of court. Const. sec. 14, art. 6.

      This might properly he done as. an amendment to the law of 1879, which fixed terms for White county. If done by way .of amendment to the law of 1879, the amendment could only have been made by inserting the section of the law of 1879 at length in the act of 1881, and inserting, in proper context, the amendatory matter. Const. sec. 13, art. 4.
    The legislature of 1885 found the law fixing terms for White county, all in the act of 1881, and so finding, it should have fixed terms as to White by act amendatory thereof, which was done by act of June 29, 1885, and ought to be a valid law as to White county, unless it was repealed by the act of June 30.
    Must the act of June 30 be held to repeal the act of June 29 as to White county? The act of June 30 contains no words directly declaring that it was intended to repeal the act of June 29, and if it does repeal it, it must do so by implication.
    A subsequent statute, without negative words, will not repeal the particular provisions of a former statute, unless the two acts are irreconcilably inconsistent. Gunnarssohn v. City of Sterling, 92 Ill. 569; Covington v. City of East St. Louis, 78 id. 548.
    The act of June 30, 1885, does not purport to repeal any law, but it amends the law of 1879. It would leave the law of 1881 in force as to White county, if our views of the law be accepted. Then, if another act be found amending the law of 1881, would not both acts be in force ? Certainly, unless they should be “irreconcilably inconsistent.”
    The rule is, that if the provisions of both laws can not be carried into effect, the later law must prevail. (Dingman v. People, 51 Ill. 277.) Or, as the court say in Kepley v. People, citing from Devine v. Commissioners of Cook County, 84 Ill. 595: “If obedience can not be given to the last law without derogating from the first, it is the first that must give way.” Then it would seem to follow that the act of June 29 is to be obeyed as a law, unless obedience can not also be given to the act of June 30.

      The act of June 29 gives White county a term on the first Monday of January, and the act of June 30 does the same; hut the latter act provides that such January term shall be ■devoted exclusively to business not requiring a jury, etc., and allows no grand jury. Let it be, then, for the present, said "that the January term must be held as provided by the last act, because obedience to the prior act is disobedience to the latter, in some respects. The act of June 30 provides that a "term be held in White county, beginning the second Monday of March, and that is, of course, to be done.
    Both acts provide alike for June terms. The act of June 29 provides an August term, and the act of June 30 is in nowise irreconcilably inconsistent with this provision for an August term, and no reason is apparent why the act of June 29, amendatory of the act of 1881, is not in full force as to this August term, as far as the August term is concerned. Obedience may be given to either law without in any way doing violence to the other. And when this can be done, it can not be said that the two acts are irreconcilably inconsistent, nor is the former repealed by the latter, there being no direct words ■of repeal in the latter act.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

At the August term, A. D. 1887, of the White county circuit •court, in this State, and in the month of August, 1887, Charles J. Goodall was indicted, tried for and convicted of the crime ■of burglary, and sentenced to imprisonment in the penitentiary for one year. The sole point now made by the defendant for the reversal of the judgment is, that the court below had no jurisdiction of the cause, the defendant having been indicted, tried and convicted in August, 1887, at which time, it is alleged, there was no term of the circuit court of White county, Illinois, authorized by law.

The General Assembly of this State passed an act entitled “An act concerning circuit courts, and to fix the time for holding the same in the several counties in the judicial circuits in the State of Illinois, exclusive of the county of Cook,” which was approved May 24,1879. The first section provided, “that hereafter the times for holding the circuit courts in the several counties composing the various judicial circuits in the State of Illinois, exclusive of the county of Cook, be as follows.” The-third' section of this act fixed the times for holding the circuit, courts in the several counties composing the second judicial circuit of the State, among which was the county of White, and fixing the times in that county on the first Monday of January, the first Monday of June and the first Monday of October.

Afterward, the General Assembly passed an act, approved April 19, 1881, to amend section 3 of said act of 1879, by the' first section of which amendatory act it was enacted, “that section .three (3) of an act entitled ‘An act concerning circuit courts, and to fix the time for holding the same in the several counties in the judicial circuits in the State of Illinois, exclusive of Cook county,’ approved May 24, 1879, and in force-July 1, 1879, be amended to read as follows,”—then setting-out said section 3 verbatim, except in regard to White county, it fixing the times of holding the courts in that county on the-first Monday of January, the second Monday of March, the-first Monday of June and the first Monday of October, and making some change as to the kinds of business to be transacted at the January and June terms.

A further amendatory act was passed by the General Assembly, approved June 29, 1885, which, by its first section, enacted, “that sections two (2), three (3) and ten (10) of an act entitled ‘An act concerning circuit courts, and to fix the-time for holding the same in the several counties in the judicial circuits in the State of Illinois, exclusive of the county of Cook,’ approved May 24,1879, as amended by an act approved and in force April 19,1881, be amended to read as follows,”— setting out in words the reading, it fixing the times of holding the circuit court in White county on the first Mondays of January, June and August, and devoting the June term, only, to the transaction of the special business named in the prior amendatory act.

A still further amendatory act of the General Assembly, approved June 30, 1885, by its first section enacts, “that section 3 of an act entitled “An act concerning circuit courts, and to fix the time for holding the same in the several counties in the judicial circuits in the State of Illinois, exclusive of Cook county,’ approved May 24,1879, in force July 1, 1879, be and the same is amended so as to read as follows,”—setting out in words the entire section as amended to read, and it fixing the times of holding the circuit court in the county of White on the first Monday of January, the second Monday of March, the first Monday of June and the first Monday of October. This is the last act upon the subject.

It is contended that the act of June 29, 1885, is still in force, and that there is still a legal August term of the circuit court in White county, as that act prescribed there should be; that there has been no express repeal of that act, and that all the effect of the act of June 30, 1885, was to give two additional terms, making five terms of the court to be held in that county, one of them being the August term provided for by the act of June 29,1885. There is an inconsistency between these two acts, and they can not stand together, and the later act of June 30, being the last expression of the legislative will, must prevail. (Kepley et al. v. The People, ante, p. 367.) By the amendatory act of June 30, 1885, the statute of 1879, fixing.the times for holding the circuit courts, is made to read, that the times for holding the circuit court in the county of White shall be on the first Monday of January, the second Monday of March, the first Monday of June and the first Monday of October. This means, that these, and no other, shall be the times for holding the circuit court in that county.

On June 29, 1885, by force of the amendatory act of that date, the statute of 1879 did read, that the times for holding the circuit court in White county should be on the first Mondays of January, June and August. But after June 30, 1885, that statute of 1879 did not so read. By the amendatory act of June 30, section 3 of the statute of 1879 was “amended so as to read as follows,”—setting out the reading. Thereafter the reading of this section 3 of the statute of 1879 was as thus written in the amendatory act of June 30, 1885, that it should read, and not otherwise. There could not afterward be read, in any statute, a provision for an August term of the circuit court in White county. That provision which had been made to read as in the statute of 1879, was expunged from it and repealed by the last amendatory act of June 30, which enacted that the statute of 1879 should read without that provision. Such form of amendment of a section of a statute, that it shall be “amended to read as follows,”—setting out in words how it shall read,—of necessity repeals all of the section, as it before stood, which is left out of and is not included in the reading which is written in the amendatory act for the section to have. The People v. Young, 38 Ill. 490; Kepley et al. v. The People, supra.

We can come to no other conclusion, from the legislative acts above, than that, in 1887, there was no August term of the circuit court of White county provided by law; that the provision for such term by the amendatory act of June 29, 1885, was repealed, by implication, by the amendatory act of June 30, 1885, and that the court below acted without jurisdiction to try and determine the cause. The judgment must therefore be reversed.

Judgment reversed.


author: Mr. Justice Shope

text:
    S. H. Wilbur et al. v. The City of Springfield.

      Filed at Springfield January 18, 1888.

    1. Special taxation for local improvements—rule of uniformity not regarded—constitutionality. An ordinance for the improvement of a street by special taxation of lots fronting thereon, in proportion to the number of feet frontage, is not in contravention of the constitution, as violating the principle of uniformity and equality required in taxation.
    2. Same—ordinance—whether embracing more than one improvement. The fact that an ordinance may embrace many streets and parts of streets required to be curbed and paved, will not necessarily render the same void, as embracing more than one improvement.
    3. The fact that the ordinance in some sections speaks of the improvement to be made as “improvements,” is not sufficient, of itself, to show that several distinct improvements are proposed. The court will rather look to the entire ordinance, and find from the language used, in connection with the object sought to be attained, the intent of the law makers, and give it effect. So where the whole scope of the ordinance appears to be to provide for a single scheme of improvement, the use of the word “improvements” in some parts, will not control in the construction of the ordinance.
    4. Same—abutting lots—inside lots not included—an ordinance construed. An ordinance for the improvement of certain streets, which provides for the levy, assessment and collection of the cost upon the lots, parts of lots and lands upon the streets or parts of streets to be improved, in proportion to the frontage upon such streets, etc., will be held to apply only to the lots or parts of lots bounded by the lines of the streets severally to be improved, and not to inside lots not abutting upon such streets.
    5. Same—omission to provide for a levy and assessment in respect to a part of a proposed improvement. Although an ordinance proposes certain improvements in respect to a portion of which it omits to provide for any levy or assessment, the mere fact of such omission will not invalidate a levy or assessment which is provided for in respect to other and distinct portions of the improvement proposed,—as, if it be proposed to pave certain streets and alleys, but the ordinance provides for a levy only for the paving of the streets, that levy will be good.
    6. Ordinance—invalid in part and enforcible as to the residue. It is a well settled principle, applicable to by-laws and ordinances, that if a provision relating to one subject matter be void and as to another it be valid, and the two are not necessarily or inseparably connected, it may be enforced as to the valid portion, as if the void part had been omitted.
    7. If an ordinance is void, so far as it proposes the paving of alleys, so that no special tax can be properly levied against lots abutting on such alleys, it does not follow that it is void as to the levy of such tax for the improvement of the street named therein.
    Writ of Error to the County Court of Sangamon county; the Hon. James H. Matheny, Judge, presiding.
    Messrs. MoGlernand & Keyes, and Mr. L. H. Bradley, for the plaintiffs in error:
    As to the constitutionality of article 9, section 18, chapter 24, of the Revised Statutes, and the ordinance thereunder, see State Const. art. 9, sec. 9; art. 2, sec. 1; art. 2, sec. 2; art. 2, sec. 19; art. 9, secs. 1, 2, 6; Rev. Stat. chap. 24, sec. 116; Cooley’s Const. Lim. (4th ed.) 440, 362; Johnson v. Jones, 42 Ill. 142; Anderson v. Railroad Co. 117 id. 28.
    As to special taxation, see Enos v. Springfield, 113 Ill. 65; Galesburg v. Searles, 114 id. 217; White v. People, 94 id. 604; Craw v. Tolono, 96 id. 256; Rev. Stat. chap. 24, sec. 115.
    The ordinance, in terms, embraces more than one improve-' ment, and is therefore void. Ricketts v. Hyde Park, 85 Ill. 110; People v. Sherman, 83 id. 167; Watson v. Chicago, 115 id. 78; Prout v. People, 83 id. 158.
    Section 7 of the ordinance providing for the levy of the special tax, does not authorize any levy of a special tax to be made for paving’a single alley or part of an alley, which shows that the several proposed improvements are not to be treated as one improvement. The ordinance should be construed strictly.
    , The ordinance does not make provision for assessing the special tax against corner lots, as contradistinguished from .inside lots, but treats all property as fronting on streets, : whether the side or end abuts the streets.

      Some of the streets are ordered to be paved to the width of twenty-four feet, others to the width of thirty feet, and others to the width of thirty-six and thirty-eight feet, and requires the railway companies to pave only one foot outside their tracks, instead of half the street. Chicago v. Baer, 41 Ill. 306; 60 id. 441; 2 Desty on Taxation, 1246.
    Mr. Joseph M. Grout, and Mr. Clinton L. Conkling, for the defendant in error:
    As to the constitutionality of special taxation hy frontage, see Springfield v. Green, 120 Ill. 269; White v. People, 94 id. 604; Craw v. Tolono, 96 id. 255; Bigelow v. Chicago, 90 id. 53; Fagan v. Chicago, 84 id. 234; Enos v. Springfield, 113 id. 65; Galesburg v. Searles, 114 id. 217; Watson v. Chicago, 115 id. 78; Sterling v. Galt, 117 id. 15.
    While many streets and parts of streets are embraced in the ordinance, they are all but parts of the same improvement. Green’s case, supra, and cases there cited, which effectually disposes of all the points raised here.
   Mr. Justice Shope

delivered the opinion of the Court:

The city of Springfield, February 16,1885, adopted an ordinance providing for the paving and curbing of certain specified parts of streets and alleys in said city, particularly specifying the materials to be used and the manner of construction of such paving and curbing. Section 4 of the ordinance provided that all portions of said streets, and parts of said streets and alleys, included in the right of way of any steam, horse or street railway company, being the space between the rails of their tracks and one foot on the outside of such rails, should be paved in the same manner as other portions of said streets, but at the expense of said railway company, and to be paid at the same time as the payment of the special taxes by the ordinance ordered. The cost of paving the alley and street intersections and crossings, it was provided, should be included in the annual appropriation bills, and paid by general taxation. The remainder of the cost and expense of the improvements so ordered, it was provided, should be paid by special taxation, and for that purpose a special tax was, by the ordinance, ordered to be levied, assessed and collected upon the lots and parts of lots upon the streets and parts of streets ordered to be paved, in proportion to the frontage thereof on such streets or parts of streets, “equal in amount to the whole cost of paving that portion of said streets or parts of streets, and not included in the intersections and crossings aforesaid, nor in the right of way of any steam, horse or street railway company.” Such proceedings were had that the report of the commissioners appointed by said ordinance was confirmed by the county court, over the objection of plaintiffs in error, and the record is brought here by them -for review. Motions were made by plaintiffs in error, in the county court, to dismiss the proceedings for confirmation. It will not be necessary to consider such motion separately, for the reason that no question is raised thereby that does not arise upon the record.

The first ground urged by counsel for plaintiffs in error for reversal of the judgment of the county court, is, that an ordinance providing for improvements by special taxation in the manner here provided, is in contravention of the constitution, and therefore void. Had the able and exhaustive argument of counsel not been before pressed upon the attention of this court, and met, as it must be again, by the fact that this court, in numerous cases, has settled the doctrine adversely to the contention of counsel, we should feel called upon to give it greater consideration than we can now do. This- question was fully considered and settled in the cases of City of Springfield v. Green, 120 Ill. 269; City of Sterling v. Galt, 117 id. 15; Galesburg v. Searles, 114 id. 217; Watson v. City of Chicago, 115 id. 78; Enos v. City of Springfield, 113 id. 65; White v. The People ex rel. 94 id. 604; Craw v. Tolono, 96 id. 255; Bigelow v. City of Chicago, 90 id. 53; Fagan v. City of Chicago, 84 id. 234. No further discussion of this contention, however inviting it may he, would he profitable, in view of these repeated decisions.

It is further insisted by counsel, that the ordinance is void, because it embraces more than one improvement. While it is true that the ordinance, in this case, uses the word “improvements” in some of the sections, an inspection of the ordinance shows that it differs in no essential respect from that before this court in City of Springfield v. Green, before referred to. The character of the improvement to be made is, in all essential particulars, identical in both cases, and it was there said: “While many streets and parts of streets are embraced in the scheme of improvement adopted by the city, yet we regard them all as but parts of the same improvement. The city authorities, in adopting the ordinance, must have found, as a matter of fact, that these streets and parts of streets were so similarly situated, with respect to the improvement proposed to be made, as to justify treating them as parts of a common enterprise and single improvement, and from the record before us we think they were justified in doing so. They were all to be paved with the same material and in the same way, and the fact that there was a difference of a few feet in the width of some of them, and that the cost of paving the railway tracks in others was to be excluded from the estimate, should, in our opinion, make no difference in this respect. The similarity in the improvement proposed to be made, and the situation of the property to be assessed with respect to it, afford a more satisfactory test as to whether they might all be embraced in a common scheme as one improvement, than their actual connection or physical contact with one another.” The language employed is alike applicable to the case at bar. See, also, Murphy v. The People, 120 Ill. 234; Prout v. The People, 83 id. 155; The People v. Sherman, id. 167; Ricketts v. Hyde Park, 85 id. 110.

It is, however, contended, in this case, that the improvement to be made under the ordinance was regarded by the city council as a separate improvement upon each of the streets and alleys named in the ordinance. This argument is founded upon the fact that the city council, in some sections of the ordinance, speak of the improvement to be made, as “improvements,” using the plural form of the word. This argument does not strike us with convincing force. The whole scope of the ordinance, as we have held, is to provide for a single scheme of improvement, and we are not prepared to hold that the use of the plural form of expression by the council in some sections, while in other sections they use the singular form of the word, can or ought to be regarded as controlling. The rules of construction require us to find from the language used, in connection with the object sought to be attained, the intent of the law maker, and, when this is found, to give it effect. We can not give this single circumstance so much weight and significance as to absolutely control us in our interpretation of this ordinance, and thereby take this case out of the rule announced in previous like cases. Such holding would, in our judgment, do violence to the ordinary and accepted rules of construction.

The next contention in order, stated in the language of counsel, is, that the ordinance “does not make provision for assessing the special tax against corner lots, as contradistinguished from inside lots, but treats all property as fronting on the street, whether the side or end abuts on the street.” The precise question here raised was before us in City of Springfield v. Green, supra, and was there determined adversely to the contention of counsel; and although it appears that there is a difference in the language in the ordinances- in the two cases, in this, that in this ordinance the tax is to be levied, assessed and collected upon the lots, parts of lots and lands upon the streets or parts of streets to be improved, in proportion to the frontage upon such streets, etc., the tax in the Green ease was to be levied, etc., upon the real estate, lots and parts of lots and tracts of land abutting upon the line of said streets or parts of streets 'proposed to be paved, in proportion to the frontage upon said streets, etc. In the Green ease it was held that abutting lots, etc., were lots upon the line of the street; and in this case it must also be held that lots upon the street are none other than those upon the line of the street. This being so, the decision in that case is decisive of the question here. The purpose of all construction is to ascertain the intention of the law making power, that effect may be given thereto. It is apparent, from the ordinance, and from the record, that each of the lots and parts of lots against which the assessment was to be and was made, was bounded by the lines of the streets severally to be improved, upon which such lots or parts of lots fronted or abutted; and it is impossible that the language employed could have applied to any other lot, parts of lots or tracts of land.

The only remaining contention against the validity of these proceedings which we should notice, is, that while the first section of the ordinance proposes the improvement of certain streets, parts of streets and alleys, the seventh section of the ordinance, and the one providing for the levy, assessment and collection of the special tax, omits the word “alley,” and seems to confine the assessment to lots upon streets, etc. There is, by this section, levied a special tax to pay for said improvement, (after deducting street and alley intersections and railway tracks, as before mentioned,) equal to the whole amount of the cost of paving that portion of the streets or parts of streets not included in said intersections and railway tracks; and said special tax, it is ordained, “is hereby ordered to be levied, assessed and collected upon and from each of said lots, parts of lots and tracts of land, in proportion to the frontage thereof upon the streets or parts of streets ordered to be paved, as aforesaid.” If, as contended by counsel, the alleys, as provided for in the first section, are not covered by the words, “said street or streets,” as used in this seventh section, which it is not necessary for ns here to determine, it follows that no levy whatever was made for paving the alleys. The only tax levied against lots or parts of lots is for the purpose of paving “that portion of said streets or parts of streets not included in the intersections,” etc. Without determining either of the questions seemingly raised by this position, it affirmatively appears that there was levied against the lots of plaintiffs in error, the expense, only, of paving the streets upon which they abutted, and by the line of which they were bounded. There is no special tax for the paving of an alley assessed or proposed to be assessed against their property, directly or indirectly, and they can not be heard to complain of that which does them no injuryp If it be conceded that this ordinance is void, as to the improvement, so far as it proposes the paving of alleys, so that no tax was properly levied against lots abutting on such alleys, it does not follow that it is therefore void as to the levying of said tax for the improvement of the streets designated, for it is a well settled principle, applicable to by-laws and ordinances, that if the provision relating to one subject matter be void, and as to another it be valid, and the two are not necessarily or inseparably connected, it may be enforced as to the valid portion as if the void portion had been omitted.

For the reasons stated, the judgment of the county court of Sangamon county will be affirmed.

Judgment affirmed. ,


author: Mr. Justice Mulkey

text:
    Byron D. Snell et al. v. Ellen J. Snell et al.

      Filed at Ottawa January 19, 1888.

    1. Mabbied women—power to enter into contraéis—duties and obligations incident thereto. Under existing legislation in this State, married women are placed upon a common footing with married men in respect to all property rights, including the means to acquire, protect and dispose of the same. They may own, buy, sell, transfer and convey any and all kinds of property, to the same extent as men or femes sole, and subject to no other or different conditions or restrictions.
    2. The duties and obligations of married women in respect to their rights and powers are the same as those of others sui juris. They must perform their contracts, and are amenable to legal process to the same extent as if unmarried.
    3. Sam:e—reforming deed of married woman—for mistake. If, in the execution of a deed by a married woman, a mistake occurs, a court of equity will correct it against her, the same as against any other person. So where a husband and wife executed and acknowledged a mortgage intended to be on their homestead, which, by mistake, was not properly described, and on bill against her and the husband’s heirs, after his death, to reform the same, and for foreclosure, a decree was entered correcting the mistake and ordering a foreclosure, it was held, that the court had jurisdiction to reform the mortgage as against the wife, and that she was concluded by the decree, the same as any other person.
    4. Same—deed by married woman—mode of its execution—compelling the making of a deed in proper form. Any conveyance of a married man, good at common law, will pass his estate, whether his wife joins in its execution or not, or he acknowledges the same; but in the case of a married woman the statute requires that either the husband must join her in her deed, or, if executed by her alone, that it be acknowledged before an officer. This statute is mandatory, and if not complied with the deed will be invalid. In such a case, a court of equity will compel the delivery of a deed executed in proper form.
    5. Appeal—whether a freehold invoiced—seeking to establish cmd set off a homestead. A bill by a widow and heirs of a deceased owner of land, against a purchaser under a decree of foreclosure, seeking to establish and set off to them a homestead in the land, involves a freehold, and an appeal will lie from the final decree directly to this court.

      Appeal from the Circuit Court of La Salle county; the Hon. Charles Blanchard, Judge, presiding:
    Mr. Rector 0. Butt, for the appellants:
    It was held in Knox v. Brady, 74 Ill. 476, that a mortgage on the husband’s property could not be reformed as to the wife. This was based on the legal disabilities of the wife at that time. After the disability was removed, her contracts were valid, and may be reformed. Rev. Stat. 1874, p. 506, sec. 6.
    Byron D. Snell should be subrogated to all the rights of the insurance company, under its mortgage. Ebert v. Gerding, 116 Ill. 216; Young v. Morgan, 89 id. 199.
    Messrs. Duncan, O’Connor & Gilbert, for the appellees:'
    No freehold is involved in this suit. Railroad Co. v. Watson, 105 Ill. 222; Mix v. King, 66 id. 146.
    An estate of homestead is not confined to lands held in fee, but embraces less estates. Deere v. Chapman, 25 Ill. 610; Shackleford v. Todhunter, 4 Bradw. 271; Blue v. Blue, 38 Ill. 9; Watson v. Saxer, 102 id. 585.
    The law places the householder and his wife under an absolute disability to convey the homestead, except in strict conformity with the statute. This position is like that of a married woman prior to the act of 1869, whose deed could not be reformed. Moulton v. Hurd, 20 Ill. 127; Spurck v. Crook, 19 id. 415; Martin v. Hargardine, 46 id. 322; Knox v. Brady, 74 id. 477.
   Mr. Justice Mulkey

delivered the opinion of the Court:

On the 26th day of January, 1881, Philip Snell was the owner in fee of the land in controversy, and resided thereon, with his family, as a homestead. On that day he mortgaged the same to Jane Snell, to secure an indebtedness of $1839.87, his wife, Ellen J. Snell, joining in the deed. The land lay in 'section 27, but by mistake it was described as in section 20. The mortgage contained a proper and formal release of the homestead, and was in every respect strictly accurate, except the error as to the number of the section. On the 9th day of February, 1884, Snell and wife executed to the Northwestern Mutual Life Insurance Company another mortgage upon the same land, by its proper description, to secure an indebtedness of $3000. This mortgage also contained a release of homestead, and was otherwise formal and correct. On the 16th of August, 1884, Snell died, leaving Ellen J. Snell, his widow, and two minor children, John and William Snell, his only heirs-at-law. On the 20th of October, 1885, Jane Snell filed a bill in the La Salle circuit court to correct her mortgage in respect to the erroneous number of the section, and to have the same foreclosed, making the widow and two minor children of Philip Snell, parties. The former made default, and the children answered in the usual way, by a guardian ad litem, no question being raised, the one way or the other, about the right of homestead. The court, on the hearing, entered a decree in conformity with the prayer of the bill. On the 1st of December, 1886, the master sold the premises, under the decree, to Byron D. Snell, and the same not having been redeemed within the time allowed by law, Snell received a master’s deed therefor. On the 9th day of February, 1887, the widow and heirs of Philip Snell, the appellees herein", filed the present bill, claiming an estate of homestead in the premises, and prayed that the same be set off and assigned to them, as provided by law. The court, on the hearing, entered a decree in conformity with the prayer of the bill, and the defendants bring the case here by appeal.

Before proceeding to consider the merits of the controversy, it will be necessary to dispose of a preliminary question which challenges'the jurisdiction of this court.

The case is brought here on the hypothesis that it involves a freehold. This is denied by appellees’ counsel. They insist that a homestead right does not, in any case, constitute a freehold estate, otherwise one could not have such a right where he has a leasehold, merely; and that as respects minor children, upon whom a homestead often devolves, their interest can never exist beyond a definite number of years, which is inconsistent with the idea of a freehold. The rationale of the argument, as we take it, is, that because the estate of homestead is of a fixed and uniform value, the quantity of interest (using that term in its technical sense) must, therefore, necessarily be the same in all cases, which makes it more in the nature of an incumbrance than anything else, and hence it is concluded that cases involving a homestead, must, for jurisdictional purposes, be placed in the same category with foreclosure suits, which are uniformly held not to involve a freehold. However plausible the argument may be, we do not regard it as sound. It is directly in conflict with the conclusion reached in Browning et al. v. Harris et al. 99 Ill. 456, where will be found a full expression of our views on this subject. If, as is contended, appellees’ claim of homestead is wholly unaffected by the mortgages from Snell and wife to Jane Snell, and to the Northwestern Mutual Life Insurance Company, and the subsequent proceedings in court founded thereon, it is clear, from the case just cited, that upon the death of Philip Snell his widow took a life estate, for the use of herself and children, to the extent of $1000, in the mortgaged premises; and it is hardly necessary to add, that a life estate in land is, by all the authorities, a freehold estate. Not only so, but appellees have in this very case obtained a decree, directing, if it can be done without injury to the estate, that there be set off and assigned to them a part of the mortgaged premises, not exceeding $1000 in value, to be held by the widow in severalty, for the use of herself and children, as a homestead. When so assigned she would clearly have, for the use of herself and children, an estate for life in the premises, which, of course, would be a freehold estate. If, in the opinion of this court, that decree, under the facts in the case, was unwarranted, and appellees shall ultimately fail in their suit, it is clear they will simply lose the freehold which the lower court directed to he assigned to them, and, per consequence, it will he gained by the adverse party. This, according to the rule laid down in Chicago, Burlington and Quincy Railroad Co. v. Watson et al. 105 Ill. 217, and which has been invoked by appellees’ counsel, ■demonstrates that a freehold is involved in this suit. There is another aspect of the case from which the same result might be reached, but it is not necessary to pursue the subject further. The motion to dismiss must be overruled.

Coming now to the merits of the ease, it may somewhat aid us to advert hastily, and in a general way, to the legal disabilities of married women, as they existed here and in England before the commencement of the reform legislation which has resulted in so radical a change in the present law on the subject. Their contracts, by the common law, as it existed in England, and in this State prior to the comparatively recent legislation on the subject, commencing in 1861, were absolutely void at law, and were equally so in equity, so far as imposing .any personal obligation is concerned. They might,’ however, by such contracts, subject to certain limitations, bind their separate estate, but they imposed no personal obligation whatever. The right of a married woman to have a separate estate in personal property was purely a creature of equity, and the power to bind it (the estate, not herself,) by a contract fairly ■entered into in respect to the estate, and on her own account, was regarded as a mere incident of such ownership. As her contract imposed on her no personal obligation, either at law or in equity, it therefore followed, as a logical result and legal sequence, that a bill would not lie to reform a contract or conveyance alleged to have been made by a married woman. As a conveyance of land by deed was a species of contract, it followed that an instrument executed by a married woman, purporting to convey real property, was absolutely void, both at law and in equity, and consequently could not be enforced or reformed. While at common law a married woman could not convey her own real estate, or release her inchoate right of dower or other interest in the lands of her husband, yet she might, through the instrumentality of a fictitious suit, called a fine or fine and recovery, permit another to recover whatever right she had in the land proposed to be conveyed, and thus, by a species of estoppel, bar her rights. At common law this was the only mode by which a married woman could dispose of her own lands, or any interest she might have in those of her husband. This cumbrous and expensive mode of conveying her interests in real property was abolished by an act of the British Parliament, (3 and 4 William IV, chap. 74,) under the provisions of which the wife was enabled to accomplish the-same ends as she has been able to do here from a very early period, by joining her husband in an ordinary deed of conveyance, subject to certain prescribed formalities, which, in all cases, had to be strictly complied with. But these statutory enactments, which enabled a married woman to make a valid transfer or conveyance of real property, did not at all affect her disabilities in other respects. As to her, the deed only operated as a conveyance; therefore, all covenants contained in it were, in law, the covenants of the husband only. It followed, that if her deed was not sufficient, on its face, to pass, her property, there was no relief but to induce her to make-another; and if she declined to do so, equity would not compel her, nor would it reform the instrument, for such a suit could, not, in any case, be maintained for either purpose, except upon the theory that a contract for a deed had existed between the-parties. This, of course, could not be done in the case of a married woman, for the simple reason she could not make such a contract, nor, indeed, any at all; and of this the court, would take judicial notice. It is therefore undoubtedly true, that prior to the modern legislation in this State respecting-the legal disabilities of married women, a court of equity had no power or authority to reform any alleged contract or conveyance made by a married woman, and in the case of a conveyance, it made no difference whether it related to a homestead or some other interest in land. All her conveyances, without regard to the character of the estate or interest granted, stood upon a common footing, and were controlled by the same principles. If they conformed to the requirements of the statute, she was bound by them; if not, they were void, and could not be enforced. The only difference in conveying a homestead and any other interest or right in land, was in the form of the deed, and the disposition of courts to liberally construe the act in favor of the homestead occupant.

The law, however, in respect to the rights and disabilities of married women, has of late years undergone a radical change. By the-acts of 1861,1869 and 1874, married women are to-day, and were at the time of the execution of the mortgages in question, placed upon a common footing with married men in respect to all property rights, including the means to acquire, protect and dispose of the same. They may own, buy, sell, transfer and convey any and all kinds of property, to the same extent as married men or single women may, and subject to no other or different conditions or restrictions. Not only so, but their duties and obligations in respect to these rights and powers are the same as those of others sui juris. Like other persons, they must perform their contracts; and if they fail to do so, they are amenable to legal process to the same extent as if they were unmarried. If, in the execution of a deed by a married woman a mistake occurs, so that it does not truly state the contract between the parties, a court of equity will correct it against her, just as readily as it would against any other person. The only difference in respect to conveyances of husband and wife is, that any conveyance good at common law will pass his estate, whether his wife joins him in it or not, and the fact that it is not acknowledged before an officer, will make no difference; whereas in the case of the wife, the statute requires that either the husband must join her in the deed, or, if executed by her alone, that it be acknowledged before some officer. Of course, this requirement of the statute is mandatory, and, if not complied with, the deed would be invalid. Nevertheless, in such case a court of equity, upon a proper-showing in other respects, would compel the delivery of a deed executed in proper form. In the present case there was a simple, manifest mistake in the body of the deed, in describing the land. The homestead was formally released and waived, as required by the statute, and the only effect of correcting the error in the description of the property, was to make the deed express just what the parties to it originally intended it should. The appellees were parties to the decree reforming the deed. The court had jurisdiction of their persons. This is not denied. That the correction of mistakes in deeds and other written contracts executed by persons sui juris, is a part of the ordinary jurisdiction of courts of chancery, is beyond dispute. So it is not perceived why appellees are not bound by that decree. And if it be given effect, (as we hold it must,) it follows that appellees have no homestead in the premises, and the decree in the cause was consequently erroneous, and should be reversed for that reason.

The decree of the court below is reversed, and the cause remanded for further proceedings in conformity with this opinion.

Decree reversed.