author: Mr. Justice Scott

text:
    Samuel Mather et al. v. Asa F. Mather et al.

      Filed at Ottawa May 12, 1882

      Rehearing denied September Term, 1882.

    1. Will—whether void for uncertainty— construction as to who are the ultimate takers—and as to the character of the intervening estate. A testator provided by his will: “After all my debts are paid and discharged, that the residue of my property, both real and personal, shall remain as my estate as long as I have a living child,—the rents, use and interests of my estate, both personal and real, I dispose of as follows: First, to my wife I will and bequeath one-third of the net income of my estate, both personal and real, during her life, if she accepts it in lieu of dower. Secondly, I will and bequeath to my children the remaining two-thirds of the net income of my estate,” naming each child, “during the life of their mother, and after the death of their mother the whole of the net income of my estate during their lives; and should any of my children die before the time for the final division of my estate, leaving heirs of their body, then their children shall take the share of their parent until the final settlement of my estate, and at the death of my last surviving child, my will is that my estate be equally divided between my grandchildren, they to share and share alike. Should any of my grandchildren die before the final division of my property, leaving heirs of their body, their children to take the share of their parent. I hereby appoint my son-in-law, Jonathan Eoyse, and my son, Asa F. Mather, to be executors of this my last will and testament. ” It was held, the will was sufficiently certain in its provisions to be enforced, and that the purpose of the -testator was, that all his property, both real and personal, should be kept together as one entire estate, the net income of which, in the meantime, was to go, one-third to his wife during her life, and the remaining two-thirds thereof to his children, and upon the death of the wife the entire net income to go to his children until the death of his last surviving child, and on the happening of that event his whole estate to be equally divided among a class of persons described in the will, who might be living at such period of distribution,—the class who were to be the ultimate takers consisting of the grandchildren of the testator, or the children of such of the grandchildren as may have died before the time of distribution, including as well such grandchildren as may have been born after, as those born before, the death of the testator.
    2. Same—0/ a devise to a class—who .shall take. The rule is, where a will carves out a particular estate which intervenes the death of the testator and the period of distribution of an estate devised to a class, then all persons belonging to such class, living at the time the estate is to be divided, are included, notwithstanding some of them may have been born after the death of the testator.
    3. Same—of the sufficiency of the particular intervening estate to support a remainder in fee—devise of the net income of an estate. It has been held that a devise of rents and profits will pass the land out of which the rents and profits are to arise. So where, as in this case, there is a devise of the net profits of an estate to the wife and children of the testator during their lives, that will operate as a devise of the property to them during their lives. And this particular estate so devised to the wife and children is of such character as will support a remainder in fee devised to another, or to a class of persons. In such case the estate in remainder will not vest in possession at the death of the testator so as to cut off any of those properly belonging to the class designated in the will as ultimate takers.
    4. Same—as to the management of an estate until distribution—by whom. ' In this case, in view of the fact that the net profits of the estate which were to go to the first takers under the will during their lives, must arise out of the personal as well as the real estate, and the direction that the entire estate should be kept together as the estate of the testator until the period for final distribution, and there was no specific direction in the will as to the persons in whose hands the estate should remain, or by whom it should be managed in the meantime, it was held to have been the intention of the testator that this duty should devolve upon the executors named in the will, under their general appointment as executors of his last will and testament.
    Appeal from the Circuit Court of Will county; the Hon. Josiah McRoberts, Judge, presiding.

      Mr. A. O. Marshall, for the appellants,
    made the following points among others:
    No life or intermediate estate is provided for by the will. There can be but one actual seizin of an estate at one and the same time, and that can only be in him who has a freehold therein. 2 Washburn on Real Prop. 498, sec. 1.
    A freehold is necessary to keep the seizin for the remainder-man. 2 Washburn on Real Prop. sec. 8, page 502; 4 Kent’s Commentaries, (10th ed.) 268.
    It is an essential and imperative rule of law that a remainder should take effect immediately on the determination of the prior estate, the particular estate and remainder together, forming one continuous ownership. 2 Washburn on Real Prop. sec. 10, page 503.
    If the particular estate is void, the remainder is left without support. 2 Washburn on Real Prop. sec. 21, page 512 ; 4 Kent’s Commentaries, 269; Broom’s Legal Maxims, 180.
    A possibility at the creation of the limitation that the event upon which it depends may exceed in point of time the authorized period, is fatal to it. 5 Abbott’s (N. Y.) Digest, sec. 12, page 147, and cases there cited.
    A limitation void as to some of the persons comprised in the class to which it is made, is void as to the whole class. Courts will not undertake to separate the interests of those who might take from those who can" not. Caldwell v. Willis, 57 Miss. 555; Smith's Appeal, 88 Pa. St. 492; Williams on Real Prop. 262; Davenport v. Harris, 3 Grant, 164; Jarman on Wills, 233.
    A devise can not be made to an unborn child of an unborn child. That tends to perpetuity. 1 Washburn on Real Prop. 97.
    Mr. Asa F. Mather, pro se:

    Courts will, if possible, adopt such construction as will uphold all the provisions of the will. And in carrying this purpose into effect, it is permissible to resort to any reasonable intendment. Redfield on Wills, chap. 9, sec. 6.
    The courts will not, without absolute necessity, hold a devise void for uncertainty, but will give it a meaning if it is possible. 1 Jarman on Wills, 643, and note 1.
    The devise is not open to the objection that it creates a perpetuity. The rule is, that a devise may be limited to a life or lives in being, and twenty-one years and a few months over.
    The devisees of the fee are a class named by the testator. Who or what persons constitute that class is limited and determined at the expiration of a life in being at the death of the testator. Grandchildren and children of deceased grandchildren of the testator only will answer the description. Blatchford et al. v. Newberry et al. 99 Ill. 11.
    If the will carves out a particular estate which intervenes between the death of the testator and the period of distribution of the estate devised to the class, then all persons belonging to such class at the time when the estate is divided are included, though born after the death of the testator. Handberry et al. v. Doolittle, 38 Ill. 202.
    A testator may make such disposition of his property as he pleases, provided it be not against the statutory rights of his widow, or some law imposing limits to the disposition of property by will. Heuser v. Harris, 42 Ill. 425; Broomfield v. Broomfield, 43 id. 147; Rhoads v. Rhoads, 43 id. 239; Waldo v. Cummings, 45 id. 421.
    The devise is not void for remoteness. The devise is to the testator’s own grandchildren. All the children of the testator must be in esse at his decease, and their -children must be born in their lifetime, so that they necessarily come into existence during a life in being. 1 Jarman on Wills, 542.
    As an heir or devisee a child in its mother’s womb is regarded as in esse. Botsford v. O'Conner et al. 57 Ill. 72; McConnell et al. v. Smith et al. 23 id. 611; Detric v. Migatt et al. 19 id. 146.

      The will provides for a valid intermediate estate sufficient to support the remainder. It gives the testator’s children a life estate in equal parts, limiting each one’s share over in case of death. They would then take per autre vie.

    It matters not how contingent or uncertain the duration of the estate may be, or how probable is its determination in a limited number of years, if it is capable of enduring for the term of a life it is within the category of estates for life. 1 Washburn on Real Prop. (3d ed.) page 103.
    The general intent of the testator must govern, even if a special intent has to yield. Redfield on Wills, 433; 2 Washburn on Real Prop. 540.
   Mr. Justice Scott

delivered the opinion of the Court:

This bill was brought by a portion of the heirs of Joshua E. Mather, deceased, against the executor and other heirs, to have the will of the decedent set aside and declared null and void because of the uncertainty of its provisions. Omitting the formal beginning and conclusion, the following is the will as admitted to probate: “After all my debts are paid and discharged, that the residue of my property, both real and personal, shall remain as my estate as long as I have a living child. .The rents, use and interests of my estate, both personal and real, I dispose of as follows: First, to my beloved wife, Maria, I will and bequeath one-third of the net income of my estate, both personal and real, during her life, if she accepts it in lieu of dower. Secondly, I will and bequeath to my children the remaining two-thirds of the net t income of my estate, ”—naming each child,—“during the life of their mother, and after the death of their mother, the whole of the net income of my estate during then lives; and should any of my children die before the time for the final division of my estate, leaving heirs of their body, then their children shall take the share of their parent until the final settlement of my estate, and at the death of my last surviving child my will is that my estáte be equally divided between my grandchildren, they to share and share alike. Should any of my grandchildren die before the final division of my property, leaving heirs of their body, their children to take the share of their parent. I hereby appoint my son-in-law, Jonathan Eoyse, and my son, Asa F. Mather, to be executors of this my last will and testament. ”

There can be no doubt as to what the intention of the testator was concerning the disposition of his property. It was, that all of it, both real and personal, should be kept together as one entire estate—the net income of which, in the meantime, was to go to his children—until the death of his last surviving child, and on the happening of that event his whole estate to be equally divided between his grandchildren, they to share and share alike; and should any of his grandchildren die before the final division of his estate, leaving heirs of their body, their children to take the share of their parent. That this was the intention of the testator is so plainly expressed in simple, terse English words, as to admit of no doubt, and his intention ought not to be defeated by any technical rules concerning the construction of wills, if-it is possible to prevent it without any palpable violation of what are known as rules of property.

It is certain the grandchildren of the testator living at the time of the death of his last surviving child, or the children of such of his grandchildren as shall die before the happening of that event, are to take the remainder of the estate after the determination of the estate ‘ of his own children, whatever that may be. The difficulty in the case lies in ascertaining what estate is devised to the children of the testator. It is said the will is invalid for the reason that, according to its terms, no title to the property left by the testator is to pass to any one so long as he has a living child, as only the net income of his estate is bequeathed to his children during their lives, and hence, it is contended, there is no freehold to keep the seizin for the remainder-men. This, it is thought, is not a correct reading of the will. The law is, and so this court has distinctly ruled in Handberry v. Doolittle, 38 Ill. 202, that a devise of rents and profits will pass the land. In support of this doctrine this court cited Okeden v. Okeden, 1 Atkyns, 552; Hall v. Carter, 2 id. 358; Mills v. Banks, 3 P. Wms. 7: So in this case a devise of the net income of his estate to his wife and children, during their lives, is a devise of the property to them during their lives. It is clear this was the intention of the testator, and without the aid of technical terms applicable to such matters, it is hardly possible that intention could have been more certainly expressed. This construction, it will be seen, conforms to the context. The fact the children of any of his children that should die first should take the share of their parent until the period of the final division of the estate should arrive on the death of the last surviving child ■ of the testator, gives additional strength to the construction adopted. That which was done was a devise of his estate to his children during their lives, and on the death of the last surviving child the remainder to go to his grandchildren, or their children, living at the period of distribution. A particular estate would then vest in his children at the death of the testator,, and it is such an estate in them as will support the remainder in the grandchild to whom it is devised. That being so, the children of the testator took a particular estate which would prevent the estate devised to the grandchildren from-vesting in possession at the death of the testator, and thus it would let in after-born grandchildren. Adopting this construction, the ease is relieved of much difficulty, and effect can be given to the plainly expressed intention of the testator. On this subject the rule of law is, where a will carves out a particular estate which intervenes the death of the testator and the period of distribution of an estate devised to a class, then all persons belonging to such class living at the time the estate is to be divided, are included, notwithstanding some of them may he born after the death of the testator. Under this doctrine, which has for its support the weight of authority, all grandchildren living at the termination of the life estate of the-testator’s children, as well those born after as before his death, will be permitted to share in his estate.

There still remains a question to be considered, not free from difficulty. It is as to the management of the estate until the period of final distribution shall arrive. It would seem to be a reasonable construction, and one that would comport best with what appears to have been the manifest desire of the testator, it should remain in the hands of the executors named to execute the will. It will be observed only the “net income” of the estate is to be enjoyed by the children of the testator, and that will arise from personal as well as real estate, for the estate consists of both real and personal property. Unless this is the meaning of the will, it is not perceived how the personal estate could be preserved for the benefit of the several takers under the will. The devise is to a class, viz., to the children of the testator, and an intention is clearly expressed the estate shall be kept together as the estate of the testator until the period of distribution appointed by the will shall arrive. It is obvious this could only be done by the executors retaining the management, and paying to parties entitled thereto the “net income ” of the estate, whether derived from the personal or real property.

The decree of the circuit court will be affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    Novel Blair v. Lyman B. Ray et al.

      Filed at Ottawa May 12, 1882

      Rehearing denied September Term, 1882.

    1. Bill of exceptions—when necessary—presumption in support of judgment. If a plaintiff wishes to assign for error the dismissal of his suit on motion, he should present the ground on which the court acted in a bill of exceptions, so that the error, if any, may clearly appear from the record. Where no reasons are assigned for a motion to dismiss a suit, nor any given which led the court to its action, it will be presumed that the dismissal was , correct.
    2. Practice—dissolution of injunction as to suit at law-—of the proper entry to be made. Where an entry is made showing that the proceedings in an action at law have been enjoined in equity, and the suit at law continued for that reason, it is proper, before proceeding with the cause, that an entry should be made of record showing the dissolution of the injunction.
    3. Dismissal of suit at law—after dissolution of imjunction—sufficiency of grounds for dismissal. An order dismissing an action of replevin and ordering a return of the property, reciting that it appearing to the court that an injunction restraining the further prosecution of the suit has been dissolved, is not sufficient to show the reason for the dismissal. It shows only that the court was authorized to proceed in the cause. The dissolution of the injunction does not of itself furnish ground for a dismissal of the suit enjoined.
    4. Replevin—whether property was replevied—presumption—admission. Although the sheriff’s return to a writ of replevin fails to show a taking of the property under the writ, and its delivery to the plaintiff, it will be presumed in favor of a judgment for a return of the property, in the absence of any contrary showing in the record, that there was evidence justifying the action of the court. And an assignment of error questioning the propriety of the action of the court below in ordering a return of the property replevied, seems to be an implied admission that the property had been in fact replevied.
    Writ of Bbbob to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of Grundy county; the Hon. Josiah McBobebts, Judge, presiding.

      Mr. A. W. Bulkley, for the plaintiff in error :
    The Appellate Court based its decision upon the presumption that the circuit court had sufficient evidence to authorize the judgment of dismissal, in the absence of a bill of exceptions. Blair v. Ray et al. 5 Bradw. 453.
    That position is untenable, as no bill of exceptions lies in such a case. It only lies as to matters occurring during the progress of the trial. Clemson v. Kraper, Beecher’s Breese,. 210; Doe v. Spraggins, 1 Scam. 330; Arentz v. Riehle, id. 340; Rev. Stat. 1874, chap. 110, secs. 60, 62.
    If the record shows affirmatively that a motion is sustained for a particular reason, it is sufficient to bring up the cause for review without the aid of a bill of exceptions. Randolph v. Emerick, 13 Ill. 344.
    In this case the record shows, by clear inference at least, that the suit was dismissed because the injunction of the suit had been dissolved. The assigning of one special cause or reason precludes the presumption that there were other reasons.
    When the errors are shown by the record of a cause, a bill of exceptions is unnecessary. Van Dusen v. Pomeroy, 24 Ill. 289; Gallimore v. Duzy et al. 12 id. 143; Casey v. Harvey, 14 id. 45.
    A defendant who has suffered a judgment by default, can have no bill of exceptions. Morton v. Bailey, 1 Scam. 213.
    The statute only authorizes an order for0 a return of the property replevied, when the plaintiff fails to prosecute his suit, or suffers a non-suit _ or discontinuance, or when the right of property is adjudged against him. Rev. Stat. 1874, chap. 119, sec. 22.
    The plaintiff did not fail to prosecute, or suffer a non-suit or discontinuance, and there was no adjudication against him, and hence there was error to award a return. Besides, there is no indorsement on the writ that the property ever was replevied. To authorize the order for a return it must appear the plaintiff has the property. Prentiss v. Moore, 3 Bradw. 539.
    Messrs. Hill & Dibell, for the defendants in error :
    The clerk’s entry does not bear the construction that the court dismissed this suit because of the dissolution of the injunction which had restrained its progress. It is not in the province of the clerk to preserve the evidence or recite the facts on which the court acts. These matters can be preserved in the record only by a bill of exceptions. Herman v. Pardridge, 79 Ill. 477.
    It is an error to suppose the plaintiff could not have taken a bill of exceptions. They are required in the following cases not at all mentioned in the statute:
    Motions, and affidavits, to dismiss for want or insufficiency of bond for costs, and cross-motions for leave to file bond, and the ruling and exception. Lucas v. Farrington, 21 Ill. 32; Douglass v. Parker, 43 id. 146; Neely v. Wright, 72 id. 292; Leonardo v. The People, 81 id. 308; Hyatt v. Brown, 82 id. 28. Proof of service of copy of- narr. and rule to plead, where such service was required by law, and default had been taken. Iglehart v. Pitcher, 17 Ill. 308. Notice of motion to supply lost files, and the evidence heard before granting such motion. McElwee v. The People, 77 Ill. 494. Motions and affidavits to set aside default. Horn v. Neu, 63 Ill. 539. Motions to strike pleas, affidavits with pleas, affidavits of claim, from the files. Hay v. Hayes, 56 Ill. 343; Snell v. Trustees, 58 Ill. 290; Gaddy v. McCleave, 59 id. 182; Barger v. Hobbs, 67 id. 596; Harms v. Anfield, 49 id. 288. Motions, petitions and affidavits for change of venue. (Notice the statute relied on by plaintiff does not provide for such exceptions, save in criminal cases.) Schlump v. Reidersdorf, 28 Ill. 68; McElwee v. The People, 77 id. 493. Affidavits on motion to quash a venire. Murphy v. The People, 37 Ill. 455. The ruling and exception thereto on motion to quash petition and writ of certiorari, and to dismiss appeal-. Thompson v. White, 64 Ill. 314. Petition, motion, affidavit and bond to remove cause to United States Circuit Court, and exception to ruling thereon. Hartford Fire Ins. Co. v. Vanduzor, 49 G. 489; Cromie v. Van Nortwick, 56 id. 353; Home Ins. Co. v. Heck, 65 id. 112. Motion to retax costs. Darst v. Collier, 86 Ill. 101. Affidavits on motion to quash execution and set aside judgment. Roundy v. Hunt, 24 Ill. 598; Smith v. Wilson, 26 id. 187; Austin v. Lott, 28 id. 519; McKindley v. Buck, 43 id. 490.
    In the absence of a bill of exceptions showing an error, every intendment will be made to sustain the action or judgment of the court below. Magill v. Brown, 98 Ill. 235; Barger v. Hobbs, 67 id. 596; Gardner v. Russell, 78 id. 292; Bulger v. Hoffman, 45 id. 352; Casey v. Harvey, 14 id. 45; Fanning v. Russell, 81 id. 398; St. Louis and Southeastern R. R. Co. v. Wheelis, 72 id. 539; Herman v. Pardridge, 79 id. 472.
    The statute authorizes a return of the property if the plaintiff fails to prosecute his suit with effect, which means with success. Brown v. Parker, 5 Blackf. 292.
    In the absence of a bill of exceptions it will be presumed the court properly awarded a return of the property.
   Mr. Justice Sheldon

delivered the opinion of the Court

This was a suit in replevin, brought by plaintiff in error against defendants in error, to recover certain personal property claimed to belong to plaintiff. The record shows that at the March term, 1876, of the Grundy county circuit court, in which the suit was instituted, the ' plaintiff filed his declaration, to which defendants filed two pleas; that a demurrer was sustained to them, and that further proceedings in the case were enjoined by injunction from the chancery side of the same court. At the March term, 1877, of the court, the following order was entered of record, finally disposing of the case:

“Now, on this 23d day of March, A. D. 1877, come the said defendants, by Messrs. Hill & Dibell, their attorneys, and enter herein a motion to dismiss this suit, and for an order of return of the property replevied; and it appearing to the court that the injunction heretofore granted by this court, at the suit of Novel Blah’, against the said defendants, on the chancery side of this court, has, on a final hearing of said cause, been dissolved, therefore it is ordered by the court that this suit be and the same hereby is dismissed, and that said defendants do have and recover of and from the said plaintiff the possession of the property replevied herein, and that said plaintiff make return thereof, together with their costs and charges in this behalf expended, and that a writ of retorno habendo and fi. fa. for such purpose issue out of this court; to which motion said plaintiff, by his attorney, objected, and then and there excepted to the ruling and judgment of the court. ”

On error, the Appellate Court for the Second District affirmed the judgment, and the plaintiff brings the record to this court, and urges a reversal of the judgment of the Appellate Court.

There is no bill of exceptions in the case.. The record does not disclose the reasons which defendants assigned for their motion to dismiss, the proofs they adduced, nor the reasons which led the court to its decision. It does not show, then, the judgment of the circuit court to be erroneous, and it is to be presumed to be correct where it is not shown by the record to be otherwise. Numerous are the cases which have thus held. In Barger v. Hobbs, 67 Ill. 592, where a plea of former recovery had been stricken from the files by the court below, this court said: “The orders and judgments of the circuit court are presumed to be correct, and it is only when they are clearly shown by the record to be otherwise, that we are authorized to disturb them. If counsel desired us to pass upon the correctness of this ruling of the circuit court, he should have preserved the plea, and the ruling of the court thereon, in his bill of exceptions. Not having done so, we must presume that the court properly struck the pleas from the files.” In Bulger v. Hoffman, 45 Ill. 352, the suit had been dismissed by the circuit court, and no bill of exceptions filed. The dismissal was assigned for error. This court held, that in the absence of a bill of exceptions “we must presume the appeal was dismissed for non-compliance with some proper rule or order of the court. It is impossible for this court, on what appears, to say why the appeal was dismissed. Appellant should have preserved the point by a bill of exceptions. ” In Fanning v. Russell, 81 Ill. 398, the circuit court, on motion, struck meritorious pleas from the files and rendered judgment by default, which was assigned for error. It was there said: “We can not, on this transcript, review the judgment of the circuit court in striking the pleas from the files. We have nothing in the record showing what cause was made to appear before that court. There is no bill of exceptions preserving the evidence heard by the circuit court on' that motion. It will not be denied that cases may occur where such an order would be proper. There being no bill of exceptions to show the contrary, this court will presume that a proper case for such an order was made before the circuit court. ” And see Casey v. Harvey, 14 Ill. 45. Many more cases to like effect might be cited. These cases sufficiently answer the point made by plaintiff that a bill of exceptions is not authorized to be taken in the case of a motion like the present.

The point is made that the order of dismissal shows the reason for the dismissal of the suit, to-wit, that the injunction against the prosecution of the suit had been dissolved, and that where the order of dismissal itself shows the ground of the action of the court, there is no bill of exceptions necessary, citing Randolph v. Emerick, 13 Ill. 344, as so deciding. In that case the court said: “The record recites a motion made by the defendant to dismiss the suit because no bond for costs had been filed by the plaintiff. This statement is sufficient to bring up the decision of the circuit court for revision. It affirmatively appears, from an entry on the record, that the court sustained a motion to dismiss, which the defendant had no right to interpose. ” What was there held was no more than that the clerk’s entry was sufficient to show the character of the motion, and it being one of a dilatory nature, was not permissible after the time to plead in abatement had passed, so that it affirmatively appeared from the record that the defendant had no right to interpose the motion, and that it was error in the court to entertain it, the case showing that defendant had demurred to the declaration before making the motion to dismiss. In the present case the record does not show what was the ground of the motion for the dismissal of the suit, and we think there is room for doubt as to what was the ground upon which the court dismissed the suit, and hence it is not clearly shown by the record that there was error.

Does the order of dismissal, as plaintiff’s counsel avers, show the ground of the court’s decision in dismissing the suit ? At the preceding term an entry had been made on the record that it appeared to the court that the cause was enjoined by proceedings in equity, and the case was continued to the next term. At the next term the motion is made to dismiss, and before proceeding to act upon that motion, it would have been very proper that it should have been made to appear to the court that the injunction had been dissolved, and make entry thereof on the record. Accordingly, the order of dismissal recites the entry of the motion, that it appeared to the court the injunction had been dissolved on final hearing, and therefore it is ordered that the suit be dismissed. Manifestly the mere removal of the injunction to proceed in the cause would furnish no reason for the dismissal of the suit—it would but afford justification for proceeding to act upon the motion; and it would seem to be the proper construction of the order that it does not show the whole reason for the dismissal of the suit, but that it shows only a part of the reason of the court’s action in the matter of the dismissal of the suit, to-wit, the reason for proceeding to act upon the motion; 'but that the ground of the court’s decision in dismissing the suit rested upon the reasons which defendants assigned for their motion to dismiss, and the matter which was submitted to the court in support of the motion, all which the record fails to show. It is easy to conceive there might have been matter submitted to the court which would have justified the order of dismissal—there might have been a stipulation to dismiss. Plaintiff’s objection to the motion does not rebut this.

It is claimed.it was error to award a return of the property because there was no return by the officer upon the replevin writ, and therefore nothing to show plaintiff had obtained possession of the property. One assignment of error in the Appellate Court was, that the court below erred in ordering a return of the property replevied. This would seem to be an implied admission that plaintiff had got back the property by the writ; If plaintiff had failed to get the property, we must think he would, under the statute, have turned his action into one of trover. But it seems enough to say, that for all this record discloses it may have sufficiently appeared before the court, on the hearing of the motion to dismiss and for an order of return, that the property had in fact been seized by the officer and turned over to the plaintiff, and in support of the order of return this court will so presume.

The judgment of the .Appellate Court is affirmed.

;Judgment affirmed.


author: Mr. Justice Scholfield

text:
    Stephen Gosselin v. The City of Chicago.

      Filed at Ottawa May 12, 1882

      Rehearing denied September Term, 1882.

    1. Dedication fob streets—what becomes of the fee. A statutory dedication vests the legal title to the soil, marked and properly designated for streets, in the city, while a common law dedication leaves the legal title in the original owner.
    2. Same—insufficient acknowledgment of plat—estoppel—common law dedication. The owners of land laid out into lots and streets by an agent not authorized to acknowledge the plat thereof, by the sale of the lots will be estopped from questioning the existence of the streets. Such acts will constitute a dedication at common law.
    3. Town plat—acknowledgment by attorney in fact—its effect. Under the “Act providing for the recording of town plats,” in - force February 27, 1833, an attorney in fact was not authorized to acknowledge such plats, and a plat so acknowledged will not vest the legal title of the streets in the corporation.
    4. Power of attorney to sell and convey—extent of authority given thereby, A power of attorney to sell and convey real estate simply, confers no power to lay off the same into town lots, so as to vest the fee of the streets in the municipality for the use of the public, nor does it authorize the agent to make a partition.
    Appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Mr. Henry Booth, and Mr. F. W. Young, for the appellant :
    Under the act of 1833, the plat of land laid out into lots, etc., was required to he acknowledged by the proprietor of the land. It could not be acknowledged by an attorney in fact. Laws 1833, p. 599.
    This mode of passing the title, namely,—by making, acknowledging and recording the plat,—is entirely a creation of the statute, and nothing short of a compliance with all the terms of the statute will make it effectual.

      Where the corporate authorities of a town claim the fee to the streets and alleys within its limits, it must appear that a plat has been regularly made and recorded. In such case it is the acknowledgment and recording of the plat that vests the fee in the corporation. Manly v. Gibson, 13 Ill. 312.
    The difference between a statutory and a common law dedication is, that the one vests the legal title to the ground set apart for public purposes in the municipal corporation, in trust for the public, while the other leaves the legal title in the original owner. Chicago, Rock Island and Pacific R. R. Co. v. Joliet, 79 Ill. 32.
    The city may acquire the right to the use of the street or road “by dedication or common user, and in such case the fee would remain in the original proprietor, burdened with a public easement. ” Indianapolis, Bloomington and Western R. R. Co. v. Hartley, 67 Ill. 442; Gebhardt v. Reeves, 75 Ill. 304.
    There having been no proper acknowledgment, there was no statutory dedication. There was nothing more than an easement, and ejectment does not lie to recover an easement. 3 Blackstone’s Commentaries, 206.
    Ejectment is not the proper remedy for the disturbance of an easement. Tyler on Ejectment, 41; Adams on Ejectment, 20; Washburn on Easements, 693.
    The proper remedy is by injunction, trespass, or case. Gale on Easements, 660; Goddard on Easements, 222.
    Mr. Francis Adams, for the appellee :
    If the acknowledgment of the plat by an attorney was not authorized by law, there is abundant evidence that the principals ratified his act in making and recording the plat, and this removes the objection. Smith v. Town of Flora, 64 Ill. 93; Gridley v. Hopkins, 84 id. 528; Hague v. Inhabitants of Hoboken, 23 N. J. Eq. 354.
    The mode prescribed by the statute of 1833 for dedicating land to the public for streets, etc., is a mere mode of conveyance. (Morgan v. Railroad Co. 96 U. S. 716.) And such conveyance may be made by an agent, or if made by one purporting to act as agent, but without prior authority, may be ratified.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was ejectment by.the city of Chicago, against Stephen Gosselin, for a portion of Second street, particularly described in the declaration.

The court instructed the jury, on behalf of the plaintiff, as follows:

“There being no disputed question of fact, it becomes your ¡ duty to render the following verdict in this cause: We, the jury, find the defendant guilty, and that the plaintiff has title in fee simple to the premises described in the declaration. ”

The jury found in accordance with this instruction, and the only question' we deem it necessary to consider is, did the proof show a statutory dedication so as to vest the fee of the soil of the street in the city ?

A statutory dedication vests the legal title to the soil, marked and properly designated for streets, in the city, while a common law dedication leaves the legal title in the original owner. Indianapolis, Bloomington and Western R. R. Co. v. Hartley, 67 Ill. 439; Gebhardt v. Reeves, 75 id. 301; Chicago, Rock Island and Pacific R. R. Co. v. City of Joliet, 79 id. 25. In the present case, therefore, it may be conceded the proof established a good common law dedication without at all affecting the present question.

The soil originally belonged to Russell, Mather & Roberts, and the contention is, that through their attorney in fact, Gurdon S. Hubbard, they duly acknowledged and recorded a plat, having this street properly designated and marked thereon, on the 22d day of July, 1835, and that they thereby vested the fee of the street in the municipality. The statute then in force in regard" to the acknowledging and recording of such plats, was the “Act providing for the recording of town plats,” in force February 27, 1833. (Rev. Stat. 1833, p. 599.) But that act nowhere authorizes attorneys in fact to acknowledge such plats. The provision is, that “county, commissioners, or other person or persons, ” who “wish to lay out a town in this State, or an addition of out-lots, said commissioners, or other person or persons, shall cause the same to be surveyed, and a plat or map thereof made, ” etc. (Sec. 1.) The “county commissioners, proprietor or proprietors of the town, addition or subdivision of out-lots, by themselves or agent, shall, at the time of surveying and laying out the same, plant and fix at a corner of the public ground, or at the corner of a public lot, * * * a good and sufficient stone, ” etc. (Sec. 3.) And “the plat or map, after having been completed, shall be certified by the surveyor and the county commissioners ; and every person or persons whose duty it may be to comply with the foregoing requisitions, shall, at or before the time of offering such plat or map for record, acknowledge the same before a justice of the Supreme Court, a justice of a circuit court, or a justice of .the peace in the county where the land lies. A certificate of such acknowledgment shall be, by the officer taking the same, indorsed on the plat or map, -which certificate of the survey and acknowledgment shall also be recorded, and form a part of the record. ” (Sec. 4.) The only thing here contemplated to be done by an attorney in fact, is the planting and fixing of “a good and sufficient stone” at the corners of the lots, public grounds, etc., and this requirement is imposed as a duty on the county commissioners, or proprietor or proprietors of the town, but allowed to be discharged by them through agents. It is the county commissioners, or other persons wishing to lay out a town, etc., who are to cause the survey to be.made, and a plat or map thereof to be made, by the county surveyor, etc. And the persons referred to in section 3 as those “whose duty it may be to comply with the foregoing requisitions, ” are plainly only those whose duty it is to cause the survey and plat to be made,—i. e., those wishing to lay out a town, etc.,—the proprietors.

Section 16 of the “Act concerning conveyances of real property,” in the Revised Statutes of 1833, (see page 135,) provides, that “all powers, or letters of attorney or agency, authorizing the granting, selling, conveying, assuring, releasing or transferring, or for the executing or acknowledging of any grants, sales, leases, assurances, or other conveyances or writings whatever, concerning any lands and tenements, or whereby the same may be affected in law or equity, shall be acknowledged, or proved, and recorded, as hereinbefore required in cases of deeds and other assurances, after which all grants, conveyances and assurances made and acknowledged pursuant to the powers granted, unless the same be revoked by a deed duly acknowledged or proven, and recorded, as aforesaid, shall be as valid and effectual as if executed and acknowledged by the constituent or constituents.” But a town plat is neither a grant, conveyance, nor assurance.

As to the public grounds, streets, etc., it is true its effect is that of a conveyance, but it goes further, and changes the entire character of the property. Surely it could not be pretended that under a specific power to sell and convey a tract of land power would be implied to lay off towns; and if it would require a particular specification in the deed to confer this power, it can need no argument to prove that such an instrument is not here contemplated. A power to sell, simply, does not authorize a partition. McQueen v. Farquhar, 11 Vesey, 467; Sugden on Powers, (3d Am. ed.) vol. 2, p„ 428. The principle would seem to be entirely analogous to that here involved.

That the original owners of the soil are, by their sales, estopped from questioning the existence of the street, is conceded, and so far as affects the public there would seem to be no ground to question but there has been a good common law dedication of the streets, but we do not think the statutory-dedication was ever complete; and so we hold that the court erred in instructing the jury to find that the city has the fee in the street.

The judgment is reversed and the cause remanded.

Judgment reversed.

Dickey and Sheldon, JJ.: We do not concur in this decision.


author: Mr. Chief Justice Craig

text:
    Ann Furlong, Admx. v. Margaret Riley et al.

      Filed at Ottawa May 12, 1882

      Rehearing denied September Term, 1882.

    1. Practice—taking advantage of laches by demurrer. Where the laches of a complainant sufficient to bar a recovery appears on the face of the bill, the defendant may raise the question of the sufficiency of the bill as well by demurrer as by answer.
    2. Where an administrator’s petition for leave to sell real estate to pay debts, filed more than seven years after the grant of letters, attempts to give an excuse for the delay, and thereby to avoid the defence of laches, the question of laches is properly presented by demurrer, and need not be set up by answer.
    ■ 3. Limitation—as to administrator’s application for sale of land. A delay of seven years from the grant of letters by an administrator to apply for an order for the sale of land to pay debts, when not sufficiently explained, showing a valid reason for the laches, is sufficient to defeat the application.
    4. Same—sufficiency of reasons for delay. The fact of the destruction of the records and files of the court by fire., and the neglect, for a number of years, of the administratrix (who was the widow) to have her award fixed by the appraisers, will not furnish sufficient ground to excuse a delay of ten years after the grant of letters in applying for an order to sell real estate of the intestate to satisfy such widow’s award. The administratrix can not urge her own neglect of duty as a ground for avoiding the limitation.
    5. Administration of estates—widow’s award—duty of appraisers —remedy in case of delay. It is the duty of the appraisers of an estate to proceed at once to fix the widow’s award, and if they fail to do so, she, having herself become administratrix, may in that capacity, under sec. 75, chap. 3, Revised Statutes, compel them to discharge such duty. It is her duty to see that this is done in a reasonable time, if she desires such award.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Probate Court of Cook county; the Hon. Joshua C. Knickerbocker, Judge, presiding.
    Messrs. M. A. Rorke & Son, for the appellant :
    The practice in proceedings of this character is the same as in chancery. Hurd’s Stat. 1881, page 117, sec. 101; Marshall v. Rose, 86 Ill. 374; Hobson v. Ewan, 62 id. 146.
    The question of laches can not be raised by demurrer to the bill or petition, but must be presented by answer. Clark v. Hoyle, 52 Ill. 427; Harrison v. Cornell, 80 id. 54; O’Halloran v. Fitzgerald, 71 id. 53; School Trustees v. Wright, 12 id. 432; Thompson v. Scott et al. 1 Bradw. 64.
    Appellant’s petition fully accounts for the apparent delay in filing her petition, and there is no limitation by statute. Reed v. Colby, 89 id. 104.
    The demurrer admits all the facts well pleaded in the' petition. Stowe v. Russell, 36 Ill. 18; Harris v. Cornell, 80 id. 54.
    The following are the cases in this court where the question of laches has been considered: McCoy v. Morrow, 18 Ill. 519; Unknown Heirs of Langworthy v. Baker, 23 id. 404; Rosenthal v. Renick et al. 44 id. 202; Moore v. Ellsworth, 51 id. 308; Bunsen v. Goodspeed, 68 id. 277; Wolf et al. v. Ogden, 66 id. 224.
    Messrs. Ellis & Meek, for the appellees :
    Nothing is better settled in chancery practice than that the Statute of Limitations may be interposed as a defence by demurrer. Story’s Equity Pleading, secs. 484, 505, 751, and cases there cited.

      Our court has held that the application must be brought within seven years from the grant of letters, unless some reasonable excuse is given for the delay. McCoy v. Morrow, 18 Ill. 519; Rosenthal v. Renick, 44 id. 202; Moore et al. v. Ellsworth et al. 51 id. 308; Clark et al. v. Hoyle et al. 52 id. 427; Bishop et al. v. O’Conner et al. 69 id. 431.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

This was a petition brought by Ann Furlong, administratrix of the estate of Patrick Furlong, deceased, to obtain a decree to sell the real estate belonging to the deceased at the time of his death. The defendants interposed a demurrer to the petition, and as a ground for demurrer alleged “that the petition shows upon its face that the relief prayed for is barred by the Statute of Limitations, and that the real estate described is not subject to sale to pay said award. ”

It is first contended by appellant, that the question of laches can not be raised by demurrer, but must be presented, if at all, by an answer to the petition. There are eases, no doubt, where the defence of laches, to be availing, must be set up in the answer. Such was School Trustees v. Wright, 12 Ill. 432. But this is not a ease of that character. Here the petitioner undertook in the petition to account for the delay, and hence no necessity existed for an answer, all the facts fully showing the delay appearing in the petition, and the demurrer brings before the court the sufficiency of the allegations. If the facts set up by the petitioner afford a legal excuse for not filing the petition at an earlier day, then the demurrer should have been overruled. On the other hand, if the facts alleged do not show sufficient ground for the delay, then the' demurrer was properly sustained. The demurrer to the petition presented the question of laches as fully and clearly as an answer would have done had one been filed, and hence no necessity existed for putting in an answer. Hall v. Fullerton, 69 Ill. 448, is in point here. There it was held that the rule requiring a defendant in a chancery suit to set up and insist on the complainant’s laches on filing his bill, is for the purpose of enabling the complainant to amend his bill and account for the delay, so as to admit proof to meet the objections, and will not be extended to a case where the bill attempts to account for the delay. Indeed, where the laches of a complainant sufficient to bar a recovery appears on the face of a bill, no reason is perceived which would prevent a defendant from raising the question as to the sufficiency of the bill as well by demurrer as by answer, and this is believed to be fully sustained by the authorities. See Story’s Equity Pleading, secs. 484, 751, and cases there cited.

It is, however, contended, that if the laches of petitioner can be raised by demurrer, she is not barred, and the decision of the probate court holding that she was, is erroneous. We are aware of no statute prescribing a definite period within which an administrator is required, after letters issue, to present a petition for leave to sell real estate; but this court has in a number of cases held, that in analogy to the lien of judgments on real estate and thb bar of entries into lands after seven years, that period would be regarded as a reasonable time. Bishop v. O’Conner, 69 Ill. 431. In Moore v. Ellsworth, 51 Ill. 308, the court uses the following language: “Each case must be judged upon its own merits, and all that can be said as a general rule is, that a delay of seven years, if unexplained, is a sufficient reason for refusing the order. ” Under the rule announced in the last case cited, can the petition be sustained ?

It appears from the petition that letters of administration issued to appellant, who was the widow, July 20, 1871. A period of almost ten years was allowed to pass before the application to sell land was made. This delay, if unexplained, was a sufficient reason for denying the order of sale. We will examine some of the reasons given for the delay which are claimed to be sufficient to take the case out of the operation of the general rule. It is said the records of the probate court, and the files relating to this estate, were destroyed by fire, October 9, 1871. We do not, however, regard this as sufficient excuse for the delay. The petitioner could at any time, with but a trifling expense, have restored the lost record and papers, and then gone on and obtained a decree of sale of the land. It is also said that the widow’s award, which is the only claim upon which the petition was predicated, was not made and appraised until the 9th day of March, 1881. This was, however, the fault of petitioner. It was the duty of the appraisers to proceed at once to fix the amount of the widow’s award, and if they failed to do so, she had it in her power, at any time, under sec. 75, chap. 3, Rev. Stat. 1874, to compel them to discharge their duty. The fact, therefore, that the amount of the widow’s award was not determined at an early day, is the fault of the widow, and no one else. She was the administratrix, and the only person interested in the widow’s award, and it was her duty to get the appraisers together, and see that they acted within a reasonable time, if she desired the award provided by the statute. This, however, she faded to do, and now undertakes to rely upon her own negligence to arrest the running of the Statute of Limitations. The delay of the administratrix in filing a petition to sell real estate, has not, in our judgment, been satisfactorily explained, and the decree of the probate court that she was barred by her laches, was right. The applications for a sale of lands by administrators many years after letters have been issued, are often made on fictitious and unfounded claims, and justice and a proper administration of the law require that they should be scrutinized with a jealous eye. In this ease, had the administratrix discharged her duty, this estate would have been settled within two years from the time letters were issued, but for some unexplained reason she does nothing for nine or ten years, and then undertakes to invoke the aid of the court to sell real estate in satisfaction of a claim due her, known as the widow’s award. We know of no more appropriate case to invoke the doctrine of laches than this one. It is quite apparent if the widow had regarded her application for a decree as meritorious, she would not have slept on her rights so long.

The decree of the Appellate Court will be affirmed.

Decree affirmed.


author: Mr. Justice Dickey

text:
    Benjamin F. Fridley v. Edwin A. Bowen et al.

      Filed at Ottawa January 18, 1882

      Rehearing denied September Term, 1882.

    1. Application op payments—in case of a special security for part of a debt—as to the privilege of the creditor. A, and a coal and iron company, in which he was largely interested, being indebted to a bank in the sum of $17,000 for advances, A made and delivered his note and mortgage for $10,000, payable to the order of B, in one year, with interest, to secure $10,000 of the debt due the bank, after which A conveyed the premises to G, with covenants of warranty, upon a valid consideration, and from time to time made payments to the bank until over $12,000 of the debts making up the sum of $17,000 were paid, without giving any directions as to what part of the indebtedness the payments should be applied: Held, that the payments thus made discharged the note and mortgage.
    2. The note and mortgage were pledged as collateral security for the payment of $10,000 of the $17,000 due, and not for the payment of the latter amount. In such a case no privilege is left with the creditor to apply the payments to a part of the debt not covered by the pledge.
    3. It is one thing for a man to bind his land to the extent of $10,000 that the whole of a $17,000 debt shall be paid, and quite another thing to bind his land to the extent of $10,000 that ten-seventeenths of the whole debt shall be paid. In both cases the charge upon the land is limited to the sum of $10,000, but in the first- case it can only be discharged by payment of the whole of the $17,000, or by payments made to that extent specifically on the mortgage note, or specifically to discharge the lien upon the land, while in the latter case the land is discharged by the payment of any part of the $17,000 debt to the extent of ten-seventeenths thereof.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    Mr. R. G. Montony, for the appellant :
    The law is well settled that where the debtor’s own negotiable note is taken for a preexisting debt, it is prima facie evidence of payment, and when such note is taken by the creditor for an antecedent debt, it will be presumed to have been taken in satisfaction of it, unless it be shown to have been intended as collateral security. 2 Greenleaf on Evidence, secs. 519, 520; Cornwall v. Gould, 4 Pick. 444; Barclay v. Gooch, 2 Esp. 531; Thatcher v. Densmore, 5 Mass. 299; Huse v. Alexander, 2 Metc. 157; Babcock v. Hawkins, 23 Vt. 561; Ryan v. Dunlap et al. 17 Ill. 40; Smalley v. Edey, 19 id. 207; Ralston et al. v. Wood, 15 id. 171; Wilkinson v. Stewart et al. 30 id. 58; White v. Jones etal. 38 id. 162; Walker et al. v. Douglas et al. 70 id. 451; Yates v. Valentine, 71 id. 644; Morrison v. Smith, 81 id. 223; Nevins et al. v. Gourley et al. 95 id. 206; Castleman v. Holmes, 4 J. J. Marsh. 1; Dixon v. Dixon, 31 Vt. 450.
    From the foregoing authorities the' settled rule in this State appears to be:
    First—When there is no express agreement showing the •intention of the parties, the law will presume, if the negotiable paper is given for the antecedent debt, that it was given in payment thereof, and that the same is satisfied and a new debt created.
    Second—Where it is intended merely as collateral or additional security for the debt, there must be an express agreement or acts of the parties sufficient to show that such was the intention.
    Third—That whether it is intended as payment or additional security, is a question of fact, to be proved as any other fact, taking into consideration the purposes and objects for which it is given, the acts of the parties at the time, and all the attendant circumstances.
    We contend, however, that it is not necessary to show that the $17,000 has all been paid. Under the terms of the contract, when Taylor paid $10,000 of the $17,000, the mortgage was satisfied,
    Mr. Frank J. Crawford, for the appellees :
    Upon the giving of the mortgage the antecedent indebtedness of $17,000 was thereby made to consist substantially of two debts, one of $10,000 secured, and the other of $7000 unsecured. Payments were made, it is true, but no directions were given by the debtor as to their application. The case therefore falls within the rule that when a creditor holds two debts against another, and one is secured and the other is not, and payments have been made by the debtor, and there is no evidence that he directed their application, it will be presumed that they were credited on the debt for which he held no security. Hare v. Stegall, 60 Ill. 380.
    The common law rules governing the application of partial payments, by a person indebted on more than one account, are:
    First—The person paying may, at or before the time of payment, prescribe the application of the payment.
    Second—If he omit to do so, the creditor may apply it as he pleases.
    Third—If neither applies the payment, the application devolves on the court, who will make such application as is reasonable and equitable.
    That the general principle is, that the creditor’s right of appropriation is indefinite, and may be exercised at any time, is established by a conclusive weight of authority in England and in this country. 1 American Leading Cases, (5th ed.) 345, *281; Arnold v. Johnson, 1 Scam. 196; McFarland et al. v. Lewis et al. 2 id. 344; Bayley v. Wynkoop, 5 Gilm, 449;

      Heintz v. Cahn et al. 29 Ill. 308; Lowery v. Gear, 32 id. 382; Sprague et al. v. Hazenwinkle, 53 id. 419; Bonnell v. Wilder, 67 id. 327; Wilhelm v. Schmidt et al. 84 id. 183; Davis Sewing Machine Co. v. Buckles, 89 id. 243; Chester v. Wheelwright et al. 15 Conn. 562; Jones on Mortgages, see. 348; Johnson's Appeal, 37 Pa. St. 268.
   Mr. Justice Dickey

delivered the opinion of the Court:

The First National Bank of Mendota, on the 25th of March, 1875, had advanced moneys to E. D. Taylor, and to the Illinois Coal and Iron Company, in which Taylor ° was largely interested, to such amounts that the entire indebtedness to the bank then amounted to the sum of $17,000, and each part thereof was evidenced by paper either made or indorsed by Taylor. Taylor on that day made and delivered to Bowen his own note and mortgage for the sum of $10,000, payable to the order of Bowen, one year after that date, with interest. This note and mortgage were made and delivered to Bowen “to secure $10,000 of this indebtedness to the 'bank of $17,000,” and for no other purpose. Soon after, the mortgage being duly recorded, Taylor, in consideration of equities claimed to. exist before the mortgage was made, conveyed the property mentioned in the mortgage to Fridley, with covenants against incumbrances. Taylor, from time to time, after the making of the note and mortgage, made payments to the bank, until over $12,000 of the debts making up the sum of $17,000 were paid. At the time when these payments were made no directions were given by Taylor as to what part of this indebtedness the payments should be applied. This is a bill by Bowen and the bank, brought to foreclose this mortgage, against Taylor, Fridley and others. Fridley alone makes defence. In the Superior Court of Cook county, in which the hill was filed, a decree, on hearing, was made, dismissing the bill as against Fridley. Bowen and the bank appealed to the Appellate Court. There the decree below was reversed and the cause was remanded, with specific directions to the court below to enter a decree charging the property in question with a lien for the sum of $4711.77, being the .amount still unpaid of the $17,000 debt to the bank. From this decree Fridley appeals to this court.

Upon the view taken of this case by a majority of the court, it is necessary to notice but one of the grounds relied upon by appellant. The proof shows that this note and mortgage were pledged to the bank as security for the payment of “$10,000 of the debt of $17,000” due the bank. More than $10,000 of that debt has been paid. That thing for the performance of which this property stood pledged has actually been done. It follows necessarily that the note and mortgage are thereby discharged of the lien of the bank. This note and mortgage were held for the benefit of the bank, by Bowen, as collateral security that ten-seventeenths of the debt of $17,000 should be paid to the bank. The note and mortgage were not pledged as security for the payment of the whole of the debt of $17,000. The nature of the contract, arising from the making of this note and mortgage, and their delivery to Bowen, is the vital question. The substance of that contract is the same as if, instead of pledging this note and mortgage, as was done, Taylor had executed to the bank a guaranty that ten-seventeenths of the $17,000 debt should be paid, and to secure that guaranty had executed the mortgage in question.

It is contended that when Taylor made payments the* bank had a right to apply the payments to that part of the $17,000 not covered by the security. If the guaranty had covered any specific part of the whole debt, this might have been so; but by the very terms of the -arrangement, as stated by the witness Bowen, the pledge had relation to that part of the debt which should be first paid. This being so, there was no privilege left to the creditor to apply the payments to a part of the debt not covered by the pledge. It is one thing for a man to bind his land to the extent of $10,000 that the whole of a $17,000 debt shall be paid, and quite another thing to bind his land to .the extent of $10,000 that ten-seventeenths of the whole debt shall be paid. In both cases the charge upon the land is limited to the sum of $10,000; but in the first case it can only be discharged by general payment of the whole of the $17,000, or by payments made to that extent specifically on the mortgage note, or specifically to discharge the lien upon the land, while in the latter case the land is discharged by the payment of any part of the $17,000 debt, to the extent of ten-seventeenths thereof.

The case of Chester v. Wheelwright, 65 Conn. 562, is not in point. The pledge in that case was in substance a charge upon the land to the extent of $3000, as security for the whole debt of $10,426. The party who sought to apply payments made generally upon the whole debt in discharge of the land, had bought the land subject to this mortgage. By the very terms of his purchase he accepted the burden, and undertook to pay it. Fridley bought the land with covenants against the burden, and did not undertake to pay it. The terms, purpose and mode of the pledge of the land in that case were entirely different from the terms, purpose and mode of the pledge in this case, and the equities between the parties were very different.

The confusion of appellee, in the case at 'bar, may arise, in a measure, from" the fact that the amount of the principal of the note and mortgage given is the same with the amount to be secured by the note and mortgage. Had this note and mortgage been made on its face for $20,000, payable one year from date, with interest, and had these papers in that form been pledged to the bank “to secure $10,000 of the $17,000,” or ten-seventeenths of that debt, could there be any doubt that the payment of $10,000, upon any part of the $17,000, would have released the pledge? When released from the pledge, the note and mortgage, whether on their face calling for $10,000 or $20,000, are of no further force, for it is not claimed that the note evidences' any real debt from Taylor to Bowen. In the case of Chester v. Wheelwright, the note given was to the creditor, and was evidence of real indebtedness to him. It was given in consideration of a larger indebtedness, and to secure the whole of that former indebtedness to that extent, and was not a mere pledge to secure so much of the entire debt. It is true, the mortgage in that case being merely for the amount of the note mentioned therein, the extent to which the land was pledged was limited to that amount, but to that extent it was security for the payment of the whole debt. The question there was, shall the payments made be credited upon the note mentioned in the mortgage ?—and it was held they should not. Here the contention is, not that these payments must be credited upon the note mentioned in the mortgage, but that such payments, being applied as credits upon any part of the $17,000 debt, have paid more than $10,000 of that debt, and thus they have discharged the note and mortgage from the lien of the bank; and the note and mortgage being so discharged from the bank lien, the same are of no- force in the hands of Bowen, for Taylor owed Bowen nothing. The giving of the note and mortgage to Bowen was a mere form by which to put the land in pledge, to assure to the bank that ten-seventeenths of the whole debt should be paid. That having been done, the land is released.

The judgment of the Appellate Court is therefore reversed, and the cause remanded, with directions to affirm the decree of the Superior Court of Cook county.

Judgment reversed.

Craig, Ch. J., and Walker and Sheldon, JJ,, dissent.


text:
    The People ex rel. Seth E. Walker et al. v. Commissioners of Highways of the Town of Oswego.

      Riled at Ottawa May 12, 1882

      Rehearing denied, September Term, 1883.

      1. Appeal—highways—on appeal from highway commissioners to three supervisors—how far and for what length of time the action of the latter is conclusive. On an appeal from any order of the commissioners of highways concerning a public road, where the three supervisors obtain jurisdiction, such jurisdiction is exclusive for the time being over the matters embraced in the appeal, and the power of the commissioners over the same subject matter is suspended for the period of one year, and they can not, within that period, make any orders except in furtherance of that of the supervisors.
    2. But if the period of one year from the making of the order by the supervisors to establish a road and assess the damages shall have elapsed, without any steps being taken to open the road or pay damages, the commissioners of highways may, if in their judgment the damages are manifestly too high, and their payment an unreasonable burden on the tax-payers of the town, make an order revoking or vacating all the proceedings of the supervisors. It seems the supervisors may do the same thing within the one year succeeding their action. •
    This is an original petition, filed in this court, for a writ of mandamus, to compel the commissioners of highways of the town of Oswego to,levy a tax for the payment of the damages assessed for right of way, and proceed to open a road laid out by supervisors on appeal. The facts appear in the opinion.
    Mr. Benj. F. Herrington, for the relators.
    Mr. Charles Wheaton, for the respondents.
   Mr. Justice Scott

delivered the opinion of the Court:

This is an original proceeding in this court, to compel the commissioners of highways of the town of Oswego, by mandamus, to proceed, in conformity with the statute, to levy and certify the requisite tax to pay damages assessed, and to do such other things as may be necessary and proper to open to the use of the public a road that had been laid out by three supervisors of the county, on appeal to them from the action of the commissioners of highways of that town, vacating all previous orders made by them concerning the laying out of the road, and causing the damages that would be sustained to be assessed. A full history of all that was done by the commissioners of highways, and the supervisors on appeal, in and about the laying out of the road, appears in the opinion of this court in Town of Oswego v. Kellogg et al. 99 Ill. 590. The petition herein states the facts substantially as the same are stated in the opinion of the court there delivered. It will only be necessary, in order to an understanding of the case, to state such facts as have occurred or transpired since the former decision of this court.

At the September term, 1881, on the application of relators, leave was given to file their petition herein, and the summons ordered to be issued was made returnable to the present term of this court. The answer of defendants admits most, if not all, of the facts stated in the petition concerning the laying out and establishing of the road in controversy, but alleges, as a reason why they should not be required to proceed now to levy and certify a tax to pay damages assessed to land owners on the line of the road, or to do other acts necessary to be done to open the road to the use of the public, that soon after the former decision of this court,—that is, on the 14th day of September, 1881,—respondents met, in their capacity as commissioners of highways of the town, and being of opinion the damages assessed on appeal to the supervisors were manifestly too high, and that the payment of the same would be an unreasonable burden on the taxpayers of the town of Oswego, they did, on that day, by a written order duly made, revoke all proceedings theretofore had on the petition/ for such road, either by them or the supervisors on appeal, which order was filed in the- proper office, and respondents insist that by virtue of such written order all former proceedings concerning the road are made null and of no effect, and for that reason they should not be required to levy and certify the tax prayed for in the petition. Other matters are set forth in the answer why respondents should not be compelled to levy such tax or proceed further to open the road to the .use of the public, but in the view taken of the law of the case it will not be necessary to remark upon them.

Section 87, of the act of 1879, in relation to roads and bridges, and which provision has been carried through all the revisions of the statutes concerning roads, certainly since 1872, but sometimes in sections differently numbered, provides that when the commissioners of highways shall be of opinion the damages assessed are manifestly too high, and that the payment of the same would be an unreasonable burden on the tax-payers of the town, they may revoke all proceedings had on the petition in regard to laying out a public road, by a written order to that effect. Such vacation, when made, shall have the effect to annul all such proceedings and assessments. The insistence by relators is, the commissioners of highways can ■ not exercise such powers where the road has been laid out and established by supervisors on' appeal, and the damages sustained caused to be assessed by them. The argument is, the action of the supervisors must be final, or otherwise there would be a ceaseless round of contradictory orders by the different sets of officers, concerning the laying out of a public road. It may be the action of the different boards may not always be harmonious under the several sections of the Boad law, but the difficulty can not be holpen by judicial construction. The remedy, if any is needed, must be afforded by the legislative department. But a brief analysis of the several sections touching this subject will show conflicting orders are not so likely to occur as might at first be anticipated, if all the provisions of the statute shall be observed. In section 99, of the same article cited, it is provided that on appeal the supervisors shall have the same power and authority that is by the act , conferred on the commissioners of highways, not only in laying out, altering, widening or vacating any road, but shall have the same powers to cause a jury to be called to assess damages; and by section 100 their decision shall be final in regard to laying out, altering, widening or vacating such road, or in refusing to do the same for one year after such decision. It is obvious that after an appeal from the commissioners of highways from any order concerning a public road, and the supervisors have obtained jurisdiction, it is exclusive, for the time being, over the matters embraced in the appeal, and the powers of the commissioners in respect to the same matters must be suspended. This is according to the analogies of the law in all matters of appeal. It is not, therefore, in the power of the commissioners of highways to make any order in relation to such road, conflicting with the order of the supervisors, for the period of one year after the date of their decision, for it is expressly declared their decision shall be final during that period. Of course they may make necessary orders in furtherance of the order of the supervisors, but not otherwise. That would not be in respect to the matters involved in the appeal, nor could it have the effect to annul the action of supervisors during the period their decision shall be final.

It will be observed all powers conferred on the commissioners of highways by law, may be exercised by the supervisors on appeal. Should the damages caused to be assessed by the supervisors be deemed manifestly too high, and the payment an unreasonable burden on the tax-payers of the town, it is plain that within a year after the decision of the supervisors the commissioners have no rightful authority, under section 87 cited, to revoke the proceedings had on the petition by the supervisors. It is for the obvious reason that by positive statute their decision, so far as the commissioners are concerned, is final during that period. Should they be allowed to do so, the effect would be to annul the action of the appellate board at a time, as has been seen, when it is not allowable. If the proceedings had by the supervisors on appeal in laying out a road and causing damages to be assessed can be revoked at all during the period the statute declares their decision shall be final, it would seem it could only be done by the supervisors making the orders laying out the road and causing the damages to be assessed. On appeal they possess all the powers the commissioners of highways have under the law, and all action by the latter board in conflict with the action of the supervisors is absolutely inhibited for the period of one year. But be this as it may, after the expiration of one year the decision of the supervisors is no longer final, and the commissioners of highways may, in their discretion, make any order in relation to such road that is authorized by law, even if such order is in opposition to the orders made by the supervisors on appeal, and has the effect to annul their decision. Adopting this, as the true construction of the statute, the case in hand presents no difficulty, nor any conflict in the action of the different officers authorized by law to act. It was not until after the expiration of the period of one year from the decision of the supervisors that the commissioners of highways assumed by their written order to revoke the proceedings of the supervisors on appeal in respect to laying out the road, and causing the damages that would be sustained to be assessed, because the damages assessed under the authority of the supervisors were manifestly too high, and the payment of the same would be an unreasonable burden on the tax-payers of the town. The period in which the decision of the supervisors was final, had then elapsed, and there was then no bar to the action of the commissioners of highways. They were as free then to act in the premises as though no appeal from their decision had ever been taken. The road had not been opened, nor had the damages assessed been paid. No obstacle stood in the way of the revocation of the proceedings laying out the road and assessing the damages sustained by land owners on the line of the road, and that was done by the commissioners of highways by a written order to that effect. That the commissioners of highways had jurisdiction to make such order, although the road was laid out by the supervisors on appeal, has been definitely determined by this court in The People v. Commissioners, 88 Ill. 141, where it is said: “It is manifest that under the 88th section of the act the commissioners had the undisputed power to revoke the order locating the road, and thus annul all proceedings had after the damages were agreed upon by the owner and the three supervisors hearing the appeal. ” Section 88 of the Pioad law cited in the opinion of the court, is the same as section 87 cited supra. As the order of the commissioners of highways revoking all proceedings on the petition had by the supervisors on appeal in laying out the road and in causing damages to be assessed, on account of the reasons set forth in their written order to that effect, was an order within their jurisdiction to make, and as it stands in full force, it is a sufficient reason why such commissioners should not now be compelled to open such road to the use of the public.

Whether the time consumed in previous litigation is to be estimated, is a matter of no consequence in this case. Had the commissioners of highways been compelled to act within a limited period, then it would become material whether the time consumed in litigation—and which would be a restraint on their action—should be estimated. But here the commissioners could not act, and did not assume to act, until after the time in which they were prohibited by law from acting had expired, and it is certainly a matter of no consequence what transpired in the meantime.

fío case is mado on this record that would justify an order to compel the commissioners of highways to open the road in controversy to the use of the public, arid the peremptory writ of mandamus prayed for will be denied.

Mandamus denied.

Dickey and Scholfield, JJ.: We do not concur in. this opinion.


text:
    Cook County v. The City of Chicago.

      Filed at Ottawa May 12, 1882

      Rehearing denied September Term, 1882.

    1. Taxation of property of counties—assessment of water tax. The constitutional provision that the property of counties may be exempted from taxation by general law, permits the implication that in the absence of any law exempting the same, such property is liable to taxation. Therefore, in the absence of any law exempting county property, a water tax may be assessed against the same by a city.
    2. Water tax—exemption in favor of charitable and educational institutions—construction of an ordinance. An ordinance of the city of Chicago provides, “that the commissioner of public works be and he is hereby authorized and empowered to remit and rebate the water tax or rates assessed against property used and occupied wholly for charitable and educational purposes:” Held, that the ordinance is not imperative that the commissioner shall remit or rebate the rates in any case, but leaves him to the exercise of his discretion in that respect.
    Writ of Error to the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.

      This was a bill filed by Cook county against the City of Chicago, to obtain an injunction against the city to restrain it from cutting off the supply of water furnished by it to the Cook county hospital, situated in the city of Chicago. The Superior Court of Cook county, in which the bill was filed, sustained a demurrer thereto, and dismissed the bill. On appeal to the Appellate Court for the First District the decree was affirmed, and the case is brought here on writ of error.
    The bill shows that the county of Cook, under its legislative authority to support paupers, has erected within the* limits of the city of Chicago a hospital, and pays $72,000 per year for its support, from taxes levied by its board of commissioners; that on September 22, 1879, the city council of Chicago passed the following ordinance: “That the commissioner of public works be and he is hereby authorized and empowered to remit and rebate the water tax or rates assessed against property used and occupied wholly for charitable and educational purposes. Said commissioner may require any or all applications for rebates and for remission of said water tax or rates to be verified by the affidavit of one or more tax-payers. ” That water rates or assessments were levied by the city of Chicago against Cook county for water furnished to the county hospital, by ordinances passed under the city charter, amounting to the sum of $2383.70, for the period from November 18, 1879, to March 18, 1881, the bill being filed May 15, 1881.; that the State Eye and Ear Infirmary and twenty-four private hospitals, including all in Chicago, except the Cook county hospital, are in fact exempted by the city from water taxes under the ordinance aforesaid. The bill sets but ordinances of the city which in a summary way cut off the supply of water for failure to pay water taxes, and a notice by the proper officer of the city that it would cut off the water; that such notice had been given, and that the city, by its officers and agents, threatens to shut off the water of said hospital for the non-payment of water rates and taxes, which act would cause an irreparable injury to Cook county, and would endanger the lives of the sick who are inmates of the hospital. The bill charges that said water taxes are not due from Cook county to the city of Chicago, because under the facts stated in the bill, and under said ordinance, said hospital and property are exempt from water taxes, because a public charity; that the city, of Chicago had power to exempt the property aforesaid from the payment of water rates, and that it did so exempt it by the passage of the said ordinance of September 22, 1879, and that no water rates are due against said property.
    Mr. Consider H. Willett, for the appellant :
    The Cook county hospital is a charitable institution, although patients therein are charged for treatment, it being in no sense an institution for profit to the county. See 14 Allen, 539; 109 Mass. 558.
    The power of the city to compromise water rates confers upon it the power to pass this. ordinance. Town of Petersburg v. Mappin, 14 Ill. 194; Fitzgerald v. Harms, 92 id. 372.
    The city can not levy water taxes against county property, i. e. tax governmental agencies of the State. Public lands of the United States are not liable to taxation. Witherspoon v. Duncan, 4 Wall. 210; How v. Dowling, 18 Cal. 619; People v. United States, 93 Ill. 30. So of Indian lands. Tellove v. Denniston, 23 N. Y. 20. Nor are such lands liable to a special assessment. Fagan v. Chicago, 84 Ill. 233.
    In City of Chicago v. The People, 80 Ill. 384, it was held that the city could not tax school lands though the title was received by the foreclosing a mortgage, and the land was not used for school purposes. Lands of the Illinois Industrial University belong to the State, and are exempt from taxation.
      Board of Trustees Illinois Industrial University v. Champaign County, 76 Ill. 184.
    A city can not levy a special assessment against its own property. Taylor v. People, 66 Ill. 322.
    The ordinance exempts property used as a charity from water taxes, and this hospital being a public charity, is clearly within the exemption.
    Mr. Francis Adams, for the appellee :
    The ordinance does not purport to exempt any property from water rates, but merely to authorize the rebate in the eases specified. Even though the council had the power to exempt property from water assessments, it could not delegate that power to a mere executive officer. Such power can not he delegated. City of East St. Louis v. Wehrung, 50 Ill. 28; Kinmundy v. Mahan et al. 72 id. 462.
    The ordinance is not imperative that the commissioner shall remit or rebate the rates in any case. This is left to his judgment and discretion, and the exercise of a discretionary power can not he compelled by mandamus. Dillon on Mun. Corp. (3d ed.) sec. 832; Walton v. Develling et al. 61 Ill. 201; People v. Board of Supervisors, 84 id. 303; County of St. Clair v. People, 85 id. 396.
    It appears from the bill that the county hospital is not a wholly charitable institution. Appellant, therefore, is not entitled to a rebate, not being within the terms of the ordinance, which must be strictly construed. Methodist Episcopal Church v. City of Chicago, 26 Ill. 482; Northwestern University v. The People, 80 id. 335.
    The ordinance is ultra vires and void. The rates, when levied, become a debt due the city, and the city is prohibited from releasing debts. Municipal Incorporation law, sec. 172.
    The city can not rebate taxes legally levied. Sherlock v. Village of Winnetka, 68 Ill. 534.
   Mr. Justice Sheldon

delivered the opinion of the Court:

We do not perceive, as the hill avers, that the ordinance of September 22, 1879, does exempt the county hospital from the payment of water taxes. It does not profess to exempt any property from water rates or assessments, but merely to authorize the rebate, in the cases specified, of water rates already levied. The ordinance is not imperative that the commissioner shall remit or rebate the rates in any case, but he is only authorized and empowered to do so. It seems to us that the ordinance merely ^purports to authorize the commissioner to remit or rebate such water rates, leaving the exercise of the power to his judgment and discretion. The city council seems to construe the ordinance differently from appellant, by refusing its application for a rebate. The bill sets forth that on “September 20, 1880, an order was presented in the city council of Chicago that the county hospital be furnished with water free of charge, which order was at said date referred by said council to the committee on fire and water, which committee, November 8, 1880, reported back said order of said council, with the recommendation that it should not 'pass, which report was concurred in. December 27,1880, a resolution was presented in said council by one of its members to furnish water free to said hospital, which resolution was referred to the committee on fire and water, who have made no report, and the council has taken no action. ” This action of the city council shows its own understanding to be, that said ordinance of September 22, 1879, did not in itself exempt the county hospital from the payment of the water tax.

It is urged that the city has no poiver to levy water taxes against county property,—to tax governmental agencies of the State. The constitution provides that the property of counties may be exempted from taxation, but such exemption to be only by general law. This is an implication that in the absence of any law exempting it, such property would be liable to taxation. Not finding there to be any law exempting it, we can not say the city could not assess the water tax or rates it did against the property in question.

The judgment of the Appellate Court must be affirmed.

Judgment affirmed.