text:
    William J. Mettler v. Jonathan T. Miller.

      Filed at Ottawa October 31, 1889.

    !• Estate by the ohbtesy—when it will attach—widow in possession and dower not assigned. In 1846 the owner of land died intestate, leaving a widow, and a daughter as his sole heir. In 1851 the daughter married, and there was issue born of the marriage, but the widow’s was never assigned: Held, that the husband of the heir took an estate by the curtesy initiate upon the birth of issue, notwithstanding the widow’s right of quarantine, as the possession of the widow, under the statutory right to retain the possession of the dwelling house and plantation thereto belonging until her dower should be assigned, was not adverse to the title of the heir by descent.
    2. Same—seizin in fact—whether essential. A seizin in fact, as distinguished from a seizin in law, prior to the time the estate by the curtesy was abolished by statute, was not necessary in order to vest an estate by the curtesy. In this State actual possession is not essential to the passing of title to real estate by conveyance, will or the Statute of Descents.
    3. Same—purchaser from tenant by the curtesy—what rights accrue to Mm. If a sale is made by a husband, of land in which he has an estate by the curtesy, of which he has never been in the actual possession, but his immediate or remote grantee takes possession under the purchase, such act will perfect the husband’s title as tenant by the curtesy, and the vendee will have the right to the land during the lifetime of the husband.
    4. Same—elements and character of estate initiate. The interest of the husband as tenant by the curtesy initiate, prior to the abolition of the estate of curtesy, was a legal estate, which was assignable. It was a freehold during the life of himself and wife, with a freehold in remainder to himself for life, and a remainder to the wife and her heirs in fee.
    5. Widow’s qtjabantine—abandonment. If a deed be made by a widow, of lands of her husband, whether it operates to convey to the grantee her dower and quarantine rights or not, the surrender of the possession thereunder will be effective as an abandonment of such quarantine rights.
    6. Deed oe mabbied woman—acknowledgment—how far essential— and its requisites. Under the law of this State as it existed in 1853, the acknowledgment of a deed by a married woman, was an essential part of the execution of the deed; and where the certificate of the acknowledgment thereof failed to show that she was examined separate and apart from her husband, and that the contents of the deed were made known and explained to her, the deed, as to her and her heirs, will be held inoperative and void.
    7. Evidence—as showing under what title a party claims. Where a defendant in ejectment is in possession of premises, and a source of title is traced to him, it is prima facie evidence that he is in under that title, and it devolves on him to show the contrary.
    8. Limitations—adverse possession. The possession of land by a tenant for life can not be adverse to the remainder-man or reversioner; and if the life tenant conveys to a third person, by words purporting to pass the absolute property, the possession of the purchaser can not be, dming the continuance of the life estate, adverse to the remainder-man or reversioner, so as to set the Statute of Limitations running against the latter.
    9. The possession of a tenant for life, or that of his vendee, during the continuance of the life estate, is, in contemplation of law, the possession of the remainder-man or the reversioner; and until such life estate terminates, the remainder-man or reversioner has no right of action, and the Statute of Limitations will not begin to run against a party before his right of action accrues. Until then no laches is imputable to the party holding title.
    • Appeal from the Circuit Court of Ogle county; the Hon. William Brown, Judge, presiding.
    Messrs. O’Brien & O’Brien, for the appellant;
    The deed of Isaac Boss and his wife was inoperative as to the estate of the wife, as the certificate of acknowledgment failed to show that she was examined separate and apart from her husband, and that the contents of the deed were made known and explained to her. The acknowledgment was an essential part of the execution of the deed. Mason v. Brock, 12 Ill. 273; Garrett v. Moss, 22 id. 364; Towrville v. Pierson, 39 id. 454; Lindley v. Smith, 58 id. 250; 46 id. 523; Kerr v. Russell, 69 id. 666; Lyon v. Kain, 36 id. 370.
    When a source of title is traced to the defendant, the presumption of law is that he is in under that title, until he shows the contrary. Snapp v. Peirce, 24 Ill. 157; Holbrook v. Brenner, 31 id. 511; Transportation Co. v. Gill, 111 id. 555.
    In order to avail himself of the benefits of sections 6 arid 7 of the Limitation act of 1839, appellee must show his possession or color of title to have been adverse. Woolley v. Magie, 26 Ill. 526; McClellan v. Kellogg, 17 id. 504; Busch v. Huston, 75 id. 347; McNamara v. Seaton, 82 id. 501; Boden v. Sherman, 101 id. 486; Ferbrache v. Ferbrache, 110 id. 218; Whiting v. Nicholl, 46 id. 241; Dolton v. Erb, 53 id. 289; Kirk v. Smith, 9 Wheat. 241; Dewey v. McLain, 7 Kan. 130; Miller v. Shackleford, 3 Dana, 295; Woods v. Smith, 1 Head, 279; Gill v. Fauntleroy’s Heirs, 8 B. Mon. 177; Merriman’s Heirs v. Coldwell’s Heirs, id. 33; Van Arsdale v. Fauntleroy’s Heirs, 7 id. 401; Cullen v. Metzer, 59 Pa. St. 359; Mellus v. Snowman, 21 Me. 201; McCorry v. King’s Heirs, 3 Humph. 267; Gidding v. Smith, 15 Vt. 344; Kallenback v. Cracraft, 36 Ohio St. 584; Balling v. Teal, 76 Va. 487; Harleman v. Hazelett, 55 Iowa, 256 ; Safford v. Stubbs, 117 Ill. 389; Railroad Co. v. Reich, 101 id. 175; Irving v. Brownell, 11 id. 412; Wright v. Keithler, 7 Iowa, 94; Angell on Limitations, 473, 478.
    The possession must not only fee adverse, but inconsistent with the title of the other party. Cook v. Norton, 48 Ill. 20; Davis v. Easley, 13 id. 198; Dolton v. Erb, 53 id. 289.
    Neither appellee’s possession nor his color of title was adverse to Maria Boss during her life, nor to her heirs and their grantees after her death, until the death of Isaac Boss, in 1885. Miller v. Shackleford, 3 Dana, 295; Salmon v. Davis, 29 Mo. 181; Woods v. Smith, 1 Head, 279; Dewey v. McLain, 7 Kan. 130; Kirk v. Smith, 9 Wheat. 241; Gill v. Fauntleroy’s Heirs, 8 B. Mon. 177; Constantine v. VanWinkle, 6 Hill, 193; Day v. Cochran, 24 Miss. 272; Merriman’s Heirs v. Coldwell’s Heirs, 8 B. Mon. 33; VanArsdale v. Fauntleroy’s Heirs, 7 id. 701; Cullen v. Metzer, 59 Pa. St. 359; McCorry v. King’s Heirs, 3 Humph. 267; Guion v. Anderson, 8 id. 307; Dyer v. Brannock,
      66 Mo. 392; Kallenback v. Cracraft, 36 Ohio St. 584; Bolling v. Teal, 76 Va. 487; Wood on Limitations, 524-529.
    . Seizin in fact or in deed, as contradistinguished from seizin in law, on the part of Isaac or Elaria Boss, was not necessary in order that Isaac Boss should have an estate by the curtesy. Willis v. Watson, 4 Scam. 64; Peters v. Spillman, 18 Ill. 374; Vinson v. Vinson, 4 Bradw. 138; Newkirk v. Cone, 18 Ill. 452; Shackelton v. Sebree, 86 id. 620; Harvey v. Wickam, 23 Mo. 113; Reaume v. Chambers, 22 id. 36; Stephens v. Hume, 25 id. 349; Redus v. Hayden, 43 Miss. 614; Day v. Cochrane, 24 id. 272; Wass v. Buckman, 38 Me. 360; Chew v. Commissioners, 5 Rawle, 160; Stoolfoos v. Jenkins, 8 S. & R. 175; Buchanan v. Duncan, 40 Pa. St. 88; Bush v. Bradley, 4 Day, 298; Kleim v. Bebee, 6 Conn. 494; Borland v. Marshall, 2 Ohio St. 308; Lessee of Mitchell v. Ryan, 3 id. 377; Lessee of Merritt v. Horne, 5 id. 307; Jackson v. Johnson, 5 Cow. 97; Guion v. Burton, 1 Meigs, 571; Guion v. Anderson, 8 Humph. 323; In the matter of Cregier, 1 Barb. Ch. 598; Safford v. Safford, 7 Paige, 251; Malone v. McLaurin, 40 Miss. 163; Ferguson v. Tweedey, 43 N. Y. 543; Sterling v. Penlinton, 2 Eq. Cas. Abr. 730; Adair v. Lott, 3 Hill, 182; Green v. Leiter, 8 Cranch, 249; Clay v. White, 1 Munf. 162; 1 Washburn on Real Prop. 173, 136, 174; Mass. Gen. Stat. chap. 134, sec. 3; 4 Kent’s Com. 30; 1 id. 35; Cruise’s Digest, 112, 524.
    The quarantine right in the widow, Charlotte A. Powell, did not prevent the vesting in Issac Boss of an estate by the curtesy. Doane v. Walker, 101 Ill. 641; Cool v. Jackman, 13 Bradw. 563; Reynolds v. McCurry, 100 Ill. 360; Holman v. Gill, 107 id. 473; Musham v. Musham, 87 id. 83; Ferbrache v. Ferbrache, 110 id. 218; Stephens v. Hume, 25 Mo. 349; 4 Kent’s Com. 28.
    The Limitation law of 1839 does not begin to run against a remainder-man until a right of action .accrues, and that does not accrue till the termination of the life estate. Harleman v. Hazelett, 55 Iowa, 256; Steel v. Gellalty, 41 Ill. 39; Higgins
      v. Crosby, 40 id. 260; Dugan v. Follett, 100 id. 581; Jacobs v. Rice, 33 id. 370; Heath v. White, 5 Conn. 236; Jackson v. Schoonmaker, 4 Johns. 390; Valle v. Obenhause, 62 Mo. 82; Jackson v. Sellick, 8 Johns. 262; Moore v. Jackson, 4 Wend. 58; Brace v. Wood, 1 Metc. 542; Angell on Limitations, sec. 371, ei seg'.
    The same is true as to a hill to remove a cloud from a title. Lang v. Hitchcock, 99 Ill. 550; Dyer v. Brannock, 66 Mo. 422.
    Mr. M. D. Hathaway, and Mr. William Lathrop, for the appellee:
    The passage of the Married Woman’s act of 1861 relieved Maria Boss, as wife of Isaac Boss, of her disability to sue. Castner v. Walrod, 83 Ill. 171; Enos v. Buckley, 94 id. 458; Geisen v. Heiderich, 104 id. 537; Kibbe v. Ditto, 93 U. S. 674.
    Good faith in taking the deeds will be presumed. Davis v. Hall, 92 Ill. 85; McCagg v. Heacock, 34 id. 479.
    When Parker entered into the possession of the lots, Maria Boss was under no disabilities whatever. Hayward v. Gunn, 82 Ill. 385; Castner v. Walrod, 83 id. 171; Enos v. Buckley, 94 id. 458; Safford v. Stubbs, 117 id. 389.
    Statutes of limitations run against every person not expressly excepted from their operation, and when they have once commenced to run, no intervening disability will arrest their operation. Keil v. Healey, 84 Ill. 104; Sacia v. De-Graff, 1 Cow. 156; Angell on Limitations, secs. 194, 485.
    The Limitation act of 1839 runs against those under disability, and only saves to them the right to commence their suit within the time expressed after their disability ceases to exist. Hodgen v. Henrichsen, 85 Ill. 259.
    Appellant does not dispute that the deeds introduced by appellee show color of title. Every one of them is fully within the rule of color of title as declared by this court. Fagan v. Rosier, 68 Ill. 84; Bride v. Watt, 23 id. 507; Safford v. Stubbs, 117 id. 389; Dean v. Long, 122 id. 447.
   Mr. Justice Baker

delivered the opinion of the Court:

This is ejectment, brought on the 4th day of November, 1885, in the Ogle circuit court, against Jonathan T. Miller, appellee. In the suit, William J. Mettler, appellant, seeks to recover, in fee, an undivided one-fourth interest in lot 8, and in the north half of lot 7, both in block 6, in Palmer’s addition to the town of Bochelle, formerly called Lane.

Appellant’s title, as exhibited at the trial, is as follows: The premises in controversy are in the north-east quarter of the south-west quarter of section 24, town 40 north, range 1, east of the third principal meridian. Sheldon Bartholomew bought a squatter’s claim of said forty-acre tract of land about 1840, and settled thereon, and subsequently a patent for the land was issued to him by the United States. He died in 1846, intestate, and left him surviving, his widow, Charlotte Bartholomew, and a daughter, Maria Bartholomew, his only heir-at-law. In 1847 the widow was married to one Powell, and lived with him as his wife until 1853, when he deserted her and went to California, and they were divorced in 1856. The daughter, Maria Bartholomew, intermarried with Isaac Boss in March, 1851. The farm of Sheldon Bartholomew included not only said quarter quarter-section, but other lands adjoining, and he occupied such farm before and at the time of his death. His widow continued to live there until Powell left, in 1853, but her dower was never assigned to her. The daughter, Maria, and Isaac Boss, her husband, built a house near the house that had been occupied by her father, and he worked and managed a portion of the Bartholomew land. Maria Boss died in March, 1871, and left her surviving, her husband, Isaac Boss, and as her heirs-at-law six children, Carrie Agnew, Jennie Bronson, Louisa Hutchinson, Sheldon B. Boss, Grace M. Horn and George Boss. The grandmother of these children, Charlotte Powell, died in June, 1872. On February 14,1884, Sheldon B. Boss and wife conveyed to appellant and one Porter B. Chamberlain, jointly, one-sixth of certain lands, which included the forty-acre tract of land above mentioned, and by deed dated March 6, 1883, Grace M. Horn and husband conveyed to appellant one-sixth of the same lands. Under and by virtue of these two latter conveyances appellant claims to be the owner in fee of an undivided one-fourth of said lot 8 and north half of lot 7.

The case relied upon by appellee is as follows: Gilbert Palmer and wife, by warranty deed dated November 27,1855, conveyed to Thomas D. Eobertson the premises in question and other lands; said Eobertson and wife, by quitclaim deed dated January 21, 1864, conveyed said premises and other lands to John VanNortwick; VanNortwick and wife, by their conveyance dated July 25, 1866, deeded and warranted the premises in controversy to Joseph Parker; said Parker and wife, by warranty deed dated November 29, 1869, conveyed said premises to James F. Miller and Jonathan T. Miller, and said James F. Miller and wife, on July 29, 1872, quitclaimed their right and interest in the same to Jonathan T. Miller, the appellee. By stipulation, it is also a part of appellee’s case that Thomas D. Eobertson paid all taxes assessed upon the property in suit, from 1856 to 1863, both inclusive; that John Van Nortwick paid all taxes assessed thereon for 1865 and 1866 ; that Joseph Parker paid all taxes assessed against said premises for the years from 1866 to 1869, both inclusive; that James F. Miller and Jonathan T. Miller paid all taxes assessed against them from 1870 to 1872, both inclusive, and that Jonathan T. Miller paid all taxes assessed against them since the year 1872 and until the commencement of this suit; and also, that said Eobertson, Van Nortwick, Parker, James F. Miller, and appellee, at and during the times they so paid taxes, respectively and successively claimed to be the owners in fee of said premises. It also appears the lots were, from 1856 to 1866, inclusive, vacant and unoccupied; that Parker entered into the actual possession of the premises early in 1867, fenced them, set out trees thereon, and cultivated the land as a garden until he sold to the Millers. The Millers took and retained actual possession under their deed from Parker, and built a house thereon, and after James F. quit-claimed to Jonathan T., the latter had actual possession until after suit brought, and lived there, and enlarged and built additions to the house.

The appellant also introduced in evidence, over the objections of appellee, five other conveyances and a plat, as follows: First, a certified copy from the records of a patent from the United States to Sheldon Bartholomew, dated March 1,1848, for the north-east quarter of the south-east quarter of section 24, town 40 north, range 1 east; second, a deed from Isaac Boss, Maria Boss and Charlotte Powell, to Bobert P. Lane, dated August 18,1853, for all that part of said quarter quarter-section lying west of the Ottawa and Bockford road; third, the plat of Palmer’s addition to the town of Lane; fourth, a deed from? Bobert P. Lane and wife to Gilbert D. Palmer, dated November 30, 1855, for block 6 and other property in said addition; fifth, a warranty deed dated November 12,1855, from Gilbert D. Palmer to William L. Porter, for block 6 and other blocks in said addition; sixth, a warranty deed from William L. Porter to Gilbert D. Palmer for lots 7 and 8 and other lots in said block 6, in said addition. Said patent and said several conveyances were duly recorded in Ogle county prior to the delivery of the several deeds relied on by appellee.

In respect to the title of appellant and his right of recovery, and leaving out of consideration, for the present, the defenses of appellee based on sections 6 and 7 of the present Limitation law, commonly known as the act of 1839, we decide the following points:

First—Upon the death of Sheldon Bartholomew the title to the land here in question vested in his only child and heir, Maria, subject to the dower of the widow. The dower never having been assigned, the latter had her quarantine rights in the premises, but upon the marriage of Maria to Isaac Ross, and the birth of a child, born alive, as the result of such marriage, this quarantine right did not prevent Isaac Ross from taking an estate by the curtesy initiate. The possession of' the widow, under the statutory right to retain possession of the dwelling house and plantation thereto belonging until her dower was assigned, was not adverse to the title of the heir, upon whom the law cast the fee immediately upon the death of the ancestor, and did not affect the right to curtesy. Musham v. Musham, 87 Ill. 80 ; Reynolds v. McCurry, 100 id. 366; Doane v. Walker, 101 id. 628; Holman v. Gill, 107 id. 467; Stephens v. Hume, 25 Mo. 349.

Second—It is uncertain, from the testimony, whether Ross, the husband, had, during coverture, the actual possession, pedis possessio, of the particular part of the land which is here in controversy, either by working it with his own team and implements, and on his own account, or jointly with Powell, as. tenants in common. It does appear, however, that the remote-grantees of Isaac Boss, under the deed of July 19, 1853, had actual possession, and such possession was virtually his possession. If an entry is made upon the land of the wife by the husband, or by another person under him and by his authority, the same effect is produced, and the right to hold as tenant by the curtesy is the same. If a sale is made by the husband, and his immediate or remote grantee takes possession under the purchase, it is done by authority of the husband, and it. perfects his title as tenant by the curtesy, and the vendee has. a right to the land during the lifetime of the husband. VanArsdale v. Fauntleroy’s Heirs, 7 B. Mon. 401.

But we do not understand that by the law of this State a. seizin in fact, as distinguished from a seizin in law, was, prior to the time the estate of curtesy was abolished by statute, necessary in order to vest an estate by the curtesy. The rule •that only seizin in fact during coverture would entitle the husband to curtesy, was never strictly adhered to, either in England or in this country. In Davis v. Mason, 1 Pet. 503, and numerous other cases, it was held that the rigid rule of the common law, that required actual possession as a condition precedent to curtesy, did not apply to the wild, vacant or unoccupied lands of the wife, and from the testimony in this case it is evident the land here involved was either cultivated and occupied by Boss alone, or jointly with Powell, or else was at that time vacant and unoccupied. But he this as it may, the doctrine requiring such actual possession was based on the common law rule or maxim, seisinafacit stirpitem, and that was completely abrogated long ago by our statute. By that which is now the first section of our Conveyance act, livery of seizin was abolished; by that which is now the first section of the Statute of Descents, the real estate of intestate proprietors descended as provided for in the statute, without regard to actual seizin; and by that which is now the first section of the Statute of Wills, power was given to persons of requisite age and capacity to devise all their estate, right, title and interest, in possession, reversion or remainder, in and to any lands, tenements, hereditaments, or annuities or rents charged upon or issuing out of them, by will. These several statutes of conveyance, descents and wills operated with like effect as the Statute of Uses operated, in regard to which Blackstone said, “the party is at once put into possession by an act of parliamentary magic.” See Shackelton v. Sebree et al. 86 Ill. 616.

When the maxim above mentioned prevailed, there was reason in the requirement the husband should be held to make an actual entry in order to avail of the right of curtesy, for otherwise the wife’s children or other heirs could not claim from her, and the estate must go to the heirs of the previous ancestor last actually seized; but after the changes wrought by our statutes, no such results obtained, and the rule, cessante ratione cessat legis ipsa lex, should be held to have applied, thereby preserving the symmetry of our law in respect to titles to real estate.

The conclusion we have reached is in harmony with the decisions of the courts in Guion v. Anderson, 8 Humph. 320, Reaume v. Chambers et al. 22 Mo. 36, Bush et al. v. Bradley, 4 Day, 298, Borland v. Marshall, 2 Ohio St. 308, and numerous other cases.

Third—The deed of Isaac Boss, Maria Boss and Charlotte Powell, dated August 18, 1853, operated to convey to Robert P. Lane the life estate by the curtesy of Isaac Boss. The interest of the husband as a tenant by the.curtesy initiate was a legal estate, and was both salable and assignable. It was a freehold during the lives of himself and wife, with a freehold in remainder to himself for life as a tenant by the curtesy consummate, and a remainder to the wife and her heirs-in fee. (4 Am. & Eng. Encyclopedia of Law, p. 962, and authorities cited in note 1; Lang v. Hitchcock, 99 Ill. 550, and cases there cited.) It is immaterial here to inquire whether it ‘also operated to convey to Lane the dower and quarantine rights of Charlotte Powell; but, assuming it did not, the surrender of the possession, thereunder to Lane of the lands was effective as an abandonment of such quarantine rights. (Doane v. Walker, 101 Ill. 628.) The deed was, however, ineffective to convey the interest of Maria Boss, she then being a married woman, and the acknowledgment being, as the law then was, an essential part of the execution of the deed conveying her estate. The certificate of acknowledgment was defective as to her, as it did not state she was examined separate and apart from her husband, nor that the contents of the deed were made known and explained to her. In respect to her and her heirs the deed was absolutely void. Kerr v. Russell, 69 Ill. 666; Lindley v. Smith et al. 58 id. 250, and numerous other cases.

Fourth—It was not error to admit in testimony the various instruments of evidence offered by appellant for the purpose of connecting the title or color of title held by appellee with the patent title, and that held by appellant. Where a defendant is in possession of the premises, and a source of title is traced to him, it is prima facie evidence that he is in under that title, and it devolves upon him to show to the contrary. Holbrook v. Brenner, 31 Ill. 501; Snapp v. Peirce, 24 id. 156 ; McCorry v. King’s Heirs, 3 Humph. 267.

It remains to examine in respect to the title or color of title exhibited by appellee.

Fifths-Appellee brings himself within the letter of both sections of the Limitation law of 1839, but not within their spirit. Thomas D. Robertson, from whom he holds by mesne conveyances, had a warranty deed from Palmer, made in 1855, and paid all the taxes assessed on the premises for eight successive years, from 1856 to 1863, both inclusive, and during all that time said premises were vacant and unoccupied; and no claim is made that such deed was not color of title made and taken in good faith. So, also, Parker, under his warranty deed from Yan Nortwiek, took actual possession of the lands in 1867, and conveyed to the Millers in 1869, and transferred his actual possession to them, and they continued to occupy the premises until 1872, when James F. Miller deeded to appellee, and the latter remained in actual possession until this suit was brought, in 1885, making more than fifteen years of actual possession under color of title made and acquired in good faith. Payment of all taxes assessed during these periods of actual possession by the proper parties, claiming ownership in fee, is admitted by the stipulation.

In Kirk v. Smith, 9 Wheat. 241, Chief Justice Marsuat.t, said: “One of the rules applicable to limitation laws which

has been recognized in the courts of England and in all others where the rules established in those courts have been adopted, is, that the possession, to give title, must be adversary. The word, indeed, is not to be found in the statutes, but the plainest dictates of common justice require that it should be employed. It would shock that sense of right which must be felt equally by legislators and judges, if a possession which was permissive and entirely consistent with the title of another, should silently bar that title.” In Turner v. Chamberlain, 15 Ill. 273, this court said: “To constitute an adverse possession it must be hostile in its inception, and acquired and retained under claim of title inconsistent with that of the true owner.” In fact, as was said by Brewee, J., in Dewey v. McLain, 7 Kan. 130, “any other construction would operate to deprive the reversioner of his estate without .his day in coqrt, and would be, therefore, unconstitutional.”

That which is in this case conclusive against the right of appellee to avail of the Statute of Limitations, is the fact that Isaac Boss, the husband of the true owner, and for whose life appellee held a life estate in the premises, did not die until March 20, 1885,—only a few months prior to the commencement of the suit. The settled doctrine, both upon authority and upon principle, is, that the possession of land by a tenant for life can not be adverse to the remainder-man or reversioner ; and if he conveys to a third person, by words purporting to pass the absolute property, the possession of the purchaser is not and can not be, during the continuance of the life estate, adverse to the remainder-man or reversioner, so as to set the Statute of Limitations running against such remainder-man or reversioner; but after a life estate falls in, the possession will be adverse as to a remainder-man or reversioner. The reason of the rule first stated is, that the possession of the tenant for life, or his vendee, during the continuance of the life tenancy is, in contemplation of law, the possession of the remainder-man or reversioner, and the latter can not, during the life of the person for whose life the life estate is, bring an action against the person in possession under such life tenant, to recover possession of the premises. All statutes of limitation are based on the theory of laches, and no laches can be imputed to one who has no remedy or right of action, and to hold the bar of the statute could run against the title of a person so circumstanced, would be subversive of justice, and would be to deprive such person of his estate without his day in court. See 1 Am. and Eng. Encyclopedia of Law, pp. 237, 238, and authorities cited in notes; McCorry v. King’s Heirs, 3 Humph: 267; Mellus v. Snowman, 21 Me. 204; Merriman’s Heirs v. Coldwell’s Heirs, 8 B. Mon. 42; Constantine v. Van Winkle, 6 Hill, 193; Reaume v. Chambers, 22 Mo. 36; Giddings v. Smith, 15 Vt. 344; Barrett v. Stradl, 73 Wis. 385; Orthwein v. Thomas et al. 127 Ill. 554.

The language of the stipulation in this ease, that appellee and his immediate grantors claimed to be the owners, in fee, is not conclusive of adverse holding. Nor were the title and possession under the warranty deeds purporting to convey the fee and the entire property, necessarily adverse. Whatever appellee and his said grantors may have considered or claimed in respect to their title, both he and they must be deemed in law, during the life of Isaac Boss, to have come in under the title which has been traced to them, and under which he and they were rightfully entitled to possession, since no different source of title is shown. Snapp v. Peirce, supra; Holbrook v. Brenner, supra; Constantine v. Van Winkle, supra; Musham v. Musham, supra.

Sixth—We do not regard that the questions of personal disability, and of the effect of the Married Woman’s act of 1861, have anything whatever to do with the decision of this case. The authorities relied upon by appellee,—i. e., Castner v. Walrod, 83 Ill. 171, Enos v. Buckley, 94 id. 458, Safford v. Stubbs et al. 117 id. 389, and Kibbe v. Ditto et al. 93 U. S. 674,—are not here in point. For all the purposes of this case, Maria Boss might be regarded as though she were an adult man, and wholly exempt from any disability whatever, from the date of her marriage to the day of her death, and yet appellee could take nothing by such concession. In Castner v. Walrod it was held, that when the estate which the husband had acquired by virtue of the marriage, was terminated by operation of the Statute of Limitations, and the act of 1861 removed the disability of coverture, the wife was bound to bring action within seven years, or her right and title would be barred. But there the title of Walrod, the defendant, was to the entire property, and not to the life estate, and was not in subordination to the plaintiff’s claim, but adverse to the. husband’s life estate as well as to the reversion of the wife. Kibbe v. Ditto was a like case,—the statute first ran against the life estate and then against the reversioner. Enos v. Buckley is also wholly inapplicable here. There, the defendant, Buckley, had not acquired the husband’s estate, and his sole title, derived by mesne conveyances from one Biggin, was a tax title, and clearly adverse to the titles both of Enos and his wife. Here, as between the wife and her heirs, and the holders, in possession, of the husband’s life estate, the duty of paying the taxes devolved upon the latter. Nor can Safford v. Stubbs et al. avail appellee. Neither Berkey, nor Beiner, his immediate grantor, had notice that the interest of Weiser in the premises was merely that of a life tenant, and the records did not show it. In deciding the case, this court said: “It is claimed that Berkey entered under a conveyance of an estate for the life of Weiser; that his estate ceased with that life; that he then, being lawfully in possession, became the tenant at sufferance of Mrs. Safford and Mrs. Stubbs, the persons entitled to the reversion, and so could not hold adversely to them. We do not think that this position is well taken, under the facts of this case, Berkey having been in possession and paid taxes for more than seven years after the life estate terminated and the reversionary interest had attached. * * * But, having no notice that his grantor’s interest was only a tenancy pur autre vie, he did not enter upon the land knowing or believing himself to be the owner of an estate for the life of another, and could not be considered a tenant at sufferance after the estate for life ended. His claim was thereafter adverse to the reversioners, and not in subordination to their title.” The plain implication from this language is, that prior to the falling in of the life estate the claim and possession of Berkey were not adverse to the title of Safford and Stubbs, but subordinate thereto. The case is but the recognition of a rule which is held in many adjudicated cases, and is thus formulated in Barrett v. Stradl, supra: “When a person enters under a deed from the person who holds the life estate, which on its face conveys an estate in fee, and when the grantor intends to convey the fee, and the grantee supposes he is getting a conveyance of the fee, the person entering under such deed holds, in fact, adversely to all the world; but he can not avail himself of the rights of an adverse possession, under the statute, as against the remainder-man, during the life of the owner of the life estate, but immediately upon the death of the person holding the life estate, such possession, if continued, becomes adverse to the remainder-man. ” Applying this rule to the case in hand, the title and possession of appellee only became adverse to the title of appellant when Isaac Boss deceased, on March 20, 1885.

This cause was tried without a jury, and, under the law and the evidence in the record, the finding and judgment of the court should have been in favor of appellant for an undivided one-fourth interest in the premises. The judgment is erroneous, and is reversed, and the cause is remanded for further proceedings in conformity with the views expressed in this opinion.

Judgment reversed.

Mr. Justice Bailey took no part in this decision.


source: Caselaw Access Project

author: Mr. Justice Wilkin

license: Public Domain

text:
    F. W. Brickey v. Frank English et al.

      Filed at Mt.Vernon October 31, 1889.

    1. Description—of land in a tax deed—whether void for uncertainty. A tax deed described the land sold for taxes as “part of survey No. 743, claim No. 93, 3135-100 acres,” but in no manner was the part of that survey designated. The proceeding under which the deed was had described the land in the same way: Held, that the tax deed and judgment and sale were void for the uncertainty in the description of the land.
    2. Tax title—affidavit of notice—sufficiency. An affidavit of the service of notice of a tax sale, etc., relied on as showing a right to a tax deed, stated, “that this affiant served, or caused to be served, written or printed, or partly written and partly printed, notices of purchase at said tax sale, upon A B, G D and E E, the only persons in actual possession or occupancy of said piece or parcel of land or lot:” Held, that the affidavit, for its great uncertainty in every essential requirement, was wholly insufficient as the basis for a tax deed. Who served the notice, in what manner it was served, whether it was written or printed or partly written and partly printed, as well as when it was served, are facts not disclosed by the affidavit, and such facts are required by section 217, chapter 120, of the Revised Statutes, to be particularly stated.
    Writ op Erbor to the Circuit Court of Monroe county; the Hon. Amos Watts, Judge, presiding.
    This was an action of ejectment, brought by F. W. Brickey, against Frank English. Leave was given to Hardy and Demint, as landlords of English, to plead. The plaintiff sought to recover under a tax deed for the premises.
    The plaintiff put in evidence the list of lands returned by the collector as delinquent, including the tract in suit; also, an affidavit to the same, by the collector, of his inability to collect the taxes thereon; the judgment of the county court against the said land for taxes, etc., together with the certificate of the clerk to the same; also, the tax certificate of purchase showing the sale to the plaintiff at the tax sale. He next introduced the affidavit for the tax deed, filed with the clerk of the county court, on which the deed was executed by the clerk to the plaintiff. The affidavit is as follows:
    “State of Illinois, } County of Monroe, $
    “F. W. Brickey, of lawful age, being first duly sworn, doth depose and say: That at a tax sale of real estate, made in and for the county aforesaid, at the place of holding court therein, on the 10th day of June, A. D. 1884, for drainage tax due Randolph and Monroe County Drainage District No. 1, interest and costs due thereon, he purchased the following described piece or parcel of land or lot situated in the county of Monroe and State of Illinois, to-wit: Part of survey No. 743, claim No. 93, township 5, S., R. 9 west, 3d P. M., Monroe county, Illinois, containing 31^-^ acres, for which a tax sale certificate of purchase was issued at said tax sale, in the manner prescribed by law, and that he, this affiant, F. W. Brickey, is the legal owner of the same; that this affiant served, or caused to be served, written or printed, or partly written and partly printed, notices of purchase at said tax sale, upon Thomas, Patrick and William Hayden, and Frank English, the only persons in actual possession or occupancy of said piece or parcel of land or lot, and also a partly written and partly printed notice was given to D. M. Hardy and William T. Demint, the owners or parties interested in said piece or parcel of land or lot, at least three months before the expiration of the time of redemption on said sale; said notices stated when the purchaser above named purchased the said piece or parcel of land or lot, in whose name the same was taxed, the description of the said land or lot he had purchased, for what year taxed or specially assessed, and when the time of redemption would expire; that Mrs. F. Tillman, in whose name said piece or parcel of land or lot was assessed, upon diligent inquiry could not be found in said county of Monroe, and did not reside therein for any period of time from the day of said sale down to within three months before the expiration of the time of the redemption on said sale, within the knowledge or belief of this deponent; that more than three months, and less than five months, before the time for the redemption of the said land or lot above described expired, he, this affiant, caused to be published in the ‘Waterloo Times,’ a newspaper of general circulation in said county and State, printed and published in the town of Waterloo, in said county and State, a notice of the said purchase at said tax sale, which said notice was inserted and published in said newspaper three times, to-wit: on the 21st and 28th days of January, on the 4th day of February and on the 11th day of February, A. D. 1886, the first time of said insertion being not more than five months and the last time being not less than three months before the time of said redemption expired. And this affiant further says, that said land or lot has not been redeemed from the force and effect of said sale within the time and in the manner prescribed by law, and that he, this affiant, relies on the facts stated in this affidavit, and on compliance with the provisions of the constitution and laws of the State of Illinois in this behalf; and this affiant particularly says, that all the conditions of section 216 of an act of the legislature of the State of Illinois, entitled ‘An act for the assessment of property, and for the levy and collection of taxes,’ approved March 80, 1872, in full force July 1, 1872, and all amendments thereto, have been strictly complied' with, and therefore says, that he, this affiant, has caused a partly written and partly printed notice to be given to D. M. Hardy and William T. Demint, the owners or parties interested, by publication and service, of the fact of the sale of the property above described, and when the time of redemption would expire, and has complied with all the provisions of the constitution and laws of the State of Illinois to entitle him, this affiant, to a deed or deeds of conveyance, and asks that a deed or deeds of conveyance, vesting in him the title to the land or lot described in the original certificate of purchase, hereto attached, may be issued to E. W. Brickey, as provided by law. E. W. Brickey.
    “Subscribed and sworn to before me, this 20th day of August, A. D. 1886. Joseph R Duclos,

      Notary Public Randolph Go., Rl.”

    Messrs. Gordon & Horine, for the plaintiff in error:
    All defenses that may have existed at the time of the rendition of the judgment against the lands for taxes and special assessments should have been presented when the application for judgment was made to the county court. Starr & Curtis’ Stat. chap. 120, sec. 226, clause 7, as amended by Laws of 1885, p. 235.
    As to effect of a deed as evidence, see Starr & Curtis’ Stat. chap. 120, sec. 226; Taylor v. Wright, 121 Ill. 455.
    The statute does not require a notice to be served upon the party in whose name the property is assessed, if such party resides out of the county, unless the property is unoccupied or not in the possession of any one. Starr & Curtis’ Stat. chap. 120, sec. 218.
    Mr. William Winkelman, for the defendants in error:"
    The description of the land, “part of survey 743, claim 93, acres,” is so indefinite and uncertain that the land can not be found. The survey and claim contain 400 acres. The 31j3q55 acres are located somewhere in the survey and claim, but in what part no one can tell.
    In Lancey v. Brock, 110 Ill. 610, it is said: “A deed described the land as 67 acres, part of claim 1096, survey 117. Survey 117 contained 130 and a fraction acres. Held, that the description was fatally defective, it failing to describe definitely any specific tract.”
    That the description is void for uncertainty, see Turney v. Saunders, 4 Scam. 527, and Pickering v. Lomax, 120 Ill. 297.

      The affidavit of the service of the notice, to entitle the plaintiff to a deed, is wholly insufficient. In the affidavit we find this statement: “That this affiant served, or caused to be served, written or printed, or partly written and partly printed, notices,” etc. From this we are left to conjecture whether Brickey served the notice, or any one else, and if any one else, who it was. The name is not given, nor the mode of service.
    This court has passed on affidavits of this sort. Price v. England, 109 Ill. 396; Davis v. Gossnell, 113 id. 123; Gage v. Waterman, 121 id. 115; Taylor v. Wright, id. 456; Gage v. Mayer, 117 id. 638; Wade on Notice, secs. 1119, 1121.
   Mr. Justice Wilkin

delivered the opinion of the Court:

This is an action of ejectment, by plaintiff in error, against defendants in error, to recover certain lands in Monroe county, this State, described in the declaration as “commencing at the south-east corner of survey 743, claim 93; thence along easterly line, ” etc., giving metes and bounds, and concluding, “containing 31^^ acres, more or less, and situated in survey 743, claim 93.” Defendants Hardy and Demint filed a plea of not guilty. English was defaulted. The case was tried by the court without the intervention of a jury, and judgment rendered in favor of defendants. Plaintiff sues out this writ of error.

The only evidence offered by plaintiff to prove title in himself, was a tax deed, and the judgment, certificate of purchase and affidavit for deed on which it was based, in each of which the description is as follows: “Part of survey No. 743, claim No. 93; 31t3^ acres.” The part of survey No. 743 is in no manner designated, and the deed is therefore void for uncertainty. The People v. Chicago and Alton Railroad Co. 96 Ill. 369; Lancey v. Brock, 110 id. 610.

The proceeding under which the deed was obtained was for the same reason also void. The People v. Reat, 107 Ill. 581 ; Pickering v. Lomax et al. 120 id. 297.

The affidavit on which the deed issued was fatally defective for other reasons, especially in that it failed to state the facts relied on as showing service of notice on the occupants of the lands purchased. The language of the affidavit is, “that this affiant served, or caused to be served, written or printed, or partly written and partly printed, notices of purchase at said tax sale, upon Thomas, Patrick and William Hayden and Frank English, the only persons in actual possession or occupancy of said piece or parcel of land or lot.” Here is uncertainty in every essential. Who served the notice, how it was served, (whether written or printed or partly written and partly printed,) as well as when it was served, are facts upon which the affidavit furnishes no light whatever; and they are facts which, by section 217, chapter 120, of the Bevised Statutes, must be particularly stated. Price v. England, 109 Ill. 394; Davis v. Gossnell et al. 113 id. 121; Wallahan et al. v. Ingersoll, 117 id. 123; Gage et al. v. Reid et al. 118 id. 35.

The judgment of the circuit court is affirmed. The cost of additional abstract by defendants in error should be taxed to plaintiff in error.

Judgment affirmed.


author: Mr. Justice Magruder

text:
    James Chaplin v. The Highway Commissioners of the Town of Wheatland.

      Filed at Ottawa October 31, 1889.

    1. Eminent domain—compensation for land taken, and damages as to land not taken—section 8 of the Road and Bridge act of 1883—constitu-tionality. Under our constitution, the owner of land over which the commissioners of highways seek to dig a ditch or drain, under section 8 of the Boad law of 1883, is entitled to compensation for the land actually taken for such ditch or drain, and also to the damages to the land not taken.

      2. The land owner must be paid the value oí the ground used for a ditch, and if the value of his farm is impaired by being divided into two parts, or by being partially overflowed, or is otherwise damaged, he must also be paid for such injury or damage.
    3. Section 8 of the Boad and Bridge act of 1885, which provides that when a ditch or drain is sought across the land of another, the land owner shall be summoned before a justice of the peace, “for the put-pose of having the damage assessed which such owner may sustain by reason,” etc., is broad enough to cover compensation for the land taken and also damages to the land not taken, and is therefore not in conflict with section 8 of the Bill of Bights. The word “damage” is used in the statute in the broader sense of indicating the total loss the owner would suffer by having the ditches on his land.
    4. Same—necessity for a public use. In order to authorize the commissioners of highways to institute a proceeding to condemn land for a ditch or drain under section-8 of the Boad and Bridge law of 1885, a necessity must exist for such a ditch or drain in order to carry off the water from the highway, or to drain a pond or slough on the highway. Private property can only be condemned for a public use. This necessity must be made to appear in order to give jurisdiction to the justice of the peace.
    5. Same—necessity—by whom, and how found. Whether or not it is necessary to carry off the water from a highway or to drain a slough or pond on the highway, is a matter which must be determined by the highway commissioners when acting in their official capacity, and their determination or finding can be shown only by the record of their proceedings.
    6. The record required to be kept by the town clerk by section 10 of the Boad and Bridge act, must show, when the commissioners enter upon a man’s land to dig or open a ditch, that they have previously determined, as an official body, that such entry is necessary in order to carry off the water from the highway, or to drain a slough or pond thereon. The evidence that the ditch is necessary for the purposes specified, must be in the record of the official proceedings of the board.
    7. Parol evidence, upon a proceeding to condemn land before a justice of the peace, that the digging of the ditch was necessary in order to carry off the water from the highway, is incompetent and inadmissible. That fact can be proved only by the record of the official, acts and proceedings of the commissioners of highways.
    8. Same—inability to agree with the land owner—jurisdictional. In order to give a justice of the peace jurisdiction of a proceeding by the commissioners of highways for the purpose of condemning land for a ditch to carry off waters from a highway or slough therein, it must be shown, by legal and competent evidence, that the land owner refused to give Ms consent to the cutting of the ditch after the offer of what the commissioners found was a fair compensation. Without an offer, the owner can not refuse, in the sense of the statute.
    9. It is the duty of the commissioners, when they ask for the consent of the owner to open a drain on his land, to accompany their request with an offer of “just compensation,” and then, when they fail to agree with Mm as to the amount of compensation, they can apply to the justice. But the determination of the commissioners to negotiate with an owner for leave to take a part of his premises for a ditch, is a matter which must be the subject of official, corporate action, and must be proven by the official record of the board. The record of their proceedings must also show the failure to obtain the owner’s consent, and a consequent resolution to apply to the justice with a view of having the damages assessed.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Will county; the Hon. Dorrance Dibell, Judge, presiding.
    Mr. E. Meers, and Mr. D. Gilmore, for the appellant.
    Messrs. A. F. Mather, and Mr. A. 0. Marshall, for the appellees.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is a hill filed by appellant in the Circuit Court of Will County for the purpose of enjoining the appellees, Highway Commissioners of the town of Wheatland in said county, from digging a ditch across a portion of appellant’s farm in the town of Plainfield in said county. A public highway runs east and west between the towns of Wheatland and Plainfield, and north of the eighty acres, owned by appellant, upon which it is proposed to open said ditch.

On June 20,1885, the highway commissioners instituted a proceeding before a justice of the peace, under Section 8 of the Eoads and Bridges Act, (Starr & Cur. Stat. chap. 121, page 2138) and therein obtained a verdict assessing the damages for digging the ditch at $12.00. Appellant took an appeal from the justice to the Circuit Court, but his appeal was dismissed. The appellees claim the right to open and dig the ditch by virtue of the proceeding before the justice; appellant charges that such proceeding was illegal and invalid. The facts are more fully stated in Chaplin v. Commissioners, etc. 126 Ill. 264. The case is brought here for the purpose of reviewing the decree of the'Circuit Court, which dismissed the bill for want of equity.

Counsel for appellant claim that section 8 pf the Act, approved June 23, 1883, in regard to roads and bridges, etc., is unconstitutional upon the alleged ground that it allows no compensation for property taken. Section 13 of the Bill of Bights provides that “private property shall not be taken or damaged for public use without just compensation.” By the terms of section 8 of the Act, the owner is summoned before a justice of the peace “for the purpose of having the damage assessed which such owner may sustain by reason of the digging'or opening of such ditches or drains.”

Undoubtedly the owner of the land is entitled to compensation both for the land actually taken for the purposes of a,. ditch or drain, and also for the damages to the land not taken. He must be paid the value of the ground used for a ditch, and, if his farm is injured by being divided into two parts, or by being partially overflowed, or is otherwise damaged, he must also be paid for such injury or damage. But the language of the section is broad enough to cover compensation for the land taken, and also damages to the land not taken. The jury are. to assess the “damage,” which the owner may sustain by reason of the digging or opening of the ditch. The word “ damage, ”■ as here used, is not to be taken in the restricted sense, in which it is used in the constitution as indicating private property which is “damaged” and not “taken.” It is used in the broader sense of indicating the total loss which the owner may suffer by reason of the digging of the ditch or drain. Such total loss consists of the value of the ground which is taken from him to be used for a ditch, and also the injury which the-remainder of his land may sustain on account of such use of the part taken. Hence, we do not think the section is unconstitutional for the reason insisted upon.

But, in the present case, there is a serious and fatal objection to the proceeding before the justice for the assessment of damages. Two facts must exist before the justice can take jurisdiction. First, a necessity must exist for digging the ditch upon the owner’s land in order to carry off the water from the highway, or to drain a slough or pond on the highway. Private property can only be condemned for a public use. The public will not be benefited by the ditch, if no necessity exists for draining the water from the highway which belongs to the public. Whether or not it is necessary to carry off the water from the highway, or to drain a slough or pond on the highway, is a matter which, by the terms of section 8, must be determined by the highway commissioners. In determining upon the existence or non-existence of such necessity, the highway commissioners can only act in their official capacity as a board.

Section 10 of the Boads and Bridges Act provides that the town clerk shall be ex officio clerk of the board of highway commissioners, and “shall keep a record of all the official acts and proceedings of the board in a well-bound book to be provided for that purpose, which record shall be signed by the president and clerk.” The record so required to be kept must show, that, where the commissioners enter upon a man’s land to dig or open a ditch, they have previously determined as an official hody, that such entry is necessary in order to carry off the water from the highway, or to drain a slough or pond thereon. The evidence that the ditch is necessary for the purpose specified in the statute must he in the record of the official proceedings of the board.

In the present case, there was no evidence that the commissioners ever took any official action as to the necessity of the drain. An attempt was made upon the trial below to show by parol testimony, that the digging of the ditch was necessary in order to carry off the water from the highway. This was clearly improper, and the objection to it made by appellant should have been sustained. A record of the action of the board upon the subject should have been produced.

The second fact necessary to be shown, in order to give the justice jurisdiction, is the refusal of the owner to give his consent to the cutting of the ditch. No owner can be compelled to permit a ditch to be cut across his land, unless an offer is made to compensate him therefor. When section 8 uses the language, “that, unless the owner of such land, or his agent, shall first consent to the cutting of such ditches, the commissioners shall apply to any justice,” etc., the meaning is: “unless the owner * * * shall first consent,” etc., after the commissioners have offered him an amount deemed by them to be a just compensation for the damage to be sustained by him. This is apparent from section 15 of the act, where the following words are used: “when damages have been agreed upon * * * for ditching to drain roads.” It certainly could never have been the intention of the law, that the commissioners should take steps to condemn land, unless the owner gave land enough for a ditch, and zoaived all damages without any compensation whatever.

It is, therefore, the duty of the commissioners, when they ask for the consent of the owner to open a drain on his land, to accompany their request with an offer of “just compensation.” When they fail to agree with him upon the amount of the compensation, they can then apply to the justice. But the determination of the commissioners to negotiate with an owner for leave to take a part of his premises for a ditch is a matter vdiicli must be the subject of official, corporate action, and must be proven by the official record of the board. The record of their proceedings must also show the failure to obtain the owner’s consent, and a consequent resolution to apply to the justice with a view of having the damages assessed. In the present case, there was no proof of any kind, either oral or by the record, that the commissioners had sought to obtain the consent of the appellant in the way contemplated by the statute. The views here expressed are sustained by the following cases: The People ex rel. Peter Greenwood et al. v. The Board of Supervisors of Madison County, 125 Ill. 334; Reed v. O. & M. Ry. Co. 126 id. 48.

For the reasons here stated the decree of the Circuit Court is reversed, and the cause is remanded to that court with directions to proceed in accordance with the views here expressed.

Decree reversed.


author: Mr. Justice Baker

text:
    Moses Casler et al. v. Asahel B. Byers.

      Filed at Ottawa October 31, 1889.

    1. Construction or a deed—two descriptions. Where there Is a doubt as to the construction of a deed, it will be taken most favorably for the grantee; so that, if the deed contains two descriptions which do not coincide, the grantee may elect that which is most to his advantage.
    2. A mortgage described the premises as the south-east quarter of the south-east quarter of section 8, and the north half of the south-west quarter of section 9, “all in township forty (41) north, range 3, east of the third (3d) P. M.” The land was in township 41: Held, that no correction of the mortgage, either by the parties or the decree of a court of chancery, was necessary. There being two descriptions given as to the township, the mortgagee had the right to rely upon the one most favorable to himself.
    3. Homestead—release—of a further acknowledgment after the reforming of a deed for mistake. Where a mortgage by which the homestead estate is properly released by a husband and wife, is corrected by the parties or by decree of court, for the purpose of curing a mistake in the description of the premises, a second certificate of acknowledgment showing such a release by the wife, is not necessary.

      4. EstoppeL'—inducing action to the injury of another. Where a person, by Ms words or conduct, voluntarily causes another to believe in the existence of a certain state of things, and induces him to act upon that belief, so as to change his previous position, the former will be estopped to aver against the latter a different state of things.
    5. Same—purchase of mortgage debt—at an amount in excess of what is due—induced by the mortgagor. Where a mortgagor, for the purpose of inducing another to purchase the mortgage indebtedness from the holder, produces a writing, signed by himself and the mortgagee, showing a settlement, and that there is due on the mortgage a certain sum, and the mortgage is purchased on such assurance by paying the sum named, the mortgagor and his wife will, on bill to foreclose such mortgage, be estopped from claiming that the sum so stated was not due at the time of the purchase.
    6. And where 'the wife joins with her husband in a mortgage of his lands to secure his debt, whereby she releases her right of dower and homestead estate, and the husband induces a third party to purchase the mortgage debt, after its maturity, at a certain price, upon his assurance that the price paid is due on the note and mortgage, so that he will be estopped from showing that such sum was not due, the wife will also be estopped, and can not be allowed to redeem for a sum less than that for which her husband is liable.
    7. Attobnby’s pee—on foreclosure. A reasonable attorney’s fee may be allowed to a party foreclosing a mortgage by bill, when the mortgage so provides; and what is a reasonable fee is a question of fact, to be determined from the evidence in the case.
    Wbit of Ebbob to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Winnebago county; the Hon. 0. H. Hobton, Judge, presiding.
    Mr. Habvey A. Jones, for the plaintiffs in error:
    Mrs. Casler should have been allowed to redeem from the mortgage by paying the sum actually due thereon, and was not estopped by any conduct of her husband to which she was no party. Allen v. Hawley, 66 Ill. 169; Emory v. Keighan, 94 id. 543; Olds v. Cummings, 31 id. 188; Hamilton v. Lubukee, 51 id. 415; Fortier v. Darst, 31 id. 212; Walker v. Dement, 42 id. 272; White v. Sutherland, 64 id. 181.
    A stranger shall not be bound by or take advantage of an estoppel. Massure v. Noble, 11 Ill. 531.

      As to the land in dispute, the homestead right was not released in the certificate of acknowledgment.
    If Casler is estopped, it must be by act in pais, for the purported settlement of March 10, 1881, between Divine and Casler, does not have that effect, for if the contest here was between Divine and Casler, it could and would be inquired into, and as Byers testifies there was a second settlement of the mortgage indebtedness November 23, 1881, said second settlement must, of necessity, supersede the alleged prior one.
    Now, as to the second paper,—viz., the one signed by Casler and Bowen, and the one upon which the master and court acted,—it should not have that effect. It was not between the same parties or privies. Bigelow on Estoppel, (3d ed.) 59; Freeman on Judgments, 159; Insurance Co. v. Pennell, 19 Bradw. 212.
    It is no estoppel, because it is confessedly false, and is repudiated by Byers, Bowen and Casler. It states Bowen had, on that day, purchased the note and mortgage in question, and that there was the sum of $4500 due thereon. Is it any more true that there was $4500 due thereon than that Divine had sold it to Bowen? Estoppels must be mutual, and as Byers was not estopped by it, so neither was Casler.
    The burden of proof is upon Byers to establish the estoppel. Merrell v. Tobin, 30 Fed. Rep. 738; Merrell v. Shea, id. 743.
    It was error to allow $500 attorney’s fees to be taxed as costs. A sale could have been made under the power, and have saved at least $450.
    Mr. William Lathbop, for the defendant in error:
    The right to redeem is conditional upon payment of the entire amount due on the mortgage. 2 Jones on Mortgages, sec. 1070; Lamb v. Montague, 112 Mass. 353.
    The description of the property was good without the correction made. Sharp v. Thompson, 100 Ill. 447; Bowen v. Prout, 52 id. 354.

      The doctrine of estoppel is, that when a person, by his words or conduct, voluntarily causes another to believe in the existence óf a certain state of things, and induces him to act upon that belief, so as to change his previous position, he will be estopped to aver against the latter a different state of things.
    The elements to constitute estoppel are: First, there must have been a representation concerning material facts; second, the representation must have been made with knowledge of all the facts; third, the party to whom it was made must have been ignorant of the truth of the matter; fourth, it must have been made with the intention that it should be acted upon; fifth, it must have been acted upon. People v. Brown, 67 Ill. 435. To the same effect are Ball v. Hooten, 85 Ill. 159 ; Heffner v. Vandolah, 57 id. 520; Noble v. Chrisman, 88 id. 186; Talcott v. Brackett, 5 Bradw. 60; Bigelow on Estoppel, (2d ed.) 345.
   Mr. Justice Baker

delivered the opinion of the Court:

Asahel B. Byers, defendant in error, exhibited in the DeKalb circuit court, against Moses Casler, and Catherine M. Casler, his wife, plaintiffs in error, a bill to foreclose a mortgage. The mortgage deed contained a power of sale, and was executed by said Caslers on the 8th day of April, 1876, to one B. L. Divine, since deceased, on one hundred and twenty acres' of land, for the purpose of securing the payment of a promissory note of that date, for $3350, made by said Moses Casler to said Divine, due five years after date, and drawing ten per cent interest, payable annually. The note was, after its maturity, and in the lifetime of Divine, assigned, without recourse, to said Byers, and the note and mortgage delivered to him. Answer was filed to the bill to foreclose, and issues formed, and upon application of plaintiffs in error, the venue of the cause was changed to Winnebago county. A hearing was had in the circuit court of this latter county, at the October term, 1887, which resulted in a decree against both the plaintiffs in error, foreclosing the mortgage, and against said Moses Casler for $5429.53 and costs of suit, the latter to include a solicitor’s fee of $500 for foreclosing said mortgage. This decree was affirmed in the Appellate Court for the Second District,' and the cause thereupon brought to this court hy writ of error.

Several grounds are here urged for a reversal of the decree.

First—It is claimed it was error to order a sale of the mortgaged premises freed from the homestead right of the plaintiffs in error. In the body of the mortgage, as it stood when executed and acknowledged in April, 1876, and in the certificate of acknowledgment then made, there were express and formal waivers of the homestead right. The mortgaged property was mentioned in the deed as being situate in the'county of De Kalb, and State of Illinois, and was described as follows: “The south-east quarter (J) of the south-east quarter (J) of section number eight (8), and the north half (£) of the south-west quarter (J) of section number nine (9), all in township forty (41) north, range three, east of the third (3d) P. M., containing one hundred and twenty acres, more or less.” The lands were in fact located in township 41 north, range 3 east. In 1879, R. L. Divine, the mortgagee, discovering that the word “one” was omitted in the description of the land contained in the deed, obtained the consent of both of the plaintiffs in error to have said word “one” inserted in the mortgage, which was accordingly done, and the mortgage made to read, “all in township forty-one (41) north,” etc., and the mortgage, as thus amended, was acknowledged, and a second certificate of acknowledgment made, and the mortgage recorded for a second time. The second certificate of acknowledgment contained no waiver of the right of homestead. The contention of plaintiffs in error is, that the mortgage which was foreclosed showed & waiver of homestead to lands in township 40, hut did not show a waiver of homestead to lands in township 41.

The deed as originally written and executed was sufficient to constitute it a valid mortgage upon the lands of Moses Casler .In township 41, and it and the first certificate of acknowledgment were effectual to show a waiver of the homestead right in said lands, and no correction of the instrument, either by the act of the mortgagors or the decree of a court of chancery, was necessary. In Sharp v. Thompson, 100 Ill. 447, this court said: “It is a rule of construction, that where there is a doubt as to the construction of a deed, it shall be taken most favorably for the grantee. Whence, if there are two descriptions in a deed of the land conveyed, and they do not coincide, the grantee is at liberty to elect that which is most favorable to him.” Here, there were two and inconsistent descriptions of the lands, one locating them in “township forty,” and the other locating them in “township 41.” The mortgagee availed himself of the privilege given him by the law, and elected to take by the description of “township 41,” and indicated such election by soliciting and procuring from the mortgagors the insertion of the word “one” in the mortgage, whereby the two descriptions were made to coincide, and to conform to the election so made. The amendment to the instrument was an unnecessary act, but it worked no detriment to the grantee, and was potent to show the parties of both parts understood and construed the deed as conveying lands in township 41, and when made, it related back to the original execution of the deed. The first acknowledgment being amply sufficient in respect to the waiver of homestead, a second certificate showing such waiver was wholly unnecessary, and the only effect of the second certificate of acknowledgment was to afford evidence the amendment in the deed was made with the knowledge and consent of the mortgagors.

A husband and wife had executed and acknowledged a mortgage intended to be on their homestead, but which, by mistake, was not properly described, and upon bill filed by the mortgagee, after the death of the husband, against his widow and minor children, a decree was rendered correcting the mistake, and ordering a foreclosure and a sale of the land in which was the homestead. Thereafter, the widow and heirs filed a bill claiming a homestead in the premises,—and the latter case came before this court in Snell v. Snell, 123 Ill. 403, and the point was expressly made by counsel that the law places the householder and his wife under an absolute disability to convey the homestead, except in strict conformity with the statute. It was held the widow and children were bound by the former decree, and had no homestead in the premises; and in the opinion of the court it was said: “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 deed here in question contained, when the waiver of homestead was made, a correct description of the premises in which was the homestead, while the deed involved in Snell v. Snell, contained no such description; and if the decree and acknowledgment, there, were a sufficient compliance with the requirement of the statute to be effectual to work a conveyance of the homestead, it is not perceived why the deed and acknowledgment and the correction made in the deed by the voluntary act of the parties themselves, that appear in this case, do not accomplish the same result. We think there was no error in the ruling of the court that the homestead of plaintiffs in error was released by the mortgage.

Second—Is Moses Casler estopped from denying that $4500 was due on the note and mortgage on the 23d of November, 1881? On the 10th of March, 1881, said Casler, and Divine, the mortgagee, made and signed an instrument in writing, which reads as follows:

“On settlement and adjustment of interest and other accounts and matters of deal between Moses Casler and B. L. Divine, this 10th day of March, A. D. 1881, it is found that there is or will be due to said Divine, on the 8th day of April, A. D. 1881, the sum of $4855 on note and mortgage given to said Divine by said Casler on the 8th day of April, A. D. 1876, for the principal sum of $3350, drawing interest at ten per cent per annum, and that all other indebtedness from said Casler to said Divine is paid. ^ p>mNB

Moses Casler.”

On the 23d of November, 1881, the note and mortgage were overdue, and Divine had advertised the mortgaged lands for sale, under the power in the deed, and was about to sell the same. A few days before that, Casler had, in his extremity, called upon Byers, defendant in error, who lived on the adjoining farm, and requested his assistance. Byers was a man of property, but did not have the ready money to buy the mortgage. He told Casler that if he would reduce the mortgage to $4500, he would see what he could do. Byers then went to one B. D. Bowen, and tried to arrange with him to take the mortgage, and give Casler five years in which to pay the $4500, with interest at seven per cent per annum. Bowen was on the eve of starting for California, but said he would take the investment when he came back, if the security proved satisfactory. By arrangement between Byers and Bowen, the latter let the former have $4000 on his (Byer’s) individual note, and agreed to pay the remaining $500 in the spring, if the security was satisfactory. Thereupon Byers borrowed, temporarily, the $500 from one Updike. Byers and Casler went, on November 23, 1881, to Divine’s bank, in Sycamore, and there a settlement was made. Byers paid Divine the $4500, and Casler being unable to pay all the residue claimed by Divine as due, also advanced a further sum of $84.80, in order to complete the payment to Divine. The note of Casler for $3500 was indorsed by Divine “without recourse,” and it and the mortgage and the writing of March 10, 1881, signed by Casler and Divine, were turned over to Byers. At the same time a written statement was, at the request of Byers, drawn up by Divine and signed by Casler. It was then delivered to Byers, who, as it was expected Bowen would take the note and mortgage, carried it to Bowen, and the latter also attached his signature and returned it to Byers. That writing was as follows:

“This agreement, made the 23d day of November, Á. D. 1881: Witnesseth: that the undersigned, B. D. Bowen, at the instance and request of said undersigned Moses Casler, has purchased of B. L. Divine a note for §3350, with interest at ten per cent per annum, dated April 8, 1816, and mortgage executed by said Casler and wife to secure the same, said mortgage covering certain lands in sections 8 and 9, in the town of South Grove, DeKalb county, Illinois; and w'hereas, there is now due on said note and mortgage the sum of §4500, neither more nor less, and the said Casler is desirous of procuring an extension of the time of payment thereof: Now, in consideration of the premises, said Bowen hereby stipulates and agrees to and with the said Casler that he will and does hereby extend the time of payment of said note and mortgage for five years from this date: Provided, that if default at any (time) be made in the prompt payment of the annual interest accruing on said note and mortgage, then said Bowen may at once resort to and exercise the power of sale contained in said mortgage, and may resort to any and all other lawful means to collect said debt, his assignee to have the same rights. The rate of interest on said note and mortgage from and after this date is to be seven per cent per annum.

Nov. 23, 1881. Moses Casler, [Seal.]

B. D. Bowen. [Seal.]”

Byers subsequently got $500 more from Bowen, to replace that amount borrowed from Updike, but he did not turn over the note and mortgage to Bowen, and, according to his testimony, he refrained from so doing for the reason Casler preferred he should keep them.

Plaintiffs in error introduced testimony, upon the hearing, tending to prove, that while the note secured by the mortgage was for $3350, the actual consideration thereof was only the sum of $2250, and also tending to show that Divine had collected some $1600 of rents accruing to Casler, with the understanding they should be applied upon the mortgage debt. The explanations made by Casler of his signing the two written instruments were, that he signed the paper of March 10, 1881, without reading it, not having his glasses with him, and being unable to read without glasses, and on the representation of Divine that it was a statement that their matters, other than the mortgage indebtedness, were settled up, and that he had no recollection of the paper signed by himself and Bowen. There is no doubt Casler, when he first called on Byers, wanted him to go his security in his proposed litigation with Divine to get “a right count, ” and made a claim there was $1000 too much put in the mortgage; but it is evident Byers gave no weight or credence to the suggestions and claims thus made. We think his subsequent conduct, in advancing $4500 for the purchase of the note and mortgage, was justified by the contents of the two papers signed by Casler that were placed in his possession at the time he paid the money. He borrowed the money at seven per cent interest, and turned it over to Casler at the same rate of interest. He assumed a personal liability and risk, and was acting solely from a benevolent desire to assist a neighbor in his distress. As matter of course, he did not understand he was making an arrangement whereby the sale would be stopped and Casler afforded an opportunity to contest the amount of the mortgage indebtedness. To so suppose would be to impute to him a degree of folly that is seldom found in a man who is capable of attending to his own business affairs. The evidence shows, that in the course of the dealings between Casler and Divine, Casler executed in favor of Divine some eight chattel mortgages, all of them given to secure considerable sums of money, and further, that the latter recovered three judgments against the former; and we think there is a strong probability that the $1000 included in the deed was based upon some of these transactions, and that the rents collected by Divine were applied upon some of these evidences of indebtedness. The writing of the 10th of March, 1881, recites, “that all other indebtedness from said Casler to said Divine is paid.”

These matters, however, are merely preliminary to the point in issue. Waiving all question in respect to the true amount due upon the note and mortgage, it is clear that, under the facts of the case, Moses Casler should be estopped from now claiming that there was not, on the 23d of November, 1881, and after deducting the payments then made by him, and the $84.80 loaned by Byers to scale down the debt to the amount agreed upon, the full sum of $4500 due upon the mortgage indebtedness. The doctrine of estoppel, as held in The People v. Brown et al. 67 Ill. 435, and, in numerous other cases, is, that where a person, by his words or conduct, voluntarily causes another to believe in the 'existence of a certain state of things, and induces him to act upon that belief, so as to change his previous position, he will be estopped to aver against the latter a different state of things. We think that in this case all the essential elements to constitute an estoppel in pais appear. But even if we assume that fraud, or something tantamount thereto, is wanting, and that said Casler acted in good faith, and that $1000 too much was put in the mortgage, and that payments afterward made were not credited by Divine upon the indebtedness, yet it would seem to be a case, in view of the statements signed by Casler, for the application of the rule, that where one of two innocent persons must suffer loss from the wrongful act of a third party, he should bear the loss whose acts and conduct have given opportunity for the accomplishment of the wrong. It would be an outrage upon equity and good conscience, to allow Moses Casler, upon the facts developed by this record, to avail himself of his claim that all or the greater part of the mortgage debt was settled with Divine prior to its transfer to defendant in error.

Third—It is insisted that Catherine M. Casler, wife of Moses Casler, had both an inchoate right of dower and a homestead right in the premises—that even if her husband was estopped, yet she was not a party to and had no knowledge of the matters which worked such estoppel, and that she having a right of equity of redemption, should have been allowed to redeem from the mortgage by paying the amount actually due thereon. The debt for which the note and mortgage were given was the debt of the husband alone, but she voluntarily joined in the execution of the mortgage deed, and, as a security for the payment of her husband’s indebtedness, waived both her dower and her homestead rights.

McCabe v. Raney, 32 Ind. 309, was a suit against the principal and sureties on a promissory note, they being the joint makers thereof. The principal had, by his statements to the purchaser of the note that there was no defense to it, precluded himself from setting up a defense to the note, and it was held that his sureties were also precluded from making a defense, and the court said: “Any act of the principal which estops him from setting up a defense personal to himself, operates equally against his sureties.”

This ease of McCabe v. Raney, and the language above quoted, were cited with approval by this court in City of Chicago v. Gage et al. 95 Ill. 593, (on pages 629 and 630,) and the principle there announced is here exactly in point, and decisive against the contention now urged in behalf of Mrs. Casler.. Besides this, Moses Casler was the owner in fee of the premises, and, jointly with his wife, had a homestead therein, and the mortgage was given to secure his personal debt, and she released her rights, as she lawfully might, for the payment of any part of the debt that should remain a valid indebtedness against him. The right to redeem, whoever has it, is the right to redeem the entire estate included in the mortgage, by the payment of the whole debt due upon it, and the mortgagee is not obliged to take his pay by installments, or to release any specific portion of the estate on part payment. (2 Jones on Mortgages, sec. 1070; Lamb v. Montague, 112 Mass. 352.) It is probable that if a husband was guilty of intentional fraud as against the mortgaged rights of his wife, by an admission of indebtedness made in bad faith, for the purpose of affecting such rights, a court of equity would afford her relief; but there is in this record no intimation of such a state of ease, and Mrs. Casler has not either filed a cross-bill asking affirmative relief, or claimed a separate and distinct defense in an answer, but has simply joined with her husband in answering the bill to foreclose. We think that Mrs. Casler, as well as her husband, is estopped from claiming less than $4500 was due on November 23, 1881.

Fourth—The remaining claim on the part of the plaintiffs in error is, that it was erroneous to allow a solicitor’s fee of $500 for foreclosing the mortgage. The mortgage deed provided for a reasonable solicitor’s fee, to be taxed as a part of the costs, if for any cause it became necessary to foreclose the mortgage by proceedings in court. It needs no argument to show that an attempt to foreclose, under the power of sale in the mortgage, would have been futile, and that it was necessary and proper to file a bill in chancery for that purpose. Although the suit was pending in the circuit courts only some eight months, and the questions involved were not particularly abstruse, yet a change of venue was taken by the plaintiffs in error to another county, and the right to foreclose was warmly contested on various grounds, and besides the time that was taken by the proceedings in open court, eight days were occupied in taking depositions before the master, and numerous exceptions were urged to his report, and a considerable amount of money was involved in the litigation. That which the contract called for was “a reasonable solicitor’s fee.” Two practicing attorneys at law were introduced by defendant in error as witnesses, and testified in regard to the fee. One of them stated $500 was a reasonable fee, and the other that from $400 to $500 would be a reasonable fee. Plaintiffs in error cross-examined both of these witnesses, and had full opportunity to ascertain upon what basis they formed their opinions in respect to the amount of the fee, and to question them with reference to the usual and customary fees for like services, but failed to do so. No objections were made either to the questions propounded to said witnesses or to their answers thereto, and they produced no witnesses in contradiction. It is a question of fact, to be determined from the weight of the evidence, as to what is a reasonable solicitor’s fee for the services performed in the case where the inquiry arises. Here, the master in chancery, the circuit court and the Appellate Court have all found from the evidence that $500 is a reasonable fee for the services rendered in this cause; and while we might have been better satisfied with the decree if a smaller fee had been fixed therein, yet we can not say, that under the evidence the findings in that behalf were manifestly erroneous, and the fee of $500 so excessive and oppressive as to justify a reversal by us on that ground. In Reynolds v. McMillan, 63 Ill. 46, the suit was amicable, and the rights of infants were involved; but here, plaintiffs in error were adults, and it must be presumed from their conduct they were content with the testimony on the question of a reasonable fee, as it stood.

We find in the record no sufficient ground for interfering with the decree of the circuit court, and it and the judgment of the Appellate Court are affirmed.

Judgment affirmed.


author: Caton, J.

text:
    Thomas J. Gillinwater, Plaintiff in Error, v. The Mississippi and Atlantic Railroad Company.
    ERROR TO EEEINGHAM.
    Companies organized under the law of 1849, providing for a general system of railroad incorporations, cannot proceed to condemn lands for the purpose of obtaining the right of way, until after such companies shall have obtained from the legislature a law approving of the route and terminations of the roads proposed to be constructed.
    The Mississippi and Atlantic Railroad Company filed their petition in the Effingham Circuit Court, asking the appointment of commissioners for the purpose of securing the right of way for the use of the company over the land of Gillinwater.
    The petition shows that the company had organized under and in conformity with the provisions of the general law of the 5th November, 1849, to provide for a general system of railroad in-corporations. That the line of the road had been surveyed, and estimates, profiles, &c. made. That the line of survey and location is made over and upon the land of Gillinwater, and that this land was necessary for the construction of said road. That the company and Gillinwater could not agree in relation to said land, and the company prayed the appointment of commissioners for its appraisement, so as to secure the condemnation of the land.
    To this petition Gillinwater appeared and pleaded, that said company have no power granted to them, by the provisions of said act, to hold any real estate for the use, construction, and maintenance of said road, except what they can obtain by gift or purchase; that said act does not confer upon them any power to condemn lands for the purpose of constructing said road, against the will and consent of the owner thereof.
    A general demurrer was interposed to this plea, to which there was a joinder; the Court sustained the demurrer, and Gillinwater declining to answer further, commissioners were appointed to ascertain the compensation to be made to the said Gillinwater, for the taking or injuriously affecting the land, &c., by the passage of the said railroad through the same, &c.
    Gillinwater brought the cause to the Supreme Court, and assigns for error the sustaining the demurrer to the plea, and the appointment of commissioners, &c.
    A. ICitchell, for plaintiff in error.
    W. B. Scates, C. H. Constable, J. G. Marshall, and E. Rust, for defendants in error.
   Caton, J.

The defendant in error is a company, formed under the act of the 5th of November, 1849, providing for a general system of railroad incorporations; and the question is, has it the authority to condemn the right of way, by proceeding under the twenty-second section of that act. The most ingenious arguments have failed to raise a doubt in our minds that the company does not possess this power. That section provides, that “any number of persons, not less than thirteen, intending to organize a corporation under the provisions of this act, and every company that may hereafter organize under this act, may present a petition to the legislature, stating the places from, and to which, they propose to construct their road, and its location and route, with reasonable certainty, or that they intend to run the said road on the most direct and eligible route between the points of termini, and praying the legislature to determine whether the construction of the proposed road will be of sufficient public use to justify the taking of private property for the construction of the same.” The section then proceeds to provide, that if the legislature shall decide by law that the road will be of sufficient utility to justify that, then such company, when organized, may proceed in a particular manner therein prescribed, to acquire the right of way, by paying to the owner of the land a just compensation therefor. It was insisted, on the argument, that the provision requiring legislative sanction before the authority to condemn the right of way could be exercised, should be held only to apply to the association of thirteen persons, who had not previously organized into a company, and not to the company of twenty-five persons, who had organized under the first section of the act. The language of the law, however, is so explicit as absolutely to forbid such a construction. It provides that the thirteen or more persons “intending to organize,” “and every company that may hereafter organize under this act, may present a petition,” &e. Here are embraced, with equal certainty, both classes of associations. Both are allowed to present petitions, and one has no more authority to exercise the right to be conferred by future legislation, than the other. It was insisted, by one of the counsel, that the word may, as here used, may be construed to be imperative, only upon the unorganized association of thirteen, while as to the organized company, it is only permissive. But we can find nothing in the language of the law to sustain the suggestion. If the organized company had no occasion for a further grant of power, there could have been no object in allowing them to apply for it. To induce such an application would have been worse than useless,—a trouble to the company, and an idle waste of the time of the legislature. The words, which necessarily point to the organized company, could not have been inserted for so futile a purpose. It is laid down as a rule, that “ the word may means must or shall, only in cases where the public interests and rights are concerned, and when the public, or thud persons, have a claim de jure, that the power should be exercised.” Schuyler Co. v. Mercer Co. 4 Gilman, 20; Malcom v. Rogers, 5 Cowen, 188. Certainly such is its position here. Both the public, and third persons, over whose land the contemplated road may run, have an interest in compelling the company to apply to the legislature to approve of the road, and find in favor of its public utility, before the power to force the right of way is exercised. It is admitted to be inoperative as to one of its nominatives, and it is equally clear that it is so as to the other. • The statute says that, after a certain other act shall have been passed, the company - may then proceed to take private property for the use of its road; that is equivalent to saying that that right shall not be exercised without such subsequent act. The right to take private property for public use is one of the highest prerogatives of the sovereign power; and here the legislature has, in language not to be mistaken, expressed its intention to reserve that power until it could judge for itself, .whether the proposed road would be of sufficient public utility to justify the use of this high prerogative. It did not intend to cast this power away, to be gathered up and used by any who might choose to exercise it.

Some expressions used in the third and fourth divisions of the twenty-first section, were relied upon to show that no further legislation was contemplated, to authorize an organized company to exercise this power. The thud division of the twenty-first section authorizes the company to purchase, and take by voluntary grants and donations, and, by its servants, to enter upon all such lands as may be necessary for the road, “ but not till the compensation to be made therefor, as agreed upon by the parties, or ascertained as hereinafter prescribed, be paid to the owner or owners thereof, or deposited as hereinafter directed, unless the consent of such owner be given to enter into possession.” By the fourth division, the company is authorized, for the purpose of malting embankments, &c., to take land “ in the manner provided hereinafter,” &c. The different provisions of this statute, like those of all others, must be construed together. The general expressions of one section must be restrained or limited by the particular provisions of another, where the manifest intent of the legislature requires it; and such is the case here. The land and right of way are to be acquired in the manner hereinafter provided. That provision is made in the twenty-second section, which authorizes it only to be done after the legislature shall have declared the road to be of sufficient public utility to justify it. Until this has been done, it is manifest that the powers there specified, like many others provided for in the act, are not to be exercised. They are powers provided for and specified, but not conferred. While in this incipient state, the company is not in an appropriate condition, to exercise many of the powers specified in other parts of the act, and such is emphatically the case as to the one claimed. The legislature, as it would seem, out of abundant caution and to leave no possible doubt that it was its deliberate intention to reserve the right to itself, to judge of the public utility of the road, before authority should be given to take private property for its use, concludes that twenty-second section with the following expressive declaration: “ And the legislature hereby reserves the right to itself to indicate the routes and termini of said roads, and the same shall not be constructed or commenced without the express sanction of the legislature of this State, by a law to be passed hereafter.” This provision, it was insisted, should only be applied to the unorganized association, for the reason that the organized company would always have had their road surveyed and their route determined upon before making application to the legislature; but this is no more required of the organized than of the unorganized company. It is true, that the former, in their articles of association, must specify, to a certain extent, the route and termini of their proposed ,road; but, in their application to the legislature, the same specifications in these respects are required to be made by both. The objection applies to one as much as the other, and we have no doubt, that this concluding clause of the section is equally applicable to each, and that it applies to both.

It was finally insisted that this construction of the law, makes those portions of it, which deprive the company of the power to take private property, unconstitutional, for two reasons : First, the company has organized under the law, and has expended a large amount of money in making their survey, maps, and profiles, all of which will be an entire loss, if it is not permitted to make the road, which is, in effect, depriving the company of their property without just compensation. It is only necesary to answer, that all this must have been foreseen when the enterprise was undertaken, and the company formed, in case they should be unable to get a further grant of necessary powers. They necessarily proceeded with the hazard before them, and must abide the chance. It may be a hard case, — possibly an unjust one, but of this we know nothing, for with it we have nothing to do.

It was further urged, with apparent sincerity, that that portion of the law which withholds the power claimed, is a violation of the constitution, which enjoins it upon the legislature to “ encourage internal improvements by passing liberal general laws of incorporation for that purpose.” This is a constitutional command to the legislature, as obligatory on it as any other of the provisions of that instrument, but it is one which cannot be enforced by the courts of justice. It addresses itself to the legislature . alone,' and it is not for us to say, whether it has obeyed the behest in its true spirit. Whether the provisions of this law are liberal, and tend to encourage internal improvements, is matter of opinion, about which men may differ; and as we have no authority to revise legislative action on the subject, it would not become us to express our views in relation to it. The law makes no provision for the construction of canals and turnpike roads, and yet they are as much internal improvements as railroads, and we might as well be asked to extend, what we might consider the liberal provisions of this law to them, because they are embraced in the constitutional provision, as to ask us to disregard such provisions of it as we might consider illiberal. The argument proceeds upon the idea, that we should consider that as done which ought to be done; but that principle has no application here. Like laws upon other subjects within legislative jurisdiction, it is for the courts to say what the law is, not what it should be.

The judgment of the Circuit Court is reversed.

Judgment reversed.