author: Mr. Justice Mulkey Mr. Justice Walker,

text:
    Robert Black v. The Wabash, St. Louis and Pacific Railway Company.

      Filed at Springfield September 27, 1884.

    1. Cabbies — reasonableness of special contract limiting liability. Aj stipulation in a shipping contract, voluntarily and understandingly entered1! into by a shipper of live stock for transportation, that in consideration of aj reduced rate no claim for damages accruing to the shipper shall be allowed! or paid by the carrier, or sued for in any court, unless a claim for such loss» or damage shall be made in writing, verified by the affidavit of the shipper or I his agent, and delivered to the general freight agent of the carrier, at his office, 3 within five days from the time such stock is removed from the cars, will bet binding upon the shipper, and is not void as being contrary to any law or to \ public policy.
    2. Contbact — executed in ignorance of its terms — -when it is binding. Where a party of mature years and sound mind, being able to read and write, without any imposition or artifice to throw him off his guard, deliberately signs a written agreement without informing himself of the nature of its contents, he will nevertheless be bound by it, for the reason the law will not permit him to allege, as a matter of defence, his ignorance of that which it was his duty to know, particularly when the means of information are within his immediate reach, and he neglects to avail himself of them.
    3. In an action by the shipper of stock against a railway company to recover damages for negligence and delay in transportation, and a special written or printed contract is set up to defeat the action for a non-compliance with its terms and conditions, the shipper will have the right to show the circumstances under which he executed the same, when he claims he was purposely misled by the defendant’s agent and induced to sign the same without having time to examine the contents, under the fraudulent assurance that it was only a pass.
    4. Evidence — latitude on cross-examination. In a suit against a railway company as a carrier, to recover damages for a loss from negligence and delay in the transportation of freight, a special contract of shipment was set up in bar, which was executed in consideration of reduced rates, as was claimed by the defendant, and which the plaintiff claimed was signed by him under the fraudulent assurance it was only a pass, just as the train was starting to leave, when he had no time to read the same. The defendant’s station agent was permitted to testify that $33.50 was the schedule rate per car for the shipment of stock. On cross-examination the plaintiff asked him if the company had ever received that amount for a car of freight between the same points, and also this question: “Did you tell him (plaintiff) when he came for the ears at $25, he would have to sign any contract relieving the company from liability?” — to which the court sustained objections: Held, that under the latitude of cross-examination both questions were clearly proper, and that the court erred in ruling otherwise.
    5. Same — res gestee. On the question whether a shipper’s contract was fairly and understanding!)' executed by the shipper, or whether he was induced to sign the same without examination, under the false assurance of a station agent that it was only a pass, the agent, on his examination in chief, stated certain of his declarations to the shipper, made at the time and relating to the signing of the alleged contract. On cross-examination an objection was sustained to this question: “Did you tell Black (the shipper) what it was when you had him sign it?” Held, that the court erred in its ruling, and that everything that was said or done at the time by either of the parties relating to the signing, was a part of the res gestee, and was proper to be elicited on cross-examination.
    6. Same — of the party’s right to have the whole of a conversation. Where a party proves, by its agent, the declaration of the latter made at the time of the signing of a contract, the validity of which was being questioned, it is clearly the right of the other parly, on cross-examination, to call out all that was said at the same time on the same subject.
    7. Same — in rebuttal. Where a special written contract is set up in defence, the execution of which is claimed to have been fraudulently obtained, and the defendant proves by his agent what was said and done at the time it was signed, it is error to refuse to allow the plaintiff, in rebuttal, to give his version of the same matters.
    8. Same — on question whether a special contract was made for shipment. Where it was a question whether a special contract for the transportation of live stock was fairly and understandingly signed, or procured fraudulently, the shipper was asked, “What, if anything, was said about that being a special contract with you at that time?” and also, “Was this paper introduced in evidence, in the contract you made to ship the stock by the railroad company to Chicago?” — to both of which questions the court sustained objections: Held, that the court erred in excluding the questions.
    9. Same — parol evidence as to manner of execution of contract. Parol evidence is admissible to impeach the validity of a written instrument. Such evidence is not proper to change the terms of a written agreement, but the circumstances under which its execution is procured may be shown, for the purpose of showing whether the paper ever became a contract, or not. That a contract exists must be shown by parol, and the proof of such existence may be attacked by proof that the execution of the document is a nullity, as having been'procured by duress, or by fraud, etc.
    10. Where a plaintiff contended that a verbal understanding between him and a railroad station agent was the contract, and the only one, under which he made a shipment, and that an instrument signed by him and the agent was executed on his part under the belief that it was a mere pass over the road, and that belief was induced by the conduct and misrepresentation of the agent, while the defendant insisted that the instrument was a valid and binding agreement, affording the only evidence of the contract between it and the plaintiff, it was held, that it was a matter of proof which theory was correct, and that the only way of establishing the truth or falsity of either hypothesis was by showing what passed between the parties.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of DeWitt county; the Hon. George W. Herdman, Judge, presiding.
    Messrs. Moore & Warner, for the appellant:
    A common carrier can only make such contracts exempting itself from responsibility as are reasonable in the eye of the law; and the reasonableness of each contract must depend upon the circumstances of the ease in which it is to be construed. Lawson on Contracts of Carriers, sec. 29; Rice v. Railway Co. 63 Mo. 314; Transportation Co. v. Cornforth, 3 Col. 280; Railroad Co. v. Lockwood, 17 Wall. 357.
    The exemption clause in the contract is unreasonable, and does not bar the action. Rice v. Railway Co. 63 Mo. 314; Oxley v. Railway Co. 65 id. 629.
    Appellee having received actual notice within a reasonable time, and promised to investigate the claim, is estopped from insisting on want of form or limitation of time. Rice v. Railway Co. 63 Mo. 310; Oxley v. Railway Co. 65 id. 634; Noyes v. Insurance Co. 4 Zabr. 447; Clark v. Insurance Co. 6 Cush. 342; Peacock v. Insurance Co. 1 Bosw. 338; Bartlett v. Insurance Co. 46 Maine, 500; Risinger v. Cheney, 2 Gilm. 84.
    A common carrier can not, by special contract or otherwise, limit its common law liability for loss or damage occasioned by the negligence of itself or its agents or employes. 1 Addison on Torts, (Wood’s ed.) 716-731; 2 Wait’s Actions and Defences, 44-46; Wharton on Negligence, sec. 589; Cooley on Torts, 640, 684, 685; Lawson on Contracts of Carriers, chap. 2, p. 24; Railroad Co. v. Lockwood, 17 Wall. 357; Bank of Kentucky v. Express Co. 3 Otto, 174; Railroad Co. v. Waters, 41 Ill. 73; Oppenheimer v. Express Co. 69 id. 62; Railroad Co. v. Wilcox, 84 id. 239; Boskowitz v. Express Co. 93 id. 523; Express Co. v. Kountz, 8 Wall. 342; York County v. Railroad Co. 3 id. 107; Kuter v. Railroad Co. 1 Biss. 35; Manufacturing Co. v. Railroad Co. id. 377; Fuller v. Talbot, 23 Ill. 357; Transportation Co. v. Newhall, 24 id. 466; Railroad Co. v. Montgomery, 39 id. 335; Railroad Co. v. Owens, 53 id. 391; Railroad Co. v. McClellan, 54 id. 58; Railroad Co. v. Shea, 66 id. 471; Railroad Co. v. Sawyer, 69 id. 285; Railroad Co. v. Thompson, 71 id. 434; Transportation Co. v. Kahn, 76 id. 520; Railroad Co. v. Hamilton, id. 393; Railroad Co. v. Curtis, 80 id. 324.
    The trial court erred in refusing to let appellant prove that this pretended contract was unfairly, if not fraudulently, obtained; that it was not the contract on which the shipment was made; in holding that the appellee would not be liable for “actual” negligence; in modifying some of appellant’s instructions and refusing others, and in giving for appellee the instructions it did; and the Appellate Court erred in affirming the judgment of the trial court.
    Messrs. Bbown & Kirby, for the appellee :
    The clause of the contract by which appellant agreed to give notice of any loss he might sustain, is reasonable and valid. Railroad Co. v. Munson, 19 Ill. 136; Railway Co. v. Wilcox, 84 id. 239; Despatch Co. v. Bolles, 80 id. 473; Arnold v. Railroad Co. 83 id. 273; Hutchinson on Carriers, sec. 218; Railroad Co. v. Black, 11 Bradw. 65; Express Co. v. Caldwell, 21 Wall. 264; Lee v. Railroad Co. 5 H. & N. 867; Wharton on Negligence, sec. 587; Lewis v. Railroad Co. 5 H. & N. 867; Rice v. Railway Co. 63 Mo. 314; Oxley v. Railway Co. 65 id. 629; Wolf v. Telegraph Co. 62 Pa. St. 83; Young v. Telegraph Co. 34 N. Y. 390; York County v.
      Railway Co. 3 Wall. 107; Goggin v. Railway Co. 12 Kan. 416; Bankord v. Railroad Co. 34 Md. 197; Insurance Co. v. Scammon, 100 Ill. 644.
    Appellant can not avoid the contract because he failed to read it. Railroad Co. v. Hale, 2 Bradw. 160; Grace v. Adams, 100 Mass. 505.
    The letters from the general freight agent do not show a waiver of .the right to have proper notice of the claim. Lintner v. Millikin, 47 Ill. 178; White v. Murtland, 71 id. 250; Ogden v. Kirby, 79 id. 555; Jordan v. Easter, 2 Bradw. 73.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This was an action on the case, brought by the appellant, Bobert Black, to the June term, 1882, of the DeWitt circuit court, against the Wabash, St. Louis and Pacific Bailway Company, the appellee, to recover damages for alleged negligence in the carriage and transportation of a lot of beef cattle belonging to the appellant, from Midland City, in said DeWitt county, to the Union Stock Yards, in Cook county, resulting, as is claimed, in the loss of several head of the cattle, and serious injury to the others. The cause was tried before the court and a jury, resulting in a verdict and judgment for the defendant. On appeal to the Appellate Court for the Third District the judgment of the circuit court was affirmed, and the case is now before us for review.

The errors assigned upon the record, and relied on for a reversal, question the rulings of the trial court in the admission and exclusion of testimony, and in the giving, refusing and modifying of instructions. In order to a proper understanding of the questions thus raised, it will be necessary to advert, in a general way, to the leading facts in the case, as well as to the opposing theories, upon which the case was tried.

The appellant, being a farmer and shipper of stock, in the latter part of June, 1881, called on Cicero Lane, the station agent of appellee at Midland City, for the purpose of making arrangements for shipping a lot of cattle and hogs from that place to Chicago, over appellee’s road. The agent informed him that at present rates the cars would cost him $33.50 per car, (or, as appellant states it, $30 per car,) but at the same time promised him he would try to get him better rates. Accordingly, on the first of July, or thereabouts, the agent informed him the company had made a lower rate, and that he could then ship his stock at $25 per car. In pursuance of this understanding, the appellant, on the 6th day of the following month, loaded his stock, consisting of ninety-four head of cattle and fifty-five head of hogs, in cars furnished by appellee, then standing on its tracks at Midland City. After the stock was loaded, and a short time before the train moved off, Lane, the station agent, came to appellant and told him he had better go to the office and sign his passes, which he did. The passes referred to were, in fact, a written agreement, in duplicate, between the company and appellant, containing the terms and conditions upon which the stock then in the cars was to be shipped, the same having already been signed by Lane on behalf of the company. Appellant testifies this agreement was signed by him in duplicate, on presentation by the agent, without any knowledge of the real character of its contents, and the evidence shows one copy of it was retained by appellant and the other forwarded by Lane to the general freight agent of the company at St. Louis. As appellant claims, on the arrival of the train at Chicago, and before he had an opportunity of examining the contract, an agent of the company came round and took it up, and has since had exclusive possession of it.

The ultimate question upon which this case hinges is, whether appellant, under the circumstances, is concluded by the provisions of the contract in question. The appellant, in presenting the case to the trial court, simply showed the time and place of the shipment of the stock, and the price to be paid for the cars used for that purpose, without developing the existence of the special contract. He then offered testimony tending to show the loss and injury to the cattle were occasioned by the negligence and delay of the company in their transportation, and thereupon rested. To meet the case thus made by appellant, appellee offered testimony tending to negative the charge of negligence on the part of the company, and also put in evidence the special contract above mentioned, which contains, among others, the following-stipulation :

Tenth — In consideration of the rate aforesaid, it is further agreed that no claim for damages which may accrue to the party of the second part under this contract, shall be allowed or paid by the party of the first part, or sued for in any court by the party of the second part, unless a claim for such loss or damage shall be made in writing, verified by the affidavit of the party of the second part, or his or their agent, and delivered to the general freight agent of the party of the first part, at his office in the city of St. Louis, within five (5) days from the time said stock is removed from said cars. ”

It is conceded appellant failed to give notice to appellee’s general freight agent at the city of St. -Louis, of the loss and damage to the stock, within the time or in the manner required by the above stipulation. It is claimed, however, by appellant, first, that the stipulation in question is an unreasonable attempt on the part of the company to limit its common law liability, not warranted by public policy, and that for that reason it is inoperative andwoid; and second, that admitting it to be prima facie valid, it is nevertheless, by reason of the circumstances under which it was obtained, not binding upon the appellant.

With respect to the first branch of the proposition we have no hesitancy in holding that a stipulation like this, when voluntarily and understandingly entered into by the shipper, is binding upon him. The manifest object of such a provision is to force those claiming to be damaged by the carrier’s negligence, to promptly present their claims for adjustment while the facts and circumstances upon which they are based are fresh in the memories of parties and witnesses, and to prevent being harassed or imposed upon by dishonest claimants. We see nothing improper in requiring such claims to be verified by affidavit.

The second branch of the proposition is not so free from difficulty. A contract, ex vi termini, implies the assent of two or more minds to the same proposition. It follows, therefore, if one sign a written instrument containing mutual stipulations between himself and another, without any knowledge of its contents, there will not be in fact, in the strict sense of the term, a contract between them, though in a legal sense there may be. Where a party of mature years and sound mind, being able to read and write, without any imposition or artifice to throw him off his guard, deliberately signs a written agreement without informing himself as to the nature of its contents, he will nevertheless be bound, for in such case the law will not permit him to allege, as matter of defence, his ignorance of that which it was his duty to know; particularly where the means of .information are within his immediate reach, and he neglects to avail himself of them. Applying j this elementary principle to the case in hand, it was clearly the ¡duty of appellant to have examined the contract in question, #and fully advised himself as to its contents, before signing it; and if, by a failure to perform this duty, 'he has sustained an injury, he must suffer the consequences, unless such failure was occasioned by the fraud or artifice of appellee, — and this, we understand, appellant claims was the case.

Whether appellant was purposely misled and thrown off his guard by appellee, and thereby induced to sign the contract in question, upon the hypothesis it was a mere pass over appellee’s road, as is claimed was the case by appellant’s counsel, is a question which the trial court seems to have ignored and studiously kept from the consideration of the jury. This is clearly shown, both from the instructions of the court and its exclusion of testimony bearing upon the question. Indeed, the rulings of the trial court seem to have been highly technical, and altogether unfavorable to the appellant. Even upon cross-examination, where great latitude is generally allowed, the reins appear to have been very tightly drawn, as is shown by the following rulings: The station agent having been permitted to state, against the objection of appellant, that $33.50 was the schedule rate per car for the shipment of stock from Midland City to Chicago, at the date of this transaction, was asked, on cross-examination, if the company had ever received that amount for a car of freight from Midland City to Chicago, and, on objection, the question, strange to say, was ruled improper. The following cross-question propounded to this witness was also ruled improper: “Did you tell him (appellant) when he came for them (the cars) at $25, he would have to sign any contract releasing the company from liability?” Both the above questions, under the latitude of cross-examination, were clearly proper, and the court erred in ruling otherwise. The erroneous ruling of the court, however, so far as the last two questions are concerned, is cured by the answers of the witness, for notwithstanding they were ruled improper, the witness proceeded to and did fully answer them, so that the appellant was not at all prejudiced by the ruling.

With respect to' the signing of the contract, the station agent testified as follows: “I don’t know whether the cattle were all loaded or not when the contract was signed. I don’t remember when the train started. I went up to the pens and told him to sign the contract, and that would pass him. I can’t say positive whether I told him to come down and sign his passes. I don’t remember that I called it a contract when I asked him to sign it. When Black came down to sign it, the cars were loaded, as well as I recollect. ” Having made this statement, the witness was then asked, on cross-examination, the following question: “Did you tell Black what it was when you had him' sign it?” — which, on objection, was held by the court improper, and the plaintiff excepted. • As the witness had stated, on his examination in chief, certain declarations of his own, made at the time, and relating to the signing of the alleged contract, it was clearly the right of appellant, on cross-examination, to call out all that was said at the same time on the same subject. Under the circumstances of this case, everything that was said or done at the time by either of the parties, relating to the signing of the contract, was a part of the res gestee, and was proper to be called out on cross-examination, and it was therefore clearly error to disallow the question.

The appellant having been called as a witness, in rebuttal, to give his version of what occurred before and at the time of signing the contract in question, was asked the following-questions, namely: “What, if anything, was said about that being a special contract with you at that time?” “Was this paper (introduced in evidence) the contract you made to ship the stock by the Wabash Bailroad Company to Chicago?”— both of which questions the court held improper, and refused to allow them to be answered. Upon 'what principle the court permitted the agent of appellee to testify as to all the matters here inquired after, and yet absolutely closed the mouth of aj>pellant on the same subject, is difficult to conceive. For instance, when Lane was on the stand, counsel for appellee, referring to the written contract relied on as a defence in the ease, asked the witness this question: “Was this the contract on which the cattle were shipped?” and the court, on objection being made, held the question, as it should have done, proper; yet when appellant is asked substantially the same question, he was not, as we have just seen, permitted to answer it. We are aware of no rule of law that permits such a diversity of ruling in the same case.

It may be, the court, in so studiously and vigilantly suppressing and keeping from the jury all that was attempted to be shown by appellant as to what was said or passed between the parties either before or at the time of signing the agreement, supposed it was merely applying the general principle that parol evidence is not admissible for the purpose of changing the terms of a written instrument; but if so, the court was clearly laboring under a misapprehension. The object of the excluded evidence was not to change the terms of an agreement which was admitted to have a valid existence, but rather to show that by reason of the circumstances under which it was obtained, it was, in legal effect, no agreement at all. It is just as well settled by the authorities that parol evidence is admissible to impeach the validity of an instrument, as it is that such evidence will not be heard merely for the purpose of changing or varying its terms. (Abbott on Trial Evidence, 294; Kerr on Fraud and Mistake, 388.) It is well said by Wharton, in his work on Evidence, section 931“Before the rules excluding parol testimony to vary documents can be applied, we must determine a document legally exists. That it exists must be shown by parol, and the proof of such existence may he attacked by proof that the execution of the document was a nullity, having been coerced by duress, or elicited by fraud, ” etc. The well recognized doctrine, here so clearly and forcibly announced, was especially applicable to this case. There were, as is generally the case, two distinct and opposing theories upon which it was being tried. The plaintiff was proceeding upon the hypothesis that the verbal understanding reached between appellant and the station agent, about the first of July, when the latter informed him that he could furnish him the cars at $25 a car, was the contract, and only contract, under which the shipment was made; that the instrument signed by himself and the agent was executed on his part under the belief that it was a mere pass over appellee’s road, and that this belief Avas induced by the conduct and misrepresentation of the agent of appellee. The case, on the other hand, was tried ujcon the theory that the instrument in question is a valid and binding agreement, and as such affords the only evidence of the contract between them for the transportation and carriage of the cattle, — that all prior and cotemporaneous declarations and statements of the parties were merged in the AA'ritten agreement. Now, whether the one or the other of these theories was true, was clearly a matter of proof, and the only Avay of establishing the truth or falsity of either hypothesis was by showing just what passed betAveen the parties. This the court refused to permit, and we think it was error, for Avhich the case should be reversed.

The judgment of the Appellate Court is reversed, and the cause remanded, Avith directions to that court to reverse the judgment of the circuit court, and remand the cause for further proceedings in conformity with this opinion.

Judgment reversed.

Mr. Justice Walker,

dissenting in part:

I am unable to concur in that part of the opinion which holds that the company may contract to relieve itself from liability within less than the statutory period for a bar. It is, in my judgment, opposed to public policy to permit a railroad company to impose in its shipping contract a condition that a shipper suffering loss shall prepare, swear to and serve a notice of the loss on an agent of the company in a distant city in another State. It AÚrtually jilaces the shipper at the mercy of the company. It may fix the charges when stock is shipped Avithout such a contract, at an oppressive rate, and stock shipped under such a contract, at a fair and reasonable rate, and give the shipper his choice. If the rate charged when there is no such contract, is double or treble that when made under such a contract, then the shipper is virtually compelled to enter into such a contract. By such means these bodies have the power to compel all shippers to submit to such and almost any terms they may impose. Power to make such contracts, if sanctioned, is liable to great abuse, and, in many eases, to oppression and injustice. The legislature has, in its wisdom, and in promotion of the general welfare, prescribed the period of limitation of the various actions, and I hold that parties are not capable of contracting to shorten the period, or to impose hard and unreasonable terms, before the party suffering loss can avail of the provisions of the statute. I therefore dissent to that portion of the opinion in this case.

Mr. Justice Scott, also dissenting.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    Chicago, Rock Island and Pacific Railway Company v. Oliver N. Smith.

      Filed at Ottawa November 17, 1884.

    1. Eight of way — grant—incidents to the grant as connected with use intended. The owner of a twenty-acre lot being desirous of the construction of a railroad over the same, made a deed to the railroad company, reciting that “in consideration of the premises and sixty dollars," he granted, “for the purpose of constructing a railroad, and for all purposes connected with the construction and use of said railroad, ” the right of way for the same, one hundred feet wide, through the lot and other property, “to have, hold and enjoy the land described, with the appurtenances, unto the said” grantee “and its assigns, forever, for all uses and purposes, or in any way'connected with the construction, preservation, occupation .and enjoyment of said railroad,” with a proviso for a reversion in case the same should cease to be used for railroad purposes: Held, that as the casting of smolce, cinders, ashes, sparks of fire, and the'shaking of the soil, upon other parts of the lot, was a necessary incident of the railroad, and inseparable from the running of trains upon the railroad, the right to do these acts passed to the grantee and its successors, by necessary implication from the express grant.
    2. Where anything is granted, all the means to attain it, and all the fruits and effects of it, are granted also, by presumption of law, and will pass in-elusive, together with the thing, by the grant of the thing itself, without the words cum pertinentiis, and any like words.
    3. A mereiconveyance of part of a tract of land may not give the grantee the right to make any use of the part granted which will injuriously affect the remaining portion, but when the grant is expressed to be for a particular use, neither the grantor nor one claiming under him can object to such use, and recover damages resulting therefrom.
    4. Same — as to increased uses — whether embraced in grant. The grant of a right of way over his land by a party, to a railway company, “for all uses and purposes, or in any way connected with the construction, preservation, occupation and enjoyment of said railroad, ” is broad enough to embrace all uses for railroad purposes, however much increased, and by any other companies authorized by law. If such grantee company consolidates, according to law, with other companies, and thereby greatly increases the use of the right of way, the owner, or his grantee, of adjoining lots can not recover damages caused by such increased use.
    5. Where a person- conveys a right of way over his land, it will be conclusively presumed that all the damages to the balance of the land, past, present and future, were included in the consideration paid him for his conveyance, the same as an assessment of damages on a condemnation would be presumed to embrace.
    6. Eminent domain — requisites of the petition for condemnation — as to specifying the extent and character of the use. It is not necessary that a petition for the condemnation of a right of way over a tract of land for a railroad should state the petitioner’s purposes fully and completely, giving the number of tracks, and a purpose to allow other companies to use the same. It is sufficient for the petition to show, generally, that the land is needed for railroad purposes.
    7. Same — measure of damages — present and prospective. Where a right of way is condemned for public use over a tract of land, the owner will be entitled to compensation not only for the value of the land taken, but also for all damages to the residue of the tract, past, present and future, which the public use may thereafter reasonably produce.
    8. Recording daw — record of deed — notice to subsequent pxirehaser. The record of a deed from the owner of land granting a right of way over the same, one hundred feet wide, for any and all railroad purposes, the use for which purposes injuriously affects other portions of the land adjoining the right of way, is notice to any subsequent purchaser of adjoining lots, of the prior grantee's rights, and such purchaser will occupy no better position than his vendor or grantor.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.

      This was an action on the case, brought by Oliver N. Smith, against the Chicago, Bock Island and Paeiñc Bailway Company, to recover for damages from the operation of its railroad. The declaration avers that the plaintiff is the owner in fee of lot 10, of Tillotson’s subdivision of that part of lot 11 lying west of the Chicago and Bock Island railroad; that the premises were of the value of $5000, and used by plaintiff as a residence; that the defendant’s railroad tracks whose operation is complained of, were constructed January 1, 1879, for use as a switching point, and have been so used since; that in the operation of the same, the defendant has unlawfully, unjustly and injuriously caused and permitted to be thrown and deposited upon the plaintiff’s property, divers large quantities of smoke, cinders, soot, ashes, sparks of fire, and other noxious and injurious substances; that the soil is shaken, and that the walls of his dwelling are cracked. The plaintiff further avers, that said railroad tracks and switches have been constructed, maintained and operated in such close proximity to plaintiff’s property, that necessarily, by reason of such operation in the ordinary and usual way of operating a steam railway for the purposes for which it was constructed and maintained and operated, there has been cast upon his property the substances complained of.
    Except upon the question of damages, the facts as stated below appear by stipulation of the parties.
    The Bock Island and LaSalle railroad was incorporated by the General Assembly, February 27, 1847. Its charter authorized the company to construct, and during its continuance to maintain and continue, a railroad, with single or double track, and with such appendages as might be deemed necessary for the convenient use of the same. February 7, 1851, the act of incorporation was amended, and the Chicago and Rock Island railroad created, with the same powers and privileges. August 20, 1866, the Chicago and Rock Island railroad became, by consolidation with the Chicago, Rock

      Island and Pacific railroad of Iowa, merged into the consolidated corporation- known as the Chicago, Bock Island and Pacific Bailroad Company, which latter corporation, on June 2, 1880, became, by consolidation with various other corporations, the Chicago, Bock Island and Pacific Bailway Company,-and vested with all the corporate and other franchises, rights and privileges of each of its constituents. The Chicago and Bock Island railroad acquired title to its right of way whose use is complained of, in 1851, by deed from F. Burcky and wife, to said company, which deed was recorded November 3, 1851. Burcky, the then owner of the whole of lot 11, “being désirous for the construction of said railroad, ” and in consideration of the premises and $60, granted, “for the purpose of constructing a railroad, and for all purposes connected with the construction and use of said railroad, ” the right of way for the same, one hundred feet wide, through lot 11, and other property in Cook county, “to have, hold and enjoy the land described, with the appurtenances, unto the said grantee and its assigns, forever, for all uses and purposes, or in any way connected with the construction, preservation, occupation and enjoyment of said railroad,” with a' provision that if the grantee or its assigns should “cease permanently to use said railroad so to be constructed, and the same should be abandoned, so as not to be continued over said premises, ” the land granted should revert to the grantor. Subsequently, that portion of lot 11 lying west of the railroad was subdivided into lots. October 1, 1813, the plaintiff went into possession of one of these lots (10) under a deed from the Tillotsons, who made the subdivision. The railroad was there when he bought. He thinks that there were at that time two main tracks and one side-track. The company’s first main track was laid upon this right of way in the summer of 1852, and has existed since. Other tracks have been built upon the right of way, but at what time, except as to the two westerly side-tracks, does not appear. These two were built within five years next before the commencement of this action. All the tracks are within the limits of the right of way conveyed by said deed, and are owned, operated and controlled by the defendant.
    The defendant filed a plea of the general issue, and of the five, and twenty years statutes of limitation.
    The plaintiff upon the trial claimed for damages from the increased traffic upon the two main tracks, and from the operation of the railway upon the two westerly side-tracks.
    As to damages, he testified that cinders, ashes and smoke are deposited upon the property, and go into the house when the doors and windows are open; that there is a vibration or a jarring when a train passes; that the end of the house next the railroad track has been plastered over twice; that when the mason put on the second coat, he told him to put in plenty of hair, “so that it would not fall off again, which he did; ” that within the last three or four years they have had to dry clothes in the house.
    There was a trial by the court without a jury; a finding for $350 damages; motions for new trial and in arrest of judgment made and overruled, and exceptions taken. Judgment ivas entered, which was affirmed by the Appellate Court for the First District, and the defendant took this appeal to this court, the required 'certificate having been made.
    Mr. Thos. F. Withrow, and Mr. J. C. Hutchins, for the appellant:
    Burcky’s deed conveys the right of way, with the appurtenances, forever, for all purposes connected with the construction, preservation, occupation and enjoyment of the same, for railway purposes, and therefore no right of action vests in any subsequent purchaser of any portion of lot 11, for any result flowing from the prudent operation of the railway. The grant is to be taken most strongly against the grantor. Middleton v. Pritchard, 3 Scam. 510; Duryea v. Mayor, 62 N. Y. 592.

      Any prohibition upon the use of the thing granted is void. Craig v. Wells, 11 N. Y. 315.
    The grant of a thing carries with it, impliedly, whatever is necessary for enjoying the same. Touchstone, 89 ; 2 Blackstone’s Commentaries, 36; Aiken v. Boardman, 2 Metc. 457; Johnson v. Jordan, id. 234; New Ipswich Factory v. Batchelder, 3 N. H. 190; Hadden v. Shoutz, 15 Ill. 581; Fitch v. Johnson, 104 id. 121.
    The deed has the same effect as a condemnation, in which all past, present and future damages are assessed. Mills on Eminent Domain, see. 216; 1 Sutherland on Damages, 191; 3 id. 433; Railroad Co. v. Henry, 79 Ill. 290; Railroad Co. v. McKinley, 64 id. 338; Railroad Co. v. Railroad Co. 67 id. 143, and 96 id. 274.
    The damages assessed will be held to include all such damage to the residue of the land as results from the reasonable use of the improvement, past, present and future. Railroad Co. v. Loeb, 8 Bradw. 627; Railroad Co. v. Carpenter, 14 Ill. 191; Jones v. Railroad Co. 68 id. 380; Railroad Co. v. Henry, 79 id. 290; Mix v. Railway Co. 67 id. 319; Railroad Co. v. Birbeck, 70 id. 208; Railroad Co. v. McKinley, 64 id. 338.
    As to the right to apply the road to additional uses connected with the business, etc., of the road, see Railroad Co. v. Dryden, 11 Kan. 186; Telegraph Co. v. Rich, 19 id. 517.
    The conveyance operates as a complete release of all damages. Railroad Co. v. Cox, 91 Ill. 500; Conwell v. Railroad Co. 81 id. 232.
    The plaintiff in this case, inasmuch as the railroad was in operation when he purchased, can not recover, because the damages therefrom are presumed to have been considered by him. Railroad Co. v. Combs, 10 Bush, 393; Fowle v. Railroad Co. 112 Mass. 334; Town of Troy v. Railroad Co. 3 Foster, 33; Railroad Co. v. Maher, 91 Ill. 312; Railroad Co. v. Loeb, 8 Bradw. 627; City of Morrison v. Hinkson, 87 Ill. 587; Railway Co. v. McLaughlin, 77 id. 279.

      Mr. H. O. McDaid, for the appellee:
    If this strip of land had been condemned, and the purposes were stated fully and completely in the petition, so as to apprise the owner of the number of tracks, and that petitioner wished to permit other railroads to operate its tracks, it would have acquired the right to operate its road carefully and prudently, forever, without liability for further damages; but unless such uses were clearly specified, any excess or difference would render it liable for the increased burden. Railroad Co. v. Kidder, 21 Ill. 131; Railroad Co. v. Mitchell, 47 id. 165; Railroad Co. v. Birkett, 62 id. 165.
    Burcky’s deed did not convey an interest in other lands. Railroad Co. v. Cox, 91 Ill. 505.
    The effect of a grant of a right of way upon which to construct a railroad, does not give a right to use the property so as to injure another, and applies to a grantor, and in favor of a remote grantee, as well as to a stranger. The grantor by his deed never contemplated the permitting of the use of this right of way to other corporations, so as to throw increased burdens on the remainder of the tract. Railroad Co. v. Cox, 91 Ill. 505; Tillotson v. Smith, 32 N. H. 90; Washburn on Easements, (3d ed.) 343.
    Anything that passes as an appurtenance must be in esse, and touch or depend upon the principal estate at the execution and delivery of the grant thereof. Washburn on Easements, 35, 51; Swazey v. Brooks, 34 Vt. 451; Dunkle v. Railroad Co. 4 Foster, 489; Tabor v. Bradley, 18 N. Y. 109.
   Mr. Justice Sheldon

delivered the opinion of the Court:

For the determination of this case we find that we need but to consider the one question of the effect of the deed of Burcky, made by him to the railroad company, although other questions have been urged before us.

The right of way upon which the railroad tracks in question are laid, was granted through lot 11, containing twenty acres,' by Burcky, the then owner of the whole of the lot, for the purpose of constructing a railroad upon it, and to be held and enjoyed forever, for' all the uses and purposes in any way connected with the construction, preservation, occupation and enjoyment of the railroad. So precisely was the grant for this very purpose, and none other, that there was express provision that cesser of use for such purpose should make the land granted, revert to the grantor. The casting of smoke, cinders, ashes, sparks of fire, and the shaking of the soil, (the thing complained of) upon lot 11, outside of the one hundred feet right of way, was a necessary incident of the operation of the railroad. Being such, and inseparable from the running of trains :upon the railroad, it was consented to, permitted and authorized by Burcky, for a compensation paid to him, by the deed which he made containing the grant. The deed did not, in- express terms, give such consent, permission and authority, but it did so by necessary imjilication, in that the acts complained of were the necessary incident and accompaniment of that which was granted by the deed, — they resulted necessarily in the carrying into effect the main grant. It is abundantly settled that what the law expressly authorizes to be done can not be complained of as a public nuisance, and we do not perceive how any more can a private nuisance .be predicated of that which the individual affected by it has, for value paid to him, consented to and authorized to be done.

As to the right to cast these substances complained of, upon plaintiff’s land, being given by implication by the Burcky deed, we find it laid down by Blackstone, 2 Com. 36 : “For when the law doth give anything to one, it giveth, impliedly, whatsoever is necessary for enjoying the same.” And in Touchstone, 89: “When anything is granted, all the means to attain it, and all the fruits and effects of it, are granted also, and shall pass inclusive, together with the thing, by the grant of the thing itself, without the words cum pertinentiis, or any such like words.” In Aiken v. Boardman, 2 Metc. 463, we find the rule thus expressed: “A grant being made for a valuable consideration, it shall be presumed that the grantor intended to convey, and the grantee expected to receive, the full benefit of it, and therefore that the grantor not only conveyed the thing specifically described, but all other things, so far as it was in his power to pass them, which were necessary to the enjoyment of the thing granted.” And see Matter of City of Buffalo, 68 N. Y. 172; Johnson v. Jordan, 2 Metc. 240.

We regard the deed from Burcky, for the public use of this railroad, as having the same effect upon the rights of the parties, with respect to lot 11, that a condemnation of the same land for such public use would have had, — the one being a voluntary conveyance made for a public use, and the other amounting to a statutory conveyance for such use. Had this right of way been acquired by condemnation, Burcky would have had made to him compensation for the value of the strip of land one hundred feet wide taken, and also an assessment of all the damages to the residue of lot 11 to result from the operation of the railroad. The rule is, that the appraisement of damages in a case of condemnation embraces all past, present and future damages which the improvement may thereafter reasonably produce. Mills on Eminent Domain, sec. 216, and cases cited; Chicago and Alton R. R. Co. v. Springfield and Northwestern R. R. Co. 67 Ill. 142; Keithsburg and Eastern R. R. Co. v. Henry, 79 id. 290.

It follows, that had the railroad company condemned this right of way as against Burcky, who was the owner of the whole tract, no recovery could have been had for the damages here sued for. They would have been included in the assessment of" damages made on the condemnation, and whether in fact included or not, they would be conclusively presumed to have been included. The same result, we conceive, follows from Burcky’s voluntary conveyance of the right of way. It is to be presumed that the contingent damages to the residue of the lot which might arise from the prudent operation of the railroad, were taken into account in fixing the, price. (See Norris v. Vermont Central R. R. Co. 28 Vt. 99, and Conwell v. Railroad Co. 81 Ill. 233.) And herein would seem to be found sufficient answer to the position of appellee’s counsel that the whole effect of Burcky’s deed must be confined to the one hundred feet wide strip of land which it conveys by metes and bounds, and can have no extra-territorial operation, so as to give sanction to injuriously affecting any land of the grantor outside of the one hundred feet strip. In a case of condemnation there certainly would have followed the right to thus injuriously affect the residue of a tract of land of which a portion had been talien, without liability for damage, and the result from Burcky’s deed we hold to be the same.

The case is put by appellee’s counsel that a simple conveyance of land in fee simple, without any reference to its use, would not authorize the injuriously affecting of any other land, and it then is asked if it can be claimed that when a less estate than a fee is granted, a greater effect results than if a fee is granted. The fallacy appears obvious. A mere conveyance of a tract of land might not give to the grantee the right to make any use of it which would injuriously affect any other land, for the law would attach the same condition as in general exists with respect to the holding of all land,— that the owner shall so use it as not to produce injury to another; but in the case before us there is the grant for this very use itself which will injuriously affect other land, and for no other use. The deed permits and authorizes the injurious use for a consideration paid, thus making the difference between the cases supposed, in their application to this case, of the denial of an injurious use of land and the permitting of the injurious use.

With respect to the effect of a condemnation, which has been remarked upon, it is suggested by appellee’s counsel that in order to such effect the petition for condemnation should have stated its purposes fully and completely; that it should have described the number of the tracks, and that the company wished to permit other railroad companies to operate its tracks, etc. We do not understand that to have been necessary, or that more was required in this regard than that the petition should show that the land was needed for railroad purposes. But without respect to what may be necessary in a petition for condemnation, the language of this deed is broad enough to cover any manner of use for railroad purposes, and without limitation as to the company.

But it is said there are here increased uses of the right of way, in respect of which plaintiff may recover; that the deed of Burcky was made to the Chicago and Bock Island company, and that the present contention arises upon the result of the operation of the Chicago, Bock Island and Pacific Bailway Company, a corporation formed by uniting several other railroad companies, and that it could not have been within the intention of the grant to permit divers other railroad companies, under the license of the Chicago and Bock Island company, to enter upon this right of way and assert rights of easement in this land. Permission to the use by other companies, and consolidations with other companies, are both authorized by statute. In dealing with the corporation, Burcky must be held to have had in contemplation the possible exercise of such corporate rights, and to have contracted with reference thereto. As before observed, the language of the grant was most broad and unlimited. It was to hold and enjoy the right of way “forever, for all uses and purposes, or in any way connected with the construction, preservation, occupation and enjoyment of said railroad.” We think all uses of the railroad for railroad purposes, however much increased, and by whomever, which are authorized by law, must be held to come within. the terms and intention of the grant. Burcky being the owner of the whole of lot 11 at the time of the making of his deed, and his deed being duly recorded, it was notice of the grantee’s rights to any subsequent purchaser of a portion of the lot; and such subsequent purchaser, or one acquiring a subsequent interest, would not, it is hardly necessary to remark, stand in any better situation with regard thereto than would Burcky himself had he continued to be the owner of the whole and were the plaintiff in the suit.

Several propositions of law were asked by both parties. It follows, from what has been said, that so far as they related to the question which has been considered, there was error in holding those asked by the plaintiff and in refusing those asked by the defendant.

The judgment of the Appellate Court will be reversed, and the cause remanded.

Judgment■ reversed.


author: Mr. Justice Walker

text:
    Joseph T. Bell v. James H. Johnson.

      Filed at Ottawa November 17, 1884.

    ■*" ^’BA1J:D — w^° may Question a fraudulent transaction. Only the person against whom a fraud is committed, or a person who is injured by it, can maintain a bill to have the fraudulent transaction impeached.
    2. Limitation — as to bill of review, or a bill to impeach a former decree for fraud. A bill of review is barred in the same time as a writ of error, which is five years, unless there are disabilities. The rule applies to a cross-bill which seeks to have a former decree impeached for fraud.
    3. Same — when availing on demurrer. In equity the Statute of Limitations may be availed of, on demurrer to a bill, where the bar appears on the face of the bill, unless an equitable excuse is alleged in the bill to avoid the bar.
    4. Tax title — prerequisites—judgment and precept. In order to sustain a tax deed as a muniment of title, a valid judgment and attested record or precept must be shown. This is indispensable to the validity of the deed.

      5. Same — requisites to a valid precept. The ¡Revenue law requires the county clerk, after the judgment for taxes is entered in the judgment book, to make another record of the lands, which is a transcript of the judgment record, embracing the convening order, notice, and list of the lands against which judgment is rendered, and certify that it is correct; and this attested record is the process under and by the authority of which the collector and clerk are empowered to make the sale. Without this attested copy of the judgment record there is no authority to sell.
    6. Cloud upon title — tax deed — terms on setting it aside. Where a tax deed is invalid for want of a proper precept or attested record, a court of equity has jurisdiction to declare it void, as a cloud upon the owner’s title, and require the latter to refund the money paid at the tax sale, and all taxes paid by the purchaser or his assignee, with legal interest.
    Appeal from the Circuit Court of Carroll county; the Hon. John V. Eustace, Judge, presiding.
    Messrs. Smith & Lee,, and Mr. M. T. Johnson, for the appellant:
    A party will not be permitted to question a transaction for fraud which in no way affects his interest.
    Equity will consider the money advanced to purchase the outstanding title, as an advance for the benefit of the ward, and not for the conservator’s own benefit, giving him usually a lien on the property for his reimbursement, being analogous to the case of trustee and cestui que trust. Thorp v. McCullum, 1 Gilm. 614; Pensoneau v. Blakely, 14 Ill. 15; Robbins v. Butler, 24 id. 887; King v. Cushman, 41 id. 31; Taylor v. Taylor, 4 Gilm. 303.
    Under the law of 1853 the sheriff was the officer required to execute the tax deed, — under the consolidated act'of 1872 the county clerk was made the officer to execute the tax deed. (2 Gross’ Stat. p. 367, sec. 684.) Section 688, on the same page, made the previous six sections of that act applicable to all sales of real estate for taxes made before that act took effect; and section 689, on the same page, made tax deeds prima facie evidence of seven distinct things, — of every prerequisite, in fact, except the judgment and precept, the notice required to be given by the purchaser, or assignee of the purchaser, to the person in possession or occupancy of the land purchased, and to the person in whose name the land was taxed, and the affidavit required to be made of compliance with the statute as to notices.
    Messrs. Hunter & Hoffman, for the appellee:
    A tax deed is void unless founded on a valid judgment and precept. Eagan v. Connelly, 107 Ill. 458 ; Gage v. Lightburn, 93 id. 248; Bailey v. Doolittle, 24 id. 577; Dukes v. Rowley, id. 210; Fitch v. Pinckard, 4 Scam. 69.
    A tax title is a purely technical, as contradistinguished from a meritorious, title, and depends for its validity upon a strict compliance with the statute. Skinner v. Fulton, 39 Ill. 484; Altes v. Hinkler, 36 id. 265; Charles v. Waugh, 35 id. 315; Clark v. Lewis, id. 417.
    Appellant shows no excuse for his delay in attempting to get possession, which alone ought to defeat the tax title. Oakley v. Hurlbut, 100 Ill. 204.
    Where a party has once conveyed all the interest he has in land, a subsequent quitclaim deed from him will pass no title. Garrick v. Chamberlain, 97 Ill. 620.
    An ordinary quitclaim deed conveys whatever interest the grantor has at the time of making the same; and if he has no interest at the time, then it can not operate, by way of estoppel, to prevent him, or those claiming under him; from asserting a subsequently acquired title. Frink v. Darst, 14 Ill. 304.
    The complainant in the cross-bill is not in possession, hence it will not lie to clear or test title. Oakley v. Hurlbut, 100 Ill. 204.
   Mr. Justice Walker

delivered the opinion of the Court:

This was a bill filed in the Carroll circuit court, to have a tax deed set aside and declared void, as a cloud on complainant’s title to a forty-acre tract of land in that county. The bill alleges that the deed is void for the want of a valid judgment and precept to support the sale for taxes. Defendant answered the bill, and exceptions were filed to it, and sustained as to all but the tax deed. On leave of the court, defendant filed a cross-bill, alleging that the land was regularly sold by the collector on the 21st of May, 1871, for the taxes for the year 1870; that Francis Bell, the father of defendant, became the purchaser; that he gave the requisite notice to entitle him to a deed; that he sold and assigned the certificate of purchase to defendant; that the proper affidavit of notice was made, filed and delivered to the county clerk, in pursuance to the requirements of the law; that the county clerk made and delivered to him a tax deed; that there was rendered a valid judgment against the land, and a like precept was duly issued, under which the land was sold, and a paramount title thereby vested in him. The cross-bill further alleges, that' about the 28th day of August, 1873, Robert Groom, who was the patentee, and living on the land, executed and delivered to an attorney at law, by the name of Orrin Woodruff, a mortgage on the forty acres in controversy, to secure a note given by him to Woodruff for $500, as an attorney’s fee, for which Woodruff agreed to file a bill and conduct the suit for the purpose of setting aside and annulling defendant’s tax deed; that Woodruff did file such a bill, which Groom voluntarily dismissed after being on the docket for several terms; that Groom was weak-minded, and was overreached by Woodruff in obtaining the note and mortgage; that Woodruff did not render the services under the contract, as agreed, and fearing to attempt to enforce such an extortionate fee, he made a colorable assignment of the note and mortgage to one Albert J. Jackson, in whose name foreclosure proceedings were commenced, and a decree of foreclosure was obtained after a partial defence, and on Groom’s answer, which it is alleged was obtained by fraud, covin and misrepresentation by Woodruff; Jackson, and others; that on the 22d day of March, 1880, Groom and wife commenced a suit in chancery to impeach and set aside the decree of foreclosure, and the deeds made thereunder, charging that the deeds had been fraudulently obtained; that Woodruff was at all times the owner in fact of the mortgage, and was the real party in interest in all these proceedings; that all subsequent purchasers had notice of Woodruff’s fraudulent acts, instituted for the purpose of defrauding Groom out of the land, and they had joined and conspired with him for that purpose ; that during the pendency of that suit Johnson had been appointed conservator of Groom, and whilst he was conservator he had purchased the title of Early for $700, and had the conveyance made to himself, in his own name, and claims to be the absolute owner of the land, and he claims defendant’s tax deed should be set aside as a cloud on his title; that having procured a conveyance to himself, he ■ had dismissed the suit brought by Groom. It is also' alleged, that on the 31st day of October, 1879, and before Groom became insane, and before complainant was appointed conservator for Groom, the latter conveyed the land to defendant by a quitclaim deed, in cancellation of a considerable debt Groom owed defendant’s father. To this cross-bill there was filed a demurrer, which was sustained by the court. A trial was had, and the relief asked was granted, and complainant was decreed to pay defendant $33.50 for the money advanced in purchasing the tax title, and for interest thereon. From that decree defendant appeals, and assigns various errors for a reversal of the decree of the circuit court.

Was it error to sustain a demurrer to appellant’s cross-bill ? All the matter it contained and relied on for relief, related to frauds charged on Woodruff, appellee, and others, to the injury of Groom. Whilst, if the allegations are true, they no doubt afford ample ground for setting aside the note and mortgage given by Groom to Woodruff, and his assignment to Jackson, and-his decree of foreclosure, as also. Johnson’s purchase in his own name while acting as conservator, on an application by any person fairly representing Groom, it does not follow that appellant can assail and have these proceedings set aside for his own benefit. If there was a fraud perpetrated, it was against Groom, and not against appellant. r It is a familiar rule that only the person against whom the f fraud is committed, or a person who is injured by it, can] maintain a bill to have the fraudulent transaction impeached. If, as claimed by appellant, he acquired all of Groom’s title to this land by his tax deed, then Groom had no title out of which he could be defrauded by Woodruff, Johnson, or any one else. If, on the contrary, appellant’s tax deed was void, then he had no title out of which he could be defrauded by Woodruff or Johnson. If he had no title, it does not concern him whether Woodruff or Johnson has defrauded Groom, or not. If he holds the title under his tax deed, then they acquired no title to the land by their proceedings, whether fraudulent or in good faith, because Groom had no title he could convey or of which he could be divested by legal proceedings, — hence there was no error in sustaining the demurrer to the cross-bill.

There is another view that may be taken of the question. The cross-bill was in the nature of a bill of review, and the bill, on its face, shows that the decree had been rendered more than five years when it was filed. The law is well settled that a bill of review is barred in the same time as a writ of error, and the statute bars such a writ in five years, unless there are disabilities. None exist in this case. The cross-bill in this case was therefore barred, and a demurrer having been filed to it, and the bar appearing from the bill itself, the objection was reached by the demurrer. The Statute of Limitations may be urged on demurrer where a bar appears on the face of the bill, unless an equitable excuse is alleged in the bill to avoid the bar. (Board of Supervisors v. Winnebago Swamp Drain. Co. 52 Ill. 299.) The doctrine is so stated by Story in his work on Equity Pleading, sec. 484, and the text is fully sustained by authority. The demurrer was therefore properly sustained on that ground.

We now come to consider the' question whether there was a valid judgment against the land for the taxes, and whether the sale was made under a valid precept. We are unable to perceive any substantial or even formal objection to the judgment. It seems to have been rendered in conformity to the statute. No want of conformity to the requirements of the statute has been suggested, nor do we perceive anything that militates against its validity. It will be necessary to refer to some provisions of the statute to determine whether the sale is shown to have been made under the required precept.

The I94th section of the chapter entitled “Bevenue, ” provides : “The county clerk shall, before the day of sale, make a record of the lands and lots against Ayhich judgment is rendered, which shall set forth the name of the OAvner, if known, * * * in the same descriptive order as said property may be set forth in the judgment book, and shall attach thereto a copy of the order of the court, and his certificate that such record is correct. Said record so attested shall be the process on which all real property, or any interest therein, shall be sold for taxes or special assessments, as well as the record of the sale of such property.” The 195th section provides: “On the day advertised for the sale, the collector shall report to the county clerk a list of all lands and lots upon which taxes and special assessments have been paid after the rendition of judgment; and the clerk shall note the fact of such payment opposite such tracts or lots, upon the record aforesaid. ”

Thus it is seen that there is required a judgment book, which consists of a corrected list made by the collector. This judgment book contains the convening order of the court, the collector’s notice of application for judgment, etc., a list of the lands against which judgment is .rendered, and to it is added the judgment order, signed by the judge. The clerk is then required, before the day of sale, to make another record of the lands, which is a transcript of the judgment record, embracing the convening order, notice, list of lands against which the judgment is rendered, and certify that it is correct, — and this attested record is the process under and by the authority of which the collector and clerk are empowered to make the sale. Thus it is seen that there is a record and an attested record, and the latter is the process under which the collector acts in making the sale. The statute having prescribed a certified copy of the judgment record, it, and it alone, is the authority to sell. The collector has no more power to sell under the judgment record, than has a sheriff to sell property under an ordinary personal judgment. In such case it is the execution that confers the power, whilst in a sale of land for taxes it is the attested record that confers the power; and it is a settled rule that to sustain a tax deed, a valid judgment and attested record must be shown. This is indispensable to sustain the validity of the deed. So far as we can discover from this record, no attested record was read in evidence. The judge trying the case certifies that appellant read from the judgment record the convening order of the county court, the petition of the collector for judgment, and so much as embraced the name of Bobert Groom, the description of the land, and the columns of figures annexed thereto, with their appropriate headings, and the name of F. Bell as the purchaser; but the record is barren of all evidence that an attested record was ever made, and much less that any such attested record was read in evidence. Having failed to produce an attested record, the tax deed can not be sustained as valid, and the title relied on under it must fail. The tax deed being invalid, the court below had jurisdiction to cancel' and declare it void, as a cloud on appellee’s title, and requiring appellee to refund the money paid to purchase at the tax sale, and all taxes paid" by the purchaser or his assignee, with legal interest.

Something is said about the sum decreed to appellant to reimburse him for money paid by him or his assignor to purchase at the tax sale, and for taxes on the land, being too small. There is no evidence that any taxes were paid by appellant, or his assignee of the certificate of sale for taxes. The amount decreed seems to be large enough to cover the money paid at the tax sale, and all interest thereon that has accrued since it was advanced.

Perceiving no error in the record, the decree of the circuit court is affirmed.

Decree affirmed.


author: Mr. Justice Craig

text:
    George Daly v. Bridget Wilkie.

      Filed at Ottawa November 17, 1884.

    1. Will — devise construed, as passing fee subject to a charge. A devise as follows: “I will and bequeath unto my son, G. D., all the following described real estate, to-wit: lot No. 5,” etc., “to have and to hold the same to him and his heirs forever, subject, however, to the terms and conditions herein limited, that is to say, that he shall, within the term of seven years after my death, pay to my daughter, B. D., the sum of five hundred-, for and account of the above devise and bequest, ”■ — was held to pass the title to the lot absolutely to the son, but that the subsequent clause created a charge upon the same for the payment of a certain sum of money to his sister, B. D., there being no dispute but that $500 was the sum intended.
    2. Same — devise and bequest construed, as creating a charge or gift— indemnity before paying legacy. A testator devised a lot to his son, George, subject to a charge of $500, which he was to pay to his sister, Bridget, within seven years, and also made bequests of property or money, and then provided: “I further direct that my said children, Mary Ann, Rosey, George and Bridget, shall, after my death, pay to my wife, Mary Daly, or upon her account, $15 per month during her natural life, said last mentioned amount to be a Ren and incumbrance upon the legacies and bequests hereinbefore given to my said children, and in lieu of dower to my said wife:” Held, that the $15 per month required to be paid by the four children was made a charge and lien upon each and every legacy and bequest to them, including the $500 to Bridget, and that she could not compel George to pay it to her without indemnifjdng him against her share of the $15 per month, and that the court, before requiring the payment to her, should have demanded a bond of solvent parties, to indemnify George.
    3. Same — sale of land in equity, which is held subject to a charge. Where a person takes real estate under a will, charged with the payment of a certain amount of money, if he fails to pay the same within the time named in the will, a court of equity may order the land sold for the payment of the money; but in doing so the court should protect such person against any liability resting upon him by the default of the party seeking to enforce such charge.
    4. Indemnity — required by court — evidence as to solvency of maher. Where a party has a right to demand indemnity of a party against loss or injury before paying him money or surrendering his security, and the court so decrees, and a bond of indemnity is presented which is objected to on the ground of the insolvency of the makers, it is error in the court to refuse to admit evidence to show such insolvency.
    Writ of Error to the Appellate Court for the First District ; — heard in that court on writ of error to the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.
    Mr. Marvin Blanchard, for the plaintiff in error:
    Lot 5 was devised to George Daly, by his father, subject to two conditions: First, the payment of his part of the annuity to his mother; and second, the payment of $500 to his sister. These, in law, are subsequent conditions. 4 Kent’s Com. 126, 140; Shackelford v. Hall, 19 Ill. 212; Jennings v. Jennings, 27 id. 518.
    Where a devise is made of an estate, and also a bequest of so much to another pefson, payable “thereout,” or “therefrom, ” or “from the estate, ” it is to be regarded a charge. 4 Kent’s Com. 643; Gardner v. Gardner, 3 Mo. 178; Taft v. Morse, 4 Metc. 523.
    The law favors the construction of a will that shall vest the title. 4 Kent’s Com. 129; Leiter v. Sheppard, 85 Ill. 246; 21 Pick. 311.

      So, if a testator annex a condition to the creation of an estate, the performance of which afterwards becomes impossible, or has been dispensed with, the devisee will take the estate discharged of the condition. Jones v. Bamblet, 1 Scam. 276.
    Conditions subsequent are'not favored in law, and are construed strictly. 4 Kent’s Com. 130.
    A violation of the condition will not work a forfeiture of the estate against the devisee', if the devisee was also heir at law, unless it plainly appeared that the devisee-had been expressly notified of the condition upon which the devise depended. Shackelford v. Hall, 19 Ill. 212, and cases cited.
    Messrs. M. A. Rokke & Son, for the defendant in error:
    A court of chancery has jurisdiction to enforce the collection of legacies charged on real estate. Story’s Eq. Jur. chap. 10, secs. 593, 595, 602, 603, 605; 1 Spence’s Eq. Jur. 581; Maher v. O’Hara, 4 Gilm. 424.
    Chancery has jurisdiction to supply the word “dollars,” after the words “five hundred.” 1 Redfield on Wills, chap. 9, secs. 7, 12, 15, 17; 1 Spence’s Eq. Jur. 541; 2 Story’s Eq. Jur. sec. 1074; Broom’s Legal Maxims, 534.
    Parol evidence may be received to supply such omissions, and to identify the person or thing intended. Kurtz v. Hibner, 55 Ill. 514.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by Bridget Wilkey, (formerly Bridget Daly,) to enforce the payment of a certain legacy devised to her by her father, Bryan Daly, by his will bearing date January 24, 1873. The clause of the will relied upon is as follows:

“I will and bequeath unto my son, George Daly, all the following described real estate, to-wit: Lot number five (5), in block sixteen (16), in the canal trustees’ subdivision of the south-east quarter of section 17, town 39, N., R. 14 E. of the third P. M., to have and to hold the same to him and to his heirs forever, subject, however, to the terms and conditions herein limited, that is to say, that he shall, within the term of seven years after my death, pay to my daughter, Bridget Daly, the sum of five hundred-, for and on account of the above devise and bequest to him. ”

In 1878, after the death of the testator, George Daly went into the possession of the property, claiming it under the will, and from that time to the present he has remained in the possession of the property, received the rents and profits, and made valuable improvements thereon. Bryan Daly died in 1873, leaving a widow, who then was and still is insane. He also left four children, George, Bridget, Mary Ann and Rosa Daly, to all of whom he devised certain property. The 'will also contained the following clause:

“I further direct that my said children, Mary Ann, Rosey, George and Bridget, shall, after my death, pay to my wife, Mary Daly, or upon her account, the sum of fifteen dollars ($15) per month during her natural life, said last mentioned amount to be a lien and incumbrance upon the legacies and bequests hereinbefore given to my said children, and in lieu of dower to my said wife. ”

• It appears from the evidence, that Mary Daly is in the asylum, a county charge. No part of the money last above named has ever been paid. It also appears from the evidence, that George Daly, after the expiration of the seven years named in the will, has at all times been ready and willing to pay over to Bridget the $500, providing she would indemnify him against the liability growing out of the money she is required to pay for the support of her mother, which, by the terms of the will, is made a lien and incumbrance on the legacies and bequests named in the will, ■ including the land devised to George. When she demanded the money, before the filing of the bill, he then notified her he was ready to pay providing he was indemnified. On the hearing in the circuit court, George Daly was required to pay the $500, and interest thereon from December 4, 1880, upon conrplainant filing a bond with the clerk of the circuit court, with her husband, John Wilkie, as surety, in the penal sum of $600, although the defendant offered to prove that the complainant and her husband had no visible property, — that they were worthless, and that nothing could be collected on the bond.

It will not be necessary in this case to enter upon the discussion of the question whether the devise herein involved is to be regarded a condition precedent or a condition subsequent. If the title to the lot did not pass to George by the terms of the will, he could not be called upon to pay the complainant the money she seeks to recover by the bill. In other words, complainant’s case rests solely upon the ground that lot 5 was devised to George, that he accepted the provision made for him in the will and went into the possession of the property, and that the clause of the will devising the property to him, required, as a consideration for the bequest, that he should pay the complainant $500. If the title to the lot did not pass to George Daly by the will, and the property remains as intestate property, he could not, upon any theory, be called upon to pay the complainant, as by the terms of the will itself he was to pay $500 “for and on account of the above devise and bequest to him.” We think it plain, from the language of the will, that the title to lot 5 passed absolutely to George Daly. The language, “I will and bequeath unto my son lot 5, * * * to have and to hold the same to him and his heirs forever,” is not of doubtful meaning. The title passed; but the language which followed, “that he shall, within seven years, pay Bridget Daly $500 on account of the devise, ” created a charge upon the land for the payment of a certain amount of money. In other words, under the terms of the will George Daly took the property charged with the payment of a certain amount of money, and if he neglected or failed to pay the money within the time indicated by the will, a court of equity might order the land sold for the payment of the money.

In so far as the court decreed that the amount was a charge on the land devised to George Daly, and ordered the land sold in payment of that amount, we fully approve the decree; but the court granted the relief without requiring complainant to indemnify the defendant as against the liability created by that provision of the will requiring the four children to contribute $15 per month for the support of the widow, and directing that the amount should be a lien and incumbrance upon the legacies and bequests. True, the court required the complainant and her husband to execute and file a bond with the clerk of the court, but unless they were responsible their bond could be no benefit to defendant. The defendant offered to prove that the parties were insolvent, but the evidence was rejected and the bond accepted. We think this was error. By the express terms of the will the $15 per month required to be paid by the four children for the support of the widow, was made a lien and incumbrance upon all the legacies and bequests, including the $500 willed to complainant, and she should not be allowed to take the money willed to her, and leave the legacies willed to the other three children to be used in payment of the amount provided for the support of the widow. Justice, as well as a fair construction of the terms of the will, require that the legacies and bequests to the four children should bear an equal share of the burden placed upon them by the testator. But if the complainant was allowed to draw the $500 willed to her, and give no indemnity, the other three children would be bound for the whole amount, while complainant would be permitted to escape the payment of any part of the amount required for the support of the widow. A bond without security would afford no protection. We can perceive no object in requiring a bond from an insolvent person, without security. Before the defendant should be required to pay, the complainant should be required to procure a release from the widow, or give a bond, with good security, indemnifying defendant from loss.

The judgment of the Appellate Court will be reversed and .the cause remanded.

Judgment reversed.