text:
    Chicago and Alton Railroad Company v. William A. Pennell.

      Filed at Springfield March 26, 1884.

    1. Negligence—injury from fire communicated by locomotive engine— burden of proof as to the cause. The statute which declares that in actions for damages for injury to property “occasioned by fire communicated by any locomotive engine while passing along any railroad,” shall be prima facie evidence “to charge with negligence” the owner or operator of the road at the time, was intended to charge upon the company using the locomotive all injuries which are shown to have resulted from fire from a passing train, unless the company defendant can rebut such conclusion by proof showing that the loss was not occasioned by its negligence.
    2. Same — remote and proximate cause. Where a railway company, through negligence by the escape of fire from its locomotive engine, sets fire to a depot, from which a hotel in the vicinity is destroyed, to make the company liable to the owner of the hotel it is not necessary that the burning of the hotel should be so certain to result from the burning of the depot that a reasonable person could have foreseen that the hotel would burn, or that it probably would. It is enough if it be a consequence so natural and direct that a reasonable person might, and naturally would, see that it was liable to result from the burning of the depot.
    3. Evidence—proving prior statements of witness—as affecting his credibility. If a witness testifies to a given thing as a fact having a bearing on the issue, and it can be shown that he has uttered words or done acts which he would not have uttered or done if his sworn statement were true, .he may be interrogated thereto, and if he denies such matter, the same may be proved, not as a fact bearing upon the issue, but as a fact bearing upon the credibility of the witness.
    4. In an action against a railway company for the negligent escape of fire, whereby a depot building was set on fire, causing also the burning of the plaintiff’s hotel in the vicinity, a witness for the defendant testified to certain matters which, if true, tended to show that the engine did not set fire to the depot. On cross-examination he was asked if he did not, on a certain trip on a railroad, in a certain year, say to a person named that he had heard that the plaintiff was going to bring suit, and if he did he could recover, because he knew that the engine did set fire to the depot and the depot set fire to the hotel, which he denied saying. The person named was called, and testified that the witness did say so in substance, though he could not give the exact words. This was objected to as not the proof of a fact pertinent to the issue: Held, that the court did not err in admitting the impeaching evidence.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of McLean county; the Hon. Owen T. Reeves, Judge, presiding.
    This is an appeal from the judgment of the Appellate Court, affirming the judgment of the circuit court of McLean county, in an action on the case, brought by Pennell, against the railroad company, in May, 1875, seeking to recover the value of a hotel and its furniture, which was destroyed by fire on February 14, 1872, upon allegations that such loss was caused by the fault of the railroad company. The action was begun in 1875, and was first tried in 1877, and judgment went for plaintiff. Afterwards the ease was brought before this court. It is reported in 94 Ill. 448. To that report reference is made for the early history of the action. Judgment before that entered for plaintiff was then reversed by this court, upon the ground, chiefly, that it was thought by a majority of this court, and so declared, that “there is such a clear preponderance of proof tending to establish the fact that the fire originated in the hotel," the judgment ought to be reversed. The cause was remanded, that the facts should be submitted to another jury, under proper instructions. After coming back to the circuit court, the issues were again tried by a jury, under the direction of the court, and another verdict found for plaintiff, and judgment was entered upon the verdict. This judgment was affirmed by the Appellate Court, and the railroad company appeals to this court.
    On the trial in the circuit court, the court gave, at the request of plaintiff, the following instructions:
    “1. That if you believe, from the evidence, that fire was communicated from a locomotive engine used by the defendant upon its railway, to the depot at Norma,!, on the night in controversy, and if you further believe, from the evidence, that by reason of such fire, so communicated, the said depot burned up, and that the depot fire directly caused a hotel, then owned by the plaintiff, to take fire, and thereby to burn up, then the fact that such fire was so communicated should be taken by the jury as full prima facie evidence to charge the corporation using the road and the engine, with negligence, unless it further appears, from the evidence, that said engine was in good order, and was carefully managed, at the time of the alleged communication of fire, and provided the plaintiff was not guilty of negligence in relation to said fire, and used reasonable efforts to put it out, and save his property.
    “2. That if the jury find the defendant guilty, they should not consider anything said by counsel as to the amount of any alleged insurance on the property destroyed, nor should the jury deduct anything from the reasonable value of the property, if that be proven by the evidence, on account of such insurance.

      “3. If the jury believe, from the evidence, that the defendant was guilty of negligence, as charged in the original declaration, or any count thereof, and that by reason of such negligence fire was communicated to and destroyed the Normal depot, from an engine used by the defendant on its railway, and that the depot fire necessarily destroyed the hotel, then, if such evidence proves that such destruction of said hotel was without fault on the part of the plaintiff, you should find the defendant guilty.
    “4. If you find the defendant guilty, and find, from the evidence, that the plaintiff was free from negligence in the matter of burning the hotel, or his efforts to put out the fire, or in' caring for and removing furniture from the burning building, then you should assess the plaintiff’s damages at the value of the hotel and furniture necessarily destroyed by fire, if such value is shown by the evidence. ”
    At the request of defendant, the court instructed the jury as follows:
    “1. Under the issues in this ease the burden of proof is upon the plaintiff to prove, by the preponderance of the evidence, that the fire that burned the depot was communicated by sparks from the passing train.
    “2. If you believe, from the evidence, that the depot at Normal was owned by the Illinois Central Railroad Company, and was in charge of men selected, employed by, and under control of said Illinois Central Railroad Company, then the mere fact that the defendant may have paid to some of said men in charge of the depot a part of their wages, would not make the defendant liable for the manner in which the depot was conducted or managed.
    “3. The court further instructs the jury, for the defendant, that if they believe, from the evidence, that the fire that consumed the depot originated from a defective stove-pipe or flue in the depot, you will find the defendant not guilty.

      “4. The court instructs the jury, for the defendant, that the considerations mentioned in the deeds offered in evidence by the plaintiff to prove title, are not to be regarded by the jury as any evidence of the value of the property at the time of the fire.
    “5. The court further instructs the jury, for the defendant, that before the plaintiff can recover in this case, he must prove, by a preponderance of the evidence, first, that the defendant wrongfully set fire to the depot; second, that the fire that consumed the hotel was communicated from the said depot building. It is not enough, to enable the plaintiff to recover, to prove that sparks escaped from defendant’s locomotive, which possibly might have caused the fire or fires in controversy, but he must prove, by a preponderance of the evidence, that such spark or sparks, if any, did cause such fire or fires.”
    Defendant asked certain other instructions to be given, which the court gave, with certain modifications. These instructions, as modified, were as follows, the modifications consisting of the adding by the court of the words in italics, and erasing the words found in brackets:
    “1. The court further instructs the jury, for the defendant, that the defendant had a right to use a locomotive engine propelled by steam, and is not an insurer against fire communicated from such locomotive; that all the law requires of the defendant was to have its locomotive provided with the best known appliances to prevent the escape of fire, and to keep the same in repair, and then have it managed with reasonable prudence, care and skill. If, then, the jury believe, from the evidence, that the locomotive in controversy was, at the time in controversy, provided with the best known appliances to prevent the escape of fire, which were in good repair, and was managed with reasonable prudence, care and skill, then they should find for the defendant, even though the jury should believe, from the evidence, that the fire that -consumed the depot was communicated from the locomotive, and that the burning of the hotel was such a direct and natural consequence of the burning of the depot, as might have been foreseen by any reasonable man at the time.
    “2. The court further instructs the jury, for the defendant, that all persons erecting buildings in the immediate vicinity of a railroad track take the risks of fire communicated from passing engines, provided such engines are equipped with the best known appliances to prevent the escape of fire, a-ncl kept in repair, and are managed with reasonable care and skill, even though the danger may be greatly increased by high winds or proximity to other buildings.
    “8. The court further instructs the jury, for the defendant, that the plaintiff can not recover in this case on account of a defective flue or stove in the depot of defendant, as charged in plaintiff’s amended declaration.
    “4. The court further instructs the jury; for the defendant, that even if the jury do believe, from a preponderance of the evidence, that the fire that consumed the hotel did originate from sparks from the engine, yet if they further believe, from the evidence, that the engine at that time was furnished with the best known appliances to prevent the escape of fire, which were in good repair, and was managed with reasonable care and skill, then the defendant is not liable, and they should find the defendant not guilty.
    “5. The court further instructs the jury, for the defendant, that before the plaintiff can recover in his case [on his original' declaration,] he must prove, by a preponderance of the evidence, first, that the defendant wrongfully set fire to the depot [either by an engine not managed with reasonable care and skill, or by an engine not in a reasonably safe condition] ; second, that the fire that consumed the hotel was communicated from the said depot [building.] ”

      The court refused to give the following among other instructions asked by defendant:
    “1. The court further instructs the jury, for the defendant, that before the plaintiff can recover in his case on his original declaration, he must prove, by a preponderance of the evidence, first, that the defendant wrongfully set fire to the depot, either by an improperly managed engine, or by an engine in an improper condition; and second, that the fire that consumed the hotel was communicated from the said depot building; and third, that such burning of the hotel "was such a natural and direct consequence of the burning of the depot, as might have been foreseen by any reasonable person at the time. ”
    Messrs. Williams, Burr & Capen, for the appellant:
    To sustain a recovery in an action. like this, it is not enough for the plaintiff to show a possibility, or even a probability, that the fire was communicated from sparks emitted from a locomotive. The law requires positive proof, and the proof must negative every other probable cause of the fire. Sheldon v. Hudson River R. R. Co. 29 Barb. 226; Burke v. Louisville and Nashville R. R. Co. 7 Heisk. 451; Sheldon v. Hudson River R. R. Co. 14 N. Y. 218; Smith v. Hannibal and St. Joseph R. R. Co. 37 Mo. 287; Shearman & Redfield on Negligence, sec. 333.
    A person is not liable for the result of acts done in the pursuit of a lawful business, in the absence of the violation of positive law, unless the result of such acts was a probable consequence, that might have been reasonably foreseen by a man of ordinary prudence. Ryan v. New York Central R. R. Co. 35 N. Y. 210; Addison on Torts, sec. 3; Cooley on Torts, 530; Moak’s Underhill on Torts, rule 26, p. 271; Fent v. Toledo, Peoria and Warsaw Ry. Co. 59 Ill. 349; Toledo, Wabash and Western Ry. Co. v. Muthersbaugh, 71 id. 572;
      Illinois Central R. R. Co. v. Mills, 42 id. 407; Ohio and Mississippi R. R. Co. v. Shauefelt, 47 id. 497; Chicago and Alton R. R. Co. v. Quaintance, 58 id. 389; Toledo, Wabash and Western Ry. Co. v. Larman, 67 id. 68; Chicago and Alton R. R. Co. v. Pennell, 94 id. 448; Great Western R. R. Co. v. Haworth, 39 id. 346; Ryan v. New York Central R. R. Co. 35 N. Y. 210; Kerr v. Pennsylvania R. R. Co. 62 Pa. 353; Field v. New York Central R. R. Co. 32 N. Y. 339; Pennsylvania R. R. Co. v. Hope, 80 Pa. St. 373; Hoag v. L. S. and M. S. R. R. Co. 85 id. 293; Sheldon v. Hudson River R. R. Co. 25 Barb. 226; 14 N. Y. 218; Atchison, Topeka and Santa Fe R. R. Co. v. Bales, 16 Kan. 252; Doggett v. R. and D. R. R. Co. 78 N. C. 305; Snyder v. P. R. R. Co. 11 W. Va. 14; Spaulding v. Chicago and Northwestern Ry. Co. 30 Wis. 110; Smith v. Hannibal and St. Joseph R. R. Co. 37 Mo. 287; M. R. R. Co. v. Kellogg, 94 U. S. 469; Clemens v. Hannibal and St. Joseph R. R. Co. 53 Mo. 356; Henry v. S. P. R. R. Co. 50 Cal. 176; Kellogg v. Chicago and Northwestern Ry. Co. 26 Wis. 223.
    It is not negligence j?er se to use wood in a coal-burning locomotive. Chicago and Alton R. R. Co. v. Pennell, 94 Ill. 448; Collins v. New York Central R. R. Co. 5 Hun, 499.
    Care and negligence are always purely relative terms. Like all other questions of right and wrong, the only criterion is the circumstances of each individual case. Cooley on Torts, 630; Holly v. Boston R. R. Co. 8 Gray, 123; Fletcher v. B. and M. R. R. Co. 1 Allen, 9.
    An opinion expressed by a witness, inconsistent with a fact testified to by him, can not be admitted in evidence to impeach his credibility. To do so is error. Lane v. Bryant, 9 Gray, 245; Holmes v. Anderson, 18 Barb. 420; Hall v. Young, 37 N. H. 134; Elton v. Larkins, 5 C. & P. 385; Rucker v. Beaty, 3 Ind. 70.

      Mr. William E. Hughes, and Messrs. Stevenson & Ewing, for the appellee:
    The burden of proof was on the appellant to show two things: First, that the engine was properly managed; second, that it was, at the time of the communication of fire, in good order. Chicago and Northwestern Ry. Co. v. McCahill, 56 Ill. 28; St. Louis R. R. Co. v. Montgomery, 39 id. 335; Illinois Central R. R. Co. v. Mills, 42 id. 407; Chicago and Alton R. R. Co. v. Quaintance, 58 id. 389; Chicago and Alton R. R. Co. v. Clampitt, 63 id. 97; Illinois Central R. R. Co. v. McClelland, 42 id. 358; Jackson v. Chicago and Northwestern Ry. Co. 31 Iowa, 176.
    The engine being a coal burner, the use of wood on it on the night of the fire was negligence. Chicago and Alton R. R. Co. v. Quaintance, 58 Ill. 399; Wall v. Barton, 40 Barb. 137; Shearman & Redfield on Negligence, sec. 328.
    The escape of fire from that engine was the proximate cause of the destruction of the hotel. Fent v. Toledo, Peoria and Warsaw Ry. Co. 59 Ill. 349; Milwaukee R. R. Co. v. Kellogg, 94 U. S. 469; Pennsylvania R. R. Co. v. Hope, 80 Pa. St. 379; Atchison, Topeka and Santa Fe R. R. Co. v. Bales, 16 Kan. 252; Webb v. R. W. and O. R. R. Co. 49 N. Y. 420; Kellogg v. Chicago and Northwestern Ry. Co. 26 Wis. 224; Henry v. S. P. Ry. Co. 50 Cal. 176; Higgins v. Dewey, 107 Mass. 494; A. C. R. R. Co. v. Gnatt, 39 Md. 115; Baltimore and Ohio R. R. Co. v. Shepley, id. 252; A. R. R. Co. v. Stamford, 12 Kan. 354.
    The fact that the engine threw out an unusual amount of fire, is itself proof of negligence. Bass v. Chicago, Burlington and Quincy R. R. Co. 28 Ill. 18; Chicago and Northwestern. Ry. Co. v. McCahill, 56 id. 28; Field v. New York Central R. R. Co. 32 N. Y. 346; Hall v. S. R. R. Co. 14 Cal. 389; Bedford v. H. R. R. Co. 46 Mo. 456; Ellis v. P. and S. R. R. Co. 2 Ired. 140; Bedell v. L. I. R. R. Co. 44 N. Y. 367.

      The fact that more steam was employed than was necessary, is proof of negligence. Great Western R. R. Co. v. Haworth, 39 Ill. 456; Gaudy v. Northwestern R. R. Co. 30 Iowa, 420.
    The appellant was bound to use more care and caution in running a train when the wind was blowing than in ordinary weather. Smith v. O. C. and N. R. R. Co. 10 R. I. 26; Ferro v. B. and S. L. R. R. Co. 22 N. Y. 209; Webb v. R. W. and O. R. R. Co. 49 id. 420; Kelsey v. Barney, 2 Kern. 425; Kellogg v. Chicago and Northwestern Ry. Co. 26 Wis. 236; Frankford Turnpike Co. v. Pennsylvania R. R. Co. 54 Pa. St. 345; Fletcher v. B. R. R. Co. 1 Allen, 9; Cunningham v. Hale, 4 id. 268; Cayzen v. Taylor, 10 Gray, 274; Great Western R. R. Co. v. Haworth, 39 Ill. 346.
    The fact that the hotel of appellee was within one hundred feet of the appellant’s track, does not bar his recovery in this case. I. and C. R. R. Co. v. Parmore, 31 Ind. 149; Cook v. Champlain Co. 1 Denio, 91; Vaughn v. Teff, Vale & Co. 1 H. & N. 743; Ferro v. B. and S. L. R. R. Co. 22 N. Y. 209; Fitch v. Pennsylvania R. R. Co. 45 Mo. 322; Jeffries v. Pennsylvania R. R. Co. 3 Houst. 447; Ward v. M. R. R. Co. 29 Wis. 144; Burke v. Louisville and Nashville R. R. Co. 7 Heisk. 451; B. R. R. Co. v. Westover, 4 Neb. 268; Salmon v. D. L. and W. R. R. Co. 38 N. J. L. 5; Pennsylvania R. R. Co. v. Hendrickson, 80 Pa. St. 182.
    The law does not require positive proof that the fire was caused by the engine of defendant, but only such proof as will leave no reasonable doubt of that fact. Sheldon v. Hudson River R. R. Co. 29 Barb. 229; Atchison, Topeka and Santa Fe R. R. Co. v. Bales, 16 Kan. 252; Pennsylvania R. R. Co. v. Stragan, 79 Pa. St. 405; Freeman v. Railroad Co. 10 C. B. (N. S.) 89; L. R. R. Co. v. David, 52 Pa. St. 379.
   Mr. Justice Dickey

delivered the opinion of the Court:

When the case was passed upon by this court, (as shown in 94 Ill. 448,) it was our duty, by statute, to consider the weight of the evidence, and pass upon the same, in determining whether it was error in the circuit court to deny a new trial. Since that time the statute has relieved us of that duty, and findings of fact made or approved by the Appellate Court, in actions of this kind, are conclusive in this court, unless the record shows affirmatively that the circuit court committed some error as to the law of the case, which may have controlled the finding. In this case we can review only the decision of the circuit court upon questions of law. It is plain this judgment must be affirmed unless some material ruling of the circuit court made upon the trial, upon some question of law, can be shown to be erroneous.

Appellant complains that in the instructions given at the' instance of appellee, the court erred in this, that, as is contended, these instructions ignore the question whether or not the burning of the "depot was such a result of the negligence complained of as ought to have been foreseen by defendant and its servants at the time. The record does not show that the court was specially requested by defendant to declare the law as to this particular question, as is claimed it should have been declared. Take the whole charge together, it seems to lay down the law with substantial accuracy,—to have been consistent in all its parts, and sufficiently full,— and we can not see that it was calculated to mislead the jury. The governing facts were fairly submitted to the jury. The statute declares that in actions for damages from injury to property “occasioned by fire communicated by any locomotive engine while passing along any railroad, * * * the fact that such fire was so communicated” shall be prima facie evidence “to charge with negligence ” the owner and operators of the road at the time. It seems plain that this "statute was intended to charge upon the company using the locomotive, all injuries which are shown to have resulted from fire from a passing train, unless the defendant could rebut such conclusion by proof showing that the loss was not occasioned by negligence of defendant. The instructions given at plaintiff’s instance are but four in number, and go no farther than the statute provides in this regard.

The five instructions given at the request of defendant, and especially instruction No. 5, present the defence set up. If defendant had wished to have the jury pass upon the question as to whether the burning of the hotel was or was not a consequence of the firing of the depot so unlikely to occur as not to be a part of the proximate and natural consequences of the firing of the depot, the attention of the court should have been particularly called to that question, in a properly drawn and unobjectionable instruction, directly upon that point. This was not done.

There is one expression in the first refused instruction asked by defendant, relating to the question of the remoteness of the damages in question. That instruction, however, was properly rejected and refused. Not only was it embodied in an instruction which is confessedly erroneous in two of its propositions, • but the proposition on the subject under consideration does not state the law correctly. It is. not essential, to charge the defendant with the loss caused by the burning of the hotel, that the burning of the hotel should have been a consequence of the burning of the depot so apt to follow that it might have been foreseen by a reasonable person at the time. It was not at all necessary that the burning of the hotel should have been so certain to result from the burning of the depot that a reasonable person could have foreseen that the hotel would burn, or that it would probably burn. It is enough if it be a consequence so natural and direct that a reasonable person might, and naturally would, see that it was liable to result from the burning of the depot,—that is, that it might follow.

There was no error in modifying the instructions asked by-defendant, as was done. It is not necessary to- discuss in detail all the criticisms of counsel in relation to the several instructions. It is enough to say we find no substantial error in that regard which might have misled the jury.

Some objections are raised to the rulings of the court in admitting and excluding evidence, but we find no substantial error in that regard. It may not be improper to notice particularly what counsel chooses to call “the grossest error in the rulings of the court upon the admissibility of evidence.” Stewart, a witness for defendant, had testified that his attention was called to the fire burning the depot, at a very early stage, and that it was in the inside of the wall, and not on the outside, and also that he was watching the hotel just before and at the time the fire burst forth there, and that it seemed to him “as though a fire was inside the weatherboarding, and burned and charred this outside, and then it burned through.” The statements tended to show that the burning of the depot was caused not from fire thrown from the engine, but from fire from the inner part of the depot, and also that the burning of the hotel was not caused by fire from the depot, but from a fire which begun in the inside of the hotel. The declaration of Stewart, which on cross-examination he denied having made, and which plaintiff was permitted to prove, was, that “the engine set fire to the depot and the depot set fire to the hotel. ” This relates to a fact, and not to an opinion, merely. Witness was present, and had apparently the means of knowing at least the source of the fire which burned the hotel. If the language was such that it might be regarded either as a statement of an ascertained fact, or as merely an expression of opinion, it was not error to allow it to go to the jury. We think there was no error in permitting plaintiff to prove that Stewart had made that statement.

Finding no error of law which we can see might have misled the jury, and having no lawful authority to pass upon the weight of the evidence as to questions of fact, we affirm the judgment.

Judgment affirmed.

Mr. Justice Craig, dissenting.


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    Jesse Holdom v. John M. Ayer.

      Filed at Ottawa June 13, 1884.

    1. Fraud and deceit—necessity of having relied on representations. A party defendant who has induced the plaintiff to subscribe and pay for stock in a corporation through false representations of the value of such stock, etc., is not liable in an action on the case for fraud and deceit, if it appears that the plaintiff did not rely upon the representations as charged in the declaration, but upon the guaranty of the defendant.
    2. Same—of the scienter. Where an agent of a mining company, by false representations as to the value of the shares of stock in such company, or as to the extent and condition of the property of the company, induces, another to subscribe for and purchase shares of stock from the company, the agent will not be liable to the purchaser in an action for fraud and deceit unless he knew his representations were false when he made them. The fraud and the scienter constitute the grounds of the action.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.
    This suit was brought by Jesse Holdom, against John M. Ayer. The declaration is in case, and contains two counts. The substance of the first is, that plaintiff, by representations made by defendant, who it is averred was one of the promoters and original corporators in the Chiricahua Mining and Milling Company, (a corporation organized for pecuniary profit,) as to the great value of the shares of the'capital stock of such corporation, and the property owned by the same, and the value of the dividends to be declared, was induced thereby to subscribe for ten shares of the stock of such company, for which he paid the company $1000, being the aggregate par value of such stock. It is then averred, with the usual formality, that all the representations made by defendant as to the value of the shares of stock and of the property owned by the corporation were false and deceitful representations, which defendant well knew, and that such shares of stock at the time were worthless and of no value, and in consequence thereof plaintiff sustained damage in the amount he paid for such shares of stock. The second count is similar to the first, with an allegation of a tender of the shares of the stock to defendant, and a demand for the money paid for them, which defendant refused. Only the general issue of not guilty was pleaded. On the trial in the circuit court the jury found the defendant not guilty. A motion for a new trial was overruled, and the court entered judgment on the verdict. That judgment was affirmed in the Appellate Court for the First District, and plaintiff brings the case to this court on his further appeal.
    Mr. Jesse Holdom, and Mr. D. J. Schuyler, for the appellant :
    Appellee, by reason of his position as a director and promoter of the corporation, had opportunity to know the truth or falsity of his representations, and whether or not he had actual knowledge of their falsity at the time he made them, will not release him from liability. Morawetz on Private Corp. sec. 308; Gerhard v. Bates, 2 El. & Bl. 488; Thompson on Liability of Officers and Agents of Corp. 216, sec. 17, and p. 350; Wakeman v. Dailey, 51 N. Y. 27; Peck v. Gurney, H. L. R. 377; Shinn v. Croucher, 1 DeG., F. & J. *518; McFarren v. Taylor, 3 Cranch, 270.
    If one obtains the property of another by means of untrue statements, though in ignorance of their falsity, he must be held responsible as for a legal fraud. McFarren v. Taylor, 3 Cranch, 270; Smith v. Richards, 13 Pet. 126; Bennett v. Judson, 21 N. Y. 238.
    It is immaterial to defendant’s liability for fraud whether he knew the falsity of his representations or not. Lockridge v. Foster, 4 Scam. 570; Parham v. Randolph, 4 How. (Miss.) 435; Roosevelt v. Rulton, 2 Cow. 139; Minor v. Medbury, 6 Wis. 295; Fisher v. Mellon, 103 Mass. 503; Elliott v. Boaz, 9 Ala. 772; Beauford v. Coldwell, 3 Mo. 477; Ayers' case, 25 Beav. 527; Pulsford v. Richards, 17 id. 87; Kelly v. Sheldon, 8 Wis. 258; Smith v. Mariner, 5 id. 551; Weatherford v. Fishback, 3 Scam. 170; Pasily et al. v. Freeman, 3 T. R. 51; Case v. Ayres, 65 Ill. 42.
    Mr. John E. Burke, for the appellee :
    Any representations of defendant based on the létters of the secretary and superintendent of the mines, were made in good faith. Merwin v. Arbuckle, 81 Ill. 501.
    In an action for fraud and deceit, a scienter must be shown. It must be shown not only that the representations were false, but that the party making them knew they were false at the time he made them. Wheeler v. Randall, 48 Ill. 182; Mitchell v. Deeds, 49 id. 416; Hiner v. Richter, 51 id. 299; Walker v. Hough, 59 id. 375; Merwin v. Arbuckle, 81 id. 501; Tone v. Wilson, id. 529; St. Louis and Southeastern Ry. Co. v. Rice, 85 id. 406; Schwabacker v. Riddle, 99 id. 343; McBean v. Fox, 1 Bradw. 177; Rutherford v. Fishback, 3 Scam. 170.
   Mr. Justice Scott

delivered the opinion of the Court:

It can not be contended in this court, as was done in the courts below, the verdict is against the weight of the evidence. That question is not open for consideration in this court. In passing upon the questions of law discussed, it will be assumed the verdict is warranted by the evidence.

The point is made the court erred- in admitting and rejecting certain testimony on the trial, but the matters complained of in this respect are not of. enough importance to be the subject of any serious consideration. The merits of the case were hardly affected by the action of the court of which complaint is made, and the errors in that respect, if any existed, are too trivial to warrant a reversal of the judgment, if no other error shall be discovered.

An instruction asked by defendant, and given by the court, in effect informed the jury that if defendant guaranteed the stock purchased by plaintiff, and that plaintiff, in making such purchase, relied upon such guaranty, and did not rely upon the representations, as charged in the declaration, the law is for defendant. The instruction, as formulated, states a correct principle of law. The declaration was not framed with a view to recover upon any guaranty as to the value of the stock, but upon deceitful representations as to its value. It is said there was no evidence on which to base such an instruction, and it was therefore error in the court to give it. The evidence contained in the record on this branch of the case has been examined, and it is seen it is sufficient to warrant the court in submitting that view of the law to the jury, as was done.

But it is most confidently insisted the court erred in the modifications it made to instructions asked for on the part of plaintiff, and in giving such instructions after they were so modified. Plaintiff asked the court to instruct the jury, if they believe, from the evidence, defendant made representations as to the value of the shares of stock, or as to the extent, value and condition of the property of the mining company, which were false and untrue, and that plaintiff, relying upon such false and untrue statements, was induced to and did buy the stock, then the verdict should be for plaintiff. To all of the instructions in which this proposition is stated the court added, with reference to the alleged false representations, “known by him to be false,” or words implying the .same meaning, and it is that modification it is said was error. Narrowing the discussion to the case made by the declaration, it will be seen the modifications to plaintiff’s instructions were entirely proper, and' necessary to enable the jury to reach a correct conclusion. This is not a case like Allen v. Hart, 72 Ill. 104, where plaintiff rescinded the contract made with the vendor, on account of the fraud in procuring it, and brought an action against him to recover the consideration paid, and the principle of that and analogous cases can have no application to the case being considered. It will be observed it is not averred in the declaration in this case the stock purchased by plaintiff was bought of defendant. It was bought of the corporation, and it is averred plaintiff paid the money for the shares of stock to the company itself. Had defendant offered to rescind the contract which he alleges he made, on account of the fraud of one of the promoters of the corporation in obtaining it, and brought suit against the corporation itself, to recover the consideration paid for the shares of stock, a case more analogous with Allen v. Hart would have .been presented. The gist of the action against defendant is, that being a promoter and one of the original corporators of the company, he made false and untrue representations as to the value of the shares of capital stock of the corporation, and of the dividends to be declared, and as to the condition and value of the property of the company, upon which plaintiff relied in making the purchase of stock. The contract was not with defendant, and no money was paid to him for his personal benefit. The action is for deceit, in the strictest sense. In such cases it is not enough the representations' made by defendant were false,—they must have been “known by him to be false.” This point has been so often ruled in this court the question is not now open for discussion. In all actions like the one being considered, the holding is uniform that to warrant an action for deceit the false representations must have been knowingly made, with the intent to deceive.' The fraud and the scienter constitute the grounds of the action. Wheeler v. Randall, 48 Ill. 182; Hiner v. Richter, 51 id. 299; Merwin v. Arbuckle, 81 id. 501; Schwabacker v. Riddle, 99 id. 343; Mitchell v. Deeds, 49 id. 416. Other cases in this court declare the same doctrine.

There was no error in modifying plaintiff’s instructions, as was done by the trial court, and the judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Dickey

text:
    John E. Brooks et al. v. Azariah Sanders.

      Filed at Springfield January 19, 1884.

    X. Redemption by judgment creditor—what rights acquired thereby. A judgment creditor, after redeeming the land of his debtor from sale on execution, has no interest in or control over the redemption money. He has only the right to have the land sold on his execution, and to receive the proceeds of that sale, by applying the excess above the redemption money advanced, and interest, on his execution.
    2. Same—in case of an assignment of the judgment under which redemption is sought—rights of the parties. A judgment creditor, after having redeemed a tract of land of his debtor from a prior judicial sale, and having his execution levied on the premises, sold and assigned his judgment and execution to a third party, and “any and all sum and sums of money that” might “be had or obtained by means thereof, or any proceedings to be had thereon.” A'sale of the land was made to the assignee for a sum including the amount paid to redeem and the amount due on the execution, and a certificate of purchase was given to him upon payment of the costs only, whereupon the assignor of the judgment sued the sheriff for the amount of the redemption money paid: Held, that the assignor had no cause of action.
    Writ of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Coles county; the Hon. J. W. Wilkin, Judge, presiding.
    Sanders recovered judgment March 12, 1879, against Simpson W. Miller and Matilda Miller, for $3160, and costs, and on the next day sued out an execution, which was returned unsatisfied. On April 27, 1880, he sued out an alias .execution, and on the next day, (April 28,) having placed this execution in the hands of Brooks, the sheriff, as such judgment creditor redeemed certain real estate of Simpson W. Miller from a previous sale, paying to the sheriff the sum of $2235, and the proper certificate of redemption was made, issued and filed. Afterwards, on July 10, 1880, and before any sale by the sheriff under the Sanders judgment and execution, Sanders, for a valuable consideration, ($2300), by a writing, under seal, executed by him, “sold, assigned, transferred and set over” unto Healy & Stoddard “the said judgment, and any and all sum and sums of money that may be had or obtained by means thereof, or any proceedings to be had thereon, ” and by the same instrument substituted and appointed Healy & Stoddard his attorneys, for him and in his name, but for the sole use and benefit of said Healy & Stoddard, and at their own cost and charges, to “take all lawful ways for the recovery of the money due on the said judgment, and on payment, to acknowledge satisfaction or discharge the same.” By the same instrument Sanders covenanted that there was “then due on said judgment the sum of $3160, and that he will not collect the same, or any part thereof, nor release the judgment, but will own and allow all lawful proceedings therein, Healy & Stoddard saving him harmless.” On August 19, 1880, the sheriff sold the premises to Healy & Stoddard, upon the execution under which the redemption was made, at public sale, for $5793.85, and gave them a certificate of purchase. Healy & Stoddard gave the sheriff a receipt in full satisfaction of the Sanders judgment, and paid to the sheriff the costs, and no other money. Sanders, upon this state of facts, claims that the sheriff thereby became liable to refund to him the amount of the money paid out by him in making the redemption from a previous sale, and this is an action on the official bond of the sheriff, to recover that amount. The circuit court sustained the action. That judgment was affirmed by the Appellate Court, and the sheriff and his sureties bring the record here, on writ of error.
    Messrs. Craig & Craig, for the plaintiffs in error.
    Mr. James F. Hughes, for the defendant in error.
   Mr. Justice Dickey

delivered the opinion of the Court:

We think the plaintiff has no cause of action. After redemption by a judgment creditor, such creditor has no interest in or control over the redemption money, except the right which the statute gives him to have the land sold on his execution, and to receive the proceeds of that sale, as such judgment creditor, by applying upon the amount called for on the face of the execution, the excess of these proceeds over the principal and interest on the amount paid out for redemption. After redemption, and before sale, he has no claim upon the sheriff, or personal demand upon anybody else, for the amount paid in making the redemption. He could not sue Simpson, the debtor, and hold him personally liable to him for this money paid out in making the redemption. The statute simply gives him a lien, through the instrumentality of his judgment and execution, upon the land redeemed, for the money paid out in accomplishing that end. The money was paid by him to nourish and render more valuable his judgment and execution. When he assigned that judgment to Healy & Stoddard, it passed with its enhanced value. The very language of the assignment shows that this must have been the intention, for he transfers not only the judgment, but “all sums of money that may be had or obtained by means thereof, ” or by means of “any proceedings to be had thereupon.” Now, the amount of the redemption money, and the interest upon that amount, and the costs of the redemption, were each and all “sums of money that might be had and obtained” by means of the judgment, and by means of “proceedings to be had thereupon,” by a sale upon the execution.

The sheriff was guilty of no official misconduct upon the case made by the declaration, and it was error to render judgment against plaintiffs in error.

The judgment of the Appellate Court is therefore reversed, and the cause remanded to that court to reverse the judgment of the circuit court.

Judgment reversed.


author: Mr. Justice Mulkey Mr. Justice Dickey,

text:
    Walter B. Scates v. Preston R. King.

      Filed at Mt. Vernon November 15, 1883.

      1. Res judicata—to whom, the rule is applicable—as to persons not parties or privies—of a subsequent purchaser from a mortgagor, who is not a party to a suit to foreclose. A subsequent purchaser from a mortgagor is in no way affected by a decree of foreclosure of the mortgage, to which he is not a party. By such a decree his rights are not changed, enlarged or diminished. As to him, the decree is simply a nullity. In case the prior mortgage was a valid and binding instrument, the subsequent purchaser acquires merely a right to redeem, which will be wholly unaffected by the decree of foreclosure; and, not being a party to the decree, he will be at full liberty, in a different proceeding, to contest the validity of the mortgage, and assert rights adversely thereto.
    2. Certain county officials executed an instrument in the form of a mortgage, which purported to convey certain lands owned by the county, to a trustee, as security for the payment of certain construction bonds about to be issued by a railroad company. Subsequently to that transaction, the county sold and conveyed a portion of the same lands to a third person. After this sale and conveyance the holders of a portion of the railroad bonds so attempted to be secured, exhibited their bill in chancery against the county to foreclose the mortgage, omitting, however, to make the subsequent purchaser from the county a piarty thereto. A decree of foreclosure was entered, and a sale and conveyance of the lands embraced in the mortgage were had. Thereupon the subsequent purchaser sought by bill in chancery to have the conveyance under the decree of foreclosure set aside as a cloud upon his title. While it was conceded that the decree of foreclosure settled conclusively, so far as the county was concerned, the fact of making the mortgage, the power of the county to make it, and the liability of the county to pay the debt thereby secured, yet, as to the subsequent purchaser from the county, who was not a party to the foreclosure proceeding, that decree established nothing whatever that could preclude him from questioning the power of the county to make the mortgage at all, and asserting his title adversely to any' one claiming to hold under the foreclosure decree.
    3. Same—of notice by possession under an uiwecorded deed. The rule that the subsequent purchaser is not bound by the decree of foreclosure to which he was not a party or privy, is not at all affected by reason of his failure to put his deed upon record before the commencement of that suit, when it appeared that he was in the actual and exclusive possession of the land during the time of its pendency, such possession being constructive notice of his rights to the same extent as if his deed had been placed upon record at the time of its execution.
    4. Munich?AE coBPOBATiONS-^powrs of their officers—third persons dealing with them—how far chargeable with knowledge thereof. All persons assuming to act as the official agents of a county or other municipal corporation must have the requisite power or authority for that purpose, otherwise the municipality will not be bound, and every one dealing with them must know, at his peril, the extent of their authority.
    5. Same—counties—extent of their powers. A county possesses no powers except such as are expressly, or by necessary implication, conferred upon it by law. A county has no power to give away or otherwise dispose of its funds or property for a purpose not authorized by law.
    6. Same —power of Wayne comity to mortgage its swamp and overflowed lands to secure bonds issued by the Mt. Vernon Railroad Company in 1859. The charter of the Mt. Vernon Railroad Company, passed February 15, 1855, provided that any count)' through which that road might run, and every county through which any other railroad might run, with which the Mt. Vernon railroad might be joined, connected or intersected, were authorized to aid in the construction of the same, etc. In 1859 the Mt. Vernon Railroad Company issued certain construction bonds, to secure which the county of Wayne conveyed its swamp and overflowed lands, in trust. The Mt. Vernon railroad did not, and could not, under its charter, run through Wayne county, nor did any other railroad run through that county with which that road was joined, connected or intersected. So the condition upon which Wayne county might aid in the construction of the Mt. Vernon railroad did not exist, and the deed of trust executed for that purpose was made without the power or authority in the county to do so, and was therefore void.
    Appeal from, the Circuit Court of Wayne county; the Hon. C. S. Conger, Judge, presiding.
    This is an appeal from a decree of the circuit court .of Wayne county, rendered at its October term, 1881, in a proceeding in chancery wherein Preston R. King is complainant and Walter B. Scates is defendant, setting aside certain conveyances as a cloud upon the title of the complainant to three tracts of land, being a part of what is known as the “swamp and overfloAved” lands of Wayne county.
    The facts essential to a proper understanding of this case are as follows: On the 15th of February, 1855, the legislature passed a special act incorporating the Mt. Vernon Railroad Company, authorizing the company to build a railway, with double or single tracks, from Mt. Vernon, Illinois, to some point on the Illinois Central railroad, or its Chicago branch, or on both. On the same day the legislature passed another special act incorporating the Belleville and Fairfield Railroad Company, by which that company was authorized to build and maintain a railroad from Belleville, St. Clair county, by way of Nashville, in Washington county, and Mt. Vernon, in Jefferson county, to Fairfield, in Wayne county. There was also, at the time of the incorporation of these companies, a line of railway belonging to the Alton, Mt. Carmel and New Albany Railroad Company, which had been previously located and partly graded, extending from Fairfield to the eastern boundary of Wayne county. While matters were in this condition, at an election held in Wayne county on the 5th of November, 1855, in pursuance of an order of the county court, for the purpose of ascertaining the wishes of the people upon the subject of appropriating the swamp lands to the building of a railway through the county, a majority of the qualified voters of the county voted in favor of the following proposition, namely: “For appropriating - the swamp and overflowed lands of Wayne county as a bonus to any company for building a railroad through the county. ” On the 26th of September, 1857, the county conveyed its swamp lands to Thomas L. Cooper, and eleven others, in trust, to build a railway through the county, which the trustees undertook to complete in three years from the date of the conveyance. Nothing was ever done under this agreement, nor does it appear there has ever been any reconveyance of the lands to the county. On the 19th day of November, 1858, the county authorities entered into á contract with Vanduzer, Smith & Co., by which the latter agreed to build and complete “a first-class single track railroad, * * * from Mt. Vernon, Jefferson county, to the eastern boundary. of Wayne county, * * * and equip and operate the same within * '* * two years from the sealing and delivery of the ” contract. It was also provided therein that if the contractors should fail to complete the contract on their part, then all work and superstructure made by them should revert to the county, together with the franchises and right of way. In consideration of this agreement on the part of the contractors, the county of Wayne agreed to pay them $500,000 in the swamp lands of the county, at the rate of. five dollars per acre, to be paid as the work progressed, as specified in the agreement. This agreement was never performed by the contractors, or by any one acting on their behalf, or claiming through them. Subsequently, on the 12th day of September, 1859, the contractors, Vanduzer, Smith & Co., assigned all their interest in said contract to the Mt. Vernon Kailroad Company, and in and by the deed of assignment expressly bargained, sold and transferred to said company “all claims to any and all lands, moneys, materials and personal property which might thereafter become due to them under said contract. ” Upon the assignment of the contract between Vanduzer, Smith & Co. and the county, to the Mt. Vernon Kailroad Company, the members of that firm became, as a part of the arrangement, stockholders and corporators of the company. On the 20 th day of April, 1859, the Mt. Vernon Railroad Company, being about to issue $800,000 of railroad construction bonds, with interest coupons attached, to mature in 1814, for the purpose of securing the same, and for the benefit of the holders of said bonds, executed to Isaac Seymour, cashier of the Bank of North America, New York, as trustee, a mortgage upon its contemplated railroad, its appurtenances, franchises, and all its property and effects, present and prospective. At the same time, and as a part of the same general scheme for raising the necessary funds and securing their application to the building of the road, two of the members of the county court of Wayne county, acting on behalf of the county, executed and delivered to the said Seymour a trust deed, conveying to him all the swamp and overflowed lands of said county, upon the following trusts:
    “First—To secure and guarantee the construction, completing and finishing said road and branches in the manner and time and upon the conditions of the act of incorporation of said company, provided for the faithful application of all moneys or properties arising from the sale of lands, or obtained upon the faith of the same, for constructing, completing and equipping said railroad according to the terms of the act of incorporation.

      “Second—That a portion, not exceeding one-fourth, of the lands in value to be held by the trustee free from incumbrance, for sale, from time to time, on requisition of _the company, for payment of interest on loans in case of deficiency from other sources, and for other expenditures that' may be required: Provided, no portion of said one-fourth shall be sold until the road shall have been actually finished.
    “Third—For the purpose of raising funds for construction of the road the said railroad company may issue its bonds, countersigned by the trustee, in sums of $500 and $1000, with interest at seven per cent per annum, payable semiannually, and the principal payable in 1874, at such place as shall be designated,—the bonds to be secured by mortgage of the said lands as hereinbefore provided, which shall be a prior lien, and shall be referred to and recited in said bonds, it being understood and agreed that Wayne county will make and deliver to the trustee proper deeds and declarations of trust, and other assurances, as shall from time to time be necessary and proper for carrying into effect the objects of this indenture, and for securing the payment of such construction bonds.”
    Upon the same day, and as a part of the same transaction, the county officials executed to the said Seymour a mortgage on the same lands, for the purpose of further securing the said construction bonds, as contemplated in said trust deed. On the 7th of December, 1863, and the 8th day of February, 1864, respectively, the county of Wayne conveyed to appellee two of the tracts of land in controversy. Wayne county had previously, on the 25th day of August, 1859, conveyed the remaining tract to Benjamin Cowling, who, on the 3d day of January, 1863” conveyed the same to appellee. It further appears that appellee has been in the actual possession-of said several tracts of land, and has paid all taxes thereon since he acquired title thereto, as above stated.

      On the 7th of March, 1865, John W. Kennicott, and four others, claiming to be the owners of a number of the construction bonds above mentioned, filed a bill in the Circuit Court of the United States for the Southern District of Illinois, against the Mt. Vernon Railroad Company and Wayne county, setting up the facts above recited, and alleging that default had been made in the payment of the interest on said bonds; that Seymour, the trustee and mortgagee, had died, and asking the appointment of another trustee, and that a discovery be made as to what, if anything, had been done toward the execution of said several trusts, and also praying a foreclosure of the deed of trust and two mortgages, executed, respectively, by Wayne county and the Mt. Vernon Railroad Company. The railroad company having failed to answer the bill, a default was entered against it on the 1st of June, 1868, and afterwards, on the 18th of the same month, a formal decree was entered against it for the sum of $73, 688.49, directing it to pay the same within five days, and in default thereof the master was directed to sell the company’s road, franchises, and all its rights, property and effects, of every kind whatsoever, as provided in the mortgage. In pursuance of this decree, on the 26th of August following, the company’s road, franchises and effects were sold by the master to the highest bidder, and struck off to the defendant, the Mt. Vernon Railroad Company, at $600, and the master thereupon executed a deed to the company for the property thus sold. The cause was continued on the docket as to the county of Wayne until the 17th of January, 1870, when the complainants filed an amended bill, which was answered by the county on the merits. In the meantime various amendments had been made to the bill, by means of which other bondholders were brought in and made complainants to the bill. Upon the hearing the Circuit Court of the United States, on the 2d of January, 1871, entered a decree dismissing the complainants’ bill, on the ground “the proofs (in the judgment of that court) failed to show that at the date of the mortgage and deed of trust in question there was any line of railroad constructed, or authorized to be constructed, through Wayne county, with which the Mt. Vernon railroad was joined, connected or intersected.” This decree, on appeal to the Supreme Court of the United States, was reversed at its December term, 1872, and the cause remanded to the circuit court, where a decree was entered by that court in conformity with the prayer of the bill, under which the swamp and overflowed lands of Wayne county were sold to certain trustees, who assigned the certificate of purchase as to the land in controversy to N. M. Broadwell, who, after receiving a master’s deed therefor, conveyed the same to appellant, Walter B. Scates. Appellee was not made a party to the legal proceedings above mentioned.
    Mr. Walter B. Scates, Mr. Lyman Trumbull, Mr. W. C. Goudy, and Mr. Charles B. Lawrence, for the appellant.
    Mr. H. Tompkins, Mr. R. P. Hanna, Mr. C. C. Boggs, and Messrs. Golden & Wilkin, for the appellee.
   Mr. Justice Mulkey

delivered the opinion of the Court:

It is claimed by counsel for appellant that the decree of foreclosure in the United States court finally settled, as res judicata, the fact of making the mortgage, the power and authority of the county to make it, and the liability of the county to pay the debt thereby secured; and that these facts being thus conclusively established, there remained to appellee, after such foreclosure, the single right to redeem from the sale under the decree, and that that right not having been exercised within the time allowed by the statute for that purpose, it is forever gone. We do not concur in this view to the extent stated. It is conceded, however, that so far as the county is concerned .the above facts are conclusively settled by the decree in that case, but as against appellee, who was not a party to the proceeding in which it was rendered, and who does not claim under it, but, on the contrary, adversely to it, we are unable to perceive on what principle it establishes anything as to him outside of the mere fact that such a decree was rendered. It is true any one claiming title under it might, in an action of ejectment against one claiming adversely to it, offer it in evidence as a link in his own chain of title. Subject to these limitations we do not understand the decree is of any binding force upon any one who was neither party nor privy to it, as is clearly the case with appellee. Nor is the rule in this respect at all affected by reason of appellee having failed to put one of his deeds upon record before the commencement of that suit, for, notwithstanding such is the fact, it clearly appears that long before, and at the time of the commencement and during the pendency of that suit, appellee was in the actual and exclusive possession of all the land in controversy, which was constructive notice of whatever rights he acquired under his deeds, to the same extent as if they had all been placed upon record at the time of their execution.

A number of authorities are cited in support of the familiar rule that where a mortgagee proceeds to foreclose without making the grantee of the mortgagor a party, as was done in this case, such foreclosure will be valid and binding, subject to the right of such grantee to redeem. We do not at all question this rule, but concede it to the fullest extent. We see nothing in it, however, that conflicts with the other general principle to which we have just adverted, that a decree or other legal proceeding is binding only upon the parties thereto, or their privies. By such a decree the grantee of the mortgagor is not affected at all. His rights are neither changed, enlarged nor diminished. By his conveyance he simply acquired the equity of redemption in the mortgaged lands, or such part of them as he purchased,—or, in other words, he acquired merely a right to redeem from the mortgage, and this right is wholly unaffected by a decree of foreclosure to which he was not a party. Indeed, the decree, as to him, is simply a nullity. Cutter v. Jones, 52 Ill. 84.

Every case supporting the rule contended for, (which, as before stated, we do not at all question,) proceeds upon the hypothesis that the mortgage under which the foreclosure proceedings were had was a valid and legal mortgage, and if it be conceded that the mortgage executed by the county in this ease is valid, we would have no hesitancy in holding,— if this was the only question in the case,—that appellee has, as is claimed by appellant, a mere right to redeem. But such is not the case. Appellee does not admit the validity of the mortgage, or that he is the purchaser of a mere equity of redemption, but, on the contrary, he insists that by his purchase he acquired the absolute fee simple title to the lands in dispute, and that the so-called mortgage and deed of trust were executed without any power or authority on the part of the county officials, and that they were and are, for that reason, absolutely null and void as against the county and all persons claiming under it, including the appellee; and his right to maintain the present proceeding is placed expressly upon this ground, and, assuming the bonds to have passed into the hands of innocent holders, it is scarcely necessary to add that it can not be maintained upon any other hypothesis, for if it be once admitted the county officials had the requisite power and authority to execute the mortgage and trust deed so as to bind the county, and the bonds secured by them were negotiated for value, then the question becomes one of mere conflicting titles between the parties to this suit, which this court is not permitted to determine under the pretext of removing a cloud from the title of appellee. Phelps et al. v. Schrader et al. U. S. Sup. Ct. Oct. T. 1879; Whitney v. Stevens, 77 Ill. 585; Same case, 97 id. 483.

It is hardly necessary to observe that all persons assuming to act as the official agents of a county or other municipal corporation must have the requisite power or authority for that purpose, otherwise the municipality will not be bound, and every one dealing with them must know, at his peril, the extent of their authority. It is also a familiar doctrine, of general recognition by the courts and text-writers, that counties are political divisions of a State for governmental purposes, only possessing a low order of corporate existence, and for this reason they are generally designated “quasi corporations, ” and are conceded to possess no powers except such as are expressly, or by necessary implication, conferred upon them by the legislative department of government. In conformity with this well recognized principle it was settled at an early period in our judicial history, and the rule has been steadily adhered to ever since, that a county has no power to give away or otherwise dispose of i'ts funds or property for a purpose not authorized by law. Colton v. Hanchett et al. 13 Ill. 615; Perry et al. v. Kinnear, 42 id. 160.

In the light of these well recognized principles let us examine the question whether the county officials of Wayne county were authorized to execute the mortgage and deed of trust through which appellant claims, at the time, in the manner, and for the purpose they did. That such power.is not to be found among their general powers,—if, indeed, they may be said to have any such powers,—is too palpable to admit of serious discussion. Indeed, nothing of the kind is claimed by appellant, but, as we understand it, the power in question is claimed to be derived from the act incorporating the Mt. Vernon Railroad Company, and a vote of a majority of the qualified electors of Wayne county, given and cast at a special election called and held by the proper authorities under that act, and if it can not be thus derived it must be conceded that it does not exist. The 7th section of that act authorizes the county of Jefferson to subscribe to the capital stock of the company, to issue bonds of the county, and to provide for the jiayment of the same by sale or mortgage of the swamp and overflowed lands of the county, and to apply the bonds, or their proceeds, to the payment of the stock so subscribed, and to “make such other disposition of said swamp and overflowed lands, in aid of the construction and maintenance of said railroad, as they deem best for the public interest for said county.” The 8th section then declares that before any such disposition shall be made of the swamp and overflowed lands the same shall be authorized by a majority vote of the qualified electors of the county, and it also provides : “The county court shall prepare a proposition or propositions of the mode or modes, one or more, containing a brief, clear, distinct idea of the plan or plans proposed by them for aiding in constructing of said road, which said proposition shall be printed at large as an election ticket, and the voters may express their will on said proposition by writing ‘Tea,’ and ‘Nay,’ on said ticket,” etc. The 9th section then provides that “any county through which said road may run, and every county through which any other railroad may run, (with) which this road may be joined, connected or intersected, may and are hereby authorized and empowered to" aid in the construction of the same, or of such other road with which it may so connect, and for this purpose the provisions of the 7th, 8th and 9th sections of this act shall extend to, include and be applicable to every such county and every such railroad.”

Now, the simple, plain English of all this is, that upon an affirmative vote authorizing it, tile county of Jefferson, or any county through which the Mt. Vernon railroad should run, is empowered to aid in the building of that road; and in addition to this, any other county having a railroad running through it, which intersects or connects with the Mt. Vernon railroad, is also authorized to aid in the construction of the latter road, or of the one so passing through such county, as it may prefer. So with Wayne county. Assuming there was a railroad running through that county, and intersecting or connecting with the Mt. Vernon railroad, as is claimed there was, but which we find there was not, Wayne county, in that case, would have been authorized to aid in building either of said roads, upon an affirmative vote of the people of the county empowering it to do so. Now, as the Mt. Vernon Kailroad Company had no line of road, either actual or potential, running through-Wayne county, and had no power or authority under its charter to build such a road, it would seem clear the county officials were not warranted in hypothecating or mortgaging the county’s lands to secure the bonds of that company, upon the mere expectation that it would at some future day build and operate a railway, wholly unauthorized by its charter. We say upon a mere expectation, for as the company could not, under its charter, legally' bind itself to build such a road, the county authorities had no right to rely on any inducements held out by the representatives of the company in that direction,— much less had they any right or power to dispose of the county’s lands in the manner we have seen. All the county authorities could lawfully have done, under the circumstances assumed, would have been, upon an affirmative vote of the county to that effect, to have aided in the building of' the Mt. Vernon railroad. Assuming there was a road running through Wayne county, and' connecting or intersecting with that company’s road, they might have done that, but nothing more, so far as the Mt. Vernon Kailroad Company was concerned. But it is not claimed, nor, indeed, could it be, with even a shadow of consistency or truth, that the vote of the county authorized the county board to aid in the construction of that company’s road. The people of Wayne county voted to appropriate these lands as a bonus to any company for building a railroad through Wayne county, and not to secure the construction bonds of the Mt. Vernon Railroad Company, as was attempted to be done. No company has ever built the road contemplated by the vote of the people of Wayne county, or made even a substantial effort to do so, nor has any company authorized to build it ever entered into any valid contract or obligation to do so.

It further appears that at the time of the execution of these" instruments, through which appellant claims, by Wilson and Scott, on behalf of the county, the former was a director in the Mt. Vernon Kailroad Company, and Wilson himself swears the business was not transacted at any general or special term of the county court, and the law is well settled that the members of the county court can only bind the county when duly convened and acting as a board. Here we find two members of the court casually meeting together, and in the absence of the other member, and without any notice to him, executing a mortgage and deed of trust upon all the lands of the county to secure the so-called construction bonds, amounting to hundreds of thousands of dollars, of a railway company located in a foreign county, and in which one of the parties assuming to act for the county was a director. Such a transaction as this can not, in our judgment, be regarded as imposing any legal obligations or liability on the county, or those claiming through it. It further appears, from the testimony of Wilson, that while these bonds were still in the hands of the agents of the railroad company the whole scheme of building the road through Wayne county had been abandoned, and that subsequently, in December, 1862, the county court passed an order directing the commissioners to proceed to sell the swamp lands, just as though these transactions had never occurred. Under these circumstances any one subsequently purchasing the bonds, by the exercise of ordinary care and qirudence would have seen these transactions were illegal in their inception; and moreover, whether illegal or not, that the whole matter had been abandoned, and that the consideration for the instruments in question had failed. The truth is, the execution of the mortgage and deed of trust was unauthorized, and in palpable violation of law, and, as against appellee, all titles to the land in question derived through them must be regarded as void, and a cloud upon appellee’s'title.

Counsel for appellant have pressed upon our attention the decision of the Supreme Court of the United States in Kennicott v. Wayne County, 16 Wall. 452, based upon substantially the same state of facts appearing in the present record, wherein a different conclusion was announced from the one reached in this ease. We readily perceive and concede the inconvenience and embarrassment that may arise from this diversity of holding, and would most cheerfully avoid it if it could be done without sacrificing our own convictions with respect to the rights of the parties, as founded upon an unbroken current of decisions of this court running through a period of many years,—but it can not. As is well known, there is, and for many years past has been, a manifest material diversity, in one respect, in the holdings of the Federal courts and the courts of this State as to the liability of counties and other municipalities on bonds issued by them in aid of railroads or other like enterprises, the former holding, if there is a valid law authorizing the issuing of such bonds upon certain specified conditions, and the corporate authorities, or legally constituted agents of the municipality, whose duty it is to determine whether these conditions have been performed or not, find as a fact the law has been complied with respecting such conditions, and issue the bonds containing recitals to that effect, the municipality will be liable on the bonds in the hands of innocent holders, whether the conditions have been really performed or not; while on the other hand, the courts of this State' have uniformly held there must not only be a valid law authorizing the issuing of the bonds, but also a substantial compliance on the part of the municipal authorities with the requirements of the law, otherwise the municipality will not he hound; that it is the performance of the conditions specified in the law ivhich authorizes the corporate authorities to issue the bonds, and not the recitals which, from ignorance or corrupt motives, they may happen to make with reference to such performance ; that such municipal agents are powerless, to enlarge them own jurisdiction and authority by making a false record, as was done in this case, and by that means bind the municipality. In the light of this diversity of holding it is not difficult to perceive how the Supreme Court reached a different conclusion in the Kennicott case from that reached by us in this; yet even in that case, viewed in the light of the rule which obtains in the Federal courts, as above stated, the soundness of the conclusion therein reached is not at all free from douht. In the first place it was contrary to the conclusion reached by the Circuit Court of the United States. In the second place it was concurred in by only six of the nine judges constituting that court; and lastly, two of the non-concurring judges dissented on the record from the conclusion reached by the majority. Under these circumstances it is certainly going a long ways to ask us to recognize that case as an authority in this. We could not do so without overruling all the previous decisions of this court relating to the question under consideration.

Perceiving no error in the decree below, it is therefore affirmed.

Decree affirmed.

Mr. Justice Dickey,

dissenting:

I concede that a county has no power to give away or otherwise dispose of its funds or property for a purpose not authorized by law; but I think, by the clauses in the charter of the Mt. Vernon Kailroad Company, and by the subsequent act validating the election held in Wayne county, and by the general current of contemporaneous statutes, the General Assembly had recognized the purpose of applying swamp lands, and the proceeds of swamp lands, to the procurement for the counties of better railway facilities, as a proper and legitimate purpose. I think, too, that by the provisions of the charter of the Mt. Vernon Railroad Company the county had power to aid in the construction of that road by pledging its swamp lands for the payment of the construction bonds of that company. The reasoning of Mr. Justice Hunt, speaking for the Supreme Court of the United States, in Kennicott v. Supervisors of Wayne County, 16 Wall. 452, is satisfactory to my mind on that question, and I think it ought to control in this case. It is true, as suggested, that the Supreme Court of the United States holds recitals as to compliance with precedent conditions conclusive when bona fide purchasers have acted on the faith thereof, while this court holds such recitals may be contradicted, and all persons must, at their peril, inquire into the fact of the performance of a condition precedent. I do not see that this makes any difference in this case, as I do not find any proof in the record that the recitals alluded to are not in fact true. I am not aware that this court has ever decided that such recitals are not prima facie true, and govern until shown to be false by proof. While this court is not bound to follow that decision, respect for the opinions of that tribunal, as well as public policy, forbids a different decision, unless we are clearly convinced that such decision is erroneous. Our judicial system is so organized that the title to some of the lands embraced in this mortgage can be settled in the Federal courts, while the title to other of these lands must be decided in the State courts. It will be unfortunate if the law is to be held one way for one supposed owner of part of these lands, and another way for another having precisely the same title. It seems to me better to yield slight differences in opinion in order to have uniformity of decision in both courts.

There is another view of this case which to me is equally satisfactory. The General Assembly, by a variety of special laws, had authorized various counties, by one mode or another, to appropriate their swamp lands, respectively, to the purpose of securing to their people, respectively, railroad facilities. The county of Wayne had been, authorized by the provisions of the Mt. Yernon charter, in certain contingencies and under certain limitations, to appropriate its swamp lands, or the proceeds thereof, to aid in the construction of either the Mt. Yernon road, or the Belleville and Fairfield road, or the Alton, Mt. Carmel and New Albany road. Efforts had been made in one or two ways to secure the object sought, but without success. A like experience had attended the efforts of other counties under special statutes. Contracts, in some cases, had been made. Wayne county had a contract with Yanduzer and his associates, but it had not been performed. In this state of affairs the General Assembly passed the general law of February 14, 1859, entitled “An act for the sale of swamp lands.” This act, without withdrawing the legislative sanction which had already been given, in various acts, to the purpose of procuring additional railroad facilities, as a legitimate purpose to which to apply the swamp lands of various counties, and especially those of the county of Wayne, clothed the county court of every county with the unlimited power to sell its swamp lands at public or private sale, for cash or on credit, or for such securities as the county courts, respectively, might think proper to accept, the proceeds to be subject to the order of the county judges, respectively, for such pwposes as the county courts, respectively, might direct. This language is very broad, and can not properly be held to confine the appropriation of the proceeds to ordinary county expenses. It clearly means something more. It must, I think, be held to embrace any and every purpose which by the General Assembly had been recognized as one to which such lands might properly be applied. This, as we have seen, embraces aid to proposed railroads. Lest a narrower view might obtain, the act declares expressly that “this act shall apply to all counties having special laws in reference to the sale of swamp lands, ” and that nothing in the act should prevent any county court from carrying out any contracts then “existing for the disposal of” its “swamp lands.”

This view, to my mind, fully sustains the power of the county court of Wayne county to make the mortgage and trust deed in question. These instruments were made by the county court of Wayne county. The record so shows. It is not competent by oral evidence to attack this record collaterally, by proving that only two of the members of the court acted,—that it was only a casual meeting, without notice to the other. It is a mistake to say that Wilson was at that time a director in the Mt. Vernon Railroad Company. The instruments were made in April, 1859, and the proofs show that he "was not a director until in December thereafter. It will not do to say these mortgages were abandoned, and the lands sold as though they had not been made. The mortgages were recorded. The bonds were sold to bona fide holders, who had no notice of any abandonment. A failure of consideration does not avail under such circumstances.

I think the equities are with the appellant, and that the decree ought to be reversed and the bill dismissed.