author: Mr. Justice Bailey

text:
    The City of Bloomington v. The Bloomington Cemetery Association.

      Filed at Springfield September 27, 1888.

    1. Boundaries—division lines, by parol agreement. It is competent for the owners of adjoining lands to adopt the line established by a prior survey, as their division line, and if they do so adopt any such line, whether the correct one or not, by unequivocal acts, from which an agreement may be implied, and fence with reference thereto, they will be conclusively bound by their agreement, and thereafter estopped from disputing such line.
    2. While title to real estate can not be transferred by parol, yet the owners of adjoining tracts of land may, by parol agreement, settle and establish permanently a boundary line between their lands, which, when followed by possession according to the line so agreed upon, such fixing of the division line will be binding and conclusive, not only upon them, but upon their grantees.
    3. Dedication—of the proof required. A dedication of private property to public uses will not be held to be established except upon clear and satisfactory proof, either of an actual dedication, or of such acts or declarations as will equitably estop the owner from denying such intention.
    4. Unless a land owner, by some unequivocal overt acts or declarations given of his intention to have a strip thereof included in a street, and thereby inducing the public to use and a city to improve the same as part of the street, he will not be estopped from denying a dedication. Mere non-action will not raise an implication of an intention to dedicate private property to public use, nor will it estop the owner to deny such intention.

      Appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.
    Mr. A. E. DeMange, for the appellant:
    A verbal agreement between adjoining owners, that a certain line shall be the boundary between their possessions, does not make title to any land not embraced within their respective paper or other titles, but simply settles the question of boundary between them, entitling each to possession up to the agreed line. Such possession can not ripen into title until held for twenty years. Plaintiff, under its own evidence, held such possession only from 1858 to 1868, and it is so recited in the judgment, and the court so held in the first proposition. Hence plaintiff’s evidence does not fit the declaration which claims in fee simple, and does not support the judgment. Cutler v. Callison, 72 Ill. 113; Crowell v. Maughs, 2 Gilm. 419; McNamara v. Seaton, 82 Ill. 500; Hubbard v. Stearns, 86 id. 35.
    The boundary between adjoining owners may be settled by parol, but the agreement must be clearly proven, and must have been followed by continuous possession up to the agreed line. Yates v. Shaw, 24 Ill. 369; Darst v. Enlow, 116 id. 475.
    The acts of the party in fencing out the strip and permitting the city to take possession of and improve the property, ought to estop the party from setting up against the city a better claim, if it had one. Chicago v. Wright, 69 Ill. 318; Smith v. Town of Flora, 64 Ill. 95; Dillon on Mun. Corp. (3d ed.) secs. 631, 632; Field v. Carr, 59 Ill. 198.
    Mr. E. M. Prince, and Messrs. Fifer & Phillips, for the appellee r
    When Graves, owning the land on the north side of the half-section line, and McGinn, owning that on the south side, settled and agreed upon the boundary line between their lands, and respectively took possession thereof up to the agreed line, they became estopped from asserting any other or different line as the half-section line. Yates v. Shaw, 24 Ill. 367; Bauer v. Gottmannhausen, 65 id. 499; Kerr v. Hitt, 75 id. 60.
    Such a line is conclusive, not only between the contracting parties, but upon their grantees. Cutler v. Callison, 72 Ill. 115.
    To effect a dedication, there must have been an intention on the part of appellee to dedicate the land to public uses. Marcy v. Taylor, 19 Ill. 636; Rees v. Chicago, 38 id. 323.
    If acts of the appellee are relied on to prove a dedication by way of estoppel, they must be such as are unequivocal, and admit of no other explanation. Gentleman v. Soule, 32 Ill. 280; Kelly v. Chicago, 48 id. 390; Chicago v. Johnson, 98 id. 624.
    Estoppels must be certain to every intent, (1 Herman on Estoppel, 10,) and can only be allowed to prevent fraud and injustice. Thomas v. Bowman, 29 Ill. 429.
   Mr. Justice Bailey

delivered the opinion of the Court: -

This was'an action of ejectment, brought by the Blooming-ton Cemetery Association against the City of Bloomington, to recover a tract of land situate in the county of McLean, and described as follows: Commencing on the half-section line running east and west through section 9, township 23, north, of range 2, east of the third principal meridian, at a point five chains east of the center of said section, being the same point where stood the west end of a fence built about the year 1858 as the boundary line between the lands of Linus Graves and John E. McClun, thence north thirteen feet to a fence built by the plaintiff about the year 1868, thence south-easterly along said fence to a point where- said fence intersects said half-section line, thence west on said line to the place of beginning. From this description it will be seen that the land in controversy is a triangular or wedge-shaped tract thirteen feet wide at the west end and running to a point at the opposite end, and having for its northern boundary a certain fence and for its southern boundary what is claimed to be the half-section line.

The plaintiff, at the' trial, proved title in itself from the United States, through several mesne conveyances, to a part of the west half of the north-east quarter of said section 9 abutting upon said half-section line, and which includes the land in controversy, provided the true location of said line is as the plaintiff claims.

It appears that as early as 1851, competent surveyors who were employed to survey and fix the boundaries of various portions of said section 9, located the center of said section and placed a stone there as a monument to mark the spot. A line drawn from the center of the section as thus fixed to the quarter section corner on the east line of said section, runs along the south line of the land in controversy.. The evidence shows that, for many years subsequent to the year 1851, the quarter-section line thus established was recognized, not only by the surveyors, but by the various property owners whose land abutted thereon, as the true line. In 1855 or 1856, Linus Graves, the plaintiff’s immediate grantor, was the owner of the land in the west half of the north-east quarter of said section now owned by the plaintiff, and John E. McClun was the owner of the adjoining land in the west half of the southeast quarter of said section. Graves, as the evidence tends to show, being about to erect a fence on the line between said tracts, had a conversation with McClun in respect to the location of the line, and it was thereupon understood and agreed between them that their division line was and should be the line theretofore established by the surveyors, and Graves, accordingly erected a high board or plank fence along said line and maintained the same as a division fence until some time in the early part of the year 1869. In December, 1868, Mc-Clun platted his land south of the quarter-section line into lots, blocks and streets, thus forming what is known as McClun’s Third Addition to the city of Bloomington. By said plat the land immediately adjacent to the quarter-section line was laid out as a street fifty feet in width, known as Lincoln street, the quarter-section line being the north line of the street. Not long after the addition ivas platted, Graves took down his line fence and re-erected it on a line farther north. The witnesses differ as to the exact distance the fence was moved, but the preponderance of the evidence seems to show that the newline was thirteen feet north of the old at the west end, and run thence so as to intersect the old line at or near the south-east -corner of the west half of the north-east quarter of the section.

The evidence as to Graves’ motives for changing the location of the fence is somewhat conflicting. His explanation of the change is, that the fence having become out of repair, he was much annoyed by people tearing off the boards and ■carrying them away at that point, and that to lessen such interference with the fence he set it back thirteen feet at the west end, and intended to put an extra fence outside. Other witnesses testify that he said at the time that he was changing the location of the fence for the purpose of straightening his line.

- Lincoln street does not seem to have been very much traveled prior to 1884, and there is no evidence that the city of Bloomington attempted to grade or improve it until that year. During that and the following years the municipal authorities of the city undertook to grade the street, and in doing so they seem to have assumed that the fence as it then stood was on the north line of the street, and graded the street accordingly. A brick sidewalk was constructed on the south side of the street and so located as to leave the street only fifty feet wide measuring to the fence, and a gutter was dug on the north side of the street parallel with the fence and about seven feet therefrom. Buildings were erected and other improvements made on the south side of the street and located with reference to the line of the sidewalk.

Since the present controversy arose, new surveys of section 9 have been made which locate the center of the section a sufficient distance north of the point where it was-located by the earlier surveys, to bring the quarter-section line several feet north of the fence as it now stands. This disagreement between the old and new surveys i.s to be explained in this way: The quarter-section corner on the north side of the section, as established by the government surveyors, is located for some reason a considerable distance south of a direct line drawn ' between the north-east and north-west corners of the section. The evidence tends to show that, hy the system of surveying universally prevalent in McLean county up to a comparatively ' recent period, the center of a section, especially where there ■ was any irregularity in the external boundary of the section, as in this case, was located at a point equi-distant from the opposite quarter-section corners, thus distributing the excess or deficiency in the section equally among the several quarter-sections. The more recent surveys were made in pursuance of the provisions of the act of Congress now in force which directs that “the boundary lines which have not been actually run and marked shall be ascertained by running straight lines, from the established corners to the opposite corresponding corners.” Rev. Stat. of U. S., sec. 2395. Of course the latter mode of surveying necessarily located the center of section 9 north of the point at which it was located by the former mode, by ' one-half the distance between the quarter-section corner on the north line of the section and a straight line drawn between the north-east and north-west corners of the section.

If it be conceded that the earlier surveys were erroneous, it was competent for the adjoining land owners to adopt the line which those surveys established as their division line, and after having done so by unequivocal acts from which an agreement may be implied, and especially, as the evidence tends to show in this case, after an express agreement adopting such division' .line, they are conclusively bound by their agreement, and are estopped from insisting upon another and different line. It has been held that when parties agree upon a boundary line and enter into possession according to that line, they are thereby concluded from afterwards disputing that it is the true line, even where the statute of limitations has not run. Yates v. Shaw, 24 Ill. 367; Bauer v. Gottmanhausen, 65 id. 499; Kerr v. Hitt, 75 id. 51; Crowell v. Maughs, 2 Gilm. 419; Smith v. Hamilton, 20 Mich. 433. “While it may be regarded as settled that the title to real estate can not be transferred by parol, yet it is a principle well established, that the owners of adjoining tracts of land may, by parol agreement, settle and establish permanently a boundary line between their lands, which, when followed by possession according to the line so agreed upon, is binding and conclusive, not only upon them, but upon their grantees.” Cutler v. Callison, 72 Ill. 113.

But it is insisted that the city obtained title to the land in question by dedication. A dedication of private property to public uses will not be held to be established except upon clear and satisfactory proof, either of an actual dedication, or of such acts or declarations as should equitably estop the owner from denying such intention. McIntyre v. Storey, 80 Ill. 127; City of Chicago v. Johnson, 98 id. 618.

There is no evidence, or at least none which is at all clear or satisfactory, that Graves, at the time he moved his fence, intended to dedicate or abandon to the public the strip of land he thus excluded from his inclosure. If he moved his fence as the testimony of some of the witnesses would seem to indicate for the purpose of straightening his line, his intention, so far at least as the question of dedication is concerned, was altogether equivocal. If however his own statement of his motives is to be accepted, every possible implication of an intention to dedicate the land to the public is rebutted.

But it is said that he, and his grantee, the plaintiff, should be estopped to deny a dedication because of the public user , of the land in question as a part of the street without objection on their part. Had the plaintiff or its grantor, by any unequivocal overt acts or declaratións, given evidence of an intention to have the land in question included in the street, and thereby induced the public to use and the city to improve it as a part of the street, possibly the doctrine of estoppel might have been invoked. No such acts or declarations however are shown. All that is proved is mere non-action on their part, or, in other words, a mere omission to assert their title as against the public. Mere non-action will not raise an implication of an intention to dedicate private property to public use, nor will it estop the owner to deny such intention.

The court below found the issues for the plaintiff and gave judgment accordingly, and we are of the opinion that the find-' ing and judgment are sustained by the evidence. The judgment will accordingly be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Baker

license: Public Domain

text:
    David E. McGinnis v. Thomas Fernandes.

      Filed at Springfield, November 14, 1888.

    1. Ejectment—deed as a mortgage—whether available in defense— remedy in equity. In an action of ejectment by the grantee in a deed absolute in form, against the grantor, the defendant can not show in defense that his deed was in fact a mortgage, only. In such case the defendant’s remedy is in equity, where he may enjoin the action at law, and show the true character of the deed.
    2. Same—as between landlord and tenant—notice to quit—demand of ' possession. Where a defendant in ejectment, who is_ a tenant of the plaintiff, repudiates the tenancy and claims title in fee, such action on the part of the tenant will'dispense with the necessity of a notice to quit, and the landlord may recover in ejectment, without any previous demand of possession. The saíne rule applies when the title claimed by the defendant is merely an equitable one.

      3. Statute oe Frauds—verbal contract—sale of land. A verbal contract within the condemnation of the Statute of Frauds, as, for the sale of land, can not be enforced in any way, either directly or indirectly, and can not be made either the ground of a demand or the ground of a defense.
    4. Instruction—must be based on evidence. An instruction based upon supposed facts the only evidence of which has been excluded from the jury, is properly refused.
    Appeal from the Circuit Court of Sangamon county; the. Hon. James A. Creighton, Judge, presiding.
    .Messrs. Gross & Broadwhll, and Mr. John F. Barrow, for the appellant:
    Ejectment will not lie against the occupant of land so long as he is lawfully in possession. Cobb v. Lavalle, 89 Ill. 331; Kilgour v. Gockley, 83 id. 112; Railroad Co. v. Knox College, 34 id. 202.
    When the grantor remains in possession of the premises, all persons purchasing from the grantee are chargeable with notice of the grantor’s rights. White v. White, 89 Ill. 460.
    A purchaser in possession, before default on his part, can ■ not be ejected. Prentice v. Wilson, 14 Ill. 91; Railroad Co. v. Hay, 119 id. 503; Stow v. Russell, 36 id. 36.
    When a vendee is in possession under a verbal contract, he will not be ousted on the ground of a void contract. The. Statute of Frauds can not be taken advantage of by one party to commit a fraud upon another. Harrow v. Johnson, 3 Metc. 578.
    It was proper, even at law, to show that the deed was in fact only a mortgage. Tillson v. Moulton, 23 Ill. 656; West v. Frederick, 62 id. 191; Delahay v. McConnel, 4 Scam. 157.
    Messrs. Greene & Humphrey, for the appellee:
    In ejectment the legal title must prevail, and no equitable title can be shown in defense. 2 Greenleaf on Evidence, sec. 331; Adams on Ejectment, 32; Wales v. Bogue, 31 Ill. 464;
      Franklin v. Palmer, 50 id. 202; Rountree v. Little, 54 id. 323; Fleming v. Carter, 70 id. 286; Finlon v. Clark, 118 id. 32; Johnson v. Watson, 87 id. 535 ; Oldham v. Pfleger, 84 id. 102.
    A verbal contract in relation to the purchase of land, and not to be performed within a year, is within the Statute of Frauds, and void. Comstock v. Ward, 22 Ill. 248; Wheeler v. Frankenthal, 78 id. 124.
    . - A verbal contract within the Statute of Frauds can not be enforced in any way, directly or indirectly, whether by action or defense. Browne on Frauds, sees. 122, 131, 133.
    When a tenant disputes his landlord’s title, no notice to quit is necessary. Herrell v. Sizeland, 81 Ill. 457; Jackson v. Deyo, 3 Johns. 431.
   Mr. Justice Baker

delivered the opinion of the Court:

This was a suit in ejectment, prosecuted by Thomas Fernandes, appellee, against David E. McGinnis, appellant, wherein the plaintiff recovered judgment for the possession of 133j-acres of land in Sangamon county.

On and prior to the 23d day of April, 1884, appellant was . the .owner in fee of the land in controvery, and he executed to William W. McGinnis a warranty deed of that date.for the same, and by an arrangement between the parties he received the benefit of the consideration money by having it applied upon an indebtedness of his to the Springfield Marine Bank.

. William W. McGinnis, by deed dated February 27, 1885, conveyed the land to Henry C. Latham, in trust, with full power to sell and convey the same, either at public or private sale, and apply the proceeds to the purposes of the trust. By a warranty deed of the date of October 29, 1885, Latham, the trustee, sold and conveyed the land to appellee. The appellant, alter the execution of his deed of the date of April 23, 1884, remained in the possession of the land, and cultivated the same. He paid, in the spring of 1885, a certain sum of money to Latham, and in February, 1886, paid to him a further sum of $579.87. Latham claims these several sums of money were collected as the-rents due for 1884 and 1885, and appellant claims these moneys were payments made upon the verbal agreement hereafter mentioned.

Appellant offered, upon the trial, to prove that at the time the warranty deed to William W. McGinnis was made and given, there was an oral agreement between him and said William W. McGinnis, that appellant should have the right to redeem the land by paying a sum of money equal to $50 on the acre of the land, and interest at the rate of eight per cent per annum on the same, and that he was to have five years ' to make the payment in, by paying the principal, and interest at that rate for five years. Appellant also offered to prove that the deed was simply delivered as security, and was therefore to be treated as a mortgage, and further, that he had complied with that agreement so far as he had anything to do with compliance, and that he took and remained in possession under such agreement. The court refused to allow this proffered testimony to go the jury, and appellant excepted.

The action of the court in refusing to admit this testimony was clearly right. It is somewhat uncertain, from the offer made and the argument of counsel, whether the contention of appellant is that the relation between himself and William W. McGinnis was that of mortgagor and mortgagee, or that of vendee and vendor. If we assume his claim to be, that the deed, although absolute upon its face, was in fact a mortgage, then the case of Finlon v. Clark, 118 Ill. 32, is an authority directly in point that the refusal of the court to admit the testimony was not erroneous. It was there held by this court, that in ejectment by the grantee of a deed absolute on its face, against the grantor, the deed can not be shown to be a mortgage, only,—that the remedy of the grantor, if he has any, is in equity, and that he may there enjoin the action at law, and show the true character of the deed. If, on the other hand,. the claim of appellant is, that he was the vendee, and William W. McGinnis the vendor, of the land, under an executory contract for the sale of such land, and that he, appellant, is in possession under such contract, then, as the contract which he sought to prove for the purpose of establishing that relationship was not in writing, it was therefore obnoxious to the Statute of Frauds. The alleged agreement was a verbal contract for the sale of an interest in lands, and by its supposed terms it might have been performed at any time within five years from the making thereof. The well settled rule of the law is, that a verbal contract within the condemnation of the Statute of Frauds can not be enforced in any way, either directly or indirectly, and can not he made either the ground of a demand or the ground of a defense. This doctrine was fully recognized and followed by this court in the ease of Wheeler v. Frankenthal & Bro. 78 Ill. 124. Such a' contract can not be made-available, even in a collateral and incidental .manner. Carrington v. Roots, 2 M. & W. 248.

It is further urged, that the trial court erred in refusing to' instruct the jury, that if they believed that appellant was in possession of the land in controversy as a purchaser, and had never been put in default by notice to quit, then they should find in his favor. The» only evidence upon which such an instruction could have been based, had been excluded by the court, and it was therefore properly refused.

The refusal of the court to give the second instruction asked by appellant is also assigned as error. The substance of that, instruction was, that if Latham, at the time he controlled the-land in question, recognized appellant as his tenant, and collected rent from him, then appellee could not" recover without-the evidence showed either a termination of the lease by its. terms, or a notice to quit. The action of the court in refusing-this instruction was not erroneous. The rule is, that where a defendant in ejectment repudiates a tenancy, and claims a title in fee, he dispenses with the necessity of a notice to quit-This rule has been applied by this court in a case where, as in this case, the title claimed by the defendant was not a legal fee simple title, but a mere equitable title. Herrell v. Sizeland, 81 Ill. 457.

The instructions given at the instance of appellee were substantially correct.

We find no error in the record. The judgment is affirmed.

Judgment affirmed.


author:
Mr. Justice Bailey
      Mr. Justice Magruder,

text:
    The Illinois Central Railroad Company v. Stephen Houghton et al.

      Filed at Springfield September 27, 1888.

    1. Conveyance—what estate passes—whether the fee. A conveyance of a strip of land on each side of a railway, for the expressed purpose of constructing, maintaining and operating thereon a single or double track railroad, with all its necessary appurtenances, etc., to have and to hold the same to the company, it successors and assigns forever, “for all lawful uses and purposes incident to a full and indefeasible title in fee simple,” etc., while it may not pass an estate in fee, yet so far as the right of possession for railroad purposes is concerned, the estate conveyed has most of the qualities of a fee. Under such a deed the right of possession conveyed is exclusive, and wholly inconsistent with the subsequent possession of the land, or any part of it, by the grantor.
    2. Limitation—twenty years’ adverse possession—and herein, what constitutes an adverse possession. The hostile possession of land under claim of title, when such possession is inconsistent with the owner’s title, constitutes an adverse possession, and when such possession continues for twenty years, the owner of the title will be barred from his action for the recovery of such land.
    3. To constitute an adverse possession sufficient to defeat the right of action of the party who has the legal title, the possession must be hostile in its inception, and so continued without interruption for the period of twenty years. It must be an actual, visible and exclusive possession, acquired and retained under claim of title inconsistent with that of the true owner. It need not, however, be under a rightful claim, or even under a muniment of title.

      4. Nor is it essential that there should be proof that the party in possession made oral declarations of claim of title, but it will be sufficient if the proof shows that he has so acted as to clearly indicate that he did claim title. The occupation and use of land is the ordinary mode of asserting a claim of title, and no words can more satisfactorily assert such a claim.
    Appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.
    Messrs. Williams & Capen, for the appellant:
    Where property is not subject to taxation, the seven years’ statute of payment of taxes under color of title can not apply. Wisner v. Chamberlin, 117 Ill. 568.
    No other taxes than those fixed by its charter can be assessed against the property of the Illinois Central Railroad Company. Railroad Co. v. County of McLean, 17 Ill. 291; Const. 1870, section regarding Illinois Central railroad.
    • The deed from Walker to the -Parks estops the Parks from asserting title contrary to that deed. This is so elementary as to not need the citation of authorities to support it.
    The owner of the fee over which he grants an easement has the right to the use of the land in any way that, does not hinder the use of the easement, and no act of the owner of the ' fee by such uses can be construed into a claim adverse to the , easement. Cutting timber, grazing or 'cultivating the soil, are all acts that the owner of the fee has a right to do, provided ' they do not hinder or disturb the use of the easement. Town of Oldtown v. Dooley, 81 Ill. 258; Angell on Highways, sees. 302-304, et seq; Washburn on Basements, chap. 2, *158, et seq; Railway Co. v. Hartley, 67 Ill. 439; Railway Co. v. Railroad Co. 100 id. 21; Wiggins Ferry Co. v. Railroad Co. 94 id. 83.
    A purchaser of the fee, taking possession under a deed, with reservations contained in the deed, is presumed to hold possession in accordance with the terms of his deed; and to prove a possession adverse to the terms of the deed by acts, such acts must be clear and unequivocal, and wholly inconsistent with the terms of the deed.
    Acceptance of a deed, and taking possession under it, estops the grantee from asserting title different to the terms of his deed. Town of Princeton v. Templeton, 71 Ill. 68; Pinckard v. Milmine, 76 id. 453; Warren v. Jacksonville, 15 id. 236.
    Mr. A. E. DeMange, for the appellees:
    A right of way is an easement, an incorporeal hereditament, conferring no interest in the land. Garrison v. Rudd, 19 Ill. 563.
    An easement or servitude is an incorporeal right affecting lands which belong to another, and is incapable of possession. The land charged with the servitude is in the possession of the owner. The use or exercise of the right of way gives no. right of possession. 2 Washburn on Eeal Prop. (2d ed.) p. 85.
    Ejectment, at common law, lies for the recovery of the possession of real property in which the plaintiff has the legal interest, and a possessory right not barred 'by the Statute of Limitations. It does not lie to recover an incorporeal hereditament. 1 Chitty’s PI. (13th Am. ed.) pp. 186, 187.
    A right of entry under title in fee simple, fee tail, copy-hold for life or for years, will support an action of ejectment. But a mere right to a standing place or to use land will not. 1 Chitty’s Pl. (13th Am. ed.) p. 188; 2 East, 190.
    If, as appellant contends, the Walker deed conveyed a mere easement, then appellant’s abandonment and non-user for twenty years, with adverse possession in the owner of the soil and his grantees, extinguished the easement. Peoria v. Johnston, 56 Ill. 51, and cases cited; Corning v. Gould, 16 Wend. 529; Village of Winnetka v. Prouty, 107 Ill. 225; 138 Mass. 225; Pickett v. Dowdall, 2 Washb. 107; Holmes v. Railroad Co. 8 Am. Law. Reg. 716.
    As to the Limitation law as a defense, see Schoonmaker v. Doolittle, 118 Ill. 605; Schneider v. Botsch, 90 id. 577; Weber
      v. Anderson, 73 id. 439; Kerr v. Hitt, 75 id. 59; Noble v. McFarland, 51 id. 230.
   Mr. Justice Bailey

delivered the opinion of the Court:

This was an action of ejectment, brought by the Illinois Central Railroad Company against Stephen Houghton and James Houghton, to recover two strips of land, each fifty feet in width, the one seventy and the other eighty rods in length, being a part of section 22, township 23, north, of range 2, east, in McLean county, and adjoining, the one on the east and the other on the west, the strip of land one hundred feet in width, heretofore occupied by the plaintiff as its right of way. The trial, which was had before the court without a jury, resulted in a finding and judgment in favor of the defendants, and the plaintiff brings the record to this court by appeal.

On the 29th day of April, 1852, as seems to be conceded, William Walker was the owner in fee of the eighty-acre tract which includes the two tracts in controversy. The plaintiff’s proof of title consists of a deed executed by said Walker and wife, dated April 29, 1852, conveying to the plaintiff, “for the purpose of constructing, maintaining and operating thereon, a single or double track railroad, with all its necessary appurtenances, and for all uses and purposes connected with the construction, repair, maintenance and complete operation of said railroad, the right of way over and through said tract,” said right of way to comprise land of the width of one hundred feet on each side of said railroad: To have and to hold the same to the plaintiff and its successors and assigns forever, “for all lawful uses and purposes incident to a full and indefeasible title in fee simple, or in any way connected with the construction, preservation, occupation and sole enjoyment of said road and lands, of the width aforesaid.” The deed also contained a covenant on the part of the plaintiff to erect and maintain such lawful fences as would divide the lands occupied by the plaintiff from the adjoining lands on each side, and as far as possible prevent intrusion upon or passage across the lands and railroad occupied by the plaintiff.

It appears that the plaintiff, shortly after the execution of this deed, erected substantial post and board fences so as to inclose its right of way of the width of only one hundred feet, leaving the two strips of land now in controversy outside of its fences. Walker joined his farm fences with the fences inclosing the railroad, and occupied and used said two strips of land the same as he did the residue of his farm, and the evidence tends to show that he did so claiming to be the owner. Said land was partly under cultivation, partly in grass and in part covered with timber, and Walker cut some of the timber and grazed and cultivated the land not covered with timber, and continued in possession of the land as a part of his farm until November 28, 1855, at wrhich time he conveyed it to George and James Park, said conveyance being by its terms made “subject to the right of way of the Illinois Central Eailroad Company, as heretofore deeded by said party of the first part to said railroad company.”

George and James Park went into possession under said deed and used the land the same as Walker had done. James Park died, and John E. Park, his sole heir-at-law, conveyed his interest in the farm to George Park, by deed dated March 18, 1869. George Park continued in possession until 1871 or 1872, when he died, leaving several heirs. On the 28th day of June, 1873, the administrator of George Park sold and conveyed that portion of the farm west of the railroad to Stephen Houghton in pursuance of an order of the county court of McLean county, and prior to making such sale the administrator had the land surveyed up to the railroad fence and sold it all to Houghton by the acre. Houghton and his son James took immediate possession of the- land under said deed, and have ever since been in possession of the same claiming to own it. They have also during the same time been in possession of the strip of land on the east side of the railroad as tenants of the heirs of George Park, having rented that portion of the farm east of the railroad of them.

The railroad fences remained where they were originally built from 1853 down to some time in the year 1886. On several occasions during that time fire from the railroad engines burned down portions of said fences and also destroyed the cross fences and crops on the land in controversy, and the plaintiff on each occasion rebuilt the railroad fences and paid the adjoining proprietors the damages done upon said lands. In 1886 the plaintiff took down said railroad fences and erected new fences fifty feet farther from its railroad track, thus entering and taking possession of the land in controversy. Stephen Houghton thereupon brought his action of forcible entry and detainer and recovered possession of said land, and then the plaintiff brought this suit.

By the declaration the plaintiff claims an estate in fee, and as the evidence tends only to establish the plaintiff’s title to an easement in the premises sued for in the nature of a right of way, it is urged that no recovery could be had, upon the principle that where a plaintiff claims in fee he can not recover a less estate. We do not deem it necessary to determine whether this rule applies, since there is another ground upon which the judgment must be affirmed which seems to us to be entirely satisfactory.

The fact is established beyond controversy that, from the time the railroad fences were built, down to the date of the plaintiff’s entry in 1886, a period of about thirty-three years, the defendants and the grantors through whom they derived their title, were in the actual, continuous, visible, open and exclusive possession of the land sued for; and it seems too clear for serious doubt that such possession was adverse to the plaintiff.

The deed under which the plaintiff claims required the plaintiff to erect and maintain fences dividing its right of way from the adjoining lands, and it will he presumed that the fences were erected in pursuance of that requirement. Walker continued in possession up to the fences, claiming them as his boundary lines, and claiming to have established such lines by compromise with the plaintiff. The deed from Walker to George and James Park, it is true, was made subject to the plaintiff’s right of way as deeded by Walker to the plaintiff, but they took and held possession precisely as Walker had done, up to the fences which Walker claimed as his boundary lines. Park’s administrator sold the land on the west side of the railroad by metes and bounds, making the fence the boundary line, and since 1873 the defendants have been in possession of the lands on both sides of the railroad claiming title up to the railroad fences.

To constitute an adverse possession sufficient to defeat the right of action of the party who has the legal title, the possession must be hostile in its inception, and so continued without interruption for the period of twenty years. It must be an actual, visible and exclusive possession, acquired and retained under claim of title inconsistent with that of the true owner. It need not, however, be under a rightful claim, nor even under a muniment of title. It is enough that a party takes possession of premises claiming them as his own, and that he holds possession for the requisite length of time, with the continual assertion of ownership. Turney v. Chamberlain, 15 Ill. 271. It is not essential however that there should be proof that the party in possession made oral declarations of claim of title, but it is sufficient if the proof shows that he has so acted as to clearly indicate that he did claim title. No mere words could more satisfactorily assert a claim of title than a continued exercise of acts of ownership over the property for a period of more than twenty years. Using and controlling property as owner is the ordinary mode of asserting a claim of title, and it is indeed the only proof of which a claim of title to a very large proportion of property is susceptible. James v. Indianapolis and St. Louis Railroad Co. 91 Ill. 554.

But it is insisted that the plaintiff’s right of way, being a mere easement, the fee remaining in Walker and his grantees subject to the easement, the possession of Walker and his grantees is to be regarded as being held under their title and therefore not hostile to the plaintiff so as to constitute it an adverse possession. To this view we are unable to yield our assent. If the right of way of a railroad company were an easement the proper enjoyment of which was consistent with the possession and occupancy of the land by the owner of the fee, such possession and occupancy might be regarded as a mere exercise by the owner of the servient estate of his property rights, subject and in subordination to the easement. Such, however, is not the character of the easement which a railroad company acquires in the land covered by its right of way. As said in Hazen v. B. and M. Railroad Co. 2 Gray, 574, “the right acquired by the corporation, though technically an easement, yet requires for its enjoyment a use of the land, permanent in its nature, and practically exclusive.” The same view was taken by the Supreme Court of Vermont in Hurd v. R. and B. Railroad Co. 25 Vt. 116, where, in discussing the interest obtained by a railroad company in its right of way by condemnation, the court say: “If that interest is regarded as a mere servitude or easement, the land nevertheless becomes so far the property of the corporation that their right is exclusive in its use and possession during its existence, as much so as that of the owner or occupant of the adjoining land. Those from whom the land was taken retain no right to its use or occupation for pasturage or otherwise. The object for which it is appropriated and used is wholly inconsistent with such right on the part of the former owner, as well as with that security to themselves and safety to the public which is necessary to enable the corporation to enjoy the franchises granted by their charter.” In Jackson v. R. and B. Railroad Co. 25 Vt. 150, the same court, speaking through Mr. Chief Justice Ebdfibld, says: “The railway company must, from the very nature of their operations, in order to the security of their passengers, workmen, and the enjoyment of the road, have the right at all times to the exclusive occupancy of the land taken, and to exclude all concurrent occupancy by the former owners jn any mode and for any purpose.” T. and B. Railroad Co. v. Potter, 42 Vt. 265; K. C. Railway Co. v. Allen, 22 Kan. 285.

In Illinois Central Railroad Co. v. Godfrey, 71 Ill. 500, this court held that the right of way was the exclusive property of the railroad company, upon which no unauthorized person had a right to be for any purpose; and in the opinion of this court in C. and M. Railroad Co. v. Patchin, 16 Ill. 198, it is said: “I presume the right to the land upon which railroads are built is not strictly analogous to the easement of the pubHe in highways, leaving the fee in the owner of the soil, but is an absolute ownership in fee for railroad purposes.”

While we are not disposed to hold that the deed from Walker to the plaintiff conveyed to the plaintiff an estate in fee in the right of way, it is clear that it conveyed an estate which, so far as the right of possession for railroad purposes is concerned, had most of the qualities of the fee. The right of possession thereby conveyed was exclusive, and was wholly inconsistent with the subsequent possession of the land or any part of it by the grantor or his assigns for purposes of grazing or agriculture, or as a part of the farm to which it originally belonged.

The possession of Walker and Ms assigns, being wholly inconsistent \rith the plaintiff’s title, and having been held under a claim of title on their part, has been hostile, and has constituted an adverse possession, and such possession having been continued for more than twenty years, the plaintiff’s right to bring its action for the recovery of said lands is barred by the statute. The finding of the court was therefore in accordance with the evidence, and the judgment must be affirmed.

Judgment affirmed.

Mr. Justice Magruder,

dissenting: I can not concur in all that is said in this opinion. The doctrine, that the interest of a Bailroad Company in its right of way is a sort of ownership in fee, is too broadly stated. Many of' the cases, and,. , among others, the case of C. and M. R. R. Co. v. Patchin, 16 Ill. 198, which was decided in 1854, have no application to- , property condemned for right of way under our present constitution of 1870. The 13t-h section of the Bill of Bights, (Cons. 1870, Art. 2, sec. 13,) expressly provides that “the fee of land taken for railroad tracks, without consent of the owners thereof, shall remain in such owners, subject to the use for which it is taken.”


author: Mr. Justice Scott

text:
    Calvin H. Frew v. Asa H. Danforth.

      Filed at Springfield June 15, 1888.

    Amendment of the record-—after the term. Before the record of a judgment- can be amended after the term at which the judgment was. rendered, there must be something to amend by, otherwise no amendment can be allowed.
    Writ of Error to the County Court of Ford county; the- ' Hon. Hugh P. Beach, Judge, presiding.
    Mr. Calvin H. Frew, pro se :

    Section 2, of chapter 7, of the Statute of Amendments and Jeofails, aside from the common law, authorized the county ' court to amend its own defective judgment.
    Every court of record has, at common law, the power to-'amend its record, so as to conform to the fact. 1 Am. and !Eng. Encyclopaedia of Law,.p. 553, par. 6.
    After notice to the opposite party, (as "was done in this case,)- . amendments may be made at any time. Glasscock v. Glasscock, 8 Mo. 577.

      The old notion that the record remains in the breast of the court only till the end of the term, has yielded to necessity, ' convenience and common sense. Rhoades v. Commonwealth, 15 Pa. St. 276.
    Mr. J. W. Dougherty, for the appellee.
   Mr. Justice Scott

delivered the opinion of the Court:

This proceeding was commenced by Calvin H. Frew, by petition to the county court of Ford county, to amend a record of a judgment for taxes or special assessment remaining in that court against lands claimed to be owned by Asa H. Dan-forth. The alleged owner was made defendant, and was served with notice of the application. The amendment asked to be made to the record is, that certain blanks should be filled so as to show the judgment was rendered for the correct amount.

No sufficient reason is shown for allowing the desired amendment. Before a record can be amended after the close of the term at which the judgment was rendered, there must be some-tiling to amend by, otherwise no amendment can be allowed. In the case of Church v. English, 81 Ill. 442, cited by counsel, all the amendments allowed were made upon an inspection of the judge’s minutes, entered upon the docket at the time, and in accordance therewith. But here there is nothing shown by which the court could amend its record. The clerk of the court, who made up the record after judgment was entered, testified: “A list of lands against which judgment is asked, is prepared by the collector. He figures the costs and interest. The amount of judgment asked for is put down by the collector. I had no means of knowing except by getting it from him, and he did not furnish it.”

There being nothing shown by which the court could direct its record to be amended in accordance with the prayer of the petition, its refusal to allow any amendment was correct, and must stand.

Judgment affirmed.


text:
    Emma L. Magill et al. v. The DeWitt County Savings Bank.

      Filed at Springfield June 15, 1888.

    1. Subbogation—creditor of mortgagor—bringing into court the ■ amoimt of the mortgage—subrogation to rights of mortgagee. Where a creditor of a mortgagor of chattels is compelled, by an order of court in which he has filed a bill, to bring into court the amount secured by the mortgage, and the mortgagee, by leave of the court, withdraws the same, then, even though such order was erroneously made, the creditor will have the right, in equity, to be subrogated to the rights of the mortgagee under the mortgage.
    2. Chattel mobtgage—purchaser from mortgagor—creditors—of their relative rights. If the owner of chattels which he has mortgaged, sells the same subject to the mortgage, and the purchaser recovers their full value in an action against the sheriff, who has levied upon and sold the same under execution against the mortgagor, such purchaser, as against the mortgagee, can not retain any more of the proceeds of his recovery than the excess over the sum due on the mortgage.
    3. If a creditor of a mortgagor has his execution levied upon the mortgaged chattels, and the same are sold, and an action is brought against the sheriff by a purchaser from the mortgagor, who recovers judgment for the full value of the property, such recovery will be conclusive that such execution creditor has no right to hold any portion of the mortgaged property by virtue of his execution.
    Appeal from the Appellate Court for the Third District;—■ hoard in that court on appeal from the Circuit Court of DeWitt county; the Hon. Lyman Laoey, Judge, presiding.
    In September, 1883, one DeLand borrowed of John Warner $2700, for which he gave his note, payable in six months, with his daughter, Emma L. Magill, and W. H. Wheeler, as sureties, secured also by a chattel mortgage on a lot of mules. On November 30, 1883, DeLand, on a settlement, was found to be indebted to his daughter, Mrs. Magill, in the sum of $16,000, for which sum he gave her his note, and at the same time he sold and delivered to her the mules, subject to the Warner mortgage, the proceeds of which, after paying the mortgage debt, were to be applied on his note, and she, through her agent, took immediate possession of the mules.
    The DeWitt County National Bank having, in December, 1883, recovered a judgment for $4765.80 and costs, against DeLand and others, on January 17, 1884, caused its execution to be levied upon the mules, and offered Warner, the mortgagee, to pay him the amount of his note and mortgage if he would assign the same to the bank, which he declined to do, whereupon Warner sued out a writ of replevin for the mules, against the sheriff. Before the execution of this writ, the bank sued out an injunction restraining any further steps being taken to execute the writ of replevin, the bill setting up the facts, and praying that Warner be compelled, on payment, to deliver to the bank the note and mortgage, and the mules were sold, under the execution, for $3878, which was paid to the bank, less the costs.
    On January 28, 1884, Mrs. Magill, as the owner of the mules, brought replevin against the sheriff to recover their, possession, but the coroner refused to execute the writ on account of the previous injunction. After the sheriff’s sale of the mules, the writ of replevin was returned served on the sheriff, and that the mules could not be found, and Mrs. Magill thereupon filed her declaration in trover against the sheriff. On June 24, 1884, she recovered judgment against the sheriff for $3955.50.
    On August 28, 1884, the bank filed its supplemental bill, setting up the recovery by Mrs. Magill against the sheriff, and asking that Warner be compelled to accept the tender made to him. On the following day, on the motion of Warner, the bank was ordered to deposit with the clerk of the court the $2700 before mentioned. On September 2,1884, by order of court, this money was paid by the clerk to Warner. The bank then asked for an order that the note and chattel mortgage be turned over to it, which was denied by the court.

      In November, 1884, the bank amended its bill, by making the sheriff, Wheeler and Mrs. Magill parties, and in March, ■ 1885, Wheeler and Mrs. Magill answered the bill. The judgment of Mrs. Magill having been collected of the late sheriff, she was, on February 7, 1887, paid the sum of $4575.92 in full of the judgment, which fact was shown by a supplemental bill of the bank. ■
    On the hearing of the bills, the court entered a decree that ' the bank be subrogated to all the rights and privileges of • Warner in and to his mortgage, so far as the lien on the prop- ’ erty was concerned, and that as to that, the bank stand in his place and stead, the sanie as if he retained the same, and that the mortgage on the mules, and the proceeds thereof, be held ■ to subsist and exist on the proceeds of the same in the hands of Mrs. Magill, and requiring her to pay the bank, within . thirty days, $3120.75, with interest at six per cent thereon ' from the date of the decree; and that upon payment thereof, . the note and chattel mortgage be canceled and delivered to her, and that on default of such payment, execution issue for the same, and that the bank pay all the costs of the proceeding. Appellants appealed from this decree to the Appellate ■ Court, and on its affirmance of the decree, appealed to this court.
    Messrs. Moore & Warner, for the appellant:
    The original bill being filed in the circuit court of DeWitt ■ county for the purpose of restraining or staying the prosecu- ' tion of a suit in the Macon circuit court, and for the purpose of restraining an officer of the last mentioned court from executing its process, the DeWitt circuit court did not have jurisdiction, and jurisdiction could not be given it by the action of any of the parties to the cause. Bev. Stat. chap. 69, sec. 4; . Yates v. Batavia, 79 Ill. 500 ; Harris v. Pullman, 84 id. 20.
    , While the DeWitt County National Bank might pay the > debt due John Warner, in the supposed interest of its junior lien on the' mules, it had no right to demand or _ have, under any circumstances, the note and chattel mortgage held by him. Flachs v. Kelly, 30 Ill. 462; Handly v. Munsill, 109 id. 362; Ellsworth v. Lockwood, 42 N. Y. 89; Butler v. Taylor, 5 Gray, 455; Lamson v. Drake, 105 Mass. 564; Lamb v. Montague, 112 id. 352; Jones on Mortgages, sec. 792; 23 Eng. Rep. (Moake’s notes,) 210.
    The alleged offer to pay the John Warner debt, being coupled with the condition that he surrender and deliver to the appellee the note and mortgage held by him, was not good as a tender, and appellee acquired no rights under it. A tender, to be good, must be made, without condition. Pulsifer v. Shepard, 36 Ill. 513; Holton v. Brown, 18 Vt. 224; Thayer v. Brackett, 12 Mass. 450; Wood v. Hitchcock, 20 Wend. 47; Sanford v. Bulkley, 30 Conn. 344; Roosevelt v. Bank, 45 Barb. 579.
    A pledge is a delivery of personal property to secure a debt or engagement, to be returned to the pledgor on payment of the debt, or performance of the engagement. Story on Bailments, sec. 286 ; Corbett v. Underwood, 83 Ill. 324.
    The transfer of the mules .by James DeLand to Mrs. Magill, with the agreement that she should sell them and apply the net proceeds as a credit on the amount he owed her, was neither in the nature of a pledge or mortgage, but an actual sale, and she became vested, immediately on their delivery to her, with absolute property in them. Wells v. Miller, 37 Ill. 276; Ives v. Hartley, 51 id. 520; Lonergan v. Stewart, 55 id. 44; Piner v. Cover, 55 id. 391; Graff v. Fitch, 58 id. 372; McEwen v. Morey, 60 id. 32; Straus v. Minzesheimer, 78 id. 492; Richardson v. Olmstead, 74 id. 213; 2 Kent, (7th ed.) sec. 39, pp. 605, 634, and notes; Story on Sales, sec. 220; Benjamin on Sales, (4th Am. ed.) 925; Strong v. Kennedy, 40 Mich. 327; McConnell v. Hughes, 29 Wis. 537; Hoodley v. McLaine, 10 Bing. 437; Jewett v. Lincoln, 14 Maine, 116; Acebel v. Levy, 10 Bing. 382; Foster v. Magill, 119 Ill. 75.

      Mrs. Magill might lawfully receive the mules in satisfaction or part satisfaction of her debt, though the debtor was insolvent at the time, and other equally meritorious creditors were thereby prevented from collecting any part of the amount due them. Gray v. St. John, 35 Ill. 222; Butters v. Haughwout, 42 id. 18; Wells v. Miller, 37 id. 276; Hessing v. McCloskey, id. 341; Waterman v. Donalson, 43 id. 29; Railroad Co. v. Watson, 113 id. 195; Foster v. Magill, 119 id. 75.
    An intermeddler, stranger or volunteer can not pay the se- . cured debt of a third person, and then be subrogated to the rights of the creditor in the securities. Suppiger v. Garrels, 20 Bradw. 625; Bayard v. McGraw, 1 id. 141; Falls v. City of Cairo, 58 Ill. 403; Bishop v. O’Conner, 69 id. 431; Lewis v. City Bank, 72 id. 543; Beaver v. Slanker, 94 id. 175 ; Acer v. Hotchkiss, 97 N. Y. 393; Sanford v. McLean, 3 Paige Ch. 117; 7 Wait’s Actions and Defenses, 402-405.
    Mr. James S:. Ewing, Mr. Geobge B. Gbaham, and Mr. B. A. . Lemon, for the appellee:
    The court had jurisdiction to render the decree it did. The j court had the right to prevent the coroner- from interfering • with its process. Besides, Warner, by dismissing his replevin ' suit and accepting the tender of the amount of his note and chattel mortgage, waived all question as to jurisdiction.
    Appellee had a right to have the note and chattel mortgage < to John Warner turned over to the court, on payment of the note, and the court had the right to compel Mrs. Magill to- ■ return the money thus paid by appellee.
    A junior incumbrancer or lienor of personal or real property ; has a right to pay the prior lien for the protection of his own, ' and be subrogated to all of the legal and equitable rights of the prior incumbrancer. Armstrong v. McAlpine, 18 Ohio St. 184; Muir v. Berkshire, 52 Ind. 149; Jones on Chattel Mortgages, secs. 658, 659; Sheldon on Subrogation, secs. 12, 15, 21, 77.

      A party thus subrogated has both the right of property and possession, and can maintain trover against subsequent lienors. Mosier’s Appeal, 56 Pa. St. 76; Lewis v. Palmer, 28 N. Y. 271.
   Mr. Justice Scott

delivered the opinion of the Court:

The decree in this case is so obviously just and equitable, the objections taken to it need not be discussed. After the bank was compelled, under the order of the court, to bring into court the $2700 due on the Warner mortgage, and after the mortgagee, with the consent of the court, withdrew the amount so deposited and left with the court, and the chattel mortgage and the note thereby secured, it was the clear right of the bank to be subrogated to the rights of Warner under the chattel mortgage. That, the decree did, and nothing more. After Mrs. Magill recovered the full value of the property covered by the chattel mortgage," from' the sheriff of Macon county, in the action of trover against him, she ought at once, out of the proceeds, to have paid to Warner the amount due on her note with Wheeler, secured by the chattel mortgage, and that would have been the end of this whole expensive litigation. She took the property from her father subject to the chattel mortgage to Warner, and she could not rightfully retain any more of the proceeds than the excess over the mortgage, or what was left after paying off the mortgage.

The action at law against the sheriff of Macon county had settled, definitely and forever, that the bank was not entitled to hold any portion of the property on its execution against DeLand and others, and had the bank not been required to pay into court the amount alleged to be due Warner on the chattel mortgage, it would have had no standing in court, and its bill, no doubt, would have been dismissed at the hearing. That was an improper order, but after it was made, and the money paid in compliance with it, and after the same was accepted by Warner, the court could do no less than to subrogate the bank to the rights of Warner in the chattel mortgage, and decree, as was done, that Mrs. Magill should pay her note with Wheeler, secured by the mortgage, to. the bank, which had, under the brder of the court, paid it in her stead.

Complaint is made that the court did not direct that out of the proceeds of the mules in the hands of Mrs. Magill, the balance alleged to be due to Warner for-interest, etc., and expenses incurred by Wheeler in respect to the business, should be paid. These are matters, if they exist at all, which the parties can settle among themselves, and it was not necessary the court should decree in regard to them.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Magbudeb

text:
    The Vessel Owners’ Towing Company v. J. V. Taylor.

      Filed at Ottawa November 15, 1888.

    1. Agenoy—captain of a vessel—power to represent owner on an arbitration. While the captain of a vessel may be the special agent of th,e • owner in all matters fully embraced in the scope of his appointment, and for all purposes connected with the ordinary employment of the vessel, still his position as captain does not, of itself, give him the right to act as attorney for the owner before arbitrators appointed to decide upon the question of damages resulting from a collision of his vessel with another-

      2. Arbitration—notice to the parties—by whom to be given. The duty of giving notice to the parties of the time and place of hearing of matters submitted to arbitration, devolves upon the arbitrators. They have it in charge to see that sufficient notification is -made to each party, and without such notice the award will be void, unless the intention of the parties is that the arbitrators shall proceed without their presence.
    3. Same—hearing before all the arbitrators. Each party to a proceeding to arbitrate is not only entitled to be present when the witnesses or arguments are heard, but each is entitled to have his case submitted to all the arbitrators. So when any evidence is heard in the absence of one of the arbitrators without the assent of one of the parties, and an award is made against him, it will be invalid, and may be set aside at the instance of such party.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    This is a bill, filed in the Circuit Court of Cook County on January 28, 1885, by appellee against the appellant and one J. C. Dunbar, to set aside an award rendered under an agreement of submission theretofore entered into between the said complainant and the defendants, for the purpose of settling the liability for a collision, that had occurred on August 19, 1882, in Lake Michigan near-the Chicago Crib, between the schooner “R. B. King,” of which Dunbar was master, and the schooner “Floretta,” which was owned by Taylor, the appellee, the “Floretta” being, at the time of the collision, in the tow of the tug, “Union,” owned by the Vessel Owners’ Towing Company, the appellant herein. The agreement for submission, dated August 24, 1882, was signed by J. L. Higgle, as president of. the Towing Company, and by 'Taylor and Dunbar. The arbitrators named were Captains William. Keith and William Carey, with power conferred on them to select a third party if they could not agree. They alone acted, no third person having been selected. The award, dated September 5, 1882, and signed by Keith and Carey, was as follows: “We, Wm. Keith and Wm. Carey, do herewith give you our-decision in case of schooners “Floretta,” “R. B.King” and “TugUnion.” We hold schooner, “Floretta,” responsible for her own damage, through the action of Captain S. Murphy, her master, for giving four different orders and thus freeing “Tug Union” from all responsibility. We also hold schooner “R. B. King” responsible for her own damage for not keeping proper lookout.”
    Default was entered against Dunbar. The Towing Company filed a plea, setting up the agreement for submission and the award and other facts, to which Taylor replied. By agreement the plea was treated as an answer to the bill. Upon the hearing, the Circuit judge dismissed the bill for want of equity,. and, upon appeal to the Appellate Court, the latter court reversed the decree of the Circuit Court with directions to the trial court to enter a decree setting aside the award. From such judgment of the Apiiellate Court the appellant prosecutes-its appeal to the Supreme Court.
    Higgle, the president of the appellant company, was the main witness introduced by the defense to prove notice to Taylor of. the arbitration. He testifies: “The arbitrators notified me on the 25th that they would meet in our office the next morning; I then notified J. V. Taylor that the arbitrators would meet - next morning at 10 o’clock; I met him on the sidewalk and notified him; he was at our office very frequently; his office was just above ours; * * * the arbitrators met at our office; Captain Murphy came there with Mr. Taylor’s men; I don’t know how many he had; I don’t know who notified him to come; * * * Taylor came to the office of the Co.' the morning they met, just as they had gone into the room with the witnesses; * * * I told him “they had just gone in there with witnesses, I wish you would go in there and say what you have to say” * * *; he said, ‘Capt. Murphy attends to my witnesses—I don’t know anything about the case,’ and he went out; I met him next on the sidewalk * * * I told him the arbitrators were busy down there and I wished he wouldo go down there and talk to them, that I had so much business to attend to that I couldn’t afford to fool away time; we were standing at the head of the stairs and I pointed down . to my room; I think that it was the next day after the first session ■ * * * the next conversation I had with Mr. Taylor was in the Co.’s office; he wanted to know how the arbitration was getting along; I told him that Capt. Keith had gone to ■Milwaukee and I didn’t know exactly when he would be back; after the evidence was all in I asked Murphy and Dunbar if they had any more evidence; they said they had not; my witnesses were all in; I notified Taylor that the evidence was all in; I think it was the next morning in the office that I notified him; he said, if Gapt. Murphy’s evidence was in, that was -all he had.”
    G. H. Jewell, who was Captain of the appellant’s tug, “Union,” when the collision occurred, testified for the defense, that, on the second day of the hearing, he was in the main office of the company and heard Higgie tell Taylor that the arbitrators were in session and to go in and see them, and Taylor said, “Capti Murphy attends to my interest.”
    G. D. Kirkham, secretary of the appellant Co., testified for the defense that he heard Higgie tell Taylor, in the office of the Co., that the arbitrators were in session and to go to them for what information he wanted.
    G. A. Cameron, book-keeper of appellant, testified for the defense, that, one day in the main office of the Co., he heard Higgie tell Taylor, in reply to an inquiry about the arbitration, that one of the arbitrators had gone to Milwaukee.
    Complainant Taylor testified in chief as follows: “I never-received any verbal or written notice to appear myself or bring my witnesses before William G. Keith and William Carey to arbitrate my rights in the collision between the ‘Floretta,’ the ‘B. B. King’ and the tug ‘Union.’ I did not know that any witnesses on part of my vessel had been examined until after I heard it was decided. I never produced any witnesses; I never knew there was one there until after it was over. No time or place was fixed upon for taking the testimony when the articles of arbitration were signed. I was never notified of any time or place for me to be present and present my testimony. I tried to find out, but I could not, and never did find out. I asked Mr. Higgie at one time, and he told me to find the arbitrators, and find out from them; and he told me, furthermore, that one of them had gone to Milwaukee, and he did not know when he would be back.”

      In rebuttal complainant testified as follows: “Captain Higgie did not notify me qn the day before they commenced taking testimony that the arbitrators would commence their work the following day. I don’t know what day they commenced. I don’t remember saying to Captain Higgie that Mr. Murphy would tend to my business in regard to this suit. I don’t believe I ever said so, because I never gave him any authority. I asked Captain Higgie several times about the arbitration—when I could come in with my witnesses. There was one time I remember asking when this arbitration was going to commence, and he says: ‘They are down in there now taking testimony with the ‘King’s men—they wanted to get out.’ I asked him where, and he says, ‘down in my private office.’ It was along in the afternoon, just as I was ready to go home, about four or five o’clock. Captain Higgie told me that I had better look up the arbitrators, and that brought up the question that Mr. Keith was away; and before I knew that he was back, I got notice that they had agreed on their verdict.”
    William Carey, one of the arbitrators, testified, on behalf of complainant, as follows: “I never asked Mr. Taylor to come before me when I was taking testimony. I never notified Mr. Taylor of any time being fixed, or about any witnesses, or anything else. His captain said he appeared in Mr. Taylor’s interest, and I suppose he did. I never heard Mr. Taylor tell his captain to come before us, but I suppose, of course, he knew what his captain was doing. Mr. Taylor spoke to me some days before we took any testimony, in regard to that, on the sidewalk, and I took it for granted that he knew. I don’t know why I never notified him. I supposed he knew. Mr. Taylor’s captain, and Mr. Higgie and Mr.-Dunbar, produced the witnesses. We merely examined them.”
    Messrs. Schuyler & Kremer, for the appellant:
    Every reasonable intendment will be made in favor of an award, and the party seeking to impeach it assumes the burden of proof to impeach it. Morse on Arbitration and Award, (1st ed.) 446; Darst v. Collier, 86 Ill. 100; Tucker v. Page, 69 id. 181; Ballance v. Marshall, 3 Scam. 453; Sear v. Mosher, 8 Bradw. 126.
    While the law requires notice to the parties, of the hearing, the law does not require it to be given by the arbitrators when the submission is silent as to notice or the mode of notice. This question was not squarely raised in Wood v. Helm, 14 R. S. 328. See Morse on Arbitration and Awards, 118.
    Notice to the captain of appellee’s vessel, who appeared on the hearing for the appellee, is all the notice that was required. Harding v. Wallace, 8 B. Mon. 536; Shockey’s Admr. v. Glasford, 6 Dana, 9.
    Appellee waived any personal notice to himself, and therefore is estopped to set up Ms own negligent acts, or those of his agent, as a reason to set aside the award. Cases last cited, and Morse on Arbitration and Award, 171.
    Mr. William H. Condon, for the appellee:
    The arbitrator should notify both parties of the time and place of hearing, otherwise the award will be set aside. Ingraham v. Whitmore, 75 Ill. 24; Reeves v. Eldridge, 20 id. 383; Williams v. Schmitt, 54 id. 205; Curtis v. Sacramento, 64 Cal. 102; Morse on Arbitration and Award, 117, 118.
    The master of a vessel is not 'the general agent of Ms employer. ' The Irma, 6 Ben. Dist. C. R. 7; Mitchelson v. Oliver, E. & B. 419.
    He can not vary or annul the owner’s express agreement, (Burgon v. Sharpe, 2 Camp. 529,) nor can he bind the owner by the allowance of an invalid claim. (Merrit v. Walsh, 32 N. Y. 685.) He is only a special agent of the owner in aE matters fully embraced in the scope of Ms appointment, and for all purposes connected with the ordinary employment of the vessel. 'See large number of authorites in notes 1, 2 and 3 to section 116 of Desty’s Shipping and Admiralty.

      It is a fatal objection to the award that a witness was examined before only one of the arbitrators, and in the absence of appellee and his captain. Smith v. Smith, 28 Ill. 56; Morse on Arbitration and Award, 117, 126.
   Mr. Justice Magbudeb

delivered the opinion of the Court:

The proof in this case shows, that the hearing before the arbitrators was had in the back room of the office of appellant, one of the interested parties. The award, afterwards rendered, relieved appellant of all responsibility for the collision between the vessels. The examination of witnesses appears to have been begun on August 26, 1882, and to have been conducted at different times during several days thereafter.

The bill alleges, as the main reason for setting aside- the award, that the appellee, Taylor, was not notified of the hearing before the arbitrators, and did not appear before them, or authorize any one to appear for him.

It is established, beyond question, that neither of the two arbitrators, who made the award, gave the appellee any notice, either written or verbal, of the time when or place where they were to meet to hear evidence. It is also clearly proven, that the appellee himself did not appear in person at the hearing. Murphy, who was the captain of appellee’s schooner at the time of the collision, was present on one or two occasions before the arbitrators and introduced some testimony. But appellee denies, that Murphy had any authority to represent him in the matter of presenting his claims at the arbitration. The captain of a vessel may be the special agent of the owner in all matters fully embraced in the scope of his appointment and for all purposes connected with the ordinary employment of the vessel, but his position as captain does not of itself give him the right to act as attorney for the owner before arbitrators appointed tó decide upon the question of damages resulting from a collision.

' Hence, the question is directly presented whether the parties to an agreement for submission are entitled to notice of the hearing from the arbitrators themselves.

In England, the practice has been for the party wishing to go on with the reference to. call upon the arbitrator, deliver to him the submission and request him to appoint a meeting; the arbitrator gives to the party so applying a written appointment, specifying the time and place for the parties and their witnesses to appear, a copy of which appointment the party so receiving it serves upon his opponent. “In the United States, the duty of giving notice of the time and place of hearing seems to belong to the arbitrators. They have it in charge to see that sufficient notification is made to each party.” (Morse on Arbitration and Award, pages 117 and 118 and cases there cited; Bussell on Arb. (6th Ed.) page 176). Unless it was the intention of the parties that the arbitration should proceed without their presence, “the arbitrators must give both parties notice of the time and place of meeting, and they have no authority to proceed ex parte.” (6 Wait’s Actions and Defenses, 522)

In Wood v. Helme, 14 R. I. 325, where the submission was silent as to notice, the court said: “Without question it was the duty of the arbitrators under the submission in this case to give due notice to the parties of the time and place for hearing the cause before proceeding therein.”

In Ingraham et al. v. Whitmore et al. 75 Ill. 24, we said: “The doctrine is well established, that, where an arbitrator proceeds entirely ex pan'te, without giving the party against whom the award is made any notice of the proceeding under the submission, the award is void.” '

We are, therefore, of the opinion that it was the duty of the arbitrators in this case to see to it that all the parties to the submission had" notice of the time' and place of their'meeting. They did not perform this duty. They gave notice to Higgie, the president of the Towing Company, in whose favor the award was rendered. They gave no notice to appellee, the party against whom the award was made, nor did they require Higgle to give appellee such notice. They contented themselves with assuming that appellee knew of the hearing, because the man, who had been captain of his schooner, was present with certain testimony.

It is claimed,, however, that it makes no difference whether notice is given by the arbitrators, or by one of the parties, or in some other way, if it be true that there was notice. It is said that “it is the fact of notice, which alone appears to be essential.” (Morse on Arb. and Aw. 118.) Even if this be so, the proof is not clear that appellee had notice from any source. His own testimony is positive and emphatic not only that he was not notified, but that his inquiries failed to elicit any definite information as to the time and place of the meeting of the arbitrators. The testimony of' appellant’s president, who is interested in sustaining the award, has reference to casual remarks, made by him to appellee upon the street and upon the occasion of accidental visits by appellee to the main office of the Towing Company. Higgle does not claim that he gave any formal written notice to Taylor.

• Even if the presence before the arbitrators of Murphy, the captain of Taylor’s schooner, could be regarded as the presence there of Taylor himself, it is not clear that Murphy represented Taylor at the taking of all the testimony. Carey, one of the arbitrators, says: “Mr. Murphy was present when some of the testimony was given by the Vessel Owners’ Towing Company; I can’t say how much; I don’t know whether he knew when it was taken.”

Again, while the hearing was in progress, Keith, one of the arbitrators, went to Milwaukee, and, during his absence from Chicago, one of the witnesses was examined by Carey, the other arbitrator. Higgle swears, that he asked appellee’s permission to have the witness examined in Keith’s absence, and that appellee consented to it. Appellee denies this in the following words: “Captain Higgie never said anything to me that he wanted to take the testimony of a witness before Captain Carey while Captain Keith was away.”

In Wood v. Helme, supra, it appeared that during the examination and hearing, - one of the arbitrators absented himself, and it was held that such absence invalidated the award, on the ground that the arbitrators did not act together. Each party is not only entitled to be present when witnesses or arguments are heard, but each is entitled to have his case submitted to all the arbitrators. (Morse on Arb. and Aw. 151, 152, 117).

In Smith v. Smith, 28 Ill. 56, we said: “It is a rule that all the arbitrators must act and act together. They must each be present at every meeting, and the witnesses and the parties must be examined in the presence of them all."

For the reasons here stated, we think the Appellate Court was right in reversing the decree of the Circuit Court and directing that court to enter a decree setting aside the award.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

Mr. Justice Bailey, having heard this case in the Appellate Court, took no part in its decision here.


author: Mr. Justice Shops

text:
    Patrick Finlen v. Lewis Howard, for use, etc.

      Filed at Ottawa November 15, 1888.

    1. Exemption—property of debtor—statute to be liberally construed. Statutes exempting property from levy and sale, for debt are not to be strictly construed, but they should receive such a construction as -will carry out the obvious purpose of the legislature in enacting them,— to protect the debtor.
    2. Same—what is exempt—as to money due the debtor. A debtor is not entitled to claim as exempt any debts due him, except a sum not exceeding fifty dollars of the wages and services due him, and that only in case he is the head of a family and residing with the same, and money arising upon policies of insurance upon his homestead. He can not claim as exempt money due him for board.
    3. Same—former decision. After the ruling in Fanning v. National Bank, 76 HI. 53, that the judgment debtor might claim exemption in the money due him from the bank, a proviso to section 1 of the act of May 24,1877, declares, that exemption shall not be allowed the debtor "from any money, salary or wages due him or her from any person or persons, or corporations, whatever,” from which it would seem the legislature intended to change the rule announced in that case.
    4. Same—scheduling by the debtor—as a condition to his claim of exemption. To entitle a debtor to claim the exemption of personal property given by law, he must deliver to the officer a schedule of all his property, of every kind, including money on hand and debts due and owing to him, and make his selection of property at its appraised value.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the County Court of LaSalle .county; the Hon. F. P. Snyder, Judge, presiding.
    Mr. Samuel Richolson, for the appellant.
    Messrs. Moloney & Stead, for the appellee.
   Mr. Justice Shops

delivered the opinion of the Court:

Lawes & Co. recovered a judgment, before a justice of the peace, against Lewis Howard. Execution issued, and was served upon the defendant, and a demand made for property ■on which to levy the same, and was returned “no property found.” After the return of the execution, upon proper affidavit filed, garnishee summons was issued against appellant, as garnishee, and duly .served. On the trial, it appeared that at the time of the service of the garnishee summons he was indebted to Howard in the sum of $60, for board, and it is conceded, that, including this claim for $60, Howard had less property in amount than is exempted by law, and that he was the head of a family, residing with the same. On appeal to the county court of LaSalle county, judgment was rendered against the garnishee, and, on his appeal to the Appellate Court for the Second District, that judgment was affirmed. The case comes here by appeal, on certificate of importance by judges of the latter court.

The question certified to this court involves the construction of section 1 of the act of May 24, 1877, (par. 13, chap. 52, of Starr & Curtis’ Stat.) entitled “Exemptions,” as to whether or not, in a garnishee proceeding, a judgment debtor can claim, and be allowed the exemption provided for in said section, he being the head of a family, and residing with the same, out of moneys due him. It is apparent, we think, that the question presented does not necessarily arise upon this record. Upon demand made by the officer holding the execution, it is the duty of the execution debtor, if. he desires to avail of the benefit of the exemption laws, to “make a schedule of all his or her property, of every kind and character, including money on hand and debts due and owing to the debtor, and deliver the same to the officer having the execution, * * * which said schedule shall be subscribed and sworn to by the debtor; and any property owned by the debtor, and not included in said schedule, shall not be exempt.” (Sec. 2, act of May 24, 1877, Starr & Curtis, 1112.) The statute further provides, that upon the delivery of such schedule the articles contained therein are to be appraised at their fair valuation, and the' debtor shall then select from such schedule the articles he or she desires to retain, not exceeding in aggregate value the amount exempted. This record shows that no schedule was made and presented by the debtor, of any property, and that none of the steps were taken by the debtor to bring himself within the foregoing provisions of the statute, and to entitle him to claim the exemptions. (McCluskey v. McNeely, 3 Gilm. 578; Lindley v. Miller, 67 Ill. 244; Chapin v. Hoel, 11 Bradw. 309; Taylor v. Beach, 14 id. 259.) However, treating the question as properly arising, a construction of the proviso to the section of the statute referred to, is involved. The section exempts specific articles of property, and. $100 worth of other property, to be selected by the debtor; and when he is the head of a family, and residés with the same, $300 worth of other property, to be selected by him. Then follows this proviso: “That such selection and exemption shall not be made by the debtor, or allowed to him or her, from any money, salary or wages due him or her from any person- or persons, or corporation, whatever.”

We have had frequent occasion, in construing exemption statutes, to say that they are not to be strictly construed, but such construction will be placed thereon as will carry out the obvious purpose of the legislature in enacting them,—to protect the debtor. In the proviso under consideration, however, it would seem there is no room for construction. It is not easy to perceive how language could be more direct and positive, clear and unambiguous, than is here employed. It forbids that any exemption be allowed to the debtor from money duo him. If- this language be construed, in view of the requirements of the following section of the statute, that the debtor, in addition to his property, shall schedule debts due and owing to him, no ambiguity as to the intention of the legislature is raised. The debtor is at last to select articles embraced in his schedule, at then: appraised value. It is clear that the legislature intended a distinction should be observed, in the matter of exemptions, between articles of personal property and of money due and owing to the debtor. By the first section-, the selection of the debtor is to be of property, which is followed by the proviso forbidding that the exemption shall be for money due him. The second section requires the scheduling of all property, “of every kind and character, including moneys on hand, and debts due and owing to the debtor.” The selection to be made by the debtor is of articles of property he may desire to retain.

■ This court, in Fanning v. National Bank, 76 Ill. 53, held, that the judgment debtor might claim exemption in the money clue him from the bank. After that decision was made, the proviso in question was enacted by the legislature. Under the former statute, containing no provision 6f like effect as the proviso under consideration, it was held, that the selection might be. made by the debtor from money due him, or any personal property or assets belonging to him, and it would therefore seem that the legislature intended to change the rule announced in that case, by the adoption of the proviso under consideration. By the 14th section of chapter 62 of the Revised Statutes, there is specifically exempted an amount, not exceeding $50, of the wages and services of the debtor, being the head of a family, and residing with the same. No other provision is made for exemption of debts due and owing to the debtor.

Our attention is called to the hardship of the rule announced. All that is urged by counsel may be readily conceded; but it is manifest that with the policy of the statute we can have no concern. When the legislative will, in matters within its domain, is plainly and clearly expressed, we are not at liberty, because of supposed hardship, or upon considerations of policy, to wrest the words of a statute from their plain import and meaning.

We are of opinion that the proviso under consideration excludes from the debtor’s estate out of which he may make his selection of property exempt, all money due the debtor, without regard to the character of the indebtedness or the circumstances under which it arose. The only exceptions to this are those contained in the 14th section of the Garnishment act, before referred to, and the 7th section of the act of April 30, 1873, exempting money arising upon policies of insurance upon homesteads.

Perceiving no error in the record, the judgment of the Appellate Court will be affirmed.

Judgment affirmed.

. Mr. Justice Baker, having heard this case in the Appellate Court, took no part in the decision here.