author: Mr. Justice Scholfield

text:
    Charles Hook v. Richard Richeson et al.

      Filed at Mt. Vernon January 25, 1886.

    1. Chancery—matters in defence arising before the cause is at issue— whether to be availed of by answer or cross-bill. After a cause in chancery is at issue, any facts in defence not occurring thereafter should be set up by amendment to the answer, and not by a cross-bill. If matters relied on merely to defeat the relief sought, and which do not entitle the defendant to affirmative relief, are presented by cross-bill, it will be subject to demurrer.
    2. Same—decree in vacation—when becomes final. It is competent for the court, after hearing a chancery case in term time, to take it under advisement, and to announce the decree therein to be rendered, in vacation; but under the statute (Rev. Stat. 1874, chap. 37, sec. 47,) the decree will not become final until after the expiration of the next term thereafter, and then only as modified and approved, if modified at all. The action of the court at such succeeding term in overruling objections thereto, is an approval of the decree.
    3. Practice—after reversal and remandment—what further proceedings may be had in the trial court. Where a decree has been reversed and the cause remanded generally, the same will be open to amendments in the pleadings, and to the introduction of additional evidence, except as to questions fully discussed and settled by the opinion of this court.
    4. But where the cause has been remanded for further proceedings in conformity with the opinion filed, which states that it may be open to the parties to take further proof, if desired, as to a certain matter named, the cause will not be open for any other purpose than that mentioned, and the introduction of new matters by amendment and proof is not permissible.
    5. In such case the filing of a supplemental bill showing the death of one of the defendants since the hearing, and a conveyance by him during his life of all his interest in the property involved, to a co-defendant, making no new parties and alleging no new matters affecting the merits, will not entitle one of the defendants to file a cross-bill setting up new matters in defence.
    6. Former adjudication—in the Supreme Court—as to matters availing on second appeal. Where a cause has been reviewed by this court, and remanded with directions as to the decree to be entered, a party on a subsequent appeal can not assign for error any cause that accrued or existed prior to the judgment of this court. All errors not assigned will be considered as waived, and can not afterward be urged.

      7. Lien—of collector’s bond—on his real estate. The execution and recording of a tax collector’s bond creates a lien upon all the real estate owned by him at the time, and all purchased by him after its execution and before default, although he may have conveyed it before default.. The lien follows the property, and subsequent purchasers are bound to take notice of it, and they can not, by any contract with the collector, acquire any rights in such real estate paramount to that lien.
    8. Subrogation—in favor of surety, to lien of creditor. If a judgment in favor of the State or a county, against a collector and his sureties on his bond, is paid either voluntarily or by the sale of the property of a surety, the latter may maintain a bill to be subrogated to any lien or securities held by the State or the county', or by his co-sureties, that might by them, or either of them, have been enforced for the payment of the judgment; and such surety may enforce such lien to reimburse himself for the sum paid by him, with accruing interest.
    9. Parties—on bill by surety to be subrogated to creditor’s lien. On bill by a surety to be subrogated to the lien of the creditor upon lands of the principal, as against his alienees, the co-sureties are necessary parties, and if they do not object to being made complainants, the defendants can not make that objection for them.
    10. Purchaser—right to compensation for improvements as against prior lien. The purchaser of land which is subject to a statutory lien in favor of the State will not be entitled to compensation for valuable improvements made by him upon the premises, as against parties proceeding in equity to enforce the lien. He stands the same as a purchaser of land incumbered by mortgage or judgment.
    11. Principad and surety—private agreement between co-sureties— effect upon their rights as against their principal. No private arrangement among co-sureties for the distribution of the burden of their joint liability among themselves, will affect or defeat their rights against their principal.
    12. In this case judgments were recovered by the State and a county against a county collector of taxes and his sureties on his bond, the latter of which the sureties paid. After this, one of the sureties entered into an agreement with the others to pay the judgment in favor of the State in consideration of their each paying him $100, and allowing him the use of their names in bringing a suit to be subrogated to the lien of the State, and enforce the same by the sale of lands to which such lien had attached: Held, that such arrangement could not be set up to defeat the suit in the names of all the sureties to 'enforce such lien, and that as to the purchasers of the lands subject to the lien it was a matter of no concern whether the recovery was by one or all of the sureties.
    13. Homestead—acquired after lien attaches. A person after the execution of his bond as collector, and its record, can not acquire a homestead in land so as to hold the same exempt from sale on bill to enforce the lien created by the recording of such bond.

      14. Same—sale subject to homestead. A decree foreclosing a lien on land in ■which there is a homestead estate, that the same be sold subject to a homestead of $1000 unless the defendants, by a day named, pay to the master a given sum, is erroneous, in not directing an absolute sale, subject to the homestead. But on failure to make the payment the decree becomes absolute, and the error is harmless.
    Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on writ of error to the Circuit Court of Perry county; the Hon. Amos Watts, Judge, presiding.
    Mr. F. M. Youngblood, for the plaintiff in error:
    This cause is now for the fourth time before this court. It first appeared as Richeson v. Crawford, 94 Ill. 165, next in 101 Ill. 351, and again under the style of Hook v. Richeson et al. 106 Ill. 392.
    Counsel contended that the former decisions of this court have not settled the rights of the parties on the merits, and new matters have been introduced into the record by amendment, presenting new questions. This court, in both 94 and 101 Ill., held that complainants were entitled to be subrogated to the rights of the State and the county for what they had actually paid on the judgments, and that the homestead of Hoge was not subject to the lien of the bond, and reversed with specific directions as to the Cantrell land, only. After this order of reversal the decree as to Hook became null and void. (Coalfield Coal Co. v. Peck, 105 Ill. 529.) The parties then stood in the circuit court, so far as Hook was concerned, precisely as if no decree had ever been entered against him; and if any new facts had come to his knowledge after the former trial, which were material to his defence, he had a right to present them to the court by answer or cross-bill. Chickering v. Failes, 29 Ill. 294; Kingsbury v. Buckner, 70 id. 514; Rising v. Carr, id. 596; Loomis v. Corwin, 106 id. 660; Newberry v. Blatchford, id. 584; Railroad Co. v. Lee, 87 id. 454.

      In each of these cases this court holds that where new facts are presented which are material, the former opinion can not be interposed as res judicata. As to the powers of the chancellor in vacation, see Blair v. Reading, 99 Ill. 600.
    If the court erred in rendering the last decree against Hook, he is not estopped by the former opinion of this court from presenting subsequent errors to this court for review.
    All the facts set up in Hook’s amended cross-bill are admitted by Richeson, and proven. No right of subrogation could arise in favor of defendants in error until they had actually paid their liability on the bond. The facts now before the court show that Link, Hall, St. Glair and Cochran never did pay anything on these judgments, nor do I believe that the other parties who have subsequently sold their interest in this litigation had any such interest as could be assigned to Richeson, so as to empower him to harass and annoy parties interested in these lands.
    The State and county could not have asked for the sale of anything more than Hoge owned at the time the lien attached, and in such a proceeding by the State and county, equity would have allowed each of the vendees of Hoge to have relieved his property from the lien, by paying to the State and county its value at the time Hoge conveyed it, with legal interest thereon.
    Mr. Thomas J. Layman, for the defendants in error:
    If Hook had any homestead right iti the twenty-eight-acre tract, why did he fail to assert it in this case when it was before this court at a former term ? The decision is conclusive as to all errors that might have been assigned. Newberry v. Blatchford, 106 Ill. 593; Rising v. Carr, 70 id. 596.
    A decision of an appellate court is final as to the matters decided, and conclusive upon the parties on a second appeal or writ of error in the same case. Hollowbush v. McConnell, 12 Ill. 203; Kingsbury v. Buckner, 75 id. 514.

      Richeson had a perfect right to buy the interest of Dillon and others in this suit, and to use the names of the assignors. Ridgeway v. Underwood, 67 Ill. 419; Ryall v. Bowles, 3 White & Tudor’s Lead. Cas. 615 ; Henderson v. Welch, 3 Gilm. 340; Chapman v. Shattuck, 3 id. 49.
    When a cause is remanded with directions as to the decree that shall be entered, a party can not, on a subsequent appeal, assign for error any cause that accrued prior to the decision of the Supreme Court. Ogden v. Larrabee, 70 Ill. 510; Ward v. Johnson, 5 Bradw. 30.
   Mr. Justice Scholfield

delivered the opinion of the Court:

Bill was filed by appellees in the circuit court of Franklin county, wherein it was, among other things, alleged that Marion D. Hoge was collector of taxes for Franklin county for the year A. D. 1867; that on December 5, A. D. 1867, he gave bond, as required by the statute, for the faithful performance of his duties as such collector, which was duly approved and recorded, and that the bond W’as signed by the complainants, and Daniel Mooneyham and Lewis G. Payne, as sureties; that there came to the hands of Hoge, as such collector, a large sum of money belonging to Franklin county, which he failed to account for, and that a judgment was after-wards rendered in the Franklin county circuit court against Hoge and his sureties for the amount due the county, which judgment the complainants and said Daniel Mooneyham paid and discharged; that Hoge, as such collector, was also in default in regard to taxes due the State, which he had collected, for which the State recovered judgment in this court against him and his sureties, and which was not paid at the time of the filing of the bill. Subsequently, a supplemental bill was filed, showing that since the filing of the original bill the latter judgment had been paid and discharged by the complainants and Mooneyham. It is further alleged in the bill, that at the date of making and recording the bond, Hoge was the owner of two certain parcels of real estate described in the bill, with a statement of the date on which he acquired title to each tract, after the recording of the bond, and that Hoge sold and conveyed all his -real estate before either of the judgments was recovered. It is then charged that the bond of the collector became a lien, from and after the time it was recorded, on all the real estate which he owned at the time the bond was recorded, and also upon all the real estate subsequently acquired by the collector, and that the lien is still in force; that Hoge, the collector, and the said Lewis Gr. Payne, one of the sureties, are both insolvent, and that neither of them paid any part of the judgments. Hoge, and all persons claiming title to these lands through him, and Payne and Mooneyham, are made defendants. The prayer is, that enough of the real estate to pay the judgment in this court in favor of the State be decreed to be subject to the judgment, and be sold to pay the same, and that the remainder of the real estate, or so much as may be necessary, be sold to pay the complainants, with interest, the amounts by them paid on the judgment in favor of Franklin county. A general demurrer was interposed to the bill, the venue was changed to the county of Perry, and the circuit court of that county sustained the demurrer, and decreed that the bill be dismissed. An appeal was prosecuted by the complainants from that decree to this court, and this court, at its November term, 1879, on hearing the appeal, reversed the decree of the court below, and remanded the cause to that court. (Richeson et al. v. Crawford et al. 94 Ill. 165.) In the opinion then filed it was held, that under the act of 1853, (re-enacted as section 134 of the Eevenue law of 1872,) the approval and recording of a collector’s bond created a lien upon the real estate of the collector of taxes, as against subsequent purchasers from him acquiring the legal title before judgment against him; that where the sureties of a county collector are compelled to pay money to the State or county for the default of the collector after he has transferred his real estate subsequent to the attaching thereto of the statutory lien, they are, in equity, entitled to be subrogated to the lien in [favor of the State, and may enforce the same against the grantee of the collector by a bill in chancery to reimburse themselves for the amount paid by them, and that where a mortgage or further security is taken from the principal debtor, the property embraced in it is to be held not only for the benefit of the creditor, but also for the indemnity of the surety, and it is the right of the surety, when he pays the debt of the principal, to be subrogated to whatever security the creditor had.

Upon the case being remanded, answers were filed putting in issue the material allegations of the bill, and Charles Hook set up homestead in lands conveyed by Hoge to him; that on the 21st of December, 1868, they were not worth exceeding $400, and that he had put valuable and lasting improvements thereon worth at least $2500, and he denied that any lien ever attached to his land by virtue of the collector’s bond. Proofs were taken on the issues thus made, and, upon hearing, the court decreed according to the prayer •of the bill, and that the lands be sold in the inverse order of their alienation by Hoge. The defendants appealed from that decree to this court, and the case was heard here at our November term, 1881, when it was adjudged that the decree below be reversed, and that the cause be remanded to the court below, with directions in the opinion then filed. (Crawford et al. v. Richeson et al. 101 Ill. 351.) It was then held, among other things, that the statutory lien created by the approval and recording of the collector’s bond attaches not only to the lands then owmed by the principal, but also to the after acquired lands, the same as in the case of a judgment ; that the sureties upon a collector’s bond have the right, in equity, upon the recovery of a judgment against them upon the bond, and before its payment by them, to file a bill, and require the lands- of the collector subject to the lien of his bond, though they have passed into the hands of innocent purchasers, to be sold for the payment of such judgment, and upon supplemental bill showing payment of the judgment, to be subrogated, to the lien of the State, and have the lands sold for their reimbursement; that where the lien of a collector’s bond attached to lands a part of which was acquired after the recording of the bond, and such lands have been sold and conveyed by the collector to different persons and at different times, it is proper to order their sale in the •inverse order of their alienation, on bill by his sureties to be subrogated to the lien of the State, and this without regard to the time of acquiring the title to the different parcels which were purchased after the recording of the collector’s bond. The point was made in argument, that the lands conveyed by the collector were released from the lien of his bond by reason of an act of the legislature of March 31, 1869, extending the time within which the collector was required to pay the State revenue until January 1, 1871, which extension was agreed to by the sureties ; but it was held that it did not have that effect, and that the lands were bound by the lien of the bond, notwithstanding the act. With respect to Hook’s claim of homestead it was said: “It appears from the evidence, that on October 27, 1868, Hoge purchased a house and some two acres of land, and at once moved into the house with his family, and occupied it as his homestead until he exchanged it -with one Charles Hook. The property was shown to be worth not exceeding $800. Hoge had a clear homestead right in this last named property, and it being of less value than $1000, it was not subject to the lien of the bond, and should not have been decreed to be sold. * * * On December 21,1868, Hoge and Charles Hook exchanged lands, Hoge conveying by warranty deed this house and two acres, and twenty-eight acres elsewhere, to Hook, for which Hook conveyed to Hoge one hundred and twenty acres of land, and paid him $1000.” And after discussing the rule as to the right of subrogation, where one tract of land is exchanged for another, and each is successively occupied as a homestead, and finally concluding that the right existed as to the tract last acquired and subject to the claim of homestead therein, it was added: “This principle we do not find it practicable to apply -with respect to the first exchange. That was not, as in the second 'case, the mere exchange of one tract for another, but a house and two acres of land, the homestead of Hoge, and not subject to the lien, together with twenty-eight acres of land, were exchanged with Hook for one hundred and twenty acres of land and $1000. This was not an exchange proper, in the legal sense. We do not see but that the twenty-eight acres is subject to the lien. ”

After the case was remanded to the court below this the second time, a supplemental bill was filed showing the death of John McFalls, one of the defendants, since the last hearing, and that he had, before his death, conveyed the lands alleged in the bill to have been conveyed to him, to Benjamin McGuire, another one of the defendants. And afterwards, Charles Hook, by leave of the court, filed his cross-bill in the case, setting up that the two acres on which was the house occupied by Hoge as a residence, and the twenty-eight acres, in fact constituted an entire property, and was the homestead of Hoge, occupied by him as such at the time he conveyed the tract to Hook, and of less value than $1000 ; that he has since erected a dwelling house upon the twenty-eight acres, and now occupies it as his homestead; setting up the act of the legislature of March 31, 1869, extending the time within which the collector was required to pay the State revenue until January 1, 1871, and alleging that the sureties consented to that extension, knowing, at the time, that he had exchanged lands with the collector, and that he was then in the possession of the two tracts conveyed to him by the collector as his homestead. Answer, was filed putting these allegations in issue.

Subsequently, Hook filed an amendment to his cross-bill, in which he alleged, in substance, that the complainants have no right to be subrogated to the rights of the State, because Bicheson, prior to the payment of either of the judgments, made an agreement with his co-complainants that if they, and each of them, would pay to him $100, and allow him to use their names in prosecuting this suit, he (Bicheson) would pay off all of said judgments mentioned in the original bill; that each of said parties, in pursuance of said agreement, did pay to Bicheson $100, and that is all that either of said parties, except Bicheson, ever paid on either of said judgments ; that this agreement was made long after the rendition of said judgments, and with full knowledge of all the rights of Hook; that Bicheson, at the time, agreed with his co-complainants that he would not interfere with the lands of Hook; that Bicheson paid off the judgment in favor of the county with the money so received from his co-sureties, and the proceeds of certain lands Hoge conveyed to Daniel Mooneyham for the use of his sureties; that said land was worth $1500, and is not accounted for by complainants; that Bicheson procured the Auditor of State to bid in his lands, in satisfaction of the judgment in favor of the State, at double their value; that Bicheson never paid any money on either of said judgments, except the amount received from his co-sureties as aforesaid, and the proceeds of the real estate conveyed by Hoge to Mooneyham; and that if, as between the sureties of Hoge and Hook, the former show themselves entitled to subrogation as to the twenty-eight acres, they can only avail themselves of the value of said land at the time Hook purchased the same, and that at that time the land was not worth more than $280. Complainants in the original bill, by leave of the court, then withdrew their answer, and filed a special plea, setting up the adjudication of these questions in Crawford et al. v. Richeson et al., supra, as a bar to their further adjudication. Further proofs were taken, and the cause was heard on original and amended and supplemental hills and answer, and cross-bill, amended cross-bill, and plea and proofs,—all the evidence heard on the former hearings being submitted to the court, as W'ell as the evidence taken since the cause was last remanded, though such evidence was not then read,—rand the court thereupon decreed in favor of the complainants in the original bill, and dismissed the cross-bill. The hearing was at the October term, 1882, but the court, not being then ready to render a decree, took the case under advisement, and announced the decree to be rendered in vacation on the 17th of February, 1883. Hook thereupon prosecuted an appeal to this court, but that appeal, on motion, was dismissed at our May term, A. D. 1883, because the decree might, under the statute, be set aside at the next term of the circuit court, which would convene in April, A. D. 1883, and hence would not be a final decree until after the expiration of that term, the appeal being therefore prematurely prosecuted. (Hook v. Richeson et al. 106 Ill. 392.) Afterwards, at April term, 1883, of the circuit court, Hook, by his counsel, moved the court to set aside the decree, because—

First—He could prove that since Bicheson gave his deposition he had bought the interest in the result of this suit of his co-complainants, Huddleston, Wm. A. Beaty, Whittington and Hagler, and released them from all liability for costs, and was then the sole complainant in the case, and that he did not know these facts in time to take their testimony.

Second—He can prove, in support of his cross-bill, that the land now claimed by him, at the time Hoge owned it, constituted a part of his homestead; that the whole did not exceed in value $1000, and gives the names of his witnesses.

Third—His counsel was unable to be present at the hearing, by reason of sickness.

Fourth—He was misled by Bicheson and his counsel as to when the cause would be heard, until the day before the hearing, when his counsel was too sick to attend court.

Complainants were allowed to file affidavits in opposition to this motion, and the court afterwards overruled the motion. Counsel for Hook thereupon moved for a new trial, for the following reasons:

First—Said cause was taken under advisement at the last term of this court, by the presiding judge, against the objections of said Hook.

Second—There was no hearing of said cause at said term.

Third—The court heard said cause during said vacation without the consent of said Hook, and filed the decree during vacation without the consent and against the objections of said Hook.

Fourth—The court did not find the amount due the complainants, but left that for the clerk to do.

Counsel for complainants then made a cross-motion to strike this motion from the files. The court overruled both the motion and the cross-motion, and Hook thereupon prayed an appeal, which was allowed, to this court. That appeal was, at our November term, 1883, on motion of complainants’ counsel, dismissed, because it should have been prosecuted to the Appellate Court for the Fourth District. Afterwards a writ of error was sued out of. the Appellate Court for the Fourth District, and the record was taken to that court for review, and that court, on final hearing, affirmed the decree of the circuit court. The present writ of error brings the record of that court before us for review.

The grounds upon which a reversal of the decree below is urged are, the disallowing of the defences set up in Hook’s cross-bill, and irregularities claimed to have occurred in the rendition of the decree.

The facts alleged in the cross-bill, if admissible at all as a defence, should have been set up by way of amendment to Hook’s answer. They did not occur after the case was at issue, so as to make it necessary to bring them into the case by cross-bill, under the rule applicable to defences of that character. (Story’s Equity Pleading, sec. 393; Jenkins v. International Bank et al. 111 Ill. 463.) The bill sought to subject to sale the lands conveyed by Hoge after his bond became a lien upon them, which included those he conveyed to Hook, for the satisfaction of the amount his sureties had been compelled to pay on account of his default, and these facts were brought forward simply to show that such decree ought not to be rendered. They, in no view, could entitle Hook to any affirmative relief, and had a demurrer been interposed to the cross-bill, it should have been sustained, on the ground that the matters alleged were not proper for a cross-bill, aside from the question whether they would constitute a defence if set up in an amendment to the answer. (Wing et al. v. Goodman, 75 Ill. 159.) But the court below having treated the cross-bill as properly filed, we shall proceed to consider whether it erred in finally decreeing that the cross-bill be dismissed.

First—Had this court, when the case was before us a second time, remanded it generally, the case would then have been open to amendments in the pleadings in the circuit court, and to the introduction of additional evidence upon such points as counsel should have deemed advisable; but even then the ease would not have been open to further discussion upon questions fully discussed and settled by the opinion of this court previously filed. But this court did not, at that time, remand the case generally. The decree was reversed, and the cause remanded for further proceedings in conformity with the opinion then filed, and that opinion said: “It may be open to the parties to take further proof, if desired, as to the value of the one hundred and twenty acre tract acquired by Hoge from Britton, at the time it was held by Hoge, with reference to the homestead question of its being of more than the value of the $1000, or not. ” In effect, under a familiar rule of construction, this was equivalent to saying the ease was open for no other purpose, and as the case then appeared to the court, there was no reason why it should have remained open for any other purpose. The original hill was filed on the 8th of January, 1876, and Hook’s answer thereto was not filed until the 28th of May, 1880,—a little more than four years and four months afterwards,—more than ample time, it would seem, in which to discover and set up all his defences. At the hearing, after his answer was filed, he made no application for leave to amend his answer by setting up other defences, and he offered no evidence at the hearing, which was rejected by the court, as to the defences then relied upon. In this court his counsel, so far as was known to the court, presented on his behalf and discussed every defence that he was thought to have, and they were all fully considered and passed upon by the court, leaving, as the opinion shows, nothing in that -respect open to further inquiry. If Hook had been the only party to that appeal, it would seem clear, beyond question, that the opinion then filed would have ended the case, for it left nothing, so far as he was concerned, for the court below to do but to cause the property to be sold in conformity with its directions. But the fact that it remained still to take evidence as to the value of certain other property, could not change the conclusive character of the opinion as to him. The execution of the decree, as to the land conveyed to him, would simply be suspended until that fact should he ascertained, and afterwards the sale would proceed. That fact, let it be determined as it might, could in nowise change or-affect the adjudication upon the defences he had relied upon in the discussion of the case by his counsel before this court. No reason is given in the cross-bill why the matters therein alleged were not set up in the answer, and we have discovered no such reason in the evidence taken to sustain the cross-bill. From aught that there appears they were all as well known at the time the answer was filed as they are now. Indeed, the answer, as has been seen, set up homestead, and the effect of the extension of time for Hoge to make payment to the State was discussed in argument and passed upon in the opinion of this court. It is true, in the motion to set aside the decree it is alleged, and supported by Hook’s affidavit, that knowledge of the arrangement between Bicheson and his co-sureties, whereby he undertook to pay the judgments and save them harmless for a consideration paid, came to Hook since the cause was remanded to the circuit court the second time; but that allegation is offset by the affidavit of Bicheson showing that Hook had such knowledge when his answer was filed, and that the agreement to that effect was drawn up in writing by the attorney then representing Hook in the case.

Counsel contend, however, that conrplainants were allowed to file a supplemental bill after the case was remanded the second time, and that this raised new issues of- fact, and that in order to meet those facts Hook was entitled to set up the matters alleged in the cross-bill. This is a misapprehension. It has been seen the supplemental bill simply showed the death of McFall, one of the defendants, since the last hearing, and that before his death he conveyed his lands involved in this litigation to his co-defendant, McG-uire. No new parties were made, and no new matters were alleged affecting the. merits of the controversy. The language of this court, in Ogden v. Larrabee, 70 Ill. 510, is quite pertinent to these facts: “Where a case has been heard in the circuit court, reviewed by the Supreme Court, and remanded, with directions as to the decree that shall be entered, a party can not, on a subsequent appeal, assign for error any cause that accrued prior to the decision of the Supreme Court. It will be presumed where a case has been determined in the Supreme Court upon its merits, and the errors assigned, that the appellant or plaintiff in error has no further objections to urge against the record, and that if any errors exist which are not so assigned, they are waived, and he will not be permitted to have his case heard partly at one time and the residue at another. ” And in view of the fact that the counsel filing the cross-bill came into the case as representing Hook, since'the case was remanded the second time, the remarks of the court in respect to a like question in Kingsbury v. Buckner, 70 Ill. 514, are also pertinent: “We can not examine as to the merits of the original case, but only as to proceedings subsequent to the decision at the former hearing. If the course suggested,- and so strenuously insisted upon by counsel for the appellant, was pursued by appellate courts, litigation would never cease. New counsel, as in this case, would make new arguments and present additional points for adjudication, and the most resolute persistence would finally settle the rights of the parties. The appellate power of this court would then be exercised more over its own proceedings and judgments than over those of inferior courts. ” To like effect see, also, Newberry v. Blatchford et al. 106 Ill. 584; Briscoe v. Lloyd et al. 64 id. 33; Walker v. Doane, 108 id. 236.

Second—But waiving the view just considered, the court, for other reasons, properly dismissed the cross-bill. There is no evidence whatever to sustain the allegations that the sureties, at the time they consented to the extension of time within which Hoge was to make payment to the State, knew that Hook had obtained a conveyance of land from him; that Richeson agreed with his co-complainants that he would not interfere with the lands of Hook; that Richeson had not accounted for land conveyed by Mooneyham to Hoge’s sureties, and that Richeson procured the Auditor to bid in his lands at double their value,—if it should be conceded that these allegations, or either of them, are material,—and so they may be treated as out of the case. The allegation in respect of the twenty-eight acres of land fails to show that it was the homestead of Hoge prior to the execution of his bond, and if it was not then his homestead, it is, obviously, •immaterial that it became such afterwards. The facts alleged in the cross-bill, on the contrary, by necessary inference show that Hoge owned the land when he executed the bond, or at least some time before he purchased the two acres, which was after he executed the bond, and that it was never made a part of the homestead until after the purchase of the two acres, upon which alone was the residence, and the evidence all sustains this view. The evidence shows that the judgment in favor of Franklin county was paid by Bicheson and his co-sureties, and that afterwards Bicheson made an agreement with certain of his co-sureties whereby he agreed to pay off the judgment against the State, and save them harmless on account thereof, in consideration that they would each pay him $100, and allow him the use of their names in prosecuting the present suit; and it appears that the judgment against the State was paid in whole, or in the greater part, by a sale of the lands of Bicheson. We are unable to discover anything in this to defeat this proceeding. Bicheson might, in the first instance, without any agreement, have paid the entire amount of both these judgments. His property might have been seized and sold and devoted to that end, by the sheriff, without his consent. Had he voluntarily paid them, or had they been paid by the seizure and sale of his property by the sheriff, he might have maintained a bill to be subrogated to any liens or securities held by the State or the county, or by his co-sureties, that might by them, or either of them, have been enforced for the payment of either or both of the judgments. (Brandt on Suretyship, sec. 269; Sheldon on Subrogation, see. 169.) It can, manifestly, make no difference to the creditor, the debtor, or the alienee of the debtor’s property, whether one, or two, or all of the sureties are entitled to subrogation, for the amount to be collected, and the extent to which it can be made out of property belonging to, or which once belonged to, the debtor, must all the time be precisely the same. The amount is what is actually paid on account of the default of the principal, with accruing interest, and the extent to which, it can be made out of property belonging to, or which once belonged to, the debtor, is limited by the property of the debtor liable to sale on execution issued on the judgments, and to property conveyed by him to which the lien of his bond attached. His property must pay the judgments, and this includes all real estate which he owned when the bond was executed, and which he purchased and became owner of after its execution, but before default, although he conveyed such real estate, before default, to other parties. The lien followed the real estate, and subsequent purchasers were bound to take notice of it. Before any right of theirs the real estate was answerable for any default of the collector. It was legally impossible that by mere contract with the collector they could obtain any rights in the real estate to which the lien of his bond attached, paramount to that lien. Necessarily, therefore, whether one surety was hired by the others to pay off the judgments, or they all contributed equally and paid them off, could concern no one but themselves. As against the holders of the judgments, they could not thus relieve themselves from liability. They could thereby neither bind nor affect any one but themselves. If, here, Richeson made profit in this arrangement, he made it off his co-sureties,—not Hook. When the fact of the liability of Hook’s land for the payment of these judgments is conceded, it is not possible that it can concern him whether the amount chargeable against it shall all go to one, or it shall go equally to all of the sureties. The principle is settled by express adjudication, no private arrangement among the co-sureties, for the distribution of the burden of their joint liability among themselves, will affect their rights against their principal. Sheldon on Subrogation, sec. 103. See, also, McDaniels v. Flower Brook Manufacturing Co. 22 Vt. 274; Water Power Co. v. Brown, 23 Kan. 676. The co-sureties were necessary parties to the bill, whether they have made the arrangement charged or not, because, in any view, they are entitled to be heard; and since they do not object to being complainants, others are not authorized to urge that objection for them.

Third—So far as the allegations in respect to improvements are concerned, it is not perceived that the condition of Hook is in any respect different from that of a party purchasing land incumbered by mortgage or judgment lien. Hook’s misfortune comes from his not actually knowing what the law required that he should know,—the fact and the extent of the lien of Hoge’s bond.

The irregularities complained of, as to the manner of rendering the decree, are, in our opinion, obviated by the action of the court at its April term, A. D. 1883. It was competent for the court, after hearing the evidence at its November term, A. D. 1882, to take the ease under advisement, and announce the decree to be rendered therein in vacation; but that decree, by virtue of section 47, chapter 37, of the Revised Statutes of 1874, was only in fieri, and could not become final until after the expiration of the April term, A. D. 1883, and then only as modified, if modified, and approved at that term. (Hook v. Richeson et al. supra.) At the April term, A. D. 1883, counsel for plaintiff in error urged every objection they deemed proper to urge against the decree, and the action of the court in overruling those objections was the then approval of the decree in the language in which it was then expressed. No matter how the language became incorporated into the decree, it then became, and for the first time, the language of the court as the expression of its final determination in the ease,—and this although by its terms it related back to take effect as of the preceding term. In Blair v. Reading, 99 Ill. 600, cited by counsel for plaintiff in error, the attempt was to render a final decree in vacation without any stipulation of the parties to that effect, as provided in section 48, chapter 37, of the Revised Statutes of 1874, supra, and it was held the chancellor had no such power. There was no intervention of a subsequent term, and refusal of the court then to set aside or modify a decree previously announced to be rendered.

The only error we have been able to discover in the decree is this: It is decreed that the land owned by the parties known as the “Cantrell heirs, ” shall be sold, subject to a homestead of $1000, unless they shall, by the 10th of April, A. D. 1883, pay to tlie master $468.20. This condition was erroneous. The sale should have been absolute, subject to the homestead right. But since it is not' pretended that payment was actually made, the decree, in effect, is now as absolute as if this nisi clause had been, in the first instance, omitted. The decree is modified here by striking out that clause; but since we regard it, under the circumstances, as more a matter of form than of substance, no costs will be allowed on that account.

The decree, as thus modified, is affirmed.

Decree affirmed.

Mr. Justice Scott : I do not concur in all of this opinion.


source: Caselaw Access Project

author: Mr. Justice Craig

license: Public Domain

text:
    Richard Richeson v. The People ex rel. William R. Jones.

      Filed at Mt. Vernon January 25, 1886.

    1. ' Municipal subscription—in aid of railroads—prior to the constitution of 1870—of a subscription with conditions—and of the power to agree to a change in such conditions after the adoption of the constitution. Prior to the adoption of the constitution of 1870, the legislature had the power to authorize counties and other municipalities, by a vote of the people, to take stock in railroad companies, and to issue bonds for such stock, and levy and collect taxes to pay the same.
    2. Under the laws as they existed prior to the adoption of the present constitution, the people, in voting for a proposition to take stock in a railroad corporation, had a right to impose conditions upon which the subscription should be made, and the municipal authorities could exercise the power conferred by the vote according to such conditions, but in no other manner.
    3. The constitution of 1870 prohibits municipal corporations from making subscriptions or donations to any railroad or private corporation except when authorized under prior laws by a vote of the people, and when so authorized the subscription must be in accordance with the conditions upon which it was voted. After the adoption of-the constitution the conditions upon which such a subscription was voted can not be changed, and a subscription made upon other and different conditions.
    4. Prior to the adoption of the constitution of 1870, a proposition to subscribe $100,000 to the stock of a railway company, upon condition that the company’s road should be located through the county, and its construction commenced within nine months and completed by the first day of June, 1872, was submitted to a vote of the people of the county, and carried. In February, 1871, the county board, by an order, extended the time for commencing the work on the road to January 1, 1872, and its completion to January 1, 1874. On November 12, 1877, the county board made another order, under which the bonds were issued, but the work on the road was not commenced before January, 1877, and not completed before November 1, 1879: Held, that the county board had no authority to extend the time of commencing and completing the road, and that the bonds so issued upon the county’s subscription were void, and a tax levied to pay interest on them illegal.
    Appeal from the County Court of Franklin county; the Hon. William H. Williams, Judge, presiding.
    Mr. Thos. J. Layman, for the appellant:
    At the time of the adoption of the present constitution there was no contract between the county and the railway company to be impaired, or any rights then vested in the company.
    Where a statute gives a right in its nature not vested, hut remaining executory, if it does not become executed before a repeal of the law, the right fails with the law. Van Inwagen v. Chicago, 61 Ill. 31; Dwarris on Statutes, 676; Canal Co. v. Chicago, 14 Ill. 334; Aspinwall v. Davis County, 22 How. 364; Richardson v. Akin, 87 Ill. 138; State v. Saline County, 45 Mo. 242.

      The obligations entered into under existing laws, since the adoption of the new constitution, can not be enlarged or changed. Middleport v. Life Ins. Co. 82 Ill. 568; People v. Jackson County, 92 id. 451; People v. Town of Waynesville, 88 id. 469.
    After July 2,1872, neither the county nor any of its officers had any power to extend the time or change the condition upon which the subscription was authorized. Middleport v. Life Ins. Co. 82 Ill. 568, and cases cited above.
    Counties have no general authority to execute bonds payable at a future day, and can only do so when authorized by positive law. Barnes v. Town of Lacon, 84 Ill. 461; Hardin County v. McFarland, 82 id. 138; Law v. People, 87 id. 385; Whitewell v. Pulaski County, 2 Dillon C. C. 249.
    Neither the county nor its officers can create or contract any debt against the county unless expressly authorized to do so. Cook County v. McCrea, 93 Ill. 236; Lippincott v. Town of Pana, 92 id. 24.
    If there was no law authorizing the issuing of bonds, then the vote upon the question was void, and could not confer the power. Town of Oakland v. Skinner, 4 Otto, 257.
    Not only the power to subscribe for stock must be given the county by express legislation, but the power also to create indebtedness payable at some future day must be given in express terms by law, or the county can not exercise such power. Gaddis v. Richland County, 92 Ill. 119; Hewitt v. Normal School District, 94 id. 532; Board of Supervisors v. Farwell, 25 id. 181; Wells v. Supervisors, 12 Otto, 625; Clark v. Hancock County, 27 Ill. 305; Marshall County v. Cook, 38 id. 44; Wiley v. Silliman, 62 id. 170; Hardin v. Railroad Co. 65 id. 90; McWharton v. People, id. 290; Town of Big Grove v. Willis, id. 263.
    It devolves on the People to show that the tax which is sought to be collected has the sanction of law'to support it. Cooley’s Const. Lim. 518; English v. People, 96 Ill. 569.

      Mr. George Hunt, Attorney General, for the appellee:
    The order of the board of supervisors that the county subscribe, amounted to a subscription in fact. Moultrie County v. Savings Bank, 92 U. S. 631; Fund Society v. City of Philadelphia, 31 Pa. 174; Sacramento v. Kirk, 7 Cal. 419; Clark County v. Turnpike Co. 11 B. Mon. 143; Nugent v. Putnam County, 19 Wall. 241; Logansport v. Blakeman, 17 Ind. 318.
    The condition that the road should be commenced and completed by certain days, was one which the county might waive. It ivas not such a condition as affected the original power to make the subscription. The time within which the road should be finished could not affect the validity of all the bonds. (Randolph County v. Post, 93 Ill. 502.) In this case the court say: “We should unreasonably restrict the rights and powers of a municipal corporation were we to hold that it did not possess the power to alter its legally made contract, by waiving conditions found to be injurious to its interests, or that it could not estop itself like other parties to a contract.” Bigelow on Estoppel, 464; 1 Dillon on Mun. Corp. secs. 275, 383, 385, 398; Moran v. Corwin, 2 Black. 722; Zabriskie v. Cleveland, 23 How. 400; Pendleton v. Avery, 23 Wall. 297.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an application by the collector of Franklin county, at the May term, 1885, of the county court, for judgment for taxes against delinquent lands for the year 1884, and for back taxes for prior years. On the day application was made for judgment, Richard Richeson appeared and filed objections in writing to the rendition of a judgment against lands owned by him, for taxes levied to pay interest on bonds issued by the county to the Belleville and Eldorado Railroad Company, under an act approved February 22, 1861, entitled “An act to incorporate the Belleville and Eldorado Railroad Company. ” The objections were overruled, and judgment rendered for the amount of taxes assessed against the lands to pay interest on one hundred bonds which had been issued by the county. To reverse the judgment of the county court, Richeson appealed.

It appeared from the evidence introduced on the hearing, that on the 24th day of July, 1869, the county court of Franklin county entered of record the following order:

“Be it ordered by the court, that by authority of an act of the General Assembly of the State of Illinois, entitled ‘An act to incorporate the Belleville and Eldorado Railroad Company,’ approved February 22, A. D. 1861, and an act of the General Assembly approved November 6, A. D. 1849, authorizing counties to take stock in railroad companies, notice is hereby given, that on Saturday, the 11th day of September, A. D. 1869, in the various precincts in the county of Franklin, and State of Illinois, at the usual voting places, an election will be held upon the question whether or not the county of Franklin shall subscribe the sum of $200,000-to the capital stock of the Belleville and Eldorado Railroad Company, payable in county bonds at par, due in twenty years from date, with interest payable semi-annually, at the rate of eight per cent per annum, and to be of the denomination of not less than $1000 each, said bonds to be issued upon the following conditions, and not until they are complied with: ”

The first condition required the railroad to be located through Franklin county, in a certain specified line. The second condition was as follows: “That said railroad shall be commenced in the county of Franklin within nine months from the date of said election, and completed through the county by the 1st day of June, A. D. 1872. ” There were other conditions upon which the vote was taken, but it will not be necessary to refer to them here.

On the 6th day of November, 1869, the county court again convened, and entered an order reciting the order of July 24, 1869, and then declared that a majority of the voters of the county, at the election held on the 11th day of September, did vote in favor of the proposition to subscribe $200,000 to the capital stock of said railroad company. The order then proceeds:

“It is ordered hy the court, that by authority of the vote at the election aforesaid, held in the county of Franklin on the 11th day of September, A. D. 1869, and by authority of an act of the General Assembly of the State of Illinois entitled ‘An act to incorporate the Belleville and Eldorado Bail-road Company,’ approved February 22, A. D. 1861, and an act of the said General Assembly approved November 6, A. D. 1849, authorizing counties to take stock in railroad companies ; that the county of Franklin, in the State of Illinois, does hereby subscribe to the capital stock of the Belleville and Eldorado Bailroad Company the sum of $100,000 by virtue of the said act of the General Assembly of the State of Illinois entitled ‘An act to incorporate the Belleville and Eldorado Bailroad Company,’ approved February 22, 1861, and. the further sum of $100,000 by virtue of an act of the said General Assembly approved November 6, A. D. 1849, authorizing counties to take stock in railroad companies, making a total of $200,000 hereby subscribed to the capital stock of the said Belleville and Eldorado Bailroad Company; that said capital stock subscribed as aforesaid be payable in the bonds of the county of Franklin at par, said bonds to be due in twenty years from the date thereof, and to draw interest, payable semi-annually, at the rate of eight per cent per annum,—said bonds to be of the denomination of not less than $1000 each. It is further ordered and considered by the court, that said bonds are to be issued upon the following conditions, and never until they are complied with,—that is to say: ”

Then follow all the conditions embraced in the order of submission, including condition No. 2 above.

No other action was taken by the county of Franklin in regard to the subscription until February 6, 1871, when the county court, after reciting that the time for beginning the construction of the road had expired, ordered “that the time for commencing and completing said railroad be extended, and that the said subscription be made on the stock books of the Belleville and Eldorado Railroad Company upon the following terms and conditions, and not until they are fully complied with, to-wit: * * * The said railroad shall be commenced in the county of Franklin on or before the 1 st day of January, A. D. 1872, and completed through the county by the 1st day of January, 1874; that $100,000 of said bonds payable on said stock shall be delivered to said company when said railroad is in running order, and the nepessary cars, propelled by steam, running thereon from DuQuoin- or Eldorado to Benton, as aforesaid, and a station located at Benton, and .$100,000 of said bonds to be so delivered when the said railroad is completed and in running order, and the necessary rolling stock thereon through said Franklin county. ” Other orders were made from time to time in regard to the subscription, after the last named order, but they have no special bearing on the ease.

In the meantime the county adopted township organization, and on the 13tli day of December, 1876, the board of supervisors passed a resolution, by the terms of which the county subscribed $150,¿000 to the capital stock of the railroad company,—$75,000 under the act of 1861, and $75,000 under the act of 1849. The order required bonds of the county to be issued and placed in the hands of a trustee. The order also provided that the building of the road should be commenced in thirty days, and completed by October 15, 1877. On the 12th day of November, 1877, the board of supervisors made another order amending the last named order, so that' the subscription of the county should be $100,000 under the act of 1861, and $50,000 under the act of 1849. In pursuance of these two orders last named, the bonds were issued on the 13th day of November, 1877,—one hundred of $1000 each, under act • approved February 22, 1861, and fifty of $1000 each, under the act of November 6, 1849. It also appears from the evidence, that no work was done in grading or track laying on the line of the road in Franklin county prior to January, 1877, and it was also proven on the trial that the road was not completed through the county until November 1, 1879.

It will be observed that the tax for which judgment was rendered was levied for the purpose of paying interest on the one hundred bonds, which purport, on their face, to have been issued under an act entitled “An act to incorporate the Belle-ville and Elclorado Railroad Company, ” approved February 22, A. D. 1861; and when bonds are mentioned hereafter in the opinion, these are the bonds referred to, as the other bonds issued under the act of 1849 are not involved, and their validity will not be considered.

As is well known, prior to the adoption of the constitution of 1870 the legislature had the power to authorize counties and other municipalities, by a vote of the people, to take stock in railroad companies, and to issue bonds for such stock, and levy and collect taxes in payment of such bonds; but that instrument prohibited counties, cities, towns, townships or other municipalities from becoming subscribers to the capital stock of any railroad or private corporation, or making donations to or loaning credit in aid of such corporation, with this exception: “Provided, however, that the adoption of this article shall not be construed as affecting the right of any such municipality to make such subscriptions where the same have been authorized under existing laws by a vote of the people of such municipality prior to such adoption.” Here the subscription was not made, nor were the bonds issued, prior to the adoption of the foregoing provision of the constitution, and the question presented is, whether the subscription and the bonds can be sustained under the proviso cited above.

As before observed, the people of Franklin county did, on the 11th day of September, 1869, vote in favor of subscribing $100,000 stock in the Belleville and Eldorado Railroad Company, but the authority which the people conferred by the vote, upon the county court, was upon certain conditions. These conditions the people had the right to impose, and the county authorities could exercise the power conferred according to these conditions, but in no other manner. When the constitution was adopted, the county of Franklin had the right, under the vote which had been taken, to become a stockholder in the'railroad company in the sum of $100,000, upon the condition that the railroad should be commenced in ■the county of Franklin within nine months from September 11, 1869, and completed through the county by the 1st day of June, 1872. This right to take stock was not destroyed or abrogated by the constitution, but preserved by the proviso heretofore cited; but it is manifest that the county authorities could only act as authorized by the vote of the people. The vote, with the conditions upon which it was given, was the charter of their authority. They possessed such power as had been conferred by that vote, but no other. The object of the people, in the adoption of the constitution, was to inaugurate a new policy,—one which would absolutely prohibit municipalities in the future from involving the people of such corporations in large debts incurred for the purpose of aiding in the construction of railroads. But for the purpose of not disturbing rights which may have been acquired, the proviso was adopted, which continued the right to make a subscription where the same had been authorized under existing laws by a vote of the people,—in other words, where a vote had been taken under a law authorizing it, and the subscription had not for some cause been made, the municipal authorities had the right; under the proviso, to proceed and carry out the will of the voters as it had been expressed at the ballot-box. But this proviso could not authorize a subscription on any other or different terms or conditions than those specified in the vote.

The ruling in Middleport v. Ætna Life Insurance Co. 82 Ill. 562, is in point here. It is there said: “The obligations assumed under existing laws can not, since the adoption of the constitution, be enlarged or materially changed, either by the action of the people of the township or its corporate authorities. All power is taken away, and the utmost that can be done is to make and complete the subscription or donation previously voted under then existing laws, upon the same terms and conditions as voted. Subscriptions or donations on other terms would obviously require new consent on the part of the people of the municipality, which can not be had for want of power. ”

The county authorities of Franklin county did not observe the plain duty which had been” imposed upon them, and make the subscription conditional, as they had been authorized to do by the .vote of the people of the county at the election held on the 11th day of September, 1869, but in 1872 the county court undertook, by an order entered of record, to change and vary the conditions upon which a subscription might be made, and provide that the time for building the railroad through Franklin county might be extended. This the county had no authority to do. The vote of the people of the county, which alone authorized the subscription and the issue of the bonds, as was said before, required the railroad company, as a condition upon which the county should be bound, that the railroad should be completed through the county by the 1st day of June, 1872. When, therefore, the time for the completion of the road expired,—it not having been built through ■ the county,—the authority of the county-authorities to take stock terminated, and yet, as late as 1877,—five years after the authority to act had expired,—the subscription was made and the bonds were issued, although at this time the railroad had not been built through the county. We are fully satisfied that the action of the board of supervisors in 1877, in issuing the bonds, was unauthorized, and that the bonds were issued without authority of law.

It may, however, be said that the bonds are now in the hands of innocent holders, and that the defence interposed can not be successfully made against them. At the time the vote wras taken under which the bonds were issued, the act of April 16, 1869, was in force, the 17th section of which provides that any county shall have the right, upon making any subscription or donation to a railroad company, to prescribe the conditions upon which such bonds, subscription qr.donation may be made, and such bonds, subscription or donation shall not be valid and binding until such conditions precedent shall have been complied with. (Rev. Stat. 1874, p. 794.) This section of the act was before the court in Town of Eagle v. Kohn, 84 Ill. 292, and we there held that bonds in the hands of innocent purchasers were not valid where the conditions upon which the subscription was made have not been complied with. The language of the statute is plain and explicit, and unless it should be arbitrarily disregarded, we perceive no ground upon vdiich an innocent holder can evade its provisions.

If we are correct in our conclusions, it follows that the tax levied to pay the interest on the bonds was .illegal, and the county court erred in rendering judgment against appellant’s lands for such tax.

The-judgment of the county court will therefore be reversed, and the cause remanded for another trial in harmony with this opinion.

Judgment reversed.


author: Mr. Justioe Magruder

text:
    Henry Holston v. Thomas B. Needles.

      Filed at Mt. Vernon January 25, 1886.

    1. Descbiption—boundabies—place of beginning. Lots 6 and 9, the first being north of the other, were each 82| feet wide from east to west, and 132 feet deep from north to south. A deed for a strip off the east side of these lots described the premises conveyed as “beginning at the north-east corner of said lots 6 and 9:” Held, that the two lots were to be regarded as an entire tract, and that the boundary commenced in fact at the north-east corner of lot 6.
    2. Same—rejecting inconsistent words in description. Another deed for the same property described the boundary as “beginning at the north-east corner of said lots 6 and 9, thence south to the south-east corner of lot 9, thence west 22J feet, thence to a point on the north line of lot 6, and thence 22-J feet west of the north-east comer of said lot 6, thence east to the place of beginning:” Held, that “thence,” after the word “and,” was an evident mistake of the scrivener, and should be rejected as surplusage, and that the deed conveyed a strip of land 221 feet wide off the east side of the lots.
    3. In descriptions of lands in deeds, that which is false or repugnant will be rejected to effectuate the intention of the grantor.
    4. Ejectment—demand of possession—whether necessary—and herein, what constitutes a wrongful possession. Where possession of land has been acquired by the assent of the owner, and has been long continued, the holding of possession will not be wrongful until demand is made. The rule is different when the entry was wrongful in its inception, or has become so afterward. In the latter case no demand is necessary before ejectment may be maintained.
    5. Two owners of adjoining portions of a lot agreed to the building of a partition wall, one-half of which was to be on the ground of each, and the defendant who superintended the building of the same, made an incorrect statement as to the number of feet of the lot he owned, and thereby the surveyor employed by him, in the absence of the other owner, located the division line nearly one foot on the plaintiff’s premises, and the wall was built accordingly: Held, in ejectment to recover the strip of land of the plaintiff beyond the center of the wall, that the defendant must be held to have obtained the possession thereof unlawfully, and no demand was necessary before bringing the action.

      Appeal from the Circuit Court of Washington county; the Hon. George W. Wall, Judge, presiding.
    Mr. James A. Watts, and Mr. Daniel Hat, for the appellant.
    Mr. P. R, Hosiier, and Messrs. Rountree & Akin, for the appellee.
   Mr. Justioe Magruder

delivered the opinion of the Court:

This is an action of ejectment, brought by appellee, against appellant, in the circuit court of Washington county, to recover possession of “a piece of land one (1) foot in width, on the west side of a piece of land 23^- feet in width off the east side of lot six (6), in block five (5), in the city of Nashville,” in said county. A. B. Johnson was the common source of title. Plaintiff introduced in evidence three deeds: First, a deed from A. B. Johnson to John Bell and Hiram N. Rountree, dated April 7, 1863, and conveying “the east part of lots 6 and 9, in block 5, in the town of Nashville, in said county, beginning at the north-east corner of said lots 6 and 9, thence south, to the south-east corner of lot 9, thence west 22£ feet, thence north to a point on the north line of lot 6, and 22J feet west of the north-east corner of said lot 6, thence east to the place of beginning; ” second, a deed dated August 19, 1867, from Bell to Rountree, conveying “the undivided half of the east part of lots 6 and 9, in block 5, in the town of Nashville, in said county, beginning at the north-east corner of said lots 6 and 9, thence south to the south-east corner of lot 9, thence west 22J feet, thence to a point on the north line of lot 6, -and thence 22J feet west of the north-east corner of said lot 6, thence east to the place of beginning; ” and third, a deed from Hiram N. Rountree to appellee, dated May 31, 1882, and conveying “22¿- feet in width from east to west off east side of lots 6 and 9, extending the full length of said lots, in block 5, in the town (now city) of Nashville.”

The'first deed is objected to on the ground that the words, “beginning at the north-east corner of said lots 6 and 9,” indicate an uncertain beginning. Lot 6 lies north of lot 9, the south line of lot 6 being the north line of lot 9. The lots are 82J feet in width from east to west, and 132 feet in depth from north to south. It is true that the two lots do not both have the same north-east corner, but the two lots are to be regarded here as one tract 82j- feet wide and 264 feet deep, and it is from the north-east corner of this tract, composed of the two lots, that the description begins. It is certain that the deed conveys the east part of lots 6 and 9, and that the east part is 22J feet wide. Anything militating against this will be treated as surplusage, or it will be read as beginning at north-east corner of lot 6, thence south to the north-east corner of lot 9, thence still on to the south-east corner of lot 9, thence west 22J feet, etc., and all parts of the description are operative. The objection is not well taken.

The second deed is objected to for uncertainty on account of the following portion of the description: “thence to a point on the north line of lot 6, and thence 22J feet west of the northeast corner of said lot 6, thence east to the place of beginning.” It is evident that the scrivener made a mistake, and wrote the word “thence” after “and,” when it should have been omitted. The “point” intended to be described was a point “on the north line, and 22J feet west of the north-east corner.” It is noticeable that the conjunction “and” connects no other clauses in the description except the two here indicated,—it does not elsewhere precede the word “thence. ” And if the word “thence, ” which follows the conjunction, is to be retained, it must be referred to the same starting point as the word “thence” which next precedes it,—that is to say, a point 22j- feet west of the south-east corner of lot 9, so that the meaning of the description would be as follows: from a point 22J feet west of the south-east corner of lot 9 to a point on the north line of lot 6, 22^- feet west of the north-east corner of said lot 6. But the word “thence, ” which is thus preceded by the conjunction “and,” may be rejected as surplusage. In descriptions of lands in deeds, “that which is false or repugnant will be rejected to effectuate the intention of the grantor.” (Swift v. Lee, 65 Ill. 336; Kruse v. Wilson, 79 id. 233.) We think the second deed conveys a strip of land 22J feet wide, and that it is the same strip conveyed by the first deed. By the three deeds appellee proved his title to the east 22J- feet of the lots.

Appellant owned the remaining 60 feet of lot 6 lying west of the 22¿- feet. owned by appellee. A party wall eighteen inches wide was built between the two properties. The proof shows that appellee permitted the wall to be erected under the belief that only one-half of it was to rest upon his portion of the lot. If this had been the case, the center of the wall would have been 22j- feet from the north-east corner of lot 6; but as matter of fact the center of the wall is only twenty-one and seventy-one and one-half one-hundredths of a foot from the north-east corner. The difference is seventy-eight and one-half one-hundredths of a foot. Judgment was rendered below in favor of appellee, and that he recover of appellant said seventy-eight and one-half one-hundredths of a foot.

It is claimed by appellant that his entry was lawful, and therefore that notice to quit should have been given to him, or demand made of him for the possession. Appellee insists, on the other hand, that appellant “unlawfully took and holds possession, ” so that no such demand or notice was required. Where possession of lands has been acquired by the assent of the owner, and has been long continued, the holding of possession may not be wrongful until demand of possession has been made. A different rule, however, prevails where the entry was wrongful in its inception, or has become so afterwards. Chicago, Burlington and Quincy Railroad Co. v. President and Trustees of Knox College, 34 Ill. 195; Murphy v. Williamson, 85 id. 149.

Four property owners in Mock 5, Brown, Krughóff, appellant and appellee, were building together. Appellee was away from home while the building was going on, returning once a week, and, generally, Saturday evening. Brown, Krughoff and appellant employed a surveyor to make a survey of the lots before beginning the erection of the buildings. The surveyor proposed to go to the records and examine the deeds,to ascertain the interests of the parties, but appellant stated that such search of the records was not necessary, and that his deed gave him 61 feet of lot 6, which would leave only feet for appellee. Relying on this statement of appellant, the surveyor made his survey on the basis of 61 feet to appellant, and 21^- feet to appellee. There was a surplus in the block, of which he gave eighty-two and one-half one-hundredths of a foot to lot 6, assigning sixty-one and one-half one-hundredths thereof to appellant, and twenty-one and one-half one-hundredths thereof to appellee, so that the total interest of the latter was fixed at twenty-one and seventy-one and one-half one-hundredths of a foot. Appellee was not present when the building line was fixed, nor when the foundation of the wall was laid, and he knew nothing about the survey until long after it was made. No one represented him, and he left it to the other owners to attend to the building. Appellant seems, to have been the most active in employing the men and managing the business. He insisted very positively to appellee that his deeds called for 61 feet. Although appellee agreed with appellant to build a partition wall, yet nothing was said to him about where the wall should be located, and he “supposed it was being built one-half on each side of the line.” After the building was done, appellant admitted that he had a foot too much,—a foot of appellee’s ground.

There is nothing to show that appellee ever agreed to having more than half the wall on his land. Therefore possession of the seventy-eight and one-half one-hundredths of a foot for which judgment was rendered was not taken nor entry thereon made with his consent. Appellant did not own 61 feet of the lot, because it contained only 82J- feet, and the deeds of appellee show him to be owner of 22J feet. Therefore appellant made a statement to the surveyor and to appellee which was not true in fact. Owing to the incorrectness of such statement the surveyor made a wrong survey, and appellee suffered more than his own just share of the wall to be built upon his lot. Appellant did not introduce any evidence on the trial below. He did not even take the stand to say that he honestly believed himself to be the owner of 61 feet, when he so represented. As the record stands, he must be held to have obtained possession of the seventy-eight and one-half one-hundredths of a foot in question unlawfully, by misstating the extent of his own interest.

The judgment of the court below is affirmed.

Judgment affirmed.


author: Mr. Justice Tunnicliff

text:
    The Chicago and Eastern Illinois Railroad Company v. Joseph Guertin.

      Filed at Ottawa January 25, 1886.

    1. Negligence—fencing railroads—not on the right of way—duty and-liability of the railroad company. A railway company which erects a fence and- gate along its right of way, a few feet beyond the same and upon the land of the adjoining owner, and keeps the same in repair for some time, and then suffers it to get out of repair, whereby stock escapes through the same and strays upon the track and is killed, can not escape liability to the owner of the stock on the ground such fence and gate are not on its right of way, when it has given no prior notice that it will not keep up such repairs any longer.
    2. Same—estoppel of.railroad company to deny its liability to maintain a fence at a particular point, as, near its depot grounds. Where a railway company has erected, and for a number of years maintained, a fence along the side of and near its right of way, and near a station, but suffered it to become defective, whereby stock got upon its track and were killed, it can not exonerate itself from liability on the ground of its higher duty to the public of keeping its depot grounds open for the convenience of thpse having business with the road. So long as it permits such fence to stand and be relied on by others as a fence required by statute, it will be estopped from denying its duty to keep it in proper repair.
    3. 'Evidence—relevancy to issue. In an action against a railway company to recover for the killing of animals, based on a neglect of the company to keep a gate in a fence built by it in repair, through which stock escaped and got upon the track, where they' were killed, the defendant offered to prove that the erection of cattle-guards or a fence along its side-tracks would greatly endanger the lives of its employes, and inconvenience the public at large in loading and unloading cars from the side-tracks, and the cattle-guards would weaken the road bed, and'thereby endanger the lives of passengers: Held, that the evidence was properly excluded, as the neglect to make cattle-guards was not complained of as a ground of recovery'.

      i. Practice in the Supreme Court—in case of appeals allowed, by statute—and those only allowed upon certificate. Where an appeal is perfected to this court, whether in cases given by the statute or in cases where it is allowed only upon the certificate of at least two of the judges of the Appellate Court that it involves questions of such importance that it should be passed upon by this court, the practice in this court is the same, and the appellant may assign any errors presented by the record. It is not necessary to certify to this court questions of law.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Kankakee county; the Hon. FrInklin Blades, Judge, presiding.
    Mr. William Armstrong, for the appellant:
    On the question of the duty of railway companies to fence their tracks at their stations or depots not within incorporated cities and villages, see Railroad Co. v. Dumser, 109 Ill. 402; Railroad Co. v. Chapin, 66 id. 505; Railroad Co. v. Willis, 93 Ind. 507; Railroad Co. v. Haus, 111 Ill. 114; Railroad Co. v. Campbell, 47 Mich. 265 ; Walton v. Railroad Co. 67 Mo. 66; Morris v. Railroad Co. 58 id. 78.

      Mr. C. E. Stabs, for the appellee:
    We do not see that this case involves the law of fencing railroads at a point where a side-track is located. The neglect of duty alleged in the declaration under which a recovery is sought for the killing of the steer and colt, was that the defendant “suffered its gates and bars to get out of repair, by means whereof, ” etc. The fence and gate were built by defendant, and it being defendant’s fence and gate, it was its duty, to appellee, at least, to keep them in repair. If the fence and gate were off the right of way, the company •built them as part of its fence, and no one ever changed it.
   Mr. Justice Tunnicliff

delivered the opinion of the Court:

The appellee brought his action in case against appellant, in the Kankakee circuit court, and in various counts of his declaration sought to recover, first, for the destruction of three acres of timothy meadow, alleged to have been caused by appellant’s, locomotive having set fire to its right of way, which communicated with and destroyed the timothy stubble; second, for the killing of two steers by appellant’s train on 'the crossing at Guertain street; and third, for the killing of two head of cattle and a stallion colt, which is alleged to have occurred in consequence of the railroad company having “suffered its gates and bars to get out of repair, and by means whereof they strayed upon the track, and were struck by appellant’s locomotive, and killed. ” ' A trial resulted in a verdict and judgment for appellee foi’ $90, which judgment was affirmed by the Appellate Court for the Second District, and the judges of that court having certified' that the case involved questions of law of such'importance that it should be passed upon by this court, the appellants were allowed a further appeal.

The appellate judges have certified several questions of law to be passed upon. This was unnecessary. When an appeal is perfected to this court, whether in eases where it is given by the statute as a matter of right, or in those cases where it is allowed only upon the certificate of at least two of the judges of the Appellate Court that it involves questions of such importance that it should be passed upon by this court, the practice here is the same in both eases, and the appellant may assign any errors of law which he may consider presented by the record. The case being properly in this court, the manner in which it was brought here is immaterial, and it will stand on the same footing as all other cases.

In this case the finding of the jury was general, without specifying upon which count or counts, or for what injury, they found the defendant guilty. But from the amount of the verdict, (which was less than the evidence tended to show the colt was worth,) as well as from the other evidence in the case and instructions of the trial court, and the presumptions that should prevail to sustain it, we conclude that the jury only found for the appellee damages for the killing of the colt.

The evidence tends to show that this colt had been running in appellee’s pasture, east of the railroad track and grounds; that it escaped therefrom by reason of a defective gate in the fence, and got upon appellant’s railroad track, and was struck by its locomotive, and killed. . Appellant urges that it should not be held responsible, because the fence was not on the line of its right of way,- and that it was not bound to fence the road at this point. It is true, this fence was a few feet from the line, and upon the grounds of appellee, but appellant had erected the fence and gate through which the colt had escaped, and kept it in repair a number of years and then neglected it. It had treated this fence and gate as part of that which the law required it to build along its right of way, and haying done so, the appellee, we think, had the right to rely upon its maintaining it and keeping it in repair, and that it was its duty to do so until it had given him formal ■ notice that it considered itself absolved therefrom, and should no longer maintain or repair the same.

The statute requires that every railroad which has been in operation six months shall be fenced by the railroad company, suitably to prevent cattle, etc., from getting on the railroad, except at the crossing of public roads and highways, and within such portions of cities and incorporated towns as are platted into lots, with gates or bars at farm crossings, etc. (Sec. 1, act of 1874.) The place where the colt went through the defective gate upon the railroad track, was not one of those mentioned in the statute relieving the company of that duty—in other words, it was not one of the excepted places. Prima facie, then, it was the duty of the company to keep the fence and gate in repair at this point so as to prevent the escape of stock, and this duty they undertook to and did discharge for a number of years, but of late have neglected to do so. It now claims, as we understand it, that it should be excused from the performance of this statutory duty because of the counter and higher duty it owes to the public to keep its depot grounds open for the use and convenience of those having business with the road, in accordance with the principle announced in the case of Chicago, Burlington and Quincy Railroad Co. v. Hans, 111 Ill. 114. Whether the railroad company, could not transact its business, and operate its cars with safety to its employes, or the convenience of the public be as well subserved, with or without this fence and gate remaining as it was originally erected, were questions of fact which the company ought to be estopped from controverting so long as it permits it to stand and be used and relied upon by others as a fence which the statute by its plain reading prima facie requires it to build and keep in repair,—certainly so until they have given notice to parties interested, to the contrary, and thus give them a reasonable opportunity to build their own fence.

The principal point, apparently, relied upon by counsel for appellant for a reversal, and which’ he has very ably and elaborately argued, concerns the exclusion of certain evidence offered on behalf of the company on the trial of the cause. The station and switch grounds of the company were adjacent to and extending north and south past the place where the fence and gate were, on its east side, and through which the colt escaped. Appellant offered to prove that the erection of cattle-guards, or a fence along its side-track, on these grounds, between its switch stands, one of which was north and the other south of the gate, would greatly endanger the lives of its employes, who would, in the transaction of its business, be compelled to switch.cars on and along the sidetracks upon these grounds, and in attending to the switching would run great risk of being caught in the cattle-guards, and that such a fence and cattle-guards would greatly inconvenience the public at large in loading and unloading cars upon the side-track in the business of shipping freight, and that placing other cattle-guards there would weaken the roadbed so as to endanger the lives of passengers. A majority of the court are of the opinion that the evidence was properly excluded, for the reason that appellee’s cause of action was not based upon the neglect of appellant to erect cattle-guards or build fences along its side-tracks or its station grounds, but, so far as any recovery was had, for a failure to keep in repair a fence or gate forming part of the same, already built at or near its right of way, by reason whereof appellee’s stock escaped from his pasture and went upon appellant’s track and was killed by its locomotive, and hence the evidence offered was immaterial to the issue being tried.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Chief'Justice Mulkey

text:
    Charles G. Barth et al. v. The Commercial National Bank.

      Filed at Ottawa January 25, 1886.

    Judgment and execution mens upon land—prior and junior judgments. Where there are two or more judgments of different dates in the same county, against the same debtor, and an execution is sued out on the oldest one within a year of its date, and returned unsatisfied, an alias execution issued on such judgment and levied upon the real estate of the debtor within seven years from the date of such judgment, will create an execution lien thereon, commencing at the time the execution came • to the hands of the officer, and extending one year beyond the lien of the judgment, the legal effect of which will be to prevent the liens of the junior judgments or executions issued thereon, from so attaching as to give the latter judgments precedence, when the sale under the oldest judgment is made after the expiration of the seven years and within the life of the execution lien.
    Appeal from the Circuit Court of Cook county; the Hon. T. A. Moran, Judge, presiding.
    On the 13th of February, 1SS5, the Commercial National Bank of Chicago filed a bill in the circuit court of Cook county against Charles G. Barth and James N. Wetlierell, alleging that on September 24, 1875, one B. G. Caulfield was the owner in fee of blocks 1, 3 and 4, in Warder’s subdivision of block 32, in school trustees’ subdivision of the south half of the south-east quarter of the north-west quarter of section. 16, ■town 38 north, range 14 east, of'the third principal meridian, in Cook county, and on that day the Central National Bank of Chicago recovered judgment against said Caulfield for $562.04, and costs, in the Cook county Superior Court, upon which execution issued on the day of its rendition, and such execution was returned by the sheriff December 22, 1875, wholly unsatisfied, whereby said judgment became a lien on said lands; that afterwards, on September 18,1882, and while the lien of said judgment still continued, an alias execution issued upon said judgment, and was placed in the hands of the sheriff, and hy him levied on the said lands on September 19, 1882; that afterwards, on September 26, 1882, the plaintiffs in said judgment sued out a writ of venditioni exponas upon the said levy, and to carry the same into effect by a sale of the lands so levied upon, by virtue of which writ of venditioni exponas the sheriff duly advertised the said lands for sale on October 23, 1882, and at such time duly offered the said lands for sale in the manner required by law, and the same were struck off to the complainant at the sum of $800, and immediately thereafter'the sheriff delivered to complainant the usual certificate of sale, a copy of which was duly recordedthat after the period allowed by law for redemption from such sale had'expired, and no redemption having been made, the said sheriff executed and-delivered to complainant the usual sheriff’s deed to carry into effect said sale, and thereby vested in fee the legal - title to all the said lands in the complainant, and immediately thereafter complainant entered into possession of all said lands under said deed, and fenced the same, and has ever since remained in the actual .and peaceable possession thereof. The bill then shows that on the 12th of May, 1877, one Augustus H. Burley recovered a judgment in the Superior Court of Cook county against the said B. G-. Caulfield, for the sum of $333.78, and- costs, upon which an execution ivas issued on the same day, which was returned on the 10th of August following, not satisfied; that on the 25th of June, 1883, an alias execution was issued on said judgment, and on the same day levied on blocks 1 and 4, above mentioned; that the same, after having been duly advertised, was, on the 23d of July following, sold by the sheriff to James N. Wetherell, who received at the time the usual certificate of purchase; that on the 7th of January, 1884>. Wetherell himself obtained a judgment in the Superior Court of Cook county against Caulfield for $6500, upon which execution was issued January 14, 1884, and subsequently returned no property found; that on May 1, 1884, Wethérell' assigned this judgment to Charles G. Barth, who sued out an alias execution thereon, and after having .redeemed from the sale under the Burley judgment, levied said alias execution on said blocks 1 and 4, which, on the 29th of September, were struck off and sold by the sheriff to the said Charles G. Barth, who subsequently received a sheriff’s deed therefor. The bill then prays that the sheriff’s deed to Barth be held void as to said blocks 1 and 4, and that the same be set aside as a cloud upon appellant’s title, etc. A general demurrer to the bill’ having -been overruled, the defendant declined to answer further, whereupon the court entered a decree in conformity with the prayer of the bill, and the defendant appealed.
    Mr. James B. Mann, and Mr. Josiah H. Bissell, for the appellants:
    A judgment lien can in no case be extended beyond the seven years from the date of the rendition of the judgment, by the levy of an execution, or in any other way. Riggin v. Milligan, 4 Gilm. 50; Tenney v. Hemenway, 53 Ill. 97; Gridley v. Watson, id. 186; Ewing v. Ainsworth, id. 464; James v. Wortham, 88 id. 69; Conwell v. Watkins, 71 id. 492; Scammon v. Swartwout, 35 id. 343; Stribling v. Prettyman, 57 id. 371; Priest v. Wheelock, 58 id. 114.
    Section 6 of the act of 1872 was not intended to extend the lien of the judgment or execution. The levy of an execution does not create a lien. There is no execution lien except where the judgment lien has ceased. If an execution is issued within a year, the judgment continues to be a lien until the end of the seven years, and during that time it was not intended that an execution should become a lien. But if the judgment lien ceases at the end of the first year, then an execution issued- and delivered during the seven years becomes a lien.

      That the levy does not continue the lien, is well settled in other States. Freeman on Judgments, sec. 394; Bagley v. Ward, 37 Cal. 121; Isaac v. Swift, 10 id. 81; 46 id. 654; Roe v. Swart, 5 Cow. 294; Little v. Harvey, 9 Wend. 158; Tufts v. Tufts, 18 id. 621; Graff v. Kepp, 1 Edw. Ch. 619; Pettit v. Shepherd, 5 Paige, 493; Rupert v. Dantzler, 12 S. & M. 697; Beirne v. Mower, 13 id. 427.
    A sale under a venditioni exponas can not have greater validity than a sale under the execution itself. - It confers no new authority. Badham v. Cox, 11 Ind. 460; Doe v. Hays, 4 id. 119.
    Messrs. Sleeper & Whiton, for the appellee:
    This case can not be distinguished from Dobbins v. First National Bank, 112 Ill. 553.
    The object of section 6 of the act of 1872 was to extend the time in which a sale could be made, beyond-that allowred under the former statute.
    A vendi. is only a prolongation or substitute for the original fi.fa. It confers no new authority. Phillips v. Dana, 3 Scam. 551; Ballingall v. Duncan, 3 Gilm. 477; Logsden v. Spivey, 54 Ill. 104; Willoughby v. Davey, 63 id. 246; Doe v. Hays, 4 Ind. 119.
    Appellants’ counsel fail to note and give effect to the distinction between the general lien of judgments and specific liens acquired by levy.
   Mr. Chief'Justice Mulkey

delivered the opinion of the Court:

As the judgment under which appellee claims is the oldest, it had precedence over the liens of the other judgments at the time appellee sued out its execution, and as the lien of the execution commenced- before the judgment lien expired, and continued until extinguished by the sale, it follows that by means of the judgment and execution together there was a continuous lien upon the land in question until the sale under appellee’s last execution.

The question for determination, then, is, whether the title of appellee thus acquired is superior to that of Barth, who claims, as we have seen, under a junior judgment, and an execution sale made under it, before the seven years’ lien of such junior judgment had expired. Upon the authority of Dobbins et al. v. First National Bank of Peoria, 112 Ill. 553, and the late ease of Hastings v. Bryant et al., ante, p. 69, this question must be answered in the affirmative. The first of these cases was very ably argued on both sides, and the conclusion reached was after very mature deliberation, and we are fully satisfied with the construction then given to the act of 1872. Some of. the expressions used in the opinion in that ease may not be entirely accurate, but we have no doubt of the correctness of the conclusion there reached. The substance of that decision, so far as it relates to the question now under consideration, is, that where there are two or more judgments of different dates in the same county, against the same judgment debtor, and an execution is sued out on the oldest .judgment, within the year, and returned unsatisfied, an alias .execution subsequently sued out on such judgment, and levied upon the real estate of the judgment debtor, within the seven years from the date of such judgment, will create an execution lien thereon, commencing at the time the execution came to the hands of the officer, and extending one year beyond the lien of the judgment, unless the same is in the meantime satisfied, the legal effect of which execution lien will be to prevent the liens of the junior judgments, or of the executions issued thereon, from so attaching as to give the latter judgments precedence, where the sale under the oldest judgment is made after the expiration of the seven years, and within .the life of the execution lien. As to just how the statute operates in effectuating the legislative intention,, is a matter of but little importance, for whether we say the sale, when made after the expiration of the seven years, but within the life of the execution lien, relates back to the date of the levy, and is thus brought within the lien of the judgment, as is suggested in the Dobbins case, or whether we say the lien of the execution 'issued upon the oldest judgment, and levied ■within the seven years, has, under - the statute, precedence over all liens of junior judgments or of executions issued thereon, the result is the same. This statute, as we understand it, is to , be construed precisely as if the legislature had declared that in a case like this the suing out of the alias execution, and • levying the same within , the seven years; should, for the purposes of a sale by the sheriff, extend the lien of the judgment for one year, in such manner and with such effect as to cut off all intervening liens.

• The'judgment will be affirmed.

Judgment affirmed.