author: Mr. .Justice Scott

text:
    Thomas Allwood v. Alexander Cowen et al.

      Filed at Ottawa January 22, 1885.

    section 2V or toe itevenue act, to deduct from ms credits lor each year tne amount of bona fide debts owing by Mm for the same years, respectively; and it is only the balance of the credits that is subject to taxation.
    2. Same — assessor’s finding as to amount of credits — how far conclusive. The acts of an assessor in ascertaining and determining the amount of credits of a party for a given year, and the amount of bona fide debts to be deducted therefrom, are in the nature of judicial acts, and are not subject to review by his successor, although decided ever so erroneously. No power is given to his successor, whether it be himself or another, to correct or in any manner revise his judgment in such matters; nor has an assessor in a subsequent year any authority to raise the assessed value of any article of personal property which has been once fixed for a former year.
    3. Same — as to omitted property — of its assessment in subsequent year— distinguished from a revision of a prior assessment as to valuation. The .provisions of section 276 of the Revenue act, that if any real or personal property shall be omitted in the assessment of any year or number of years, when discovered it shall be listed and assessed, etc., applies only to cases where the owner omits to list the whole number of articles of personal property, — as, for instance, the whole number of horses he may own, — in which case the specific articles omitted may, when “ discovered, ” be assessed, etc. Such section has no application to the case of credits, so as to enable one assessor to go back and increase the amount found by his predecessors.
    4. Injunction — to restrain collection of taxes — upon what grounds. A court of equity has jurisdiction to enjoin the collection of a tax when it is levied without authority of law, or when the property assessed is not subject to taxation. Where an assessor, in assessing a party’s personal property and credits, went back three years, and raised the amount of his credits for those years $7000, which was entered on the books, and assessed against the party as for such prior years, it was held, that such assessment for the prior years was without authority of law, and that a court of equity would enjoin the collection of the tax on such assessment.
    Appeal from the Circuit Court of Peoria county; the Ron. David McCulloch, Judge, presiding.
    Messrs. Jack & Moobe, for the appellant:
    The right of an assessor to charge up a tax-payer for omitted personal property, does not exist, under section 276 of the Revenue law, without notice of the increase of his assessment. It certainly could not be intended to confer upon an assessor, years after an assessment, the power to go over the matter again and again, and increase the same at his pleasure.
    An assessor is a judicial officer, and must settle questions of fact as a judge. Chemung v. Elmira, 53 N. Y. 49.
    Section 276 of the Revenue act does not authorize the assessor to bring up and add anything whatever under the particular item of “credits,” when an assessment had been made upon credits during the former years.
    Our statute provides a schedule under which every taxable item shall appear by itself, and it has been held that in such a ease each article must, on the face of the list, be so described as to appear to be taxable. (Adam v. Litchfield, 10 Conn. 127.) These are all susceptible of specification and identification except the item of “credits.” This differs radically from all the others in that it does not comprise a specific article, nor even a class of specific articles, but only an excess or net balance. The law nowhere authorizes an assessor to assess a promissory note, as such, nor even choses in action or debts, as a class, but permits the tax-payer to deduct from the sum of the choses in action or debts due him all debts bona fide owing by him, and taxes only the residue.
    The term “ credits ” means the excess of the sum of all legal claims and demands, whether for money or other valuable thing, or for labor or services due or to become due, over and above the party’s just debts. Payne v. Watterson, 37 Ohio St. 123.
    An assessor has no power to change the valuations of any property assessed for a former year. Lehman v. Robinson, 50 Ala. 219; Sudwith v. Brittain, 76 N. C. 458.
    When a tax-payer may contest a tax at once, and when he must first apply to the proper officers and boards for relief, see Cooley on Taxation, 528.
    When a tax is levied without warrant of law, equity will restrain its collection at the suit of the tax-payer. Kimball v. Merchants’ Loan and Trust Co. 89 Ill. 611; Vieley v. Thompson, 44 id. 13; Drake v. Phillips, 40 id. 388; Lemont v. Singer & Talcott Stone Co. 98 id. 94; Felsenthal v. Johnson, 104 id. 21.
    Messrs. Stevens, Lee & Horton, for the appellees,
    contended that the property was subject to taxation, and was not unfairly done, or done with any improper motives or purposes. Allwood failed to show he did not own the rights and credits assessed to him. The burden of showing injustice should rest on the tax-payer. Railway Co. v. Johnson, 108 Ill. 11; Felsenthal v. Johnson, 104 id. 21.
    Chancery has no jurisdiction, for the reason that the statute afforded ample remedy to any one feeling aggrieved by his assessment.
   Mr. .Justice Scott

delivered the opinion of the Court:

The bill in this case was brought by Thomas Allwood, against Alexander Cowen and others, to enjoin a tax levied on credits alleged to belong to him, and that are charged to have been omitted from the assessments made against him for the years 1877,1878 and 1879, which assessments he charged were made without authority of law, and are therefore void. Counsel for the respective parties agree in the statement of facts, and the decision involves only the construction of a number of sections of the Eevenue act now in force.

Section 276 of the Eevenue act, (Rev. Stat. 1874,) and which is the same as that now in force, provides that if any real or personal property shall be omitted in the assessment of any year or number of years, when discovered shall be listed and assessed by the assessor, and placed on the assessment and tax books. It was under this section of the statute the assessor of the town of Princeville, in which complainant resides, undertook to assess complainant for past years on credits which he insisted had been “discovered” to have been omitted in former assessments. It is made to appear complainant was assessed on his credits for the years 1877, 1878 and 1879, and had paid all taxes so assessed and levied for those several years. In 1880, the assessor, under the assumption he had discovered credits belonging to complainant that had been omitted in ascertaining the amount of credits upon which comjdainant was liable to be assessed for the past years named, determined the amount he believed to have been omitted for each year, aggregating the sum of about $7000, and assessed and placed the same on the assessment and tax books for the year 1880, against complainant, with the amount of credits assessed against him for the latter year. This, it is thought, is without any warrant or authority of law. Most articles of personal property are required by - section 25 to be listed and assessed by the number of the articles owned by the party to be assessed, — as, for instance, the number of horses, cattle, hogs, wagons, watches, clocks, etc., — the number of each to be separately stated by the owner when listing the same. But credits are not assessed in that way. The whole amount is ascertained, and from that amount the amount of bona ficle debts owing by such person may be deducted, and it is only the balance that is subject to taxation. In this case complainant is not a banker, broker or stock-jobber, and he was entitled, under the 27th section of the Bevenue act, to deduct from the amount of his credits for the years 1877, 1878 and 1879, the amount of bona fide debts owing by him for the respective years. So far as the assessor exercised his judgment in ascertaining such facts, under the statute his acts are in the nature of judicial acts, and are not subject to review by his successor, whether decided ever so erroneously. Ascertaining the amount of credits after deducting bona fide debts owing by the party to be assessed, involves, in some degree at least, judgment and determination on the part of the assessor acting. No power is given by statute to his successor, whether he is his own successor or not, to correct or in any manner revise the judgment of his predecessor in such matters.

It is apprehended section 276 has no application to such cases. It applies only to cases where the owner omits to list the whole number of articles of personal property, — as, for instance, the whole number of horses he may own, — the specific articles omitted may, when “discovered,” be assessed and placed on the assessment and tax books for any subsequent year. But credits are not assessed by items, and to discover what items, if any, were omitted in ascertaining the amount of credits assessed in any previous year, would require investigation, and that implies the power of the acting assessor to review the acts of his predecessor in such matters, — a power which does not exist, by statute or otherwise. What was done by the assessor in this case was not assessing specific articles of personal property that were discovered to have been omitted in former years, but it was simply raising the amounts of credits after deducting bona fide debts, as the same were determined in former years. Certainly the statute has given the assessor no authority, in a subsequent year, to raise the assessed value of any article of personal property which had been once fixed in a former year. Nor has the statute conferred any authority on an assessor to raise or increase the amount of credits liable to taxation after the same has been ascertained in a former year by his predecessor, and the action of the assessor in this case was without authority of law.

No doubt is entertained as to the jurisdiction of a court of equity to afford the relief sought by the bill in this case. This court has had frequent occasion to declare that chancery has jurisdiction to enjoin the collection of a tax when it is levied without authority of law, or where the property assessed is> not subject to taxation. The cases in this court that declare this doctrine are numerous and consistent. It will be necessary to cite but few of them: Kimball v. Merchants' Loan and Trust Co. 89 Ill. 611; Searing v. Heavysides, 106 id. 85. In the case being considered the tax assessed against complainant was wholly without authority of law, and therefore comes within the class of cases where the court has uniformly entertained jurisdiction to afford relief, otherwise great injustice might be done.

The decree of the circuit court will be reversed, and the. cause remanded for further proceedings not inconsistent with this opinion.

Decree reversed.


source: Caselaw Access Project

author: Mr. Justice Walkeb

license: Public Domain

text:
    Daniel R. Brant v. Benjamin E. Gallup et al.

      Filed at Ottawa January 22, 1885.

      1. Appeal — as to the amount involved — on agreement to keep property insured. In an action for an alleged breach of an agreement to keep insured a building of the insurable value of $125,000, which was burned, and whereby the owner lost that sum, where the evidence in the record showed the value of the property, it was held, that an appeal would lie to this court from the final judgment of the Appellate Court affirming a judgment for the defendants.
    2. Same — how to determine as to the amount involved. In an action to recover damages from the breach of a contract to insure and keep insured a theatre building, during the life of a mortgage given on the same by the owner, the Appellate Court affirmed the judgment for the defendants. On application by the plaintiff for an appeal, a motion was made for a certificate of that court finding the amount involved, and the plaintiff, in support of his motion, filed his affidavit stating that his claim was for $125,000, for the breach of the agreement to insure: Held, that this court might look to such affidavit as showing the amount in controversy, as well as to other evidence appearing in the record as to the value of the property.
    3. Evidence — matters explanatory of letters given in evidence. Where a party’s letters to one not a party to the suit, are given in evidence against him, to disprove the existence of the contract claimed by him, he may show the circumstances under which they were written, but he can not testify, generally, as to his intentions or purpose in writing them, and thereby avoid their effect as a statement or declaration of the facts contained in them.

      4. Pleading and evidence — proof as to matters alleged as inckteement to the making of a contract. Where a plaintiff, in his declaration, alleges the making of a mortgage by him to secure a loan, with an insurance clause, as inducement to the making of a contract with the agents of the mortgagor to insure the property, such inducement must be proved as alleged.
    5. Same — generally, proof must establish contract declared on. If the evidence fails to establish the contract declared on, the plaintiff can not recover; and there is no error in so instructing the jury.
    6. Ekrobwill not always bevebse — as to the giving of instructions. Although some of the instructions given on the trial of a cause may be irrelevant to the issues involved, and others may not be precisely accurate, yet if they are not such as to mislead the jury to the injury of the other party, this court will not reverse the judgment for that cause alone. •

      7. Same — irrelevancy of instruction — and as containing a mere abstract proposition of law. In an action by the owner of a building which had been destroyed by fire, against certain loan agents, to recover .damages for a breach of a contract on their part to insure the building, a mortgage on the premises securing the loan providing he should keep the property insured, the court instructed the jury that any unwritten agreement made at the time of the execution of the mortgage, or just preceding, between the owner and the mortgagee, or the" owner and the agents, that the mortgagee would himself keep the property insured, was inconsistent with the clause in the mortgage, and would have been unavailable as a defence to a suit to foreclose the mortgage, and that no benefit could accrue to the owner from such a pretended agreement: Held, that the matters stated in the instruction, except the last clause, were wholly foreign to every issue in the case, but being a mere abstract proposition, could not have misled the jury.
    8. Instructions — reforming instructions which are objectionable as to matters of form. Where a party asked, and the court gave, twenty-five instructions, some of them lengthy, and some in whole or in part repetitions, and others irrelevant and obscure, it was held, that it would have been proper if the court had reconstructed them, so as to free them from redundancy, verbiage, and all foreign matter, and reduced them to a few clear and perspicuous legal propositions upon which the case turned. Proper practice would require the court to refuse all but one instruction, when they repeat the same proposition.
    9. Contract — 'what will amount to a contract-expression of an opinion by one sought to be held liable. The mere expression of an opinion by one of two loan agents effecting a loan on mortgage security, as to the meaning of an insurance clause in the mortgage, — as, that it required them or their principal, the mortgagor, to effect an insurance, — can not operate to render such agents liable for a failure to insure the property. That can be done only by an agreement to insure entered into between the parties, and understood and intended by them to be binding.
    10. Same — effect of an assurance of a loan agent as to the meaning of a cZmtse in a mortgage relating to insurance of the premises — as creating a contract. Where a party gives a mortgage for a loan; containing a clause requiring him to keep the buildings insured, the assurance of the loan agents to him that such clause required the mortgagee, or the loan agents, as the agents of the latter, to effect the insurance for him, will not constitute a contract between the mortgagor and the agents, for them to effect the insurance; and in an action by the mortgagor, after a loss by fire, against the agents, to recover for a breach of an alleged contract to insure for the plaintiff, it is not error to instruct the jury that such an agreement is inconsistent with the insurance clause in the mortgage, and constituted no defence to a foreclosure of the mortgage, Such instruction is simply irrelevant.

      11. Same — effect of verbal agreement which is inconsistent with written contract. Where a party gives a mortgage to secure a loan, in which he covenants to keep the property insured, a verbal contract entered into at the same time with the agents effecting the loan, to keep the property insured for the mortgagor, is not inconsistent with the insurance clause in the mortgage. But an agreement that the mortgagee or his agents will perform the duty imposed by the covenant on the mortgagor, would be inconsistent with the covenant, and not binding. A mere verbal agreement or understanding can not change or abrogate a party’s covenant by deed.
    12. Same — duly of party to supply omission of performance by another, to avoid loss from such omission. A party is not entitled to recover damages for a breach of a contract which he might have prevented, after knowledge of the breach, with time and opportunity to provide against the same. So if a party has employed another to effect an insurance upon his property, and has notice of the neglect to do so by his agent in ample time to procure the insurance himself, and neglects to do so, he can not recover for a loss he may sustain by reason of such neglect.
    13. Same — waiver by accepting partial performance. If a party employs another as his agent to procure an insurance upon his property, and the latter directs an insurance agent to issue a policy, and when called on the owner pays the premium, and makes no objection to the amount of the insurance, and does not order a further insurance for a greater sum, it will be taken that the amount his agent ordered is satisfactory to him, and he can not recover of his agent for a failure to insure him in a larger amount.
    14. SAME — acts constituting a release from performance. Where one employed to procure an insurance on the property of another during the existence of a mortgage thereon, fails to perform his contract for certain years, and the owner assumes that duty himself for those years, he will absolve the other party from his duty under the contract, and waive its performance.
    15. Measure of damages — breach of contract to keep property insured — when no actual loss occurred. Where a person is employed to insure buildings for another during the time a mortgage had to run, being five years, and neglected to do so for a given year, in which no loss occurred, an action lies for the breach, but no more, than nominal damages are recoverable, as no actual injury is sustained by such breach.
    16. Limitation — for breach of a parol contract to procure insurance. Where a party agrees with the owner of a lot to keep the buildings thereon insured for five years, and neglects to do so, no recovery can be had for the breach after five years have elapsed,
    Appéal from the Appellate Court for the First District;— heard in that court on writ of error to the Circuit Court of Cook county; the Hon, M, F, Fully, Judge, presiding.

      This was an action on the case, brought on the 6th day of October, 1876, by Daniel B. Brant, against Benjamin E. Gallup and Francis B. Peabody. The declaration substantially avers that Gallup & Peabody were loan agents, and on April 1, 1869, negotiated a loan from one Bourne, to Brant, of $45,000, payable in five years, and for security to Bourne took Brant’s mortgage on certain property and the Dearborn theatre, in Chicago; that Brant, in consideration of taking the loan and executing the mortgage, and $2500 commissions paid to Gallup & Peabody, employed them, and they agreed with him, to procure to be insured, and to keep insured during the life of the mortgage, the said theatre building, against loss or damage by fire, in good and responsible' insurance companies, to the amount of its fair insurable value, — the plaintiff, on notification and request, to pay the premiums; that the fair insurable value of the theatre was $150,000 ; that the defendants failed and neglected to perform their duties in the above named respects, and that during the life of the mortgage, and on October 9,1871, the Dearborn theatre was destroyed by fire, and by reason of the premises the plaintiff lost the fair insurable value of the building.
    There were three trials in the case, the first resulting in a verdict for plaintiff for $73,666.66, the second and third in verdicts for the defendants. The judgment on the last verdict was, on error, affirmed by the Appellate Court for the First District, and the plaintiff appealed to this court. A motion was made to dismiss the appeal for want of jurisdiction of this court to hear the appeal.
    Mr. J. Lyle King, for the appellant.
    Messrs. Paddock & Alois, and Mr. Emory A. Stores, for. the appellees.
   Mr. Justice Walkeb

delivered the opinion of the Court:

This case is now before us on rehearing. We have reviewed the record and the grounds of our former decision with much care and patience, and given the questions the fullest and best consideration that the time at our disposal enabled us to bestow. We have labored under the disadvantage of having a large record loaded with immaterial matter, and no clear and compact statement of the facts given; but we have endeavored to fully comprehend the case and all the questions involved. With voluminous records, containing more irrelevant than pertinent matter, we find it of great difficulty to perform the task of gleaning the pertinent from the improper evidence in such cases-. In cases thus prepared it can not be otherwise than mistakes will occur. Nor do voluminous and discursive arguments in all cases relieve us from the difficulty and labor in fully comprehending the case.

Before discussing the merits of the case we will dispose of the preliminary motion to dismiss the appeal. The statute provides for an appeal from judgments of the Appellate Courts in all cases ex contractu where the “sum or value in controversy” exceeds $1000, exclusive of costs. It appears from the transcript of the record, that on the application for this appeal a motion was made to the Appellate Court by appellant, for a certificate of the court finding the sum or amount involved in the controversy. In support of the motion, appellant filed his affidavit, in which he stated that the claim was for the value of the property lost by reason of appellees’ breach of an agreement to insure it, to the extent of $125,000. This affidavit appears in the record, and we may look to it as showing the amount in controversy, and as evidence that the claim litigated exceeds $1000, exclusive of costs. (Morris v. Preston, 93 Ill. 215.) There is also evidence in the record that the theatre building was worth more than $125,000 at the time it was burned, and to make that its fair insurable value. The suit was on a contract to keep the property insured at that insurable value, and damages were claimed for a breach of the contract. We think this brings the case within the fair intendment of the statute allowing appeals from the Appellate Court, and the motion is overruled.

■ On the trial a large number of letters were read in evidence, written by appellant to Bourne, after the fire, in reference to the loss, insurance on the property, and other matters connected with the transaction. In rebuttal,, appellant offered, in a general way, to testify to the motives which induced him to write the letters in the manner he did, but the evidence was rejected, the court holding he might testify to the circumstances under which they were written, but not to his intentions or purpose in writing them as he did. This is assigned for error. Appellant might, no doubt, as the court below decided he could, have shown the circumstances under which the letters were written, but he had no right to change the fair and reasonable import of the letters by proving a secret and unexpressed intention when he propounded his claim in his letters. That would amount to a change of the letters, by adding to their meaning, as completely as to change them by adding to their contents by any other kind of extrinsic evidence. He might as well insist that he intended, but accidentally omitted, to add another paragraph to any of the letters asserting this claim. No one will contend that could be done, yet the same thing is sought to be accomplished by this indirect mode. There was therefore no error in rejecting this evidence.

In the beginning of this investigation it might be conceded that some of the instructions are irrelevant and others are not precisely accurate; but this being conceded, the question still remains, did they mislead the jury to the injury of appellant ? This is the real question presented in considering them.

The mortgage to Bourne contained the ordinary insurance clause in such mortgages, that the mortgagor should keep the property insured in good companies which the mortgagee might select, and in default thereof the latter should have the option of selecting and insuring at the mortgagor’s expense, and the cost to be added as a part of the debt.

Complaint is made of the first of appellees’ instructions. After giving a construction to the insurance clause in the mortgage, it concludes with this proposition:

“That any unwritten agreement made at the time of the execution of the mortgage, or immediately preceding its execution, between Brant and Bourne, or Brant and Gallup & Peabody, as Bourne’s agents, that Bourne would himself keep the property insured, and was to have the exclusive privilege of insuring the property, and was to relieve Brant from any such duty, was inconsistent with the clause in the written instrument referred to in this instruction, and would have been unavailable as a defence to any suit brought for a foreclosure of the mortgage, and no benefits could have accrued to Brant from any such pretended agreement.”

It is urged that the instruction is irrelevant, and it should not therefore have been given, — that the construction of that clause of the mortgage was wholly foreign to every issue in this ease, and it should not have been given. We fully concur in this position, except the last clause in the instruction. The mortgage, its construction, or even its validity, had no bearing on this case or its issues; but it being a mere abstract proposition, we are at á loss to perceive how it could have misled the jury. But the last clause was pertinent. Appellant, in his declaration, set out as inducement, the making of the mortgage with the insurance clause, to the making of the contract averred in the declaration. ' It is a rule that, such an inducement must be proved as averred. It was therefore proper and necessary that having averred the inducement, appellant should have proved it. He did so, and went further, and testified that Peabody assured him that the insurance clause required Bourne, or Gallup & Peabody, to effect the insurance for him. This did not constitute a contract between appellees and appellant, nor does appellant insist that it did. He sues on an entirely different and distinct contract, and it was proper that the jury should be so informed. The last clause of the instruction virtually informed the jury that such statements did not create a contract or confer any benefit on appellant. He had averred a different agreement, and could recover on none other, much less on the inducement to the agreement averred in the declaration. Whether or not it conferred any benefit, or created a defence to a foreclosure of the mortgage, does not matter, — it created no right to recover in this action. And it was not error to inform the jury that such an agreement was inconsistent with the insurance clause, and constituted no defence to a foreclosure of the mortgage. This part of the instruction was simply irrelevant. We are of opinion that the giving of this instruction worked appellant no harm.

In this case the appellees asked, and the court gave, twenty-five instructions. Some of them are lengthy, others are in whole or in part repetitions, some are irrelevant, and many of them are obscure. In such case it would be proper for the judge trying the cause to reconstruct and free instructions from redundancy, verbiage, and all foreign matter, and reduce them to a few clear and perspicuous legal propositions upon which the case turns, and give them as substitutes for those asked. The ends of justice would be thus better sub-served, and there would be less complaints of the finding of verdicts.

The same objection is urged to the second, third, fourth, sixth, eighth and ninth of appellees’ instructions as is urged to the first, and what has been said of the first is equally applicable to them. Correct practice would require the trial court to refuse all but one of instructions that repeat the same proposition. The proposition will not be controverted that the mere expression of opinion by Peabody as to the meaning of the insurance clause in the mortgage could not operate to render him and Gallup liable. That could be done only by an agreement entered into between the parties, and understood and intended by them to become binding according to its terms. It was to guard against what was supposed to be the danger of the jury finding that such an opinion constituted a contract, ,that these instructions were asked and given. Appellant had testified that Peabody had, when the mortgage was executed, said the insurance clause bound Bourne, ■ or Gallup & Peabody, as his agents, to keep the houses insured, and as that statement had been admitted in evidence, it was to obviate any wrong that might result from its admission that they were given.

The sixth of appellees’ instructions is criticised. Another portion to which objection is urged, reads:

“An agreement made between the defendants and Brant, that the defendants would, as Brant’s agents, keep said premises fully insured, is inconsistent with an agreement by which the defendants engaged, as the agents of Bourne, to see to it that the buildings described in the mortgage were kept fully insured. An agreement-such as is alleged in the declaration and in each count thereof, is consistent with the clause in the mortgage relating to insurance, because by such agreement Brant was employing his agents to do what he had agreed by the mortgage to do; but any agreement made by Gallup & Peabody, as the agents of Bourne, that they would, as such agents, keep said property fully insured, and would relieve and absolve Brant from all responsibility therefor, would be inconsistent with the mortgage, because the clause referred to provided and provides that Brant, and not Bourne, should keep said property insured. But the court does not mean to intimate by what is here said, that because said agreement would be inconsistent with the mortgage, it could not have been made. Whether, or not, it or the agreement alleged in the declaration was made, the jury must determine from all the facts and circumstances in evidence. ”

It is urged that such a contract as is set out in the declaration is not inconsistent with the insurance clause. This is manifestly true; but the instruction does not say the contract set up in the declaration is inconsistent with the insurance clause. It states the opposite fact. It does, however, say, 'that an agreement that Bourne, or appellees, as his agents, would perform the duty imposed on appellant, would be inconsistent with that clause. This is true, because appellant had covenanted that he would perform that duty, and such a verbal agreement or understanding could not change or abrogate his covenant. But this is irrelevant to s;tM issues involved. The instruction did state that the pati'ie§ could make the contract set out in the declaration.

It is urged that such a contract as that mentioned is the instruction would not have been inconsistent with the insurance clause, because both parties had insurable interests. Whether this is true or not, does not matter, because that question was not pertinent to the issues in the case.

The seventh instruction is criticised. It simply informs the jury that the evidence in the case must establish the contract declared on, and failing to do so, they should find for the defendants. Although not concisely stated, this the jury would no doubt understand to be its import. It announced a correct rule of law, and was properly given, and we think it could not have misled the jury.

It is claimed that the tenth instruction is vicious, and it was error to give it. It in substance informed the jury that if they believed, from the evidence, that appellant had been informed a sufficient time before the fire that the theatre was inadequately insured, then it was his duty to have effected additional insurance, if he deemed it necessary, and failing to do so, he could not recover. This involves the question whether, in case of a breach of a contract for indemnity, the person indemnified, knowing of the breach of the agreement, may lie -by and permit the loss to occur without a demand of performance of the agreement, or to take other steps to secure himself from the loss, by performing the acts undertaken to be performed by the other party, or to procure other indemnity. The substance of this instruction is, that the party indemnified shall take such steps. It has been repeatedly held that a party being damaged can not stand by and suffer the injury to continue and increase, without reasonable effort to prevent further loss. Justice and the principles of fairness require that everyone shall use all reasonable efforts to preserve his property and protect his interests, even against the wrong or negligence of another. It is said it is not only the moral but the legal duty of a party who seeks to recover for another’s wrong, to use due diligence in preventing loss thereby. This principle applies to a breach of contract, and a party is not entitled to compensation for injurious, consequences from such breach, so far as he had the information, time and opportunity necessary to prevent them. (See Sedgwick on Damages, 6th ed., p. 106, both text and note, and authorities cited.) The same principle has been recognized by this court in cases of trespass. If the doctrine is correct, (and we perceive no reason, on principle or authority, to doubt it,) then it was the duty of appellant to have procured insurance. Gallup & Peabody, so far as is disclosed by the record, never, after the mortgage was executed, procured a dollar of insurance on the buildings. It is, however, claimed, that they directed the insurance agents to issue policies, and when called on by the agents, appellant paid the premiums. If this is true, appellant was fully informed of the extent they had ordered insurance for him, and as he made no objection to the amount, he must have been satisfied. Had he not been, he surely would have seen them, and ordered more, and as he did not, he accepted what they did as a performance of their part of the contract. Knowing the amount they had ordered, if not satisfactory, and the contract was broken by a failure to order more, it was the duty of appellant to procure such an amount as he regarded necessary, and failing to do so, under the authorities referred to he could not recover. This instruction, therefore, was not erroneous, and no error was committed in giving it.

It is urged that the thirteenth instruction is erroneous. It in substance informs the jury that if appellees neglected to insure the property, even if they had so agreed, for the years 1870 and 1871, and that appellant assumed the duty and responsibility, that would terminate the agreement, and would operate to release them from their contract, if one existed, to procure insurance after 1870; and in such a case there could be no recovery for any breach accruing after 1870, and that all prior breaches were barred by the Statute of Limitations. If there was such a contract, as claimed, and appellees neglected to perform it, and appellant assumed the duty during those years, he certainly absolved appellees from the contract, and waived its performance. All breaches prior to that time occurred more than five years before the suit was brought. ,

But it is said that this was a continuing agreement, and it did not terminate until the theatre was burned. If there was a contract, and there was a breach before 1870, an action could at once have been brought, and nominal damages could have been recovered, and no more, because there was not the slightest injury sustained by such a breach. The action was barred after five years, and if after that time appellant procured all the insurance he desired, that absolved appellees from further duty under the agreement, if one ever existed.

There were some other instructions relating to the impeachment of witnesses by contradictory statements, and in regard to the Statute of Limitations; but we do not perceive there was any material error in giving them.

The whole of appellees’ instructions considered, if they are not precisely accurate, are so slightly incorrect that we are of opinion they did not mislead the jury, ífc would be impossible in so large a record, containing so much irrelevant matter, to avoid some slight errors or to give some instructions subject to hypercritical objections; but such objections, if allowed, only obstruct the administration of justice.

Complaint is made that the court erred in refusing to give the third of appellant’s instructions. From what has been said it will be perceived this instruction should not have been given without qualification. It made no reference to the Statute of Limitations, or to the abandonment of the contract by tacit consent. There was no error in its refusal.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

Sheldon and Mülkby, JJ., dissenting.


author: Mr. Justice Graig

text:
    Ulysses G. Scheller De Buol v. The Freeport and Mississippi River Railway Company.

      Filed at Ottawa November 17, 1884.

    1. Eminent domain — of the petition — its sufficiency, as showing the proposed taking is for a public use. A petition to condemn a strip of land one hundred and fifty feet wide over defendant’s land, alleged that petitioner was a corporation organized and existing under the general railroad laws of the State; that the object of its organization was to construct and operate a railroad, under the laws of the State, from F. to G.; that it was authorized to exercise the right of eminent domain, and that in accordance with the purposes of its organization petitioner had surveyed, staked off and located its railway: Held, that from these averments it was apparent the proceeding was to condemn private property for a public purpose, and for no other.
    2. Same — hearing in term time — jurisdiction. Where no hearing of a petition for the condemnation of land was applied for or fixed for a day in vacation, but the cause was commenced for the March term of the county court, and regularly continued to the April term, and process served for that term, it was held, that the court had jurisdiction to try the case at the last named term.
    3. Same — inability to agree as to compensation — how shown. "Where the petition for a condemnation states that the petitioner is unable to agree with the owner as to the compensation to be paid for the right of way, if this need be proved it may be shown by the defendant’s own evidence.
    4. Same — width of right of way — by whom to be determined. On the trial of a condemnation proceeding for right of way, evidence that it is not necessary to take a strip of land one hundred and fifty feet wide through the defendant’s land, is not admissible. That is not a question for the jury to pass upon. The only question for the jury is the amount of damages to be assessed.
    5. Same — measure of damages — as to profits arising from use of land taken. Where the proposed right of way would take the defendant’s wine cellar, the court refused to allow him to testify what damage he would suffer by the taking of his cellar, but he was allowed to testify to the value of his land for any and all purposes: Held, no error in refusing the evidence as to the cellar.
    6: On such assessment, in ordinary cases, the question to be determined is the market value of the land to be taken, and in order to arrive at that value it is proper to show that the land is valuable for grazing, for raising corn, wheat, oats, grapes, or any other products for which it may be used; but the probable profits arising from a wine cellar, or otherwise, are too remote.
    7. So in a proceeding to condemn land used as a farm and a vineyard, it is proper to instruct the jury not to take into consideration the profits of the land owner in his business, in estimating the damages.
    8. Same — as to improvements made by another company, and aba/ndoned. Where some grading and excavations have been made on defendant’s land by a different railway company, and abandoned, and such improvement is sought to be taken in a proceeding to condemn, it is error to refuse to allow the defendant to testify how many cubic yards of grading and filling are on the land, and the present value of the grading and filling on the .line of the proposed road over his land.
    9. The value of the land sought to be taken, to the railroad company seeking its condemnation, is not a matter to be considered in estimating the damages to be allowed, as the value of the land to the petitioner, whether great or small, can not affect the true compensation which the owner may be entitled to receive.
    10. Same — of improvements, as enhancing market value. If the land to be taken has upon it an improvement which materially adds to its market value, the owner will have the right to show its character and extent, and its value, for the purpose of enhancing the market value of the property. The market value is not confined to any one particular use, but the value for any purpose for which the land may be adapted may be proved.
    11. Same — us to “incidental damages,” such as cutting off one part of a farm from another — or, inconvenience in reaching a highway. Where a strip of land through a farm is sought to be condemned, it is error to instruct the jury that “incidental damages” should not be considered by them, as being calculated to confine the jury to the value of the land actually taken. Damages may be allowed where one part of a farm is cut off from the other, and where it is rendered more inconvenient to reach a highway. Such damages may be regarded as incidental.
    Appeal from the County Court of Jo Daviess county; the Hon. William B. Bowley, Judge, presiding.
    Mr. E. L. Bedford, for the appellant:
    The petition fails to show that appellant’s land is required for a public use. Smith v. Railroad Co. 105 Ill. 511.
    When the petition is filed in vacation, it remains a vacation proceeding though made returnable to a term, and the jury should have been selected accordingly. Haslam v. Railroad Co. 64 Ill. 353; Hyslop v. Finch, 99 id. 183.
    The petition was defective in failing to allege that petitioner was a legally organized corporation, and it also failed to show the parties could not agree upon the damages. These averments are jurisdictional. Rev. Stat. 1874, p. 475, sec. 2; Railroad Co. v. Chamberlain, 84 Ill. 339; Bowman v. Railway Co. 102 id. 336; Booker v. Railway Co. 101 id. 470; Village of Hyde Park v. Borden, 94 id. 35; Mills on Eminent Domain, sec. 107.
    It was error in the court to refuse to allow the defendant to show that a strip of land one hundred and fifty feet wide was not needed. Railway Co. v. Melville, 66 Ill. 329.
    The land owner has the right to be heard on the question of necessity, as well as the damages. Paul v. Detroit, 32 Mich. 108; Bowman v. Railway Co. 102 Ill. 336.
    The court erred in instructing the jury that they should not consider incidental damages. Railroad Co. v. Hopkins,
      90 Ill. 322; Railroad, Co. v. McKinley, 64 id. 341; Jones v. Railroad Co. 68 id. 383; Wilson v. Railroad Co. 59 id. 276; Railroad Co. v. Railroad Co. 96 id. 277.
    Mr. B. C. Cook, for the appellee,
    submitted that the several objections to the petition were not well taken.
    The hearing not having been fixed in vacation, the county court had jurisdiction at its April term.
    There was evidence showing the organization of the petitioner as á corporation; but even if there had not been, the objection comes now too late. Wiggins Ferry Co. v. People, 101 Ill. 446; Railroad Co. v. Reich, id. 157; King v. Railroad Co. 98 id. 376.
   Mr. Justice Graig

delivered the opinion of the Court:

This was a proceeding in the county court of Jo Daviess county, commenced by the Freeport and Mississippi Biver Bailway Company, to condemn a strip of land one hundred and fifty feet wide, in Jo Daviess county, owned by Ulysses Gr. Scheller DeBuol, upon which the company had located its line of road. The appellant, as appears from the record, owned fifty-four acres of land, which he occupied as a residence, a portion of the land as a garden, and a portion as a vineyard. The railroad, as located, runs through this tract of land. The land condemned or proposed to be taken is five and seven-tenths acres, including appellant’s garden, house where he resides, stable, out-houses, and shrubbery. The jury, on the hearing, allowed appellant for the land taken and damaged, $1600, and this amount not being satisfactory, he appealed.

The first point presented by appellant is, that the petition does not allege that appellant’s land is required for public use. It is alleged in the petition that petitioner is a corporation organized and existing under the general railroad incorporation laws of the State; that the object of the organization is to construct and operate a railroad, under the laws of this State, from Freeport to Galena; that it is authorized to exercise the right of eminent domain; that in accordance with the purpose of its organization, petitioner has surveyed, staked off and located its railway. From these averments it is plain that the company is proceeding to condemn private property for a public purpose, and for no other purpose.

It is next urged that the county court had no jurisdiction to try the cause at the April term. No hearing was applied for or fixed for a day in vacation, but the cause was commenced for the March term of the county court, and regularly continued to the April term. Process served for that term, and no reason is perceived which would deprive the court of jurisdiction.

The point that no evidence was introduced on the trial to prove that appellee was incorporated, is met by the amended record filed during the term, which shows that the articles of organization were read in evidence.

It is also said that the record fails to show that petitioner and appellant could not agree on the amount of damages to be paid, and that this is a fatal defect in the proceedings. It was alleged in the petition that petitioner was unable to agree with the owner as to the compensation to be paid; and if evidence was required to support an averment of this character, the evidence of defendant himself was ample to prove the averment.

It is also insisted that the court erred in refusing to permit appellant to testify that it was not necessary for petitioner to take a strip of land one hundred and fifty feet wide through his land. That was not a question for the jury to pass upon. The only question for the jury was the amount of damages to be awarded appellant, as ruled in Smith v. Chicago and Western Indiana R. R. Co. 105 Ill. 511.

It is also claimed that the court erred in refusing to allow appellant to testify what damage he would suffer in consequenee of petitioner taking his wine cellar. The appellant was allowed to testify to the value of his land for any and all purposes, and upon this point the evidence was full and unrestricted. In cases of this character the question to be determined is the market value of the land to be taken, and in order to arrive at the market value it is proper to show that the land is valuable for grazing, for raising corn, wheat, oats, grapes, or any other products for which the land may be used; but the probable profits arising from a wine cellar were too remote, and did not, in our judgment, tend to throw any light on the market value of the property.

It appears from the testimony that some years ago the Illinois Central Bailroad Company did some grading and excavating on appellant’s land, which appellant now owns, and which petitioner now proposes to take by this proceeding. When appellant was on the stand as a witness, he was asked to state how many cubic yards of grading and filling were on his land. He was also asked the following question: “Do you know the present value of the grading and filling on the line of the proposed road over your land? If so, please state the same.” Upon ohjection, the court refused to allow either of the questions to be answered. We do not understand that the value of the land proposed to be taken,' to the railroad company, was a matter to be considered in estimating the damages to be allowed. Whether the value of the land to the railroad company may be great or small, can not affect the true compensation which the owner may be entitled to receive; but if the land to be taken has upon it an improvement which materially adds to its market value, we are aware of no rule of law which will deny the owner the right to show the character and extent of the improvement, and its value, for the purpose of enhancing the market value of the property proposed to be condemned. Here, appellant was the absolute owner of the grading which had been made upon his land. The petitioner seeks to condemn it. The law requires the market value of the land to be paid to the owner. That market value is not confined to any one particular use, but the market value for any purpose for which the land may be adapted may be proven. Now, if the grading materially increased the market value of the land for any purpose whatever, we see no reason which should deny appellant the right to prove that fact.

The second instruction given for petitioner directs the jury that “incidental damages should not be considered by them.” If this instruction was calculated to confine the jury to the value of the strip of land actually taken in estimating the damages, as we think it was, it was erroneous. Damages may be allowed where one part of the farm is cut off from the other, where it is more inconvenient to reach a highway after the construction of the road than before, and in other like cases, and such damages may be regarded as incidental.

The seventh instruction in substance declared that the jury should not take into consideration the profits in appellant’s business in estimating damages. This is complained of, but it is in harmony with the former decisions of this court, and-we do not regard it erroneous.

This disposes of the substantial errors complained of, and for the two errors indicated the judgment will be reversed and the cause remanded.

Judgment reversed.

       This is the instruction referred to:
      “The jury are instructed that in estimating the compensation to the defendant, Sclieller, they should not take into consideration the profits, past, present or future, of the business of said defendant as a wine manufacturer, but the jury should disregard all testimony with regard to such profits, as the same, in law, form no part of the compensation to which said defendant is entitled in this case. ”


author: Mr. Justice Sheldon

text:
    Sjur Ammondson v. Adelia Ryan.

      Filed at Ottawa January 22, 1885.

    1. Homestead — sale on execution as directed by decree on creditor’s bill — preservation of the homestead. A decree on a creditor’s bill which sets aside a conveyance of the debtor to his wife of a tract of land, including their homestead, as fraudulent, and directs the sheriff to proceed and sell the land under an execution in his hands issued upon a judgment previously entered against the debtor, is not open to the objection of ordering a sale of the homestead. In making the sale under the execution, the sheriff will take the necessary steps to preserve the homestead in the tract, as pointed out in the Homestead act. Section 8 of that act has no application to such a case, but relates to the enforcement of liens.
    2. Usury — as to commissions and other compensation to lender’s agent. "Where a person making a loan of $2000, at the full legal rate of interest, required the borrower out of this sum to pay the lender’s agent $100, which was deducted, $50 for examining the abstract of title and preparing the necessary papers, and $50 for commissions to the same person for effecting the loan, the borrower not having employed the agent to procure the loan, but dealt directly with the lender, it was held, that the note was usurious as to $50, being for the commissions, but not as to the $50 for passing upon the sufficiency of the security and drafting the papers.
    3. Same — rule for computing interest when the contract is usurious. Where $50 of a note of $2000 was found to be usury, and such note had been given up and a new one given for $3000, which included a new loan of $700 and the interest due on the other note, both notes bearing ten per cent interest, then allowed by law, it was held, that so far as the original note for $2000 entered into the $3000 note and deed of trust, the amount should be taken to be $1950 instead of $2000, and only six per cent interest should be computed on the $1950.
    4. Same — of a judgment by confession embracing usury — as to the mode of adjusting the excess of interest. Where a debtor’s land was sold under a deed of trust, leaving a deficiency as to the debt due, for which a judgment was entered by confession, and it appeared the trustee’s sale realized less than the principal of the real debt, it was held not necessary to set aside the judgment on the ground of the usury included therein, but that it should, by the decree, be reduced so as to stand for the sum due after deducting all the usury.

      5. Same — of a trustee’s sale — whether affected by the presence of usury in the amount for which the sale was made. Where a trust deed conferred power of sale to satisfy any amount of the note that was due, and the whole principal and lawful interest were due when a sale was made by the trustee, it was held, that the sale was rightful, although the full amount of the face of the note might not have been owing, because of usury.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Some time in the year 1874, Adelia Eyan loaned to Sjur Ammondson $2000, secured by trust deed to Patrick W. Snowhook, on property in Chicago. No interest was ever paid on the loan, and in 1876 Ammondson wanting more money, the accumulated interest was added to the principal, and he, in addition, received $700 from Mrs. Eyan, making the total amount of his indebtedness to her $3000. To secure the payment of this last sum, a deed of trust was made by Ammondson to Snowhook, on the 28th of September, 1876, securing his promissory note for that amount, due in three years, with interest at the rate of ten per cent per annum, payable semi-annually, and the former trust deed securing $2000 was released, and the whole indebtedness was secured in its payment by the $3000 note and trust deed. This trust deed was foreclosed by sale, under the power contained therein, of the property, which was bid in by Mrs. Eyan for $2500, in October, 1880, and in January, 1881, a deficiency judgment for the unpaid remainder of the note was entered by confession, for the sum of $2597.50, against Ammondson. On this judgment a creditor’s bill was filed by Mrs. Eyan, in 1882, to set aside a conveyance of certain property made by Ammondson to his wife in 1877, as made without consideration and in fraud of creditors, and to subject the property so conveyed, to the satisfaction of the judgment. To this bill an answer was filed by Ammondson, and also a cross-bill, charging that the note secured by the trust deed was tainted with usury; that Ammondson was lulled into security by Mrs. Ryan, and had no notice or knowledge of "the sale under the trust deed, and that the sale was fraudulent, and that the premises conveyed by Ammondson to his wife was their homestead; and it was sought by the cross-bill to redeem from the foreclosure, to set aside the judgment by confession, and to have an accounting. Upon the final hearing the court dismissed the cross-bill for want of equity, and a decree was entered setting aside the conveyance from Ammondson to his wife, and subjecting the property to the satisfaction of the judgment. The decree was affirmed by the Appellate Court for the First District, and an appeal taken to this court.
    Messrs. J. P. & T. R. Wilson, for the appellant:
    It was clearly erroneous to order appellant’s homestead to be sold under the execution for the satisfaction of appellee’s judgment, without any regard or reference to the homestead rights of appellant in the same.
    The $3000 note, secured by deed of trust, was tainted with usury. The commissions paid to the lender’s agent were usury. Payne v. Newcomb, 100 Ill. 611.
    The foreclosure sale without notice to appellant was fraudulent, after he was lulled into security. Rounsavel v. Crofoot, 4 Bradw. 671; Webber v. Curtiss, 104 Ill. 309.
    The judgment by confession being for too much, should have been reversed, and-permission-given to redeem.
    Messrs. Goggin & Colby, for the appellee:
    The court does not decree the sale of the homestead, as is claimed. The decree only sets aside the deeds conveying the property to the appellant’s wife, and directs ¿that the sheriff proceed and sell the lands on the execution issued on the judgment at law.
    Section 10 of the Homestead act provides the manner in which the homestead is to'be preserved to the debtor on sale on execution, and the decree in this case can in no manner affect-the sale on the execution.
    The case referred to as holding there is usury, differs from the present materially. The payment of a commission to a loan agent procuring a loan for the debtor, is not usury. Kihlholz v. Wolf, 103 Ill. 362.
    The third point made by counsel for appellant is, that there was no notice given to Ammondson of the sale by Snowhook under the power in the trust deed. The deed of trust provided that if default was made in the payment of the note, or any part of it, according to its tenor and effect, or if default should be made in the payment of taxes or assessments, then, on application of the holder of the note, the trustee should advertise and sell the property. Every condition in the deed of trust had been broken before it was foreclosed by the trustee. Personal notice of the foreclosure was therefore not necessary. Princeton Loan and Trust Co. v. Munson, 60 Ill. 371; Marston v. Brittenham, 76 id. 611.
   Mr. Justice Sheldon

delivered the opinion of the Court:

It is insisted the court erred in decreeing the sale of appellant’s homestead to satisfy the judgment. It is a mistake to suppose that the sale of the homestead was decreed. The decree only sets aside the conveyance to the wife, and directs that the sheriff proceed to sell the lands on the execution issued upon the judgment. In making the sale on execution, the sheriff will, as in the case of any other sale under execution, take the steps for preserving the benefit of the homestead which are prescribed in the Homestead Exemption act, and the decree herein should in no manner interfere therewith or affect the homestead right. Section 8 of the Homestead act, which is referred to, directing the course to be pursued in the case of the enforcement of a lien in a court of equity upon premises including the homestead, does not apply in this case. This is no case of enforcing a lien, but of removing a fraudulent conveyance void as to creditors, out of the way of an execution at law.

It is urged that there was usury in the loan. Of the original loan of $2000 it appears that the borrower received only $1900. The remaining $100 was paid to Snowhook,— $50 for passing upon the abstract of title and drawing up the papers, and $50 for two and one-half per cent commission. The note given for $2000 was at ten per cent interest, — the highest legal rate. The borrower did not apply to Snowhook for the loan, and the latter rendered no aid to the borrower in obtaining the loan. Appellee had herself advertised the money for loan, and the borrower made direct application to her, and she herself made the loan. All that Snowhook did upon which to found the charge for commission, was to approve the security. Appellee had loans to make. The mode was, she made the loans herself, and referred the borrowers to Snowhook to approve the security, and the charge for this service had been previously agreed upon between appellee and Snowhook to be two and one-half per cent commission. This would seem, then, to have been the proper debt of appellee, previously contracted, and the amount previously stipulated for between herself and Snowhook, and the payment of it by the borrower was equivalent to that increased amount pf interest being obtained by the lender in addition to' the highest legal rate of interest, and so usurious, under the decision of this court in Payne v. Newcomb, 100 Ill. 611. This is all of usury we discover in the transaction. The payment by the borrower for the examination of the abstract of title and making out the papers, was proper. The charge of usury in respect to the additional loan of the $700 we do not find to be established by the evidence.

So far, then, as the original note for $2000 entered into the $3000 note and deed of trust, the amount should be taken to be but $1950 instead of $2000, and only six per cent interest should be computed on the $1950. The result which follows is, not that the trustee’s sale or the judgment should, be set aside, but only that the judgment should be reduced in amount. The sum for which the property was sold at the trustee’s sale was less than the principal of the loan, so that there is no question that the amount which the property sold for was due, and the trust deed gave power to sell the property to satisfy any amount that was due. The sale, then, was rightful, although the full amount of the face of the note might not have been owing, and there is no ground to disturb the sale on the latter account. The judgment is right, except that it is for too large an amount; but it may be corrected in that respect by reducing it to what is justly due after making the proper deduction on account of the usury. There is no need that the judgment be set aside.

The charge of appellant being lulled into security by the appellee, and that the foreclosure sale without notice to the former was fraudulent, we do not find to be supported by proof.

For the error indicated in respect of usury, the judgment of the Appellate Court must be reversed, and the cause remanded for further proceedings conformable with this opinion.

Judgment reversed.


author: Mr. Chief Justice Scholfield

text:
    Max Alexander et al. v. James A. Cunningham.

      Filed at Ottawa November 17, 1884.

    1. Arbitration and award — submission to two arbitrators, and disagreement — necessity of a new hearing on selection of a third arbitrator. Where a controversy is submitted to two arbitrators, under an agreement for the selection of a third one in case the two are unable to agree, and after a hearing and disagreement the two first appointed select a third man, an award made by two of them without giving the party against whom it is rendered an opportunity of being heard, is void, and no recovery can be had upon it.

      2. Same — waiver of right to hearing — presumption. Where an umpire or third party is, by agreement, called by two arbitrators upon their being unable to agree, in the absence of evidence to the contrary it will not be presumed that the parties have waived the right of being heard and giving evidence before any award is made. The proof of a waiver of such right must be-distinct and unequivocal.
    3. Same — defence in suit on award that the award was made without an opportunity to he heard,. Where matters in dispute were submitted to two arbitrators, under a written agreement that they might call in a third party if they failed to agree, and they did call in a third party, and two of the three made an award, in an action of assumpsit upon the award the defendant pleaded that after the third party was called in to participate in the decision, they, or either of them, never appointed any time for hearing the defendant or his witnesses, or proofs touching the matters referred to them, nor did they afford the defendant any opportunity to be heard, and that the third man so selected signed the award without hearing the defendant or hearing any evidence:. Held, no error in overruling a demurrer to the same.
    4. Practice — directing the jury as to character of their verdict. Where there is no evidence tending to prove a material issue of fact on the part of the plaintiif the proof of which is essential to his right to recover, the court may so instruct the jury, and direct a finding for the defendant.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    .Messrs. Moses & Newman, for the appellants,
    contended that an award by an umpire without any further hearing is good, unless the parties inform him that they desire to be heard before he decides. On this head counsel cited and commented on Ingraham v. Whitmore, 75 Ill. 14; Haven v. Winnisimet Co. 11 Allen, 384; Elmendorf v. Harris, 23 Wend. 628; Lutz v. Linthicum, 8 Pet. 165; Daniel v. Daniel, 6 Dana, 93 ; Small v. Courtney, 1 Brev. 205; Thornton v. Chapman, 2 Cranch’s C. C. 244; Walker v. Walker, 28 Ga. 140; Falconer v. Montgomery, 4 Dall. 232; Hall v. Lawrence, 4 T. R. 589; Passmore v. Petit, 4 Dall. 271; Graham v. Graham, 9 Pa. St. 254; 12 id. 128 ; Gratz v. Phillips, 2 Pa. 410; Kile v. Chapin, 9 Ind. 150; Finney v. Miller, 1 Bailey, 82; Sharp v.

      Lipsey, 2 id. 113; McHugh v. Peck, 29 Texas, 149; Jenkins v. Meagher, 46 Miss. 95.
    Counsel also- contended, first, that a third arbitrator is not an umpire; second, there need not necessarily be a rehearing before the third arbitrator, unless the submission of the parties specially require it; third, the right, if it exists, may be waived by the conduct of the parties, and such conduct after the award may illustrate prior conduct; and fourth, even in case of umpirage a rehearing is not absolutely necessary,— citing Ranney v. Edwards, 17 Conn. 319, and Day v. Hammond, 57 N. Y. 479, as to waiver.
    Messrs. Flower, Rbmy & Gregory, for the appellee:
    Notice to the parties in interest, of the hearing, is necessary to the validity of an award. Caldwell on Arbitration, 118; Webber v. Ives, 1 Tyler, 441; Peters v. Newkirk, 6 Cow. 103; Crowell v. Davis, 12 Metc. 293; Rigden v. Martin, 6 H. & J. 403; Dormoy v. Knower, 55 Iowa, 722; Wheaton v. Crane, 27 N. J. Eq. 368; Thomas v. Railroad Co. 9 C. E. Greene, 567; 6 id. 205; 8 id. 431.
    Notice is necessary of the selection of an umpire or third arbitrator, and of the time of the hearing before him. Graham v. Graham, 9 Barr, 255; Lutz v. Linthicum, 8 Pet. 178; Haven v. Winnisimet Co. 11 Allen, 384; Ingraham v. Whitmore, 75 Ill. 24.
    There is no distinction in this respect between an umpire and a third arbitrator. Day v. Hammond, 57 N. Y. 479; Lyon v. Blossom, 4 Duer, 318; In re Jenkins, 1 Dowl. N. S. 276; Salkeld v. Slater, 12 Ad. & Ellis, 767; Elmendorf v. Harris, 23 Wend. 628; Bulson v. Lohnas, 29 N. Y. 291.
   Mr. Chief Justice Scholfield

delivered the opinion of the Court:

This is an action of assumpsit upon an award. The agreement of submission is as follows:

“Chicago, March 27, 1883.
“We, the undersigned, having a controversy regarding the purchase and sale of glucose, having agreed to submit the same to the arbitration of Messrs. Newton Goodwin and P. B. Veiller, (who are authorized to call in a third party in the event of their failure to agree,) do hereby bind ourselves to accept and abide by the decision of a majority of the arbitrators hereto.”

Goodwin and Veiller entered upon their duties as arbitrators. "The parties were" present, and gave evidence as far as they desired-to be heard, and this was taken down by Veiller; but Goodwin and Veiller being unable to agree, they, in accordance with the agreement of submission, called in Graeme Stewart as a third party. A majority of the arbitrators then proceeded to make the award, to recover the amount for which this suit is brought. Appellee had no notice that Stewart had been so called in until he received a copy of the award, signed by Goodwin and Stewart.

The general issue and the following special plea were pleaded-: It is alleged in the special plea that iilaintiffs ought not to maintain their aforesaid action, because he says that after said arbitrators, Newton Goodwin and P. B. Veiller, called in said Graeme Stewart as a third party to participate in the decision of the matters in arbitration between said plaintiffs and defendant, said Goodwin, Veiller and Stewart did not, nor did either of them, nor did any one of them, ever appoint any time for hearing said defendant or his witnesses, or proofs touching the matters referred to them for arbitration; nor did said arbitrators, Goodwin, Veiller and Stewart, or either or any of them, give to said defendant any opportunity to be heard, or to produce testimony before them, after said Stewart had been so called in by said Goodwin and Veiller to act with them in said arbitration, and that said award, in said third and fourth counts of s.aid declaration set forth and counted upon, was made by said Goodwin and the said Stewart, without the said Stewart having heard or examined any witnesses or proofs whatever on behalf of said defendant, and without having given said defendant any opportunity of producing any witnesses or proofs before said arbitrators, Goodwin and Yeiller and said Stewart, after said Stewart had been so as aforesaid called in, and without any opportunity to said defendant of appearing before said arbitrators, Goodwin and Yeiller and said Stewart, and observing upon the plaintiffs’ witnesses or proofs, and ■ that said Stewart signed said award without ever hearing any testimony, proofs or witnesses whatever on behalf of defendant; and this the said defendant is ready to verify, etc. Appellants demurred generally and specially to this plea, but the court overruled the demurrer, and appellants thereupon traversed the allegations of the plea.

Upon the trial, the court, at the instance of appellee, instructed the jury as follows:

“The court instructs the jury, that as it appears by the undisputed evidence in this ease on the part of the plaintiffs and defendant, that no notice was given to defendant of the appointment of the arbitrator Stewart until after the award was made, nor any notice of or opportunity for a hearing before the arbitrator given to said defendant after the appointment of said arbitrator Stewart, nor any actual hearing before him when the defendant was represented, and as there is no evidence whatever tending to sustain the attachment, therefore your verdict should be for the defendant on both issues, and you shall find the following verdict: ‘We, the jury, find the issues in this cause for the defendant.’ ”

The jury returned a verdict in accordance with this instruction, and the court gave judgment upon the verdict. That judgment was affirmed on appeal to the Appellate Court for the First District, and this appeal is from that judgment.

The ruling of the circuit court in overruling the demurrer to the special plea, and in giving the instruction before set out, presents the only question of law for our consideration.

The ruling of the trial court is sustained by Ingraham v. Whitmore, 75 Ill. 24. In that case, Grannis and George, who had been selected arbitrators, with power to select a third in the event they disagreed, having failed to agree, chose Beckwith as umpire, and he proceeded to make an award without any previous notice of his selection having been given to the parties. It was held that this award was void, the court, among other things, saying: “The doctrine is well established, that where an arbitrator proceeds entirely ex parte, without giving the party against whom the award is made any notice of the proceeding under the submission, the award is void, and it is not necessary to show corruption on the part of the arbitrator. Elmendorf v. Harris, 23 Wend. 628, Lutz v. Linthicum, 8 Peters, 178, and authorities cited.”

Counsel for appellants, however, contend that because in that ease Beckwith was an umpire, while here there was a third arbitrator called in, the cases are not analogous. We are unable to concur in this view. The same necessity for notice and opportunity to be heard exists in the case of the calling in of a third arbitrator that exists in the case of the selection of an umpire. The difference is more in form than in substance. In effect, in either case, it is the decision of the party called in, whether he be known as umpire or third arbitrator, that determines the rights of the parties. In Day v. Hammond, 57 N. Y., at page 487, the court clearly points out that so far as affects the present question there is no distinction between an umpire and a third arbitrator. The court says: “In pure umpirage the decision, theoretically, rests solely with the umpire. In the ease of a third arbitrator his opinion practically controls the decision. All the reasons requiring a new hearing in the one case demand it in the other. If it were right to invoke in Elmendorf v. Harris, sivprci, ‘the principles of eternal justice’ to govern the case of umpirage, it is equally proper to invoke them in the case of a third arbitrator, whose vote is sure to prevail in case the original arbitrators continue to disagree, as it is to be presumed that they will. * * * In the case at bar there is no evidence of waiver of the right to a rehearing, and to a notice of it. It is true that the submission provides, in case of disagreement between the two arbitrators, that a third person may be ‘ called in.’ The fair import of this language is, that he comes into the case like any other arbitrator, with the same powers and duties. The interests of justice require that a party should not be deemed to have parted with so important and essential a right as that of having his case heard on slight evidence or on implication. The proof of waiver should he distinct and unequivocal. ”

We do not deem it necessary to enter upon an examination of cases cited by counsel for appellants holding a rule different from that laid down in Elmendorf v. Harris, supra. Very many and respectable courts have held that the objection of a want of notice in such cases can not be raised by plea in bar, but that it can only be urged by bill in equity or motion to set aside the award. (See Freeman’s notes to Elmendorf v. Harris, 35 Am. Dec. 591, et seq.) But, as has been seen, this court, in Ingraham v. Whitmore, sipra, is committed to the doctrine of Elmendorf v. Harris, which holds the award absolutely void where there is want of notice of hearing.

We perceive no cause to disagree with the Appellate Court in its rulings, and its judgment is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Walker

text:
    E. W. Tillotson et al. v. Caroline Mitchell.

      Filed at Springfield September 27, 1884.

    1. Chancery — closing the taking of testimony. Until an order of court or agreement fixing the time to close the taking of evidence in a chancery suit, the parties will have the right to continue to take evidence at any time until the trial; and even such an order does not preclude the parties from introducing oral evidence on the hearing, unless otherwise agreed to by the parties. The making up of certain 'issues of fact for a jury to try, and an agreement that the jury would have found those issues for the complainant, does not operate to close the taking of further testimony.
    2. Same — submitting issues to jury — when proper. It is only where the evidence is conflicting as to the issues of fact in a chancery suit, that it is proper to submit such issues to a jury.
    3. Same — effect of stipulation as to what would have been the finding of a jury. Where it is stipulated in a chancery suit that a jury would have found certain issues of fact for the plaintiff, this will be an admission that there was evidence tending to justify such a finding, and, on error, such issues will be treated as having been so found; and such supposed finding will not be disturbed when not clearly against the weight .of the evidence.
    4. Notice by possession — as to occupant’s rights to real estate. It has been held that the actual, open and visible possession of a lot by one, even though his entry therein was as a tenant of another, or under him, is notice to the world of his rights and equities, whatever they are, and is sufficient to put a subsequent purchaser or incumbrancer of the former owner upon inquiry as to the occupant’s rights acquired while so in possession.
    ^ 5. A carpenter, employed by the owner of several lots to erect buildings on the same, was let into possession of one of the lots, and a building thereon used by him as a shop, and while so in the open and actual possession of the lot he bought the same of the owner in payment of what the latter owed him, and continued such possession afterward, during which time the owner gave a deed of trust upon it and other property. It was held, that his possession at the time was notice to the incumbrancer, of his purchase, the same as though his contract or deed were recorded.
    6. Estoppee — omission of one in possession of land to disclose his rights — want of knowledge on his part as to the purpose of statements made to him. A carpenter having purchased a lot from the owner in part payment of a debt owing him for his services in erecting buildings for his vendor, and having taken possession of the same, agents of a party negotiating a loan to the former owner informed such purchaser that they were about making such a loan, and that they wanted to save back enough of the loan to pay the mechanics off, so that there would be no liens, making no reference, however, to a trust deed, or saying anything from which it could be implied that if one was to be given it should embrace his lot, and he replied that his vendor was an honest man, etc., and did not disclose his purchase, and the trust deed was given embracing his lot: Held, that such purchaser was not estopped from the assertion of his rights as against the party taking the trust deed.
    7. An admission, to estop a party from asserting his purchase of the lot from a former owner, must be made with a full knowledge of the facts, or for the purpose of fraud; and such admission must be shown not by evidence which is loose, indefinite, inconclusive and unsatisfactory.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.
    Messrs. McNulta & Weldon, for the appellants:
    Possession, to afford constructive notice to a subsequent purchaser, must not be ambiguous, and such as may be misunderstood. Patten v. Moore, 32 N. H. 382; Brown v. Volkenning, 64 N. Y. 83.
    The possession of Mitchell was equivocal in its character, and could not be easily distinguished from that of Winegardner, his grantee, and was not such as to give notice to the appellants of any equitable right in him, or to put them upon inquiry as to the rights of Mitchell as the owner of the fee. 3 Washburn on Real Prop. (3d ed.) 123; 4 Kent’s Com. 203 ; Chesterman v. Gardner, 5 Johns. Ch. 29; Cook v. Travis, 20 N. Y. 400; Governor v. Lynch, 2 Paige, 200; Freeman v. Freeman, 43 N. Y. 34; Grimestone v. Carter, 3 Paige, 421; Tuttle v. Jackson, 6 Wend. 213; Norcross v. Widgery, 2 Mass. 508; De Ruyter v. Trustees, 2 Barb. Ch. 555; Brice v. Brice, 5 Barb. 533 ; Ruck v. Holleway’s Devisees, 2 J. J. Marsh. 180; Troup v. Hurlbut, 10 Barb. 354; Moyer v. Hinman, 3 Kern. 180; Webster v. Van Steenberg, 46 Barb. 211; Merrithew v.
      Andrews, 43 N. Y. 34; Trustees v. Wheeler, 59 Barb. 585; Colby v. Kenneston, 4 N. H. 262; Patten v. Moore, 32 id. 382 ; Campbell v. Brackenbridge, 8 Blackf. 471; Beatie v. Butler, 21 Mo. 313; Coleman v. Barklew, 3 Dutch. 357; Holmes v. Stout, 2 Stockt. 419, McMeehan v. Griffing, 3 Pick. 149; Fassett v. Smith, 23 N. Y. 252; Emmons v. Murray, 16 N. H. 385; Smith v. Gule, 31 Cal. 180; Bele v. Twilight, 3 N. Y. 500; Wyatt v. Elam, 23 Ga. 201; White v. Wakefield, 7 Sim. 401; Rupert v. Mack, 15 Ill. 540; Truesdale v. Ford, 37 id. 210; Potts v. Cable, 44 id. 103; Stone v. Cook, 79 id. 424.
    Messrs. Williams, Burr & Capen, and Messrs. Stevenson & Ewing, for the appellee:
    The agreement that the jury would have found the issues for the appellee, is an admissipn that they could rightfully find them so.
    The purchaser of real estate is bound to inform himself as to what interest the party in possession claims; and it makes no difference whether he originally entered as a tenant, or otherwise. His possession is constructive notice of his rights in the premises, unless he fails to state them when inquired of. Williams v. Brown, 14 Ill. 200; Small v. Stagg, 95 id. 39 ; Lyman v. Russell, 45 id. 281; DeWolf v. Pratt, 42 id. 198; White v. White, 89 id. 460; Hatch v. Bigelow, 39 id. 556; Reeves v. Ayers, 38 id. 418; Keys v. Test, 33 id. 316; Mathison v. Prescott, 86 id. 493; Phillips v. Pitts, 78 id. 72; Brown v. Gaffney, 28 id. 149; Lumbard v. Abbey, 73 id. 177; Preityman v. Wilkey, 19 id. 235; Brooks v. Bruyn, 18 id. 539; McConnel v. Reed, 4 Scam. 117; Cabeen v. Breckenridge, 38 id. 91; Coari v. Olsen, 91 id. 273; Dyer v. Martin, 4 Scam. 146 ; Rupert v. Mark, 15 Ill. 540 ; Franz v. Orton, 75 id. 100 ; Bartling v. Brasuhn, 102 id. 445; Brainard v. Hudson, 103 id. 218; Conner v. Goodman, 104 id. 365.
   Mr. Justice Walker

delivered the opinion of the Court:

This was a bill for an injunction, filed by appellee, against appellants, to' restrain the sale of lot 4, block 1, Dimmit’s first addition to the city of .Bloomington. It appears that one W. H. Winegardner, of that city, was the owner of this and several other lots, which he undertook to improve. Abner Mitchell, a carpenter, had been employed to make extensive improvements upon Winegardner’s residence property, and he entered into an arrangement with the latter to build, and did build for him, four large houses, — one of them on lot 5, adjoining lot 4, the property in controversy. He also built a house on the lot in controversy. It is claimed that Mitchell, by verbal agreement, purchased of Winegardner, lot 4, for $700, which was paid by indebtedness of Winegardner to him. Winegardner was to furnish the materials for all- four buildings, and the labor in plastering, painting, tinning, etc., and Mitchell was to pay for the sum expended on his house, by his labor on the other three houses. It is claimed that this purchase and arrangement were made on the 6th day of March, 1875, and that Winegardner, on a settlement at the time the purchase was made, owed Mitchell about $900, for labor in erecting, previously, other buildings, $700 of which paid for the lot. In June, following, Winegardner applied to the Massachusetts Mutual Life Insurance Company for, and obtained, a loan of $8500, and. gave a trust deed on lots 4 and 5 to secure its payment. The loan fell due in 1877, and Tillotson, the trustee, advertised the property for sale. Previous to that time Winegardner conveyed lot 4 to Mitchell, and he conveyed to his wife. On the advertisement, Mrs. Mitchell filed this‘bill, setting up her claim to the property, and prayed that the sale be enjoined. Afterwards, a motion was made to submit these questions of fact to a jury, which motion was allowed;

“First — Did, or did not, Abner Mitchell, in the month of March, 1875, purchase, by verbal contract, the property in controversy ?
“Second — If you answer ‘yes’ to the first question, then answer the following question: Did, or did not, said Abner Mitchell, on or before the time of said purchase, pay Winegardner for said lot ?
“Fourth — Did, or did not, said Abner Mitchell know, at and before Winegardner borrowed money of the company, it was, or was to be, secured by a mortgage on the property?”

The court, however, refused to submit a question as to whether Mitchell was in possession of the lot before and at the time the trust deed was executed.

Defendants stipulated, “that said questions be considered as having been submitted, and to the first'the jury answer ‘yes,’ to the second the jury answer ‘yes,’ and to the last answer ‘no,’ — defendants reserving to themselves the same rights that they would have in case there had been an actual trial on a feigned issue out of chancery, and a verdict on said issues as above. ” On a hearing, the circuit court found for complainant, and decreed the relief sought. Defendants appealed to the Appellate Court for the Third District, where, on a hearing, the decree of the circuit court was affirmed, and they bring the record to this court by appeal.

We shall first dispose of a question of practice, before proceeding to discuss the merits of the case. It is insisted the court erred in admitting oral evidence on the hearing, — that as issues were made for trial by jury, and they were agreed as found for complainant, the court should have considered the evidence as closed, and no further evidence should have been received. There had been no order fixing the time to close the evidence. Until such an order is entered, the parties have the right to continue to take evidence at any time until and at the trial; and an order fixing the time to close the taking of evidence can not preclude -the parties from introducing oral evidence on the hearing, unless otherwise agreed to by the parties. That is a right secured them by the statute, and of which they can not be deprived without their consent. Appellee, therefore, but exercised her statutory right in introducing evidence as to Mitchell’s possession, on the hearing.

We now come to consider the question whether Mitchell had such possession as was notice to a subsequent incumbrancer to put him on inquiry. All the issues of fact were submitted to the jury, because the evidence was conflicting. Had it been clear and satisfactory, it would not have been proper to submit the issues to the jury. By the stipulation it is conceded that a jury would find the issues for complainant, and that is an admission that there was evidence that tended to justify such a finding. In view of this admission we do not feel warranted in disturbing the supposed findings. If they were clearly against the weight of the evidence, it might, in the promotion of justice, be otherwise; but such is by no means the fact. There is sufficient evidence to support the findings, and as it is agreed the jury would have so found, we decline to disturb them.

In the case of McConnel v. Reed, 4 Scam. 117, it was said that in some cases possession is the foundation as well as the evidence of title, and under all circumstances it is such indicia of ownership as should induce a prudent man to examine into its source before purchasing. It was also said that the decisions are uniform that possession of land is notice to a purchaser, of the title held by the occupant, and this court, in a large number of cases, without any limitation or modification of the rule, has uniformly held that possession is notice of the occupant’s title, equal to the record of his deed. In the case of Dyer v. Martin, 4 Scam. 146, it was said that possession by a person residing on the land is notice to all the world that he has some interest in the land, and any person purchasing it while that possession continues takes title to the premises subject to that interest, whatever it may be. In Williams v. Brown, 14 Ill. 200, it was said Williams was in possession all the while. It was held that “this was constructive notice to her (the purchaser) of all the rights of the tenant in possession, as has been repeatedly held by this court. Nor did it make any difference that he took possession as tenant, and not as purchaser. ” In that ease the tenant had furnished money to another to purchase the land for him, but the agent paid the money and took a bond for a conveyance to himself, and subsequently had the land conveyed to his mother-in-law. Brown, the trustee, had. promised, verbally, to convey the land to Williams so soon as he could obtain a deed, but refused, and had the conveyance made as stated. The court held he was entitled to the land.

The doctrine that the actual possession of land is notice of the occupant’s title, whether legal or equitable, has been repeatedly and uniformly announced by this court, and it would be supererogatory to refer to the cases, nor would it answer any useful purpose. To operate as notice in such cases, the possession must be actual, — not constructive,— open and visible. Was the possession in this case of that character ? Immediately after his purchase, Mitchell erected a temporary structure on the lot, in which to qilace his tools and other articles. He remained in the possession and control of this structure until after the trust deed was executed. He was daily present on the land, controlling the labor of others and contributing his own in the erection of the building, before and after the trust deed was executed, until it was completed. Not only so, but he told all the workmen but one that the lot and house were his; and the same fact was known to a number of persons in the neighborhood. His possession was actual, open and visible, and did notify persons in the neighborhood that he claimed to own the premises. In fact, his possession is not disputed by appellants. They, ■however, claim that his possession was so equivocal in its character as not to afford notice to or demand inquiry of any person. It is urged, that being a carpenter and engaged in the construction of the house on the lot, there was nothing to notify the public that he was not in possession merely as a carpenter and builder, as such persons usually have possession for that purpose, but was in as a purchaser; that carpenters and builders, when so in possession, are seldom in possession as owners, but simply for the purpose of pursuing their occupation, and such possession, even when it concurs with ownership, should not be held notice of claim of ownership. We have not been inclined in the past to make distinctions in reference to possession, so it is actual, open and visible.. In the ease of Williams v. Brown, supra, it was insisted that as complainant was in possession as a tenant, the purchaser was only chargeable with notice of his tenancy; but the court held the possession wras notice of all his rights, — even of a verbal agreement for a conveyance of the land. In the case of Coari v. Olsen, 91 Ill. 273, in discussing this question, it was said: “But, although other courts have held the doctrine of notice by possession as subject to being materially modified by circumstances, this court has uniformly held that actual occupancy is equal to the record of the deed or other instrument under which the occupant claims, and a purchaser is bound to inquire by what right or title he holds. The purchaser takes the premises subject to that title or interest, whatever it may be.” In this last case Olsen held, at the time the sale was made to a Coari, the third story, only, of the building, under his unrecorded contract of purchase from Wakely. The second story was vacant, and the first story was occupied by a tenant of Wakely, the vendor, yet this was held such possession as was notice to Coari, and Olsen’s purchase was enforced by compelling a conveyance from Wakely and the cancellation of Coari’s contract for a conveyance. The possession in this case is manifestly as certain and unequivocal as it was in that case. In this, Mitchell was in the actual possession of the whole lot.

We are unable, from the evidence, to say Mitchell was es-topped by anything he said or did before the trust deed was executed. It is true that Tillotson and Wait testify that they saw Mitchell before the trust deed was executed, and informed him that they were about making a loan to Winegardner, and they wanted to save money back to pay the mechanics off, so there would be no mechanics’ liens in the end. It will be observed that in this statement to him no reference is made to a deed of trust, or if it could be inferred that there was to be one taken, there is no statement as to the property that was to be embraced in it. Is it possible to hold that a man shall lose his land because he does not disclose his title in answer to such a statement as this ? Surely, the doctrine of estoppel will never be carried to such a length.

Mitchell’s reply, that “Winegardner- is an honest man, and I wish we had a thousand such men, ” is urged to show that he knew the deed of .trust was to embrace his lot. It seems that Mitchell was hard of hearing, and the reply would lead to the inference that he understood Tillotson and Wait as questioning Winegardner’s intention to pay the mechanics, and it is far from showing that he understood at the time that the deed of trust was to embrace his lot. Wait says, “We went there to learn whether the property was subject to mechanics’ liens, ” and they told Mitchell they wanted all the bilk paid, so that they would not be liens. He does not say they told Mitchell that the money was to be loaned, in whole or in part, on this lot, as security. Tillotson says that he went to the building, and saw Mitchell at work on the house, about the first of June-, “I told him we were.making a loan on the premises for Winegardner. ” On what premises ? He does not say he informed Mitchell the loan was to be on his lot. The evidence of these witnesses is loose, indefinite, inconclusive and unsatisfactory to establish an estoppel. An admission, to have that effect, must be made with a full knowledge of the facts, or for the purpose of fraud, to bind a party. In this case we are unable to see that Mitchell said or did anything that precludes him or his grantee from asserting title to the lot.

We are unable to perceive any error in the record, and the decree of the Appellate Court is affirmed.

Decree affirmed.