text:
    Henry W. Kingsbury v. Anson Sperry et al.

      Filed at Ottawa January 25, 1887.

      1. Appears and writs op error— writ of error awarded, in the absence of any other remedy. A writ of error, in the absence of express statutory authority, in purely statutory proceedings that are not according to the course of the common law, has been allowed only to prevent a failure of justice, because the party affected has no other mode of review.
    2. Same—os to final orders of county court—writ of error not a writ of right, in all cases, under section 19, article 6, of constitution. Section 19, of article 6, of the constitution, relating to appeals and writs of error to review final orders of the county court, does not confer the right to a writ of error from this court in all cases decided by the county court. It is but a direction to the General Assembly to prescribe, by law, how appeals and writs of error shall be allowed from the final judgments of the county courts.
    3. Same—under section 11 of the Probate Court act—whether a writ of error will lie to the county court, in respect of similar matters. Section 11 of the act to establish probate courts in certain counties, in relation to writs of error, is prospective, only, in its operation, and applies only to decrees and orders of that court, and does not authorize a writ of error to review a decree or final order of the county court for the mortgage or sale of a ward’s land by a guardian.
    4. Same—in case appeal is given from county court to circuit court—■ whether writ of error will lie to county court. Where the statute confers on the county court a jurisdiction unknown to the common law, and gives an appeal from the judgments and final orders of that court, under such statutory jurisdiction, to the circuit court, a writ of error will not lie from this court to review the action of the county court.
    5. Same—whether freehold is involved. The foreclosure of a mortgage, and, much less, the giving of leave by the county court to a guardian to mortgage his ward’s lands, does not involve a freehold, within the meaning of the section relating to appeals and writs of error.
    6. Mortgage by guardian, of ward’s land—of the defences accorded to the ward, on foreclosure. On a proceeding in the county court to foreclose a mortgage given by a guardian on- his ward’s lands, the guardian and the ward are both necessary parties; and any sale made on a decree of foreclosure may, at any time before confirmation, be set aside for good cause, and will not be binding upon the guardian or ward until confirmed by the court. In such suit the ward may have the entire proceeding, including the authority to give the mortgage, reviewed by the court.
    7. Bill OF review—by a ward, in respect to an order of the county court permitting the guardian'to mortgage the ward’s land. ‘ A ward may, before bill to foreclose a mortgage given by his guardian, maintain his bill in equity to review the order of the county court granting leave to give such mortgage, and thereby take advantage of every objection that might be urged on writ of error, if one were allowed.
    8. Local or special law—allowing a writ of error to a probate court, when it is not allowed to the county courts in respect of the same subject matter. A statute attempting to give the right to sue out a writ of error, in a proceeding by a guardian for the sale of his ward’s real estate, in the probate court, where the same right is not allowed in such a proceeding in the county court, would- be a local and special law, within the constitutional prohibition.
    Writ of Error to the County Court of Cook county; the Hon. Martin E. M: Wallace, Judge, presiding.
    Messrs. Wilson & Moore, for the plaintiff in error:
    The county court has no power ór authority to authorize a guardian to erect new and costly buildings upon the unimproved real estate of his ward, with the moneys of his ward in his hands. That court has no power to-authorize a guardian to borrow money for a purpose to which he could not apply the moneys of the ward in his possession.
    • The order to sell the ward’s real estate, to pay debts incurred by the guardian in the erection of buildings, was unauthorized.
    This court has entertained writs of error to -reverse judgments of courts, for want of jurisdiction. Boyland v. Boyland, 18 Ill. 551; Spellman v. Dowse, 79 id. 66; Hobson v. Paine, 45 id. 158; In re Stevens, 25 id. 390; Gibson v. Roll, 27 id. 87; Napper v. Short, 17 id. 119; Unknown Heirs v. Baker, 23 id. 430.
    This court has entertained jurisdiction, by appeal or writ of error, in proceedings by guardians for the sale of their wards’ real estate. Spellman v. Dowse, 79 Ill. 66; Ex parte Guernsey, 21 id. 448; Greenbaum v. Greenbaum, 81 id. 367.
    A writ of error is a writ of right given by the common law, and recognized by the constitution. Unknown Heirs v. Baker, 23 Ill. 433; Haines v. People, 97 id. 161. And this right can not be taken away by the statute. Peak v. People, 76 Ill. 291.
    . This right to a writ of error is not taken away by a right to appeal, in abase where the right of appeal can not be exercised, from infancy and the like. Hall v. Thocle, 75 Ill. 175; Savage v. Gulliver, 4 Mass. 171; Jarvis v. Blanchard, 6 id. 4; Valier v. Hart, 11 id. 300.
    Minors are not chargeable with laches. Smith v. Sackett, 5 Gilm. 544.
    Messrs. Dexter, Herrick & Allen, for the defendant in error the United States Mortgage Company::
    The order of the county court authorizing the mortgage is not open to review, and therefore the writ of error was properly dismissed.’ The proceeding was not adverse. Mason v. Wait, 4 Scam. 127; Mulford v. Beveridge, 78 Ill. 455; Spring v. Kane, 86 id. 581; Dodge v. Cole, 97 id. 338.
    A purchaser at a judicial sale is not affected by errors of law in the proceeding. This principle has been frequently applied to administrators’ and guardians’ sales. Goudy v. Hall, 36 Ill. 313; Fitzgibbon v. Lake, 40 id. 165; Mulford v. Stalzenback, 46 id. 303. This should apply to guardians’ mortgages made under order of court.
    The mortgage company being no party to the proceeding in the county court, can not be made a party to a proceeding to review the same.
    A writ of error will not lie fi;om this court when an appeal is allowed by statute to the circuit court. Ennis v. Ennis, 103 Ill. 95; Frans v. People, 59 id. 427; Horner v. Goe, 54 id. 285; Hobson v. Paine, 40 id. 25; Haines v. People, 97 id. 161.

      The cases of Kingsbury v. Sperry et al. and Kingsbury v. Powers, are also considered in the decision in this case.

   Mr. Justice Scholfield

delivered the opinion of the Court:

These writs of error assume to bring before us for review three orders of the county court of Cook county, made, respectively, on the 6th of August, 1872, on the 4th of April, 1873, and on the 11th of December, 1876, allowing the guardian of Henry W. Kingsbury to mortgage real estate of his ward to secure the payment of money borrowed by the guardian to improve such real estate.

The writs must be dismissed. It is provided by section 19, article 6, of our constitution, that appeals and writs of error shall be allowed' from final determinations of county courts, as may be provided by law. Plainly, this does not confer the right to a writ of error from this court in all eases decided by the county court. Whether the case shall be taken, by appeal or by writ of error, to this court or to some other court, must be provided by law. It is but a direction to the General Assembly to prescribe, by law, how appeals and writs of error shall be allowed from final determinations of county courts.

When these orders were made, the statute in force was that, or the same as that, of chapter 64 of the Revised Statutes of 1874, entitled “Guardian and Ward,” the 24th, 25th and 26th sections whereof provide, that guardians may mortgage the real estate of their wards, by leave of the county court, expressed in an order to be made for that purpose, which mortgage can only be foreclosed in the county court. And the 43d section provides, that “appeals shall be allow’ed to the circuit court from any order or judgment made or rendered under this act, upon the appellant giving such bond and security as shall be directed by the court, ” and that section has remained in force until the present time. No provision of any statute is known to us expressly conferring the right to sue out a writ of error upon an order allowing the guardian to mortgage his ward’s real estate. It is not claimed that the county court, in making .the orders questioned, was in the exercise of a jurisdiction according to the course of the common law. On the contrary, it is clear that the jurisdiction exercised was unknown to the common law, and was purely statutory. In such cases, where, as here, an appeal is given to the circuit court, a writ of error does not lie from this court. Hobson v. Paine, 40 Ill. 25; Holden et al. v. Herkimer, 53 id. 258; Horner v. Goe, 54 id. 285; Frans v. The People, 59 id. 427; Ennis v. Ennis, 103 id. 95.

There is no other section of chapter 64, nor of any other act, of which we are aware, which can be held to modify and limit section 43, so as to exclude from its operation or effect, orders allowing guardians to mortgage their wards’ lands, as there was, at one time, in respect of sales by guardians of the real estate of their wards. It could not have been intended that the order might be reviewed, on appeal, by the circuit court, in which instance the proceeding would be considered as if originally made to that court, (Kev. Stat. 1874, chap. 37, sec. 122,) and by writ of error in this court, in which instance the inquiry would, be, only, whether the county court had erred; for if this were allowable, there might be an order de novo in the circuit court, and an order of reversal or affirmance in this court, in the same proceeding. It is true, the plaintiff in error was a minor when these orders were made, and, for the sake of argument, we will:admit that he could not then have appealed; but the proceeding being not according to the course of the common law, and the law providing that it may be reviewed in one mode by designated tribunals, the fact of minority can not.render it necessary that it shall be reviewed in a different mode and by a different tribunal. No authority has been called to our attention going that far.

Writs of error have been held to lie, in the absence of express statutory authority, in purely statutory proceedings that are not according to the course of the common law, only to prevent a failure of justice, because the party affected has no other mode of review. This is the result of a fair consideration of all the cases affecting the question, and it is unnecessary to extend this opinion by an analysis of each case. Peak v. The People, 76 Ill. 289, and cases cited, and Haines v. The People, 97 id. 161.

The 26th section of the act, sipra, provides, that “foreclosures of mortgages authorized by this act shall be made by petition to the county court of the county where letters of guardianship were granted, * * * in which proceeding the guardian and ward shall be made defendants; and any sale made by virtue of any order or decree of foreclosure of such mortgage, may, at any time before confirmation, be set aside by the court for inadequacy of price, or other good cause, and shall not be binding upon the guardian or ward until confirmed by the court. ” Here is, beyond all question, ample opportunity to the. ward to have the entire proceedings reviewed, and to interpose every objection that could be urged if the ease were properly here on error, with the further right of having that review reviewed by a superior tribunal,—and the same right must exist in the United States courts upon the bills there filed to foreclose the mortgage. Meanwhile, if the ward is unwilling to wait until hill to foreclose is filed, he may commence proceedings himself, to review the orders, by bill in equity, on the principle of Loyd v. Malone et al. 23 Ill. 43, Kuchenbeiser v. Beckert, 41 id. 172, and Lloyd v. Kirkwood, 112 id. 337, and there urge every objection of which he could avail on error, if it were allowable.

The question is treated, in argument, as if an order giving leave to a guardian to mortgage, and an order or decree authorizing him to sell, the land of his ward, are essentially the same in principle. This is, plainly, a misapprehension. By the sale and confirmation, the title of the ward passes absolutely to the purchaser. Before this can be effected, the court is required to hear evidence, and adjudicate as to the existence of certain facts. (See Rev. Stat. 1874, secs. 28, -29, 30, et seq., chap. 64.) We have seen, in the case of mortgaging, no title passes until after decree of foreclosure, sale, and confirmation thereafter. No fact is required to he adjudicated before making the order. Thé power is given to the guardian, simply, by leave of the court, to perform the ministerial act of borrowing money and executing mortgage. It might have been vested in the guardian absolutely, without consulting the court, or it might have been vested in some other individual. Cooley’s Const. Lim. (1st ed.) 98, 99, et seq. Judicial power is only invoked when a foreclosure is sought, and then, we have seen, the ward has all the rights that he claims that he is now entitled to assert. And the fact, of itself, that ordering that the guardian have leave to mortgage, though by a court, is the exercise of a ministerial, and not of a judicial, power, precludes the right to a writ of error, for, says 2 Tidd’s Practice, (3d Am. ed:) 1140, *1141: “No writ of error can be brought but on a judgment, or an award in the nature of a judgment.”

But we are not prepared to admit that the ward, at the time these writs were sued out, was entitled to a writ of error from this court, upon an order or decree authorizing the guardian to sell the ward’s land. It is true, that by section 123 of the Bevised Statutes of 1874, a writ of error was allowed from this court upon such an order or decree, but that section was repealed by an amendatory act appr'oved May 21, 1877, in which was omitted applications of guardians for the sales of real estate, and as further amended by the act approved May 30, 1881, it read, when these writs of error were sued out: “Appeals and writs of error may be taken and prosecuted from the final orders, judgments and decrees of the county court to the Supreme Court or Appellate Court, in proceedings for the confirmation of special assessments, in proceedings for the sale of lands for taxes and special assessments, and in all common law and attachment cases, and cases of forcible detainer and forcible entry and detainer, ” and went no further. (Laws of 1881, p. 66.) There was no other provision of law, at the time of suing out the writs, in force, so far as we are advised, giving the right to prosecute a writ of error to the county court, on applications for guardians to sell lands. And since a writ of errpr is considered a new action, (2 Tidd’s Practice, 3d Am. ed. 1141, Ripley v. Morris, 2 Gilm. 381,) the question is, only, whether a writ of error lay at the time the writs were sued out. Williams et al. v. Ayers et al. 92 Ill. 16.

The contention that the right to sue out a writ of error on these records is preserved by the 11th section of the act to establish probate courts in counties having a population of one hundred thousand, approved April 27,1877, which court had succeeded the county court of Cook county when these, writs were sued out, is not tenable, in our opinion, for two reasons,—first, that section is prospective, and refers only to decrees of probate courts; and second, it is not admissible that the right to sue out a writ of error, on an application for sale of real estate by a guardian, in the probate court, shall be allowed, when the same right is not allowed on such applications in the county court. Such a law is necessarily local and special. (Devine v. Cook County, 84 Ill. 590.) And on'e of the clauses of section 22, of article 4, of the constitution, prohibits the enactment of local or special laws in relation to the sale or mortgage of real estate belonging to minors or others under disability. Moreover, the probate court, where adopted, and the county court in other counties, as respects all matters of probate and the applications of guardians to sell -or mortgage lands of minors, are of the same class or grade; and section 29, of article 6, of the constitution, provides, that “all laws relating to courts shall be general, and of uniform operation,, and the organization, jurisdiction, powers, proceedings and practice of all courts of the same class or grade, so far as regulated by law, and the force and effect of the process, judgments and decrees of such courts, severally, shall be uniform.” In Ex parte Guernsey, 21 Ill. 443, although the writ of error was to the county court of Grundy county, that court was acting under special statutes authorizing a writ of error from the Supreme Court to that court. (Laivs of 1855, p. 160; Laws of 1854, p. 240, secs. 4,11; 1 Purple’s Stat. p. 298.) Ayers v. Baumgarten, 15 Ill. 444, was an appeal from the Cook circuit court. Greenbaum v. Greenbaum, 81 Ill. 368, was also an appeal from the Cook circuit court, and Spellman v. Bowse, 79 111. 66, was an appeal from the Will circuit court; so that nothing decided in either of those cases has any relation to the questions we have been considering.

But even if plaintiff in error were entitled to a writ of error, it should have been sued out of the Appellate Court, and not out of this court. (See Appellate Court act, sec. 28, 1 Starr & Curtis, p. 702.) Even the foreclosure of a mortgage, and, much less, the giving of leave to execute a mortgage, does not involve a freehold, within the'meaning of that section, so as to authorize the writ to be sued out of this court. Grand Tower Manf. Co. v. Hall, 94 Ill. 152; Pinneo et al. v. Knox et al. 100 id. 471; Akin v. Cassiday, 105 id. 22.

Writs of error dismissed.


source: Caselaw Access Project

author: Mr. Chief Justice Soott

license: Public Domain

text:
    Lorenzo C. Ward v. The Minnesota and Northwestern Railroad Company.

      Filed at Ottawa January 25, 1887.

    1. Eminent domain—corporate existence of the railroad company petitioning—whether it must he shown, and in what way, etc. The defendant, in a proceeding to condemn his land by a railway company, by going to trial on the merits, waives the necessity of the preliminar)- proof of the corporate existence of the petitioner.
    2. The proof of the corporate existence of a railway company, if required to be made, is addressed to the court, and not to the jury called to assess the damages. The right to exercise the right of eminent domain is a question exclusively for the court to determine. The defendant may raise the question of the petitioner’s right, without plea or answer.

      3. Proof of the exercise of corporate acts, though slight, will be sufficient to authorize the proceeding to condemn land by a railway company. So the filing of a cross-petition by the defendant for the assessment of damages to other land than that sought to be taken, may be regarded as an admission of the corporate capacitj' of the petitioner. The defendant, by asking the court for a rule on the petitioner to exhibit the plan and profile of its road over and. across the lands sought to be condemned, may be regarded as admitting that the petitioner is a de facto corporation.
    4. Same—proof of inability to agree with land owner. Where, from the contest and the acts of the parties, it is evident that the parties could not agree as to the compensation to be paid for land sought to be condemned for a right of way, the judgment will not be reversed, because no direct testimony was offered to show such inability to agree.
    Appeal from the Circuit Court of Kane county; the Hon.Isaac Gr. Wilson, Judge, presiding.
    Mr. E. N. Botsford, for the appellant:
    There is no proof in the record that appellee is a legally existing corporation, or possesses any right or authority to condemn lands for the purposes stated in the petition.
    One of the jurisdictional facts required to be stated in the petition, is the authority of the petitioner to condemn, and another is an inability to agree with the owner as to the compensation. There is as much reason and necessity for averring the one jurisdictional fact as the other one, and the same necessity that the one should be supported by the evidence as that the other one should. The defendant is not required to deny either fact, or put them in issue by a plea or answer. This court has repeatedly held that no answer in these cases is necessary, or will be allowed to stand in the record. Smith v. Chicago, 105 Ill. 511; Johnson v. Railroad Co. 111 id. 413.
    The court will not take judicial notice that a party assuming and claiming the right to the benefits of the statute, is authorized so to do because the petition so states, no more than it will take judicial notice that an unsuccessful effort has been made to agree upon the compensation which ought to be made to the owner of the lands, because it is so averred _ in the petition; hut such fact must be averred and proven. 1 Wood on Railways, sec. 232; Booker v. Railway Co. 101 Ill. 333; Bowman v. Railway Co. 102 id. 459; DeBuol v. Railway Co. 111 id. 499.
    Some proof of the corporate existence of the petitioner is necessary. McAuley v. Railway Co. 83 Ill. 348; Railway Co. v. Railway Co. 105 id. 110; Railway Co. v. Railroad Co. 112 id. 589; Railroad Co. v. Sullivant, 5 Ohio St. 276; Atkinson v. Railroad Co. 15 id. 21.
    Messrs. Gardner, McFaden & Gardner, for the appellee:
    It being clearly settled by Illinois decisions that a railroad company de facto may exercise the power of eminent domain, therefore it follows that the averments of the petition are sufficient to establish this fact, in the absence of any denial thereof by the land owner. Railway Co. v. Railroad Co. 112 Ill. 589.
    The Illinois Statute of Eminent Domain provides for the trial by jury of no other issue except the question of damages. If the land owner desires, he may have the court pass upon the truth of the other averments of the petition, but unless he raises the point before the verdict, its allegations are taken as true. Smith v. Railroad Co. 105 Ill. 511.
    The admissions of defendant, made in the pleadings and on the trial, sufficiently establish the existence of petitioner as a corporation de facto. In collateral proceedings, the existence of a corporation defacto may be proven by admissions of defendant. Wood v. Coal Co. 48 Ill. 356; 2 Morawetz on Corporations, sec. 774.
    Where the evidence is conflicting as to the value of property sought to be condemned for railroad purposes, and the jury have examined the premises in person, this court will not reverse, on the ground, alone, that the damages assessed are insufficient, unless the damages are clearly too little.
   Mr. Chief Justice Soott

delivered the opinion of the Court:

The petition in this case was exhibited by the Minnesota and Northwestern Railroad Company, and the object was to have a strip of land, particularly described, and alleged to belong to Lorenzo C. Ward, condemned, under the Eminent Domain act, for the right of .way upon which to construct its railroad track. The proceedings on the petition were had in the circuit court of Kane county. Before the trial was commenced, defendant filed a cross-petition, in which he described the lands owned by him, of which the strip proposed to be taken by the railroad company for its right of way, formed a part, and showing how it would be affected by cutting off from •the main body of his land the strip to be condemned, and the construction of the .railroad upon it, and asked to have the damages assessed 'to him for the injury that would be done to the entire body of his land. The cause was submitted to a jury on the original and the cross-petitions, who, after viewing the premises and hearing the evidence offered by both parties, returned a verdict allowing the owner, for the right of way, $1800, and for damages, $1700, making a total sum of $3500, for which amount the court rendered judgment, in the usual form. The land owner brings the case to this court on appeal.

It will be observed, the petition states every fact the law requires to be stated to give the court jurisdiction to hear and determine the condemnation proceedings. It is distinctly alleged, petitioner is a corporation duly created, organized and existing under the laws of the State of Illinois, and that it is authorized, by its articles of incorporation, to construct, operate and maintain a railroad between certain terminal points within the State; that it intends to construct a railroad, as authorized by its articles of incorporation, and that the lands of defendant are necessary for use for the right of way; that petitioner, by its proper officers, has located its line of road over the lands of defendant; that it is unable to agree with the owner as to the compensation to be made for the taking of his land, and therefore asks that the compensation to be made to the owner for that portion of his land taken, may be assessed under the statute. No question is made as to the form or sufficiency of the petition, but it is objected, no proof was made, on the trial, that petitioner was either a dejare or de facto corporation, and it is insisted the omission to make such proof is fatal to the present condemnation judgment. Several answers may be made to the position taken.

First—Defendant waived the making of such proof by going to trial on the merits of the controversy, without objection. Even if proof is required to be made of the formal allegations of the petition, such proof is to be addressed to the court, and not to the jury. Whether the petitioner, in such cases, is a corporation, and is authorized to exercise the right of eminent domain, is a question to be determined by the court, and with which the jury have no concern. It is a preliminary question, and if the land owner goes to trial on the merits, without requiring such proof to be made, it will be understood he waives the making of the proof, and admits the capacity in which the petitioner sues. The fact that no formal answer may be required to be made to the petition, under the practice that prevails in this State, would not prevent defendant from objecting that petitioner shall not proceed to ascertain the compensation to be paid, until proof is made it is a corporation, either de jure or de facto, under the law, and .as such is authorized to exercise the right of eminent domain. In this case, defendant went to trial on the merits, without objection as to the right of petitioner to condemn his land for public purposes, and he will be held to have waived the necessity for making proof of such right.

Second—There is some proof the petitioner is a corporation de facto, and that is all the law requires in this class of cases. There is evidence, although it may be slight, of corporate acts done by petitioner. It appears an engineer has been appointed, the line of the proposed road has been located, and other steps taken towards the building of the road, to be constructed between points named, and among other things done, the line of road has been located over lands owned by defendant. These aré corporate acts, and tend to show petitioner is a corporation defacto.

Third—By filing a cross-petition, asking to have damages assessed for the injury done to his lands not taken, defendant admits petitioner has the right to exercise the right of eminent domain, and may lawfully condemn his lands for public purposes. This, of course, it could not do unless it was a corporation, in fact and in law. Admitting, as the cross-petition does, petitioner’s right to condemn defendant’s land, dispenses with any necessity for proof that petitioner is a corporation, as alleged in the petition. In the cross-petition, reference is made to the “said railroad company,”—that is, the corporation mentioned in the original petition asking for the condemnation of defendant’s land. It may also be said, defendant, further recognized petitioner as a de facto corporation by asking the court for a rule upon petitioner to exhibit its plan and profile of its projected railroad across his lands so proposed to be condemned. The court might well have understood, from these and other facts appearing in the record, defendant did not require any preliminary proof to be made of petitioner’s corporate capacity, and of its right to condemn lands for public uses.

It is insisted, there was no proof offered on the allegation, petitioner was unable to agree with the owner as to compensation to be paid for the land sought to be taken. Without conceding it is necessary to make such proof, that fact, alleged in the petition, is very apparent. It is true, no direct testimony was offered, but the fact there is a vigorous contest between the land owner and the corporation, both on the original as well as upon the cross-petition, .makes it evident the parties were unable to agree as to the compensation to be paid for the land to be condemned. It w'ould have been idle to offer direct testimony on a point in the case that both parties conceded.

Finally, it is said, neither the verdict of the jury nor the judgment of the court is supported by the evidence. The testimony contained in the record as to the damages defendant would sustain by reason of -taking a portion of his land and the construction of the railroad upon it, has been subjected to a careful and close study. It is found to be conflicting in the extreme. Witnesses, so far as this court can know, of equal candor, and opportunities to form a correct judgment concerning the matters about which they were called to testify, differ widely as to the value of the land taken, and the damages that would otherwise be sustained. It is upon such questions the verdict of a jury, drawn from the vicinity, is regarded of great value. In this case, the jury not only saw and heard the respective witnesses, but had the advantage of viewing the premises before making up their verdict. Great weight, therefore, ought to be given to their judgment as to the matters submitted to them. The question made as to the damages sustained, is, of course, purely a question of fact, concerning which the evidence is so conflicting this court ■would not feel at liberty to disturb the finding of the jury, under the circumstances.

No error appearing in the record, the judgment must be affirmed.

Judgment affirmed.

Mr. Justice Magruder,

dissenting:

I can not concur in this decision. If Tom, Dick and Harry can get together and call themselves a railroad company, and, without proving even their de facto existence as a corporation, can take the land of the citizen against his will, then the law furnishes poor protection, indeed, to the ownership of property. To be sure, it is not necessary, that the company, seeking to exercise the right of eminent domain, shall prove itself to be, in all respects, a legally organized corporation, but it must at least show, that it is a body corporate de facto; and the usual evidences of such de facto existence are the charter and acts of user thereunder. 1 Wood’s Railroad Law, 16, 19; McAuley v. Columbus, Chicago and Indiana Central Ry. Co. 83 Ill. 348; Peoria and Pekin Union Ry. Co. v. Peoria and Farmington Ry. Co. 105 id. 110; Chicago and Northwestern Ry. Co. v. Chicago and Evanston Railroad Co. 112 id. 589.

In this record, there is not a particle of evidence to show, that there is any such corporate body as the Minnesota and Northwestern Bailroad Company. Not even the de facto existence of such a corporation has been established. No charter has been produced; no acts of user have been proven. It does not appear, that any organization of any kind has even been attempted, much less effected.

It is not sufficient to say, that the appellant should have objected, that there was no proof of corporate existence. It was necessary for the appellee to furnish such proof in the first place, in order to give the court jurisdiction to act in the premises. The second section of the Eminent Domain act provides, that the right to take private property for. public use, without the owner’s consent, must be conferred by “general law or special charter,” before the company, seeking to condemn, can file its petition. It can not proceed, until it has. proven that such right has been conferred by general law or special charter. The authority to condemn must be set forth in the petition “by reference,” so that parties interested can examine, and see whether the authority claimed actually exists. The right so to take private property for public use is a tremendous and dangerous power. It is an attribute of sovereignty, and, in conferring it upon a corporation, the State parts with a portion of- its oivn sovereignty. The exercise of such a power should be hedged about with all possible safeguards. The assertion of such a right should never be permittecl, except in strict conformity with the law of the land. Mitchell v. Illinois and St. Louis Railroad and Coal Co. 68 Ill. 286; Chicago and Alton Railroad Co. v. Smith, 78 id. 96.

The appellant could not set up an objection to the existence of the corporation in an answer or plea, as we have decided, that “under the Eminent Domain act an answer is not allowable, and the principle includes a plea.” Johnson v. Freeport and Mississippi River Ry. Co. 111 Ill. 413.

But it is said, that, inasmuch as the appellant has made use of the Avords, “the said railroad company, ” in his cross-petition, he has thereby admitted the existence of appellee, as a corporation de facto. It has been held, that a plea, denying the averment, that the plaintiff Avas a corporation, was overcome by proof, that defendant sold land to plaintiff and executed a deed to it, by its corporate name. (Wood v. Kingston Coal Co. 48 Ill. 356.) It has, also, been held, that the execution of a note and mortgage to a corporation, as such, is sufficient prima facie evidence of the existence of the corporation. (Brown v. Mortgage Co. 110 Ill. 235.) But in such eases, the party, affected by the evidence in question, has made a contract, or had dealings with the corporation, whose existence he denies. The cross-petition, however, does not embody or represent any transaction betAveen the petitioner and cross-petitioner. It is addressed to the court. In the present case, it is not sworn to, nor even signed, by appellant. It is signed by his attorneys, and is a mere pleading. It Avas filed only fifteen days after the original petition was filed, and before appellant had any reason for supposing, that appellee Avould fail to prove its existence, as a de facto corporation, upon the trial of the case. It had no other object than to bring before the court property of appellant, damaged and not described in. the original petition. It did not profess to admit or deny the corporate existence of appellee, but, in effect, to merely ask, that, if there Avas such a corporation, and it should take the land, sought to be condemned, it should also pay the damages to other lands, not taken. I do not think there is any allegation in the cross-petition, which relieved the appellee from the necessity of making the proofs, requisite to sustain its original petition.


author: Mr. Justice Craig

text:
    John A. Agnew v. Caroline Fults et al.

      Filed at Mt. Vernon January 25, 1887.

      1. Assignment of error—os to matters not affecting the. party alleging error. After a defendant in chancery has suffered a decree to be taken pro confesso as to him, he can not assign for error that the evidence in the cause was taken before the service of summons, as such error does not affect him. A party can not take advantage of an irregularity which may in some manner affect his co-defendants, but not himself.
    2. Writ-OF possession—on decree assigning dower. By the statute, the approval of the report of the commissioners setting off dower to a widow, vests in her an estate-for life in the land assigned to her, and the court is required forthwith to cause her to have possession by a writ directed to the sheriff for that purpose.
    Writ of Error to the Circuit Court of Monroe county; the Hon. William H. Snyder, Judge, presiding.
    Messrs. Michan & Rickert, for the plaintiff in error.
    Mr. William Winkelman, for the defendants in error.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill brought by the widow and a portion of the heirs of Jacob Fults, deceased, against »the remaining heirs and certain others persons, including plaintiff in error, John Agnew, who were in possession of a portion of the premises as tenants, for the purpose of assigning dower and setting off homestead in the lands of which Jacob Fults died seized, in Monroe county. Commissioners were appointed, by decree of court, to set off homestead and assign dower to the widow. They took the oath prescribed by statute, and went upon the premises and set off homestead and dower, as required by the decree. They filed a report, which was approved and confirmed by decree. No person interested in the title to the lands makes any objection to the decree, but Agnew, who was a mere tenant, sued out this "writ of error.

The objections interposed by plaintiff in error are merely technical, and without force. One is, that the evidence was taken before summons was served. If that be true, it does not affect him. He failed to appear and answer the bill after being served with summons. He was called, and defaulted, and a decree pro confesso entered. As plaintiff in error confessed the bill, an irregularity which might in some way affect the other defendants can not be taken advantage of by him.

In the decree, the court directed a writ to issue to put the widow in possession of the lands set off to her, and this part of the decree is complained of. Section 38, chapter él, of the Eevised Statutes, entitled “Dower, ” provides, that the approval of the report of the commissioners shall vest in the person entitled thereto, an estate in the lands set off to her, for and during her natural life; and the court shall forthwith cause such person to have possession, by writ directed to the sheriff for that purpose. This provision of the statute, which probably escaped the attention of counsel, fully warranted that part of the decree complained of.

We perceive no error in the decree prejudicial to the rights of plaintiff in error, and it will have to be affirmed.

Decree affirmed.


author: Mr. Justice Shope

text:
    Henry H. Gage v. Josiah H. Bissell et al.

      Filed at Ottawa January 25, 1887.

      ^^-jurisdiction to settle conflicting titles. The statute relating to partitions gives the court power to determine the rights of the several parties under their title, whether in the same chain of title or emanating from other sources, as they may be made to appear.
    2. Same—parties—requisites of bill, as setting out the nature and extent of the various titles and interests invoiced. The statute imperatively requires the complainant in a bill for the partition of land, to make all persons interested therein, parties, and by apt averments to disclose the nature and extent of their title or interests; and this is more especially so when conflicting rights are to be determined, incumbrances apportioned, or clouds upon titles removed, or the like relief is sought.
    3. So a complainant seeking to set aside or impeach an adverse title, or to subordinate the same to his title, must state in his bill the nature of such adverse title, and the grounds of his right to equitable relief in regard thereto.
    4. Same—of partition without settling conflicting titles. While parties seeking the partition of land may have clouds upon their titles set aside, yet, upon failure of proof as to the invalidity of the adverse title sought to be impeached, they may dismiss their bill in so far as it seeks to set aside such adverse title, and still have partition, where no cross-bill is filed.
    5. A bill for partition sought to have two tax deeds for the premises set aside as clouds upon the title. On the hearing, the complainant gave evidence showing title in himself and another, and the invalidity of one of the tax titles, and neither party offered any evidence as to such other tax title, whereupon the court allowed the complainant to dismiss his bill in so far as it sought to set aside that tax title, and the court set aside the first named tax title, and decreed a partition: Held, that there was no error in the ruling of the court in allowing the dismissal and decreeing a partition.
    6. Same—partition by parol—whether binding upon the parties. A parol partition of .land between tenants in common, carried into effect by possession taken by each party of his share, is valid and binding on the parties thereto and those claiming under them.
    7. Evidence—admission by the pleadings—bill to set aside a tax title, as an admission of title in the defendant. A bill to set aside a tax deed for certain illegalities can not be construed as an admission of title in the defendant. At most it is only an admission that the defendant is claiming title under a void deed, and will not relieve the defendant from proof of his title, if he claims title in bar of the relief sought.
    8. Same—burden of proof. On bill to set aside a deed as a cloud upon title, the burden of proof is upon the complainant to prove the allegations of his bill, and to show, by competent evidence, the invalidity of the deed attacked thereby.
    Appeal from the Superior Court of Cook county; the Hon. Gwynn Garnett, Judge, presiding.
    Mr. Augustus N. Gage, for the appellant.
    Mr. James B. Mann, for the appellee Hambright.
   Mr. Justice Shope

delivered the opinion of the Court:

Appellee Hambright filed his bill in chancery, in the Superior Court of Cook county, against Josiah H. Bissell and Henry H. Gage, alleging that he and said Bissell were owners, as tenants in common, of lots 6 and 7, in block 22, in Bavenswood, Cook county, Illinois, and that said Gage claimed title to, or some right or interest in, said lots, by virtue of two tax deeds,—one dated April 4, 1873, and the other January 24, 1876; that said tax deeds were unlawfully made, and were illegal and void, and wholly unavailing, in law or in equity, to pass title to said lots, or either of them, or to give said Gage any right, title, interest or claim thereon, except for money paid at said tax sales, and taxes and assessments since paid by him on said lots. The bill alleges that no notice was served upon or given, as required by the constitution-and laws of the State, upon either the owners or occupants of said lots, or either of them, etc., and prays, among other things, for partition as between himself and Bissell, in usual form; that the amount due Gage, for taxes, interest and penalties, be ascertained, and which complainant offered to pay; and that the said tax deeds be severally cancelled and- set aside, and be held void and of no effect, and removed, etc., as a cloud upon the title of complainant and Bissell. Defendant Bissell answered, admitting the allegations of the bill. Defendant Gage answered, denying that complainant and Bissell were owners of the premises, and alleging that he (Gage) was-owner in fee thereof, to which replication was filed.

At the hearing, complainant introduced an abstract of title, under the “Burnt Becords act, ” showing mesne conveyances, which, prima facie, vested title in fee in complainant and Bissell to each of the lots. Complainant offered in evidence said tax deed of January 24,1876, from Herman Lie.b, county clerk of Cook county, to defendant Gage, together with certified copies of the tax certificate, and affidavits, notice-, etc., upon which said deed was issued. There is no contention that this deed is valid, or that it was sufficient to convey title, and it will be unnecessary to examine into the defects in the precedent steps required by law, which render it void. No further evidence was offered by complainant. The defendant Gage offered in evidence certain deeds and abstracts of conveyances, hereafter mentioned, and rested. Neither party offered, or proposed to offer, any evidence as to the tax deed of April 4, 1873. Defendant Gage thereupon moved to dismiss the bill for want of equity, as against said tax deed, and complainant entered a cross-motion to dismiss so much of his bill as related to said deed and as sought to set it aside, etc. The court overruled the motion of Gage, and sustained the cross-motion, and so much of the bill was dismissed accordingly, and decree entered finding title in fee in complainant and Bissell, ordering partition in the usual form, and finding that the tax title of January 24,1876, is a cloud on the title of said co-tenants, and is illegal, irregular and void; finding the amount due Gage for taxes, etc., to be $100.30; orders complainant to pay the same, with interest from date of decree, and upon payment thereof, enjoins Gage from asserting claim to said lots thereunder, and making said sum, with interest, a first lien on the premises. This appeal is prosecuted by defendant Gage, from that decree. It is contended by appellant, that under the statute it was the duty of the court to determine his rights under the tax deed of April 4, 1873; that ms the complainant, by his bill, had alleged its existence, and that appellant claimed title thereunder, the presumption was that it was valid and sufficient in law to pass the title to appellant, unless complainant established its invalidity. It is said, in argument, that, so far as the record shows, that title is absolutely good, and so long as it remains unimpeaclied the complainant has no right to relief; that “it was the right of the defendant to have the title evidenced by the deed of April 4, 1873, and his rights and interests thereunder determined.” The eases of Gage v. Reid, 104 Ill. 509, Hyde v. Heath, 75 id. 381, and Kilgour v. Crawford, 51 id. 249, are relied upon by appellant in support of the position. The statute- provides that every person having any interest in the premises sought to be partitioned, whether in possession or otherwise, and who is not a petitioner, shall be made defendant in the partition proceeding. Section 15 of the act provides: “The court shall ascertain and declare the rights, title-and interest of all the parties to the suit, the petitioners as well as the defendants, and shall give judgment according to the rights of the parties.” By section 39, the court is given power to remove clouds from titles; to investigate and determine all questions of conflicting or controverted titles; invest title by its decrees, and to apportion incumbrances, etc.

The statute is broad and comprehensive in its scope, and gave the court power to determine the rights of the several parties under their title, whether in the same chain of title or emanating from other sources, as they might be made to appear. It is made imperative upon the complainant to bring into court all persons interested in the estate, and by apt averments disclose the nature and extent of their title and interest,—and especially is this so where conflicting rights are to be determined, incumbrances apportioned, or clouds from titles removed, or the like relief is sought. This is as far as the eases cited can be said to go upon the question here involved. In Hyde v. Heath, supra, the bill was brought to impeach and set aside a tax deed as a cloud on complainant’s title, and it was there held that the burden of proof was upon the complainant to prove the allegations of his bill, and show the invalidity of the deed attacked thereby. In Gage v. Reid, supra, it was held that before a complainant would be entitled to relief upon bill filed to set aside or impeach a deed, or subordinate it to his own title, the bill must state the nature of such title, and the grounds of his right to equitable relief in regard thereto, upon the well recognized principle that a complainant can only have such relief as he entitles himself to by the allegations of his bill, supported by proof.

The bill, as originally filed, set out the tax deed in question as parcel of the title under which appellant claimed, and the defects therein, entitling complainant to the relief prayed for, were alleged, and it was sought to have the deed impeached, and removed as a cloud upon the title of'complainant and his co-tenant. To have entitled complainant to that relief, he must have established its invalidity By competent evidence. If the bill had remained as originally filed, it is manifest that the court, in determining the rights of the parties, under the evidence introduced, would have found that complainant was not entitled to the relief sought, as to that deed,—that is, that he was not entitled to have the same removed as a cloud upon his title. No other decree could have been rendered. The bill and answer presented the issues, simply, and if the bill is to be taken as true against the complainant, the most it could be held to admit was, that defendant, Gage, was claiming title under a void deed. The defendant was in court, and undoubtedly had the right to show his title, and introduce any legitimate evidence to sustain it, and the court had full power and jurisdiction to determine his rights thereunder.

This he refused and neglected to do, and can not now he heard to complain.

It therefore follows, that appellant was in no way prejudiced by the dismissal of so much of the bill as related to this particular deed. The effect of the doctrine contended for would be, that co-tenants having the fee to land may not apply to a court of equity for partition unless they had the proof in hand to establish, affirmatively, the invalidity of every mere cloud which, of itself, could have no legal or equitable force, without loss of their estate. Such ivas not the intention of the legislature, and is not deducible from the decisions of courts any where.

It is next urged, that the court erred in finding title to the whole tracts in appellees, and ordering partition between them. It is claimed that the evidence introduced showed the title of the undivided one-lialf of said lots to have been in defendant, Gage. A brief reference to the title will render apparent the grounds for this contention.

It is conceded, that (as to the title under which this claim is made) Henry Rhines was the common source. The record shows that in 1839 said Rhines and wife conveyed to James Hickey thirty-nine and one-half acres of land, and that the lots in controversy are situated on and being part of the south half of said tract. James Hickey died intestate and without issue, August 29, 1840, leaving Mary Hickey, his widow, and brothers and sisters, surviving him. Next in the order of conveyances is the deed under which appellant claims title, made December 14, 1840, by Mary Hickey,—in which she describes herself as “relict of the late James Hickey, deceased, wrho died without children or the descendants of children, ”— to John Leary, purporting to-convey the undivided half of said tract of land to Leary. June 12, 1845, John Leary and wife conveyed, by Avarranty deed, the north half of said tract of land to Philip Rogers, Avho had in the meantime married Mary Hickey, avíJoav of James Hickey, deceased. In February, 1854, a bill was filed in the Cook county court of common pleas, in the name of John Leary, against Mary Rogers, Philip Rogers, and the brothers and sisters, heirs-at-law with Mary, widow of James Hickey, deceased, alleging that the complainant and James Hickey were joint purchasers from said Henry Rliines, and paid each one-half of the purchase price therefor; that Leary and Hickey went into possession of the said thirty-nine and one-half-acre tract, and agreed upon a division thereof between them, said Leary to have the north half, and Hickey the south half thereof; that each took possession of his half in severalty; that Hickey died before making conveyance to Leary of his half, and praying that the defendants, representatives of James Hickey, deceased, convey the north half to him. On October 5, 1854, a decree was entered by that court finding the allegations of the bill true, and requiring the defendants to deed in thirty days, or in default thereof that the master convey. November 20, 1854, the master in chancery made a deed in accordance with the decree.

It is reasonably certain that Leary had continued in the occupancy of the north half of the tract until his deed to Philip Rogers, in 1845, and Mrs. Hickey continued in possession of the south half until her marriage with Rogers, and they continued in the possession of that half and the north half, after purchase from Leary, until Rogers’ death, in A. D. 1856,—at least there is nothing in the record showing change of possession of either the north or south half until the sale of the north half, in 1845, by Leary to Rogers. Subsequently, the heirs of Rogers, and all the Hickey heirs, executed deeds to the grantors of Hambright and Bissell. The defendant, Gage, offered in evidence deeds from John Leary and wife to Martin Van Allen, dated July 30, 1874; from Martin Van-Alien and wife to Laura A. Van Allen, dated September 4, 1876, and from Laura A. Van Allen to Henry H. Gage, dated August 24, 1884. It is now contended, that-as upon the death of James Hickey one-half of the real estate of which he died seized would descend to Mary Hickey, his widow, and that as James Hickey only had, in equity, title to the south half of the tract purchased of Rhines, her deed of December 14, 1840, conveyed to Leary the undivided half of the south half of said tract, and that, in any event, that deed would convey title to the undivided half of all the interest therein of which James Hickey died seized.

Waiving the question of the admissibility of the deed from John Leary, we are unable to say, from this record, that the court was not justified in rendering the decree entered. That court undoubtedly entertained the view that the deed of Mary Hickey was intended to carry into effect the agreement between her late husband and Leary. If, as seems to be shown, Leary was a joint purchaser from Rhines, of the whole tract, and paid half of the purchase price therefor, it was but just and equitable that the one-half thereof should be conveyed to him, and her husband having failed in his lifetime to make the conveyance, the heir was, in equity, bound to do so. A parol partition between tenants in common, carried into effect by possession taken by each party of his share, will be valid and binding on the parties. Shepard v. Rinks, 78 Ill. 188; Grimes v. Butts, 65 id. 347.

Suppose that Hickey, after the parol partition between himself and Leary, had conveyed to Leary the undivided half of the whole premises, wotild it be contended that Leary thereby became the legal owner of the south half, and remained the equitable owner of the north half, unless there was something to manifest an intention to so convey ? If it be true that James Hickey and Leary were tenants in common, in equity, in the premises purchased of Rhines, and made parol partition of the premises, and thereafter occupied in severalty, such parol partition would, as between themselves and their privies, be binding, and a court of equity would, upon proper bill filed, compel conveyance of the tract so partitioned, to Leary. Under such circumstances, a conveyance by Hickej’, who held the legal title, to Leary, of the undivided moiety of the land, would, unless otherwise intended, relate to the partition, and, as between them and those holding under them, be held to convey the moiety partitioned and occupied in severalty by him. There are many circumstances strengthening this view. Over forty years had elapsed, at the time of the hearing, since the deed to Leary, without any change of possession or claim of title, so far as shown under it, to the south half of the tract of land mentioned. Thirty-four years had passed before the deed by Leary to Van Allen. It does not appear that there was any change of possession in consequence of that deed, and five years afterward, in 1845, we find Leary, by warranty deed, conveying the north half to Philip Rogers. It is not pretended he had any other title than that derived through the deed of December 14, 1840. Afterwards, to perfect the title, probably in consideration of his warranty, Leary, it is to be presumed, filed the bill in the court of common pleas, to compel the perfection of his title to the north half of the land, and compel conveyance by the Hickey heirs generally.

It will be unnecessary to go farther in this direction. We can not, in any view suggested, or that the most careful, scrutiny of the record discloses, say that error has supervened in the rendition of this decree. The decree of thé court making the amount found due Gage for taxes, etc., is in accord with the practice approved in former decisions of this court.

Perceiving, therefore, no error in the record of this case, the decree of the Superior Court is affirmed.

Decree affirmed.


author: Mr. Justice Mdlkey

text:
    The Village of Sheridan v. Timothy Hibbard.

      Filed at Ottawa January 25, 1887.

    1. Negligence—measure of damages—inaction to recover for personal injury occasioned by negligence of the defendant. In an action against an incorporated village to recover for a personal injury caused by a defective sidewalk, the court, in substance, instructed the jury, that if they found the defendant guilty, the plaintiff would be entitled to recover for any pain and anguish which he had suffered, or would thereafter suffer, in consequence of the injury; for any and all damages to his person, permanent or otherwise, occasioned by such injury; for loss of time, if any, caused by the injury; for expenses incurred in a reasonable effort to effect the cure of such injury; and, generally, to recover all damages alleged in the declaration which they believed, from the evidence, he had sustained by the injury: Held, that as an instruction in regard to the measure of damages it was substantially correct, and that it was not open to the objection that it allowed the jury to give damages although the plaintiff had failed to exercise due care.
    2. Same—of an instruction in such case—of its proper elements. An instruction as to the plaintiff's right to recover for personal injuries resulting from the alleged negligence of the defendant, should include the hypothesis of ordinary care on the part of the plaintiff to avoid the injury.
    3. But when the instruction relates solely to the measure of damages, and the elements thereof, in the event the defendant is found guilty, it need not refer to the care exercised by the plaintiff, nor need it include the hypothesis that the plaintiff used due care and prudence in his efforts to be cured of Ms injuries, that being a matter in mitigation of damages, and the proper subject of an instruction for the defendant.
    4. Instruction—need not contain every element essential to a recovery or defence. It is not necessary that every instruction asked, without regard to its office or purpose, should have embodied in it every fact or element essential to sustain the action, or that it should negative matters of defence.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of La Salle county; the Hon. Geo. W. Stipp, Judge, presiding.

      Mr. D. B. Snow, and Messrs. Mayo & Widmer, for the appellant :
    If the plaintiff, by the exercise of ordinary care and the use of reasonable means, might have prevented the injury from becoming permanent, he is entitled to recover nothing for pain and anguish hereafter, or un account of the injury to his person having become permanent, if it is now incurable. It is the duty of a person to use ordinary and reasonable care and means to prevent an injury, and the consequences of it, and he can only recover damages for such losses as could not, by such care and means, have been avoided. In either case he can not recover for the loss sustained by his own fault. Field on Law of Damages, p. 130, secs. 126-131; Railroad Co. v. Finnigan, 21 Ill. 646; Railway Co. v. Pindar, 53 id. 447; Railroad Co. v. Pennell, 94 id. 448; Railway Co. v. Eddy, 72 id. 138.
    The rule is firmly established by this court, that when there is evidence tending to prove some fact which, if proven, would defeat a plaintiff’s right to recover, an instruction predicating a right of recovery under circumstances recited in it, if proven, but which ignores the evidence tending to establish, the fact that would defeat the right to recover, is erroneous; and where the evidence as to the fact ignored is close or conflicting, the error will not be cured, even though other instructions on the same subject are given which are accurate. This rule was applied in the following cases, and many others that might be cited: Railroad Co. v. Hetherington, 83 Ill. 510; Railroad Co. v. Sykes, 96 id. 162; Railway Co. v. Henks, 91 id. 406; Linen Co. v. Hough, id. 63 ; Railroad Co. v. Dimick, 96 id. 42 ; Moore v. Wright, 90 id. 470; Evans v. George, 80 id. 51; Cushman v. Cogswell, 86 id. 62; Provision Co. v. Tilton, 87 id. 547; Pennsylvania Co. v. Stoelke, 104 id. 201; Railway Co. v. Rector, id. 296.

      Messrs. Blake & Moloney, for the appellee:
    There are several conclusive answers to the objections urged against plaintiff’s fifth instruction:
    First—We do not- believe it is the law, that in a case like this the plaintiff is affirmatively bound to call, through an instruction of this kind on the measure of damages, the jury’s attention to the fact whether he used due diligence to get cured of his injury.
    Second—This instruction logically calls the jury’s attention to the fact that appellee will only be entitled to recover for “any pain and anguish which he has suffered, or will hereafter suffer, in consequence of said injury,”—not that he will be entitled to recover for any misconduct of his own, either before, at the time, or after receiving the injury, but that he w'ill be entitled to such -damages as the jury, in their judgment, from the evidence, may see fit to give him for pain or anguish, or permanent ills, consequent on or occasioned by said injury. It certainly necessarily excludes all idea of receiving any damages arising from his own misconduct orwant of care in getting cured.
    Third—The evidence on which said instruction was based is so conclusive that u'e deem the efforts of counsel to distort it to suit their purposes, as little less than trifling with this court.
   Mr. Justice Mdlkey

delivered the opinion of the Court:

The appellee, Timothy Hibbard, recovered a judgment of $3500, in the circuit court of La Salle county, against the village of Sheridan, for alleged negligence in suffering one of its sidewalks to become out of repair, by reason whereof the plaintiff was caused to stumble and fall thereon, whereby he was seriously injured. This judgment was affirmed by the Appellate Court for the Second District, and the defendant appealed to this court.

All of the alleged errors relied on for a reversal which this court is permitted to consider, arise on the plaintiff’s fifth instruction, which is as follows:

“If the jury find the defendant guilty, then they should assess the plaintiff’s damages. If the jury find the defendant guilty, the plaintiff will be entitled to recover for any pain and anguish, which he has suffered, or will hereafter suffer, in consequence of said injury; for any and all damages to his person, permanent or otherwise, occasioned by said injury; for loss of time, if any be proved, occasioned by said injury; for expenses incurred in a reasonable effort to effect the cure of said injury, provided the jury believe, from the evidence, that the plaintiff has been damaged in the regards aforesaid; and, generally, the plaintiff will, if the jury find the defendant guilty, be entitled to recover all damages alleged in the declaration which they may believe, from the evidence, he has sustained by reason of said injury,”

We do not think any of the objections taken to this instruction are well founded. The chief objection, expressed in a few words, as we understand it; is, that it does not contain the hypothesis of due care on the part of the plaintiff at the time the'injury occurred, or in his subsequent conduct, with a view to a recovery. Counsel, in their' criticism, seem, as not unfrequelitly happens, to lose sight of the object and purpose of the instruction. It is an error to-suppose that every instruction asked by a plaintiff must, without regard to the office or purpose-it is intended to subserve, have embodied in it every fact or element essential to sustain the plaintiff’s action, nor is it necessary to negative matters of mere defence. It is manifest the instruction in question was not intended, nor does it assume, to enlighten the jury upon the facts necessary to be proved by the plaintiff, in order to recover. An instruction asked for such purpose should, of course, include the hypothesis of ordinary care to avoid-the injury complained of. The sole purpose of the instruction was to tell the jury what the elements of damages were, and which should be taken into consideration by them, in th.e event they found the defendant guilty, and for this purpose we think the instruction was substantially correct. So far as the duty of the plaintiff to exercise due care and prudence in his efforts to be cured of the injuries received by him is concerned, that was purely a matter tending to mitigate the damages, only, and if the defendant desired instructions on that question, it should have asked them.

It is further urged, that the instruction is erroneous because it authorizes the jury to assess and allow the plaintiff all such damages as were occasioned or sustained by reason of the injury. It is, in effect, claimed, that the jury would be authorized, under such a charge, to allow the plaintiff damages on account of the injury, although the plaintiff himself had failed to exercise ordinary care. This claim is not well founded. Indeed, there is really no force in it. By the very terms of the instruction the jury are not authorized to make any application of it at all unless they found the defendant guilty, and this they could not do, under the other instructions • given them, without first finding as a fact that the plaintiff was exercising due care when the injury was received. This is fully shown by the following paragraph in plaintiff’s first instruction, which was given to the jury: “Ordinary care, which both plaintiff and defendant were, bound to exercise in this case, is such care as reasonably prudent men would generally exercise under like circumstances, and the want of such care'is negligence.” If the defendant wanted anything more explicit on the subject given to the jury, it was its duty to ask the court for additional instructions.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice. Scholfield

text:
    James C. Watson et al. v. Freeland B. Gardner et al.

      Filed at Ottawa January 25, 1887.

    1. Mechanic’s lien—commencement of suit—what to be so regarded, as against intervening incumbrancer. After the filing of a petition to enforce a mechanic’s lien against one lot, the owner of such lot executed a deed of trust upon an adjoining half lot, the building being upon both lots, after which the petition was amended so as to embrace the half lot: 3eld, that as against the incumbrancers and subsequent grantees of the owner of the lots, the petition was not to be regarded as filed before the filing of the amendment thereto.
    2. Same—limitation—by whom the bar of the statute may be invoked— of a purchaser under a prior incumbrance. A purchaser of property under a deed of trust, and his grantee, will take the place of the creditor secured by the trust deed, and will be entitled to invoke the protection of the limitation provided for in section 28 of the statute relating to liens.
    3. And when the enforcement of a mechanic’s lien is once barred by the limitation of section 28 of the statute entitled “Liens,” the bar is perpetual. The creditor or incumbrancer is as much such after his debt or incumbrance has merged into a title, as he was before.

      i. The limitation under that section having once commenced to run, nothing short of the extinguishment of the interest of the party in whose favor it is running will arrest it; and the purchaser of that interest occupies the same position as the original creditor.
    5. The lien given by statute in favor of a mechanic or material-man, when it attaches only to an equity of redemption, as, when it is acquired subject to a deed of trust, will be foreclosed by a sale of the premises in pursuance of the power in the trust deed.
    6. Covenant—whether it runs with the. land. A covenant on 'the part of the lessor of real estate, in his lease, that at the end of the term he will pay the lessee the appraised value of the improvements placed thereon by the latter, is not one that runs with the land, and is not enforceable against a grantee of the lessor.
    7. Merqeb—keeping a mortgage alive—subrogation. A purchaser of the equity of redemption of mortgaged premises, upon paying the amount due under the mortgage, will be entitled to be subrogated to the rights of the mortgagee as against intervening rights. In such case, equity will treat the incumbrance as still subsisting, and not as merged, so long as it is necessary to do so to protect the rights of the party paying the mortgage debt.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Thomas A.' Moban, Judge, presiding.
    Freeland B. Gardner obtained a lease, from the heirs-at-law of George Manierre, deceased, of lot 1, in block 8, of fractional section 15, addition to Chicago, to run from November 1, A. D. 1871, to November 1, A. D. 1881. The lease contained, among others, this clause: “And at the end of said first five years, to-wit, on the first day of November, A. D. 1876, the said premises shall be valued by three disinterested persons, one to be selected by each party to this lease; and in ease said parties can not then agree as to the third person, the two persons selected by the parties to this lease shall select the third one; and the said party of the 'second part hereby covenants and agrees to pay, as rent for said premises, for the second five years of said term hereby created, to said party of the first part, the sum of six (6) per cent, annually, on the value of said premises, as fixed by the persons selected for that purpose, as above provided, payable in equal quarterly installments during said five years,—said party of the second part, during the whole of said term of ten years, to pay all taxes and assessments, of every kind, levied, assessed or charged on said premises during that term; and in case said parties can not agree for an extension of this lease at the end of said term of ten years, then the buildings and-improvements which shall have been erected and made on said premises by the party of the second part, shall be appraised in the same manner as is agreed upon above for the valuation of said premises at the end of five years from this date, and shall be paid for by said party of the first part within sixty (60) days after notice that such appraisement has been made. ”
    The said Freeland B. Gardner also purchased and obtained a deed on the 4th of January, A. D. 1S72,- conveying the north half of lot 4 of the same block, and which abuts said lot 1, to him in fee, and on the loth of January, A. D. 1872, he conveyed the same in trust to Uri Balcom, to secure the payment of an indebtedness of $30,000 to W. C. D. Grannis. Afterwards, in the same year, said Gardner erected a hotel building on said lot 1 and north half of lot 4, which was known as the “Gardner House, ” and as soon as it was completed he leased it to Fred S. Gould and H. H. Gardner. After this leasing, and about- July 1, A. D. 1873, James C. Watson and William H. Morrill, partners, claim to have been directed by said Freeland B. Gardner (though he denies it,) to overhaul and repair the steam-heating apparatus in this house; and between September 1, A. D. 1873, and November 25, A. D. 1873, they claim, pursuant to such direction, to have furnished material and done work to the amount of $2979.40, upon which they have been paid only $805.37. And on the 26th of November, A. D. 1873, said Watson & Morrill filed their petition for a mechanic’s lien, on account of such material furnished and work done, in the circuit court of Cook county, making the said Freeland B. Gardner, and Ann H., Edward, Benjamin, George and William B. Manierre, lieirs-at-law of-George Manierre, deceased, defendants. It was, among other things, alleged in the petition, after stating the leasing of said-lot 1 by -the heirs-at-law-mf George Manierre, to Freeland B. Gardner, as above recited, “that July 1, A. D. 1873, petitioners, at Gardner’s request, he being the owner of said leasehold, performed work and furnished material on the building standing on said premises, and which went into said building, and was accepted by said Gardner,” etc., then stating the value or balance due, etc. The prayer is, that a lien be decreed, etc., and “that said leasehold estate be sold under decree, ” etc.
    Gardner answered the petition on the 14th of February, A. D. 1874, alleging that prior to the doing of the work and furnishing the materials by the petitioners, he leased the premises to Fred S. Gould and H. H. Gardner, but that the lease, at the time of the accruing of the debt, was owned by Gould alone, who was then in sole charge, as lessee, of said hotel , denying that he employed petitioners to do the work, and alleging that Gould alone employed and promised to pay them. The Manierres seem to have not been served with process.-
    On the 19th of April, A. D. 1875, the cause was referred to the master to take evidence, but beyond taking some depositions, in 1875 and 1876, nothing was done in the suit until in A. D. 1880. Meanwhile, on the 10th of March, 1874, said Freeland B. Gardner conveyed said north half of lot 4, and his leasehold interest in said lot 1, to Hugh A. White, in trust, to secure his two promissory notes,—one of $10,000, and the other of $50,000,—due in three years from that date. On the 12th of September, A. D. 1874, said Gardner sold and conveyed said property to A. E. Goodrich, and on the 16th of April, A. D. 1877, Gardner having failed to pay the indebtedness secured by the trust deed to White, White sold and conveyed the premises, pursuant to the power, to A. E. Goodrich, and Goodrich afterwards paid the amount due to Grannis on the trust deed to Balcom. On the 31st of July, A. D. 1880, the heirs-at-law of George Manierre sold and conveyed said lot 1 to said A. E. Goodrich,- and on the 30th of March, A. D. 1881, said Goodrich sold and conveyed said lot 1, and north half of lot 4, to Alva Bradley and Alvira Cobb, together with the building thereon. In May, A. D. 1880, a replication was filed to Freeland’s answer.
    On the 5th of November, A. D. 1881, leave was given the petitioners to amend their petition, by making Alva Bradley and Alvira Cobb defendants, and on the same day they filed their joint and several answer to the petition, alleging that they became the owners of the'premises, in fee, on the 30th of March, A. D. 1881, through various mesne conveyances from the Manierres; admitting the lease from the Manierres to Freeland B. Gardner, but alleging that it had expired on the 1st day of November, A. D. 1881, and that the interest or estate upon which the petitioners' claimed a-.lien, .then terminated ; that they were not made parties to the petition until more than six months after any amount which may have been owing from Gardner to the petitioners for labor or materials, became due, and that the petitioners’ lien, if they ever had one, was extinguished. Afterwards, on the 15th of November, A. D. 1881, the petitioners obtained leave, and further amended their petition, by alleging that the lease from the Manierres to Gardner contained a covenant, that if the parties could not agree for an extension of the same at the end of said ten years, then the buildings and improvements thereon should be appraised, as in the lease specified, and be paid for'by the lessees within sixty days after, notice, quoting then the language of the lease before herein set out. They further allege, by the amendment, the purchase of the north half of lot 4 by Gardner, as before herein stated; that he afterwards built the hotel on said lot 1 and north half of lot 4, and repeat their former allegation, that the materials furnished and work done to repair the steam-heating apparatus therein, were done and furnished at the request of Freeland B. Gardner. Bradley and Cobb filed their joint and several answer to the amended allegations, putting them in issue, on the 11th of April, A. D. 1882, and afterwards, in July, A. D. 1883, (Cobb having, since the filing of said answer, and before that time, died intestate,) said Bradley and the heirs-at-law of Alvira Cobb, who had been substituted as defendants, filed their plea and a further answer to the amended petition, setting up and relying upon the limitation provided by the 28th section of the statute in relation to mechanic’s liens, and also the five years’ Statute of Limitations, and further reciting the facts as to how they acquired title, as and before herein recited, and denying that Freeland B. Gardner ever employed the petitioners, as alleged. They claim that Goodrich, by his purchase, and his payments of the amounts due on the trust deeds, became subrogated to the rights of mortgagees under those deeds, and that those right's were transferred to Bradley and Cobb by his deed, and that they are hence, as to the said north half of lot 4, entitled to invoke, which they do, the protection of the limitation provided by the 28th section of the statute in relation to mechanic’s liens.
    The circuit court, on hearing, decreed in conformity with the prayer of the amended petition. On appeal to the Appellate Court for the First District, that decree was reversed, with directions to the circuit court to dismiss the petition. That ruling is assigned for error, and brings up all the questions considered in the opinion of the court.
    Mr. John Woodbridge, for the appellants:
    In the following cases liens were allowed on contracts made by others assuming to act for the owner: Schwartz v. Saunders, 46 Ill. 24; Anderson v. Armstead, 69 id. 456; Taylor v. Gilsdorf, 74 id. 359; Baxter v. Hutchings, 49 id. 118; Dobschuetz v. Holliday, 82 id. 371; Weber v. Wetherby, 34 Md. 656; Gaskill v. Tramter, 3 Cal. 334; Green v. Riddle, 8 Wheat. 77.
    As to purchasers, there was no limitation prior to 1879. Up to this time the limitation clause of the statute had no application to either the principal debtor or a purchaser. Jennings v. Hinkle, 81 Ill. 185; Van Pelt v. Dunford, 58 id. 146; Shaeffer v. Weed, 3 Gilm. 517; Dunphy v. Riddle, 86 Ill. 28.
    The law placing a purchaser upon the same footing, was first in force July 1, 1879. (Laws of 1879, p. 191.) This law is not retrospective. Stat. 1881, chap. 131, sec. 4; Roth v. Eppy, 80 Ill. 285.
    The lien upon a leasehold carries with it the right to the proceeds of an appraisal of the building at the end of the lease. Phillips on Mechanic’s Liens, see. 193, p. 327; Smith v. Phelps, 63 Mo. 585.
    Amendments are proper here, because enough of the property of the appellees is certainly liable to pay our claim in full. The introduction of the north half of lot 4 does not increase the amount to be paid. The value of the building alone is admitted to be $20,000. Thomas v. Insurance Co. 108 Ill. 91.
    Appellants are .not new parties, within the meaning of Dunphy v. Riddle, 86 Ill. 22. They- are purchasers from the principal defendant pendente lite, and succeed to his rights, only. No one .ever heard before that a purchaser from a defendant was a new party, at liberty to claim that the Statute of Limitations ran pendente lite.

    Messrs. Cook & Upton, for the appellees:
    If appellants did the work without regard to the terms of the lease and the agreement between the landlord and their employers, (the-tenants,) they must be held to have done it upon the personal responsibility of the latter, and the right to a lien upon their (the tenants’) estate in the premises. McClintock v. Creswell, 67 Pa. 183; Newell v. Haworth, 66 id. 363; Sturtevant v. Browning, 33 N. Y. 203.
    . We insist that the appellees, being the new defendants to the petition by amendment, have the same right to interpose the six months’ Statute of Limitations that an incumbrancer would have had, having derived their title through the foreclosure of the deed of trust .and sale to Goodrich. Dunphy v. Riddle, 86 Ill. 22; McGraw v. Bayard, 96 id. 146.
    The purchaser succeeded to all the rights of the incumbrancer in that respect, Lunt v. Stephens, 75 Ill. 507.
    The clause in the lease, for payment of the appraised value of improvements, is not a covenant following the land, or en-forcible against any one else than the parties to the contract. Hansen v. Meyer, 81 Ill. 321; Thompson v. Rose, 8 Cow. 266.
   Mr. Justice. Scholfield

delivered the opinion of the Court:

The rulings of the Appellate Court questioned by the argument on behalf of appellants, are, first, that inasmuch as the petition for mechanic’s lien, before amendment, only prayed that it be enforced against Freeland B. Gardner’s leasehold interest in lot 1, and the building thereon, it can not be regarded as a proceeding pending against lot 4 at 'the time that the mortgage was executed to White, and the several deeds were executed to Goodrich, and by Goodrich to Alva Bradley and Alvira Cobb, and hence, as to those parties, the petition for a mechanic’s' lien is not to be regarded as filed until November 1, A. D. 1SS1, the date of filing the amended petition; second, that Goodrich took the place of White, under the deed of trust, and Bradley and Cobb took the place of Goodrich, and now Bradley and the heirs of Cobb are entitled to invoke the protection of the limitation provided by section 28 of the statute in relation to liens, just as White might have invoked it before sale; third, any rights which the petitioners might have had in Gardner’s equity of redemption are foreclosed by the sale, pursuant to the power in the trust deed; fourth, that the covenant on the part of the heirs-at-law of George Manierre, deceased, with Freeland B. Gardner, with regard to the valuation of the building and improvements on lot 1, and the payment therefor by the Manierre heirs, is not a covenant running with the land, and it therefore gave him no lien upon the lot of which the petitioners can avail in .this suit. Gardner v. Watson, 18 Bradw. 392.

We think these rulings are sufficiently vindicated in the opinion filed by the Appellate Court, and will only add, we think it is clear, on principle, that when the limitation of section 28 of the. statute entitled “Liens, ” (Rev. Stat. 1874, p. 668,) once bars the prosecution of a lien, the bar is perpetual. The creditor or incumbrancer is, within the meaning of the statute, just as much such after his debt or incumbrance has merged into a title, as he is before. The'statute having once- commenced to run, in such a case, there is no authority for holding that anything short of the extinguishment of the interest of the party in whose favor it is running, will arrest it. The principle is too obvious for extended comment, that if this be so, then the purchaser of that interest occupies precisely the same position that the original creditor or lienor did. He takes the rights, and assumed the correlative obligations and duties unchanged.

Goodrich having become the owner of the equity of redemption, upon paying Grannis the amount due him on the Balcom deed of trust, was entitled to be subrogated to the rights of Grannis under that deed. . Sheldon on Subrogation, sec. 28, et seq.; 1 Jones on Mortgages (2d. ed.) 874. And a court of equity will not treat the incumbrance as merged, so long as it is the interest of Goodrich, and those claiming in his right, that.it shall be subsisting. Campbell v. Carter, 14 Ill. 286; Edgerton v. Young, 43 id. 464; Richardson v. Hockenhull, 85 id. 124. Although, too, Goodrich had a deed to the equity of redemption, he might subsequently obtain and rely upon a deed, (if for any reason it would better protect his rights,) at a sale, upon foreclosure, of White’s deed of trust.

The judgment is affirmed.

Judgment affirmed.


author: Mr. Chief Justice Scott

text:
    John A. Roche v. Thomas Beldam.

      Filed at Ottawa January 25, 1887.

    1. Court record—importing verity—parol evidence to contradict it— conclusiveness on the parties. The record of a court, showing the entry of a judgment by confession in open court, imports verity, and can not be contradicted by parol evidence.

      2. Where the record of a judgment is once made up, it is conclusive upon all the parties thereto, until altered or set aside by a court of competent jurisdiction.
    3. Same—errors in its recitals, how corrected. If the record of a judgment by confession does not state the facts as they actually occurred, the defendant should apply to the court in which the proceedings were had,-and have it corrected, so as to show the facts correctly. If this is not done, no parol evidence can be heard to contradict it.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. John Gr. Rogers, Judge, presiding.
    Mr. Frederic Ullman, for the plaintiff in error.
    Messrs. H. T. & L. Helm, for the defendant in error
   Mr. Chief Justice Scott

delivered the opinion of the Court:

On the 5th day of October, which was a day in the September term, 1885, of the circuit court of Cook county, a judgment by confession was entered in that court, in favor of Thomas Beldam, against Merrick A. Richardson. An execution, issued on such judgment, was placed in the hands of the sheriff, who at once levied it upon a stock of goods, as the property of the judgment debtor. Shortly after the execution was levied upon his property, defendant made a voluntary assignment of his effects to John A. Roche, for the benefit, of his creditors. Among the effects assigned, were the goods levied upon by virtue of the execution in the hands of the sheriff, that had been issued on the judgment so confessed. The assignee of the judgment debtor then appeared in the circuit court, where the judgment had been confessed, by his counsel, and entered a motion “to vacate and set aside the judgment therein entered, and to quash the writ of execution issued thereon. ” The grounds for vacating the judgment and quashing the execution, as stated in the written motion submitted on behalf of the assignee, Roche, are as follows: “First, that said judgment was not entered in open court; second, that at the time said judgment was entered, the said circuit court of Cook county was not in session; and third, that at the time the execution was issued on said judgment, and placed in the hands of the sheriff of Cook county, no judgment had, in fact,’been entered in said court.” It seems the circuit court heard evidence on the matters set forth in the written motion of the assignee, but refused to vacate the judgment and quash the execution that had been issued on it. That decision of the circuit court was afterwards affirmed in the Appellate Court for the First District, and the assignee brings the ease to this court on error.

On inspecting the record in this case, it is seen it does not afford the slightest support to any ground suggested against the validity of the judgment. It affirmatively appears, the September term, 1SS5, of the circuit court, was in session when the judgment was confessed; that it adjourned on Saturday, the 3d day of October, 1885, until Monday morning next thereafter, at ten o’clock; that on that day “court met, pursuant to - adjournment;” that “court opened by proclamation,” and that an attorney of that court, on behalf of defendant, and by virtue of a warrant of attorney for that purpose executed by defendant, and then produced and filed in “open court, ” and by his cognovit, waived the issuing and service of process, and confessed a judgment in favor of plaintiff in that suit, in the usual form, for the sum due on the promissory note described in the declaration filed in the cause. Thus it is seen, the court, in regular session, had jurisdiction of the person of defendant and of the subject matter of the suit, and no reason appears on the face of the record why the judgment rendered against defendant is not regular and valid. It also appears, from the record, the execution that was issued on the judgment was in fact issued after the judgment had been entered, and no reason is perceived on the face of the record why it is not valid.

But it is sought to show, by parol, the judgment was in fact rendered on the morning of the 5th of October, at an hour earlier than the time appointed for the convening of the court on that morning, simply by an order of the judge of the court, made “at chambers; ” and it is insisted, the judgment for that reason is void, and that all proceedings had under the execution issued on such judgment are without authority of law. This can not be done. No rule of law is ‘better-settled, both by the decisions of this and other, courts, than that a record like this one imports verity, and can not be contradicted by parol. When the record is once made up, it is conclusive upon all parties until altered or set aside by a court of competent jurisdiction, and so the adjudged cases all hold.

If the record, as it remains in the circuit court, does not state the facts as they actually occurred, defendant should have made application to have the court correct the record, so as to make it speak the truth. Had that been done, and the record corrected so as to show the facts as they are alleged to be, the questions discussed would have been presented for decision. As the record now comes before the court, it will be regarded as importing verity, and no parol evidence will be heard to contradict it. It follows, therefore, the objections to the validity of the judgment and the execution, sought to be established, by parol, in opposition to the record itself, can not be considered, and the judgment and execution must be treated as valid.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.