text:
    Malcolm McDowell v. The Chicago Steel Works et al.
    Filed at Ottawa May 9, 1888.

    1. Pledge—right of pledgee to make sale—whether notice required. At common law the pledgee has no right to sell the property pledged, without judicial process, unless he gives the pledgor reasonable notice to redeem; and the pledgor is also entitled to notice of the pledgee’s intention to sell, ■and of the time and place of sale.
    2. But such notice is not necessary when payment is demanded of the pledgor, and the instrument of writing by which the security pledged is •assigned to the pledgee specially authorizes the latter to sell, “at public or ■private sale, at his discretion,” upon default being made, or upon the expiTation of a certain number of days after default.
    3. At common law, when property is pledged to secure a debt, the right to sell for default in payment is conferred by the law, and hence the sale must be made subject to the conditions imposed by the law,—that is to say, .after making demand and giving notice.
    4. But when the pledge is accompanied by a special contract as to sale ■upon non-payment of the debt, the right to sell is conferred, not by the law, but by the contract itself, and hence must be exercised in the mode ■ ■specified by the parties in their agreement. As such contract embodies the intentions of the parties, its silence as to notice will justify the inference that the power to sell without notice was intended to be conferred.
    5. The owner of certain shares of stock pledged the same as security for the payment of his promissory note when payment should be demanded, and authorized, in writing, the holder to sell the same, either at public or private sale, in his discretion, if default should be made in payment for thirty days. Payment was demanded, and on default the holder sold the stock at public sale, advertised in a daily public newspaper: Held, that the sale was valid, and that the pledgor was not entitled to a personal notice •of the time and place of sale.
    6. Laches—estoppel—delay in seeking to set aside sale of a pledge— -.realising the value of the thing pledged. Six years after a sale of a stock.holder’s shares of stock, which he had pledged to secure the payment of .his stock note, he filed his bill in chancery to have the sale set aside. It ■appeared that after the sale he accepted from the corporation a sum of money, which represented the company’s estimate of the difference between the real value of his stock and what it sold for, and afterward demanded his stock note as having been paid by the sale of his stock, and on refusal to surrender the same to him he brought suit in trover for it: Held, that the unexplained delay in filing his bill, and his conduct in the nature of an. estoppel, were such as to present a bar to relief.
    7. Stockholder—liability upon stock note—agreement among stockholders not to pay, except by dividends. Although it may have been agreed, between the stockholders of a private corporation that payment of the stock, should not be enforced, but should be paid by the dividends, if valid, and. not contrary to public policy, the contract can not be set up to defeat the-collection of a note given by a stockholder thereafter, for the amount of his stock, which contains an unqualified promise to pay. The giving of such, a note will amount to a rescission of any such agreement.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. H. M. Shepard, Judge, presiding.
    Mr. Thomas Dent, and Mr. J. H. Raymond, for the appellant:
    The sale of appellant’s stock was made in violation of the original agreement as to the manner in which the stock was to be paid in.
    The sale was made without actual notice to the appellant. Such notice was due, because the affairs of the company were such as to render the sale unnecessary, and because of the prior understanding embodied in the by-laws, and for the further reason the company had conceded, by its stipulation, that, it would not proceed on the former resolution of the board.
    The pretended sale was in the nature of a declaration of a forfeiture of appellant’s stock. No stock certificate had ever been issued to him, and the sale, without actual notice to him,, was made for the fraudulent purpose of having the stock issued, to another person. As to forfeiture of stock, see Rev. Stat, chap. 32, entitled “Corporations,” sec. 7.
    Two notices are usually required in case of a pledge in general,—one giving a reasonable time to redeem, and the other-stating the time and place of the sale. 2 Kent’s Com. 582;. Cushman v. Hayes, 46 Ill. 145; Trust Co. v. Rigdon, 93 id. 458 Rozet v. McClelland, 48 id. 347; Davis v. Funk, 39 Pa. St. 243; Washburn v. Pond, 2 Allen, 474.

      The facts tend to show that C. P. Buckingham, the seller of the stock, was the buyer of the same, though in the name of his nephew, Clarence, and for this reason the sale was invalid. Stokes v. Frazier, 72 Ill. 428; Killian v. Hoffman, 6 Bradw. 206.
    As to the necessity of actual notice of the time and place •of the sale of property pledged, see Jerome v. Carter, 94 U. S. 734; Hancock v. Insurance Co. 114 Mass. 155; Duffield v. Miller, 92 Pa. St. 286; Fletcher v. Dickinson, 7 Allen, 23; Stearns v. Marsh, 4 Denio, 227.
    The pledgor has the right to be present at the sale, to see that it is properly conducted, and to guard his interests. Alexandria County v. Burke, 22 Gratt. 254; 12 N. J. Eq. 323; Jones on Pledges, secs. 602-607.
    Messrs. Stiles & Lewis, for the appellees:
    The oral agreement set forth in the bill is not established by the evidence.
    A parol agreement prior to or contemporaneous with a written subscription to stock, is invalid, if inconsistent with the writing. Smith v. Railroad Co. 30 Ala. 650; Johnson v. Railroad Co. 9 Fla. 299; Railroad Co. v. Stevens, 6 Ind. 379; Thigpen v. Railroad Co. 32 Miss. 357; Ferry Co. v. Jones, 39 N. H. 491.
    The giving of the stock notes in July, 1876, was a waiver of any prior parol agreement as to the manner of paying the ■stock subscription. O’Donald v. Railroad Co. 14 Ind. 250; Railroad Co. v. Moss, 2 Duv. 242; Slipher v. Earhart, 83 Ind. 173.
    Authority to sell stock at public or private sale amounts to an implied waiver of actual notice of the sale. Robinson v. Harley, 11 Iowa, 410; Bryson v. Rayner, 25 Md. 424; Milliken v. Dehorn, 25 N. Y. 364.
    Appellant’s laches is such as to bar him, and, by bringing suit in trover for his stock note, elected to affirm the sale of the stock.
   Mr. Justice Magruder

delivered the opinion of the Court:

On July 27, 1876, the appellant signed and delivered to the Chicago Steel Works the following stock note:

“Whereas, the undersigned did, in the month of September, 1873, subscribe for fifty shares, of $100 each, of the capital stock of the Chicago Steel Works, (an incorporated body organized under the laws of the State of Illinois,) upon which subscription no payment has yet been made:

“Now, therefore, I, Malcolm McDowell, do hereby agree and promise, in consideration of the premises, to pay to the said Chicago Steel Works, whenever payment may be demanded by the directors thereof, the sum of $5000, (being the par value of said stock,) with interest on the same at the rate of ten (10} per cent per annum from the 1st day of January, A. D. 1874, payable annually, until this obligation is paid; and to further secure said payment, I do hereby assign and transfer to the treasurer of said Chicago Steel Works, and his successor or successors in office, all my right, title and interest of and in* and to said stock so subscribed for, with any its improvements and increase, as collateral security for the payment of said indebtedness, when demanded, as above provided; and in case of default in payment when so demanded, I do hereby authorize and empower the said treasurer to sell my right, title and interest in said stock so subscribed for, with any its improvements and increase, or so much as may be necessary to pay this obligation, at public or private sale, at his discretion, after the expiration of thirty days after such default, and in case of any such sale I do hereby empower him, the said treasurer, or his successors in office, of said corporation, or any other officer of said corporation, to make, execute and deliver to the purchaser or purchasers at any such sale, any and all instruments in writing, or assurances or certificates of stock, which may be necessary or proper to vest in or evidence to such purchaser or purchasers the full ownership and title to the right and interest so to be sold to him or them.

“In testimony whereof, I have hereunto set my hand this 27th day of July, A. D. 1876.”

On December 13,1879, the board of directors passed a resolution calling for payment of the stock notes on January 15, 1880. Notice of this resolution was at once served upon appellant and demand was made of him to pay his note on January 15, 1880. On December 17, 1879, appellant filed his bill in the Superior Court of Cook county enjoining the sale under the provisions of the note. January 17,1880, the Chicago Steel Works stipulated in writing that it would not attempt to make any sale under the resolution of December 13, 1879, or the notice given in pursuance thereof, but expressly reserved the right to sell the stock interest of appellant under such methods or proceedings as might he thereafter adopted. The bill so filed was demurred to on January 30, 1880, and, on March 24, 1880, the demurrer was sustained and the bill dismissed.

On April 6, 1880, the directors passed another resolution that the stock notes be declared due on April 15, 1880, and that the secretary of the company be directed to give the necessary notice and make the necessary demand for the payment of the same into the hands of the treasurer on or before April 15,1880. On April 7,1880, a written notice was served upon the appellant', which contained an exact copy of the resolution of the day before and demanded of the appellant that he pay his stock note and the accumulated interest thereon on or before April 15, 1880. The notice also called attention to the fact that a meeting of the stockholders would be held on April 13, 1880, to elect directors.

Appellant failed to pay his note and on May 17, 1880, the board of directors passed a resolution, in which, after reciting the former resolution of April 6, 1880, and that notice had been given to appellant and demand made of him, as therein directed, and that his default had continued for more than thirty days, it was resolved that the treasurer be authorized and requested to sell all the right, title and interest of appellant in the stock so subscribed for by him at public sale to the highest bidder at such time and place as the treasurer might select, and to deliver to the purchaser a stock certificate, etc.

On May 22, 1880, at ten o’clock in the forenoon the fifty shares of stock subscribed for by appellant and all his interest in and under his subscription were sold at public auction at the north door of the Chamber of Commerce on Washington street in the city of Chicago to Clarence Buckingham for $5000, which amount was applied on the note. Previous notice of the sale had been given by the publication thereof for three days in a Chicago daily newspaper.

The original bill in the case at bar was filed in the Superior ■Court of Cook county on November 19, 1884; it does not attack or even mention the sale of May 22,1880; it sets up the ■organization of the corporation above named, for the purpose of making plow beams out of the fag ends or refuse of steel rails, with a nominal capital of $20,000, and that appellant, ’Catherinus P. Buckingham, Ebenezer Buckingham and John Buckingham each subscribed for one-fourth, or $5000, of the ■stock; it alleges that, in forming the corporation, an agreement was made for the payment of the stock subscriptions out ■of the profits of the business, that the Buckinghams furnished the capital and charged interest on their loans to the company, etc.; it charges that the Buckinghams and the company entered into a conspiracy to oust appellant from the corporation and, in pursuance thereof, induced him to execute the note above set forth, etc.; it prays for a discovery and accounting, for the issue to appellant of the stock subscribed for by him, or, if issued to others, for its surrender, for an injunction against any transfers, re-issues or increase of the ■stock and against the making of any erasures or entries in the books of the company, etc.

On December 20,1884, the company and the Buckinghams, defendants, answered the bill denying its allegations and setting up the sale of May 22,1880, and the proceedings leading up to it, as hereinbefore detailed. On April 2,1886, appellant filed an amendment to his bill and therein for the first time referred to the sale of May 22, 1880, and charged that it was made without notice to him and was a fraud upon his rights and an attempt to forfeit his stock, etc.

After proofs taken and upon hearing of the cause, the Superior Court dismissed the bill for want of equity, which decree has been affirmed by the Appellate Court, whence the case comes before us by appeal.

The sale of May 22, 1880, is attacked by the appellant as void for the alleged reason that it could not be lawfully made without notice to him and that such notice was not given. At common law the pledgee had no right to sell the property pledged without judicial process, unless he gave the pledgor reasonable notice to redeem; and the pledgor was also entitled to notice of the pledgee’s intention to sell and of the time and place of sale. Such notice, however, is not necessary where, .as in the present case,.payment is demanded of the pledgor and the instrument of writing, by which the security pledged is assigned and transferred to the pledgee, specially authorizes the latter to sell “at public or private sale at his discretion,” upon default being made or upon the expiration of a certain number of days after default. Cushman v. Hayes, 46 Ill. 145; Loomis v. Stave, 72 id. 623; Union Trust Co. v. Rigdon, 93 id. 458; Jones on Pledges, sec. 611; Story on Bailments, sec. 317; Milliken v. Dehon, 27 N. Y. 364; Robinson v. Hurley, 11 Iowa, 410; Bryson v. Raynor, 25 Md. 424; Genet v. Howland, 45 Barb. 560; Murdock v. Columbus Ins. Co. 59 Miss. 152; Mowry v. Wood, 12 Wis. 413.

At common law, where property is pledged to secure a debt, the right to sell for default in payment is conferred by the law, and hence the sale must be made subject to the conditions imposed by the law, that is to say, after making demand and giving notice. But where the pledge is accompanied by a special contract as to sale upon non-payment of the debt, the right to sell is conferred, not by the law, but by the contract itself, and hence must be exercised in the mode specified by the parties in their agreement. As such contract embodies the intentions of the parties, its silence as to notice justifies the inference that the power to sell without notice was intended to be conferred.

We are aware that in Rozet v. McClellan, 48 Ill. 345, language was used which seems to imply that the pledgor must have notice even where the pledgee is authorized to sell the collateral security at public or private' sale. But such language was unnecessary to the decision'of that case and was. mere obiter dictum. There no sale had been made of the stock pledged as collateral security, and the question of the power to sell without notice did not arise. In that case suit was. brought upon the note, and the question was whether the holder of the note was bound to sell the stock, transferred to-him as collateral security, upon default in payment of the-note, and, on failing to do so, whether he was liable to account, for the loss.

Here appellant promised to pay $5000 to the company when, payment should be demanded by the directors. They demanded, payment of him in December, 1879, but he refused to comply with the demand and postponed the threatened sale under the power in the note by a chancery suit which lasted until the end of March, 1880. In that suit he was notified by the company that it reserved its right to make sale of his stock interest under a future notice and was thereby forewarned and notified of the intention of the company to sell in pursuance of the authority conferred by the note. He made the note and was bound to know, that, if his default continued for thirty days after demand, the treasurer was authorized to sell. When, therefore, a second demand was made on him for the payment of his subscription in April, 1880, it was his duty to take notice that in thirty days after April 15, 1880, his interest would be sold at public or private sale, if he did. not pay. By an instrument in writing he transferred and assigned his interest to the treasurer of the company and authorized him, in case of default for thirty days, “to sell at public or private sale at his discretion.” If, in the exercise of such discretion, the treasurer had made a private sale, notice to appellant of the time and place of such sale would not only have been unnecessary, but would have been an idle form.. The power to make a private sale necessarily dispensed with the duty of giving notice, and the obligation of giving notice-was equally removed when the discretion of making the sale either public or private was conferred upon the treasurer. The sale, however, was a public one, made at a public place and after due advertisement in a public newspaper.

We do not think it would be a fair construction of the contract to hold that it was intended to require the company to give appellant personal notice in case the sale should be public, but no notice in case it should, be private. Where property was pledged to secure a debt without any special contract as to notice, the pledgor was entitled to notice of the time and place of the sale to enable him to procure buyers and enhance the price. But the appellant yielded his rights in this regard, when he bestowed the discretion to make a private sale, because such sale might be made at a price fixed in advance by the company and without competition among bidders.

The appellant has furthermore been guilty of serious laches in allowing the sale to stand without attack for so many years and after his interest had been transferred by the purchaser at the sale and gone into the hands of third parties. (Hayward v. National Bank, 96 U. S. 611.) He took no measures to set aside the sale until April, 1886, six years after it was made. To be sure, he filed the original bill in this case four" years and a half after the sale, but, even if that period was not a long delay, such original bill did not question the validity of the sale, bu-t sought relief on other grounds. On the other hand appellant has done acts, which ought to estop him from now claiming the sale to be void. For instance, he accepted from the company a sum of money which represented their estimate of the difference between the real value of his stock interest and what it sold for. Again, he wrote the company a letter saying: “Please send me my stock note which I understand has been satisfied,” etc., and, upon failing to get his cancelled note, commenced a suit in trover for it.

Appellant claims, however, that there was an agreement made between himself and the Buckinghams before the organization of the company, by the terms of which the subscriptions to the capital stock were not to be paid in money but out of the profits of the business; and, as confirming his statement in regard to such an agreement, he points to section 9 of the by-laws, adopted at a meeting of the board of directors on September 29,1873, which provided that a capital stock account should be kept, and that therein the subscribers should be charged with their stock liability and credited with dividends, etc. His position is that, if he had been properly credited with his share of the profits, his liability on his stock subscription would have been discharged.

We will not stop to discuss whether such an agreement, if it existed, was not against public policy and contrary to the statute, which requires stock to be paid for, nor whether it was abrogated by the language of the stock subscription, which reads as follows: “We severally agree to pay the said company the Sinn of $100 on each share at such times and in such installments as shall he required by the board of directors of said company.” It is sufficient to say, that, even if such an agreement were valid, its existence is not proven by such a preponderance of the evidence as would justify its being made the basis of affirmative relief. The proof of it consists entirely of the testimony of the appellant himself, while both C. P. and ■ Ebenezer Buckingham deny that there was any such agreement. There may have been and probably was some talk to the effect that the business would be so profitable as to earn enough to pay for the stock. Moreover, the proof does not show, that, in the early part of 1880, the profits were sufficient to pay the stock notes without doing injustice to the creditors by such an application of the surplus. The other subscribers paid their stock notes in money with the- exception of a small credit thereon arising from the proceeds of dividends declared in their favor.

On July 1,1876, a dividend of fifteen per cent or $750, and, on January 1,1878, another dividend of ten per cent or $500, were declared in appellant’s favor. These sums, however, he did not suffer to remain in the hands of the company to be applied on his note, but drew them out and used them for other purposes.

But even if there was such an agreement as is contended for, it was rescinded by the proceedings which took place on July 27, 1876. On that day there was a meeting of the directors, at which appellant was present. Section 9 of the by-laws, was repealed and appellant assented to the repeal. A resolution was adopted, that each of the subscribers to the capital stock should give such a stock note as that hereinbefore discussed. The resolution was read over to appellant and agreed! to by him, and, in pursuance thereof, he executed his note with the provisions above stated. The proof does not show that any fraud or unfair means were used to induce him to sign the note. By its terms he agreed to pay the $5000 and interest whenever demand should be made on him by the directors, and without limiting his obligation to pay to such amounts as might be coming to him from the profits of the business.

We do not deem it necessary to discuss any of the other points made by counsel. We see no reason for disturbing the decree of the court below.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Chief Justice Sheldon

license: Public Domain

text:
    Henry H. Gage v. James S. Pirtle, Trustee.

      Filed at Ottawa May 9, 1888.

    1. Removing cloud upon title—setting aside tax deed—upon what terms. The proper terms on which to set aside a tax deed taken out on an insufficient notice of the purchase, is to require the owner of the land to pay to the holder of the tax deed the amount paid at the tax sale, and all subsequently paid taxes, with interest thereon, and not the amount required to redeem, and subsequent taxes, with interest thereon.
    2. Same—former decision distinguished. In the case of Gage v. Busse, 102 Ill. 592, the bill was filed before the time of redemption had expired, and it sought to redeem without the payment of an illegal tax in part, and it was not intended in that case to depart from the prior decisions holding that it is only necessary for the complainant to pay the amount of the sale, subsequent taxes and interest.
    3. Same—“penalties,” under act of 1885—the statute construed. The penalties mentioned in the act of 1885, amendatory of section 224, chapter 120, of the Revised Statutes, and which are required to be paid as a condition to the setting aside of a tax deed, are those which the holder of the tax deed, or his assignor, shall have paid or be entitled to in procuring his tax deed.
    Appeal from the Superior Court of Cook county; the Hon. Egbert Jamieson, Judge, presiding.
    Mr. Augustus N. Gage, for the appellant:
    It is not equitable for one to permit another tó invest money for his use, and to discharge his public obligations, upon the faith of a statute, and then defeat the purchaser from receiving the statutory compensation. Moore v. Wayman, 107 Ill. 192; Gage v. Busse, 102 id. 592.
    Equity follows the law, and when equity first attaches, the statutory penalties have accrued; and public policy requires that these penalties should be paid.
    The State has entered into the contract with the purchaser at a tax sale, whereby it has promised him a bonus upon the money invested. Cooley on Taxation, (2d ed.) p. 545, sec. 13, chap. 16; Garrick v. Chamberlain, 97 Ill. 620.
    The legislature has said the court must decree the repayment of the penalties. Eev. Stat. chap. 120, sec. 224.
    Messrs. Smith & Pence, for the appellee:
    The rule requiring payment of the sum paid at the sale, and all subsequently paid taxes and assessments, with interest thereon, is the proper one. Reed v. Tyler, 56 Ill. 288; Barnett v. Cline, 60 id. 205; Reed v. Reber, 62 id. 240; Phelps v. Harding, 87 id. 442; Farwell v. Harding, 96 id. 32; Wilmerton v. Phillips, 103 id. 78; Moore v. Wayman, 107 id. 192; Smith v. Hutchinson, 108 id. 662; Peacock v. Cannes, 110 id. 99; Gage v. Hervey, Ill. id. 305; Gage v. Nichols, 11d id. 269; Carne v. Peacock, 114 id. 347.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

This was a bill to set aside a tax deed as a cloud upon title, alleging as a reason therefor the insufficiency of the service of notice of the tax sale. The court found that the notice given of the tax sale was insufficient, and decreed the relief sought, upon the terms of payment by the complainant to the defendant, within ten days, of the amount paid at the tax sale and all subsequently paid taxes, with interest thereon. We think the court’s finding was right as to the insufficiency of the service of notice, but that point is not pressed in the argument,, the purpose appearing to be to get a decision of the question whether the court ordered payment of a sufficient sum of money as the condition of relief, appellant’s counsel saying in his brief: “The discussion, then, is upon this question only, Did the trial court err in granting relief without directing the payment of such sum as would have been required to make a redemption, together with interest thereon ?” The tax sale was on October 26, 1880, being for the taxes of 1871 to 1879, both • inclusive. . The tax deed was made on June 9, 1883.

Gage v. Busse, 102 Ill. 592, is relied upon by appellant’s counsel as in support of the affirmative of this question. That case is not quite the present one. There was there a small amount of illegal tax included in the judgment for the sale. The bill to set aside the sale was filed a short time before the expiration of the time for redemption. It was there said; “It is not perceived that equity requires that appellant should be shorn of his rights, under the purchase, to any greater extent than in so far as they are affected by the amount of taxes erroneously included in the judgment. On that hypothesis, the decree ought to have been that complainants be allowed to redeem from the sale by paying the redemption money allowed by the statute had the judgment and sale been for the proper amount of taxes, which can be readily ascertained by deducting the erroneous tax from the amount of the judgment.” As the sale there was confessedly just to the extent of the most part of the judgment, it seems to have been considered that the proceeding there should, in equity, be viewed as in the nature of an application to redeem. There was no reference-in the opinion to any previous decision of the court, and however the decision may be viewed, under the circumstances of that case, it was not the intention there to depart from the long line of the former uniform decisions of the court, that the condition of the equitable relief granted upon the setting aside of a tax deed should be the payment of the amount paid at. the tax sale, subsequent taxes paid, and interest. The long list of such decisions is cited in the brief of appellee’s counsel. Gage v. Busse we do -not regard as an authority sustaining appellant’s claim that an amount equal to redemption money should in this case have been required to be paid.

It is insisted that the proviso to the act of the General Assembly, in force July 1, 1885, (Laws of 1885, p. 235,) amendatory of section 224, chapter 120, of the Revised Statutes, requires the payment of such amount to be made. That proviso is as follows: “That any judgment or decree of court setting aside any tax deed procured under this act, shall provide that the claimant shall pay to the party holding such tax deed all taxes and legal costs, together with all penalties, as provided by law, as it shall appear the holder of such deed, or his assignors, shall have properly paid, or be entitled to in procuring such deed, before such claimant shall have the benefits of such judgment or decree.”

It is claimed that the term “penalties” embraces the amount of redemption money. The amount paid for redemption from a tax sale is not styled a penality in the provision of the statute for redemption from a tax sale. There are penalties spoken of in the Eevenue act, as in the order of sale, that “the court shall give judgment for such taxes and special assessments and penalties as shall appear to be due.” Those penalties may satisfy the term “penalties” used in this proviso, without making it necessary to resort to the money paid on redemption to find application for the term. The penalties to be paid, by this proviso, are penalties which the holder of the tax deed, or Ms assignors, shall have paid or be entitled to in procuring the tax deed. Money paid on redemption is not money paid by the tax sale purchaser, or which he was entitled to m procuring his tax deed, or otherwise. It is money paid by the land owner, and paid, not to procure, but to prevent a tax deed. It is not money the tax sale purchaser was ever entitled to have.

The provision of the statute respecting redemption is, that real property sold for taxes may be redeemed, at any time before the expiration of two years from the date of sale, by payment of the amount for which the same was sold, and twenty-five per cent thereon, if redeemed before the expiration of six months from the day of sale; if between six and twelve months, fifty per cent; if between twelve and eighteen months, seventy-five per cent; and if between eighteen months and two years, one hundred per cent on the amount for which the same was sold. The person redeeming shall also pay the amount of all taxes and special assessments accruing after the sale paid by the purchaser, with ten per cent interest thereon. These are the amounts, it is claimed, which were required to be paid here by the above proviso of the statute of 1885. We do not so think. It would not seem reasonable to require the land owner to pay such amounts in order to have set aside a tax deed upon his land which had been wrongfully obtained. It would be equitable that he should refund to the tax sale purchaser the amount paid upon the purchase, and all taxes, charges upon the land, paid by the latter, with interest, and we think that is all which the statute requires to be paid,-— that the statute really does no more than to enact what this court had decided should be paid as the condition of having a tax deed set aside. Had it been the intention that the land owner should pay an amount equal to the sum which would had to have been paid upon redemption of the land from the "tax sale, it would have been quite easy to have so said in plain terms, instead of expressing such purpose in the blind and roundabout way of this statute.

The decree must be affirmed.

Decree affirmed.


author: Mr. Justice Mulkey

text:
    Margaret O’Melia et al. v. Anthony Mullarky.

      Filed at Ottawa May 9, 1888.

    1. Partition—proof of title—when all the parties claim through a common source. "Where all the parties to a bill for partition claim through a common source, proof of title in the person under whom they claim is not necessary, and this especially when the pleadings admit that such person ' ■was seized in fee of the premises.

      2. Trust—conveyance in trust— legal vested estate in beneficiary—char■acter of the trust. A deed conveyed land to A, “in trust for B, C, D, E and F, heirs-at-law of Gr, deceased,” the title “to vest absolutely, in fee simple, in said above specified heirs, at and after the death of H, the uncle •of said heirs, but to so vest upon, and only upon, the express condition that the said H shall, during the whole remaining term of his natural life, have, a home upon said lands, and a good and sufficient support therefrom, and also the control and management thereof," etc.: Held, that the trust was an executed one, and that H took a legal estate for his life, with remainder in fee to the heirs-at-law of Gr, as tenants in common, and that the estates •of such heirs were also legal vested estates.
    3. Where a deed is made to one in trust for others, such as that mentioned, it imposes no duties on the grantee, either with respect to the beneficiaries or the estate conveyed. Such a conveyance will create only a dry trust, and the grantee will acquire but a momentary seizin to serve the use which the statute executes, by transferring the legal estate to the beneficiaries named.
    Appeal from the Circuit Court of Stephenson county; the "Hon. William Brown, Judge, presiding.
    Mr. U. D. Meacham, and Mr. L. Stoskopf, for the appellants.
    Mr. John C. Kean, for the appellee.
   Mr. Justice Mulkey

delivered the opinion of the Court:

On the 3d day of March, 1885, the appellee, Anthony Mullarky," exhibited his bill in the circuit court of Stephenson •county, against appellants, Margaret O’Melia, Patrick O’Melia ■and John Glynn, praying for the partition of certain real estate particularly described in the bill, two-fifths of which is .•alleged to belong to the complainant, two-fifths to Margaret •O’Melia, and the remaining one-fifth to Patrick O’Melia, and •all claim in fee simple. On the hearing the court found their ¿respective interests to be as stated in the bill, and a decree of partition was entered accordingly. The propriety of that decree is the question presented by this appeal.

It appears that James Mitchell, by deed bearing date January 19, 1867, conveyed and quitclaimed the land in question “in trust for Bridget Mullarky, Margaret O’Melia, (one of tile-defendants,) James Mullarky, John P. Mullarky and Ellen Mullarky, heirs-at-law of Mark Mullarky, deceased, and th& title to said lands to vest absolutely in fee simple in said above-specified heirs at and after the death of Edward Mullarky, the-uncle of said heirs, but so to vest upon, and only upon, the-express condition that said Edward Mullarky shall, during the whole remaining term of his natural life, have a home upon, said lands, and a good and sufficient support therefrom, and! also the control and management thereof, it being the express-understanding and condition hereof that the title and interest of said lands shall only vest in said above specified heirs of Mark Mullarky upon the death of the said Edward Mullarky, in case he is provided with a home upon and in support from said lands during his life.” On the 20th of November, 1867, the above mentioned James Mullarky, by his deed of that date,, conveyed all his title and interest in the land to appellee. On the 28th of January of the following year, John P. Mullarky, another of Mark Mullarky’s heirs, conveyed to appellee all his-interest in said land, making altogether two-fifths. The interests of the appellants, as heretofore stated, is not controverted, so that the only question to be determined is, whether the above-mentioned conveyances are sufficient to establish appellee’s, claim of title.

It is first objected, that “there is no evidence in the record' from whom or from what source James Mitchell derived his-title to the land.” There is nothing in this objection. The-making of such proof, under the circumstances, was not required. All the parties claim through a common source,— namely, James Mitchell; and it -is. admitted in the answer that at the time of his conveyance he was the owner in fee of the premises.

It is also contended, that appellee took nothing by the deed from James Mullarky to himself, for the reason that he died, some six years before Edward Mullarky, the tenant for life-,. •and consequently, as is claimed, before any estate vested in him. This objection is founded upon a misapprehension of the true character of Mitchell’s conveyance. It assumes that ■the heirs of Mark Mullarky mentioned in Mitchell’s deed, took •merely a contingent trust estate, whereas the supposed trust is clearly an executed use, under the statute. By virtue of •that deed, Edward Mullarky took a legal estate for his own life, with remainder in fee to the heirs of Mark Mullarky, as tenants in common. Of course, their estates were also legal ■vested estates. The deed imposed no duties upon Anthony Mullarky, either with respect to the beneficiaries or the estate •conveyed, hence he took under it what is known as a dry trust, merely,—or, in other words, he acquired but a momentary •seizin to serve the use which the statute executed, by transferring the legal estates to the beneficiaries named. Such being the legal effect of the deed, it follows that at the time of James Mullarky’s conveyance to appellee, the remainder in fee of ■one-fifth of the land was in him, and consequently passed by This deed to appellee.

It is further claimed that John P. Mullarky was a minor at the time of his conveyance to appellee, and that as soon as he attained his majority he revoked it. We do not think the ■proofs justify this claim.

A number of other objections are raised in appellants’ brief, but they are so manifestly without merit that we decline to •’discuss them. '

The decree will be affirmed.

Decree affirmed.


author: Mr. Justice Magruder

text:
    The City of Chicago v. James Stinson.

      Filed at Ottawa May 9, 1888.

    1. Dedication—of the proof to establish a dedication—elements to be' considered. Before title can be divestecl by dedication, the proof must be very satisfactory, either of an actual intention to dedicate, or of such acts or declarations as will equitably estop the owner from denying such intention.
    2. The two prominent elements to be considered in determining whether there has been a common law dedication or not, are the intention of the-owner to dedicate, and the acceptance by the public of the intended dedication. The land owner must do'Some act, or suffer some act to be done,, from which it can be fairly inferred he intended a dedication to the public..
    3. Same—use by the public or by individuals, as showing there was a-dedication. Long use of land for a street, with acquiescence in such use by the owner, is sometimes regarded as in and of itself evidence of a dedication. But in cases of implied or presumed acquiescence or consent on the part of the owner, very much depends upon the location of the road or street, the amount of travel, the nature of the use of the public, the knowledge of the owner, and like circumstances. Acquiescence with knowledge of the use by the public, without objection, is not conclusive evidence of a. dedication, for it may be rebutted.
    4. Where land has been uninclosed for more than twenty years, as well as that lying around it, the mere fact that parties may have traveled over it in passing back and forth between a street and an avenue, does not, of' itself, indicate an intention to dedicate the land so used.
    5. Ditching across an uninclosed lot, at an early period, by private parties, for the purpose of draining their own land, and throwing up the earth to the center of a traveled way, without the knowledge or consent of the owner, is not sufficient to show a dedication of a street across^ the lot by the owner.
    6. Nor will the fact that private parties laid planks over mud-holes over the lot on the line of the travel, without the knowledge or consent of the owner or his agent, nor that a sewer was laid along the traveled way, without the knowledge or consent of the owner.
    Appeal from the Superior Court of Cook county; the Hon-Joseph E. Gaby, Judge, presiding.

      Mr. Clarence A. Knight, and Mr. George Barry, for the appellant:
    If the owner of the soil throws open a passage, and neither marks by any visible distinction that he means to preserve all his rights over it, nor excludes persons from passing through it by positive prohibition, he shall be presumed to have dedicated it to the public. Rex v. Lloyd, 1 Campb. 262; Cincinnati v. White, 6 Pet. 440; Marcy v. Taylor, 19 Ill. 636; Wragg v. Penn Township, 94 id. 24.
    If land is used by the public as a street, with the knowledge and acquiescence of the owner, a dedication will be presumed. Cincinnati v. White, 6 Pet. 439; Warren v. Jacksonville, 15 Ill. 240; Dimon v. People, 17 id. 422; Alvord v. Ashley, id. 369; Rees v. Chicago, 38 id. 338; Chicago v. Wright, 69 id. 328; Jarvis v. Dean, 3 Bingh. 447; Regina v. Petre, 4 E. & B. 737; Follansbee v. Chicago, 62 Ill. 288.
    When the intention to dedicate is established, the length of the public use is not important. Marcy v. Taylor, 19 Ill. 636; Rees v. Chicago, 38 id. 337.
    It is not important whether the owners, at the time of the dedication, were non-residents, and had personal knowledge of what was done by- their agents. Barday v. Howell, 6 Pet. 512; Dimon v. People, 17 Ill. 416.
    The extent of the dedication can not be limited by evidence that the ground was not fit for immediate use as a street. Barday v. Howell, 6 Pet. 498; Rowan v. Portland, 8 B. Mon. 250; Lake View v. LeBahn, 120 Ill. 92.
    Great importance is attached to the fact that investments and improvements have been made in reference to the dedication. Godfrey v. City of Alton, 12 Ill. 36; Rees v. Chicago, 38 id. 337; Chicago v. Wright, 69 id. 328.
    As between the owner and the city, in a ease like this, dedication is complete without acceptance other than public use. People v. Commissioners of Highways, 52 Ill. 501; Marcy v. Taylor, 19 id. 637; Lake View v. LeBahn, 120 id. 92.

      Mr. Thomas Dent, for the appellee:
    Mere acquiescence, even for twenty years, would not have prevented a recovery, under the evidence in this record rebutting a presumption of dedication. Kyle v. Town of Logan, 87 Ill. 66.
    The view taken by the trial court, of the facts proved in this case, is fully sustained by various decisions by this court, .as, for example, in the following cases: Kyle v. Town of Logan, 87 Ill. 64; Kelly v. City of Chicago, 48 id. 389.
    The cases cited in appellant’s brief are not in point.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is an action of ejectment begun on March 11, 1886, by the appellee against the appellant in the Superior Court of Cook county for the recovery of a strip of land forming a p>art of lot 31 in Stinson’s .subdivision of out-lots 1, 2 and 10 in canal trustees’ subdivision section 31 in the city of Chicago. •On October 22, 1887, the cause was by agreement submitted to the court for trial without a jury. The finding and judgment were in favor of the plaintiff below, the appellee here.

The city defended on the ground that the property sought to be recovered had been appropriated and was in use as part of a street. It is conceded, that the record title is good in appellee, but it is claimed by the city that there has been a •common law dedication of the piece of land in question as a part of Jones or Paulina street.

Paulina street in this portion of the city runs from the south northward towards Archer road or avenue and terminates on the north at the south line of lot 31 if the strip in controversy is not a part of it, but extends up to and connects with Archer avenue if the strip is a part it. In other words, if the strip belongs to appellee, it lies between Archer avenue and the northern end of Paulina street and is in the way of the extension of Paulina street to Archer avenue. The following -diagram shows the location of the lot and streets:

Before title can he divested hy dedication, the proof must be very satisfactory either of an actual intention to dedicate, or of such acts or declarations as should equitably estop the •owner from denying such intention. (Kelly v. City of Chicago, 48 Ill. 388.) Long use and long acquiescence in such use by the owner of land are sometimes regarded as, in and of themselves, evidence of a dedication. In cases, however, of implied or presumed acquiescence or consent on the part of the owner, very much depends upon the location of the road or street, the amount of travel, the nature of the use of the public, the rights asserted by the public, the knowledge of the owner, and like circumstances. (Onstott v. Mvnray, 22 Iowa, 457.) We have said: “Acquiescence, with knowledge of the use by the public, without objection, is not * * * conclusive evidence of a dedication, for it may be rebutted.” Kyle v. Town of Logan, 87 Ill. 64.

The two lU'ominent elements to be considered, in determining whether there has been a common law dedication or not, are the intention of the owner to dedicate, and the acceptance by the public of the intended dedication. “The owner of the land must do some act, or suffer some act to be done, from which it can be fairly inferred he intended a dedication to the public.” Kyle v. Town of Logan, supra.

Applying the principles thus announced to the facts of the-present case we think that the proof fails to establish a common law dedication.

During more than twenty years before the beginning Of this: suit appellee was the owner of lot 31. It has been unenclosed and the land lying around it has been unenclosed. Under-such circumstances the mere fact that parties may have traveled over it, in passing back and forth between Paulina street- and Archer avenue, does not of itself indicate an intention to-dedicate.

Appellee swears, that he has lived in Chicago since 1849, and that no street has ever been cut through lot 31 with his consent or approbation, and that he never learned of any claim, on the part of the city, to any portion of the lot for the purposes of a street until a short time before the beginning of this suit. His agent swears, that he paid all the taxes for the appellee upon lot 31 from 1862 to 1875, and from 1880 to 1887, and took up and cancelled certificates of sale, issued by reason of the sale of the lot for taxes during the years from 1875 to 1879. The portions of the lot, lying on the east and west sides of the strip in controversy," were not, during any of these years, separately assessed for taxation.

Without attempting an analysis of all the testimony, it is sufficient to refer to three main facts or circumstances, which are relied upon to prove such user and acquiescence as are claimed to indicate an intention to dedicate.

First, it appears that this part of lot 31 was ditched and graded in 1869. This ditching and grading, however, was not done by the city authorities or any other representatives of the public. One Lombard owned land south of lot 31, and, in order to accommodate his own property, he extended some ditching and grading, which he did along the line of Jones or Paulina street, northward across lot 31 to Archer avenue, thereby draining the water from the south into the sewer on Archer avenue. But this “he did without consulting appellee. Stinson swears that he never knew that the strip in controversy was graded or ditched on either side, or that dirt from such ditches was thrown up in the center, as testified to by one or two of appellant’s witnesses.

Second, it is claimed, that sidewalks were laid along the east and west sides of the strip in the year 1872 or about that time. For years previous to 1872, parties, who were in the habit of passing from Paulina street across the lot to Archer avenue, would put down planks to walk on over the mud holes. It does not appear whether the sidewalks in question were laid by such private parties or by the city authorities. Certain it is, that no notice was ever given appellee of the laying of such sidewalks, nor was his adjoining property assessed therefor. The testimony shows, that neither he nor his agent, Johnston, knew of the sidewalks claimed to have been built there.

Third, it appears that a sewer, running south and connecting the main sewer on Archer avenue with another sewer in Paulina street, was laid across lot 31. The records of the sewerage office seem to indicate that this sewer was built in 1878, but no witness speaks of having seen it earlier than 1882. Appellee swears, that he never knew that a sewer had been laid across his lot.

We think the evidence clearly shows, that appellee never had any intention of dedicating this piece of land to the public, nor is he proven to have had any such knowledge of the acts claimed to be evidences of user by the public as would amount to acquiescence on his part. The circumstances, relied upon in this case to estop the appellee from denying an intention to dedicate^ are not so strong and forceful as those which were held not to establish such intention in City of Chicago v. Johnson, 98 Ill. 618.

It is not pretended, that appellee ever conveyed this property to the city, or ever made any plat or subdivision with a street running through lot 31, or that the city ever instituted any proceedings to condemn, or ever acquired any rights by adverse possession for a statutory period of limitation. Hence, appellee ought not to be deprived of his land without compensation, unless the proof of a voluntary dedication of it to the public is clear and convincing. Such proof is wanting.

The judgment of the Superior Court of Cook county is affirmed.

Judgment affirmed.


text:
    Edward S. Richards et al. v. The Lake Shore and Michigan Southern Railway Company.

      Filed at Ottawa May 9, 1888.

    1. Jurisdiction—by consent of parties—effect of waiver of question of jurisdiction. It is a fundamental principle that parties to a suit can not confer jurisdiction with respect to the subject matter of the suit by stipulation or consent, for the reason that is fixed by the law, and is therefore beyond the control of the parties.
    2. If a bill fails to show a case within the jurisdiction of a court of equity, the error is fatal in every stage of the case, and can never be cured by any waiver or course of proceeding by the parties. This is so where there is a total want of jurisdiction.
    3. There is a class of cases, however, involving matters of contract, and the like, which, while they do not come within the ordinary jurisdiction of a court of equity, yet, inasmuch as they only w'ant some equitable element to bring them within such jurisdiction, the defendant, by answering to the merits, will not be permitted afterwards to raise the question of jurisdiction for the first time on the hearing, much less on appeal.

      4z. While courts of equity may assume jurisdiction in certain classes of cases not clearly within the domain of equitable cognizance, where: no objection is interposed, yet they are not bound to do so, even if the parties are desirous of proceeding upon the merits.
    5. Same—effect of waiver which is inconsistent with the party’s pleadings. On bill in chancery to recover unliquidated damages for the breach of a contract recoverable at law, the defendant filed a demurrer to the bill for want of equity, and with it a stipulation waiving all objection to the-jurisdiction, on the ground of there being a remedy at law: Held, that the stipulation being repugnant to the demurrer, which called upon the court to decide the law upon the facts stated, there was no error in disregarding the stipulation and sustaining the demurrer, it being evident there was no intention to waive the demurrer.
    6. A defendant may abandon or waive one or all his defenses to a good bill or declaration, by interposing an insufficient answer or plea, or none at all, or by disclaimer. But he can not do this by insisting upon the law in his favor, which shows his defense.
    7. Fobmeb adjudication—dismissal in chancery, as a bar to suit at law. The dismissal of a bill for want of equity, on demurrer, when the bill shows that the remedy is at law, is equivalent to a dismissal for want of jurisdiction, and the decree will present no bar to an action at law to> enforce the same right sought to be enforced by the bill. There can be no equity in a bill when there is a want of jurisdiction.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Coot county; the Hon. Gwynn Garnett, Judge, presiding.
    Messrs. Gardner, McFadon & Gardner, for the appellants.
    Mr. Pliny B. Smith, for the appellee.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The complainants, Richards, Maynard & Co., filed a bill in the Superior Court of Cook county, against the Lake Shore and Michigan Southern Railway Company, the object of which was to recover unliquidated damages alleged to have been sustained by them by reason of the company’s failure to perform a certain contract entered into by it with Edward S. Richards, and by him assigned to the complainants. The Superior Court sustained a demurrer to the bill, and entered an order dismissing the same for want of equity, which, on appeal, was affirmed by the Appellate Court for the First District, whence the case is brought here for review.

As the case made by the bill is not, in our opinion, one of equitable cognizance, it will not, for the purposes of the view we have taken of it, be necessary to set forth the sjiecifie provisions of the contract which are claimed to have been violated by the company, or the allegations in the bill respecting them.

But for a stipulation which was filed by the company’s attorney along with the demurrer, there would be no reasonable ground to doubt the correctness of the rulings of the courts below. The stipulation is as follows: “The defendant waives the objection to the jurisdiction of a court of equity in said cause, which might arise on the possible ground of there being a remedy at law, hereby intending not to waive any other defense, objection or exception whatever.”

Assuming the facts disclosed by the bill are sufficient to maintain an action at law, as we are inclined to think they are, the case is certainly somewhat anomalous. First, we find the complainants have not shown, by their bill, a right of recovery in equity; second, that they have shown a right to recover at least something at law; third, the defendant insists, by its demurrer, “that the complainants have not, in and by their said bill, made or stated such a case as entitles them, in a court of equity, to any discovery or relief as against the defendant,” etc.; fourth, the defendant waives the objection to the jurisdiction of the court, so far as it may be affected by the fact that there is a remedy at law.

The difficulty in the case is in determining what effect is to be given to this stipulation. The questions arise, what did the defendant intend by it ? Was it a waiver of the demurrer, in whole or in part? Was the court bound by it in passing upon the sufficiency of the bill ? Did it have the effect of injecting, as it were, an element into the bill, but for which the court would have been bound to say there was no equitable jurisdiction ? It is a fundamental principle, that parties to a suit can not, by consent, confer jurisdiction, with respect to the subject matter of the suit, by stipulation or consent, for that is fixed by the law, and is consequently beyond the control of the parties. While rights may be waived and duties dispensed with, the law can not be thus disposed of. ' Thus, it is said in Story’s work on Equity Pleadings: “But whatever may be the object of the bill, the first and fundamental rule, which is always indispensable, to be observed, is, that it must state a case within the appropriate jurisdiction of a court of equity. If it fails in this respect, the error is fatal in every stage of the cause, and can never be cured by any waiver or course of proceeding by the parties, for consent can not confer a jurisdiction not vested by law. And although many errors and irregularities may be waived by the parties, or be cured by not being objected to, the court itself can not act except upon its own intrinsic authority in matters of jurisdiction.” Sec. 10.

The author is doubtless speaking, here, of jurisdiction in the strict sense in which it is understood in courts of law, and as applicable to a certain class of cases in equity, which, under no circumstances, are ever cognizable in a court of equity, such as would be a bill to recover damages for slander, or for an assault and battery. In these and like cases the decree would be a nullity, although the jurisdiction of the court passed unchallenged. But there is another class of cases, involving matters of contract and the like, which, while they do not come within the ordinary jurisdiction of a eourt of equity, yet, inasmuch as these matters only want some equitable element to bring the case within such jurisdiction, the defendant, by answering to the merits instead of demurring, will not be permitted to afterwards raise the question of jurisdiction for the first time on the hearing, much less on appeal. In both classes of cases there is a want of jurisdiction. In the first there is a total want of power to hear or determine the case. In the other the want of power is not absolute, but qualified.

If the defendant, by answer, submits himself and cause to the jurisdiction of the court, the court may act, and he will be bound. (1 Daniell’s Ch. Pr. 608-610, and notes.) Here, the case made by the bill was submitted, on demurrer, as an entirety, and the simple duty of the court was to declare the law upon the facts, unless we can say that the stipulation was a waiver of the demurrer. That, certainly, was not intended, nor do we think it had that effect. As the demurrer went to the whole bill, the question submitted was, whether, as matter of law, there was equity in the bill, considered as an entirety. By the stipulation no further fact was added to the bill, nor was any existing fact eliminated from it. It was a mere attempt on the part of the defendant to waive a provision of law directly bearing on the facts, upon which the court was asked to declare the law. There is no doubt but that a de- ' fendant may, either at law or in equity, waive or abandon one or all of his defenses, where the plaintiff’s declaration or bill shows a good cause of action against him. This may be done by interposing an insufficient answer or plea, or none at all, and sometimes by a disclaimer; yet he can not do this by . simply saying, I will not insist on,the principles of law in my favor, and yet, at the same time, insist that the court shall decide the case according to law.

The stipulation in question we think was clearly repugnant to the demurrer, and we assume the courts below disregarded it. In this we think there was no error. The facts shown by the bill do not bring the case within the ordinary jurisdiction of a court of equity, and hence the demurrer was properly sustained. Yet, as the controversy relates to matters of contract, over which courts of equity exercise a general jurisdiction when coupled with some equitable element that makes those courts the more appropriate forum for their consideration, we do not think that there was that absolute want of jurisdiction in the ease that would have rendered, under any and all circumstances, the whole proceeding void. On the contrary, we are of opinion that if the. Superior Court had, upon an answer' to the bill, seen proper to have assumed jurisdiction of the-cause, and had proceeded to a hearing upon the merits, it would then have been too late to raise the question of jurisdiction, and both parties would have been bound. But while courts of equity may assume jurisdiction in this class of cases, yet they are not bound to do so, notwithstanding the parties-are desirous of proceeding upon the merits, otherwise all suits-founded upon bills of exchange, promissory notes, and other contracts, might in this manner be transferred to these courts, and they would be powerless to protect themselves from such an innovation upon their ordinary jurisdiction. In this view,we think the court clearly had the right to disregard the stipulation, and pass upon the question of jurisdiction as it did.

Counsel insist that the bill, if dismissed at all, should have' been dismissed for want of jurisdiction, and not “for want of equity,” as it was. This objection is without force. The dismissing of the bill, on demurrer, for want of equity, practically amounts to the same thing as dismissing it for want of jurisdiction. (Winkler v. Winkler, 40 Ill. 179.) While a bill may disclose legal rights, enforcible in a court of law, yet if the facts stated do not bring the case within the ordinary jurisdiction of a court of equity, as was also the case here, there is-neither jurisdiction, nor equity in the bill. It may be stated-as universally true, that, as the expression is used and understood in equity law, there can never be equity in a bill where-there is a want of jurisdiction. The dismissal of the bill in this case would present no defense whatever to an action at-law on the contract. The only injury or prejudice resulting: from the order of dismissal, is the compelling of the complainants to bring their suit in the proper forum, where it should have been brought in the first instance.

The judgment will be affirmed.

Judgment afflrmed,

Mr. Chief Justice Sheldon, dissenting.


text:
    The City of Sterling v. Lucy A. Merrill.

      Filed at Ottawa May 9, 1888.

    1. Negligence—injury from defective sidewalk—notice—presumption. In an action against a city to recover for a personal injury received from a defective sidewalk, it is not essential that the evidence should show actual notice to the city authorities of the defective condition of the walk. If the defect in the walk has existed for such a length of time before the accident as that the city authorities might have discovered it by the use of reasonable diligence, then the city will be presumed to have had notice of it.
    2. Instructions—repeating. There is no error in refusing to give an instruction when the same idea or proposition is clearly given in others, both on behalf of the plaintiff and defendant, nor where one is given which contains all that is material or essential in the one refused.
    3. Same—must be based on evidence. Instructions must be based upon evidence. When based on a fact of which there is no evidence, or evidence tending to prove, it is properly refused.
    4. Same—should not be obscure or misleading. Instructions should not be obscure and misleading, but should be expressed in clear and precise language.
    5. New trial—newly discovered evidence. A verdict will not be set aside to admit newly discovered evidence which is merely cumulative, and not conclusive in its character.
    Appeal from the Appellate Court for the Second District;—■ heard in that court on appeal from the Circuit Court of White-side county; the Hon. William Brown, Judge, presiding.
    Mr. A. A. Wolfersperger, and Mr. J. E. McPherran, for the appellant:
    A city is not an insurer against accidents to persons upon its walks, nor liable for every trifling defect therein. City of Chicago v. Watson, 6 Bradw. 344.
    In order to charge a city with negligence, it must appear by the evidence, not only that the sidewalk was defective at ■the time of the injury, but also that such defect was actually known to the city, through some of its officers, or that the defect existed for .such a length of time prior to the injury that the city, hy the exercise of ordinary diligence, might have known of the defect. City of Chicago v. McCarthy, 75 Ill. 603.
    The plaintiff can not recover for damages arising from his subsequent negligence in properly caring for himself, and trying to be restored to the use of his limb. Jenks v. Wilbraham, 11 Gray, 143; Bardwell v. Jamaica, 15 Vt. 438; Lawrence v. Housatonic Co. 29 Conn. 390; Plummer v. Penobscot Association, 67 Me. 363; Railway Co. v. Eddy, 72 Ill. 138.
    The burden of proof was on appellee to show that the accident was not caused by the want of due care -on his part. City of Joliet v. Seward, 86 Ill. 406; City of Bloomington v. Chamberlain, 104 id. 269; Railway Co. v. Scates, 90 id. 588; Village of Kewanee v. Depew, 80 id. 119; Pennsylvania Co. v. Conlan, 101 id. 93; Abend v. Railroad Co. 111 id. 203.
    Messrs. W. & W. D. Barge, for the appellee:
    Appellee had a right to presume the walk was safe. Davenport v. Buchman, 57 N. Y. 568; Weed v. Balston Spa, 76 id. 329; City of Joliet v. Verley, 35 Ill. 58; City of Elgin v. Renwick, 86 id. 498; City of Macomb v. Smithers, 6 Bradw. 470; City of Chicago v. Hickox, 16 id. 142; Woods v. City of Boston, 121 Mass. 327.
    A very short time is sufficient to charge the city with notice ■of the defect in the walk. City of Chicago v. Fowler, 60 Ill. 322; City of Chicago v. Hoy, 75 id. 530; City of Freeport v. Isbell, 83 id. 440; Sheridan v. Hibbard, 19 Bradw. 421.
    A city is hable for damages sustained by its -failure to keep its sidewalk in a safe condition. City of Bloomington v. Bay, 42 Ill. 503; City of Chicago v. Fowler, 60 id. 322; City of Joliet v. Verley, 35 id. 58.
    Instruction “A” was properly refused, because embodied in the third, and because it assumes a fact. Olsen v. Upsahl, 69 Ill. 276; Dunham v. Goodwin, 54 id. 471.

      Instruction “C” was properly refused. It says the plaintiff' can not recover if the sidewalk became out of repair “without actual notice to the city.” Constructive notice is sufficient.. City of Chicago v. Dalle, 115 Ill. 386.
    The want of evidence on which to base an instruction justifies its refusal. Straus v. Minzesheimer, 78 Ill. 492.
    Instructions should not only be correct in their propositions-of law, but should be expressed in clear and concise language. Trish v. Newell, 62 Ill. 196; Railroad Co. v. Payne, 49 id. 504.
    They should not “be obscure and calculated to mislead the-jury.” Congregational Society v. Hubble, 62 Ill. 161.
    They should be precise and certain to a particular intent.. United States v. Bank, 15 Pet. 379.
    Newly discovered evidence, to be availing as a cause for a. new trial, must not be cumulative, and it must be decisive of' the case. City of Chicago v. Hyslop, 61 Ill. 86; Kendall v. Limberg, 69 id. 355.
   Mr. Justice Magruder

delivered the opinion of the Court :•

This is an action, brought by Lucy A. Merrill against the-city of Sterling in the circuit court of Whiteside county, to recover damages for a personal injury. About six o’clock in the-evening on November 14, 1884, the plaintiff was walking north, on the east side of B street in Sterling when she stepped into-a hole in the sidewalk and was thereby thrown to the ground, receiving the injury complained of. The trial resulted in a. judgment in her favor for $2000, which has been affirmed by the Appellate Court, and is now brought, by appeal, to this-court.

All the questions of fact are settled by the judgment of the-Appellate Court. No points are made in regard to the admission or exclusion of evidence. The main ground insisted upon for a reversal of the judgment is the refusal of the trial court to give three instructions asked by the defendant.

By the first of these refused instructions it was said, that, if the jury should believe from the evidence, “that the plaintiff might, in the exercise of ordinary care and caution, have avoided the opening in the sidewalk, and that her omission so to do was the direct cause of the injury complained of, then .she was guilty of such negligence as will prevent a recovery in this case.” Correctly expressed the idea of this instruction is simply that the plaintiff, in walking along the sidewalk of the •city as she had a lawful right to do, was required to exercise •ordinary care and caution. This idea was very clearly embodied in the third instruction given for the defendant and in ■several instructions which were given for the plaintiff. Its .repetition in a further instruction was, therefore, unnecessary.

The second of the refused instructions referred to is as follows : “If the jury believe from the evidence that the sidewalk in question, where the plaintiff claims to have received her injury, was repaired and placed in good condition by the ■city within a reasonable time prior to this alleged accident, and if the jury believe from the evidence that said walk after-wards became out of repair without actual notice to the city, then the plaintiff can not recover.”

This instruction is obscure and calculated to mislead. It is not essential to a recovery, in a case of this character, that the evidence should show actual notice to the city. (City of ■Chicago v. Dalle, 115 Ill. 386.) If the opening in the sidewalk had existed for such a length of time before the accident as that the city authorities might have discovered it by the use •of reasonable diligence, then the city will be presumed to have had notice of it. This principle was announced in the fourth instruction given for the plaintiff and in the second instruction given for the defendant. The latter told the jury, that the plaintiff could not recover unless it was “proven that the sidewalk in question was unsafe, and that the defendant had actual" notice of the defect * * * or that such defect was of such .long continuance that the defendant, by the use of ordinary care and prudence, ought to have discovered the defect,” etc. This was a correct statement of the law, and contained all that was material or essential in the second refused instruction.

Instructions must he based on evidence. There was no evidence that the defendant had at any time repaired the sidewalk at the point where plaintiff was injured. It is undisputed that there was a defect at that point, and the question to be determined was whether.such defect had existed a sufficient length of time to affect the city with notice of its existence. It is not clear what is meant by the expression, “within a reasonable time prior to this alleged accident.” The city was bound to exercise reasonable prudence and diligence-in the construction and maintenance of its sidewalks. But just what period of time, between the alleged repair of the sidewalk and the happening of the accident, should be regarded as reasonable, and for what purposes it should be regarded as reasonable, is not apparent under the circumstances of this case. Instructions should not be obscure and misleading, but should be expressed in clear and precise language. (Irish v. Newell, 62 Ill. 196; Congregational Society, etc. v. Hubble, id. 161.)

The third refused instruction was to the effect, that, if the jury should believe from the evidence, that the plaintiff, by the ordinary exercise of will on her part, could have used her arm for the ordinary purposes of life at or shortly after the injury complained of, and that she refused or neglected without cause so to do, then the disability or impairment of her arm since then, resulting from such neglect and refusal, was not an element of damage, for which recovery could be had, and that, under the law, a person injured should, in good faith and in the exercise of all reasonable means, strive not to augment but to cure or mitigate a physical disability incurred.

Whether or not this instruction laid down a correct proposition of law is a question which it is unnecessary to discuss. There was no error in refusing it for two reasons. In the first place, there was no evidence to support it. Appellant introducecl certain medical testimony to show, that refusal to use or exercise an arm that had been injured in the way, in which plaintiff’s arm was injured, tended to make it useless and stiff in the joints and wanting in flexibility, etc. But there was no proof to show that plaintiff purposely failed to use her arm or neglected to exercise it in a proper way so far as she was able to do so. In the second place, the substance of this instruction was embodied in the seventh instruction given for the defendant.

On the motion for new trial appellant read certain affidavits setting up the discovery of what was claimed to be new evidence. It is contended, that the court erred in not granting the motion for the reasons stated in the affidavits. The newly discovered evidence is merely cumulative and not conclusive in its character. A verdict will not be set aside to permit such evidence to be introduced. (Kendall v. Limberg, 69 Ill. 355.)

We are of the opinion, that the trial court committed no error either in refusing the instructions complained of or in overruling the motion for new trial.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.