text:
    Samuel Best et al. v. Lorenzo Y. Jenks et al.

      Filed at Mt.Vernon January 20, 1888.

    1. Partition by parol—as vesting title—limitation. A parol partition of one hundred and fifty acres of land was made between a brother and sister, which was acquiesced in by all the parties interested therein. The sister took possession of the part assigned to her, in 1845, but afterward sold twenty acres. Prom 1845, to her death, in 1880, (a period of thirty-five years,) she claimed to be the owner of the fifty-five acres, and occupied the premises in pursuance of the parol partition: Held, that she was the owner of the same at her death, and that her husband was entitled to dower in the same.
    2. D over—whether subject to sale and tramsfer before assignment. The right of dower is a mere intangible, inchoate, contingent expectancy, and until assigned it is no estate in the land, but is a right existing in action only, and it can not be aliened. It may be released in favor of the owner of the fee, but it can not be invested in another separately from the fee. Only the person entitled to dower under the law, can have it assigned.
    3. Same—sale on partition, by consent—who may give the consent. Pending a suit for the partition of land, the party entitled to dower and homestead, who was also an heir to one-half of the land, sold and conveyed to a third person all his interest in the premises, and the latter was made a party complainant. After a decree for partition, and the report that the dower and homestead could not be set off or partition made, the purchaser filed his written consent to the sale of the dower and homestead interest, and agreed to take the value thereof in money, and an order was made for a sale free of the dower: Held, that the order of sale was erroneous. The purchaser having no title to the dower, his written consent could not operate to give the purchaser at the master’s sale a title free from the dower. The party entitled to dower by law, alone could give such consent.
    4. Homestead—whether alienable before assignment—right of grantee to have the homestead set off to him. A husband or wife can not convey, by deed to a third person, his or her estate of homestead in premises the fee of which is in the heirs, before the homestead has been assigned or set off, so as to vest such third person, grantee in the deed, with the right to have the homestead set off and assigned to him. Such right or estate attaching in favor of a surviving husband or wife, in premises the fee of which is owned by the heirs, is not the subject matter of lease or conveyance before the homestead has been set off and assigned.
    5. A wife died seized of a tract of land occupied by her and her husband as a homestead, leaving no descendants, whereby the husband inherited one-half of the property, and the other half descended to her collateral heirs, subject to her husband’s dower. After filing a bill for the assignment of his dower and homestead, and for partition, the husband sold and conveyed all his right, title, interest and estate in the land to a third person, who was made a party complainant. The deed released all the grantor’s rights under the homestead laws: Held, that neither the husband nor his grantee had any right to have a homestead set off to him, as the homestead in one-half of the land became merged in the fee, and as it was released in the deed, it could not be asserted against the other heirs. Before assignment, the homestead can not be released or transferred in parcels. The estate of homestead is an entirety.
    6. Section 37 of the Dower act does not authorize the allotment of dower and homestead in a case where the homestead premises are owned by a third person, and not by the surviving husband or wife.
    Appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    This is a hill for partition and assignment of dower and homestead filed in the circuit court of St. Clair county on July 25, 1880, by the appellee Jenks, as complainant, against the appellants, as defendants. The bill alleges that said complainant, Jenks, was married to Susan Best in 1856 and lived with her as her husband until her death; that his said wife, Susan Best, died intestate and without children in March, 1880, leaving, as her only heirs-at-law, her husband, the complainant ; her half-sister Caroline Lemen, (formerly Caroline Hogan); her nephews, Samuel Best and Albert Best, and her niece, Ann Smith, wife of James Smith (formerly Ann Best), being the three children of her deceased brother of the whole blood, John Best; her niece, Lilly Hogan, and her nephews, John, Bussell, Edward and Bay Hogan, being all minors and the five children of her deceased brother of the half-blood, James Hogan; her nephews and nieces, James, Samuel, Cynthia, Larkin D., Mary and Bosetta Hogan, being the six children of her deceased brother of the half-blood, Larkin Hogan, and the last three being minors; that the said Susan Jenks was seized in fee, at the time of her death, of the fifty-five acres of land, sought to be partitioned, and had been the owner of the same before her marriage with complainant; that she was a householder, had a family and occupied and resided on the fifty-five acres as her homestead and had an estate of homestead therein; that complainant has resided and still resides thereon as his homestead and claims homestead therein; that complainant is entitled to one-half of the premises in fee simple as heir of his wife, and to dower and homestead in the other half, as her surviving husband; that Caroline Lemen is entitled to one-eiglith of the premises, the children of John Best to one-eighth thereof, the children of James Hogan to one-eighth thereof and the children of Larkin Hogan to one-eighth thereof, all their interests, however, subject to dower and homestead. The bill makes the heirs as above named, together with Harriet Hogan, widow of James Hogan, and Caroline Hogan, widow of Larkin Hogan, parties defendant, and prays for partition according to the interests as above set forth and for assignment of dower and homestead, etc. The defendants to the bill in the court below are the appellants here.
    On September 20, 1880, Isaac W. Lemen filed a petition-praying to be made complainant and setting up, that the complainant Jenks had, on August 31, 1880, deeded to petitioner all his (Jenks’) interest in the premises so far as he might, and that petitioner was solely interested therein.

      On June 27,1881, Caroline Lemen filed an amended answer and a further amendment thereto on October 8, 1882, therein admitting the heirship and marriage of Susan Jenks, as alleged in the bill, but denying that she was the owner of the fifty-five-acres at her death or before her marriage, denying also the interests of the defendants as alleged in the bill, or that Susan in her lifetime or Jenks after her death had a homestead in the premises, etc., and averring, that Samuel Best, who died in 1815, leaving a widow Ann Best, was the father of John Best and Susan Best (afterwards Susan Jenks); that Ann Best, the widow, married Patrick Hogan, by whom she had three children, James, Larkin, and Caroline Hogan above named; that the said Ann Hogan, mother of Susan Jenks died intestate on June 23, 1872, and was at the time of her death the owner in fee of the fifty-five acres; that, by her death, her children and grandchildren inherited the following interests in the premises, Susan Jenks and Caroline Lemen, each one-fifth,, and the children of John Best one-fifth, the children of James Hogan one fifth, the children of Larkin Hogan one-fifth; that Susan Jenks at the time of her death on March 2,1880, only-owned one-fifth of said premises, one-half of which descended to her sister and the children of her brothers subject to the-rights therein of her husband, etc.
    The answers of the other heirs are substantially the same-as that of Caroline Lemen. Caroline Lemen and Lilly Hogan filed a cross-bill praying for partition, etc., according to the-interests as set up in the answers. Beplications were filed to the answers to the original bill; the cross-bill was answered by Jenks and Isaac W. Lemen, and replication was filed to their answer.
    The circuit court made a decree granting relief in accordance with the prayer of the original bill and the petition, and dismissed the cross-bill. From this decree, which was entered at the September term, 1884, the defendants to the original bill prayed an appeal to the Supreme Court, which appeal was. allowed.

      The decree so entered at the September term, 1884, finds and decrees, among other things, as follows: “That Lorenzo Y. Jenks, at the time of his conveyance aforesaid, was entitled to a right of homestead to the value of $1000 in said fifty-five acres; that he conveyed all his right, title and interest in said fifty-five acres aforesaid to Isaac W. Lemen, and that by said conveyance, said Lemen then and there became seized of the one undivided one-half of said fifty-five acre tract, in fee simple; also to right of homestead of the value of $1000 in said fifty-five acre tract; * * * that said Lemen is entitled to and to have set off and allotted to him a homestead of the value of $1000 in said fifty-five acre tract; that the share of said Lemen’s portion of said fifty-five acres contribute one-half of the value of said homestead, and that the shares of the defendants contribute the other half of the value of said homestead; that Jenks be endowed of one undivided one-half of said fifty-five acres of which the defendants are seized in fee simple, as herein set forth; and the court appoints commissioners, directing that they first take the oath required, and then go on said fifty-five acre tract, and if the same is susceptible of division, set off and allot to Lemen a homestead, by metes and bounds, to the value of $1000; and next set off and allot to Jenks his dower in that portion of said land which defendants in the original bill are seized of respectively, as set forth by metes and bounds, according to quantity and quality of said premises, as they may deem best for all parties, after the dower and homestead have been set off and allotted, and make division of the remainder of said fifty-five acre tract, by metes and bounds, to each of the parties, according to their interests, respectively; and if they find the premises not susceptible of division without prejudice to the parties interested, and find dower and homestead can not be set off without prejudice to parties interested, then that they value such lands, and that they make report of their doings in the premises to the next term of court.”

      At the May term, 1886, the commissioners reported that dower and homestead could not be set off and partition could not be made without manifest prejudice, etc., which.report was approved.
    November, 1886, Lemen, the purchaser of said tract, filed his consent to the sale of his dower and homestead interest, and to take the value thereof in money, to be fixed by the court; consent approved, and court ordered said lands sold at public sale, not to sell for less than two-thirds of their appraised value, sale on premises, one-third to be paid in cash, sale to conform to statute, and pay over moneys, etc., according to respective interests of parties, and report same. Whereupon Caroline Lemen and Lilly Hogan prayed an appeal, which was allowed by the court. •
    Mr. Lewis W. Hammack, Mr. M. W. Wieb, and Mr. E. H. Lemen, for the appellants:
    The right of dower is a mere intangible, inchoate, contingent expectancy, and until assigned is no estate in the land, but is a right existing in action only, and it can not be aliened. Seymour v. Minturn, 17 Johns. 167; Jackson v. Aspill, 2 id. 412.
    A widow can not lease her dower before it is assigned, even to the owner in fee. Blain v. Harrison, 11 Ill. 386.
    The same rule should apply as to homesteads, as each is a personal right, and can not be enforced by any other person than the party entitled by the law. When Jenks conveyed to Lemen, his right to dower and homestead was merged in the fee, and neither Jenks nor Lemen is entitled to have either dower or homestead assigned in the lands.
    Concerning the possession, the rule of law is, that “where two .or more occupy land, claiming title, the possession follows the title in law.” Tyler on Ejectment, 904, 905.
    The court erred in allowing Jenks, husband of Susan and heir-at-law, to testify, on his own motion, in his own behalf. Rev. Stat. chap. 51, sec. 2.

      Messrs. Dill & Schaefeb, for the appellees:
    The court did not decree to Lemen dower in the land, but to Jenks. The dower was properly decreed to Jenks. This estate, like any other, passed to Lemen under Jenks’ warranty deed.
    The homestead was properly decreed to Lemen. Homestead is not a mere right of occupancy; on the contrary, it is an estate, and like other estates it is the subject of conveyance. Alienation does not constitute an abandonment. Plummer v. White, 101 Ill. 474; Rock v. Haas, 110 id. 528.
    Jenks is a competent witness. Pigg v. Carroll, 89 Ill. 207.
   Mr. Justice Magruder

delivered the opinion of the Court s

Appellees claim, that, when Susan Jenks died, she owned the whole of the tract of fifty-five acres; appellants claim that at that time she only owned one undivided one-fifth part of the tract.

March 9,1812, Nicholas Jarrot and his wife, then of St. Clair county in the territory of Illinois, conveyed a tract of four hundred acres of land to Ann Simpson and Samuel Best, “their heirs and assigns forever.” Samuel Best died intestate August 22, 1815; Ann Simpson died testate February 2, 1827. Ann Best, widow of Samuel Best, and who afterwards married Hogan, was the daughter of Arm Simpson. During the lifetime of Samuel Best, he and Ann Simpson conveyed one hundred acres off of the east side of the four hundred acres to one Kinney, so that, when Samuel Best died, only three hundred acres remained.

Appellants insist that the deed from Jarrot and wife vested the title to the four hundred acres, under the law as it then existed, in Ann Simpson and Samuel Best, as joint tenants and not as tenants in common; that, upon the death of Samuel Best in 1815, Ann Simpson became the owner of the three hundred acres, then remaining, by survivorship. By her will, dated October 31, 1826, Ann Simpson gave and bequeathed to her “son, William H. Simpson, the south half of the land whereon I now live, having heretofore deeded the same to him, * * * his heirs and assigns;” she therein gave to her “daughter, Ann Hogan, her heirs and assigns, the north half of the tract of land whereon I now live, with, all and singular, the appurtenances thereunto belonging.”

The position of the appellants is, that the land referred to in the will was the tract of three hundred acres, which Ann Simpson then owned as survivor of Samuel Best, and that, by her will, the south half thereof, containing one hundred and fifty acres, went to William H. Simpson, and the north half thereof, containing one hundred and fifty acres, went to Ann Hogan. ■ The fifty-five acres are situated in the north half of the north half of the three hundred acres. Ann Hogan died intestate on June 23, 1872. Appellants insist, that Ann Hogan owned all of the fifty-five acres, as devisee under her mother’s will, and that, by her death, her daughter Susan Jenks inherited one-fifth thereof and never owned any greater interest than one-fifth.

Appellees, on the other hand, assert, that, in the lifetime of Samuel Best, there was a division of the three hundred acres between him and Ann Simpson, he taking the north one hundred and fifty acres and she taking the south one hundred and fifty acres, and that this division was recognized, after his death, by Iris widow and children and by Ann Simpson. On March 6, 1815, five months before the death of Samuel Best, Arm Simpson made a deed to her son, William H., making over and assigning to him “all my right and title to one-half of said tract of land mentioned in the within deed, beginning at right angles westerly and southerly, being in quantity of one hundred and fifty acres of land, for his sole use and his heirs and assigns forever.”

It is claimed by appellees, that the division, so made between Samuel Best and Ann Simpson, and the conveyance by the latter to her son, broke the unity of title and joint tenancy, if .any such ever existed; that, the joint tenancy having become thereby terminated, Samuel Best died the owner of the north •one hundred and fifty acres, which was inherited one-half thereof by his daughter Susan Best, afterwards Susan Jenks, and one-half by his son, John Best, subject to their mother’s •dower; that a partition was made between Susan and John, by which the former took the north half of the north one hundred and fifty acres, containing seventy-five acres and including the fifty-five acres in eontrovery, and the latter took the south seventy-five acres of said north one hundred and fifty acres. Susan Jenks, the.day before she was married in 1856, •executed a deed to her half-brother of twenty acres on the west end of the north seventy-five acres, leaving the fifty-five acres now in controversy, which appellees claim that she owned when she died.

We think the evidence shows, that Susan Jenks regarded herself as the owner of the north seventy-five acres of the north one hundred and fifty acres, and John Best regarded himself as the owner of the south seventy-five acres thereof, and that the interest therein of them mother, Ann Hogan, was regarded by them and by her as a mere dower interest. We do not •deem it necessary to discuss the question whether or not Samuel Best and Ann Simpson were joint tenants, nor whether the alleged joint tenancy was changed into a tenancy in common by the acts of the parties.

John Best or Isaac Lemen and Susan Best made a partition •of the one hundred and fifty acres between them. Susan took the north seventy-five acres and John or his grantee, Lemen, took the south seventy-five acres. Ann Hogan consented to this partition and recognized it. She permitted her son John to claim the ownership of the south half and to occupy it as owner. She was anxious for her son-in-law, Isaac Lemen, to buy the south half from her son John, and in consideration of his doing so, agreed to take four acres for her dower.

As soon as the division was made, by which the north seventy-five acres were set off to Susan Best, a house was built thereon for her; she took possession and exercised acts of ownership over the seventy-five acres for eleven years, and over the east fifty-five acres for thirty-five years. In 1856 she-sold the west twenty acres to her brother James Hogan; this sale was recognized as valid by her mother, who went to live-with James on the twenty acres in 1857 and lived there with him until she died.

Susan Jenks lived upon and had possession of the fifty-five-acres in controversy from 1845 to her death in 1880, a period of thirty-five years, and during all this time she claimed to be the owner of it, and occupied it in pursuance of the oral partition above mentioned. It will not he claimed that anybody hut her mother and her brother, John, and her brother-in-law,, Lemen, had any interest whatever in the north one hundred and fifty acres, and they all assented to the division, which assigned to her the north seventy-five acres thereof. We are, therefore, of the opinion that Susan Jenks was the owner of the fifty-five acres at the time of her death in 1880.

The court decreed, in the decree entered at the September term, 1884, that Jenks was entitled to dower in the undivided one-half of the fifty-five acres owned by appellants. The-decree in this regard was correct. Jenks could not convey his dower interest to the appellee, Isaac W. Lemen, so as to entitle the latter to an assignment of dower. The right of dower is a mere intangible, inchoate, contingent expectancy, and until it is assigned, it is no estate in the land, hut it is a right resting in action only, and it can not be aliened. It may be released so as to bar the right of asserting it against the owner-in fee, hut it can not be invested in another separately from the fee. Only the person, entitled to dower under the law, can have it assigned. (Blain v. Harrison, 11 Ill. 384; Hoots v. Graham, 23 id. 81.) It follows, that the decree, entered in November, 1886, after the commissioners had reported that dower and homestead could not be set off nor partition made without manifest injury, etc., was erroneous in directing the premises to be sold free of the dower of Jenks. The decree of sale recognizes the validity of a written consent filed in the cause by Lemen on November 23, 1886, which is as follows: “And now comes Isaac W. Lemen, purchaser and owner of all the title and interest of Lorenzo Y. Jenks in all the real estate in controversy in this suit, and hereby in writing, under his hand and seal, consents to the sale of his homestead and dower interests in said premises with the rest of said real estate, and consents to take the value thereof in money, as shall be ascertained and found by the court,” and directs the value of the dower interest of Jenks, computed according to the life tables, to be paid out of the proceeds of sale to Lemen. Inasmuch as the deed from Jenks to Lemen did not pass the dower interest of Jenks in the undivided one-half of the land, owned by the collateral heirs of Mrs. Jenks, the written consent of Lemen could not operate to give the purchaser at the master’s sale a title that should be free from dower. The written consent of Jenks was necessary to enable the purchaser to get a title that should not be subject to dower.

The next question presented by the record has reference to the correctness of that portion of the decree, which finds, that, by virtue of the deed from Jenks to Lemen, the latter became entitled to the right of homestead in the fifty-five acres and to have set off and allotted to him a homestead of the value of $1000 in the fifty-five acre tract, and which further finds that Lemen’s share of the fifty-five acres, as deeded to him in fee by Jenks, should contribute one-half of the value of said homestead, and that the shares of the defendants should contribute the other half of the value thereof, and that, if the tract should be susceptible of division, the commissioners appointed should set off and allot to Lemen a homestead by metes and bounds to the value of $1000.

The original bill in this ease for partition of the fifty-five acres and for dower and homestead therein was filed by Jenks on July 25,1880. More than a month thereafter and during the pendency of the proceeding, to-wit: on August 31, 1880, Jenks made a deed to Lemen, in which the interest conveyed is described as follows: “The following described real estate, to-wit: all my interest, claim and demand in—to the following premises: Lot No. 2 on the plat of survey No. 583 claim 1837, said lot containing fifty-five acres, said interest being an undivided half of said premises acquired under the laws of descent of this State from Susan Jenks, deceased, and dower in the other half of said premises as surviving husband of said Susan Jenks, * *' * hereby releasing and waiving all rights under and by virtue of the homestead exemption laws of this State.” The certificate of acknowledgment also certified to the release and waiver of the right of homestead.

After Lemen filed his petition and became a party complainant to the proceeding, was he entitled, as against appellants, to have a homestead set off to him, or, in the event of sale, to have the value of a homestead paid to him out of the proceeds of sale ? Did a right of homestead of the value of $500 in the undivided half of the premises owned by appellants pass to him by the deed from Jenks ?

Upon the death of his wife Jenks was the owner in fee of one-half of the land, in which, as survivor of his wife, he is claimed to have had an estate of homestead. His wife’s sister and her nephews and nieces were the owners in fee of the other half of the land, and it is claimed that their interest was subject to his estate of homestead therein to the extent of the value of $500. We do not think that so much of his right or estate of homestead as is claimed to have attached to the half of the land, so owned by his wife’s sister and nephews and nieces, passed to Lemen by the deed of August 31, 1880. At the time this deed was made dower and homestead had not yet been assigned or set off.

In White v. Plummer, 96 Ill. 394, it was held that a surviving husband or wife could lease the homestead for any number of years not beyond his or her natural life, and could convey the estate of homestead by deed, and that such leasing or conveyance would not constitute an abandonment of the homestead. It expressly appeared, however, in that case, that, on petition for dower and homestead, the premises had been set apart to the widow as her homestead. (Browning et al. v. Harris et al. 99 Ill. 456.) The case of White v. Plummer did not present the question which arises upon the record in the case at bar, namely, whether a surviving husband or wife can, by deed, convey to a third person his or her estate of homestead in premises, the fee of which is in the heirs, before the homestead has been assigned or set off, so as to vest such third person, grantee in the deed, with the right to have the homestead set off and assigned to him, just as it might have been set off and assigned to the surviving husband or wife.

As has already been stated, dower is not the subject matter of sale and transfer until it has been allotted; it may be released to the owner of the fee, but no other disposition can be made of it, until it has been set apart. (Hoots v. Graham, supra.) But after dower has been assigned, it becomes an estate, which can be entered upon, and which may be conveyed by deed, and is liable to be sold on execution for debts. (Walsh v. Reis, 50 Ill. 477.) We think the same principle should apply to the right or estate of homestead. Such right or estate attaching in favor of a surviving husband or wife in premises, the fee of which is owned by the heirs, should not be the subject matter of lease or transfer, before the homestead has been set off and assigned.

Any other construction would lead to practical difficulties in the administration of the Homestead and Dower and Partition acts. Where a husband or wife dies intestate owning the fee of the homestead premises, the surviving wife or husband has dower as well as the right of homestead or occupancy. The two estates of dower and homestead can not he well adjusted, when an attempt is made to assign or set them off, if each is owned by a different person. Bach may be owned by a different person, if the estate of homestead can be transferred before the homestead is set off, because the inchoate right of dower can not be transferred and must remain in the surviving husband or wife;

Section 37 of the Dower act provides that “the surviving husband or wife shall have the homestead or dwelling house, if he or she desires, and such allotment shall not affect his or her estate of homestead therein, but if the dower is allotted out of other lands, the acceptance of such allotment shall be a waiver and release of the estate of homestead of the person entitled to dower, and his or her children, unless it is otherwise ordered by the court.” Walker v. Doane, 108 Ill. 236.

It is apparent from the language of this section, that our statute favors the allotment of homestead and dower together in one body of land. As an inducement to the surviving husband or wife to take the homestead, it is provided, that the acceptance of an allotment of dower out of other lands, that are separate and disconnected from the homestead or dwelling house, shall operate as a waiver or release of the estate of homestead, unless it is otherwise ordered by the court. If dower is allotted out of other lands and the homestead is worth more than §1000, a sale of the homestead property may be necessary in order to separate the value of the homestead estate. Such a sale, involving as it might a sacrifice of the interests of the heirs, would be avoided, in many instances, by 0the assignment of homestead and dower together in one body.

The homestead right is given by the statute and does not exist independently of the statute. Manifestly, section 37 does not contemplate or provide for the allotment of dower and homestead in a ease where the homestead is owned by a third person and not by the surviving husband or wife. The right to have the homestead or dwelling house when dower comes to be assigned is conferred upon the surviving husband or wife and not upon ány purchaser or grantee of the estate of homestead. The transfer of such estate to an outside party abolishes the right of choice in regard to the homestead, as conferred by section 37.

The provision of the law, that the acceptance of an allotment of dower out of other lands may be a waiver and release of the homestead estate, necessarily proceeds upon the supposition that the owner of the right of dower is also the owner of the right of homestead. It would certainly be unjust, that the act of a party entitled to dower should have the effect of destroying the interest of a party entitled to the estate of homestead. Such, however, might be the result, if the two estates are owned by different persons prior to the allotment and assignment provided for in the statute. Indeed, the estate of homestead is spoken of in section 37 as “the estate of homestead of the person entitled to dower,” excluding the idea that such estate could belong to a person not entitled to dower.

Thompson, in his work on Homesteads and Exemptions, says, in sec. 452: “Whatever views are entertained as to the interest in land created by a statute of homestead—whether it rises to the dignity of an estate, or sinks to the level of a mere negative immunity from dispossession—all courts agree that it is not such an interest in lands as is alienable separately from the fee. In this respect it sustains a strict analogy to the right of dower. Either may be released to the alienee of the fee so as to merge therein, but neither can be aliened separately,” (referring to McDonald v. Crandall, 43 Ill. 231; Hewitt v. Templeton, 48 id. 367; Chamberlin v. Lyell, 3 Mich. 458; Barker v. Rollins, 30 Iowa, 412; Bowyer's Appeal, 21 Pa. St. 210.) Although the principle announced in the quotation here made has reference more particularly to cases where the estate of homestead and the fee of the homestead premises are owned by the same person, yet we see no objection to applying the doctrine to the estate of homesteqd owned by the surviving husband or wife, as it exists before the assignment of the homestead.

We are, therefore, of the opinion that the right of a surviving husband or wife to sell and convey the estate of homestead to a third person, or to lease the homestead for a period of years instead of occupying it in person, should be limited to cases where the homestead has been set off and assigned. In Farnan v. Borders, 119 Ill. 228, the homestead had not been set off or assigned when the widow left it.

It follows from the views already expressed that neither Jenks nor Lemen had' any homestead estate in the premises in question when the decrees herein referred to were rendered. By inheritance from his deceased wife Jenks was the owner in fee of one-half of the tract of fifty-five acres. By the deed to Lemen the latter became the owner in fee of the one-half so inherited by Jenks. Inasmuch as the deed to Lemen contained such recitals and was acknowledged in such way as to waive and release .the homestead estate, the fee of one-half the land passed to Lemen free from any right of homestead in Jenks. The estate of homestead in one-half of the land became merged in the fee when the title was so transferred to Lemen. If any homestead estate existed in the other half of the land which was inherited by the heirs of Mrs. Jenks, it did not pass to Lemen, if the foregoing views are correct, because the homestead had not yet been assigned or set off. But no right of homestead remained in Jenks after his deed to Lemen. In that deed Jenks waived and released all rights under the Homestead Exemption law of the State. He could not release one-half of his homestead estate and retain the other half. The estate of homestead is an entirety. It was not the intention of the statute, that such estate should be parceled out in pieces before the setting off or assignment of the homestead. A surviving husband or wife can not, by deed, release or waive one-half of the homestead estate before any homestead has been set off, and can not, under a claim that the other half of the estate has been retained, afterwards demand that commissioners set off to him or her a homestead of the value of $500.

The decrees of the circuit court are affirmed in so far as they find that appellee denies is entitled to dower in the one-half of the tract of fifty-five acres owned by appellants, and in so far as they find that dents became the owner of the other half of the tract by inheritance from his wife and that Lemen became the owner thereof by deed from dents. Inasmuch, however, as the decrees are erroneous in the other respects herein indicated, they are reversed and remanded with direetions to the circuit court to modify the same in accordance with the views here expressed.

Decrees reversed in part and in part affirmed.


source: Caselaw Access Project

author: Mr. Justice Mulkey

license: Public Domain

text:
    William A. Christy v. Richard W. Stafford.

      Filed at Ottawa January 19, 1888.

    1. Pleading—of the declaration—in an action by vendor against purchaser for refusing to accept and pay for goods sold. A declaration by a vendor of goods sold, against the party agreeing to take the same between the date of the contract and another date given, set out the terms of the contract in the usual form, and averred as a breach, that “although the plaintiff, at and within the time specified, as aforesaid, for the delivery of said goods, to-wit, between, etc., was ready and willing, and offered, to deliver the said goods to the defendants, and then and there requested them to accept the same and pay for them as aforesaid, yet the defendants would not, nor would then, nor at any time before or afterward, accept the said goods, or any part thereof, from the plaintiff, or pay him for the same, as aforesaid, but refused to do so,” etc.: Held, that the facts alleged in the declaration showed a good cause of action.
    2. Matter of record—as to opinion of Appellate Com-t—reversing upon unsound reasoning. On appeal from the Appellate Court, the opinion of that court is no part of the record this court is called on to review; and this court can not reverse its judgment merely because some of the reasons assigned for its rendition might be thought to be unsormd. Error in the judgment itself must be made to appear from the record, to justify a reversal.
    3. Practice—mode of preserving questions of law on a irial by the court without a jury. A party trying a cause before a court, without a jury, should submit formal propositions of law to be held by the court, and its rulings upon them, if excepted to and incorporated in the bill of exceptions, will thereby be made a matter of record, upon which the Appellate Court, as well as this court, must pass judgment.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    Mr. F. K. Granger, and Messrs. Cook & Upton, for the appellant :
    Appellee was required to tender or offer the pickles to appellant on or before January 1, 1885, in order to recover, even though appellant failed^to designate a place of delivery.
    Appellant was not bound to notify the appellee where to deliver the pickles before the contract, by its terms, expired. Posey v. Scales, 55 Ind. 282; West v. Emmons, 5 Johns. 179.
    Appellee can not be heard to say that there was no necessity on his part to make a tender or offer to deliver because appellant failed to designate the place of delivery, for such is not the case made in his declaration. It alleges an offer to perform, and this should have been proved. Lassen v. Mitchell, 41 Ill. 101; Hapgood v. Shaw, 105 Mass. 296; Dana v. King, 2 Pick. 155; Cleveland v. Stewett, 7 Pa. 204; Sousby v. Burns, 10 Bush, 87; Sanborn v. Benedict, 78 Ill. 309; Story on Sales, sec. 314.
    Mr. J. Y. LeMoyne, for the appellee:
    The disputed questions of fact are settled by the Appellate Court. That court found that the plaintiff was able and ready to deliver the pickles.
    When delivery is to take place upon the doing of certain acts by the purchaser, as, to name the place of delivery, the vendor is not in default for non-delivery until notice from the purchaser. Cottingham v. Owens, 71 Ill. 397; Benjamin on Sales, sec. 679.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The appellee, Bichard W. Stafford, brought to the March term, 1885, of the Superior Court of Cook county, an action of assumpsit against Christy, Walker & Co., on the following contract:

“W. McHenry, III., Nov. 15, 1883.

“Bought this day of B. W. Stafford, 1500 bbls. medium (1200) pickles, @ $4.50; 1000 bbls. small (2400) pickles, @ $5.25; 500 bbls. gherkins (3500) pickles, @ $5.50. Less 2j-per cent; terms, cash on delivery, goods to be taken between this date and January 1, 1885.

“Goods to be delivered at store or depot in Chicago, free of charge, but when shipped in carload-lots, drayage to be charged.

“Above sale to be bona fide in case of a fair average crop, but' in case the crop is short, goods to be delivered in proportion. This is a continuance of the contract of May 19, 1883.

Christy, Walker & Co.,

B. W. Stafford.”

William A. Christy, who was alone served with process, interposed a plea of the general issue, and the cause was heard before the court, without a jury, resulting in a judgment for plaintiff of $1523 and costs of suit, which, on the defendant’s appeal, was affirmed by the Appellate Court for the First District, whence the case is brought here for review.

The declaration contains a special count,- setting forth the contract in the usual form, and averring, as a breach, that “although the plaintiff, at and within the time specified, as aforesaid, for the delivery of said pickles,'to-wit, between the said 15th day of November, 1883, and the 1st day of January, 1885, was ready and willing, and offered, to deliver the said pickles to the defendants, and then and there requested them to accept the same and to pay for them, as aforesaid, yet the-defendants would not, nor would then, nor at any time before- or afterward, accept the said pickles, or any part thereof, from the plaintiff, or pay him for the same, as aforesaid, but refused to do so.”

The issuable facts indicated in the above breach, as well as in the charging part of the declaration, being conclusively-settled against the appellant, and the court below not having been asked to make any ruling with respect to the law of the-case, it is not perceived, if we look to the record alone, as we must, what there is for this court to review. The argument of counsel for appellant seems to be directed against the opinion of the Appellate Court, rather than to the action of that court in disposing of the questions presented by the record for its determination. The opinion of that court, strictly speaking, is no part of the record we are called upon to review. This court would have no right to reverse a judgment merely because it thought some of the reasons assigned for the judgment of that court were unsound. If it was apprehended that the trial court entertained erroneous views of the law relating to the case, formal propositions containing a correct statement of it should have been prepared and submitted to the court for its consideration, and its ruling upon them, if excepted to and incorporated into the bill of exceptions, would have become a part of the record, upon which the Appellate Court, as well as-this, would necessarily have to pass. But this was not done, and therefore the question which counsel seek to raise is not before us.

-We think the facts as alleged in the declaration show a good cause of action, and the Appellate Court, by its judgment, has said these facts were sufficiently proved on the trial; and no ruling of the trial court being pointed out in the argument as erroneous, and none which we have been able to discover ourselves, the judgment of the Appellate Court must be affirmed.

Judgment affirmed.


author: Mr. Justice Shope Mr. Justice Scott : Mr. Justice Magruder :

text:
    The Ohio and Mississippi Railway Company v. The People ex rel. R. P. Hanna.

      Filed at Springfield January 18, 1888.
    1. Railboads—consoUdationofrailroads—of the right to consolidate— status of the new company and of the constituent companies. Under the act of February 28, 1854, railroad companies organized under the laws of this State, and whose lines of railway were so intersected as to constitute a continuous line within this State, might consolidate their property, stock, rights and franchises, and thereby constitute a new corporation, under a "new name, possessing the property, rights, powers and franchises of the constituent companies, as given by their charters; and thereupon the constituent companies, as independent legal entities, would cease to exist, and all their duties and obligations, whether to the public orto private persons, would be cast upon and must be assumed and discharged by the new consolidated company.
    2. Same—consolidation of railroads existing in different States—of the power—and of the relation to the respective States, of the new corporation and of the constituent companies. A corporation dejure as well as defacto may be created, with the consent and under the authority of two or more States, ‘by the voluntary consolidation of corporations created and existing by virtue of the laws of such States, respectively. On the consummation of such consolidation of railway companies in two or more States, authorized by the laws of the States creating them, a new corporation will be created, having in each State all the powers, rights and franchises that the constituent companies had in the same State, but not in one State the powers, etc., of the constituent company in the other State. The new corporation will stand in each State as the original corporation had previously stood in the same State.
    3. A consolidated railroad company formed by the consolidation of two or more companies of different States, having a capital stock which is a unit, and only one set of stockholders, who have an interest, as such, in all its property everywhere, and a single board of directors, will have its domicile in each State, and its stockholders, directors and officers may, in the absence of any statutory provision to the contrary, hold meetings and transact corporate business in either of the States, though in relation to either State the consolidated company will be a separate corporation, governed by the laws of that State as to its property therein, and subject to taxation in conformity with the laws of such State, and to all the police power of the State in respect to its property and franchise within such State.

      4. Upon the creation of the consolidated corporation, the constituent corporations of the different States do not necessarily cease to exist, although they lie dormant, and their property, rights, powers and franchises are possessed and exercised by the new consolidated corporation.
    5. - Same—residence and citizenship of directors to he in this State—to what corporations the requirement applies. The constitutional provision that “a majority of the directors of any railroad corporation now incorporated or hereafter to be incorporated by the laws of this State, shall be citizens and residents of this State, ” has no application to a railway corporation formed, prior to the adoption of the constitution, by the consolidation of a railway company in this State with one of another State, by the consent of each of such States. Such a corporation exists under the laws of the two States, and can not be said to be incorporated solely under the laws of either.
    6. Constitution—rule and ohjeci of construction. The object of con-' situation, as applied to a written constitution, is to give effect to the intent of the people in adopting it; and this intent is to be found in the instrument itself, from the words and phrases employed. The presumption is, that the language employed was intended to have its ordinary and usual meaning, and to be sufficiently perspicuous within itself to convey the intent.
    Appeal from the Circuit Court of Wayne county; the Hon. Cabeoll C. Boggs, Judge, presiding.
    Messrs. Pollakd & Webneb, for the appellant :
    This constitutional provision does not apply to appellant. It does not, in terms, mention such a consolidation, but, on the contrary, the language seems to negative such a construction, and confine the provision to corporations wholly incorporated by the laws of this State.
    Appellant was a single corporate body in all the States in which it operated its road, with the right to hold its corporate meetings and transact its business in either, though deriving its powers to act in each State from the laws of that State. Graham v. Railroad Co. 14 Fed. Rep. 153; 118 U. S. 161.
    Under its original charter, and act authorizing the consolidation, which gave the consolidated company all the .rights which it enjoyed under the original charter, appellant had the right of electing directors without regard to their citizenship or residence. This was a valuable and vested property right, and the State had no power to take it away, either by statute or by a constitutional provision. Dartmouth College v. Woodward, 4 Wheat. 518; Hayes v. Commonwealth, 82 Pa. St. 518; State v. Greer, 78 Mo. 188.
    Messrs. Ramsey, Maxwell & Matthews, also for the appellant :
    The constitutional provision does not apply to companies consolidated under the laws of different States. Such an application would be unreasonable and unjust. Railroad Co. v. Speers, 56 Pa. St. 325.
    The language of the section relates to railroad companies “incorporated by the laws of this State.” People v. Thatcher, 95 Ill. 109; Railroad Co. v. People, id. 313; Ruggles v. People, 91 id. 256; Railroad Co. v. Jacksonville, 67 id. 37; People v. Lœwenthal, 93 id. 191.
    If the language of the section was intended to apply to ap-pellant, it is in contravention of the Federal constitution, as impairing the obligation of contracts. Appellant was incorporated in 1861. Railway Co. v. McClelland, 25 Ill.140; Railroad Co. v. People, 105 id. 657; Ward v. Farwell, 97 id. 609; State v. Greer, 78 Mo. 188; Hayes v. Commonwealth, 82 Pa. St. 518; Winter v. Jones, 10 Ga. 490; Planters’ Bank v. Sharp, 6 How. 327; People v. Jackson P. N. Co. 9 Mich. 285; Gas Co. v. Light Co. 115 U. S. 650; Ireland v. Turnpike Co. 19 Ohio St. 373.
    Mr. George Hunt, Attorney General, for the appellee:
    So far as the consolidation and operation of the consolidated company in this State is concerned, it could be just as fully done if there was no law relating to the matter in Ohio or Indiana. There can be no treaty between the States, and no consolidation by joint action of the States. If a corporation of this State can not consolidate with a corporation of another State, and comply with the laws of this State, no consolidation can take place. The grant of power to consolidate with corporations of other States can not release corporations from a compliance with the laws of this State.
    It is claimed that the language of the constitution does not apply to appellant, or to corporations organized under the laws of this State and another State. But even such a corporation is incorporated by the laws of this State. It has been held that where railroad corporations of several States consolidate into one body, in its relation to any State it remains a separate corporation, governed by the laws of that State as to its property therein. Graham v. Railroad Co. 118 U. S. 163.
    In the case of Ohio and Mississippi Railroad Co. v. Wheeler, 1 Black, 295, the railroad company claimed its corporate existence under the laws of Ohio and Indiana. The court said: “It is true that a corporation by the name and style of the plaintiff appears to have been chartered by the States of Indiana and Ohio, clothed with the same capacities and powers, and intended to accomplish the same objects, and it is spoken of in the laws of the States as one corporate body, exercising the same powers and fulfilling the same duties in both States. Yet it has no existence in either State, except by the law of the State, and neither State could confer on it a corporate existence in the other, nor add to or diminish the powers to be there exercised.”
    A corporation “must dwell in the place of its creation, and can not migrate to another sovereignty.” Bank of Augusta v. Earle, 13 Pet. 588.
    A corporation can have no legal existence out of the sovereignty by which it was created. It must dwell in the place of its creation. Runyan v. Lessees of Coster, 14 Pet. 129 ; Railroad Co. v. Wheeler, 1 Black, 295.
    It follows that the consolidation does not make the corporation a resident of another State, nor authorize it to go beyond the State borders for its officers. It is still a corporation of this State, subject to the laws of this State. While the State permits consolidation with a corporation of another State, it does not authorize a violation of law in order to effect that consolidation. If the consolidation is not permitted by the other States in such a manner that the laws of this State can be complied with, or if, from any reason, the Illinois corporation can not consolidate and still comply with the laws of the State, then it should refrain from consolidating.
    The condition is implied that the corporation shall be subject to such reasonable regulations, in respect to the general ■conduct of its affairs, as the legislature may, from time to time, prescribe, which do not materially interfere with or obstruct the substantial enjoyment of the privileges the State has granted, and serve only to secure the ends for which the corporation was created. Sinking Fund Cases, 99 U. S. 68; Commonwealth v. Bank, 21 Pick. 542; Bank v. Mississippi, 4 S. & M. 497; Life Ins. Co. v. Needles, 113 U. S. 574.
    Mr. J. B. Creighton, State’s Attorney, Mr. William H. Bobinson, and Mr. B. P. Hanna, also for the appellee:
    The provision of the constitution is a proper police regulation, and makes no exception, but includes all railroads “now incorporated” or hereafter to be incorporated.
    Appellant had no power to consolidate with a railroad in Indiana, so as to form a new and independent corporation, .and thereby relieve itself from all the legal requirements attaching to other railroads.
    A corporation is at all times subject to the laws and jurisdiction pf the State from whence it derives it existence. Bank v. Earle, 13 Pet. 519; Hill v. Beach, 1 Beas. 31; Railroad Co. v. Coffee County, 6 Kan. 343; State v. Railway Co. 45 Wis. 579; Railroad Co. v. Wheeler, 1 Black, 286.
   Mr. Justice Shope

delivered the opinion of the Court:

This was an information in the nature of a quo wa/rranto, filed in the Wayne circuit court, by the State’s attorney of that-county, against the Ohio and Mississippi Railway Company. A demurrer was sustained as to the first and overruled as to-the second and third counts of the information, and as to such counts respondent answered. A demurrer to the answer being interposed and sustained, respondent refused to answer further, and was adjudged guilty as charged in the second and third counts of the information,- and a fine of $1000 was thereupon, imposed upon respondent. Motions for a new trial and in ar-rest of judgment having been overruled, the record is brought here upon respondent’s appeal.

It is charged in the information that the Ohio and Mississippi Railway Company is a corporation chartered, organized and existing under the laws of this State, owning and operating a railroad in this State from East St. Louis to the Wabash river, opposite the city of Vincennes, Indiana, and from Shawneetown, through Wayne county, to Beardstown; that it is governed and controlled in its corporate capacity by a board of thirteen directors, a majority of whom are not citizens and residents of this State, and twelve of whom are now and have been citizens and residents of other States, contrary to the laws of this State, whereby it has forfeited its franchise, powers- and privileges. By its answer, the railway company denied that it was guilty of the several wrongs charged against it admitted that it was incorporated under the laws of Illinois, and said that such incorporation was made by virtue and in pursuance of an act of the legislature of Rlinois, entitled “An act to incorporate the Ohio and Mississippi Railway Company, and for other purposes,” approved February 5, 1861; that in the first section thereof thirteen persons were named incorporators of the company, and that a majority of the persons so named were non-residents of the State of Illinois, and were-citizens and residents of other States; that by virtue of the same section of that act respondent was invested with all the corporate franchises and rights which had theretofore been granted to and vested in the corporation known as the Ohio and Mississippi Railroad Company, incorporated by an act of the. General Assembly of the State of Illinois, entitled “An act to incorporate the Ohio and Mississippi Railroad Company, and for other purposes,” approved February 12,1851; referred to both these acts and made them parts of its answer, and insisted, that by virtue of these special acts, in pursuance of which it was incorporated, it became vested with the right to elect a majority of its directors, or all of them, from stockholders residing outside of the State of Illinois, and not citizens of Illinois; that in 1867, and before the adoption of the present constitution of this State, by virtue of the laws of the State of Illinois, and of similar laws in the States of Indiana and Ohio, respondent became consolidated with the Ohio and Mississippi Railway Company, and owning and operating a railroad leading from the Mississippi river at East St. Louis, Illinois, to Cincinnati, Ohio, all under one management and one board of directors, by which consolidation the property, stock and franchises of the old constituent corporations named, became completely merged in respondent, its line of railroad being connected and continuous, and which consolidation was, in all respects, in conformity with the laws of the States of Illinois, Indiana and Ohio; that its principal business as a carrier is between St. Louis, Missouri, and Cincinnati, Ohio; that its capital stock is held and owned, excepting a few shares, by persons outside of Illinois, being largely held in foreign countries and in New York; that now, and for some time last past, but one of its stockholders is or has been a citizen and resident of the city of Springfield, Illinois, and that all its other directors are citizens and residents of other States,—giving their respective places of residence; “that the officers of respondent have always been of the opinion, and have been so advised, that under its charter and consolidation, by authority of the laws of this State, with said railroad corporations in the States of Indiana and Ohio, the law of this State requiring a majority of the directors to be citizens and residents of this State did not apply to respondent; that it has been supported in this opinion and belief by the fact that a majority of its directors have never resided in or been citizens of this State, which fact has been well known to the citizens and officers of this State, and to the relator in this proceeding, and still, until the filing of this proceeding, no objection has ever been made by either citizen, officer or relator, and no injury has been sustained thereby by any one; that respondent has always acted in this matter in good faith, and with a desire to comply with the laws of the State, as they were understood by its officers, and as they seemed to be understood by the officers of the State.”

The principal question here presented is, whether the organic law of the State is applicable to appellant corporation. The consolidation mentioned was completed in 1867, and there was at that time, neither in the constitution of the State nor on the statute books, any provision requiring that a majority of the board of directors of corporations similar to the Ohio and Mississippi Eailway Company should be citizens and residents of this State. The provision of the present constitution, which is said to be mandatory upon appellant, is as follows: “A majority of the directors of any railroad corporation now incorporated or hereafter to be incorporated by the laws of this State, shall be citizens and residents of this State.”

It is insisted, and has been held, that the power given to a railway corporation to form a union or consolidation with another railway corporation, is a contract between the State granting the power, and the corporation, which, after the right of consolidation has been exercised, can not be withdrawn or impaired by the State. (Zimmer v. The State, 30 Ark. 677. See, also, Central Railroad and Banking Co. v. Georgia, 92 U. S. 665.) In the view we entertain of this case, it will not be necessary to discuss or determine- the question whether appellant corporation acquired such rights by virtue of consolidation as would bring it within the inhibition of the constitution of the United States against the impairment of contracts by the State, and we therefore express no opinion in respect thereto.

The view of this case which we regard as decisive, involves a construction of this State constitutional provision, and the determination of the question as to whether appellant corporation falls within its letter or spirit. This will necessarily involve a consideration of the status of appellant corporation at the time of the adoption of the constitution now in force. The constitution was adopted in 1870, and the record leaves no question but that the consolidation of the Ohio and Mississippi Eailway Company of Illinois, with the corporation of the same name existing in the States of Indiana and Ohio, ■was consummated in the year 1867. The Ohio and Mississippi railway of Illinois was incorporated by an act of the legislature of Illinois in 1861. (Private Laws, 1861, p. 508.) The object of the incorporation was declared to be “for the purpose of purchasing and taking a conveyance of all the rad-way property, real ahd personal, rights and franchises, of the Ohio and Mississippi Eailroad Company, (incorporated by act of February 12, 1851,) or in any part of said property, rights and franchises, either by private contract or at any judicial sale thereof” thereafter to take place. The grant was, that “the said corporation shall possess all the powers and privileges conferred on the Ohio and Mississippi Eailroad Company by the act incorporating the same, * * * or by any amendment or amendments thereof, and shall be subject to all provisions of said act.” Thirteen incorporators were named, from whom alone the first board of directors were to be selected, and who were not, as the answer avers, citizens and residents of the State of Illinois. The act of 1851, and which, by reference in the act of 1861, is made the charter of the said Ohio and Mississippi Bailway■ Company of Illinois, (Private Laws, 1851, p. 89) authorized the corporation to locate, construct and maintain a railroad, with one or more tracks, from Illinoistown, on the Mississippi river, (now East St. Louis,) east to the Illinois State line, “in the direction of the city of Vincennes, ” in Indiana. The powers of the corporation were vested in a board of directors of not less than seven nor more than seventeen, and the first board of directors, composed of thirteen members, were individually named. In addition to other powers granted, it was provided that “said company shall have the power to unite its railroad with any other railroad now constructed, either in this State or the State of Indiana.”

Under its charter, the Ohio and Mississippi Railway Company of Illinois organized, and became the owner of the line of railway from East St. Louis to the Illinois State line opposite the city of Vincennes, in Indiana, and became vested with the powers, franchises and privileges of the Ohio and Mississippi Railroad Company of 1851, and possessed and operated its railway to and until 1867. In the year last named the Ohio and Mississippi Railway Company of Illinois became consolidated with the Ohio and Mississippi Railway Company, an Indiana corporation, and also with the Ohio and ■Mississippi Railway Company, an Ohio corporation, whereby the consolidated corporation, under'the common name, of the Ohio and Mississippi Railway Company, became the owner of and operated a consolidated and continuous line of railway from East St. Louis, in Illinois, to Vincennes, in Indiana, and thence eastward to the city of Cincinnati, in Ohio; and the property, stock and franchises of the three constituent corporations in the three States became merged in the consolidated corporation, the corporate powers of which were exercised by one management, and a single, common board of directors. And the right of the Illinois corporation thus to consolidate its property, stock and franchises with corporations in the States of Indiana and Ohio, was acquired and exercised, as the answer avers, under and in conformity with “the laws of the State of Illinois, and of similar laws of Ohio and Indiana.”

“The laws of the State of Illinois” here referred to, are, first, the act of 1851, before referred to, and which, by reference and adoption, became the charter of the Ohio and Mississippi Bailway Company, incorporated under the act of 1861, except as the same was modified by the latter act, in which, as we have seen, the Ohio and Mississippi Bailroad Company was authorized and given power “to unite its railroad with any other railroad now constructed, either in this State or the State of Indianaand second, the act of February 28,1854. (Laws 1854, p. 9; 1 Gross’ Stat. p. 537, sec. 15, et seq.) Under this latter act, railroad companies then or thereafter organized, having their termini fixed by law, and whose roads are intersected by continuous lines, were “authorized and empowered to consolidate their property and stock with each other, and to consolidate with companies out of this State, wherever their lines connect with the lines of such companies out of this State.” The consolidating companies might, it was provided, agree upon a name “of such consolidated company,” and by such name should be “a body politic and corporate,” having a common seal, and in such corporate name contract and be contracted * with, sue and be sued, plead and be impleaded, and “have all the powers, franchises and immunities which the said respective companies shall have by virtue of their respective charters before such consolidation.”

It seems clear to us, that under this latter act railroad companies organized under the laws of this State, and whose lines of railway so intersect as to constitute a continuous line within this State, might consolidate their property, stock, rights and franchises, and thereby constitute a new corporation, under a new name, possessing the property, rights, powers and franchises of the constituent companies, as given by their charters; and that upon the consummation of such consolidation, the constituent companies, as independent legal entities, would cease to exist,- and that all the duties and obligations of the constituent companies, whether to the public or to private persons, would be cast upon and must be assumed and discharged by the new consolidated corporation. The power of the State to authorize the consolidation of corporations of its own creation, with the effect stated, has everywhere been admitted, and many cases are to be found in the books where this principle is recognized. See Ruggles v. The People, 91 Ill. 256, (affirmed by the Supreme Court of the United States, 108 U. S. 526;) Shields v. Ohio, 95 U. S. 319; Bishop v. Brainerd, 28 Conn. 289.

But does a like power exist in two or more States, in respect of railway corporations incorporated by them, respectively, to> authorize the consolidation of such corporations ? If so consolidated by authority of the States of their creation, respectively, what legal result follows ? Is the consolidated corporation a new corporation, or only an association of corporations under a common name ? If the result be the creation of a new corporation, do the original corporations cease to exist ? What property rights, powers and franchises does the new corporation acquire, and what duties, obligations and liabilities to the respective States does it assume ? This court has, in the following cases, had occasion to express itself as to the effect of such consolidations, but in every instance the question has arisen collaterally, and not in a direct proceeding.

The Quincy Bridge Company was incorporated by the State of Illinois, and also by the State of Missouri, for the common purpose of the construction of a bridge across the Mississippi river. The two companies entered into articles of consolidation, which were legalized by the legislature of Illinois. In speaking of such consolidation, this court, in Quincy Bridge Co. v. Adams County, 88 Ill. 615, said: “The legislatures of this State and of Missouri can not act jointly, nor can any legislation of the last named State have the least effect in creating a corporation in this State. Hence, the corporate existence of appellants, considered as a corporation of this State, must spring from the legislation of this State, which, by its own vigor, performs the act. The States of Illinois and Missouri have no power to unite in passing any legislative act. * * * The only possible status of a corporation acting under charters from two States is, that it is an association incorporated in and by each of the States, and when acting as a corporation in either of the States, it acts under the authority of the charter of the State in which it is then acting, and that only,—the legislation of the other State having no operation beyond its territorial limits.” This was said, it must be observed, in a case where the question was, whether the capital stock of the corporation was subject to taxation under the revenue laws of this State; and it was there held, that the bridge company was a corporation within this State, within the meaning of the laws of this State imposing taxation upon domestic corporations. It does not appear from the case, as reported, whether the capital stock which it was sought to bring under the operation of our Bevenue law, was that which had been issued by the consolidated corporation, or, indeed, whether the articles of consolidation contemplated such an issue, nor is it in any way important. The language employed by the court, however, negatives the idea that the effect of the consolidation was the creation of a new corporation, and affirms the doctrine that the consolidation was but an association of the two constituent corporations, the contracting corporations retaining their legal existence and identity. It could, however, as affecting the question under consideration in that case,—as we shall hereafter see,—be of no importance whether a new corporation was created by the act of consolidation or not.

This court also had before it the case of Racine and Mississippi Railroad Co. v. Farmer’s Loan and Trust Co. reported in 49 111. 331, involving the validity of a mortgage executed by the' consolidated corporation upon the property in both States. The Eacine, Janesville and Mississippi Eailroad Company, incorporated by Wisconsin, was consolidated with the Bockton and Freeport Eailroad Company, incorporated by Illinois. The latter corporation was, by its charter, authorized to consolidate its stock with that of any Wisconsin corporation. The object of the consolidation was, by the articles of consolidation, declared to be, “to fully merge and consolidate the capital stock, powers, privileges, immunities and 'franchises of the two corporations.” After consolidation, the legislatures of the two States changed the names of the constituent corporations, respectively, to the Eacine and Mississippi Eailroad Company. Afterwards, another Illinois corporation, the Savanna Branch Eailroad Company, became a party to the consolidation, and the legislature of Blinois changed its name to the Eacine and Mississippi Eailroad Company, and declared the several acts of consolidation legal and binding. In that case it was said: “Our view of the effect of the consolidation contract between the Eoekton company and the Wisconsin company, which we hold to have" been legally made, is briefly this: While it creates a community of stock and of interest between the two companies, it did not convert them into one company, in the same way and to the same degree that might follow a consolidation of two companies within the same State. * * * But' the contract of consolidation, and the subsequent legislation, created substantially a new corporation, with a new name; but such corporation, in a legal point of view, was, and has remained, a distinct corporation in each State, though the two have a common name, common stock and a common board of directors. There is a Wisconsin corporation under the name of the Eacine and Mississippi Eailroad Company, and there is an Illinois corporation of the same name, and the original corporations in each State have been transmuted into these.” And upon this view the validity of the mortgage was sustained. It is apparent that precisely the same result was reached as if the court had held that a new -corporation had been created by the articles of consolidation. We do not, therefore, consider the case as in conflict with the views hereafter expressed.

The position assumed by the court in the cases referred to, that a corporation can not be created by the joint legislation of two States, so as to be the same legal entity in both States, may be conceded. Joint acts of legislation by two or more States are impossible; and one State can not, without the consent of Congress, “enter into any agreement or compact with another State.” (Const. U. S. art. 1, sec. 10, clause 3.) But it does not follow, as is assumed in the case last referred to, that a corporation de jwre, as well as de facto, can not be created, with the consent and under the authority of two or more States, by the voluntary consolidation of corporations created and existing by virtue of the laws of such States, respectively. The contrary view seems to have been entertained by this court in the last case before it, (Cooper v. Corbin, 105 Ill. 224,) where it was said: “The Indianapolis, Bloomington and Western Bailway Company was formed * * * by the consolidation of the Indianapolis, Crawfordsville and Danville Bailroad Company, a corporation created under the laws of Indiana, and the Danville, Urbana, Bloomington and Pekin Bailroad Company, a corporation organized under the laws of this State. The consolidation was effected in conformity to the charter of the last named company and the laws of this State, and the new corporation, by virtue of the consolidation, became clothed with all the rights, privileges and powers which had been conferred by the laws of the State upon the Danville, Urbana, Bloomington and Pekin Bailroad Company.” In this case, as in the Quincy Bridge Company case, none of the adjudged cases are referred to, and the court had no apparent intention of laying down a rule which should bind the court in a direct proceeding, such as the one now under consideration. We have, therefore, felt at liberty to consider the authorities. A careful examination has satisfied us that the current and weight of authority establish the principle, that upon the consummation of such consolidation, authorized by the laws of the States creating the constituent corporations, a new corporation will be created. St. Louis, Iron Mountain and Southern Railway Co. v. Berry, 113 U. S. 465; Shields v. Ohio, 95 id. 319; Graham v. Boston, Hartford and Erie Railroad Co. 118 id. 161; Covington and Cincinnati Bridge Co. v. Mayer, 31 Ohio St. 317; Bishop v. Brainerd, 28 Conn. 289; 2 Morawetz on Private Corp. secs. 1000, 1001. The acts of the States authorizing and consenting to the consolidation, are acts of incorporation. (State v. Maine Central Railroad Co. 66 Maine, 488,—affirmed by the Supreme Court of the United States in 96 U. S. 499.) And the new corporation will possess, necessarily, every requisite corporate attribute. Its capital stock, corporate name and organization, board of directors, officers and managers, will be such as may be authorized by the articles of consolidation and the acts of the respective States. The-new corporation will, as was said in Minot v. Philadelphia, Wilmington and Baltimore Railroad Co. 18 Wall. 206, become vested with “the rights and privileges which the original companies had previously possessed under their respective charters, —the rights and privileges in Maryland which the Maryland company had enjoyed, and the rights and privileges in Delaware which the Delaware company had there enjoyed,—not to-transfer to either State, and enforce therein the legislation of the other. * * * The new company stood, in each State, as the original company had previously stood in that State, invested with the same rights and subject to the same liabilities.” Unlike a corporation created by a single State, which can not migrate or legally exist outside of the territorial limits of the State of its creation, the consolidated corporation, having a capital stock which is a unit, and only one set of stockholders who have an interest, by virtue of their ownership of shares of such stock, in all of its property everywhere, and a single board of directors, will have its domicile in each State, and the stockholders, directors and officers can, in the absence of any statutory provision to the contrary, hold meetings and transact corporate business in either of the States, though in its relation to either State the consolidated company will be a separate corporation, governed by the laws of that State as to its property therein, and subject to taxation in conformity with the laws of such State, and to all the police power of the State in respect of its property and franchise within such State. Graham v. Boston, Hartford and Erie Railroad Co. 118 U. S. 161; Covington and Cincinnati Bridge Co. v. Mayer, 31 Ohio St. 317; Sprague v, Hartford, Providence and Fishkill Railroad Co. 5 R. I. 233; Pierce on Railways, 20; Minot v. Philadelphia, Wilmington and Baltimore Railroad Co. supra. And the same rule, as to domicile, seems to apply to a case where two corporations are created by adjoining States for the improvement of a river forming the common State boundary. “Under the joint act of two States, the powers conferred, to be exercised for the benefit of both, may be exercised in either. The act does not require the business to be done in either State, as regards the action of the directors. The work is to be done in both.” And so it was held, the corporation might be sued in either State. Culbertson v. Wabash Navigation Co. 4 McLean, 544. And to the same effect is Chicago and Northwestern Railroad Co. v. Chicago and Pacific Railroad Co. 6 Biss. 219.

Whether, upon the creation of the consolidated corporation, the constituent corporations of the different States cease to exist, the authorities are, in the main, agreed. They do not necessarily cease to exist, although they lie dormant, and their property, rights, powers and franchises are possessed and exercised by the new consolidated corporation.” Farnum v. Blackstone Canal Co. 1 Sumn. 62; Tagart & Bennett v. Northern Central Railway Co. 29 Md. 557; Central Railroad and Banking Co. v. Georgia, 92 U. S. 667. “In regard to the effect of such a consolidation, it does not necessarily follow that it ■would extinguish, to all intents and purposes, the existence of those corporations. It is possible for them still to subsist for certain purposes, notwithstanding they should be thus amalgamated.” Bishop v. Brainerd, 28 Conn. 289.

If we are correct in this, upon the consummation of the consolidation, in 1867, of the three companies named, into appellant corporation, it became a new corporation, existing by virtue of the act of consolidation, under the sanction and by the authority of the three several States in which the constituent companies had been chartered, while its charter privileges, powers and obligations within the State of Illinois were prescribed and limited by the charter of the Illinois corporation entering into the consolidation. While, therefore, in a sense, it may be said that appellant is incorporated under the laws of this State, it must also be said it exists by virtue of the laws of the States of Illinois, Indiana and Ohio, authorizing and consenting to its organization. The corporation chartered by the act of 1861 was merged in the consolidation of 1867, and its right to exercise corporate functions must lie dormant at least during the existence of the consolidation. This was the status of appellant and of the constituent company in -Illinois at the time of the adoption of the constitutional provision before referred to and quoted.

This constitutional provision, by its terms, applies only to such railroad corporations as are “now incorporated or hereafter to be incorporated by the laws of this State.” It would seem that no construction of these words was necessary to demonstrate the inapplicability of the constitutional provision to appellant corporation, or those standing in like relation to the State. It is insisted, however, by appellee, that as appellant corporation derives its vitality from the act of the State consenting to the consolidation, and its charter, powers and duties within this State are measured by the act of 1861 creating the Ohio and Mississippi Bailway Company of Illinois, it falls within the spirit of the constitution, and must, therefore, have a majority of its board of directors citizens and residents of this State.

The object of construction, as applied to a written constitution, is to give effect to the intent of the people in adopting it. This intent is to be found in the instrument itself, from the words and phrases employed. The presumption is, that the language employed was intended to have its ordinary and usual meaning, and to be sufficiently perspicuous within itself to convey the intent. And “where a law is plain and unambiguous, whether it be expressed in general or limited terms, the legislature should be intended to mean what they have plainly expressed, and, consequently, no room is left for construction.” (United States v. Fisher, 2 Cranch, 358; Cooley’s Const. Lim. 68.) And it is only when, after a consideration of the language employed, there are still doubts and ambiguities as to the meaning of the law making power, that extrinsic circumstances may be resorted to in aid of construction.

As has been seen, appellant corporation is no more a corporation existing under the laws of Illinois than it is a corporation chartered by the laws of Indiana or of Ohio. To hold that the constitutional provision is applicable to appellant corporation, would be to determine that the framers of that instrument, in drafting and submitting this section, and the people in adopting it, intended that the State of Illinois should break faith with her sister States, and should become a despoiler of private right, for, on the faith of the .legislation of Illinois, the other States had, by like legislative action, authorized corporations existing as domestic corporations in those States to unite their property and franchises with a corporation of this State, whereby both public and private rights were greatly affected. Upon the consummation of the consolidation, bonds and stocks of the new consolidated corporation were issued, secured by mortgages upon the consolidated line, its property and franchise, and the liens on the constituent lines discharged. The terms and conditions of the articles of consolidation are not set out in the answer, hut it is manifest, from what is disclosed, that the legal effect of the consolidation, which, it is averred, was consummated, was to transfer to the new corporation the property of the three constituent companies, wherever it might he located.

"When the new corporation issued its stock, it was put upon the markets of the world, and the persons becoming owners thereof acquired an interest, measured by the shares of stock owned by them, respectively, in the franchise and property of the new corporation. No restriction was placed upon its ownership, and all persons, everywhere, were at liberty to acquire it. Although the corporation was a quasi public one, its property was the property of its stockholders, and, subject to the general regulation and police power of the States in which the corporation was situate, the owners of the railway property stood on an equal footing with the owners of other species of property, as to its right of control and management. An essential element of the consent and authority given by the State to the consolidation was, the right of the Illinois corporation to acquire, under the laws of the other States named, an interest in property situate beyond the limits of this State, and forming an integral part of a great railway thoroughfare, with a right to issue its bonds and stock, based on the property of the railway in the three States, whose domestic corporations were the constituent elements of such new company. The object to be attained was the corporate union of properties and interests in different States, under the management and control of a single board of directors, thereby securing the concerted and harmonious operation of a through .hue of railway from St. Louis to Cincinnati. If effect is to be given to the words of the constitution as contended by appellee, the consolidated corporation must necessarily be dissolved, unless the States of Ohio and Indiana acquiesce in the assumption by this State of jurisdiction over the personnel of the directory, and also unless the owners of appellant’s stock consent to become citizens and residents of Illinois in sufficient numbers to constitute a majority of the directory, and a majority of the stockholders •consent to commit the interests of the corporation to such resident stockholders. If all this could not be attained appellant must forfeit its charter in this State, and its property here, as well as its interest in this continuous line of railway, be lost to those interested therein. Such construction would place this State in the condition of repudiating its acts, upon the faith of which sister States have acted, and upon which private interests have been acquired. And although States may not enter into formal treaties and conventions, or agreements and compacts, they may, and, we venture to say, should, be exemplars of good faith and fair dealing, by faithfully observing such obligations as legitimately spring from their cooperating legislation.

The framers of the constitution must be presumed to have known of the status of appellant, and its relation to the State, :at the time the language referred to was selected; and if they .had intended the dissolution and destruction of appellant corporation, as then existing, it is also to be presumed they would have used language expressive of such intent. The language •employed applies only to corporations existing by virtue of the laws of this State, and finds ample scope for application to the multitude of corporations thus existing. No reason has been suggested, nor has any occurred to us, for extending the language of this constitutional provision beyond its plain and obvious meaning; and especially would this be so in view of the results that would follow the .more latitudinous construction contended for by appellee. What would be the effect upon like corporations brought into existence since the declared policy of the State, as expressed in this constitutional provision, is not before us, and need not now be discussed or deiermined.

We are of opinion that appellant corporation does not fall ■within the constitutional provision quoted, and that the circuit court therefore erred in sustaining the demurrer to the answer, and in rendering judgment against appellant. The judgment will therefore he reversed, and the cause remanded.

Judgment reversed.

Mr. Justice Scott :

I am not prepared to concur in this opinion.

Mr. Justice Magruder :

I do not concur in this opinion.. The doctrine, which it announces, is, to my mind, an exceedingly pernicious one. The tendency of its reasoning is to exonerate railroad companies from their obligations to obey the-laws and constitutions of the individual States, if they make-arrangements for consolidating and uniting their lines with railroads in adjoining States. Our constitution of 1870 says: “A majority of the directors of any railroad corporation, now incorporated or hereafter to be incorporated by the laws of this. State, shall be citizens and residents of this State.” The meaning of these words is plain. The idea, conveyed by them, is as clearly expressed as any idea can be expressed by human language. The Ohio and Mississippi Railway Company was a railroad corporation incorporated by the laws of this State when the constitution of 1870 was adopted. In my opinion, it should be required to obey the mandate of the organic law as above quoted. The charter granted to it by the State of Illinois in 1861 contained no provision, that a majority of its directors might or should be non-residents of this State or citizens and residents of other States than Illinois. There was no contract between it and the State of Illinois, that a majority of its directors should be citizens and residents of other States. The existence of such a contract can not reasonably be presumed either from the fact, that a majority of the original incorporators named in the charter happened to-be non-residents of Illinois, or from the fact, that there was, in 1867, a consolidation'with other roads in adjoining States. under legislation, then existing, which permitted such consolidation. Therefore, it can not be said that the enforcement of the constitutional provision against appellant will impair the obligation of a contract.

If the views of this decision are to prevail, then any corporation can defy the constitution and laws of the State, which gives it its existence, by uniting itself to some corporation in another State and then claiming to be the creature of two States.