text:
    Michael Finlon v. B. B. Clark.

      Filed at Ottawa May 15, 1886.

      1. Ejectment—by mortgagee against mortgagor. A mortgagee of land may maintain ejectment on the mortgage against the mortgagor after condition broken; so may the grantee in a deed absolute in form, given as security for a debt.
    2. Same—equitable defence. In an action of ejectment the legal title must prevail, and it can not be defeated upon equitable grounds. If the plaintiff’s title is sought to be questioned on equitable grounds, it must be done in a court of equity.
    3. In ejectment by the grantee of a deed absolute on its face, against the grantor, the deed can not be shown to be a mortgage only. The remedy of the grantor, if he has any, is in equity. He may there enjoin the action at law, and show the true character of the deed.
    4. Homestead—occupation as a resilience. To constitute a homestead estate in land the owner must reside upon the same. If a party makes a conveyance of a tract of land not at the time occupied by himself and family as a residence, no release of homestead is necessary.
    Appeal from the Circuit Court of Will county; the Hon. Dorrance Dibell, Judge, presiding.
    Messrs. Fairchild & Blackman, for the appellant:
    A deed given to secure a debt, though absolute in form, is treated, both at law and in equity, as á mortgage, only. Rev. Stat. chap. 95, sec. 12; Miller v. Thomas, 14 Ill. 431; Tilton v. Moulton, 23 id. 656; Carr v. Carr, 52 N. Y. 251; Murry v. Walker, 31 id. 403.
    The bond given at the same time, being a part of the same contract, was admissible in evidence to show the deed was only a mortgage. 3 Cowen & Hill’s notes to Phillips on Evidence, note 958 ; 1 Greenleaf on Evidence, sec. 283 ; Erskine v. Townsend, 2 Mass. 493; Greenebaum v. Gage, 61 Ill. 49.

      There being no release of the homestead, the plaintiff could not recover in ejectment.
    Messrs. Munn & Munn, for the appellee: '
    It is only in equity that a deed absolute on its face may be shown to be a mortgage. Price v. Karnes, 59 Ill. 277; Remington v. Campbell, 60 id. 116; Bearss v. Ford, 108 id. 16.
    When the deed was made, Clark was living on a different piece of land,—seventy acres,—and hence no question of homestead is presented. Symonds v. Lappin, 82 Ill. 213.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is an action of ejectment, brought by appellee against appellant to recover possession of the north-west quarter of the south-east quarter of section 1, township 37 north of range 10 east of the third principal meridian in Will county. Upon the trial below, appellee introduced in evidence a warranty deed, dated December 20, 1858, executed to him, as grantee, by appellant and his wife, as grantors, conveying the property in question, for an expressed consideration of $772, which deed was acknowledged on December 20, 1858. Two questions arose upon the introduction of this deed, both of which were decided against appellant by the trial court, and judgment was rendered in favor of appellee. The rulings upon these two questions are assigned for error.

The first assignment of error is, that the circuit court, before whom the cause was tried without a jury, refused to receive in evidence a certain bond, offered by the appellant for the purpose of showing that the deed was a mortgage. It was held to be such by this court in Clark v. Finlon, 90 Ill. 245. The offer of the bond was not accompanied by any offer to prove, either that the debt secured was not due, or that the same had been paid, or that the decree, directed to be rendered by the opinion in 90 Ill. 245, had been entered-by the lower court and performed by appellant.

- The deed showed the legal title to be in appellee. “Legal titles must prevail in an action of ejectment. If a legal title, so acquired, is challenged, it can not be adjudicated in a. court of law, but a court of chancery must be invoked.”" (Johnson v. Watson, 87 Ill. 535; Oldham v. Pfleger, 84 Ill. 102.) Even if the deed were a mortgage, the mortgagee may bring ejectment against the mortgagor. (Delahay v. Clement, 3 Scam. 201; Carroll v. Ballance, 26 Ill. 9.) Proof that the-deed was made to secure a debt would not, therefore, be a. defence in ejectment. But a court of law, upon the trial of an action of ejectment, will not stop to hear evidence, as-to whether a conveyance, absolute on its face, was or was-not intended by the parties to be a mere mortgage security. The remedy of the grantee in such a deed is in equity. He may there file his bill, and enjoin the ejectment suit, and show the true character of the instrument. A court of chancery has full power to protect his rights. The refusal of the-trial court to receive the offered testimony was not erroneous.

The second assignment of error is, that the court refused to find, that the deed in question, which contained no homestead waiver, conveyed a part of the homestead of the grantors. The proof shows, conclusively, that, when this deed was executed, appellant did not live on the forty acres, conveyed by it, but upon another and different tract of land. There was, therefore, no necessity for a relinquishment of homestead, and the question of a homestead right had no existence in the case. (Symonds v. Lappin, 82 Ill. 213.) We find no» error, and the judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    Portia Gage et al. v. Annie M. Reid et al.

      Filed at Ottawa May 15, 1886.

    1. Tax title—of the notice, to authorize a tax deed to he issued. Land, “belonging to Beid & Sherwin, a firm composed of John Beid and Joseph Sherwin, was assessed to “Beid & Sherwin” for the year 1868, and in 1869 it. was sold for the taxes of 1868. James Sherwin, and Mary Sherwin, his wife,, occupied the premises, by residence, continuously, from before 1868 up to-1879. The affidavit of service of notice of the time when the redemption would expire, showed that on the first day of April, 1871, the affiant served the same on “Beid & Sherwin,” by handing the same to Joseph Sherwin, one of the firm, etc.: Held, that this was not good service even astto Beid, and there was no pretence of any service as to James Sherwin and Mary Sherwin, so that a tax deed made under these circumstances was made in violation of the constitution and the statute, and was therefore voidable, as a cloud oh the title of the true owner.
    2. A tract of land was sold, in 1875, for the taxes of 1874, and the proof showed that John Beid died intestate May 9, 1873, seized in fee of the one undivided half thereof, leaving him surviving, Cecilia, his widow, and Joseph J. and Annie M. Beid, his children and only heirs at law, and that such: widow and heirs resided together on the premises, and continued in the-actual occupancy of the same from the time of the sale until the tax deed, was made. The only evidence of the service of notice prior to the making: of the deed was in affidavits showing service of such notice upon Mary and James Sherwin, D. O’Hara, Joseph Sherwin and Asahel Gage, there being; no proof of service upon Cecilia, Annie M. or Joseph J. Beid, or upon one-H., one of the persons in whose name the property was assessed: Held, that the tax deed was colorable, merely, and voidable, for want of due service of notice of the tax sale, etc.
    3. Same—limitation as to time for taking out deed — of delay no£ chargeable to the purchaser. The statute provides that unless the holder of: a certificate .of purchase of land for taxes shall take out his deed thereon and1 file the same for record within one year after the expiration of the time of' redemption, such certificate or deed, and the sale on which it is based, shall1 be absolutely void; but the time he is prevented from taking out his deed, by-injunction or order of any court, or by refusal of the clerk to make the same, shall be excluded from the computation of such time. The courts are not authorized to extend the exceptions to this statute to other cases than those.named.

      4. Chancery—grotmds of defence arising pending suit—how availed of. If, during the pendency of a bill to set aside tax deeds as.clouds upon the complainant’s title, such title has passed to the defendant by sheriff’s sale and deed, that fact, when not set up by plea, can not be taken as a bar to the relief sought. The court can not consider evidence not pertinent to any issue under the pleadings.
    5. Assignment of ebbob—upon a decree favorable to the party complaining. A party can not assign for error that which does him no injury. So where a tax deed is set aside as a cloud on title, a decree making the taxes, etc., advanced by the defendant, an equitable lien on the land, is a benefit to the defendant, giving him an additional security, and he can not Assign this for error.
    Appeal from the Circuit Court of Cook county; the Hon. "M. F. Ttjley, Judge, presiding.
    Mr. Augustus N. Gage, for the appellants:
    The second tax deed to Asahel Gage is a perfectly valid title. Henry H. Gage, as agent for Asahel Gage, applied for a deed to his principal, but the clerk,' without authority, issued the same to H. H. Gage. This was in apt time, and had it been issued to Asahel Gage there could be no question of its validity. The mistake was not discovered until after the lapse of one year. If compellable by mandamus to issue the deed to the proper person, he might'do so voluntarily. Klokke v. Stanley, 109 Ill. 192.
    The sheriff’s sale and deed deprived the complainant of all interest in the subject matter of the litigation, and hence the court could not properly grant any relief on this bill. There is no difference in principle between this and a ease of a voluntary assignment, where 'the transfer of the interest would bar a recovery. Smith v. Brittenham, 109 Ill. 540 ; Herrington v. Hubbard, 1 Scam. 569; 1 Daniell’s Ch. Pl. and Pr. 281.
    Advantage of this defect may be taken at hearing or on error. 1 Daniell’s Ch. Pl. and Pr. 287; Prentice v. Kimball, 19 Ill. 230; Conwell v. Watkins, 71 id. 488.
    The decree should have required appellees to pay the amount found due appellants, into court, and it should not have provided, in case this was not done, the amount should be an equitable lien.
    Mr. James R. Mann, and Mr. Josiah H. Bissell, for the appellees:
    The tax deed to Portia Gage is invalid, for want of judgment and precept to support it, and for non-compliance with the statute as to the service of notice.
    To sustain a tax deed, a valid judgment and precept must be shown. Gage v. Lightburn, 93 Ill. 248; Hinman v. Pope, 1 Gilm. 151; Atkins v. Hinman, 2 id. 437; Bailey v. Doolittle, 24 Ill. 567; Dukes v. Rowley, id. 210; Holbrook v. Dickinson, 46 id. 285.
    There was no service of notice on the parties in possession, nor upon the persons in whose name taxed.
    The error in making the sum due from appellees, a lien on the land, is one that affects injuriously only the rights of appellees, and they alone can assign the matter for error.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This case was before this court in Gage et al. v. Reid et al. 104 Ill. 509, where a full statement of the case, as then presented, will be found. After the ease was remanded, pursuant to the judgment of this court as then rendered, the bill was amended in the respects then held defective, and the circuit court, on the hearing, thereafter decreed that the three tax deeds in the amended bill described,—namely, one to Portia Gage, dated February 27, A. D. 1872, one to Asahel Gage, dated August 30, A. D. 1878, and one to Asahel Gage, dated January 16, A. D. 1884,—be canceled, and set aside as colorable and voidable, upon the complainants paying to-the holders of such deeds certain amounts which the decree finds and recites to be due to them, on account of taxes, penalties, interest and costs, etc. And the decree, afterwards, contains this clause, also: “And in case the said complain■ants, or other parties to this suit, shall not comply with the order herein, in this regard, then, in that case, the said sums of money so found to be due to the said defendant, as aforesaid, shall be, and it is hereby declared and decreed to be, an equitable lien upon the whole of said premises for the amounts thereof, respectively, with interest thereon, at the irate of six per cent per annum, from the date of this decree.”

The respects wherein it is argued that the circuit court ■erred, are, first,-in holding the titles of appellants colorable .and voidable; second, in holding that appellees have a sufficient interest to warrant a decree in their favor; and third, in adding the clause to the decree, as just recited. It will be convenient to consider these points in the order stated.

First—It is provided in section 5 of article 9 of our constitution, that, in case of sales for taxes, occupants shall in all eases be served with personal notice before the time of redemption expires. And section 216 of the Revenue act, in force July. 1, 1874, provides: “Hereafter no purchaser, or assignee of such purchaser, of any land, town or city lot, at any sale of lands or lots for taxes or special assessments, due either to the State or any county, or incorporated town or city within the same, or at any sale for taxes or levies authorized by the laws of this State, shall be entitled to a deed for the lands or lots so purchased, until the following conditions have been complied with, to-wit: Such purchaser or assignee shall serve, or cause to be served, a written or printed, or partly written and printed, notice of such purchase on every person in actual possession or occupancy of such land or lot, and also the person in whose name the same was taxed or specially assessed, if upon diligent inquiry he can be found in the county. ”

The tax deed to Portia Gage is under a sale made in A. D. 1869, for the taxes due for the year A. D. 1868. The property was then owned by and assessed in the name of Reid & Sherwin, a firm composed of John Reid and Joseph Slier-win. Cecilia Reicl testified, that her father, James Sherwin, .and her mother, Mary Sherwin, resided on this property, •continuously, for a period of twenty-five years, up to and next preceding the death of her father, which occurred in August, 1879,—they were in possession in 1868, and never left there. No one contradicts this testimony. The only evidence of the ■service of notice prior to the making of this deed, is in the .affidavit of U. George Taylor, who testifies that he served a notice on Reid & Sherwin on the first day of April, A. D. 1871, by handing the same to Joseph Sherwin, one of the ■firm, etc.' This was not even good service as to Reid, and there can he no pretence that it was any service as to James 'Sherwin and Mary Sherwin. The deed to Portia Gage, therefore, was clearly made in violation of the constitution and •of the statute, and was colorable, only, and therefore voidable.

The tax deed to Asahel Gage, dated August 30, A. D. 1878, is one on a sale made in A. D. 1875, for the taxes due in A. D. 1874. The record shows that John Reid died intestate •on the 9th day of May, A. D. 1873, seized in fee of the undivided one-half of the property, leaving surviving him Cecilia Reid, his widow, and Joseph J. Reid and Annie M. Reid, his -children and only heirs at law; and that Cecilia Reid, Joseph •J. Reid and Annie M. Reid, resided together in a house upon this property, and were in the actual occupancy of the prop■erty from the time the sale was made until the deed was made. The only evidence of the service of notice prior to the making of this deed, is in affidavits showing service of •such notice upon Mary Sherwin, James Sherwin, D. O’Hara, •Joseph Sherwin and Asahel Gage: There is no evidence of service of notice upon Cecilia Reid, Annie M. Reid or Joseph -J. Reid, nor upon John J. Hawley, one of the persons in whose name the property was assessed. This deed, therefore, was also made in violation of the constitution and of 4he statute, and was colorable and voidable.

The fax deed to Asahel Gage, dated January 16, A. D-1884, is under a sale made on the 11th of October, A. D. 1878, a little more than five years and three months intervening. It was then, and still is, provided by section 225 of the Revenue act, in force July 1, 1874, (Rev. Stat. 1874, p. 895): “Unless the holder of the certificate for real estate-purchased at any tax sale under this act, takes out the deed as entitled by law, and files the same for record, within one-year from and after the time for redemption expires, the said certificate or deed, and the sale on which it is based, shall, from and after the expiration of such one year, be absolutely null. If the holder of such certificate shall be prevented, from obtaining such deed, by injunction or order of any court, or by the refusal of the clerk to execute the same, the-time he is so prevented shall be excluded from the computation of such time. ” The excuse for non-compliance with this section is, that the clerk, by mistake, made a deed in apt time to one Henry H. Gage, and that this deed was made-to correct that mistake. The evidence shows that the certificate upon which the deed to Henry H. Gage was made, was formally assigned, in blank, by Asahel Gage; that the deed was made upon the application of Henry H. Gage, and the evidence fails to show that the clerk made any mistake in making the deed to Henry H. Gage. But if there was a mistake made by the clerk, Gage had notice of it upon receipt, of the deed, and in ample time to have the mistake corrected within the year. There is no pretence that Gage was prevented from obtaining his deed within the year, by the refusal of the clerk, either actually or constructively, and we are not authorized to extend the exceptions to others than those enumerated in the section.

It follows, that we entirely concur with the ruling of the circuit court in regard to the tax deeds. Other objections than those we have considered, were urged to these deeds, but as to-them we express no opinion, deeming it unnecessary to do so-

Second—It is claimed, under this point, that the evidence shows that the title of the complainants has passed to Gage, by virtue of a sheriff’s sale and deed, since the suit has been pending. Nothing of this kind is disclosed by the pleadings, and the evidence is pertinent to no issue under the pleadings. If it was desired to avail of this defence, it should have been brought forward by plea.

Third—It is enough to say that the clause in the decree objected to does appellant no harm. It gives him an additional security for the payment of the amount due him. If the other side do not object to this,—and they have urged no objection here,—he can not do so. No rule is better established than that a party can not assign for error that which does him no injury.

The decree is affirmed. Secre6 affirmed.


author: Mr. Justice Craig

text:
    The Chicago, Rock Island and Pacific Railroad Company v. Thomas Lonergan.

      Filed at Ottawa May 15, 1886.

    1. Negligence—master and servant—risks of the service assumed by the latter—presumption of knowledge. A person who engages in the service of a railroad company in the running of its trains, is presumed to do-so with a knowledge of the dangers incident to such service, and he assumes the risks of its ordinary hazards.
    2. Same—duty of master in providing safe machinery. An employer is not bound to furnish for his workmen the safest machinery, nor to provide the best methods for its operation, in order to save himself from responsibility for accidents resulting from its use. If the machinery be of an ordinary character, and such as can, with reasonable care, be used without danger to the employe, it is all that can be required from the employer.
    3. So a railway company is not bound to furnish absolutely safe machinery for its employes. The machinery and other devices furnished the employe in operating the road, are not required to be the best, or of the most approved kind, or to be absolutely safe. It is sufficient if the same are reasonably safe. ^ the company has reasonably safe machinery and appliances, it will not be required to discard the same and adopt or apply a new invention which is yet .-an experiment, and but partially adopted by other companies.
    4. Same—of an instruction—misleading as to character of appliances ■required. Where the only negligence charged against a railway company was, that in constructing a turn-out or switch it failed to block the joints thereof, •and the evidence was directed to the proof of that ¿barge, the court instructed the jury that the law required a railway company to use reasonable and ordinary care and diligence in providing and maintaining reasonably safe structures, tracks, side-tracks, switches, turn-outs, etc., and that if it failed to do •so, and an injury happened in consequence of the failure, to the plaintiff, while -he was in the exercise of due and reasonable care, the defendant would be liable: Held, that while the instruction announced a correct abstract proposition of law', it was, z under the facts of the case, calculated to mislead, and was erroneous, as leading the jury to believe the defendant was required to use blocks in its switches and turn-outs.
    5. Same—of an instruction—as determining what amounts to negligence. In an action by a servant of a railway company to recover for a personal injury alleged to have resulted from an omission of the company to block the joints of a turn-out, the court instructed the jury that the plaintiff might recover damages for any permanent injury sustained by him, if shown, "by the evidence, “from the acts complained of, in this case:” Held, that as the only act complained of was the omission to block the joints of the turnout, it was not the province of the court to say that such omission was wrongful, or amounted to actionable negligence, and the instruction was misleading.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of JPeoria county; the Hon. N. M. Laws, Judge," presiding.
    Mr. Thos. F. Withrow, Mr. James C. Hutchins, and Messrs. Wells & Keith, for the appellant:
    Whether any facts have been established from which negligence can be reasonably and legitimately inferred, is a question of law for the court. Randall v. Railroad Co. 109 U. S. 478; Railway Co. v. Jackson, 3 App. Cas. 193; Amos v. Sinnott, 4 Scam. 447; Teft v. Ashbaugh, 13 Ill. 603; Poleman v. Johnson, 84 id. 270; Philips v. Dickerson, 85 id. 11; Simmons v. Railroad Co. 110 id. 346; Frazer v. Howe, 106 id. 563; Bent v. Pardon, 107 id. 196; Goodrich v. Lincoln, 93 id. 360; Railway Co. v. Lewis, 109 id. 128.

      Instructions must be based on the evidence, and when given they virtually tell the jury that there is evidence upon which to base them; and if it further appears that they are unwarranted by the evidence, it is manifest error to give them. Railway Co. v. Miller, 76 Ill. 464; Railway Co. v. Robinson, 106 id. 142; Railway Co. v. Lewis, 109 id. 129.
    Under the law, the undisputed facts utterly failed to establish a cause of action, and the submission of the question of negligence by plaintiff’s first instruction was manifest error.
    The employe assumes the risks and ordinary hazards of the service. Hayden v. Manufacturing Co. 29 Conn. 548; Ladd v. Railroad Co. 119 Mass. 412; Wonder v. Railroad Co. 32 Md. 417.
    .The question is not whether the master might have provided better machinery, but whether the machinery employed was suitable and proper for the business. Wood on Master and Servant, see. 692; Pennsylvania Co. v. Lynch, 90 Ill. 333.
    The master is not liable because he may not have provided the safest machinery. Maginnis v. Bridge Co. 49 Mich. 466; Railway Co. v. Few, 15 Bradw. 125 ; Railway Co. v. Smithson, 1 Am. and Eng. Ry. Cases, 101 ; Smith v. Railway Co. 69 Mo. 32; Randall v. Railroad Co. 109 U. S. 478; Payne v. Reese, 100 Pa. St. 301.
    The plaintiff’s first instruction is also erroneous, for the reason that it is not confined to the negligence charged in the declaration. Railroad Co. v. Robinson, 106 Ill. 142; Manufacturing Co. v. Ballou, 71 id. 419; Railway Co. v. Jones, 76 id. 311.
    Plaintiff’s second instruction is erroneous because it cumulates the same elements of plaintiff’s damages, and second, because it assumes that the “acts complained of in this case” are wrongful. Railway Co. v. Carey, 90 Ill. 514; Small v. Brainard, 49 id. 355; American Ins. Co. v. Crawford, 89 id. 64; Barullett v. Bellgard, 71 id. 282; Chambers v. People, 105 id. 410.

      Messrs. Wilson & Baum, and Messrs. Putebbaugh & Puterbaugh, for the appellee:
    A railway company should provide and maintain reasonably safe structures, tracks, side-tracks, switches and turnouts, and other appliances required for the reasonable safety of those in its employ; and if it fails to do so, and in consequence of such failure an injury happens to one of its employes, when in the line of his employment as such, and while in the exercise of due and reasonable care and caution, the company will be liable. Railroad Co. v. Taylor, 69 Ill. 461; Railroad Co. v. Welch, 52 id. 183; Railroad Co. v. Swett, 45 id. 197; Railroad Co. v. Shannon, 43 id. 338; Richardson v. Cooper, 88 id. 270.
    A railway company, as regards its employes, must use all ordinary care and supervision to keep its railroad in a good and safe condition; and if its agents, charged with the duty of inspecting and repairing the track, have notice of defects in it, or by reasonable care and diligence could have learned them, and omit to make repairs, in consequence of which an employe is injured while he himself is using reasonable care and prudence, then there is a want of such care on the part of the company as the law requires, and the company is liable for such injuries. Lecke v. Railroad Co. 49 Iowa, 109; Railroad Co. v. Fitzpatrick, 31 Ohio, 479 ; Railroad Co. v. Russell, 91 Ill. 298; Railroad Co. v. Estes, 96 id. 470; Railroad Co. v. Rung, 104 id. 641; Cooley on Torts, 556, 557.
    An employe of a railroad company assisting in running its trains is not bound to know or inquire wdiether the road has been safely and properly constructed. There is an implied undertaking on the part of the company, with its employes, that all that can reasonably be done to render the road safe has been done. Railroad Co. v. Swett, 45 Ill. 197; Railroad Co. v. Hogar, 11 Bradw. 498; Railroad Co. v. Russell, 91 Ill. 298.

      What is or is not negligence in a particular case is a question of fact, to be determined by the jury; and it is equally as well settled that a question of comparative negligence is as clearly within its province. Railroad Co. v. Bonifield, 104 Ill. 224; Railway Co. v. Elliott, 98 id. 481; Railroad Co. v. Zoffinger, 10 Bradw. 252; Railroad Co. v. Klauber, 9 id. 613; Railroad Co. v. Clark, 11 id. 104.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action on the case, brought by Thomas Lonergan, against the Chicago, Bock Island and Pacific Bailway Company, to recover for an injury received on the 18th day of December, 1883, resulting in the loss of an arm. The declaration contains but one count, in which it is averred that the defendant owned and operated a railroad from Chicago to Bock Island, through the village of Bureau Junction, and also a branch from Bureau Junction to Peoria; that on the 18th day of December, 1883, plaintiff was in the employ of the defendant as a brakeman on freight trains, and at way stations, such as Bureau Junction, to assist in switching, coupling and uncoupling cars, and that while so employed it was the duty of the defendant, to enable engines and cars at said Bureau Junction to pass from one track to another, to provide a safe turn-out, and properly block the joints thereof, so as to enable plaintiff, and others employed in like service, to perform the same with reasonable safety, yet the defendant, not regarding, etc., did not use proper care and skill in constructing its turn-out at said Bureau Junction from its main line to said branch railroad, and neglected to properly block the joints thereof; and the plaintiff avers that at the date above mentioned, at said Bureau Junction, while the plaintiff was engaged in coupling or uncoupling cars, and was using due care and caution, and without notice of the defective manner in which said turn-out had been constructed, and the dangerous way in which the joints had been left, and of which the defendant had due notice, the foot of the plantiif became fastened in the joint of said turn-out, when a car of the defendant then in motion threw him upon the track of the railroad, and the wheels of a car of the defendant passed over his left arm, crushing the same so that it had to be-amputated, and the plaintiff was thereby greatly hurt, bruised, and became lame and disordered, and so remained hitherto, during all which he suffered great pain, etc.

It will be observed, that the only negligence upon which the plaintiff bases his right of recovery against the railroad company is, that the switch at Bureau Junction, in which plaintiff’s foot was caught, was unblocked.

It will only be necessary to look at the evidence introduced on the trial, for the purpose of determining whether the instructions given for the plaintiff presented the law to the jury, which should govern the ease as made by the testimony.

The evidence introduced in regard to the use of blocks on switches is not voluminous. The first witness called upon this question was the general agent of the Chicago, Burlington and Quincy railroad, at Peoria. He testified that the-frogs, and parts of tracks where one track diverges from another, are nearly all blocked in the company’s yard in Peoria. Blocks have been in a year, or a year and a half. The same is the case on the Burlington road, in Galesburg- and Burlington. Many of the guards and frogs of the Peoria, and Pekin Union are blocked in Peoria. The witness stated, that he had been at Peoria three years, and no one had been injured on a switch, either before or after the blocks were put-in. On cross-examination the witness testified that the Burlington road has four thousand miles of road, and he don’t-know whether the blocks add to the safety of the men operating the road or not. Alva Brewer, a switchman on the Peoria and Pekin Union, testified that, with few exceptions, that company in Peoria has its switches blocked. They are put. in to keep any one from being caught. There is danger when they are not blocked, if a man would get his foot caught, and. the cars were moving towards him. By having blocks put in it would be pretty hard for a man to get his foot below the ball of the rail. He also stated that the only other road he ever saw use blocks was the Burlington; that was a different block. His acquaintance with blocking is limited to Peoria and Galesburg. T. B. Burnett, superintendent of the Peoria and Pekin Union railroad, testified that he was using Holt’s-patent block; there are other appliances; he has tried filling in between the rails with cinders ; that is used on the Wabash; something of this kind is used on many different roads,—not universally; the blocking is to keep men from catching their feet between the rails; there is no absolute safety; it is morn safe than without them; the necessity for something for a foot-guard is known and recognized; as to the practice of using blocks could not say; it is not universal; not half the roads use them; the Hart patent block was first recommended to witness by the defendant; the defendant owns this-patent, and uses it on its road. James Eedman testified that the tracks of the defendant were blocked in Peoria. S. L. Cunningham, yardmaster for the Burlington road, testified that the Burlington road used oak blocks sawed to fit the rail or switch. The idea was to keep the men from getting their feet in the frogs. The Peoria and Pekin Union uses blocks, but of a different kind. On cross-examination, he stated the blocks were an experiment, and are yet. The evidence also shows that no blocking was used by the defendant at Bureau Junction.

The foregoing is the substance of the evidence introduced in regard to blocking frogs and switches, and upon the evidence thus presented the court gave for the plaintiff an instruction, as follows:'

“You are instructed by the court, on the part of the plaintiff, that the law requires a railroad company to use reasonable and ordinai-y care and diligence in providing and maintaining reasonably safe structures, tracks, side-tracks, switches, turnouts, and other appliances required for the reasonable safety of its employes; and if it fails to do so, and in consequence of such failure on its part an injury happened to one of its employes or servants, when in the line of his employment, as such servant, and while in the exercise of due and reasonable care and caution, then, in such ease, the railroad company would be liable for the injury or injuries thus received. ”

As an abstract proposition of law, it is not claimed that this instruction is incorrect, but it is contended, that, under the pleadings and evidence in this case, the instruction was improper, and that it could do no less than mislead the jury. The running of trains on a railroad is a dangerous service, and the employes of a railroad company engaged in that service are subject to many hazards which are not incident to other departments of labor. An employe who engages in the service of a railroad company in the running of its trains, is presumed to do so with a knowledge of the dangers incident to such service, and he assumes the risks of its ordinary hazards. An employer is not bound to furnish for his workmen the safest machinery, nor to provide the best methods for its operation, in order to save himself from responsibility from accidents resulting from its use. If the machinery be of an ordinary character, and such as can, with reasonable care, be used without danger to the employe, it is all that can be required from the employer. (Payne v. Reese, 100 Pa. St. 306.) It is also a well settled proposition in this and in the courts of other States, that a railroad company is not bound to furnish absolutely safe machinery for its employes. The law imposes upon the company the obligation to use reasonable and ordinary care and diligence in providing suitable and safe machinery, tracks and switches, engines, etc., for the use of those engaged in its service. The machinery and other devices furnished the employe in operating the road, are not required to be the best, or of the most improved kind, or to be absolutely safe. It is sufficient if the same are reasonably safe. Camp Point Manf. Co. v. Ballou, 71 Ill. 418; Simmons v. Chicago and Tomah Railroad Co. 110 id. 340.

The rule on this subject is stated in Lake Shore and Michigan Southern Railroad Co. v. McCormick, 74 Ind. 447, as follows : “The master’s obligation is not to supply the servant with absolutely safe machinery, or with any particular kind •of machinery, but his obligation is to use ordinary and reasonable care not to subject the servant to extraordinary and unreasonable danger. When a master employs a servant to do a particular kind of work with particular kind of implements and machinery, the master does not agree that the implements and machinery are free from danger in their use, but he agrees that such implements and machinery to be used by such servant are sound, and fit for the purpose intended, so far as ordinary care and prudence can discover; * * * 'and the servant agrees that he will use such implements with care and prudence. If, under such° circumstances, harm or injury comes to the servant, it must be ranked among the accidents the risk of which the servant must be deemed to have assumed when he entered into such service. * * * Neither companies nor individuals are bound, as between themselves and their servants, to discard and throw away their implements or machinery upon the discovery of every new invention which may be thought or claimed to be better than those they have in use; but if they take ordinary care and exercise ordinary prudence to keep their implements or machinery in sound repair, so that harm does not result to the servant for want of such sound condition of the implements or machinery used, then such individuals or companies will not be responsible to servants for any injury which may occur to them in the use of such implements and machinery. ” See, also, McGinnis v. Canada Southern Bridge Co. 49 Mich. 466; Smith v. St. Louis, Kansas City and Northern Railway Co. 69 Mo. 32.

Keeping in view the principles of law above announced, which should control the responsibility of employer to ploye, and the relation existing between them, it is quite-apparent that the instruction complained of was calculated to mislead the jury in their deliberations upon the evidence. It will be "observed, that the only negligence charged in the declaration is, that the defendant, in constructing its turn-out or switch, had failed to block the joints thereof, and the purpose of the evidence introduced by the plaintiff in reference-to the use of blocks was to prove this averment of the declaration. When, therefore, the court instructed the jury, for the plaintiff, that the law requires a railroad company to use reasonable and ordinary care and diligence in providing and. maintaining reasonably safe structures, tracks, side-tracks, switches, turn-outs, etc., and if it fails to do so, and an injury happens in consequence thereof, to an employe in the exercise of due and reasonable care, then the railroad company would be liable, the jury must have understood, from the instruction, that the railroad company was absolutely required to-use blocks on its switches and turn-outs. There was no other-negligence charged in the declaration to which this instruction could refer. Had it been proven that an unblocked switch or turn-out was unsuitable or unsafe, or that defendant had not used proper care and skill in constructing its turn-out- or switch at Bureau Junction, a different question might be-presented; but such was not the case. It is apparent, from, the evidence, that unblocked switches have been in use on the various railroads, all over the country, for years, and it is a fair inference, from the evidence, that the blocking of of switches is yet but an experiment. The invention is yet in its infancy. At all events, the utmost that can be claimed for the new appliance is, that where blocks are used it may he safer for the employe than where the switch is constructed according to the old plan. Conceding this to be true, as we have seen from the authorities cited, the failure to use the new device does not render the company liable. It must appear, before the defendant can be held liable, that the switch or turn-out, as constructed and used, was not reasonably safe, or that it was not constructed with the usual care and skill. An employer is not required to change his machinery in order to apply or adopt every new invention. (Wharton on Negligence, sec. 213.) The fact that a few of the railroads of the country have adopted this new device, or that the defendant has used it on a part of its road, is not enough to establish its utility, and establish negligence in every other road that adheres to the old system. The old system of constructing switches must be condemned. It must appear that unblocked switches are unfit for the purpose for which they are constructed. It is not enough to prove that in the opinions of witnesses blocked switches are safer for the employe, as the law does not require the employer to furnish absolutely safe machinery or the most approved pattern. He is only required to furnish that which is shown to be reasonably safe and proper for the purpose for which it is constructed. Under the facts, as established by the evidence, we think the instruction was calculated to mislead the jury.

The second instruction given was also calculated to mislead. By it the jury were told, plaintiff might recover damages for any permanent injury sustained by him, if they found, from the evidence, that the plaintiff has sustained permanent injury from the acts complained of in this case. What acts were complained of? Only the omission to block the joints of the turn-out, and clearly it was not the province of the court to tell the jury that omission was a wrongful act. If the jury understood the instruction in that way, as they might well do, it was obviously prejudicial to defendant, aiid the giving of it was error.

The judgment of the Appellate and circuit courts must be reversed, and the cause remanded.

Judgment reversed.

Mulket, C. J., Shops and Magruder, JJ.: We do not concur in the opinion in this case.


author: Mr. Justice Sheldon

text:
    The People ex rel. Josiah T. Little, Collector, v. Trustees of Schools.

      Filed at Ottawa May 15, 1886.

      Taxation—special assessments—school land exempt. School property or school lands held in trust for school purposes are exempt from special assessments, as well as from general taxation.
    Appeal from the County Court of Lee county; the Hon. Bichard G. Farrand, Judge, presiding.
    Mr. F. E. Andrews, for the appellant:
    This court has uniformly held that exemption from taxation does not exempt from special assessments. McLean County v. Bloomington, 106 Ill. 213; Trustees v. Chicago, 12 id. 403; Higgins v. Chicago, 18 id. 276; Chicago v. Colby, 20 id. 614; Peoria v. Kidder, 26 id. 352; Wright v. Chicago, 46 id. 44; Nix v. Post, 57 id. 121.
    General language, like that under which the drainage district is proceeding, includes the property of counties, cities, etc., as well as private property. Higgins v. Chicago, supra; Scammon v. Chicago, 42 Ill. 192; Cook County v. Chicago, 103 id. 646; McLean County v. Bloomington, 106 id. 214.

      Mr. A. C. Bardwell, for the appellees:
    School property, being held in trust for school purposes, is not subject to taxation or special assessments. Chicago v. People, 80 Ill. 384; Fagan v. Chicago, 84 id. 236.
    As against the right to hold school lands subject to special assessments, it may be successfully urged—
    First—The power is not delegated to any officer or municipal body, directly or indirectly, to improve or expend money on the school section. It is held simply as a means from which to establish a fund by sale and rental.
    Second—To require the trustees to pay this assessment would be to compel them to invest school money in improvements, which is entirely beyond their powers.
    Third—If the section can not be improved directly by the trustees, (the only corporate authority having any control over it,) how can any other corporate body make improvements and compel the trustees to pay for them, thus forcing the trustees to do indirectly what they have no power to do directly ?
    Fourth—-The land can not be sold to pay the assessment. (106 111. 215.) The trustees have no power to levy a tax for any purpose, and there is no fund under their control from which the required sum can be paid.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an application by the county collector 'of Lee county, in this State, for judgment, in the county court, against section 16, in township 19, range 8, in Lee county, for a special drainage assessment claimed to be due thereon, and delinquent. The trustees of schools in said township-appeared, and filed various objections to the rendition of judgment, all of which the county court overruled, except the first, which it sustained, and refused judgment, and the-collector appeals to this court.

The objection which the court sustained to the assessment was, that this section 16 was school land, and therefore exempt from the special assessment. As in County of McLean v. City of Bloomington, 106 Ill. 209, this court, agreeably with its former rulings, held that the court house square of the county of McLean was subject to a special assessment for the improvement of adjacent streets in Bloomington, it is contended that upon the principle of that decision, school land section 16 should be subject to special assessment. Such ■school land stands upon a different ground than other public property of the State or municipalities.

By the sixth section of the act of Congress enabling the People of Illinois to form a State constitution, it was enacted that “the section numbered 16, in every township, * . * * shall be granted to the State for the use of the inhabitants of such township, for the use of schools.” Article 8, section 2, of the constitution of 1870, provides that “all land, moneys, or other property donated, granted or received for school, college, seminary or university purposes, and the proceeds thereof, shall be faithfully applied to the objects for which such gifts or grants were made. ”

From the above, this court, in City of Chicago v. The People, 80 Ill. 384, deduced the conclusion that this property, school section 16, could not be subjected to taxation by the General Assembly. This was not put upon the ground of any direct exemption, otherwise, of such property from taxation, but upon the use for which the property was granted, and the constitutional provision that the land granted for school purposes should be faithfully applied to the objects for which the grant was made; that this prohibited the legislature from directly appropriating this property to State or municipal purposes, and it could not do so by the indirect means of taxation; that so much as would be taken from the fund by taxation, would be an unconstitutional perversion of the fund to that extent. It was said, the State was the real owner of the fund, to be held in trust for the purposes of the grant. ‘This same reason, which would exempt the property from taxation, must be held to exempt it from special assessment. The fund would be liable to be misappropriated in the latter mode, as well as in the former. It does not meet the objection to a special assessment to say, that it takes nothing from the property, and the assessment is only to the extent of the benefit conferred upon it by the improvement. This may be so in theory, but not in certainty. The property should be held sacred for the use to which it has been appropriated. It may be sold, or it may be rented for school purposes, but no authority of law is conferred upon any one to improve it. It should not be exposed to the danger of being improved ■away, by being made to pay for supposed benefits conferred upon it by improvements.

It is said the purpose is not to have sale made of the land to pay the assessment, but to obtain judgment, which may be paid out of any moneys unappropriated, of the township,, •or there may be the remedy by mandamus, requiring the board of trustees to levy a tax for the payment of the judgment. But any payment so to be obtained would come from school moneys, and there would be equally involved a perversion of the school fund as if the property itself should be sold to •satisfy the judgment.

We are of opinion this school property should be held •exempt from the special assessment, and the judgment of the county court will be affirmed.

Judgment affirmed.


author: Mr. Justice Cbaig

text:
    Artemas D. Watson et al. v. Eda Watson.

      Filed at Ottawa May 15, 1886.

      ■ I. Setting aside a deed—as having been procured by fraud—impeaching certificate of acknowledgment. As between the immediate parties to a deed, the certificate of the acknowledgment of the officer may be impeached for fraud, collusion or imposition, but the evidence to produce that result must fully and clearly satisfy the court that the certificate of the officer is false and fraudulent.
    2. Where there is nothing to impeach the certificate of the officer before whom a deed is acknowledged, except the unsupported testimony of one of two grantors, which is contradicted by the other grantor, the deed will not be set aside as having been executed and acknowledged in ignorance of what the instrument was.
    3. In this case, the complainant sought to set aside a deed, executed by her and her husband, of his land, to his mother, on the ground of fraud and , misrepresentations of her husband, the complainant claiming that she never-read the same, and that her husband told her it was only a paper to file in. the probate court, to settle up his father’s estate. The certificate of acknowledgment was in the form required by law, and the husband testified that his-wife was informed and knew what the deed contained when she executed and acknowledged it, and denied her statements imputing fraud to him: Held? that the evidence did not justify the decree rendered, setting aside the deed, and it was reversed, and the cause remanded, with direction to dismiss the bill.
    Appeal from the Circuit Court of Cook county; the Hon-Thomas A. Moran, Judge, presiding.
    Mr. H. C. Miller, and Mr. George L. Paddock, for the-appellants:
    The conveyance can not he set aside on the ground it was voluntary and for a nominal consideration, for although voluntary conveyances are or may be void as to certain creditors, they are perfect and effectual as between the parties, and can not be set aside by the grantor if he should become dissatisfied with the transaction. 1 Story’s Eq." Jur. sec. 371.

      Where the grantee is not a party to the fraud, it must appear that the grantor seeking such relief was not guilty of any negligence, but used reasonable diligence to prevent being imposed on. Spurgeon v. Traub, 65 Ill. 170.
    When one can read he must inform himself of the contents of an instrument before signing it, or suffer the consequences. Fulford v. Block, 8 Bradw. 284; Strong v. Livingston, id. 436; Manufacturing Co. v. Long, id. 463.
    A person signing an instrument must exercise ordinary diligence, or else he can not impeach the instrument on the ground of fraud and circumvention. Holmes v. Hale, 71 Ill. 552; Swanell v. Watson, id. 456; Leach v. Nichol, 55 id. 273 ; Tuck v. Downing, 76 id. 71.
    To impeach the certificate of the notary that appellee “signed, sealed and delivered said deed as her free and voluntary act, for the uses and purposes therein set forth, ” the testimony should be very complete and reliable. The evidence should do more than produce a mere preponderance against its integrity in the balancing of probabilities. McPherson v. Sanburn, 88 Ill. 150; Crane v. Crane, 81 id. 165; Fitzgerald v. Fitzgerald, 100 id. 385.
    Whilst the making of a false certificate is a fraud upon the party against whom it is perpetrated, yet the mere evidence of the party purporting to have made the acknowledgment can not overcome the officer’s certificate, nor will evidence slightly corroborated overcome it. Russell v. Theological Union, 73 Ill. 337; Blackman v. Hawks, 89 id. 513; Marsten v. Brittenham, 75 id. 611; Lickmon v. Harding, 65 id. 505.
    The certificate of the acknowledgment of a deed imports verity, and can not be overcome except by clear and satisfactory evidence. The evidence of the grantor, and the opinions of experts that the signature thereto is not that of the grantor, are not sufficient. Tunison v. Chamblin, 88 Ill. 378; Heacock v. Lubuke, 107 id. 402; Canal and Dock Co. v. Russell, 68 id. 430; Kerr v. Russell, 69 id. 666.

      Mr. A. VanBuben, and Mr. John Olney, for the appellee:
    The appeal should be dismissed for want of jurisdiction, a freehold not being involved. Railroad Co. v. Watson, 105 Ill. 22; Sawyer v. Moyer, 105 id. 192; 104 id. 337; Pinneo v. Knox, 100 id. 471; Clement v. Keitz, 103 id. 315.
    As to appellants’ first point, we do not ask to set the deed aside, because it was voluntary.
    We do not take issue as to the authorities referred to in support of the second point. They are not applicable.
    In the cases referred to under the third point, the acknowledgment was denied, and have no application.
   Mr. Justice Cbaig

delivered the opinion of the Court:

This was a bill brought by Bda Watson, to set aside a deed executed by her, and her husband, Artemus D. Watson, on the 9th day of May, 1884, in which they conveyed certain property in Chicago, to Catharine Watson, on the ground that the complainant was induced to execute the instrument by the misrepresentations of her husband. It is also alleged in the bill, that complainant had an estate of homestead in the property. The cause was heard upon bill, answer, replication and proofs, and a decree rendered in favor of complainant, to reverse which the defendants appealed.

The property involved was inherited by Artemus D. Watson from his father, it being the homestead of the latter, and was conveyed to the widow of the deceased husband. Artemus D. Watson, as appears from the evidence, was married to complainant on the 14th day of February, 1884, and soon after the marriage they took up their residence on the property with the mother. About one month after the marriage the wife became enciente, and some evidence was introduced by complainant tending to prove that the husband and mother-in-law procured medicine for the wife, for the purpose of producing an abortion. This, however, is denied by the defondants; but whatever may be the fact in regard to this matter, such evidence has no bearing on the question involved. There was also evidence that the complainant and her mother-in-law did not get along altogether harmoniously, and that this led to a “spat, ” as they term it, occasionally, between the complainant and her husband; but this character of evidence has but little to do with the validity or invalidity of the deed. The deed was in the usual form, and was executed by the complainant, and acknowledged before a notary public in Cook county. The certificate of the officer attached to the deed is in form required by the statute. In it he certifies, under his official seal, that the complainant appeared before him and acknowledged that she signed, sealed and delivered the said instrument as her free and voluntary act, for the uses and purposes therein set forth. The only direct evidence offered, on the hearing, to impeach the certificate of the officer before whom the deed was acknowledged, was that of the complainant herself, who, in substance, testified, that she did not read the deed, nor was it read to her; that her husband informed her that it was a paper to be filed in the probate court to settle up his father’s estate; that she did not know what the paper was when she executed it; that she relied upon the statement of her husband. This version of the transaction is contradicted by the husband, who, in substance, testified that he wrote the deed, at his home, on the Sth day of May, and asked complainant if she would go down town in the morning to sign a deed conveying the Polk street property to his mother. She replied that she would let him know in the morning. The next morning the request was renewed, and the two went down to the office of the notary, and the deed was there signed and acknowledged. He also testified that on the road to the notary’s office he informed his wife that a few months after his father’s death he had made an agreement with his mother to convey the property to her. The witness also denied the statement made by his wife, that the instrument executed was represented to be a paper to be used in closing up his father’s estate. The evidence of the husband is a direct contradiction of that of the complainant as to the execution of the deed.

The record before us presents the question whether a deed can be impeached upon the testimony, alone, of one of the grantors, the certificate of the officer and the testimony of the other grantor showing that the deed was executed and acknowledged in due form. As between the immediate parties to a deed, the certificate of acknowledgment of the officer may be impeached for fraud, collusion or imposition, but the evidence to produce that result, as has often been held by this court, must fully and clearly satisfy the court that the certificate of the officer is false and fraudulent. In Lickmon v. Harding, 65 Ill. 505, w'e held, that in the absence of proof of fraud and collusion on the part of the officer who took the acknowledgment, the officer’s certificate, in proper form, must prevail over the unsupported testimony of the party grantor that the same was false and forged. See, also, Fitzgerald v. Fitzgerald, 100 Ill. 386, where the same doctrine is announced.

Under the rule announced, it is plain that the decree can not be sustained. There is nothing in the record to impeach the certificate of the officer before whom the deed was acknowledged, except the unsupported testimony of one of the grantors, and that is contradicted by the evidence of-the other grantor. We are aware of no well considered case holding that a deed may be impeached and set aside on such evidence, and we think it would be establishing a dangerous precedent for any court to lay down a rule of that character. As was said in the case first cited, public policy requires such an act should prevail over the unsupported testimony of an interested party, otherwise there would be but slight security in titles to land. Here, the complainant was nineteen years old, a person of intelligence and culture, and had she used even slight .precaution, and read the deed, which it was her duty to have done, she never could have been imposed upon or deceived in the execution of the deed, and if she was imposed upon, it was her own fault, and she must hear the loss arising, as it does, from her own negligence.

The decree will be reversed, and the cause remanded, with directions to the court below to dismiss the bill.

Decree reversed.


author: Mr. Justice Magruder

text:
    The Maywood Company et al. v. The Village of Maywood et al.

      Filed at Ottawa May 15, 1886.

    1. Dedication to the public&emdash;as to the manner in which it may be made. A dedication may be made to the public by grant or other written instrument, or it may be evidenced bv acts and declarations, without writing. It may be v * 3 O V made by a survey and plat alone, without any declaration, either oral or on the plat, where it is evident, from the face of the plat, that it was the intention of the proprietor to set apart certain grounds for the use of the public. No particular form is required to constitute a dedication. It is purely a question of intention.
    2. Same&emdash;where the legal title may reside&emdash;village not yet incorporated. To constitute a dedication of a block of ground to be used as a public .park, in a village laid out and platted, it is not necessary that the legal title shall pass from the proprietor of the land, nor that the grantee of the use shall he in existence. It is sufficient if the party laying out and platting the ground has assented to the use of the block as a park, and that the inhabitants of the village have actually enjoyed that use in such a way and for.such a time as that the public accommodation and private rights will be materially affected by an interruption of the enjoyment.
    3. Same&emdash;statutory and common law dedication&emdash;distinguished. The difference between a statutory and common law dedication is, that the first vests the legal title in the ground set apart for public purposes, in the municipal corporation, in trust for the public, while the other leaves the legal title in the original owner, charged, however, with the same rights and interests in the public which it would ¿ave if the fee was in the corporation.
    4. Same&emdash;what essential to a valid statutory dedication, under act of 1845&emdash;as to a proper description. Under the statute of 1845, in force in 1870, it is necessary to a valid dedication of ground to the public, by designation on a plat laying out land into streets, blocks and lots, that the size- and dimensions or boundaries of the ground intended for the public use shall be shown upon the plat. If the plat fails to give the dimensions of the streets, and of a public park indicated as a part of a block, it will not be completely valid as a statutory dedication.
    5. Same—of a dedication not good under the statute, but good at common law—of public and private rights thereunder. Where a party laying out a village, and platting the same, makes a dedication of a portion of the land for streets, and also for a public park, which is not good, under the statute, to convey the legal title to the public, but which is good at common law, the legal title of the grounds dedicated will remain in the original proprietor, burdened with the right of the public to use the same, and whatever rights the public or the residents of the village acquired in the dedication, will pass to and become vested in the village, when subsequently incorporated, as the legal representative of the public.
    6. Same—sale of lots by plat—implied covenant to purchasers. If a. land owner lays out a town, making and exhibiting a plat or plan thereof, showing a certain portion set apart for a public park, and other parts for streets, the sale and conveyance of lots according to such plan implies a grant or covenant to the purchasers that the streets and other public places, indicated as such upon the plat', shall be forever open to the use of the public, free from all claim or interference of the proprietor inconsistent with such use.
    7. Same—acceptance by the public—how manifested. Where land in a, village is dedicated to the public by the proprietor, laid out into streets and lots and blocks before the village is incorporated, the acceptance of the dedication by the public is indicated by the actual use of the ground for the purposes intended. If the village is afterward incorporated, its acceptance is shown by its demand of the possession of the ground and for a conveyance-of the title, and its failure to improve the same, after refusal of the original proprietor to yield its control, is not an evidence of non-acceptance.
    8. Same — putting incumbrance upon land after dedication—and of notice of dedication to incumbrancer. After the dedication of a block in a. village, to the public, for a park, and the sale and conveyance of lots on the-faith of such dedication, the original proprietor, though still holding the-legal title to the block dedicated, will not be allowed to divert his trust by mortgaging the property; and if he does mortgage the same to parties having-notice of the public interest therein, a court of equity will set the same aside at the suit of the corporate authorities and lot owners interested.
    9. The recorded plat of a village showed a certain block therein was-marked as a public park, and its use by the public was constant, open and notorious up to the time the original proprietor executed a trust deed thereon to secure certain bonds issued by him: Held, that such user by the public, and the record of the plat, afforded notice of the public rights in the property,, to the holders of the bonds under the trust deed.

      10. Chancery—to prevent the perversion of a public trust—as, in the ease of a public park. Where the original proprietor of land laid out into a village, after a common law dedication of a block in the village for a public park, in violation of the trust under which he holds the legal title, mortgages such block to parties having notice of the public rights therein, a court of equity has jurisdiction of a bill to set aside the mortgage and thereby prevent a threatened perversion of the trust, and nuisance tending to deprive the public of the full and free use of the park.
    11. Parties—to bill to prevent obstruction to use of public park. Residents of an incorporated village may join in a bill with the village, to prevent any obstruction to the use of a public square dedicated for a park, and to-have a mortgage given thereon by the original proprietors, set aside, and to enjoin the mortgagor and the mortgagee from interfering with the free use of the square as a public park.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Messrs. Wilson & Moore, and Mr. William Garnett, for the appellants:
    The Maywood Company never offered to dedicate the premises in question to the public; but if the plat should be construed as an offer to dedicate, it was withdrawn before it was accepted, an acceptance being essential. Littler v. City of Lincoln, 106 Ill. 368; Town of Princeton v. Templeton, 71 id. 71; Baker v. Johnson, 21 Mich. 319; Lee v. Village of Sandy Hill, 40 N. Y. 443; Lee v. Lake, 14 Mich. 18.
    The demurrer to the bill should have been sustained. The bill sets forth no equitable grounds of relief. The action of ejectment was the appropriate remedy to try the title to the square. It is an ejectment bill, and the court had no jurisdiction. Chicago v. Wright, 69 Ill. 322.
    The village, Small and Hubbard could not properly join in the bill, and the demurrer should have been sustained on this ground. Chicago v. Union Building Association, 102 Ill. 379.
    For any obstructions to streets or public grounds, not resulting in special injury to the individuals, the public only can complain. McDonald v. English, 85 Ill. 236; Smith v. Boston, 7 Cush. 254; Castle v. Berkshire, 11 Gray, 26; Brightman v. Fairhaven, 7 id. 271; Paul v. Carver, 24 Pa. St. 207; Brady v. Shinkle, 40 Iowa, 576; Barr v. Oskaloosa, 45 id. 275.
    Mr. Mason B. Loomis, for the appellees:
    As a general rule, where a party has a complete remedy at law, equity will not interfere, but will leave him to seek his rights through his legal remedy. But to this rule there are exceptions, as, where the relief in chancery is more complete and effectual. Morris v. Thomas, 17 Ill. 112; Fraser v. Miller, 16 id. 48; Haworth v. Taylor, 108 id. 276.
    If this was a bill to quiet title or remove a cloud, the point would be well taken; but such is not the ease. Gage v. Parker, 103 Ill. 534; Gage v. Rohrbach, 56 id. 262; Reed v. Tyler, id. 288; Gage v. Chapman, id. 311; Booth v. Wiley, 102 id. 114.
    There is no positive general rule in equity as to what is a inis joinder of parties in any given case. Story’s Eq. Pl. sec. 539; Baird v. Jackson, 98 Ill. 92; 1 Daniell’s Ch. Pr. (4th ed.) 334, 445.
    Where there is an identity of interest in the question involved, and in the relief sought, and the separate injury sustained by each complainant is produced by the same cause or wrongful act, there is no misjoinder. Hickling v. Wilson, 104 Ill. 58; Gage v. Chapman, 56 id. 311.
    It has been held that two or more persons 'having separate and distinct tenements, which are injured or rendered uninhabitable by a common nuisance, or which are rendered less valuable by a private nuisance which is a common injury to the tenements of both, may join in a suit to restrain such nuisance. 1 Daniell’s Ch. Pr. 303, note 3; Murray v. Hay, 1 Barb. Ch. 59; Putnam v. Sweet, 1 Chand. (Wis.) 286.
    Where privileges of a public nature, and yet beneficial to private estates, are secured to the proprietors contiguous to public squares or other places dedicated to public uses, the due enjoyment of them will be protected against encroachments, by injunctions. 2 Story’s Eq. Jur. sec. 927; Hills v. Miller, 3 Paige, 254; Corning v. Loweron, 6 Johns. Ch. 439.
    The erection of a private building upon land reserved for a public square, and which has been illegally sold by the public authorities, is a nuisance of such irreparable nature as to give a court jurisdiction to grant a perpetual injunction. Commonwealth v. Rush, 14 Pa. St. 186; 2 Story’s Eq. Jur. sec. 926 a.
    The corporate authorities of a town or village are proper parties to enjoin a public nuisance, and private persons especially injured by a nuisance of such a nature may join with the corporate authorities in filing the bill. High on Injunctions, sec. 755; Trustees v. Cowen, 4 Paige, 510; Cincinnati v. White’s Lessees, 6 Pet. 431; Attorney General v. Blount, 4 Hawk. (N. C.) 384; Jacksonville v. Railway Co. 67 Ill. 544; Zearing v. Raber, 74 id. 413.
    A dedication may be made by grant or written instrument. It may be evidenced by acts and declarations without writing, no particular form being required to establish its validity, it being purely a question of intention. Godfrey v. City of Alton, 12 Ill. 30; Marcy v. Taylor, 19 id. 634; Waugh v. Leech, 28 id. 488; Warren v. Jacksonville, 15 id. 236; Dimon v. People, 17 id. 422; Smith v. Town of Flora, 64 id. 93.
    If the owners of land agree upon a place, and make a survey and lay off ground for public use, and make sales in reference thereto, it amounts to a dedication of such ground to the public. A map is not essential to the validity of the dedication. Godfrey v. City of Alton, supra; Canal Trustees v. Haven, 11 Ill. 554; Gridley v. Hopkins, 84 id. 528.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is a bill, brought, in the Superior Court of Cook county, by appellees against appellants, for the purpose of having a certain square in said village, known as block 58, (except eertain hotel grounds in the north-west corner thereof) declared to be a public park; and praying, that appellant company-surrender the control and management thereof to the trustees, of said village, and that a trust deed, executed thereon by the company to Botsford, trustee, be set aside, and that appellants be enjoined from interfering with the use of said square, as a public park, by the said village and its residents and lot owners, and from selling or conveying the same, or" taking any steps to foreclose the trust deed thereon, etc. The-beneficiaries in the trust deed were made parties, under the-name of “Unknown Owners. ”

The record discloses such facts, as must be held to have •constituted a common law dedication of the square in question, by the Maywood Company, to the public, for the purposes of a “park.3’

By “An act to incorporate the Maywood Company, ” passed by the legislature on April 6, 1869, certain persons were-“constituted a body politic and corporate, by the name of the Maywood Company, for the purpose of purchasing land in the township of Proviso, in Cook county, and improving the same as. a suburban village, by shade trees, parks, drainage, and buildings of all classes, for educational, religious, residence, manufacturing, mercantile and other purposes, and, by that name, may sue and be sued, etc.; may purchase, hold, lease, mortgage, alienate, sell and convey real and personal estate, and generally have and exercise all the rights and privileges of corporations, for the purpose of improving, benefiting, beautifying and developing the said village of Maywood. ”

In the spring of 1869 the company purchased over five hundred acres in the town of Proviso, and, in that year, issued to the public a printed pamphlet, setting forth the advantages of Maywood, as a place of residence, and announcing, under the heading of “Public Park, ” that the land, afterwards called block 58 and contamine about sixteen acres, would be improved and ornamented as a park, and would be supplied with lakes and bays for boating and skating, with bridges, groves, walks, drives, shrubbery, arbors, swings, grottoes, etc., and other attractions for the public.

In March, 1870, the company made a subdivision or plat of five hundred and sixty acres, entitled “Maywood, ” to which is attached the usual surveyor’s certificate, and to which is also attached a certificate of acknowledgment, showing that it was duly acknowledged by the company on March 8,1870. This plat was recorded in the recorder’s office of Cook county on March 11, 1870. The original plat and the record thereof were destroyed in the great fire of October 9 1871, so that some of the figures, measurements and other details, which were probably shown on the original, do not appear upon the copy, introduced in evidence. But the plat, as shown by the proof in the record, contained blocks numbered from 53 to 265 inclusive, separated and bounded by streets. The names of the streets are given. Upon the face of the plat is shown a certain space or block, marked “58,” upon which are written the words, “Maywood Park.” Block 58 or “Maywood Park” appears from the plat itself to be bounded on the north by the Galena railroad track and First street, on the south by Second street, on the west by Fifth avenue and on the east by First avenue and the Des Plaines river. The name of the square in question and its boundaries are, thus, clearly indicated upon the plat itself. But the width and length of the streets and the dimensions of the blocks are not given.

In 1870, the company issued to the public another printed pamphlet, giving a history of Maywood, in which, under the head of “Inducements to buy and build at Maywood, ” it is; stated, that “the town now * * * has a beautiful park of sixteen acres.” This pamphlet has numerous pictures of different portions of “Maywood Park,” a “View from north shore of lower lake in Maywood Park, ” “View of lower lake in Maywood Park, ” showing boats and swans upon the waters of the lake, and groves and walks along its shores, pictures of the “Music Stand,” the “Well House,” the “Observatory,” the “Rustic Bridge” over “Put-in-Bay, ” all in Maywood Park. This pamphlet and the printed copies of abstracts of title, furnished to the purchasers of lots, contain copies of the plat of Maywood, with the words, “Maywood Park, ” written across the face of the space, designated as block “58.” Circulars were issued and posted in the vicinity and in Chicago, showing the park and the improvements therein.

In March 1871, the eonxpany issued another pamphlet to the public, in which it is stated, that “the park is already a matter of pride to the village,” and that, “as its use is given to the public as pleasure grounds, the directors have not inventoried either the land (sixteen acres), or improvements, in the assets of the company. ” For years, the park was constantly used by the residents of the village for public purposes. It was not assessed for purposes of taxation. From 1870 to 1884, when this suit was begun, the population of the village has varied from four hundred to eight hundred. This population has settled there, and lots have been purchased and homes established there, upon the strength of the company’s representations, that, among the advantages of the village, as a place of residence, would be the use of block 58, as a park, for the benefit of all the citizens and residents.

The appellee, Small, obtained a deed from the company of a lot in Maywood about the year 1870, and, at the time of his purchase, the president of the company presented him with copies of the pamphlets of 1869 and 1870, above referred to. The north-east corner of his lot is diagonally opposite the square, marked upon the plat, as Maywood Park, and looks out upon that square. He swears, that he always supposed it was a public park. .Appellee, Hubbard, swears, that he is a resident of Maywood; that he purchased property there in 1874; that the square in question was then open for the public, that it was originally fitted up in nice shape, and had always been open and used as a park; that he saw the pamphlets and posters and obtained them from the company’s office. Other witnesses testify to their purchasing lots there, as far back as 1871, and that the square in question was laid out with walks and lakes, and was used, as a park, by the inhabitants, and the general public.

On September 30, 1881, the company made a trust deed to Botsford, as trustee, to secure certain bonds. On October 31, 1881, the village of Maywood was organized under the general act for the incorporation of cities and villages. The officers and trustees of the village have demanded of the Maywood Company the control and management of the park, and have requested from the company a conveyance of the title to the park. The refusal of the company to accede to such demand and request has led to this litigation.

The facts, above recited, indicate an intention, on the part of the Maywood Company to dedicate block 58, (with the exception of the hotel and hotel grounds, covering the north 168 feet of the west 287T5-^ feet of said block,) to the public for the purposes of a park. A dedication may be made by grant or other written instrument, or it may be evidenced by acts and declarations, without writing. No particular form is requisite to the validity of a dedication. It is purely a question of intention. • A dedication may be made by a survey and plat alone, without any declaration either oral or on the plat, when it is evident from the face of the plat, that it was the intention of the proprietor, to set apart certain grounds for the use of the public. Godfrey v. City of Alton, 12 Ill. 30; Warren v. Town of Jacksonville, 15 id. 236; Waugh v. Leech, 28 id. 488; Smith v. Town of Flora, 64 id. 93.

“The difference between a statutory and common law dedication is, that one vests the legal title to the ground set apart for public purposes in the municipal corporation, in trust for the public, while the other leaves the legal title in the original owner, charged, however, with the same rights and interests in the public, which it would have, if the fee was in the corporation. ” (Chicago, Rock Island and Pacific Railroad Co. v. City of Joliet, 79 Ill. 25.) In the case at bar, the legal title to block 58 continued in the Maywood Company, but charged with the right of the public to use the block fora public park. It is true, that the village was not incorporated until October 1881, and, therefore, there was no organized municipality to accept the dedication of the park, during the eleven years from 1870, when the park was created, and the plat, pointing it out, was recorded, to 1881, when the incorporation took place. During this period, however, the acceptance of the dedication by the public was indicated, so far as it could be, by the actual use of the block, for those purposes of pleasure and recreation, for which public parks are laid out. (Smith v. Town of Flora, supra; Rees v. City of Chicago, 38 Ill. 322.) When the village was finally incorporated, the acceptance of the dedication was manifested by the demand, on the part of the proper authorities, for the possession of the park and for a conveyance of the title. Inasmuch as the Maywood Company has refused to yield the control of the park to the village trustees, the failure of the latter to take any steps towards its improvement should not be urged, as an evidence of their non-acceptance of the dedication.

As already stated, the plat in this case does not give the length and width of the streets, or of the blocks, nor the dimensions of the portion of block 58, which is devoted to hotel purposes. In these respects, it does not comply with the act of 1845, which was in force in 1870, when the plat was made, and, therefore, may not be completely valid, under the technical requirements of the law. (Village of Winnetka v. Prouty, 107 Ill. 218.) If it had been free from the defects here indicated-, the recording of it would have constituted a statutory dedication, and the fee of the park, as well as of the streets, would have remained in abeyance, subject to vest in the village corporation, as soon as it was created. (Canal Trustees v. Haven, 11 Ill. 554; Waugh v. Leech, supra; Gebhardt v. Reeves, 75 Ill. 301; Village of Princeville v. Auten, 77 id. 325; Village of Brooklyn v. Smith, 104 id. 429.) Upon the incorporation of the village in 1881, the fee of this park, theretofore in abeyance, would have vested in the village at ■once, if the plat had been executed in conformity with the statute in all particulars. As it was, there was such a dedication of the square, as that the fee thereof, which remained in the Maywood Company, as the original proprietor, was burdened with the right of the public to use it for a park. (Manly v. Gibson, 13 Ill. 308.) Whatever rights the public, or the residents of the village, when in an unorganized condition, .acquired, by virtue of the dedication, became vested in the village, as the legal representative of such residents, after the incorporation took place.

To constitute a dedication, it was not necessary, that the legal title should pass from the Maywood Company, nor that the grantee of the use should be in existence. It is sufficient, that the company has assented to the use of the land, as a park, and that the inhabitants of the village have actually •enjoyed that use, in such a way and for such a time, as that the public accommodation and private rights will be materially affected by an interruption of the enjoyment. City of Cincinnati v. White’s Lessee, 6 Peters, 431.

“If the owner of land lays out and establishes a town, and makes and exhibits a plan of the town, with various plats of .spare ground * * * and sells the lots with reference to that plan, the purchasers of the lots acquire, as appurtenant to their lots, every easement, privilege and advantage, which the plan represents, as belonging to them, as a part of the town, or to their owners, as citizens of the town. * * * The sale and conveyance of lots in the town and according to its plan, imply a grant or covenant to the purchasers, that the streets and other public places, indicated, as such, upon the'plan, shall be forever open to the use of the public free from all claim or interference of the proprietor, inconsistent with such use.” Zearing v. Raber, 74 Ill. 409.

The Maywood Company has persuaded over four hundred, people to settle in their village and buy lots of them, by holding out, among other inducements, the inducement, that this, square should be keqit open and used as a public park. The law considers their conduct in the nature of an estoppel in pais, which precludes them from revoking their dedication. To do so would be a violation of good faith to the inhabitants of the village. The company holds the legal title as trustee, for the use and benefit of the village and its citizens. It can not be allowed to divert its trust by mortgaging the property. A mortgage of it may lead to a sale and conveyance of it to-private individuals, and an appropriation of it by them to-such purposes, as they may desire. City of Jacksonville v. Jacksonville Ry. Co. 67 Ill. 540.

The holders of the trust deed, which has been executed upon this block 58, must be held to be affected with notice of the interests of the public therein. Its use by the public has been constant and open and notorious, and the plat, upon which it is designated, as “Maywood Park,” was on-record, when the trust deed was made, and was fully shown upon all the abstracts of title.

A 'court of equity has jurisdiction to entertain the bill, filed in this case. As a foreclosure of the trust deed would probably result in the ownership of the “park” by private parties, there was a threatened perversion of the trust, upon which the property was held. Equity will interpose to prevent the perversion of a trust. (City of Jacksonville v. Jacksonville Ry. Co. supra.) Again, the evidence shows a threatened nuisance, tending to deprive appellees and others of the full and free use-of this park, as they were entitled to have it used. This is a well recognized ground for equitable interposition. Zearing v. Raber, supra.

The objection of multifariousness or misjoinder of complainants we do not regard, as well taken to the bill. Small and Hubbard, as residents of the village, have a common interest with each other and with the village itself, in preventing any obstruction to the use of the public square for the purposes of a park. (Trustees of Watertown et al. v. Cowen, 4 Paige, 510; Green et al. v. Oakes, 17 Ill. 251; Gage v. Chapman, 56 id. 311; 2 Story’s Eq. Jur. secs. 924, 924 a.) They are, therefore, properly joined with the village, as complainants.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Chief Justice Scott

text:
    The Chicago, Burlington and Quincy Railroad Company v. Joseph Boyd et al.

      Filed at Ottawa June 12, 1886.

    1. Lease in perpetuity—of its effect—as an absolute conveyance. A grant and demise by one railway corporation of all its property, real and personal, with all its privileges and franchises, to another, in perpetuity, is equivalent to an absolute conveyance.
    2. Notice—by possession. The actual possession by a railway company of a tract of land, under a verbal contract for a conveyance, to be made upon the performance of certain conditions, is notice to any subsequent purchaser from the party with whom the verbal contract was made, of all such rights as the company may have in the premises.
    3. Statute op Frauds—performance, to take case out of the statute. Where a verbal contract of the owner of land to convey a part thereof to a railway company for a section house, upon condition that the company would locate a station on the owner’s other land and erect depot buildings thereon, and a house on the parcel donated, and such condition has been fully performed by the railway company, and possession taken by the original owner’s consent, such performance of the contract will take the case out of the Statute of Frauds, and a specific performance will be decreed.

      Appeal from the Circuit Court of LaSalle county; the Hon. George W. Stepp, Judge, presiding.
    Mr. Samuel Richolson, and Mr. O. F. Price, for the appellant.
    Mr. D. B. Snow, and Mr. Duncan McDougall, for the appellees.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

The bill in this case was brought by the Chicago, Burlington and Quincy Railroad Company, against Joseph Boyd and Freeman Poundstone, and was to enjoin an ejectment suit brought by defendant Poundstone, against complainant, to recover possession of the tract of land in dispute, and to compel a specific performance of an alleged verbal contract made'with complainant, by defendant Boyd, for the conveyance to complainant of the premises in controversy. Prior to 1870, Boyd owned a quarter section of land, of which the lot in controversy is a part, over which what is called the “Fox River Railroad Company, ” a corporation existing under the laws of this State, was about to construct its railroad, and in order to induce that company to locate its depot upon lands of Boyd, and construct the usual buildings for depot purposes, and to construct switches and turn-outs at that point, he offered and agreed to convey to the company a certain amount of land to be used for depot grounds, and it was also alleged that defendant Boyd offered to convey to the company one acre of land adjoining the proposed depot grounds, for what is called a “section house, ” for the safe keeping of tools, and upon which to erect a dwelling house for its section foreman. The object defendant Boyd had in view in obtaining the location of a station depot and other buildings upon his land, was that he might thereafter lay out a town or village, and sell lots, so as to enhance the value of his property. In addition to the land proposed to be donated to the railroad company, defendant Boyd, and one Crumrine, agreed to give the contractors constructing the road $1000 if the depot should’ be located at the point where they desired to have it. . It was decided to locate and construct the depot, switches and turnouts upon the land of Boyd, and so it is alleged the propositions made by him were accepted by the company. It seems the “Fox Biver Bailroad Company” became unable to finish the construction of the railroad it had undertaken to build, and afterwards, in 1870, it granted and demised to complainant, in perpetuity, all its property, real and personal, and all the privileges and franchises it had under its charter from the State. That was equivalent to absolute conveyance. Immediately thereupon complainant entered into possession, and commenced the work of finishing the road between the terminal points as originally proposed by the “Fox Biver Bail-road Company, ” and it is then alleged, that Boyd, on being made acquainted with the rights of complainant in the premises, entered into an agreement with complainant to carry out and fulfill the agreement he had made with the former-company concerning the location of a station upon his land, and to build a depot thereon, and, moreover, should build a house upon the one acre of land mentioned and described, and occupy the same by its section foreman, then he (Boyd) would convey, by a good and sufficient deed of conveyance, the real estate above described, including the one acre of land last above described, according to the agreement above set forth. It is then further alleged that the covenants and agreements of Boyd were then and there accepted by complainant, and that it fully and implicitly relied upon such agreements of Boyd, and complainant at once entered into possession of -the one acre of land above described, with the full knowledge and consent of Boyd, and at once began to make permanent and valuable improvements upon such tract of land, and enclosed the most thereof with suitable fences, and constructed a well thereon, at great expense,—being about $200,—and erected a building thereon at a cost of about $1000, and also erected out-buildings, stables and other necessary buildings, and that the value of the acre of land was but a small part of the value of such premises after the same were improved; that it has been in the continuous and uninterrupted1 possession of the premises from that time until the filing of this bill, and has, during that time, made valuable improvements thereon, with the full knowledge and consent of Boyd, and he has repeatedly promised to execute a deed of the premises to complainant, but has hitherto failed and neglected to do so.

The one-acre tract of land described, on which the “section house” and other improvements have been made, is the tract of land involved in this litigation. Long after the complainant had entered into possession and enclosed the premises, and improved the same by erecting a dwelling house and other buildings thereon, Boyd conveyed this one-acre tract, with other lands, to his now co-defendant, Poundstone. Of course, complainant’s possession was notice to Poundstone of its rights in the property, and in the consideration of the case it will be treated as though the litigation concerned only complainant, and defendant Boyd. The answers filed by defendant insist upon the Statute of Frauds as a defence, otherwise what they contain is of no importance further than they put the matters alleged against defendants at issue. On the final hearing, the court dismissed the bill, and assessed solicitor’s fees for defendants’ counsel, against complainant, on the dissolution of the injunction that had previously been granted.

The point made in support of the decree dismissing the bill, that there is no testimony sustaining the making of the alleged verbal contract set up in the bill, is not well taken. It is insisted it is nowhere alleged in the original bill that any contract or agreement was ever made by and between Boyd and complainant with reference to the donation of the lot in question. This is a misapprehension of the scope of the bill. It is alleged by way of recital, that in the first place, Boyd made to the Fox River Railroad Company, perhaps through the contractors to whom the building of the road was let, propositions concerning the location of the depot and other buildings at the station on his lands, to be called “Grand Ridge. ” But that company did not complete the road, and after complainant came into possession he renewed his propositions to complainant, and it is distinctly alleged, if complainant would build a house upon the one-acre tract in dispute, and occupy the same by its section foreman, then he (Boyd) would convey the one-acre tract to complainant. What is said concerning the proposition to the Fox River Railroad Company was simply by way of recitals, and might as well have been omitted. It may now be treated as surplusage, and it is immaterial whether the allegations in that respect are proved or not. A distinct contract is alleged on the part of Boyd to convey the land to complainant upon the performance of certain conditions, and the real question is, whether that contract has been proved, and whether it has been so fully performed that complainant can have a specific performance of it decreed in its favor.

The Statute of Frauds set up in the answer can have no application. There can be no doubt that complainant entered into the possession of the property under some sort of verbal agreement with Boyd for a deed, whether that agreement was absolute or conditional for a conveyance by deed thereafter to be made, and under that agreement, whatever it was, enclosed the lots, and erected a dwelling house, and made other valuable improvements thereon. That execution of the contract would relieve it from the operation of the Statute of Frauds. The only questions, then, that can arise in the ease, are, whether Boyd made a contract with complainant to convey to it the lot in question, on condition complainant would make certain improvements thereon, and whether such conditions have been fulfilled and performed. Such a contract, and full and complete compliance therewith, is sufficiently proved to warrant a decree for a specific performance. Of this there can be no reasonable doubt, when all the evidence is considered. Indeed, defendant Boyd admits he made a contract with complainant to convey to it the lot in controversy, that he placed complainant in possession under such contract, and no question is made that complainant has made such improvements on the property as it was obligated to do-by the contract; but the excuse, and the only excuse, given now, for not conveying the property, as he had agreed to do, is, that the promise to convey was upon condition he (Boyd) should be permitted to construct shipping pens for his own use on the south end of a three-acre lot he had or was to-convey to complainant, adjoining the track of the railroad. A witness, wholly disinterested, and who heard the original contract between the parties, says there was no such condition imposed by Boyd and none agreed to by complainant. Evidently Boyd is mistaken in what he says as to the terms imposed, that he should have the privilege to erect cattle or shipping pens on the track of the road, as a condition precedent or as a part of the contract for a conveyance. The contract to convey the one acre on which the section house-was to be located, was made early in 1871, and the contract to donate the three acres, upon which he says he was to-have the privilege to erect shipping pens, was not made until some time in 1872. Besides that fact in the case, Boyd’s testimony in regard to the conditions imposed is not satisfactory at all. He says he was denied the privilege he had contracted for, but who refused him, or when, he does not-pretend to state. On the first occasion when he spoke to any of the principal officers concerning the shipping pens, he was; told he might erect them at any time, but he said he did not-then want to do so, or had no use for them, as he was not then shipping stock. The whole evidence considered, leaves not the slightest doubt the contract was made precisely as it was alleged in the bill. At that time Boyd owned about four hundred acres of land in the vicinity of Grand Bidge. He was exceedingly anxious to have the depot erected on his land. In the first place,. Boyd and Crumrine had promised the contractors $1000 if the depot should be located where they wanted it, but Crumrine, it seems, refused to carry out-the contract after the depot had been located on Boyd’s land. There was then considerable talk of moving it to another location. Boyd gave the contractors his note for $500, which he afterwards paid, to secure the depot on his land. No-doubt the donations of right of way and lands for other purposes were made to secure and retain the location of the depot, and with regard to the improvements to be placed on this one acre tract, Boyd very sensibly says : “Of course I did desire to have buildings and improvements put there so as to render it impossible for the company to move their station. That would be naturally so.” The conclusion is well supported by the testimony, the contract to convey this one-acre lot to complainant was absolute and unconditional, except complainant was obligated to make certain improvements upon it, among which was a “section house” to be occupied by the section foreman of its road, all of which was done many years before the bill in this case was filed. No legal or equitable considerations appear why defendants should not convey the lot in question to complainant, and a decree should pass to that effect.

The decree dismissing complainant’s bill, and the decree assessing damages against complainant on the dissolution of the injunction, will be reversed, and the cause remanded for further proceedings conforming to the views expressed in this opinion.

Decree reversed.