author: Mr. Justice Sheldon

text:
    The Golden Rule v. The People ex rel. Charles P. Swigert.

      Filed at Ottawa November 13, 1886.

    1. Life instjbance—corporation organised under the act of 1872—for what pu/rposes allowable—and herein, what constitutes an insurance company. Under the act of 1872 a corporation may be organized for any lawful pulpóse, except (among others mentioned) for that of insurance. If a corporation formed under that act attempts to transact the business of life insurance, though confined to members of the body, it may be proceeded against, by quo warranto, for usurping powers not conferred by law.
    2. A corporation formed under such act, intended to benefit the widows, orphans, heirs and devisees of deceased members, and members who have received a permanent disability, in which the members are to receive no money, as profit or otherwise, except for permanent disability, is not to be regarded as an insurance company, and is therefore lawful.
    3. When, however, although the declared object of a corporation organized under said act is the benefit of its members, yet the pecuniary benefits are not to be enjoyed exclusively by the widows, orphans, heirs and devisees of deceased members, and by members permanently disabled, but may be given to others named by the deceased member, it will be illegal, as contemplating a business not authorized by the laws of the State.
    4. And when such a corporation attempts to transact a business in the nature of a life insurance, it matters not that the fund out of which beneficiaries are to be paid, is raised solely by voluntary contributions. The expectation that the fund will be raised, is an inducement for becoming members, and, when raised, there will be a legal obligation to pay it to the persons named as beneficiaries.
    5. So where a corporation establishes a relief fund, to be raised and kept up by voluntary contributions of its members, from which it agrees, upon the death of a member, to pay a sum, not exceeding a certain amount, to a beneficiary named by such deceased member, and a sum, not to exceed another certain amount, to the members holding certificates next in number above and below that of the deceased, and upon the death of a member notice is given to all other members, who are expected to contribute to the relief fund, such corporation will be liable to the charge of engaging in the business of life insurance.
    6. Same — wager policy — what so considered, and of its illegality. "Where a corporation, upon the death of a member, raises a relief fund, by voluntary contributions or donations, of its other members, not exceeding $2000, seventy-five per cent of which is to be paid to a bfeneficiary to be named by the deceased member in his lifetime, and twenty-five per cent to the two members who may, by chance, hold the certificates of membership next above and below that of the deceased, its business is not only that of life insurance, but is also illegal, as to those taking the twenty-five per cent, it being in the nature of a wager policy.
    Appeal from the Circuit Court of Warren county; the Hon. John J. Glenn, Judge, presiding.
    Messrs. Hookeb & Edmunds, and Mr. William C. Nobceoss, for the appellant:
    The provisions for the payment of money on the death of a member, have no elements of insurance. Neither the deceased member, nor any one for him, pays anything for being admitted to the benefits of these provisions. The beneficiary must be within the class named,—that is, must be a widow, orphan or dependent.
    A party giving to benevolent or charitable purposes has the right to designate the object of his bounty. Life insurance is an undertaking to pay a sum in gross, or a certain annuity to the person for whose benefit the contract is made, upon the death of the person whose life is insured. Bonney on Insurance, 29; Park on Insurance, 429.
    The certificates issued are not insurance policies. They are without valuable consideration, passing from the member receiving it, to the society. Commonwealth v. Wetherbee, 105 Mass. 149; May on Insurance, secs. 1, 340, 346; 1 Parsons on Contracts, 234; 1 Story on Contracts, sec. 427; McLean
      v. McBean, 74 Ill. 134; Davis v. Insurance Co. 135 Mass. 251 Dunlap v. Allen, 90 Ill. 108.
    Mr. E. S. Smith, for the appellees,
    contended that when this case was first before this court, more than a question of practice was decided, and that the merits were considered, and that the decision then made is conclusive. The pleas-show the same facts that were shown by the petition for leave-to file the information, and the affidavit in support thereof,, and very little more.
    It is not necessary to discuss the liability of the members-to pay, on notice of the death of a member. The material questions are, the powers assumed by the corporation, and. its pretended rights.
    We insist that the business done by this corporation is that-of insurance, and that it is an unlawful life insurance business. Neither the times and amounts of payment by the assured, nor the modes of -estimating or securing the payment of the sum to be paid by the insurer, affect the question, whether the agreement between them is a contract of insurance. (Commonwealth v. Wetherbee, 105 Mass. 149; May on Insurance, sec. 1.) The corporation agrees to pay whatever it gets, and agrees to take steps to-get the money.
    The members who receive the twenty-five per cent, take it-as the result of a speculation, as profit,—not to compensate-for any loss. In this respect the certificates are in the nature! of wager policies. State v. Life Ins. Co. 38 Ohio St. 281.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a proceeding by information in the nature of aquo warranto, against the Golden Rule and its directors. The-information contains three counts. The first sets forth the organization of the Golden Rule as a body corporate, under the general Incorporation law, approved April 18,1872, (Rev. Stat. 1874, p. 290,) and its mode of doing business, and avers-that it has usurped, and now usurps, powers and franchises not conferred by law. The second avers that the corporation has wrongfully, and without warrant of law, engaged in and transacted a life insurance business, and is therein wrongfully usurping power; and the third count sets forth, that it has unlawfully usurped and exercised powers and franchises in respect to its so-called relief fund, and is so doing. To the information two pleas were filed, one by the corporation, and the other by the directors. These pleas set forth all the facts concerning the organization, objects, operation and business of the corporation, its constitution and by-laws, etc., and deny that it has exercised any power or franchise not warranted by law. A demurrer was sustained to the pleas. The defendants have appealed to this court, and assign for error-the decision of the circuit court in sustaining the demurrer and entering judgment of ouster.

Among the objects of the association, as set forth in the pleas, are:

“Second—To aid its members in the struggles incident to life, and to assist its sick and distressed members in every way that may be suggested by a refined humanity.
“Third—To establish a fund by voluntary contributions, for the benefit and relief of the widows and orphans of deceased members, thereby securing the blessings of independence to those who otherwise might be left in poverty.
“Fourth—To give material aid to those who, through a long series of years, may have their charity drawn upon by frequent and continued contributions, thus securing in old age a realization of mutual aid and protection. ”

Section 1, article 4, of its constitution, is: “The Supreme Council shall establish, by voluntary contributions from the members of the order, a relief fund, from which, upon the death of a member, an amount not exceeding $1500 shall be paid to such person or persons as shall have been designated by such deceased member, and a sum not to exceed $500 shall be distributed in accordance with the custom and laws of the order; and the subordinate councils shall have authority to establish a charity fund, by voluntary contributions from the members of the order, to be devoted to the relief of worthy distressed members. ”

In section 2 of the by-laws it is declared: “The relief fund shall consist of contributions received from its members, upon the death of a member. The amount so raised shall be distributed as follows: Seventy-five per cent,—not to exceed $1500,—to the widow, orphan, or other dependent, as deceased member shall have directed in his or her application for an interest in said fund; and twehty-five per cent,—not to exceed $500,—equally between the two members holding valid and existing certificates, next in number, both above and below, the number of the certificate of such deceased member. If there is an excess in the amount so raised, it shall remain in the relief fund, and when said fund contains $2000, then it shall be used to pay the beneficiaries, and no contributions shall be asked. Out of the amount contributed for the relief fund, the Supreme Council may appropriate a sum,—not to exceed ten per cent,—to the expense fund of Supreme Council. The Supreme Council shall cause to be paid to the beneficiaries of deceased members, the contributions received, within sixty days after due notice of death. ”

The form of application for an interest in the relief fund, given in the pleas, after stating that all answers to the medical examiner are true, proceeds: “I desire my interest in said fund, being a sum not to exceed $2000, of the amount contributed at my death, to be paid as follows: Seventy-five per cent (not to exceed $1500,) to......, and the residue (twenty-five per cent,) equally to those persons who hold valid certificates in the relief fund department, numbered next above and next below the number of my certificate. I declare this to be my last will and testament as regards my interest in the relief fund of this order. ”

The pleas give the form of the certificate issued, whereby the holder is declared to be entitled to an interest in the relief fund, as above set forth. The pleas state that the practice of the Supreme Council is to number the certificates according to the age of the member, instead of the order in which the applications are received, “so that the certificates of the older members would bear numbers between certificates of the younger members, and thus, by giving the younger members of the fund the prospect of receiving back some part of the contributions made by them, would encourage them to contribute thereto, and continue their membership in the order; ” that all the payments which are required to be made by members, is a membership fee, for charter members, of $5 ; for subsequent members, $7, and a semi-annual due of fifty cents, which are devoted exclusively to expenses.

According to the showing of the pleas, we are of opinion that this corporation is in the exercise of powers not conferred by law. A corporation can only organize under this act above mentioned, “for any lawful purpose, except * * * insurance. ” (Sec. 1 of the act.) By the last clausq, of section 31 of the act, it is provided that societies intended to benefit the widows, orphans, heirs and devisees of deceased members thereof, and members who have received a permanent disability, and where no annual dues or premiums are required, and where the members shall receive no money, as profit or otherwise, except for permanent disability, shall not be deemed insurance companies. Here is the strongest implication that a society doing such a business as the pleas present, is doing an insurance business, and that it is to be deemed an insurance company. Not to be deemed an insurance company under the act, it must be intended to benefit the widows, orphans, heirs and devisees of deceased members, and members who have received a permanent disability, and where the members shall receive no money, as profit or otherwise, except for permanent disability. But here the declared object is the benefit of members, and the pecuniary benefits are enjoyed, not by the widows, etc., of deceased members,, and by members who have received a permanent disability,, but by the appointees of deceased members, the beneficiary named in the application, and by certain of the members generally, and not members who had received a permanent disability.

It is urged that there are no assessments made on members to pay the benefits,—that the relief fund is constituted solely by the voluntary contributions of members. When a death occurs, of a member entitled to the benefits of the relief fund, the secretary is required to give notice of the fact to' each member of the order of the Golden Rule, who is asked to make contribution to the relief fund; but no penalty whatever attaches for not contributing, it being entirely voluntary to do so or not. Although there be no compulsory means of raising this relief fund, and it consists solely of donations, made as thus stated, there is certainly expectation that the fund will be raised, and when raised, there is an absolute obligation to distribute it to the persons named. This relief fund forms an important part of the society’s scheme, and is doubtless a main inducing reason for becoming a member of it, rendering it highly improbable that it will not be provided in the mode pointed out. When the contributions are received, seventy-five per cent of the amount (not exceeding $1500,) is required to be paid to the beneficiary named in the certificate of the member, and twenty-five per cent (not exceeding $500,) is to be divided equally between the two members holding certificates numbered next above and below the number of the deceased member’s certificate. Although the constitution of the society provides that this amount of seventy-five per cent shall be paid to such person or persons as shall have been designated by the deceased member, and the certificate states that it shall be paid over to the person named in such person’s application, it is said the person named must, under the laws of the order, be a widow, orphan or "dependent. The foundation for this statement appears to be the provision in the by-law that the money shall be distributed to the widow, orphan or other dependent, as the deceased shall have directed in his application. Even under this provision, a dependent may be designated; and a dependent is not necessarily of the class of persons designated in the above named section 31 of the law under which the corporation was created, to-wit, widows, orphans, heirs and devisees. But, passing this feature of the payment, the requiring of twenty-five per cent of the amount to be paid to the two members who happen to hold certificates next in number to that of the deceased.member, marks the transaction as unlawful life insurance business, as to be deemed such, under said section 31 of the statute. These two members are not members who, as named by this section, have received a permanent disability, nor are they members who “receive no money, as profit or otherwise, except for permanent disability. ” They become entitled to the money simply by chance—from holding certificates which happen to bear certain designated numbers. The affair is in the nature of a wager policy.

This case was before this court on a former occasion, (The People ex rel. v. Golden Rule, 114 Ill. 34,) and although there was then involved but a question of practice, we took occasion there to say this much with regard to the merits of the case: “Although the payment of dues to a corporation, on account of fees or assessments upon its members, may be purely voluntary, persons may acquire legal rights to share in them when they are paid. * * * At present we do not perceive why the payment of a premium to one who holds a number next to that held by one who dies, and solely because he does die, is not, in effect, in the nature of a wager upon the life of one in whom the party thus benefited has no interest, and why, therefore, the transaction is not within the condemnation of the principle announced in Guardian Mutual Life Ins. Co. v. Hogan, 80 Ill. 35. And see, also, to like effect, Commonwealth v. Wetherbee, 105 Mass. 149; State v. Standard Life Ins. Co. 38 Ohio St. 281. ” After more full consideration, our views now coincide with what we then thus said. The circumstance of the relief fund not being made up from fees and assessments, but of purely voluntary contributions, does not, in our opinion, make any difference.

The judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Magruder

license: Public Domain

text:
    Barnum Blake v. David T. Miller.

      Filed at Ottawa November 13, 1886.

    l. Practice—trial before issues made up. Where the record fails to show the filing of a replication to a special plea, a trial and judgment in the absence of the defendant and his attorney will be irregular and erroneous. In such case there is no waiver of the want of the replication by going to trial by consent.
    2. Same—supplying lost pleading. After the term at which final judgment is entered, a copy of a lost replication can be supplied in place of the original only by order of the court, upon noti.ce and proof; and then the court should find that the original was lost, and that the substitute sought to be filed'is a substantial copy of the original.
    3. After judgment, and after the term has passed at which it was rendered, the court has no power to permit the filing of a replication. • If a pleading is lost after judgment, the court, on notice and a proper showing, may grant leave to file a copy as of a day preceding the date of the trial and judgment.
    Writ of Error to the Appellate Court for the First District;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, (presiding.

      Mr. Robert Hervey, for the plaintiff in error:
    Proceeding to trial and judgment, leaving a special plea unanswered, operated as a discontinuance, and therefore the judgment was erroneous. 1 Chitty’s Pleading, 525; Tippit v. May, 1 Bos. & Pul. 411.
    The court below had no jurisdiction to make a new record. If any part of the record existing had been omitted, then it might be supplied.
    Mr. James Brake, for the defendant in error:
    The judgment of the court below is, “this cause being this day called for trial, comes the plaintiff, by his attorney, and issues being joined, it is ordered that a jury come, ” etc. This record is the finding of the court, and must be taken as absolutely true. Blackburn v. Bell, 91 Ill. 440.
    On discovery of the loss of the replication, steps were taken to supply the loss. We believe we proceeded correctly. Insurance Co. v. Vanduzer, 49 Ill. 492.
   Mr. Justice Magruder

delivered the opinion of the Court:

This was an action of assumpsit upon a note for $1000, brought by defendant in error against plaintiff in error in the Superior Court of Cook county. The defendant below filed two pleas, the general issue, and a special plea, setting up failure of consideration. The case was tried before a jury at the May term, 1885, in the absence of both the defendant and his counsel. On May 29, 1885, verdict was rendered for $1972.40, and judgment entered on the verdict on the same day. A writ of error was sued out from the Appellate Court of the First District, and the record filed in that court on October 7, 18S5. The clerk of the Superior Court certifies the record, so filed, “to be a true, perfect and complete transcript of the record ” in the case of Miller v. Blake.

The record did not show, that any replication had been filed to the special plea. The issues were not made up. As neither Blake nor his attorney was present at the trial, there was no waiver of the objection, that there was no replication. It follows, that the trial was irregular, and the judgment was erroneous. (Strohm v. Hayes, 70 Ill. 41.) It was to be presumed, that the record was a complete transcript, until there was “some evidence, as by affidavit, to the contrary.” VonGlahn v. VonGlahn, 40 Ill. 73.

On March 9, 1886, the Appellate Court made an order, allowing a motion, theretofore made by defendant in error, suggesting a diminution of the record, and for leave to file an additional record instanter. On March 2, 1886, defendant in error filed in the Appellate Court what is called by counsel a supplemental record, attached to which is a certificate of the clerk of the Superior Court, dated February 9, 1886, certifying the same to be a copy of “certain affidavits and replications now on file in my office and a certain order, made and entered of record in said court, ” in the case of Miller v. Blake.

The supplemental record recites, that, on October 6, 1885, there were filed in the clerk’s office of the Superior Court two affidavits, alleging, that replications to the pleas had been drawn, and were seen among the files a short time before the trial. The supplemental record also recites, that, on October 7, 1885, being one of the days of the October term of the Superior Court, and more than four months after the term, at which the judgment was entered, had passed, the Superior Court entered the following order: “On motion of plaintiff’s attorney, it is ordered, that leave be and is hereby given the plaintiff to file herein a replication and affidavit.” Then follows a further recital, that, on October 7, 1885, there was filed the affidavit of Charles E. Pickard, stating that certain replications thereto annexed “are a substantial copy” of the" replications theretofore prepared by him, and which he had seen among the files on the afternoon of the trial.

There is nothing to show, that the defendant below, or his attorney, had any notic'e of the order of October 7, 1885. The copy of the replication could “be supplied in place of the original only by order of court, upon notice and proof. ” (Long v. Sutter, 67 Ill. 185.) It is to observed, also, that the order contains no finding by the court, that the original replication was lost, and that the copy presented was a correct or substantial copy of the lost original; nor does it grant any leave to file such copy, in the place of the original, nune pro tunc, as of some day prior to the trial. On its face, the order appears to give the plaintiff leave to file a new replication, long after “the case had passed out of the control of the court, and was no longer on the docket. ” (Cox v. Brackett, 41 Ill. 222.) After judgment, and after the term had passed, at which judgment was rendered, the court had no power to permit the filing of a replication. Cairo and St. Louis Railroad Co. v. Holbrook, 72 Ill. 419.

We think the Appellate Court erred in affirming the judgment of the Superior Court. The judgments of both courts are, therefore, reversed, and the cause remanded to the Superior Court of Cook county.

Judgment reversed.


author: Mr. Justice Scholfield

text:
    Frederick P. Burgett et al v. Benjamin C. Taliaferro et al.

      Filed at Ottawa November 13, 1886.

    1. Limitation—under the act of 1839—color of title—what constitutes. A warranty deed purporting to convey a lot in fee simple, is good color of title.
    2. Same—in case of tenancy in common—extent of the color of title—• ivhether there is a disseisin as to co-tenants. If one of several tenants in common makes a conveyance purporting to convey only, his interest in the premises, the grantee will become a tenant in common with the others, and his deed will hot be color of title to any greater interest than his grantor had; but where the tenant in common makes a warranty deed for the entire estate, this will operate as a disseizin of hie co-tenants, and the Statute of Limitations will commence running against them from the moment such deed is placed upon record.
    3. Same—whether color of title has been obtained in good, faith. The execution of a deed purporting to convey the fee, and the subsequent possession of the property, and the payment of all taxes thereon, by the grantee, create the presumption that the grantee acquired the deed in good faith, and that his possession is under his deed; and it devolves on those claiming adversely, to prove, either that the deed was not obtained by the grantee in good faith, or that his possession was not under the deed.
    4. Same—effect of notice of outstanding title, upon claim, and color of title. Color of title, under the Limitation law of 1839, does not mean actual title, nor does the question of notice of outstanding titles affect it. Even a knowledge of an adverse claim upon the property does not, of itself, indicate bad faith in the purchaser, and is not evidence of it unless accompanied by some improper means to defeat such claim.
    5. Landlord and tenant—the latter acquiring tax title adversely to-the former. Where a tenant goes into possession of premises under an agreement with the owner to pay the taxes thereon, etc., the tenant can not acquire a title to the property adversely to his landlord, or his heirs, growing out of his neglect to pay the taxes. At most, the tenant could only become seized, under the tax deed, in trust for his landlord, if living, and, if dead, then for his heirs.
    6. Purchaser of tax title, with notice of his grantor’s relation to the title, as affecting the rights of another. Where a tax title is acquired by one in violation of the holder’s duty to pay the taxes, under a contract that he will pay them, a purchaser from him with notice that the title was wrongfully obtained, will acquire no better right or title than his grantor had, and will hold the title in trust for the rightful owner, the same as his grantor held it.
    7. Tenants in common—toa title acquired by one—rights and obligations of the co-tenants. Where one tenant in common in possession jointly with his co-tenants, as one family, acquires a tax title to the premises, it will be held by him for the equal benefit of his co-tenants, they being only required to make contribution for the amount paid for such adverse title.
    8. Same—admission by one tenant in common—effect on others. An admission or declaration of one who holds an interest in real estate, that he has an estate for life, only, can not affect the rights of others claiming an interest in the same property; and when such admission is based upon a mistake of the extent of the party’s rights, and no one has acted upon the same so as to change his condition in consequence thereof, the party making it will not be concluded thereby.

      9. Pabol evidence—to explain or contradict recitals in contract as to character of possession. A recital in a contract for the sale of an interest in a lot, that the vendor does thereby put the purchaser in possession, may be explained or contradicted by parol evidence. It may he shown that the purchaser was not put in possession under such contract, hut under a subsequent agreement.
    Appeal from the Circuit Court of Mercer county; the Hon. John J. Glenn, Judge, presiding.
    Frederick P. Burgett filed his petition in the circuit court of Mercer county, on the 13th of October, A. D. 1885, praying partition of lot 10, in block 10-, in Keithsburg. He made Benjamin C. Taliaferro, Maria Harolson, Amanda Armindale, Alvin Patterson, the unknown heirs-at-law of David Patterson, deceased, and David Wolfe, defendants, and claimed that the lot was owned thus: Frederick P. Burgett, T2^ff parts; Benjamin C. Taliaferro, parts; Maria Harolson and the unknown heirs-at-law of David Patterson, deceased, each Ty7 parts; and Amanda Armindale and Alvin Patterson, each ^Ug- parts. The petition was subsequently amended, alleging a conveyance by Benjamin C. Taliaferro, of his interest, to Robert B. Taliaferro.
    Benjamin C. Taliaferro answered, alleging that he bought the entire lot, in good faith, from Jane Patterson, and took a warranty deed from her therefor, on the 25th day of August, A. D. 1874, which he caused to be recorded in the proper office on the 12th day of October, A. D. 1874; that he immediately entered into actual possession of the lot, and retained the same until after the petition was filed, and during all that time paid all the taxes assessed against the lot, and he therefore set up and relied upon the first section of the “Act to quiet possessions and confirm titles to land, ” approved March 2, 1839. (Purple’s Real Estate Statutes, 426.) The answer of Robert B. Taliaferro claimed that he purchased in good faith, and was the owner of the lot. Amanda Armindale and Alvin Patterson answered jointly and severally, alleging that the lot was sold on the 10th of June, A. D. 1850, for the taxes of 1849, to Benjamin D. Ellett, and that a deed was made to him by the sheriff of Mercer county, on the 22d day •of February, A. D. 1853; that on the 16th day of March, A. D. 1854, Ellett sold the lot to James Patterson'for $100, and conveyed the same to him; that Patterson bought in good faith, believing that he was acquiring title to the same, and went into possession immediately afterwards, under said deed, claiming title in fee simple, in his own right, to the lot, and that he continued to occupy the same from that time until his death, in 1861, and paid all taxes thereon for each year, from A. D. 1853 to A. D. 1860, inclusive; that he devised the lot to his mother, Jane Patterson, during her lifetime, and the remainder, after her death, to the defendants Amanda and Alvin. The defendant Alvin Patterson also filed a cross-bill, alleging the same facts as alleged in the joint and several answers of himself and Amanda Armindale, and praying certain specific relief. Answer was filed by Benjamin C. and Bobert B. Taliaferro, putting in issue the allegations ■of the cross-bill, and replications were filed to the answers to the original and cross-bills.
    At the April term, A. D. 1886, of the Mercer circuit court, the cause was heard on bill, answers, cross-bill and answer, ■and evidence then submitted, and the court thereupon decreed that both the original and cross-hills be dismissed.
    The facts in evidence, about which there is no dispute, are: Matthew Patterson became the lawful owner of the lot in •controversy, in A. D. 1848. In 1849 he built a brick house upon it, but in the fall of that year, and before the house was finished, Matthew rented the house and lot to B. D. Ellett, for two years, or until Matthew should return from California, to which place he was intending to soon depart. Ellett, in consideration of the use of the property, paid Matthew, in advance, $100, and agreed to finish the building, take care •of the property, pay the taxes, and settle the balance on Matthew’s return. Ellett then went into the possession of the property. On the 25th day of February, 1850, Matthew conveyed the lot to Stephen S. Phelps, by a deed absolute on its face, but in reality to secure the payment of a sum of borrowed money. Soon after this, in the spring of 1850, Matthew and his father, and his brother, John, went to California. Not long afterwards his father died,—then, either in 1850 or in 1851, Matthew died, intestate,—never having returned from California. Matthew had never been married, and hence left neither widow nor lineal descendants surviving him. He left, as his heirs-at-law, his mother, Jane Patterson, his brothers, David, John, James, William, Robert and Charles, and his sisters, Eliza, (now Harolson,) Maria, (now Walker,) and Jane, (now Lloyd.) David had gone to Canada before Matthew went to California, and has never been heard of since, and so has long since, in legal estimation, been presumed to be dead. John died soon after Matthew died, leaving neither widow nor lineal descendants, but his mother and his remaining brothers and sisters, above named, his lieirs-at-law. On the 10th of June, 1850, the lot was sold to B. D. Ellett forth e taxes of 1849. No redemption being effected, the sheriff conveyed the lot to Ellett on the 22d day of February, A. D. 1853, and this deed ivas recorded February 28, 1853. On the 28th day of May, 1852, Stephen S. Phelps conveyed the lot, by warranty deed, to the “heirs-at-law of Matthew Patterson, deceased,” and the deed was duly recorded August 4, 1852. B. D. Ellett conveyed, by quitclaim deed, to James Patterson, on the 16th day of March, A. D. 1854, which deed was recorded on the 24th of May, 1861. James died testate, in June, 1861, leaving a widow, Amanda, (since intermarried with a man named Armindale,) and a son named Alvin, surviving him. By his last will and testament he devised and bequeathed the rents and profits of the house on this lot to his mother, Jane Patterson, during her life, and he devised the lot, subject to this charge, to his wife, Amanda, and his son, Alvin, which will was duly probated in the proper office on the 18th of June, 1861. William Patterson conveyed and quitclaimed the lot to his mother, Jane Patterson, by deed dated August 1,1872, which was duly recorded July 17,1874. Charles Patterson conveyed and quitclaimed the lot to his mother, Jane Patterson, September 12, A. D. 1872, which was also recorded July 17,1874. Jane Lloyd conveyed and quit-claimed the lot to her mother, Jane Patterson, on the 1st of August, A. D. 1872, and this also was recorded on the 17th of July, 1874. On the date therein stated, the following agreement was made:
    “State of Illinois, Mercer County, Keithsburg, June 16, 1874.

    “This is to certify that I have this day sold to B. C. Taliaferro all my interest that I now hold in lot ten (10), in block ten (10), in the town of Keithsburg, in said county, said interest -consisting of what I claim as the heir of Matthew R. Patterson, and the interest of four of my children, as heirs of Matthew R. Patterson; and I do further agree and bind myself to get a deed from my daughter, Eliza Walker, by the 1st day of August next, for her interest in said lot; and I do hereby put the said B. C. Taliaferro in possession of said lot, and to make him, if necessary, any other deed for the conveyance of my interest in said property or what other interest I may hereafter acquire, and for which property, so sold as aforesaid, the said B. C. Taliaferro binds himself to pay to the said Jane Patterson, in money, on the 1st day of August, A. D. 1874, if necessary, and if not, on the 1st day of September next, the sum of $100, for which he has given his promissory note, payable on the 1st day of August, A. D. 1874.
    “Given under my hand and seal this 16th day of June, A. D. 1874. Jane Patterson, [seal.] ”
    This was acknowledged before T. S. Cummins, J. P., the same day, and recorded July 17,1874.

      On the 25th day of August, A. D. 1874, Jane Patterson assumed to convey the lot to Benjamin G. Taliaferro, by warranty deed, and it was duly recorded on the 12th day of October, 1874, and on the 12th day of October, 1885, Benjamin C. Taliaferro conveyed the lot to Robert B. Taliaferro, by quitclaim deed. On the 17th of November, A. D. 1883, Robert Patterson assumed to convey the lot, by quitclaim deed, to Frederick P. Burgett, and on the 3d day of December, A. D. 1883, Eliza Walker also assumed to convey the lot, by c> quitclaim deed, to Frederick P. Burgett. It was agreed that James Patterson paid all taxes assessed on the property from 1853 to 1860, inclusive; that Jane Patterson paid all taxes assessed thereon from 1861 to 1872, inclusive, and that Benjamin G. Taliaferro paid all taxes levied and assessed on the property for the years A. D. 1874 to A. D. 1884, inclusive.
    Messrs. Bassett & Wharton, for the appellants:
    When a tenant in common enters, claiming under the common title, or without any other claims of title, then he can not claim adversely. Busch v. Huston, 75 Ill. 347; Ball v. Palmer, 81 id. 370; McClellan v. Kellogg, 17 id. 504.
    The doctrine of adverse possession is to be taken strictly, and must be hostile in its inception. McClellan v. Kellogg, 17 Ill. 504; Ambrose v. Raley, 58 id. 509; Medley v. Elliott, 62 id. 535; Busch v. Huston, 75 id. 347; Rigg v. Cook, 4 Gilm. 357.
    Taliaferro having entered into possession as co-tenant, any purchase of title made after that, inures to the benefit of all the co-tenants. Brocken v. Cooper, 80 Ill. 225; Titsworth v. Stout, 49 id. 78; Freeman on Co-tenancy, secs. 158, 166.
    Taking the original contract into consideration, which was recorded, and all the circumstances, it looks as though Taliaferro proceeded as he did, to allay suspicion, and to obtain the title by limitation, through that means. This was bad faith. Bowman v. Wittig, 39 Ill. 416; Dalton v. Lucas, 63 id. 337; O’Halloran v. Fitzgerald, 71 id. 53; Hardin v. Crate, 60 id. 215; McCagg v. Heacock, 34 id. 476; Hardin v. Gouveneur, 69 id. 140; Davis v. Hall, 92 id. 90.
    Mr. John C. Pepper, for the appellees:
    When a tenant in common conveys and warrants, the entire estate is a disseizin of his co-tenants, from which time the Statute of Limitations runs. Freeman on Co-tenancy and Partition, secs. 221, 224; Wood on Limitations, sec. 266; Morey v. Morey, 6 Metc. 360; Going v. Urig, 18 Ill. 242; Hinchley v. Green, 52 id. 242; Busch v. Huston, 75 id. 343; Lavalle v. Strobell, 89 id. 384; Dugan v. Follett, 100 id. 588.
    Notice of other’s rights, even the recording, can cut no-figure on questions arising under the Statute of Limitations. Woodward v. Blanchard, 16 Ill. 433; Dickerson v. Breeden, 30 id. 280; Jandon v. McDowell, 56 id. 53.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The deed from Jane Patterson to Benjamin C. Taliaferro, being a warranty deed, purporting to convey the lot in controversy in fee simple, is at least color of title. (Dickenson v. Breeden, 30 Ill. 326.) The payment of taxes by Taliaferro from A. D. 1874 to 1884, inclusive, being admitted, it only remains to ascertain whether he acquired the deed from Jane Patterson in good faith, and if so, whether he was in possession under that deed.

The execution of the deed, and subsequent possession of the property, and payment of taxes thereon, by the grantee, create the presumption that the grantee obtained the deed in good faith, and that he is in possession under the deed, and it devolves on those claiming adversely, to prove either that the deed was not obtained by the grantee in good faith, or that the possession was not under the deed. Dickenson v. Breeden, supra; McConnel v. Street et al. 17 Ill. 253; Hardin v. Governeur, 69 id. 140; Davis v. Hall, 92 id. 85.

A point is made on behalf of Amanda Armindale and Alvin Patterson, which, in the order of precedence, is entitled to be-first noticed,—that the first section of the Limitation act of 1839 can have no application here, because, at the time Jane Patterson conveyed to Benjamin C. Taliaferro, she had only a-life estate, and, she being still alive, the statute has not commenced to run against those having the estate in remainder, since they have never had the right to enter into the possession. Without saying whether this position is tenable as against one obtaining a warranty deed in fee simple, in good faith, without notice, it is enough to say that, in our opinion, it is not sustained by the facts proved, as disclosed by this-record. The contention is predicated upon the sheriff’s deed to B. D. Ellett, and the deed of B. D. Ellett to James Patterson, and the will of the latter, purporting to give a life estate-in the property to Jane Patterson. It will be seen, by referring to the statement preceding this opinion, that in 1848 Matthew Patterson, the brother of James and the son of Jane, became the owner of this lot in fee simple. In 1849 he-commenced building a brick house upon it, but in the fall of that year, and before the house was finished, he rented the lot and premises to B. D. Ellett for. the term of two years, or until Matthew should return from California, whither he was making arrangements to soon depart. In consideration of this renting, Ellett paid Matthew $100 in cash, and agreed to finish the building, take care of the property, pay the taxes, upon it, and settle the balance when Matthew returned, and, thereupon, he was let into possession. The taxes for which the sale was made by the sheriff, were, then, taxes which it was the duty of Ellett to pay. He could not acquire a title-adverse to Matthew, or to Matthew’s heirs-at-law, growing out of his own neglect to perform his contract. At most, he could but become seized, by virtue of the sheriff’s deed, in trust for Matthew, if living, and for his heirs-at-law" if dead. O’Halloran v. Fitzgerald, 71 Ill. 53.

It will also be perceived, from the statement preceding this opinion, that after thus leasing the property, Matthew conveyed it, on the 25th day of February, A. D. 1850, to Stephen S. Phelps, to secure a loan of money. The proof is clear that when Matthew, his father, and his brother next in years to himself, (John,) left for California, in the spring of 1850, they left the family, which then included Jane, (the mother,) James, (the oldest of the children remaining at home,) and William, Robert and Charles, his younger brothers, and Eliza, Jane and Maria, his sisters, all living together, as a family, in a little log house, and they continued to thus live together, as a family, for some years. J ames, although a minor, became the head of the family. He worked, first, at farming, and the other children worked about, but remained at home. After-wards, he worked at brick making, and one or more of the younger boys worked with him, and the mother (Jane) boarded the hands. The father died in California. Then, in 1850 or 1851,—the evidence is not specific which,—Matthew died, and soon afterwards John died. Whether any money was derived from the estates of either of these, is not certain,— the inference, however, is in the negative. It is shown, by a remark attributed to the mother (Jane), that before Stephen S. Phelps conveyed to the heirs-at-law of Matthew, which was on the 4th of August, A. D. 1852, she claimed that it was his duty to convey; but whether he had been paid the loan by Matthew before his death, or was paid by her or some other member of the family, afterwards, does not appear. Ellett left the property, as his widow testifies, on the 25th of December, A. D. 1853, and several witnesses testify that when he moved out of the house, James and his mother, and his younger brothers and his sisters, moved into it. There are two or three witnesses who testify to having rented portions of the house, in 1854, from James, and being in possession, afterwards, for some time, and that during the time of their occupancy the mother and family were not in the actual occupancy of any part of the property. It is difficult to reconcile the testimony of these witnesses with that of those who testify that J ames and his mother, and his younger brothers and his sisters, occupied the house immediately after Ellett moved out, and thence, continuously, until after the marriage of James, in 1856. But in any view, the evidence all agrees that James and his mother, and his younger brothers and his sisters, did reside together, as a family, until after his marriage, and, a portion of the time, in this house. Although we can not ascertain with precision what was the age of James at the date of the conveyance by Ellett to him, the inference from circumstances proved is, that it could not have exceeded twenty-one years, if, indeed, it was that. In effect, then, up to that time the evidence authorizes the conclusion that he had lived with his mother’s family, working for it, and managing for it as the head of the family, and, as against his mother, was not entitled to retain any compensation he may have received for his services; and the evidence therefore repels any inference that he could have had, at that time, any property separate and apart from that belonging to the family in common. The evidence establishes that the family had trouble with Ellett in regard to the property, before he moved out of the house. Thus, the widow of Ellett testifies: “There was some controversy with my husband about the rent of the property, but I don’t know what it was.” Thomas Bippey, a nephew of the mother, and a cousin of James, testified: “I heard of .some trouble between Patterson and Ben Ellett. My father came from New Jersey to Mercer county, to settle with Ellett for Mrs. Patterson. * * * She wanted Ellett out of the house. ”

From all the circumstances, it is evident that James must have known of the conveyance by Phelps to the heirs-at-law of. Matthew, and of the contract between Matthew and Ellett. The circumstance that Ellett surrendered possession of the-property some months before he conveyed it to James, tends-strongly to prove a recognition upon his part that he then claimed no right to hold the possession under his deed, and it is unreasonable to suppose that James,—a member of his-mother’s family, and the acting head of it,—was not entirely familiar with the whole transaction, and the motives controlling. The lapse of time, and the death of Ellett and Janies, render more specific proof unattainable. Our conclusion is, that James knew that Ellett acquired his deed in. violation of his duty, under his contract with Matthew, and. so that he held in trust for the heirs-at-law of Matthew,, and thus knowing, the deed of Ellett only made him trustee-instead of Ellett. But if we are mistaken in supposing that James knew that Ellett had thus obtained his deed, still the-title, before that deed was executed, was in the heirs-at-law of Matthew, of which the prior record *of the Phelps deed, gave him notice. They claimed the right to the possession-of the property, and, under that claim, Ellett surrendered the possession to them. The possession of James was not actually exclusive of that of his mother and his younger brothers and sisters, but in common with them; and the reasonable conclusion, from the evidence, is, that any money that James paid Ellett, was money which, legally, was the-common property of the family, whether earned by him,— he being a minor,—or derived in some other way; and yet,, if it be conceded that it was the money of James, in fact and in law, inasmuch as the evidence shows no prior disseizin of his mother and his younger brothers and his sisters, but a. tenancy in common with them, the law requires that the title-acquired from Ellett shall be held for the .equal benefit of all the heirs-at-law of Matthew, the others being required only to make contribution for the amount thus expended for the benefit of a common estate. Busch v. Huston, 75 Ill. 343; Ball et al. v. Palmer et al. 81 id. 375; Park Commissioners v. Coleman, 108 id. 591.

There is evidence that Jane (the mother) frequently said that she claimed under the will, and only a life estate. These remarks, it is evident, could not affect her co-heirs, and it being apparent that they were based on a mistake, and it not being pretended that any one acted upon them to his injury, so as to create an equitable estoppel, they could not conclude her. Whether, if they had been communicated to Taliaferro before he purchased, they would conclude him on the question of good faith, we are relieved from inquiry, since no one testifies that Taliaferro was informed, before his purchase, that she claimed only a life estate, and he himself testifies, positively, that he never heard of such a claim before he purchased, and that at that time he did not even know that James had made a will. •

It is contended, on behalf of Burgett, that after the death of James, the mother (Jane) remained in possession as co-tenant with her children, from whom Burgett purchased; that while thus in possession, she, as co-tenant, rented two of the rooms in the house to Taliaferro; that Taliaferro afterwards went into possession, under the contract made with her, on the 16th of June, A. D. 1874, in which she only proposed to sell and deliver possession to him of what she claimed as the heir-at-law of Matthew Patterson, and the interests of four of her children as heirs-at-law of Matthew, and that Taliaferro’s possession being thus in its inception not adverse, but in subordination to, the title of the parties from whom Burgett purchased, any purchase of titlé that he made afterwards is presumed to have been not adverse to the interests of his co-tenants, but in subordination to their rights, and to inure to the benefit of all the tenants in common. The evidence fails to show that when Mrs. Patterson rented the two rooms to Taliaferro, she rented only the interest of a tenant in common. On the contrary, she is shown at that time to have had the exclusive possession of the property, making it her home, and exercising sole dominion over it. So far as the evidence shows what she claimed by her possession at that time, it shows that she claimed to be a life tenant. But whatever, as between her and her co-heirs, may have been her legal rights, as between Taliaferro and her she was, in that renting, landlord of the entirety. He was bound to attorn to her only. There is no evidence anywhere in the record that shows that Taliaferro, by the act of renting, recognized any other parties as landlords, or assumed any legal liability on that account to any one but her. The contract of the 16th of June, it is true, recites that Mrs. Patterson does thereby put Taliaferro in possession of the lot; but that was a matter in pais, the actual performance of which was to be in the future, and it is therefore liable to be explained or contradicted by parol. The parol evidence overcomes the recital, and clearly shows that Taliaferro was not put in possession of the lot under that' contract. Thus, Thomas Rippey testified: “Mrs. Patterson was living in the house in June and August, A. D. 1874, when she sold to Taliaferro. ” B. C. Taliaferro testified: “I have been in possession of the property in controversy, and occupied it by actual residence, by tenants, since August, A. D. 1874, until this time. * * * I went into possession under my deed from Jane Patterson. * * * The warranty deed from Jane Patterson was not taken under the contract offered in evidence. I was to pay her $100, under the contract. She told me then that two of her children had made her deeds. Afterwards she told me she had got deeds from all of her children, to enable her to raise money to go to California. • I told her if she would give me a warranty deed, I would pay her $300, and she made the deed in pursuance of this contract.”

But apart from the evidence, we think the appellants are estopped by the pleadings from questioning that Taliaferro’s entry into possession was under the deed made to him by Mrs. Patterson. It .is alleged in the original hill, “that said Taliaferro has been in possession of said premises, ” not under his renting or under the contract of sale, but, “under said deed, since 1874,” and there is a like allegation in the cross-bill, and this allegation is admitted in the answer. The contract of June 16, 1874, it is true, is an admission that Mrs. Patterson then had only the interests therein described, but it admits nothing as to her title when she afterwards, on the 25th day of August, A. D. 1874, conveyed the whole by a warranty deed. Taliaferro, as has been seen, testifies that she then claimed that her children wanted her to sell the property and move to California,—that she had obtained deeds of the interests in the property of all of her children; and it is clear, if she had obtained such deeds, then she had ceased to be a tenant in common, was entitled to the sole possession, and might sell and convey this property just as if she had always been sole owner. The question is not, what title did she actually have,—but, what title did she assume to have and to convey. Color of title does not mean actual title, nor does the question of notice of outstanding titles affect it. Dickenson v. Breeden, supra; Woodward v. Blanchard, 16 Ill. 433; McCagg v. Heacock, 34 id. 476; Cook v. Norton, 43 id. 391; Rawson v. Fox, 65 id. 200; County of Piatt v. Goodell, 97 id. 84; Conner et al. v. Goodman, 104 id. 365; Smith v. Ferguson, 91 id. 304.

Taliaferro swears, that when Jane Patterson told him she had obtained deeds of the interests of all her children, he believed her, and that he then paid her $300 for a warranty deed for the lot, in good faith; and these cases hold, that the fact that he was negligent in not examining the records, and requiring the production of the deeds, is not sufficient to overcome that testimony. As was said in McCagg v. Heacock: “The knowledge of an adverse claim upon property does not, of itself, indicate bad faith in a purchaser, and is not even evidence of it, unless accompanied by some improper means to defeat such claim. ” (See, also, Whitney v. Stevens, 77 Ill. 586, and Coleman v. Billings, 89 id. 183.) In the last named case we quoted, with approval, from McCagg et al. v. Heacock, 42 Ill. 157, this language: “The doctrine is, that bad faith, as contradistinguished from good faith, in the Limitation act, is not established by showing actual notice of existing claims or liens of other persons to the property, or by showing a knowledge, on the part of the holder of the color of title, of legal defects which prevent the color of title from being an absolute one. Where there is no actual fraud, and no proof showing that the color of title was acquired in bad faith, which means in or by fraud, this court will hold it was acquired in good faith.”

The only circumstance here relied on as showing bad faith in the purchase, aside from the question of notice of record, and that Taliaferro ought to have known, and would, if he had been diligent, that Alvin Patterson was a minor, and therefore could not convey his interest in the lot, by a good deed, to his grandmother, is the evidence of one witness that the lot was worth more, by several hundred dollars, than Taliaferro paid for it. There was no proof that Jane Patterson was in any way misinformed or deceived by Taliaferro, or that the value of the lot was not as easily to be ascertained by her as by him, or, indeed, that she has ever been, or is now, dissatisfied with the price she received for the lot. This is, very clearly, insufficient to prove such fraud as is within the contemplation of the cases referred to.

But it is further contended, that inasmuch as Jane Patterson was only, in fact, a co-tenant of the property with the other heirs-at-law of Matthew Patterson, her deed only conveyed her interest to Taliaferro, and he thereby became only a tenant in common, as she had been, and that it is not any further even color of title. Had her deed only purported to convey her interest in the property, this would be true; but her deed, as has been seen, assumes to convey the entire title to the lot, and to warrant and defend it. This operated as a disseizin of her co-tenants, and the statute commenced running against them from the moment it was put upon record, followed, as it was, by the exclusive possession and payment of taxes by Taliaferro. It is said by a modern author of high standing: “If the conveyance made by a tenant in common, in addition to purporting to dispose of the entirety, contains a covenant of general warranty against the claims of all persons, no room is left for a doubt that the grantor intended to ■deal with the lands as his individual estate, and that the grantee believed that he was acquiring an estate in severalty. The entry of the grantee can not be presumed to be that of a co-tenant, or in subordination of the rights of co-tenancy. Acts of ownership on the part of such a grantee must necessarily be adverse to any other part owner. His possession, taken under such deed, and continuing the requisite period of time, creates in him a complete title in severalty, by virtue of the Statute of Limitations. When one tenant in common conveys the whole estate in fee, with covenants of seizin and warranty, and his grantee enters, - and claims and holds exclusive possession, the entry must be deemed adverse to the title and possession of the co-tenant, and amount to a disseizin. ” Freeman on Co-tenancy, sec. 224. See, also, authorities cited by him, and Parker v. Proprietors of Lock, etc., 3 Metc. 91, (37th Am. Dec. 121, and notes on p. 126,) and, also, Goewey v. Urig, 18 Ill. 234, and Hinkley et al. v. Green, 52 id. 223.

The judgment must be affirmed.

Judgment affirmed.


author: Mr. Justice Muleey

text:
    The People ex rel. William C. Seipp v. The Chicago and Northwestern Railway Company.

      Filed at Ottawa November 13, 1886.

    _ 1. Road tax—as to highways within incorporated cities, etc.—powers of commissioners of highways. Statutes conferring, in general terms, authority upon commissioners of highways to construct and maintain roads and bridges within their respective towns, will not be so construed as to authorize the exercise of such authority in respect to highways within the limits of incorporated cities and villages in such towns.
    2. So a road tax, levied by commissioners of highways for the improvement of certain public roads, a part of each of which lies within an incorporated village, is illegal, and its collection may be enjoined.
    Appeal from the County Court of Cook county; the Hon. Biohard Prendergast, Judge, presiding.
    Mr. Consider H. Willett, for the appellants:
    The proceedings were not void because part of the two roads mentioned in it were located partly within incorporated villages in said township.
    The commissioners had the authority to levy this tax under the act of 1883, known as the Hard Boad law. That law is not limited to roads outside of incorporated villages. It would be oppressive to tax all the property within the villages to build roads wholly outside their limits. But if the tax is held void, the remedy by injunction does not exist, there being an adequate remedy at law. Jones v. Newhall, 115 Ill. 244.
    Mr. W. C. Goudy, for the appellee the'railway company:
    It was not the intention of the legislature to take from the trustees of villages their powers as to the streets and roads .within their corporate limits. Town of Ottawa v. Walker, 21 Ill. 605; Commissioners v. Baumgarten, 41 id. 254; People v. LaSalle County, 111 id. 527.
    Messrs. Wilson & Moore, for the appellees:
    Municipal corporations have exclusive jurisdiction over -the streets and highways within their limits. Quincy v. Bull, 106 Ill. 349; Dock and Canal Co. v. Garrity, 115 id. 163.
    The Hard Boad act does not give the highway commissioners power to improve village streets.
    Mr. H. W. Dikeman, also for the appellees:
    The commissioners of highways (town officers) have no jurisdiction over the streets within the limits of said incorporated villages. (Beferring to the cases cited by Mr. Goudy, as above.)
    The General Assembly may vest the corporate authorities of cities, towns and villages with power to make local improvements, by special assessment, or by special taxation of contiguous property, or otherwise. Const. 1870, art. 9, sec. 9.
    In accordance with that clause of the constitution, the legislature passed an act entitled “An act to provide for the incorporation of cities and villages, ” -which act empowered the corporate authorities of cities and villages to make local improvements by special assessment or special taxation. Bev. Stat. chap. 24, art. 9, sec. 116.
    Cities and villages organized under said act, thereby became separate road districts. Cooper v. Ash, 76 Ill. 11.
    The power to make local improvements is expressly delegated to the authorities of incorporated villages, by that act, and there can be no question but that their power is exclusive, and all other bodies are deprived of its exercise. Town of Ottawa v. Walker, 21 Ill. 605 ; The People ex rel. v. Board of Supervisors, 111 id. 527; Comrs. of Highways v. Baumgarten, 41 id. 254.

      Mr. George L. Thatcher, for the appellee D. A. Thatcher
    The tax was void because levied by the township authorities for the improvement of roads the greater portion of which were within the limits of incorporated villages.
    Under the city and village Incorporation act, the control of the'village streets is vested exclusively in the village trustees. Town of Ottawa v. Walker, 21 Ill. 605.
    A court of equity has authority to enjoin the collection of a tax levied without authority of law.
    The tax sought to be enjoined was levied upon appellee’s personal and real property.
    Counsel for appellant insists, that if the tax is held void, yet the remedy by injunction does not exist, and to sustain his position relies upon a case from Massachusetts. The authorities in this State settle the law the other way. Drake v. Phillips, 40 Ill. 388; Vieley v. Thompson, 44 id. 9; Cumberland County v. Webster, 53 id. 141; Town of Ottawa v. Walker, 21 id. 605; Ottawa Glass Co. v. McCaleb, 81 id. 566; Barry v. Railroad Co. 98 id. 205.

       This case was considered with Frank Meyer et al. v. David A. Thatcher, on appeal from the circuit court of Cook county,—the Hon. Thomas A. Moran, Judge, presiding.

   Mr. Justice Muleey

delivered the opinion of the Court:

The controlling question in the above cases being the same, they have been consolidated, and will be considered together. The first is an appeal, by the People, from an order of the county court of Cook county, sustaining objections to and denying application for judgment against the right of way, etc., of the Chicago and Northwestern Bailway Company, for the amount of a special road tax levied by the commissioners of highways of the town of Proviso, Cook county, under the act of 1883. The other case is an appeal by Frank Meyer, as collector of said town, from a decree of the circuit court of Cook county, rendered upon a bill filed therein by David A. Thatcher, as a tax-payer, perpetually enjoining Meyer from collecting the same tax. The record shows, and it is a conceded fact, that the tax in question was levied for the improvement of certain roads, a part of each of which lies within an incorporated village in said town.

The controlling question in these cases, and the only one necessary to notice, is, whether a tax levied for the purpose, and under the circumstances stated, is a valid tax. The lower courts have both, on the authority of Ottawa v. Walker, 21 Ill. 605, Commissioners v. Baumgarten, 41 id. 254, and People v. Supervisors, 111 id. 527, answered this question in the negative, and, we think, properly. An examination of the eases cited, conclusively shows that this court is fully committed to the principle, that statutes conferring, in general terms, authority upon commissioners of highways to construct and maintain roads and bridges within their respective towns, will not be so construed as to authorize.its exercise within the territorial limits of incorporated cities and villages in such towns. This construction commenced under the constitution of 1848, and has received the fullest recognition under the present constitution.

Waiving the question of constitutional power, we perceive nothing in the act of 1883, under which these proceedings were had, which justifies the conclusion that the legislature intended the present act should have a more extended operation than former acts, conceived in like general terms, upon the same subject. It is rather to be presumed, the act was framed with special reference to the settled construction given to such former acts. It could not have been intended by the act of 1883, to modify or in any manner limit the power of cities and villages over public highways and bridges within their corporate limits. And the proposition that the jurisdiction of the town and these municipalities, with respect to such matters, is concurrent, is obnoxious to so many vital objections that it can hardly be entertained. It were useless to attempt to enumerate the complications and difficulties that would be most likely to arise in an effort to exercise such concurrent jurisdiction. These considerations lead to the construction and course of decisions hitherto adhered to, and we have no disposition to depart from them now. If there be hardships and inequalities in the law as it exists, the legislature is the proper tribunal to correct the evil, and not the courts.

The judgments will be affirmed.

Judgments affirmed*


text:
    In the matter of Eugene H. Bates, Assignee.

      Filed at Ottawa November 13, 1886.

    1. Insolvent debtors—assignment for the benefit of creditors—of creditors whose claims are otherwise secured. In case of an assignment for the benefit of creditors, the assignee will take the estate assigned, in trust for the benefit of all the creditors of the insolvent, notwithstanding some of them may have their debts secured by deed of trust, or otherwise; and such secured creditors are entitled to share, equally with unsecured creditors, in. any and all dividends and distributions of the insolvent estate.
    2. Where a debtor assigns property incumbered by a mortgage or trust deed, the assignee will take subject to the lien of the mortgage or trust deed. All he will take is the equity of redemption. He will have no control over the interest of the holder of the mortgage.
    3. A mortgagee may foreclose his mortgage, or bring his action at law on the mortgage debt, and make the same out of other property than that mortgaged; and when the mortgagor makes a general assignment for the benefit, of all his creditors, the mortgagee may claim his dividend on his whole debt out of the general assets of the estate. In such case, the amount of the dividend should be credited on the debt, and the mortgage foreclosed for the balance, only, and in case of a surplus, that will go to the assignee for the benefit of the other creditors.
    4. In the settlement of an insolvent estate, the proper course is to allow a creditor to prove his whole debt, without regard to any collateral security he may hold; and if the dividend so reduces the debt that the collateral security will more than pay it, the assignee is bound to redeem for the benefit of the other creditors.

      Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Bureau county; the Hon. George W. Stipp, Judge, presiding.
    Messrs. Eckels & Kyle, and Mr. H. T. Gilbert, for the appellant:
    The general principle is, that if one party has a lien on or interest in two funds for a debt, and another party has a lien on or interest in one, only, of the funds, for another debt, the latter has a right, in equity, to compel the former to resort to the other fund, in the first instance, for satisfaction. 1 Story’s Eq. Jur. sec. 633; Wire v. Shepherd, 13 Ill. 41; Hurd v. Eaton, 28 id. 122; Marshall v. Moore, 36 id. 327; Morrison v. Kurtz, 15 id. 193; Doyle v. Murphy, 22 id. 502; Sweet v. Redhead, 76 id. 374; Rogers v. Meyers, 68 id. 92; Hords v. Burton, 79 id. 508.
    The county court has full and complete jurisdiction over the trust fund in cases of voluntary assignments for the benefit of creditors, and over the assignee, and in the distribution of the fund. Rev. Stat. 1880, sec. 7, p. 146; Freydendall v. Baldwin, 103 Ill. 325.
    Messrs. Skinner & Bros., and Messrs. Kendall & Lovejoy, for the appellee:
    The rule in respect to the marshaling of assets has no application as between debtor and creditor. Rogers v. Meyers, 68 Ill. 92; Plain v. Roth, 107 id. 588.
    The assignee takes subject to all liens. (O'Hara v. Jones, 46 Ill. 288; Eames v. Mayo, 6 Bradw. 334.) He takes as a volunteer, and hence has no greater right than the assignor had. Hardin v. Osborne, 94 Ill. 571; Jenkins v. Pierce, 98 id. 646; Yrotman v. Savings Inst. 95 U. S. 764; Stewart v. Platt, 101 id. 731.
    The rule in equity, that when one party has a lien on two funds, and another has a lien on one of them, only, the latter may require the former to resort to the other fund in the first instance, has two exceptions : that it shall not operate to the prejudice of the former, and that it works no injustice to-the debtor. Brown v. Cozard, 68 Ill. 178; Morrison v. Kurtz, 15 id. 193; Sweet v. Redhead, 76 id. 374; 1 Story’s Eq. Jur. secs. 558, 559, 560, 633; Brinkerhoff v. Marvin, 5 Johns. Ch. 320; Woolcocks v. Hart, 1 Paige, 185.
    A party may hold a mortgage security and still be' entitled to take a dividend on the full amount of his debt out of the assets of an insolvent estate, irrespective of the security held for its payment. Findlay v. Hosmer, 2 Conn. 330; West v. Bank of Rutland, 19 Vt. 403; Morris v. Ohoine, 22 Pa. St. 441; Graeff’s Appeal, 79 id. 146.
   Mr. Justice Magruder

delivered the opinion of -the Court f

On July 2, 1883, Sower Bros, made a trust deed to George-S. Skinner, upon their mill property in Princeton, Bureau, county, to secure their notes to the appellee, Annie G. Paddock; on April 26, 1884, they made an assignment, for the-benefit of their creditors, to appellant, Eugene G. Bates, and, in the list of creditors, attached thereto, named appellee, as-having a claim for $1000; on May 15,1884, the assignee gave notice to all creditors to present their claims within three-months; on August 14, 1884, appellee presented to the assignee and proved her claim for $1017, being the amount due-upon the notes, so held by her; on August 18, 1884, theassignee reported and filed with the clerk of the county court, a list of the creditors, who had proved their claims, including therein appellee’s claim, and stating therein, that said claim was secured by the trust deed, above named; no person, interested as creditor or otherwise, filed any exceptions to her claim within thirty days, or at any time; on December 30, 1884,. the assignee filed, in the office of the county clerk, his report, showing, that the total amount of all claims filed, including that of appellee, was $14,428.58, and that the total amount in his hands, subject to distribution, was $5162.65, that appellee’s claim then amounted to $1043.33, and that the property, described in the trust deed, securing it, was worth only $765.75, and therein praying for an order of distribution of thirty per cent among the creditors, except appellee, and, as to her claim, for an order to pay her thirty per cent on the excess of her claim over and above $765.75, and to hold in his hands thirty per cent on said $765.75, until her rights in the mortgaged property should be determined and realized upon, or until the further order of the court; the assignee’s report, dated December 30, 1884, wTas approved by the county judge on January 27, 1885, and a dividend ordered in accordance with the prayer thereof; appellee took an appeal to the circuit court of Bureau county, and, upon a hearing of the cause on September 29, 1885, the circuit court rendered a decree, approving said report of the assignee, affirming the order of the county court, made thereon, and directing a distribution to be made in the same manner, as directed by the county court; at the hearing, appellee offered to surrender or assign her claim and trust deed to the assignee, or other creditors, on payment of her claim in full, or to release her claim and trust deed upon payment of her claim in full by the assignee or creditors, but such offer was refused; at the hearing, also, appellee entered her motion for a dividend of thirty per cent upon the full amount of her claim, as proven and reported, which motion was overruled by the circuit court; appellee prosecuted her appeal from the circuit to the Appellate Court the Appellate Court reversed the decree of the circuit court, remanded the cause with directions, that an order of distribution be entered, giving the appellee here, who was the appellant there, a dividend upon the full amount of her claim, and adjudged, that she should recover of the assignee, Bates, who was appellee there, and appellant here, her costs; the Appellate Court has allowed the assignee an appeal to this court, upon a certificate, that the case involves questions of law of such importance, on account of the principal and collateral interests, as that it should be passed upon by the Supreme Court.

The question, presented for our consideration, is, whether the assignee should have paid appellee a dividend upon the whole .amount of her claim, as proved and reported, or a dividend only upon the excess of her claim over and above the value of the security, which she held. We think, that the Appellate Court decided correctly, and that the dividend should have been upon the whole amount of the claim.

The interest of the assignors in the property, covered by the trust deed, passed to the assignee, subject to the lien of the trust deed. All, that the assignee took by the deed of assignment, was the equity of redemption. The trust deed was owned by the cestui que trust, therein named, and could not be subjected to the control or disposition of the assignee.

The 13th section of the “Act concerning voluntary assignments,” etc., (Starr & Curtis’ Stat. p. 1307,) provides, that “every provision in any assignment, hereafter made in this State, providing for the payment of one debt and liability in preference to another, shall be void.” The payment, here referred to, is a payment to be made out of the assets, passed by the assignment to the assignee, or obtained by him, by virtue of his position, as assignee. If the letter of the law forbids any provision to be made, in the instrument of assignment, for preferential payments out of the assigned assets, the spirit of the law would forbid any such preferential payments in the mode of distributing such assets. To pay all the creditors, except one, dividends upon the full amounts of their respective claims, and, at the same time, to pay that one creditor a dividend upon a portion only of his claim, is to give a preference over one creditor to all the rest of the creditors.

The 13th section, above named, also provides, that “all debts and liabilities within the provisions of the assignment shall be paid pro rata from the assets thereof.” Appellee’s debt, as proved and reported, without objection or exception, was $1043.33. Her debt was not $277.58, the excess of $1043.33 over $765.75, the estimated value of her security. _ v Her whole debt was provided for in the assignment, because the whole of it was mentioned by the assignor himself, as one of his debts, in the attached list of liabilities. It was, therefore, the whole debt and not a part of it, which was to be “paid pro rata from the assets. ” It is true, that appellee held a trust deed, securing her debt, but such trust deed had never been foreclosed, and no part of the debt had been paid out of the security. Before the assignment, appellee could have filed a bill to forclose her trust deed, or, if she preferred, she could have sued at law on the notes and enforced “payment from other means than the mortgaged property. ” (Rogers v. Meyers et al. 68 Ill. 92.) She could have obtained judgment and levied on personal property, though holding a mortgage on real estate. So, after the assignment, she could claim her dividend on her whole debt out of the general assets of the estate, though possessed of a special security. Of course, she could have but one satisfaction. The amount of the dividend must be credited on the debt, and the mortgage foreclosed for the balance, and, in the event of a surplus, that surplus would go to the assignee for the benefit of the other creditors.

Counsel for appellant claims, that the Assignment act provides for winding up the trust within a limited time, and that such trust might be indefinitely prolonged, if its settlement should await the realization of a surplus, after foreclosure. By the decree of the circuit court, the assignee was to take from the assets thirty per cent of $1043.33, to-wit, $312.99, and, of this, pay thirty per cent on $277.58, to-wit, $83.27 to appellee, but the balance, to-wit, $229.72, that is, thirty per cent of $765.75, was to be held by him, until the trust, deed should be realized upon by foreclosure. The disposition of the $229.72, so left in the hands of the assignee, would be delayed fully as long as the ascertainment of the surplus-could be postponed.

When property pledged is unequal in value to the debt, to-hold, that it is payment to the extent of its value, would occasion insuperable inconveniences. Who is empowered to fix the value ? How. can a mortgage estate be rendered absolute-in the mortgagee, unless he chooses to foreclose, by suit, for condition broken ? How can the mortgagee be compelled to-make a conveyance of his estate to third persons, at an appraised value, unless his whole debt is paid ?

We are aware, that there is conflict in the authorities upon, this subject. The doctrine, that a creditor, under a general assignment, who has a special security, can only claim a dividend upon the amount remaining unpaid, after exhausting the property, upon which he has such special lien, is-supported by decisions in Iowa, New York and Bhode Island, among which are the following cases: Wurtz et al. v. Hart et al. 13 Iowa, 515; Besley v. Lawrence, 11 Paige, 581; Knowles, Petitioner, 13 R. I. 90. These cases found their conclusions mainly upon the well known equitable rule, that, when one creditor has a lien upon two funds, and another a lien upon only one of them, the former will be compelled to resort, for satisfaction, in the first instance, to the fund,, upon which he has an exclusive lien. They seem, however, to overlook the important qualification, that the rule in question will not be enforced, whenever it will trench upon the rights, or operate to the prejudice of the party, entitled to the-double fund. (Sweet et al. v. Redhead, 76 Ill. 374; Brown v. Cozard, 68 id. 178; United States v. Duncan, 12 id. 523.) In its application, the paramount incumbrancer must not be “delayed or inconvenienced in the collection of his debt, for it would be unreasonable, that he should suffer, because some one else has taken imperfect security.” 3 Pomeroy’s Equity, sec. 1414.

It is easy to see, that, if this rule is enforced in the case at bar, it will work to the prejudice of appellee. She can not realize her whole debt by foreclosing the trust deed. It is admitted, that the property, covered by the trust deed, is worth less than her whole debt by the sum of $277.58. If she sliould first foreclose and realize $765.75, the value placed upon her security, she would then receive, in addition thereto, under the ruling of the circuit court,- only $83.27, the thirty per cent of $277.58, making her total receipts $849.02, and leaving $194.31 of her debt unpaid. But if she should be paid thirty per cent of her whole claim, to-wit, $312.99, in the first place,, and the $765.75 should be realized by foreclosure hereafter, she will have been paid in full, and a small surplus left over for the creditors. If the $229.72, held by the assignee, should eventually all be paid to her, the order of the circuit court delays and inconveniences her in the collection of her debt, as she is compelled to wait for her dividend, until a foreclosure shall be effected, while the other creditors receive their dividends at once.

The weight of authority is with the position here taken, that appellee is entitled to a dividend upon the full amount of her claim, before exhausting her security. Story, in 1 Equity Jurisprudence, sec. 564 b., says: “The general rule, in the settlement of insolvent estates, is, to allow the creditor to prove his whole debt, without regard to any collateral security he may hold. If the dividend so reduces the debt, that the collateral security will more than pay it, the personal representative is bound to redeem for the benefit of the general creditors.”

Jones on Pledges, sec. 587, says: “The pledgee may prove his whole claim against the pledgor’s estate in insolvency without deducting the value of his security. This is the rule more generally adopted in the absence of a statutory requirement. If the dividend so reduces the debt, that the collateral security will more than pay it, the security must be redeemed for the benefit of the general creditors. This rule gives effect to the equitable principle, that a creditor’s diligence shall be rewarded by giving him his full legal rights. ”

In Morris v. Olwine, 22 Pa. St. 441, which was a case of distribution under an assignment for the benefit of creditors, a creditor by bond and mortgage was held entitled to a pro ■rata dividend on his whole claim, even though he had collected the greater part of it out of the mortgaged property, "the amount collected and the dividend together not being sufficient to satisfy the debt. He was not restricted to a ■dividend on his claim, as reduced by the proceeds of the mortgage. To the same effect are Miller’s Appeal, 35 Pa. St. 481, and Graeff's Appeal, 79 id. 146, both of which were cases of distribution under assignments for the benefit of creditors. The Pennsylvania decisions hold, that a creditor is entitled to a dividend under an assignment, not merely as a creditor, but as an equitable owner of the assigned estate, and that the extent of his ownership is fixed by the amount of his claim, when the assignment is made.

The doctrine, here contended for, is further sustained by the following cases: Jervis v. Smith, 1 Sheldon, (N. Y.) 189; Mason v. Bogg, 2 My. & Cr. 443, 446; Putnam v. Russell, 17 Vt. 54; West v. Bank of Rutland, 19 id. 403; Walker v. Barker, 26 id. 710; Moses v. Ranlet, 2 N. H. 488; Findlay v. Hosmer, 2 Conn. 350; Logan v. Anderson, 18 B. Mon. 114; Schunk’s Appeal, 2 Barr, 304; Duncan v. Fish, 1 Aiken, 231; Evertson v. Booth, 19 Johns. 486; Van Mater v. Ely, 13 N. J. Eq. 271.

The rule, laid down in these cases, is in harmony with the spirit of our own decisions. In Morrison v. Kurtz et al. 15 Ill. 193, Morrison held notes, signed by the three partners in a firm, composed of Kurtz, Davis and Loyd, which notes were secured by a trust deed upon the separate estate of Loyd. After dissolution of the partnership by the death of Davis and Loyd, in an equity proceeding begun by Kurtz, as surviving partner, certain mill property, owned by the firm, was sold, under the decree of the court, to raise money to pay the debts. Morrison was a general creditor of the firm, claiming his share of the proceeds of sale, and, at the same time, held special security against the land of one member of the firm. This court there said: “The only objection to Morrison’s sharing in the distribution is, that the estate is insolvent, and that his debt is secured by a deed of trust of Loyd’s private estate, to which he can resort for the payment of his debt, and to which the other creditors of the firm can not resort for the payment of their debts. * * * We think, that he has a right to insist upon his distributive share of the cash, raised from the sale of the property, as a creditor of the firm. As a creditor of the firm, he has the same abstract right to the proceeds of the sale, as the other creditors. He is as meritorious in every respect as they; and, because he was more vigilant and cautious in requiring security, it is no reason, why he should be put in a worse condition than the other creditors, by having his debt postponed and his payment delayed, till, by a proper proceeding, he can realize out of the property, upon which his debt is secured, while the other creditors are paid in cash.” Brown v. Cozard, supra; Sweet v. Redhead, supra.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    Samuel E. Holtzman v. Joseph Hoy.

      Filed at Ottawa November 13, 1886.

    1. Malpractice—surgery—degree of knowledge and skill required. It is the duty of one undertaking to treat a fractured limb, to bring to the case that degree of professional knowledge, skill and care which a good physician and surgeon would bring to a similar case under like circumstances.
    2. While the law does not exact the highest degree of skill and proficiency attainable in the professipn, it does not, on the other hand, contemplate merely average merit.
    3. Same—evidence—burden of proof. In an action against a physician and surgeon, for malpractice, the professional skill of the defendant is put in issue, and the burden of proof is upon the plaintiff to show a want of it. The only proper way of showing this, is by proving that he did not exercise it in the treatment of the plaintiff; and the possession or want of proper skill can not be proved by general reputation.
    4. So in such case, there is no error in refusing to allow the defendant to prove his reputation in the community and among the profession, as to being a skillful and learned physician.
    Writ of Error to the Appellate Court for the Seeond District ;—heard in that court on writ of error to the Circuit Court of Livingston county; the Hon. Franklin Blades, Judge, presiding.
    Messrs. Stevenson & Ewing, for the plaintiff in error:
    A physician or surgeon is only bound to possess the ordinary skill and learning possessed by those ordinarily learned and skillful in his profession, and to exercise his best care and skill. 1 Hilliard on Torts, 225; McClelland on Malpractice, 215; Leighton v. Sargent, 7 Foster, 460; Tift v. Wilcox, 6 Kan. 61; Branner v. Storment, 9 id. 51; Simons v. Henry, 39 Me. 155; Quinn v. Donovan, 85 Ill. 194; Ritchey v. West, 23 id. 385; McNevins v. Lowe, 40 id. 210.

      We were allowed to prove the defendant’s experience, and that he was a graduate of a medical college, as tending to ■show he possessed ordinary skill in his profession; and no reason is perceived why he should not prove his standing and reputation among his medical brethren in the same community, for the same purpose.
    Messrs. Stbawn & Patton, for the defendant in error:
    The court properly excluded evidence of the defendant’s reputation as an ordinarily skilled physician and surgeon. Boydston v. Giltner 3 Oreg. 118; Williams v. Poppleton, id. 139; Leighton v. Sargent, 11 Foster, 120 ; Mertz v. Detweiler, 8 W. & S. 376.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The present writ of error brings before us for review a judgment of the Appellate Court for the Second District, affirming a judgment of the circuit court of Livingston county, in favor of Joseph Hoy, the defendant in error, and against Samuel B. Holtzman, the plaintiff in error, for the sum of $2500. The action, in form, was trespass on the case, and the cause of action was alleged negligence and unskillfulness on the part of the defendant, as a physician and surgeon, in the treatment of the plaintiff's leg for a serious and complicated fracture.

The case is submitted here on the briefs and arguments filed in the Appellate Court, and, as it most usually happens when this course is pursued, they are, in the main, occupied with a discussion of controverted questions of fact,—a matter "with which we have no concern. The case, so far as it is open to review here, is brought within a very narrow compass, and may be disposed of in a few words.

On the trial below, the court refused to permit Dr. Gaylord, one of the defendant’s witnesses, to answer the following question: “I will ask you what his (Dr. Holtzman’s) reputation is in the community, and amongst the profession, as being an ordinarily skillful and learned physician,”—and the court’s action in disallowing the question is assigned for error. Waiving the formal objections to this question, which are apparent, we have no doubt of the correctness of the ruling of the court upon it. The duty which the defendant, as a physician and surgeon, owed the plaintiff, was to bring to the case in hand that degree of knowledge, skill and care which a good physician and surgeon would bring to a similar case under like circumstances. While this rule, on the one hand, does not exact the highest degree of skill and proficiency attainable in the profession, it does not, on the other hand, contemplate merely average merit. In other words, in order to determine who will come up to the legal standard indicated, we are not permitted to aggregate into a common class the quacks, the young men who have had no practice, the old ones who have dropped out of the practice,—the good and the very best,—and then strike an average between them. This method would evidently place the standard too low. As a physician or surgeon can not bring the requisite skill to any case unless he has it, it follows, the professional skill of the defendant was, if not in express terms, at least by implication, put in issue in this case, and the onus probandi was upon the plaintiff to show his want of such skill. The proper and only mode of doing this was by proving that he did not exercise it in the treatment of the plaintiff’s leg.

It does not, however, follow, that because the defendant’s skill, or rather the want of it, was put in issue, it could be either established or disproved by showing his general reputation. While his skill, or the want of it, was put in issue, his reputation in that respect was not put in issue, and, therefore^ evidence to establish it was properly excluded. Suppose it appeared, from the evidence, the treatment of the plaintiff’s leg was proper, and in every respect according to the most approved surgery, and evidence of the character offered had been admitted, would it have availed the plaintiff anything if it further appeared, from the evidence, that the defendant was generally reputed to be an unskillful and unsafe surgeon ? Surely not. The hypothesis here suggested, as we conceive, is but a presentation from a different standpoint of the principle contended for, but in a way that more forcibly illustrates its unsoundness.

There are many reasons, outside of those mentioned, why evidence of this character is not admissible. First, its bearing upon the issue is too remote, and in many, if not most, of cases, it would tend to mislead the jury rather than enlighten them. The veriest quack in the country, by his peculiar methods, not unfrequently becomes very famous, for the time being, in his locality,—so much so that every person in the neighborhood might safely testify to his good reputation. It is true, that one’s reputation thus acquired is generally of short duration. His patrons, sooner or later, must pay the penalty of their credulity, by becoming the victims of his ignorance, and, with that, his good name vanishes. Yet, according to the principle contended for, the quack, in such case, when called to account for his professional ignorance, might successfully entrench himself behind his previous good reputation. Again, one may, in many respects, be a good practitioner, and deservedly stand well in the neighborhood in which he lives, and yet, at the same time, be grossly ignorant about some matter in the line of his profession, which would render him liable, if, by reason thereof, his patient should be improperly treated, and thereby subjected to loss or injury. In such case it is manifest, evidence of the defendant’s good reputation would be no answer to an action brought for the injury sustained, and its admission would be clearly calculated to mislead the jury.

Other illustrations might be given of the impropriety of admitting such testimony, but it is not necessary to do so.

The general view here presented we think sufficiently meets the main points made by counsel for plaintiff in error upon the defendant’s refused instructions, and for this reason we do not deem it necessary to discuss them in detail. Suffice it to say, in general terms, that, taking the instructions as a whole, we think the law, as applicable to the case made by the evidence, was fairly laid down to the jury, and that in this respect plaintiff in error has no ground to complain.

In this connection it may be added, that the opinion in this ■case, delivered by Mr. Justice Baker, in the Appellate Court, discusses the questions made upon the instructions in a very full and elaborate manner, and we are fully satisfied with the view taken of them in that opinion.

The judgment will be affirmed.

Judgment affirmed.