text:
    Laura D. Mott et al. v. The Danville Seminary et al.

      Filed at Springfield June 15, 1889.

    1. Corporations—powers—limited by charter. A corporation has no powers other than those expressed in its charter, and such incidental powers as are necessary to carry into effect those specifically conferred.
    2. Same—reverter of property—upon dissolution of corporation. The title of a corporation to property owned by it ceases to exist when the corporation ceases to exist; and hence it was held, at common law, that upon the dissolution or civil death of a corporation, all its real estate remaining unsold reverted back to the original grantor or his heirs.
    3. This rule of the common law, however, has been modified in modem times, in respect to corporations organized for pecuniary profit. In respect to such corporations, the shareholders are the original donors of the corporate property, each member contributing his share of the capital for the common benefit of all; and the corporation, so long as it remains solvent, will hold the property given it, merely as trustee for its shareholders. When such a corporate body is dissolved or becomes insolvent, equity will see that its property is distributed, first to the payment of its debts, and next among its stockholders.
    4. But in the absence of statutory regulations to the contrary, the doctrine of reverter to the original owner or his heirs, in case of corporate dissolution, is applicable at this day to public and eleemosynary corporations, even in the view of a court of equity.
    5. Same—reverter—as to property alienated before dissolution. This common law rule of reverter applies, by its terms, only to such legal right or title as is in the corporation at the time of its dissolution, and not to such as has been previously alienated by the act of the corporation. The reverter to the original grantor or his heirs will be defeated by the alienation of the fee before dissolution of the corporation.
    6. Same—diverting donation to wrong uses—in case of a gift with or without condition—under act of 1819. By section 6 of the act of 1849, for the incorporation of institutions of learning, a corporation organized thereunder was obliged to apply any donation made to and accepted by it, “in conformity with the express conditions of the donor.” A conveyance of land as a donation to a seminary formed under the act, was for the building and maintaining thereon such an institution of learning as was provided for in the act: Held, that if, under the condition in the deed, the corporation was to build and maintain an institution of learning upon the land, it had no power to dispose of the land to private parties, to be used for other purposes.
    7. But even if the conveyance to the seminary were an absolute gift, without conditions, the land could not be disposed of, under section 4 of that act, except for the use of the institution formed thereunder, and in such manner as should seem most beneficial thereto. A conveyance by the corporation to private persons after it had ceased to maintain an institution of learning, and on the eve of a judgment of forfeiture of its corporate rights, not intended to be for its use or benefit, can not be sustained, for want of power to make the same.
    8. Same—deed by a corporation—its execution and authentication— and by whom. The mode of assenting to and authenticating the act of a corporate body which uses a seal, is to affix the seal, with a declaration that it is the seal of the corporation, and to verify the act by the signatures of the president and secretary. A deed of a corporation having a seal, without being authenticated as required bylaw, is a nullity, and confers no rights.
    9. The president and secretary of the board of trustees of an institution of learning have no power to make a deed of the corporate property, unless authorized to do so by the board of trustees.
    10. • Condition subsequent—non-performance—how the estate to be defeated. A non-compliance with a condition subsequent does not, of itself, determine the estate, as the right to enforce a forfeiture may be waived. Notwithstanding the breach, the estate abides in the grantee until it is defeated and determined, at the election of the grantor or his heirs. This election may be signified by a re-entry, or by some act equivalent to a re-entry.
    11. Where a corporation holding land under a deed containing a condition subsequent, is dissolved for acts or omissions, which are also breaches of the condition, the title will revert to the original donor without any act on his part, and no re-entry or other act equivalent thereto need be shown. The dissolution of the corporation by judicial decree or judgment, supersedes the necessity of any re-entry or other equivalent act.
    12. In this case, the owner of land conveyed the same to the board of trustees of a corporation organized under the, act of 1849, for the incorporation of institutions of learning. The deed was without consideration, and was a mere gift to the corporation, “for the building and maintaining on said grounds an institution of learning, as provided by said law,” etc.: Held, that the deed was made upon a condition subsequent, that the board should maintain upon the land an institution of learning, in accordance with the provisions of the act of 1849.
    13. The effect of such deed was to vest a fee simple estate in the board, subject to be defeated by their non-compliance with the condition, and by the action resulting from such non-compliance, which is provided in section 12,—that is, a proceeding on behalf of the State to declare a forfeiture of all the rights and privileges secured by the act.
    14. Partition—settling questions of title. Where the court obtains jurisdiction of a proceeding for the partition of land, it is authorized by the statute to proceed to settle questions of controverted title between the parties, and to vest titles by its decree. It may also remove clouds upon th e title to the premises, even though the defendants holding adversely under such clouds are in possession of the property.
    Appeal from the Circuit Court of Vermilion, county; the Hon. Edward P. Vail, Judge, presiding.
    Mr. E. D. McDonald, and Mr. W. E. Lawrence, for the appellants:
    On the dissolution of a corporation its lands revert to the grantor, but he must make re-entry. Coke on Littleton, 13 b; 2 Blackstone’s Com. 256; Life Association v. Fassett, 102 Ill. 315; Bank v. State, 1 Blackf. 282; Bingham v. Windermox, 2 Com. 509.
    The only lawful way the dissolved corporation could have conveyed, was pointed out in section 4 of its charter, namely, for the use of said institution, in such manner as should be most beneficial thereto.
    The powers given the corporation must be construed with reference to the objects in view in creating it. Angell & Ames on Corp. (10th ed.) sec. 110; Betts v. Menard, 1 Breese, 398; Fitch v. Pinckard, 4 Scam. 78; Metropolitan Bank v. Godfrey, 23 Ill. 602; Webster v. People, 98 id. 347; Petersburg v. Mappin, 14 id. 193; Kinzie v. Chicago, 1 Scam. 187.
    In Abbott v. American Hard Rubber Co. 33 Barb. 592, the court held that “corporations have no power to alienate property necessary for their business.”
    The common seal of the corporation was not affixed to the pretended deeds; nor did the hoard of trustees, managers or directors of the corporation authorize the deeds to be made. Wilcox v. Kinzie, 3 Scam. 188.

      Such power as the dissolved corporation had to convey under its charter, could be exercised only by the corporation, „ or by an agent especially authorized by it. The president, appointed under section 8, had no such power by virtue of his appointment; nor could he and the secretary, unless especially authorized by the corporation, make such conveyances. Angelí & Ames on Corp. secs. 231, 232, 277-280.
    The instruments are only prima facie deeds of the corporation, and we may show that they are not its deeds. Koehler v. Black River Co. 2 Black, 715; Phillips v. Coffee, 17 Ill. 157.
    Mr. J. B. Mann, for the appellee the Danville Seminary:
    A court of equity has no jurisdiction to remove a cloud when the holder thereof is in the adverse possession of the land,—and this rule can not be evaded by proceeding for partition. Partition is not intended as an alternative remedy with ejectment. Freeman on Go-tenancy, sec. 447.
    It is conceded that, by the strict rule of the common law, upon the dissolution of a corporation its real estate reverted to the grantor from whom it was acquired. The rule gave to the grantor an interest in the land not equal to a reversionary interest, which is a vested estate, but a conditional estate, which is named a “possibility of reverter.” It was this kind of an estate which was held by Melissa B. Lamon at the time the proceedings were begun to dissolve the old seminary corporation, and at the time said corporation conveyed the property to Phillips and Abdill, the grantors of this appellee. Such an estate, if it may be so named, invested the grantee with the power of alienation in fee simple, and by such alienation to cut off and extinguish the possibility of reverter.
    So long as the estate in fee remains, the owner in possession has all the rights in respect to it which he would have if tenant in fee simple, unless it be so limited that there is prop(erly a reversionary right in another, something more than a possibility of reverter belonging to third persons. 1 Wash-burn on Beal Prop. 63.
    Moreover, the rule of the common law, referred to, was -only operative as to such real estates the legal title to which remained in the corporation at the moment of its dissolution, and not to such as, by the act of the corporation or the act of law, had been previously alienated. Morawetz on Corp. sec. 800; Angelí & Ames on Corp. sec. 196 ; 2 Kent’s Com. 282.
    Conveyance by a corporation prior to its dissolution was one ■of the recognized means of preventing a reverter at common law. 2 Kent’s Com. sec. 282; 2 Preston on Estates, sec. .50.
   Mr. Justice Magruder

delivered the opinion of the Court:

This case was heard upon demurrer to the bill. The demurrer was sustained and the bill was dismissed. Therefore, in considering the questions involved, the allegations of the ' bill are assumed to be true.

The complainants below, who are the appellants here, claim to be the owners of an undivided one third part of the real ■estate, described in the bill, and of which they ask for a partition. They allege that their interest was conveyed to them, ■on March 21, 1888, by Melissa B. Lamon, who is claimed to have been at that time the owner in fee of the whole tract. The .appellees also derive title from Melissa B. Lamon. Did the latter have title when she made the conveyance to appellants ?

On November 15, 1850, Melissa B. Lamon and her husband ,-conveyed the land in controversy to the Board of Trustees of '"the Danville Seminary, a corporation organized under an act ■of the Legislature of this State entitled “An Act for the incorporation of institutions of learning,” approved January 26, , 1849, in force April 13, 1849. (Session Laws of His. of 1849, ■ page 86). The conveyance was without consideration, and was ■a mere gift or donation to the Seminary “for the building and ■maintaining on said grounds an institution of learning, as provided by said law authorizing said incorporation.”

Section 1 of said Act of 1849 provides “that any five or more persons being desirous of associating themselves for the purpose of establishing an institution of learning” may make- and file a certificate in writing, stating the name, number and names of the trustees, “the particular branches of literature and science or either of them proposed to be taught, and, if' said institution is to be of the rank of a college or university,, the number and designation of the professorships to be established.” Section 2 provides, that said persons shall be a body corporate with power to sue and be sued, etc., “to acquire, hold and convey property in all lawful ways,” to have and use-a seal, to make by-laws, and to confer academical or honorary degrees. By section 3 power is given to fill vacancies and to-“hold the property of said institution solely for the purposes-of education and not for the individual benefit of themselves,”' etc. Section 4 provides, that the corporation so formed “shall be competent in law and equity to take to themselves in their corporate name real, personal or mixed property by gift * * *" conveyance, will * * * and the same estate to grant, bargain, sell, convey * * * or otherwise dispose of the same, for the use of said institution, in such manner as shall seem most beneficial thereto.” By section 5 the trustees are required to apply the funds of the institution to in erecting suitable buildings, supporting instructors, etc., and procuring books, charts, apparatus, etc., “necessary to the success of' said institution.” Section 6 is as follows“In case any donation, devise or bequest shall be made for particular purposes, accordant with the designs of the institution * * * and the-corporation shall accept the same, such donation, devise or bequest shall be applied in conformity with the express conditions of the donor or devisor.” Section 7 limits the number of acres of land that may be held to 1000. Section 8 confers-the power to appoint and displace the president and professors, “and to prescribe and direct the course of studies to be pursued.” Section 9 provides for the giving of bonds by the treasurer and other agents. Section 10 specifies the mode of serving process upon the corporation. Section 11 requires, the trustees to file in each year with the Secretary of State and recorder a statement of the officers of the institution, with an inventory of its property and liabilities, the number of students, etc. Section 12 provides that, upon a violation of the-provisions of the act or a failure to comply with the same,, upon complaint to the Circuit Court, “a writ of scire faciasr shall issue, and the Circuit attorney shall prosecute in behalf of the people for a forfeiture of all rights and privileges secured by this act to such corporation.”

The bill avers that the incorporation in 18&2 built a building' upon said land and operated thereon an institution of learning, known as the “Danville Seminary,” until 1858, since which time it has ceased to operate and conduct any institution of learning, and that, in February, 1877, a proceeding by scirefacias was instituted, as provided in section 12, in the Circuit Court of Vermilion County against the Board of Trustees of Danville Seminary, who appeared therein and answered, for the purpose of dissolving and annulling said incorporation, and that, in October, 1880, a decree was entered by said court, “that said corporation be, and the same was, dissolved.”

The bill further avers “that said Board of Trustees of Dan-ville Seminary, at the time of its dissolution aforesaid, had no property, no creditors and no stockholders.”

If the corporation had made no valid alienation of the land in question before the decree of dissolution was entered ins 1880, such land reverted back to its original owner and donor, Melissa B. Lamon. As the act of 1849 does not direct what is to become of the property of the corporation in the event of its dissolution, the ground donated by Mrs. Lamon will be-disposed of in accordance with the principles of the common law as applicable in such eases. (Rev. Stat. chap. 28.)

The title of a corporation to property owned by it ceases-when the corporation itself ceases to exist, and hence it was. held, at common law, that, upon the dissolution or civil death of a corporation, all its real estate remaining unsold reverts back to the original grantor or his heirs. (1 Blackstone’s -Com. 484; 2 id. 256 ; 2 Kent’s Com. 307; Angell & Ames on Corp. sec. 195 (10th ed.); 2 Morawetz on Corp. sec. 1031; Life Ass’n of America v. Fassett, 102 Ill. 315).

It is true, that this rule of the common law has been modified and changed, in modern times, by courts of equity and legislative enactments. Such modifications and changes, however, have grown up in favor of corporations organized for pecuniary profit. In regard to the latter class of corporations, the shareholders al’e themselves the original donors of the corporate property, each member contributing his share of the ■capital for the common benefit of all; and the corporation, so long as it remains solvent, holds the property given it merely as trustee for its shareholders. (2 Morawetz on Corp. see. 1032.) When such a corporate body is dissolved or becomes insolvent, equity will Bee that its property is distributed, first to the payment of its debts, and next among its stockholders.

In England, the doctrine, that the real estate owned by a corporation reverts to the original owner upon its dissolution, was first applied in case of ecclesiastical and municipal corporations. The main reason for such application was that, in those cases, there were no shareholders and ordinarily no creditors, so that the property was really without an owner after the particular use, for which it had been given, had come io an end by the dissolution of the corporate body.

The reasons, which gave rise to the doctrine and originally justified its application, existed in the case of the Danville 'Seminary, as organized under the act of 1849, at the time when its dissolution took place. It is averred in the bill and ■admitted by the demurrer, that, at that time, the Seminary had no creditors and no shareholders. It is the equity in favor ■of creditors and shareholders, which prevents the enforcement of the rule, .when it is not followed. No such equity exists in this case, as the case is presented on the face of the bill. The Act of 1849 contains no provision for opening books of subscription, or for making or receiving subscriptions to capital stock. By its terms there were to be no stockholders, and it was evidently contemplated, that the institutions of learning therein provided for would be organized and supported by the aid of gifts and donations. The Danville Seminary, as organized under the act, was really an eleemosynary institution. In the absence of statutory regulations to the contrary, the doctrine of reverter to the original owner or his heirs in case of corporate dissolution is applicable, at this day, to public and eleemosynary corporations, even in the view of a court of equity. (Angel! & Ames on Corp. (10th ed.) sec. 779 a.)

But the bill in this case alleges, that, on July 5, 1877, while the scire facias proceeding was pending, and before judgment was rendered therein, “William H. Brown, pretending to act as President, and Joseph G% English, pretending to act as Secretary,” of The Board of Trustees of the Danville Seminary, “pretended lo execute a deed of conveyance” of said land to Edwin C. Abdill and James H. Phillips, and that afterwards said Abdill and Phillips “pretended to convey said premises, by deed of quit-claim, to The Danville Seminary, a corporation organized on October 10, 1879, under the statutes of this state providing for the formation of corporations not for pecuniary profit,” and the bill prays for removal of these deeds as clouds upon the title of complainants.

It is urged, however, by the present corporation known as “The Danville Seminary,” one of the appellees herein, that the “possibility of reverter” to Mrs. Lamon and her heirs was cut off by the deed to Abdill and Phillips, and by their subsequent deed to the appellee Seminary. Unquestionably, the common law rule, which we have been discussing, applies by its terms only to such legal right or title as is in the corporation at the time of its dissolution, and not to such as has been previously alienated by the act of the corporation. (Angelí & Ames on Corp. sec. 195, 10th ed.) If real property is conveyed to a corporation subject to no condition, it is said that the company may transfer the same, and, in such case, the title of a purchaser will not be affected by a subsequent dissolution of the corporation. (Morawetz on Corp. sec. 1031). Chancellor Kent thus states the doctrine: “On the dissolution of the corporation, the reverter is to the original grantor or his heirs; but the grantor will be excluded by the alienation in fee, and in that way the corporation may defeat the possibility of a reverter.” (2 Kent’s Com. page 282.)

The question then arises whether the instrument purporting to have been made by the old corporation, The Board of Trustees of the Danville Seminary, to Abdill and Phillips was such a conveyance as had the effect of transferring the title.

The bill alleges that the deed to Abdill and Phillips was without the common seal of the corporation, and that its execution was not in any manner authorized by the board of trustees. The bill furthermore charges, that the conveyances to Abdill and Phillips and to the appellee, “The Danville Seminary,” were merely colorable, and were shifts and devices, made use of for the purpose of defeating the reversionary right of Mrs. Lamon, and that said conveyances were not made “for any of the uses and purposes provided by the said act of incorporation,” but to divert the property “from the uses and purposes expressed in said act, and from the uses and purposes of said grant by Melissa B. Lamon to the Board of Trustees of Danville Seminary.” It is also alleged in the bill, that the appellee corporation, “The Danville Seminary,” since the deed to it, has leased the property to private parties, and applied the rents to the support of two churches, and is offering the premises for sale to private persons for private uses, and not for- use for any educational purpose whatever.

It has already been stated, that the old corporation was empowered by its charter “to have and use a common seal.” The mode of assenting to and authenticating the act of a corporate body, which uses a seal, is to affix the seal, with a declaration that it is the seal of the corporation, and to verify the act by the signatures of the president and secretary. 'In this case the allegation of the bill, that the deed' to Abdill and Phillips was without the corporate seal, must be presumed to be true. As it was not authenticated in the mode recognized by the law, it was “a nullity and conferred no rights whatever.” (Kinzie v. Chicago, 2 Scam. 187). Nor had the president and secretary of the Board of Trustees any power to make a deed, unless they were authorized by the Board to do so. (Angell & Ames on Corp. sec. 223, 10th ed.).

Moreover, a comparison of the allegations of the bill with the terms of the act of 1849 will show that the old corporation had no power to make the deed to Abdill and Phillips. A corporation has no other powers than those expressed in its charter, and such incidental powers as are necessary to carry into effect those specifically conferred. (Chicago Gas Light Co. v. People’s Gas Light Co. 121 Ill. 530.) By section 6 of the act of 1849 a corporation organized thereunder was obliged to apply any donation, made to and accepted by it, “in conformity with the express conditions of the donor.” The conveyance of the land by Mrs. Damon to the Board of Trustees of the old Seminary was a donation made to them for the building and maintaining thereon of such an institution of learning as was provided for in the Act of 1849. If they were to build and maintain an institution of learning upon the land, they had no power to dispose of it to private parties to use for other than educational purposes, (1 Redf. on Railw. ch. 11, see. 69, paragraph 14).

(Even if the conveyance of this land to the trustees be regarded as an absolute gift without conditions, it could not be disposed of under section 4 of the act of 1849 except for the use of said institution, and in such manner as should seem most beneficial thereto; but the disposition made of it by the deeds, which attempted to transfer it, was not intended to be for the use of the institution located thereon, nor was the land sold or conveyed in such manner as to be beneficial to such institution, if the averments of the bill be true.

Counsel for appellants contend that the judgment of dissolution in the scire facias proceeding related back to the commencement of the suit, and that the attempted conveyance to Abdill and Phillips could not have the effect of defeating the reverter, because it was made by the corporation while the proceeding was pending, and for the purpose of avoiding the effect of the expected judgment. We express no opinion as to whether this be so or not. ^We think that the conveyance so attempted to be made was void for want of a seal, and for want of power in the grantors to make it. It did not have the effect of alienating the property, or of vesting the legal title thereto in its grantees. It follows that, the legal title being still in the corporation at the time of the dissolution, it reverted to the grantor, Melissa B. Lamon.

Counsel for appellees makes two objections to the jurisdiction of a court of equity to entertain such a bill as is filed in this case. The first objection is, that the complainants below were not in possession of the premises when they filed their bill, and, for that reason, were not in a position to ask for a removal of the deeds complained of as clouds upon their title. This objection is without force, for the reason that the bill in this case is one for the partition of land, and the court gets jurisdiction for the purpose of making partition. Having jurisdiction for this purpose, the court is authorized by our statute (Rev. Stat. eh. 106, sec. 39) to proceed to settle questions of controverted title between the parties, and to vest titles by its decree; it may also remove clouds upon the title to the premises sought to be partitioned, even though the defendants, holding adversely under such clouds, are in possession of the property. (Henrichsen v. Hodgen, 67 Ill. 179; Gage v. Lightburn, 93 id. 248; Iberg v. Webb, 96 id. 415; Gage v. Bissell, 119 id. 298). In Gage v. Lightburn, supra, the decree of the circuit court required the defendants, who held under the tax deed, which was claimed to he a cloud upon the title, to surrender possession to the complainants, and allowed the defendants nothing for the improvements they had made upon the premises. The decree was held not to be erroneous in these particulars, because the defendants had asked no affirmative relief in respect of the matters so complained of.

'^The second objection urged against the jurisdiction is, that the present bill is filed for the purpose of enforcing a forfeiture, and that a court of equity always declines to lend its aid for such a purpose. We do not regard the objection as well founded, for the reason that this is not a bill to enforce a forfeiture.

It may be admitted, that the deed from Mrs. Lamon to the Board of trustees of the original seminary was made upon condition that the trustees should maintain upon the land an institution of learning in accordance with the provisions of the act of 1849. The condition, so contained in the deed, is known to the law as a condition subsequent. This being so, the effect of the deed was to vest a fee simple estate in the Board, subject to be defeated by their non-compliance with the condition and by the action resulting from such non-compliance, which is provided for in section 12.

It is true that non-compliance with a condition subsequent does not of itself determine the estate. The right to enforce a forfeiture for such non-compliance may be waived. Notwithstanding the breach, the estate abides in the grantee, until it is defeated and determined at the election of the grantor or his. heirs. This election may be signified by a re-entry, or by some act equivalent to a re-entry. In case of a grant defeasible by condition subsequent, what remains in the grantor is the possibility of reverter, or right of entry on condition broken. At common law nothing short of an actual entry would serve to defeat an estate upon a condition which had been broken. After breach entry was necessary to revest the estate in the .original grantor.

But,.in the present case, upon dissolution of the original -corporation, we have already seen that the title reverted to the donor, Mrs. Lamon, without any act on her part. (Grant -on Corp. 314, *304.) This being so, the complainants, who hold by conveyance ¿rom her made since the judgment of forfeiture and dissolution was rendered, can establish their title by showing such dissolution, without proving a re-entry or other act equivalent thereto. The title reverted to her by reason of the dissolution of the corporation. It is true that the proceeding, which resulted in the judgment of dissolution, grew out of and was consequent upon the breach of the condition subsequent. But such dissolution superseded the necessity of any re-entry, or other act equivalent thereto, on her part. (2 Washburn on Real Prop. (4th ed.) marg. pge. 452, and eases in notes; M. & C. R. R. Co. v. Neighbors, 51 Miss. 412; Ludlow v. N. Y. and H. R. R. Co. 12 Barb. 440; Phelps v. Chesson, 33 N. C. 194; Tallman v. Snow, 35 Me. 342; Nicoll v. N. Y. and E. R. R. Co. 12 N. Y. 121.)

If this was a bill, alleging that a condition subsequent in a ■deed had not been complied with, and praying for a forfeiture of the rights of the grantee on that account, the objection of counsel would have great force. But the bill for partition in the case at bar sets up, that the judgment of forfeiture and dissolution has already been rendered in a proceeding at law .■and by a court of law, and merely asks that the complainants may be declared to have become the owners of one third of the title, which passed to their grantor as the result of a forfeiture ¡already had and declared.

For the reasons here stated, the decree of the Circuit Court as reversed and the cause is remanded for further proceedings in accordance with this opinion.

Decree reversed.

Mr. Justice Wilkin took no part.


source: Caselaw Access Project

author: Mr. Justice Wilkin

license: Public Domain

text:
    The Illinois Central Railroad Company v. Commissioners of East Lake Fork Special Drainage District.

      Filed at Springfield June 15, 1889.

    1. Drainage law&emdash;railroads&emdash;whether subject to assessments for benefits. The Drainage law, (act of 1885, sec. 40,) which provides for assessing the right of way and tracks of railway companies within a drainage district for benefits thereto by the proposed drainage, is not void, or subject to any constitutional objection.
    2. Same&emdash;rule of assessment&emdash;limited to benefits. Section 40 of the Drainage act of 1885 does not authorize the commissioners, in making assessments, to deal with or take into consideration expenditures at all. It only gives them power to assess public roads and railroads such sum or sums as will be just and equitable for them to pay in proportion to the benefits received, and prescribes the manner in which that shall be done, viz., by estimating the amount of benefits to the entire district, including the benefits to such public roads or railroads, and also the benefits to them, and then giving the ratio or proportionate part of the taxes of the district to be paid by such roads. The statute does not authorize property to be assessed beyond benefits.
    3. Same&emdash;classification of lands&emdash;appeal therefrom•&emdash;modification on appeal&emdash;costs. The classification of lands made under section 40 of the Drainage act, is subject to like review, on appeal, as is provided for in the case of individual land owners; and when the tax list is completed and filed with the town clerk, as provided in section 26, any person whose land has been assessed, may, under section 27, appeal to the county court, but the appeal will be restricted to the ground that the tax exceeds the benefits.
    4. If, on such appeal, the court finds that the tax exceeds the benefits to accrue, it is required to modify the same, so as to make it equal to the benefits, and the costs may be apportioned by the court in its discretion.
    5. Same&emdash;judgment on assessment&emdash;whether in personam, or only in rem. In an action brought under section 72 of the Drainage act, to recover a special assessment, the judgment, if for the plaintiff, must be • in rem, against the property specially assessed, only, and not in per~ sonam.

    Appeal from the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.

      Mr. J. S. Wolfe, for the appellant:
    The track and right of way of appellant, in their very nature, could not be benefited for the purposes named in the act.
    The benefits for which an assessment might lawfully be-made, are only such as are named in the title of the act.
    The constitutional power could not be exercised for the purpose of causing any other benefits, and property not held for agricultural purposes is not within the constitutional power. (Updike v. Wright, 81 Ill. 49.) Therefore, section 40 of said act is void.
    Said section 40 mentions benefits generally, and not specially, and has no application to a proceeding by special assessment, which must be accompanied by special benefits. It-provides for a case of special taxation where the imposition of the tax determines the benefits. Merely distributing the cost is special taxation. Enos v. Springfield, 113 Ill. 71; Craw v. Tolono, 96 id. 256.
    In the constitution, limiting the legislature in respect of drainage, the only power to proceed is by special assessment. (Const, art. 4, sec. 13.) And this provision operates as a limitation upon legislative authority. Craw v. Tolono, 96 Ill. 256.
    Only the power named can be employed. Gridley v. Bloomington, 88 Ill. 554.
    Section 40 of the act named in the declaration has provided the method of procedure which must be followed, if any is followed. It is a method for distributing the cost of the-work. It contravenes the rule that assessments fhust not exceed benefits. Van Tassel v. Mayor, 8 Vroom, 128; Railroad Co. v. Village of Passaic, id. 137.
    To pay “in proportion to benefits received,” as provided in section 40, always means to pay more than actual benefits, where the entire cost is estimated as benefit, in which case it is special taxation, and only a scheme of proportions to distribute cost of work. Enos v. Springfield, 113 Ill. 71; Craw v. Tolono, 96 id. 256.

      The assessment must not exceed benefits. (Commissioners v. Kelsey, 120 Ill. 482.) Therefore section 40 is unconstitutional.
    Section 72 of the act in question, or any other act authorizing a personal action for the collection of this tax, is unauthorized and void. Craw v. Tolono, 96 Ill. 262; Virginia v. Ball, id. 278; 113 id. 305.
    Mr. Fbanois M. Weight, for the appellee t

    Railroad property may be highly benefited for agricultural and sanitary purposes. The carrying trade is one of the most important branches of the agricultural industry. The statute does not confine the benefits conferred to the track and right of way.
    Section 40 only authorizes the assessment of benefits. It says nothing about the cost of the work. The proportion of benefits between the whole district and the railroad, and the cost of the work, then being given, the proportionate share to be paid is easily and correctly produced under the rule stated in Morrell v. Union Drainage District, 118 Ill. 139.
    Under the amendment to the constitution, (sec. 31, art. 4,) adopted in November, 1878,- the legislature is expressly empowered to “provide for the organization of drainage districts, and vest the corporate authorities thereof with power to construct and maintain levees, drains and ditches,” etc. This general grant of power being unrestricted in terms, carries with it, by necessary implication, all other powers necessary to make the general grant effective, and to accomplish the results intended. As to the mode in which the power is to be exercised, the legislature is left the sole judge. Kilgour v. Drainage Comrs. 111 Ill. 342.
    These assessments are not taxes. It is a special regulation, whereby an owner is required to pay for benefits specially conferred upon his land. Kilgour v. Drainage Comrs. supra.

      There is no constitutional or statutory exemption from the assessing of railway property, if specially benefited, and the confirmation also becomes res judicata as to benefits. Railway Co. v. People, 120 Ill. 104.
   Mr. Justice Wilkin

delivered the opinion of the Court:

This is an action 'at law, by appellee, against appellant, brought under the provisions of section 72 of the Drainage act of 1885, to recover special assessments made against its railroad, under section 40 of that act. The declaration avers, in substance, that plaintiff, being then a duly organized special drainage district under the provisions of said act, through which the railroad of the defendant passed, and said commissioners being of the opinion that said railroad would be benefited by the work in the district, assessed the defendant such sums as would be just and equitable for it to pay in proportion to the benefits received, determined by estimating the amount of benefits to the entire district, including the benefits to said railroad, and also the benefits to said railroad. They determined and fixed the fractional figure 1-175 to express the" ratio between the sum of the benefits for the work on the main ditch in the whole district and the sum found to be the benefit to said railroad, and in like manner fixed the fractional figure of 1-100 for the work in sub-district No. 1; that said fractional figures express the proportional part of the corporate taxes to be paid by said railroad. Said figures were duly entered against the defendant upon the classification made and filed by the commissioners with the county clerk; that time and place of hearing objections were duly fixed, of which due and legal notice was given, at which meeting of the commissioners the defendant appeared and objected to said classification ; that on due consideration the commissioners did 'confirm said classification, and duly filed with said clerk their order of confirmation, from which the defendant did not appeal, and the same remains in full force and effect,—all of which proceedings are duly recorded in the drainage record in the office of said clerk. They filed their certificate, requiring $35,000 to he levied for work on the main ditch in the whole district, and $3378 to he levied for work in sub-district No. 1, and upon computations duly made by said clerk, the commissioners made and duly filed a tax-list, which was and is duly recorded in the drainage record in said clerk’s office, in which said tax-list, on the basis of said figures of classification and the said respective certificates, $200 is assessed against the defendant for benefits to said railroad for work in the main district, $33.78 for benefits for work in sub-district No. 1; that said tax-list was duly confirmed, and the assessments ordered paid, as required by law; that defendant has not paid the same, etc. To the declaration defendant below filed a general demurrer. It is not denied but that the declaration states a good cause of action under section 40. The attack is upon that section of the statute rather than upon the declaration.

The objections to the law, as we understand them, may be grouped into three propositions, and thus stated: First, the track and right of way of a railroad, from the very nature of the property, can not be benefited for agricultural and sanitary purposes; and is not therefore within the scope of the Drainage act of 1885, as shown by its title, hence section 40, as applied to railroads, is void; second, that said section 40 violates the rule that special assessments shall not exceed benefits; third, that section 40 denies the rule that the whole cost of the improvement must not exceed the benefits, and, in effect, authorizes special taxation.

The first of these objections is decided adversely to appellant in the case of Commissioners of Highways of the Town of Colfax v. Commissioners of East Lake Fork Drainage District, 127 Ill. 581. The second and third are based on a misconception of the power conferred upon the commissioners by section 40. It does not, as is said, authorize unlimited expenditure to be apportioned on the property in the district; and disregard the necessary equality between expenditure and benefits. It does not authorize the commissioners to deal with or take into consideration" expenditures at all; it only gives them power “to assess to such public road or railroad such sum or sums as will be just and equitable for such public road or railroad to pay in proportion to the benefits received,” and prescribes the manner in which it shall be done, viz., “by estimating the amount of benefits to the entire district, including the benefits to such railroad or public road, and also the benefit to the railroad or public road; then the fractional figure expressing ■ the ratio between the sum of the benefits for the whole district and the sum found to be the benefit to the railroad or public road shall express the proportional part of the corporate taxes of the district to be paid by such railroad or public road, as ■the case may be.” It authorizes the commissioners by this mode to ascertain and fix the basis for levy of taxes against 'roads and railroads, as is done by another mode, under section '21, as to individuals. Under neither section can property be • assessed beypnd benefits, unless the owner willingly submits .thereto.

The classification made under section 40 is subject to like review and appeal as is provided for individual land owners. When the tax list is completed and filed with the town clerk, •as provided by section 26, any party against whose land a tax ■ has been levied, may, under section 27, appeal to the county ; court; “but the appeal shall be upon the ground, only, that such tax is a greater amount than the benefits to accrue to ,the land.” If, on such appeal, “the court finds that the tax exceeds the benefits to accrue, the court shall modify the same so as to make it equal to the benefits, and the costs may be apportioned by the court in its discretion.” If, therefore, appellant is being taxed beyond benefits, it results, not from any power in the commissioners, under section 40, to levy such vtax, but from its own failure to prosecute an appeal from the tax list. The objections to the validity of the statute are not tenable.

It is also insisted that section 72, giving a personal remedy against the owner, is unconstitutional, and Craw et al. v. Village of Tolono et al. 96 Ill. 255, is relied oh as authority in support of that position. The scope of that decision was limited by the case of County of McLean v. City of Bloomington, 106 Ill. 215, as simply laying down a rule in regard to the special assessment of private property.. (See, also, Commissioners of Highways of the Town of Colfax v. Commissioners of East Lake Fork Drainage District, supra.) Section 72 is not, therefore, to be held unconstitutional. But in the opinion of a majority of the court, on the authority of Craw et al. v. Village of Tolono et al. supra, and City of Virginia v. Hall, 96 Ill. 278, a personal judgment can not be rendered against the appellant for the •amount of the assessment, but that in all such eases the judgment must be in rem against the property specially assessed, only, and that such a judgment may in this case be rendered on the declaration herein filed, the form of procedure being of no importance, provided the judgment is right. Under this view, the judgment should be that the plaintiff have and recover of and against the “track and right of way of the Illinois Central Eailroad Company within East Lake Fork special' •drainage district” the sum, etc., and that a special execution issue therefor against the said specified property.

That such a judgment may be entered, the judgment is reversed and the cause remanded to the circuit court.

Judgment reversed.


author: Mr. Chief Justice Shope

text:
    Elizabeth Bowers v. Samuel S. Block et al.

      Filed at Ottawa June 15, 1889.

    1. Administbatob’s sale—prior acquired title—estoppel as to parties-Where a person is made a party defendant to an administrator’s petition for an order to sell land to pay debts, and fails in that proceeding to set up or assert any title in himself, he "will be estopped from asserting title acquired prior to such proceedings, as against the purchaser at the administrator’s sale.
    2. The real purpose of requiring all persons who are in the occupancy of the land, to be made parties to an administrator’s application for leave to sell lands, is to relieve, as far as possible, the title to the land from uncertainty; and while the county court, in such a proceeding, could not, prior to the act of June 15,1887, adjust conflicting claims of title, it might, as far as practicable, advise the purchaser of the nature- and character of the title to be acquired at the sale.
    3. Same—presumption—as to proper parties. In the absence of any proof to the contrary being preserved in the record of an action of ejectment by a purchaser at administrator’s sale, against the widow of' a deceased claimant, it will be presumed in favor of the judgment in the action of ejectment, that the heirs of such deceased claimant were-made parties to the proceedings by the administrator, in the county court, for the sale of his intestate’s land to pay debts, so as to estop them from setting up any prior acquired title.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding.
    Messrs. Geaets & Stevens, for the appellant:
    Appellant might have defeated the action by showing an-outstanding title in a third person. Boyer v. Thornburg, 115 Ill. 543.
    The children of the deceased^ owner not having been made-parties to the administrator’s application to sell land, are in no way affected by the decree of sale. Their father having .taken possession of the land, in 1863, adversely to the intestate, this constituted a disseizin of the intestate, which being continued for twenty years, was a bar to the action of ejectment by one succeeding to the rights of the purchaser at the administrator’s sale. Washburn on Beal Prop. (4th ed.) 144.
    The Statute of Limitations having commenced to run from the time of the ancestor’s entry, and he dying in possession, claiming ownership of the premises, his title and possession passed at once to his heirs,—his three children; and they having continued in the possession of said premises, claiming ownership thereto under the possession of their father, their title became complete in 1883, under section 1, chapter 83, Starr & Curtis’ Statutes. Washburn on Beal Prop. (4th ed.) 144-147; Hamilton v. Right, 30 Iowa, 480; Flaherty v. McCormick, 113 ill. 538; Stewart v. Duffy, 116 id. 47; Grim v. Murphy, 110 id. 271.
    Possession, coupled with the claim of ownership in fee, makes a prima facie case of title in the one in possession. (Lancey v. Brock, 110 Ill. 609.) And twenty years’ possession makes the bar of the statute complete, though not begun or maintained under any color of title. Grim v. Murphy, 110 Ill. 271; Flaherty v. McCormick, 113 id. 538; Stewart v. Duffy, 115 id. 47.
    That an outstanding title in a third person superior to plaintiff’s will defeat a recovery, can not be questioned. It has been settled by this court in the following cases: Rupert v. Mark, 15 Ill. 540; Boyer v. Thornburg, 115 id. 540; Asher v. Mitchell, 92 id. 480,
    Mr. B. J. Habkness, and Messrs. Wilson & Moobe, for the appellees:
    It is conceded by counsel that appellant is estopped by the decree under which the sale was had, from setting up any title in herself to the premises sold, as it would be against good conscience for her so to do. The basis of this estoppel is, that she was a party to a proceeding under which the land was purchased, as being owned by Mrs. McMurtry in fee. The essence of the estoppel is, that the appellant should not now be heard to deny or question the facts alleged, and found by the decree in the proceeding, and upon the strength of which the purchaser bought and paid for the land. The facts .asserted in the case, and upon the strength of which the purchaser paid his money, was, that Mrs. McMurtry owned the land, and that appellant was in the possession thereof. These are the facts which were found by the decree in the proceeding to which appellant was a party, and upon the strength of which the purchaser parted with his money. They are therefore the facts which are both res judicata, and which appellant is estopped from denying. The purchaser had a- right to assume that if he purchased he could obtain possession without litigating the question as to who owned the property, with the occupant thereof, who was a party to the suit.
    Even if a decree entered by a court is erroneous, it can not be attacked collaterally, or its truthfulness contested by a party to the suit.
    The probate court had jurisdiction of the subject matter ■and of the person of appellant, and its decree and the findings therein set forth, can not be questioned by her in this collateral suit.
    Having omitted from the bill of exceptions and the record the greater portion of the testimony upon which the case was tried in the Superior Court, appellant is in no position to contend that the finding of the court was not right, upon the evidence. In the absence of the evidence from the record, the presumption is that the finding of the court is correct.
   Mr. Chief Justice Shope

delivered the opinion of the Court:

This was ejectment, by appellees, against appellant, to recover possession of a certain lot, brought March 4,1885. The «cause was tried by the court, without a jury, by consent, and resulted in a finding and judgment for appellees, and defendant below prosecutes this appeal.

The plaintiffs, to maintain the issues on their part, as is stated in the bill of exceptions, offered the files and record of the county court of Cook county, in a certain proceeding wherein William E. McMurtry, administrator of Maria McMurtry, deceased, applied, by petition to said court, for leave to sell the tract in controversy, with others, to pay the debts of his decedent. It is conceded that such proceedings were in all respects regular, but the same are not set out or contained in the bill of exceptions. It is shown that the files and record in that cause were introduced in evidence, and considered by the court in determining this case. It is stated in the bill of exceptions that the petition was filed May 6, 1882, and described the property in controversy; gave the condition of the estate; recited the appointment of an administrator; that the administrator had made report of the deficit of personal assets, etc., and “states about the occupancy of this lot 3 by Elizabeth Bowers.” It appears from the bill of exceptions, that counsel for plaintiff offered in evidence “the summons in this matter, the petition, etc., dated on the 6th day of May, 1882, to sell real estate, and the return of the sheriff, showing that Mrs. Bowers was served on the 3d day of June, 1882.” The bill of exceptions further recites that counsel for plaintiff then said, “I offer in evidence a decree of the probate court, entered on the 20th day of June, 1882,” and he also offered a report of the sale, the order of approval thereof, and the decree for sale, together with the deed from the administrator, for the lot in controversy, to Howard Baldrieh, and other mesne conveyances vesting the title derived by virtue of said sale and administrator’s deed in the plaintiffs,—all of which, it is shown by the bill of exceptions, was admitted and considered by the court.

In the view we entertain, it will be unnecessary to discuss or determine the questions said to arise in respect of the title sought to be shown in said decedent. It is conceded that appellant, having been made a party and duly summoned in the proceeding by the administrator before mentioned, and having failed, as it is conceded she did, to set up or assert in that proceeding any title in herself, would be estopped from asserting title acquired prior to such proceedings, against the purchaser at such sale. By the statute (Rev. Stat. 1874, chap. 3, sec. 99,) it is provided: “The widow, heirs and devisees

of the testator or intestate, and the guardian of any such as are minors, and the conservators of such as have conservators, and actual occupants of the premises, where the same or any part thereof are occupied,” shall be made parties defendant in proceedings to sell real estate of decedents to pay debts. It was said in Harding v. LeMoyne, 114 Ill. 65, that the object of making the parties named in the statute defendants, is for the purpose of enabling them to see that no injustice is done to those having claims against the estate, and that the requirements of the statute are complied with. The authority given by the statute is, to sell all real estate necessary for the payment of debts, to which the decedent had any “claim or title.” And it was said in the case last cited: “If the paramount owner should happen to be joined as a defendant to the proceeding, it would doubtless be his duty to assert his rights to the property in his answer,—not for the purpose, however, of forming an issue of that kind, to be tried in that proceeding, but for the purpose of giving notice of his right to prevent an estoppel.” It may be said, we think, that the real purpose of requiring all persons who are in the occupancy of the land to be made parties, was to relieve, as far as possible, the title to the land from uncertainty, and, while it is clear that the county court, in that proceeding, could not adjust conflicting claims of title, as far as practicable to advise the purchaser of the nature and character of the title he would derive at the sale.

It is, however, contended, that the court erred in excluding evidence offered by appellant tending to show an outstanding title in the children of appellant and her deceased husband, from the latter of whom, it is alleged, they acquired a possessory right in the land in controversy, by inheritance, and, as such heirs, had continued in the adverse possession of the land for more than twenty years prior to the bringing of this suit, claiming to be the owners thereof in fee; and also tending to show that the entry and possession of their ancestors were made under claim of ownership in fee. Appellant, in attempting to show outstanding title, proposed to prove that the heirs mentioned were in the actual possession and occupancy of the premises from 1863 to the bringing of this suit, thereby establishing their occupancy of the premises at the time of the filing of said petition for the sale of land of the estate of Maria McMurtry, deceased, to pay debts. She insists that the occupancy of said land during all the period before mentioned, by such children, was actual, adverse, open and notorious, so that the bar of the twenty years’ statute of limitations had become complete at the time of the commencement of this suit. We have seen that the statute requires all occupants of lands sought to be sold to pay debts, in the county court, shall be made parties defendant to the proceedings therefor. In the absence of anything appearing in this record showing to the contrary, it must be presumed that the county court would not have proceeded to the rendition of the decree authorizing the sale of the land, without proof that such occupants were parties to that proceeding. The presumption existing in favor of the regularity of judicial proceedings renders it imperative upon the party alleging error, in suits at law, to make it apparent by the record. If appellant desired to rely upon the outstanding title of the heirs of Bowers, she must show affirmatively that their title was paramount. This, it is conceded, might be done by showing actual, adverse possession for twenty years, under claim of title. But if such heirs, who are not shown by this record to have been under any disability whatever, were made parties defendant to the proceedings in the county court for the sale of these premises to pay debts, before mentioned, as it must be presumed they were, the contrary not being shown, it is apparent that they would also be estopped from asserting title then held by them against purchasers at the sale made in pursuance of the decree rendered in that proceeding. It is not claimed that they, or either of them, have acquired title subsequent to such sale.

As before said, the record wholly fails to show who, aside from appellant, were made parties to said proceeding in the county court. It was the duty of appellant, in her offer of .proof, to make such a case as would show title in said heirs, and if, for any reason, it was apparent that the proof, if admitted, would not defeat a recovery by appellees, it would not be error for the court to reject it. For aught this record shows, it may have been apparent to the court, from an inspection of the record in the county court proceedings, which, as before said, is shown to have been introduced and considered by the court, that a state of facts was therein disclosed which would constitute a bar, or estop such third persons from asserting title as against appellees. What was shown we are not permitted to know, and the presumption before referred to, in favor of the regularity and correctness of judicial proceedings, must prevail. This record is in no condition to present the questions sought to be raised by counsel, and an inspection of it fails to show, affirmatively, that error has intervened in entering the judgment of the Superior Court, and such judgment will therefore be affirmed.

Judgment affirmed.


author: Mr. Justice Bailey

text:
    John H. Dougherty v. Herald Catlett.

      Filed at Springfield June 15, 1889.

    1. Statute oe Frauds—os to merely equitable interests in land. The-Statute of Frauds embraces equitable as well as legal interests in land, and the execution of a contract for the sale of land vests in the purchaser an equitable interest in the lands therein described, and makes the vendor a trustee for him.
    2. A sold B certain land for a sum paid and other sums thereafter to-be paid, the purchaser taking possession. A, at the request of B, conveyed the undivided half of the premises to 0, after which A and B-entered into a verbal contract, whereby the latter agreed to sell and surrender to the former the other undivided half, and surrender his possession to A, who agreed to pay B $3500. The possession of the undivided half was surrendered to A, who afterward sold and conveyed it to a third person, with B’s knowledge, for $4000. B sued A for the-$3500, and the latter pleaded the Statute of Frauds: Feld, that the plea was a bar to the action.
    3. Same—part performance—to tahe a case out of the statute—the rule at law and in equity. A part performance of a verbal contract within the Statute of Frauds has no effect, at law, to take the case out of the operation of the statute. The doctrine of part performance is one of equity, and does not prevail at law.
    4. Same—what will constitute merely a part performance. The holder of an equitable title to land derived under a bond or written contract of sale, by a verbal contract sold back his interest to his vendor, and in a suit against the original vendor for the purchase money on the re-sale, and in which the Statute of Frauds was pleaded, the only allegation of performance was that the plaintiff surrendered the possession to his vendor. It was not alleged that the original contract was surrendered or canceled: Feld, that the pleadings failed to show a complete execution of the verbal contract, but showed merely a part performance available only in equity.
    5. Rescission op contract—what will amount to a rescission. Where land has been sold, a subsequent conveyance by the vendor to a third person, even with the knowledge of the original purchaser, does not operate as a rescission of the prior contract of sale. The legal effect of such conveyance, when not made with the vendee’s consent, is merely to place it out of the vendor’s power to perform his contract; and this is in no way affected by the vendee’s knowledge that such conveyance was being made.
    6. The surrender of possession of land by a purchaser to Ms vendor does not necessarily involve a rescission of the contract of sale, since such surrender may be entirely consistent with an intention on the part of the former to retain the contract and enforce it.
    7. Pleading—evidence—rescission to be specially pleaded—allegations and proofs. Where the plaintiff’s right of action at law depends upon the fact of a mutual rescission of a contract for the sale of land, he must allege that fact in his declaration, or facts from which a rescission must be necessarily implied. He can not recover upon a theory not supported by Ms declaration.
    8. A pleading must be construed most strongly against the pleader, and facts not alleged will be presumed not to exist. The plaintiff must recover, if at all, upon the case made by Ms declaration.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Vermilion county; the Hon. C. B. Smith, Judge, presiding.
    This was a suit in assumpsit, brought by John H. Dougherty against Herald Catlett, to recover the consideration of a certain oral contract for the sale and surrender by the plaintiff to the defendant of an equitable interest in certain lands. The declaration, which consisted of only one count, was as follows:
    “For that whereas, the said plaintiff and the said defendant, on, to-wit, the first day of November, 1878, made and entered into an agreement in writing, in the words and figures following, to-wit:
    “Article of agreement, made this.....day of November, in the year of our Lord one thousand eight hundred and seventy-eight, between Herald Catlett, party of the first part, and John H. Dougherty, party of the second part, Witnesseth: That said party of the first part hereby covenants and agrees, that if the party of the second part shall first make the payments and perform the covenants mentioned on his part to be made and performed, the said party of the first part will eon"vey and assure to the party of the second part, clear of all incumbrance whatever, by a good and sufficient warranty deed, the following described parcel of ground, viz: Blocks twenty-two, twenty-three and twenty-four, and lots one, two and three in block twenty-one, all situated in the town of Fairmount, Vermilion county, and State of Illinois. And the said party •of the second part hereby covenants and agrees to pay to said party of the first part the sum of four thousand six hundred and thirteen dollars and thirteen cents in manner following: Five hundred dollars cash in hand paid, the receipt whereof is hereby acknowledged, and the balance in payments as follows: Five hundred dollars July 1, 1879; six hundred thirteen dollars and thirteen cents October 1, 1879; five hundred ■dollars July 1, 1880; seven hundred and fifty dollars January 1, 1881; seven hundred and fifty dollars January 1, 1882, with interest at ten per cent per annum on the whole sum remaining from time to time unpaid, and to pay all taxes and assessments that may be legally levied or imposed upon said property, and in case of the failure of said party of the second part to make either payments or perform any of the covenants on his part hereby made and entered into, this contract shall, at the option of the party of the first part, be forfeited and determined, and the party of the first part, out of the payments already made, a sufficient sum to liquidate all damages sustained by the party of the first part on account of the noncompliance with this contract, and the party of the first part shall have the right to enter and take possession of the premises aforesaid, ami it is mutually understood that the payments mentioned in this agreement are for four hundred dollars due party of the first part, seventeen hundred dollars and thirteen cents the amount of a judgment held by party of the first part against party of the second part, and twenty-five hundred dollars due James M. Dougherty from party of the second part and assumed by party of the first part; and it is mutually agreed that if at any time within the limits of this contract, said party of the second part shall see fit to pay all the payments mentioned herein, said party of the first part, shall comply with all his covenants and agreements mentioned herein. And it is further mutually agreed that all of the covenants and agreements herein contained shall extend to and he obligatory upon the heirs, executors, administrators and-assigns of the respective parties.
    “In witness whereof the parties to these presents have hereunto set their hands and seals the day and year first above-written. “Herald Catlett. (Seal)
    “John H. Dougherty. (Seal)”
    And the plaintiff avers that, after the making of said agreement, the said plaintiff entered into possession of the premises-described in said written agreement, and continued in possession thereof, until to-wit, the first day of October, 1881. And the plaintiff further avers that, on to-wit, the said first day of October, 1881, said plaintiff sold the undivided one-half of said premises to one McCabe, and said defendant, at the request of the plaintiff, conveyed said undivided one-half to said McCabe.
    “And plaintiff further avers that afterwards, to-wit, on the-second day of October’, 1881, and while the plaintiff was in possession of said remaining undivided half of said premises not sold to said McCabe, said plaintiff and said defendant entered into a verbal agreement whereby said plaintiff agreed to-sell and surrender to said defendant the said undivided one-half of said premises so in the possession of.-the plaintiff, and. said defendant, in consideration thereof, agreed to pay to said plaintiff the sum of thirty-five hundred dollars.
    “And plaintiff avers that, after the making of said verbal . agreement, and in consideration thereof, to-wit, on the day ' and year last aforesaid, the plaintiff surrendered to said defendant the possession of said undivided one-half of said ■ premises, and said defendant has ever since said time and until, to-wit, the first day of January, 1885, remained in possession of said undivided one-half, and on, to-wit, said last day and year aforesaid, at the county aforesaid, sold and conveyed said premises for, to-wit, the sum of four thousand dollars to a third person, with the knowledge of said plaintiff.
    “And plaintiff avers that, at the time of making of said first mentioned written agreement, and at the time of the making of said verbal agreement, and until the said sales and conveyances by said defendant to said third person, said defendant was the owner of the legal title to said premises in said written agreement mentioned. By means whereof said defendant became and was liable to pay unto the plaintiff said sum thirty-five hundred dollars when thereunto afterwards requested. Yet, the said defendant, though often requested, has not yet paid the same or any part thereof to the plaintiff, but so to do has hitherto wholly neglected and refused and still does neglect and refuse, to the damage of the plaintiff of three thousand dollars, and hence he brings his suit.”
    The defendant pleaded, among other things, the statute of frauds, to which plea the plaintiff demurred, and said demurrer being overruled, the plaintiff elected to abide by his demurrer, whereupon final judgment was entered in favor of the defendant for costs. From this judgment the plaintiff appealed to the Appellate Court and assigned for error the decision of the Circuit Court overruling said demurrer. On said appeal the judgment of the Circuit Court was affirmed, and from said judgment of affirmance the plaintiff has appealed to this court.
    Mr. J. B. Mann, for the appellant:
    Full performance takes the ease out of the statute, at law. Waterman on Specific Perf. sec, 259.
    It is true, that under the original contract appellant had an equitable estate in the land; but it was only by virtue of the contract, and when that was rescinded, the rescission was, ipso facto, a conveyance or merger of the equitable title in the legal title held hy appellee. Such rescission could be made by parol. Falls v. Carpenter, 28 Am. Dec. 605; Deshago v. Lewis, 21 id. 769; Munroe v. Perkins, 20 id. 475; Dearborn v. Cross, 7 Cow. 48; Morrill v. Colehour, 82 Ill. 619; Brown v. Gaffney, 28 id. 149.
    It has always been the rule, that surrenders, to take effect in futuro, must be in writing, under the Statute of Frauds, when the lease is for a term which necessitates its being in writing. (Deed on Statute of Frauds, sec. 765.) But a surrender, effective in prcesenti, may be made by parol, where possession is taken by the landlord. Baker v. Pratt, 15 Ill. 568; Dills v. Stobie, 81 id. 202.
    Moreover, the facts set uq> in this declaration show that the •appellee has sold and conveyed the legal title to a third person with the knowledge of the appellant, and that such acts raise a liability on the part of the appellee to pay the appellant at least the contract price of $3500, and that the Statute of Frauds does not in anywise apply to such a transaction.
    Mr. W. B. Lawrence, for the appellee :
    Under the Statute of Frauds there is no distinction between legal and equitable estates in lands. It is merely a statute governing the rules of evidence. It does not render verbal agreements for the sale of an interest in land void, but prescribes that they are voidable at the option of either party seeking, in a court of law, to enforce them. Hughes v. Moore, 7 Cranch, 176.
    Part performance of a contract within the statute has no effect to take the case out of its provisions. This can only be done in equity. Wheeler v. Frankenthal, 78 Ill. 124.
    We refer to the following authorities relied upon and quoted from by the court below in support of its opinion in this case: Goucher v. Martin, 9 Watts, 106; Howard v. Easton, 7 Johns. 205; Dial v. Crain, 10 Texas, 444; 2 Reed on Statute of Frauds, sec. 456; Broom on Statute of Frauds, see. 229.
   Mr. Justice Bailey

delivered the opinion of the Court:

The only questions presented by this appeal are those arising upon the plea of the Statute of Frauds. It appears from the declaration that, prior to the date of the contract upon which the suit is brought, the plaintiff and defendant entered into an agreement in writing, by which the defendant, in consideration of a certain sum of money then paid to him by the plaintiff, and of certain other payments thereafter to be made, agreed to convey to the plaintiff certain lands in Vermilion county; that the plaintiff thereupon entered into possession of said lands; that while so in possession he sold an undivided half of the lands to one McCabe, the defendant conveying said undivided half to McCabe at the plaintiff’s request; that after such conveyance was made and while the plaintiff was still in possession of the remaining undivided half, the plaintiff and defendant entered into a verbal agreement whereby the plaintiff agreed to sell and surrender to the defendant said undivided half still in his possession, the defendant agreeing, in consideration thereof, to pay the plaintiff the sum of $3500; that the plaintiff thereupon surrendered to the defendant the possession of said undivided half of said premises, and that the defendant retained the same in his possession, and afterwards sold and conveyed it to a third person, with the plaintiff’s knowledge, for the sum of $4000. The suit is brought to recover of the defendant the consideration of said verbal agreement.

The second section of the Statute of Frauds of which the defendant seeks by his plea to avail himself is as follows: “No action shall be brought to charge any person upon any contract for the sale of lands, tenements or hereditaments, or any interest in or concerning them, for a longer term than one year, unless such contract or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith, or some other person thereunto lawfully authorized in writing signed by such party.”

The execution by the defendant to the plaintiff of the written contract of sale alleged in the declaration vested in the plaintiff an equitable interest in the lands therein described/ and there can be no doubt that such interest was an interest in or concerning lands within the meaning of said statute. That the statute of frauds embraces equitable as well as legal interests in land is well settled. Browne on Statute of Frauds, sec. 229. As said by Mr. Justice Stoby in Smith v. Bwrnham, 3 Sumner, 435, “A contract for the conveyance of lands is a contract respecting an interest in lands. It creates an equitable estate in the vendee in the very lands, and makes the vendor a trustee for him. A contract for the sale of an equitable estate in lands, whether it be under a contract for the conveyance by a third- party, or otherwise, is clearly a sale of an interest in lands, within the Statute of Frauds.” See also Richards v. Richards, 9 Gray, 313; Hughes v. Moore, 7 Cranch, 176; Simms v. Killian, 12 Ired. 252; Dial v. Crain, 10 Texas, 444; Catlett v. Dougherty, 21 Ill. App. 116; Jevne v. Osgood, 57 Ill. 340.

The plaintiff contends that the acts performed by him under his oral contract to sell and surrender his interest in said lands to the defendant constitute such a performance as should take the case out of the statute. The only act of performance alleged in the declaration is the delivery of possession of the premises sold to the defendant. There is no allegation of any cancellation or surrender of the defendant’s contract to convey the lands to the plaintiff on payment of the purchase money, nor is the cancellation of said contract averred, either directly or inferentially. It will therefore be presumed that said contract is still held by the plaintiff as a valid and subsisting legal obligation against the defendant. The averments of the declaration therefore, as we interpret them show a partial and not a complete performance.

The doctrine of part performance is a doctrine of equity and does not prevail at law. Mr. Browne, in his Treatise on the Statute of Frauds, sec. 451, says: “It is settled by a long series of authorities, that a part execution of a verbal contract within the Statute of Frauds has no effect at law to take the case out of its provisions/’ and in support of this statement a large number of cases are cited in a note. To same effect see 2 Beed on the Statute of Frauds, sec. 548, and authorities -cited in note. The same rule has been frequently announced by this court. Warner v. Hale, 65 Ill. 395; Wheeler v. Frankenthal, 78 id. 124; Creighton v. Sanders, 89 id. 543.

The plaintiff’s contention is, that the facts averred in the -declaration amount to a rescission of the defendant’s contract to convey, and that such rescission, coupled with a delivery of possession, should be held to be tantamount to a complete performance. The difficulty with this view is that no rescission is averred, either directly or inferentially. The only averment is that the plaintiff had surrendered the possession to the defendant who already had the legal title, and that the -defendant subsequently conveyed the land, with the plaintiff’s knowledge, to a third person. A surrender of possession did not necessarily involve a rescission of the defendant’s contract, since such surrender of possession may be entirely consistent with an intention on his part to retain the defendant’s contract with a view of subsequently enforcing it against -him. The pleading must he construed most strongly against the pleader, and as the declaration contains no averment of a rescission or of any facts from which a rescission must be necessarily implied, it must be presumed that none was made or intended. If the plaintiff relied on the theory of a rescission he should have averred it, and not having done so, he cannot recover upon a theory not supported hy his declaration.

We are unahle to see that any special force is to he given, ■in this connection, to the averment that the defendant had -conveyed the land to a third person with the plaintiff’s knowledge. It might perhaps have been different if such conveyance liad been made with the plaintiff’s consent and approbation. The legal effect of the conveyance, so long as it does not appear to have been made with the plaintiff’s consent, is merely to place it out of the defendant’s power to perform his contract to convey the land to the plaintiff, but it has no tendency to work a rescission or cancellation of the contract, or-to absolve the defendant from his liability thereon, and this, is in no way affected by the mere knowledge of the plaintiff' that the conveyance was being made. We are of the opinion that the demurrer to the defendant’s plea was properly overruled. The judgment of the Appellate Court will therefore-be affirmed.

Judgment affirmed.

Mr. Justice Wilkin took no part.