author: Mr. Justice Magruder

text:
    Randolph Jones et al. v. John Lloyd et al.

      Filed at Ottawa May 15, 1886.

    1. Statute of Frauds—of a writing to meet the requirements of the statute. Where the Statute of Frauds is set up in defence to a bill to enforce the performance of a verbal agreement for the conveyance of land, the answer of the defendant to a prior bill, filed by" the other party7, signed by the defendant himself or by his attorney for him, "setting up the same contract fully, without pleading the statute, if introduced in evidence to prove the contract will meet the requirement of the statute, and entitle the complainant to enforce the contract.
    2. Trusts and trustees—when a trust arises. A father, owning a half section of land with an incumbrance upon it, entered into an agreement with his son-in-law7, and the holder of the incumbrance, under which the land was conveyed to the creditor as a security, and the soñ-in-law was given possession of the land, who agreed to pay off the incumbrance from the rents and profits, he having ten years in which to pay the same. The son-in-law also agreed to furnish the" father-in-law a home and support as long as he lived, and furnish a home to his minor children, and upon payment of the debt and receiving a deed from the creditor, he was to convey one-quarter of the land to the two minor sons of his father-in-law, they to remain and work on the place in the meantime: Held, that as soon as the rents and profits of the land should amount to a sufficient sum, it was the duty of the son-in-law to have paid the incumbrance and taken a deed from the creditor, and that when he obtained the deed, the two sons having worked for him about ten yéars each, he held the legal title to one-quarter of the land in trust for them, and in his subsequent dealings with them was subject to the obligations and duties of a trustee.
    3. Same—dealings between trustee and cestui que trust—elements of fairness required. A release by a cestui que trust will not be binding unless he is first made fully acquainted with his rights, and the nature and full extent of the liabilities of the trustee. Any concealment, misrepresentation, or other fraudulent conduct, on the part of the trustee, will vitiate such a release.
    4. Same—burden of proof as to fairness of transaction. Where a trustee sets up a bargain with his cestui que trust, or a release from him, the burden of proof is upon the former to vindicate the. transaction from any shadow of suspicion, and to show that it was perfectly fair and reasonable in every respect.

      5. Same—the particular case. A person holding the legal title to a quarter section of land in trust for his two brothers-in-law, who were justly and equitably entitled .to the same long before, by false representation and artifice, aided by his wife and a shrewd lawyer, made the cestuis que trust believe they were entitled to nothing, and induced them, in ignorance of the real facts and of their rights, to accept a deed for only eighty acres of the land, pretending this was a gift, and induced them to give a release in full, under the impression that the instrument executed by them was a different thing. It was held, that such release so obtained was no bar to a hill by his brothers-in-law to compel such trustee to make a conveyance of the other eighty acres of the land.
    6. Laches—on bill to set aside release for fraud. Laches will not be imputed to a party from a delay to take steps to undo a fraud, until after knowledge of the fraud has been acquired. So where two cestuis que trust, in ignorance of their rights, and upon the false statements of their trustee, released him in April, 1874, and did not discover the real facts, nor learn of the fraud practiced on them until in the fall of 1879, and filed their bill to set aside their release and for other relief, in January, 1880, it was held, there was not such laches as to bar equitable relief.
    Writ of Error to the Circuit Court of De Kalb county; the Hon. C. W. Upton, Judge, presiding.
    Messrs. Jones & Bishop, for the plaintiffs in error:
    The answer of John Lloyd and wife, set up by them in the case of Jones v. Lloyd et al., is a sufficient statement in writing to take this ease out of the Statute of Frauds. 80 Ill. 541,
    A grantee may declare a trust in a separate deed or instrument in writing signed by him, or in an answer in chancery in a suit concerning the property to which the trustee is a party. McLaurie v. Partlow, 53 Ill. 341; Kingsbury v. Burnside, 58 id. 328; McConnell v. Brillhart, 17 id. 354; Malin v. Malin, 1 Wend. 626; Jackson v. Miner, 6 Cow. 706; 56 Ill. 231.
    Lloyd’s statement to the complainants, in 1S66, that they should each have their eighty acres of land if they worked their time out, and their doing so upon the faith of such statement, now estops Lloyd to set up the Statute of Frauds, or John H. P. Jones’ alleged non-performance of his part of said contract. Telegraph Co. v. Railroad Co. 86 Ill. 246; Herman on Estoppel, sec. 462, ed. 1871; Willard’s Equity, p. 285, see. 2, and p. 283; Rhodes v. R. 3 Sandf. Ch. 279; Newton v. S. 8 N. H. 9; Miller v. MoM. 57 Ill. 126.
    A deed of release by cestuis que trust to their trustees, must be made with full information of all the circumstances, and of the full extent of the liability of the trustees. Leonard v. Leonard, 3 Swanst. 1; Jareas v. Duke, 2 B. & B. 171; Gann v. Cann, 1 P. Wms. 727; Brodenck v. B. id. 239; Gordon v. G. 3 Swanst, 400; id. 73; 1 Vern. 19; Hill on Trustees, (Am. notes,) 790.
    Where confidence is reasonably reposed, that confidence must not be abused. The party relied upon must see that he meets fully and fairly the responsibility of his position, and does not take any advantage, either to the injury of another, or for his own gain. Casey v. Casey, 14 Ill. 112; Dennis v. Cagg, 32 id. 429; Ullich v. Muhlke, 51 id. 499; Wheland v. W. 3 Cow. 537; McDoald v. F. 1 Gilm. 269; Ward v. Armstrong, 84 Ill. 151.
    Mr. D. J. Carnes, for the defendants in error.
   Mr. Justice Magruder

delivered the opinion of the Court:

On January 1, 1862, John H. P. Jones, father of plaintiffs in error, and, also, father of the defendant in error, Rebecca Lloyd, was indebted to Hannah Miller in the sum of $2330.30, and was the owner of the north half of section 27, town 41, range 3 east of third P. M., in De Kalb county, which three hundred and twenty acres was, then, worth about $20 per acre. The defendant in error, John Lloyd, at the same time, had a claim upon the three hundred and twenty acres, growing out of some previous sale, or attempted sale thereof, to him, by his father-in-law. On that day, J ones and Lloyd both executed deeds to Hannah Miller, and the legal title to the property was thereby placed in her. By an agreement between the three, Lloyd was to take possession of the land, as his own, and have the rents and profits, and, out of the same, pay the taxes, and also pay to Hannah Miller the $2330.30, with interest at the rate of ten per cent per annum, payable annually, as-soon as he was able and on or before January 2, 1872. Hannah Miller agreed, that s.lae would convey the premises to Lloyd upon the payment of her debt and interest within the ten years, or on or before January 2, 1872. John H. P. Jones agreed, that he would contribute towards the payment of the debt to Miller out of such moneys, as he might earn by his practice, as a physician, and that his two minor sons, Oliver, then about fifteen years old, and Eandolph, then about twelve years old, the plaintiffs in error herein, should live with Lloyd and work for him, “until said premises were paid for, or they became of age. ” As a part of the same arrangement, Lloyd, also, then and there, agreed, that he would furnish a home to the minor children of John H. P. Jones during their minority, and to Jones himself during his lifetime, and would also support the said Jones, when unable to support himself, as long as he lived, and, upon obtaining the deed of the three hundred and twenty acres from Hannah Miller, would convey the west half thereof, being the north-west quarter of the section, containing one hundred and sixty acres, to the two minor sons of John H. P. Jones, who are the plaintiffs in error in this case. A more detailed statement of this transaction and substantially the same, as that here recited, may be found in Jones v. Miller, 44 Ill. 181.

This is a bill, filed, in the circuit court of DeKalb county, by the plaintiffs in error, to compel a conveyance to them, or to Eandolph Jones, of the south half of said north-west quarter, the north half thereof having been already conveyed to Oliver Jones, as hereinafter set forth. Upon final hearing, the circuit court dismissed the bill for want of equity, and the case is brought to this court by writ of error, issued here-from, for the purpose of reviewing such decree of dismissal.

It is insisted, that the agreement to convey the one hundred and sixty acres to plaintiffs in error can not be enforced, because it was not'in writing, and is, therefore, void, under the Statute of Frauds. This objection is without force, under the circumstances of this case. At the November term 1864e of the DeKalb county circuit court, and in the case of Jones v. Miller et al., above referred to, which was before this court at the April term 1867, the defendants in error herein, who were co-defendants with Miller in that case, filed an answer, in which they admitted and set up, at length, the agreement between Hannah Miller, John H. P. Jones and John Lloyd, as the same is above detailed. That answer, in the old suit, wras introduced in evidence, upon the trial of this present suit, in the court below. It purports to have been signed by “John Lloyd and Catherine Bebecca Lloyd, defendants, ” and, if not signed by them in person, was signed by their attorneys for them. We think, that the statement of the agreement therein, meets the requirement of the statute. (McLaurie et al. v. Partlow, 53 Ill. 340; Kingsbury v. Burnside et al. 58 id. 310; McConnell v. Brillhart, 17 id. 354.) The agreement was there set up by the defendants, “without, at the same time, interposing the Statute of Frauds, as a defence.” Pomeroy on Specific Performance of Contracts, sec. 140.

Moreover, in Jones v. Miller et al. supra, which was a suit between defendants in error on the one side, and the ancestor of plaintiffs in error on the. other, the agreement, as here recited, with some slight variations in the details, was actually found by this court to have been executed between the parties, here mentioned. We there say: “If Lloyd refuses to perform his part of this contract, Jones can pursue his legal remedies under the new agreement.” If such a course wras open to Jones, it is not perceived why the same course is not now open to the two sons of Jones, who were beneficiaries in the trust, created by “the new agreement.”

The evidence shows, that the defendant in error, John Lloyd, has failed to keep his contract. He did not furnish his father-in-law, John H. P. Jones, with a home or with support, as he agreed to do. Jones did not live with Lloyd after the fall of 1866. About that time, when he was between sixty and seventy years old, he was ordered by Lloyd to pack up and go. From some time in 1866 to March 1877, when he died, he had no home with Lloyd, and received no support from him. During this period, while he was old and feeble and lame, he lived in a number of places and with a number of persons. Numerous appeals were made, on his behalf, to Lloyd for help, but none of them were listened to. The proof is clear, that during the last ten years of his life, the old man was in the poorest possible circumstances financially. Lloyd does not claim, that he aided him in any way,. after his leaving, except in the matter of clothing. He also admits, that the support of Jones would have cost from $150 to $200 per year. By discarding him, therefore, from 1867 to 1877, he saved some $1500 or thereabouts.

Lloyd did not keep his contract by furnishing a home to the minor children of Jones during their minority. The daughter, Sarah, staid only a few weeks, and .then went off to work for her living. In 1866, Ambrosine, the youngest daughter, who.was then only twelve years old, was compelled to leave Lloyd’s house, and work first in one family and then in another. She continued so to work and earn her own support, during the remaining six years of her minority. Whenever she returned to Lloyd’s house, she was reminded, that she should seek a situation elsewhere. The cost of her support could not have been less than $100 per year, so that her brother-in-law saved at least $600 by her leaving.

Lloyd has failed utterly to keep his contract, so far as plaintiffs in error are concerned, and his conduct towards them has been marked by the grossest fraud and deception. He was not obliged to wait ten years before payingMrs. Miller. Her debt was payable on or before January 2, 1872. He was to appropriate the rents and profits of the farm towards the payment of her debt, and to discharge it “as soon as he toas able out of the rents, ” etc. He should not have used the rents and profits for any other purpose than to pay off the $2330.30. The plaintiffs in error were to live with him and work for him “until said premises were paid for, or they became of age. ” He claims, that, in the fall of 1872, he still owed Mrs. Miller $1100. If this was so, it was because he used the income of the farm for other purposes, and with the apparent intention of keeping the plaintiffs in error at work for him as long as possible. When he took possession of the three hundred and twenty acres in 1862, he had but little property of his own. At that time, Jones had considerable personal property upon the three hundred and twenty acres, nearly all of which was used and absorbed by Lloyd and his family.

The work of plaintiffs in error relieved Lloyd of the necessity of employing other labor except during harvest. The rental value of the farm per year was from $3 to $3.50 an acre. Lloyd had no other source of income from 1862 to 1873, than that which he derived from the three hundred and twenty acres. During this period, and beginning as early as 1867, he bought eighty acres at Malta and improved it; he bought five acres of timberlánd; he built a house, that qost $1000; he put up new barns and moved old ones; he built a horse stable, a cow stable, a hay barn; he also built fences and, partly, with material, owned by Jones; he had a large stock of horses and cattle, raised on the place; he raised two or three car-loads of hogs each year, starting with the hogs left there by his father-in-law. It is clear, that he could have paid Mrs. Miller, out of the rents and profits of the three hundred and twenty acres, long before 1872, if he had chosen to do so. As soon as he paid her and received a deed from her, it was his duty to convey the north-west quarter of the tract to plaintiffs in error.

He induced plaintiffs in error to believe, that he could not get a deed, until after the expiration of ten years, and that they were bound to work for him for ten years, before they would be entitled to receive their one hundred and sixty acres. Oliver worked for him full ten years, beginning in 1862, when he was fifteen years old, and ending in 1873,.when he was twenty-six years old. He was absent 'in the army one year, and, upon his return, was required to work an extra year to make up for the lost time. While away, he sent home $500, bounty money, of which Lloyd and his wife took possession, and of which he received back only $280. Randolph, also, worked for Lloyd ten years, with the exception of about six months.

During the long period of their service, the plaintiffs in error received no compensation whatever. They were not encouraged to attend school, and seem to have been purposely kept in ignorance. Oliver can neither read nor write. Randolph can write his name, but can not read writing. According to the testimony in the record, in reference to the wages, usually paid to farm laborers, the average yearly value of •the services of plaintiffs in error was, at the lowest estimate, $150 for Oliver, and $100 for Randolph. Accordingly, the work, done by them both during the ten years, saved Lloyd a total expenditure of at least $2500 for labor. ■

Plaintiffs in error, though evidently not informed as to the details of the arrangement between their father and Lloyd, were aware, that they were to receive eighty acres apiece, and they worked and waited for their reward, and expected it at the end of ten years. In 1867, having been told by one Tallmadge, that Lloyd would play them false and not give them the one hundred and sixty acres, they applied to Lloyd to know if this was true, and stated to him, that, if it was true, they would quit working for him, and go elsewhere. They both swear, and their statements bear all the marks of being true, that Lloyd then told them to continue their work, and he would give them eighty acres apiece, as he had agreed to do. He thereby renewed the original agreement, made on their behalf by their father in 1862. They continued in the active performance of the agreement, as thus renewed, for more than five years after 1867, and during all this period, maintained a joint possession with Lloyd of the premises, for which they were laboring.

On April 3, 3 874, he held the legal title to the north-west quarter of the section, in trust for plaintiffs in error. He stood to them in the relation of a trustee to his cestuis que trustent. His obligations and duties were such as grow out of such a relation of trust. On that day, he and his wife and Oliver and Eandolph rode to the county seat together in a carriage, and went to the office of a lawyer who had been one of the attorneys of Lloyd in the old litigation with his father-in-law, and whose bias and interest were all on Lloyd’s side. This attorney was familiar with the terms of the agreement between Lloyd and Jones, and seemed to have prepared himself in advance for the interview, because he says, that he had before him the files in the old suit, and, among them, the answer, above referred to, in which the agreement was set forth.

Plaintiffs in error expected their deed for the one hundred and sixty acres. Instead of this, Lloyd and his attorney told them, that all the interest and claim of their father, under the contract, had been “wiped out; ” that they were really entitled to receive nothing, but that Lloyd, in consideration of their having been “good boys, ” would give them one eighty-acre tract. Lloyd and his attorney then proposed to plaintiffs in error, that Lloyd should convey the north half of the northwest quarter of the section to Oliver, and that Oliver should execute a mortgage thereon to secure the payment of his note to Eandolph for $1000, payable in four installments in January 1875, 1876, 1877 and 1878. In other words, the proposition was to give Oliver the title to eighty acres, and give Randolph a mortgage on Oliver’s eighty acres to be paid by Oliver himself. The bare statement of the projDOsition indicates its unfairness and injustice.

Plaintiffs in error both swear, that the arrangement in question was never proposed to them, and they had never heard of it, until the meeting took place at the attorney’s office on April 3,1874. Lloyd states, with indefiniteness and hesitancy, that he made the proposition to his brothers-in-law in the fall of 1872, and they agreed to it at that time. They positively deny this, and we think their testimony is entitled to the' greater weight. He also seeks to make it appear, that the settlement, upon the basis of one eighty-acre tract and a mortgage, was talked over among them, on that day, while they were riding to town. But Mrs. Lloyd herself says, that nothing was said on the subject during the ride. The admitted conduct of plaintiffs in error, when the proposed settlement was first broached to them, confirms their evidence upon this subject.

Randolph Jones was so overcome with astonishment and indignation at the sorry outcome of so many years of working and waiting, that he rose from his seat with impatience and left the room. It took the combined influence of his sister and brother-in-law and their attorney to bring him to terms. As he went ont, saying that he would not take anything, the attorney told him “that will not do.” His sister sneeringly remarked to him: “You are showing yourself nicely with your brother.” His brother-in-law followed him out, and coaxed him, and told him that there was “no use in getting huffy,” and urged upon him, that the claims of his father and of himself and his brother upon the land had all been “wiped out,” and that what had been offered was offered “free gratis.” While they were out, the attorney talked to Oliver, who had insisted, as soon as the arrangement was proposed, that it had always been understood, that they were to have eighty acres apiece. Oliver finally concluded, and so said to his brother, upon the latter’s return to the office with Lloyd, that, if,' according too the statements made to them, they were legally entitled to nothing, they might as well take what they could get.

Accordingly, a deed was then and there made by Lloyd and his wife to Oliver Jones, conveying the north half of the north-west quarter; and notes for $1000 and a mortgage on the north half, securing the same, were executed by Oliver to Randolph. At the same time, plaintiffs in error were persuaded to execute to Lloyd a release of any demands, which they might have against him.

Plaintiffs in error swear, that the answer hereinbefore mentioned, which was referred to in the release, and the agreement set up in the answer, were not read to them at all, and that they knew nothing about their contents. They also swear, that they were unable to read the release, and were told, that it was merely an agreement to pay one-third of the costs of any suit, "which their father might bring for the recovery of their land and Lloyd’s land.

It is urged by defendants in error, that this release is a defence to the relief prayed for in this case. It can not, however, be allowed to have the effect, claimed for it, in view of the circumstances, under which it was executed. It "was made by the beneficiaries in a trust at the instance of their trustee. In the matter of its procurement, Lloyd, the trustee, was bound, under the law, to act with the utmost fairness towards his ignorant and inexperienced brothers-in-law, the cestuis que trustent. He should have put them in possession of all the facts, surrounding the transaction, of which he himself had knowledge. He should have refrained from bringing to bear upon them any undue or improper influence.

“A release by the cestuis que trust will not be binding, unless the parties are made fully acquainted with their own rights, and the nature and full extent of the liabilities of the trustee. Any concealment, misrepresentation, or other fraudulent conduct, will vitiate such a release. Therefore, a full statement of all the raccounts and other transactions of the trustee should unquestionably he furnished to the cestuis que trust, together with all the information requisite for explaining and understanding them,-and the burden is on the trustee to vindicate the bargain or gift from any shadow of suspicion, and to show that it wras perfectly fair and reasonable in every respect, and courts will scrutinize the transaction with great severity.” Perry on Trusts, secs. 923, 428; Hill on Trustees, page *581.

An application of these principles to the facts, as disclosed in the record, will show, that Lloyd failed to do his duty, as the holder of an important trust.' He kept for himself eighty acres of land, that belonged to the beneficiaries, whom he represented. He induced them to consent to his retention of their property, by stating to them that all their own claim to it and all their legal rights in it had been “wiped out. ” This statement was false. The grounds, which he urged in support of it, and which he pressed with such eagerness as to make them believe it, were, first, the alleged failure of their father to aid him in paying the Miller debt, second, the large expense he had been put to by the litigation, brought against him by their father, third, a yet unpaid balance upon the Miller debt, which it was difficult for him to discharge.

The contract, as set out in the old answer and as stated by this court in Jones v. Miller et al. supra, did not require John H. P. Jones to contribute any specified amount towards the payment of Mrs. Miller’s debt. He was only to do what he could to help Lloyd in paying it off. He was unable to" do anything, because Lloyd refused to give him a home and furnish him a support, in accordance with the original agreement. The earnings, which might have gone to pay the Miller mortgage, he was obliged to use in procuring for himself the home and support, which his son-in-law denied to him. His failure to aid in paying their common debt was the fault of Lloyd himself. Whatever loss Lloyd may have met with on account of such failure, was more than offset by the amount, which die .was enabled to save by-.neglecting his father-in-law’s support during the last ten years of the latter’s life. All this should have been explained to the beneficiaries in this trust, when they were told, that their father had paid nothing on the Miller debt, and that, for this reason, they should release Lloyd from his obligations. No such explanation was given.

As to the expense, which Lloyd claims to have been put to by reason of litigation, instituted against him by his father-in-law, he is unable, in his testimony, to figure up, that’such expense amounted to more than $235. This was more than offset by the amount, which his refusal to furnish a home, as he agreed to do, to Ambrosine Jones, his young sister-in-law, during the last six years of her minority, enabled him to save. He grossly exaggerated the amount of this expense to his brotliers-in-law, when he was pleading with them to take one “eighty,” instead of two “eighties.” He failed to explain to them the damages, for which he would have been justly liable, if he had been called to account for his violated agreement in reference to their minor sister.

Again, he says, he told them that he could not give them more than eighty acres, because “the old man had put me to a good deal of expense, and this $1000 was back. ” If, at that time, the sum of $1000 was still unpaid upon the claim of Mrs. Miller—which does not appear, from all the evidence, to have been at all probable, or even possible—he should have told plaintiffs in error, in connection with the subject of such unpaid balance, that the Miller debt might have been paid years before that time, if he had applied the rents and profits of the farm to such payment, as he had agreed to do, instead of using them to make outside investments for himself. To claim the sympathies of his brothers-in-law, on account of an unpaid indebtedness, which would not have existed but for his misuse of funds accumulated mainly by their own labors, was sheer hypocrisy.

Moreover, the manner, in which Lloyd obtained this release, subjects his conduct to the gravest suspicions. In procuring it, he purposely sought the assistance of his wife and his lawyer. The plaintiffs in error had lived with their elder sister, Mrs. Lloyd, for many years. They lost their mother in 1854, and, as we understand it, before they left Wales, their native country. They say and Mrs. Lloyd says, that they looked up to her, as a mother. Oliver says, that he had such implicit faith in his sister and her husband, that he believed what they told him about his rights under the agreement. When the statements of persons, whose relations to them were so close, and in whom they had so much confidence, were backed by the concurrence of a shrewd and well informed lawyer, it is easy to see what impression was made upon the minds of these ignorant and simple-hearted youths.

■The settlement was made in April 1874 and this suit was brought in January 1880. It is said the delay in bringing the suit amounts to such laches, as- ought to defeat the prayer for relief. Under ordinary circumstances, a delay of six years would constitute laches in such a case as this. But the*proof shows, that plaintiffs in error did not discover the real facts, nor learn of the fraud, that had been practiced upon them, until the fall of 1879. No' laches can arise from delay in taking steps to undo a fraud, until after knowledge of the fraud has been acquired.

The decree of the circuit court, dismissing the bill, is reversed, with directions to that court to enter a decree, requiring defendants in error to convey the south half of the northwest quarter, above described, to plaintiff in error, Randolph Jones, subject, however, to a lien thereon in favor of plaintiff in error, Oliver Jones, for the amount, paid by him to said Randolph, upon the mortgage for $1000, executed upon the north half of the quarter section, and requiring defendant in error John Lloyd to account for the rents and profits of said south half, since April 3,1874, and, if . the said south half has been sold, then requiring said Lloyd to account for the value thereof on April 3 1874 and interest at six per cent per annum on the amount of such value.

Decree reversed.

Scott and Sheldon, JJ., dissent from this opinion.


source: Caselaw Access Project

author: Mr. Justice Craig

license: Public Domain

text:
    Englewood Connecting Railway Company v. The Chicago and Eastern Illinois Railroad Company.

      Filed at Ottawa May 15, 1886.

      1. Eminent domain—parties—in proceeding to condemn right of way across the trach of another railroad—as to a lessee of the latter road. Where one railroad company gives another one a lease of a portion of its track, between a certain place and its terminus, but reserves its franchise and the right to exercise its corporate powers and the “general control, management and supervision of the main line of the track, * * * and the full and sole control and direction of the management, use, location, improvement and repair of the same,” etc., the lessee company will not have such an interest in the line of the road leased as to make it a necessary party to a proceeding by another railroad company for the condemnation of a right of way across the track of the lessor company.
    2. Appeal—:final judgment in the Appellate Court—what so considered. A suit in chancery, seeking an injunction, only, was heard on bill, answer and exhibits, and the injunction dissolved and the bill dismissed, and on appeal the Appellate Court reversed the order and decree of the circuit court, holding that the complainant was entitled to the relief sought, and remanded the cause: Held, that the judgment of the Appellate Court being so far final that nothing remained to be done in the circuit court but to enter a decree in accordance with the decision of the Appellate Court, an appeal or writ of error would lie to review the same.

      Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. T. A. Moran, Judge, presiding.
    Messrs. Willard & Driggs, Mr. R. Biddle Roberts, and Mr. F. J. Loesch, for the plaintiff in error, after quoting from the lease Between the companies, contended that defendant in error had no such interest in the track as to make it a necessary party to the condemnation proceeding.
    The only remedy sought being an injunction, the judgment of the Appellate Court, reversing the order dismissing the bill and remanding the cause, left the court below nothing to do but to make the injunction perpetual. Chap. 110, sec. 90; Peck v. Herrington, 104 111, 88; Chalcraft v. Railroad Go. 113 id. 86; International Bank v. Jenkins, 104 id. 143.
    Mr. William Armstrong, for the defendant in error:
    The statute in force at the time, required the petitioner to file a petition for condemnation, setting forth therein “the names of all person's interested therein, as owners or otherwise, as appearing of record, ” among other things. The filing of a petition, giving the names of persons interested, would make them defendants, and they could only be brought before the court by the service of summons, or publication of the required notice.
    - The question presented is, whether or not the lease and supplemental lease gave plaintiff in error an interest in the premises, as owner-or otherwise. Under this lease, we hold the exclusive right to some property, while as to other property we operate in conjunction with other railroad companies. It can not be said w,e have no “interest, as owners or otherwise. ”
    ■ No one can be - deprived of his rights without having notice and an opportunity of being heard. Railroad Co. v. Smith, 78 Ill. 96; Bowman v. Railway Co. 102 id. 459.

      The plaintiff in error has a right in the property amounting to an easement. 1 Washburn on Real Prop. chap. 1, sec. 2, par. 1, 3, 5.
    The judgment of the Appellate Court is not final, and hence no appeal lies from it.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill brought in the circuit court of Cook county, by the Chicago and Eastern Illinois Railroad Company, to enjoin the Englewood Connecting Railway Company from constructing its track across the track of the Chicago and Western Indiana Railroad Company, on Wallace street, in the town of Lake, in Cook county. .

The bill of complaint states, that on the 24th day of October, 1879, the complainant made and entered into a written lease with the Chicago and Western Indiana Railroad Company, under and by virtue of which complainant acquired the right to use the tracks of said Western Indiana, from Dalton to the terminus in the city of Chicago, for a period of nine hundred and ninety-nine years; that a supplemental lease was made on the 13th day of December, 1880; that the lease and supplemental lease were recorded in the recorder’s office of Cook county, Illinois, before the defendant was created; that the complainant has been in the use of said railroad track ever since the execution of said' lease. The defendant put in an answer to the bill, in which it alleged that it was a corporation, duly organized under the laws of the State of Illinois, with its principal office at Chicago; that it is empowered to construct a railroad from a point on the Chicago, Pittsburgh and St. Louis railway, in the town of Lake, between Fifty-eighth and Fifty-ninth streets, to a point on the Pittsburgh, Port Wayne and Chicago railway, in said town, between Fifty-eighth and Fifty-ninth streets, with the right to construct all side-tracks, etc., that its directors may determine upon. It is also set up in the answer, that defendant has the right to cross Wallace street; that respondent, on a certain date, filed in the county court its petition to condemn, against the Chicago and Western Indiana Railroad Company; that said petition was tried; that judgment fixing the damages due to the Chicago and Western Indiana Railroad Company in the sum of $>400., was entered and paid. The lease set up in the bill, and the condemnation proceedings set up in the answer, are made exhibits to the answer. The cause came on to be heard upon bill, amended bill, answer and exhibits, August 10, 1885, and, on motion of plaintiff in error here, the injunction was dissolved, and the bill was dismissed for the want of equity. The complainant appealed to the Appellate Court, where the decree of the circuit court was reversed, and the cause remanded for further proceedings not inconsistent with the opinion. To reverse the decision of the Appellate Court, this writ of error was sued out by the defendant in the bill.

The first question for consideration is the motion of defendant in error to dismiss the writ of error for the alleged reason that the order of the Appellate Court is not such a final order as entitles plaintiff to appeal or have a writ of error. The only relief sought in the bill was an injunction, and when the circuit court dissolved the injunction, the complainant requested that the bill might be dismissed, which was done, for the reason, as we suppose, that no other relief was prayed for in the bill. Had there been any other ground of relief, of course the bill would have been retained, for the purpose of disposing of such matters. In the Appellate Court it was held that the complainant had property rights in the crossing, which had never been condemned, as against the complainant, and that it was entitled to an injunction, and that the court erred in dismissing the bill for want of equity. Then .followed the order reversing, and remanding for further proceedings not inconsistent with the opinion. When the case goes back, there is nothing for the circuit court to do but to enter a decree making the injunction perpetual. On bill, answer and exhibits, the circuit court held that complainant was not entitled to an injunction restraining the construction of the one railroad across the tracks of the other. The Appellate Court, on the same facts, on appeal, held that complainant was entitled to the injunction, and the cause was remanded. Obviously, when the case goes back, the duty of the circuit court would be to enter a decree in accordance with the decision of the Appellate Court. Under section 90 of the Practice act, an appeal or writ of error will lie from the Appellate to the Supreme Court, if the judgment, order or decree of the Appellate Court be such that no further proceedings can be had in the court below, except to carry into effect the mandate of the Appellate Court. That was the ease here. We think the case falls directly within the terms of the statute cited.

Buck v. County of Hamilton, 99 Ill. 507, has been cited and relied upon in support of the motion to dismiss. But there is no similarity between that case and the case before us. That Was an action at law, and when remanded would stand for a new trial before a jury; but here, the circuit court only had to obey the mandate of the Appellate Court, and render a decree in accordance therewith. This case maybe likened to International Bank v. Jenkins, 104 Ill. 143. The motion to dismiss will have to overruled.

As to the merits of the case, as presented by the record, but one question arises, and that is, whether the Chicago and Eastern Illinois Railroad Company acquired such an interest in the railroad track of the Chicago and Western Indiana Railroad Company, under the'lease, as to make it a necessary party to the proceeding to condemn, which was instituted by the plaintiff in error, against the Chicago and Western Indiana company. This question rests upon the construction which will have to be placed upon the lease under which the Chicago and Eastern Illinois company claims. The lease bears date October 24, 1879, between the Chicago and Western Indiana Railroad, Company, party of the first part; and the Chicago and Eastern Illinois Railroad Company, party of the second part,-and recites, that-the road of 'the party of the second part has not been constructed to a point nearer the city of Chicago than Dalton; that the facilities acquired and being acquired by the party of the first part are adequate for the business of the party of the second part; that the said party of the second part, for and in consideration of the premises, “has granted, demised and leased, and by these presents does grant, demise and lease, unto the said party of the second part, the right and privilege of using and running locomotives, cars, and other rolling stock of said party of the second part, over and upon the main track or tracks of the railroad of the party of the first part, from Dalton to the passenger depot in the city of Chicago; and also the exclusive right and privilege of using, for the purposes of such traffic, freight buildings, ” etc., which are specifically specified in the lease. The lease is to run for a period of nine hundred and ninety-nine years-, and the amount to be paid for the privileges granted is set out therein. It also provides, that during the term, the party of the second part shall conduct the entire local business between Dalton and the, terminus in Chicago. The lease contains this provision: “That nothing herein contained shall be deemed or taken, in any manner, to affect or abridge any of the corporate franchises or powers of said party of the first part to operate the-said road on its own behalf, to lease the same, or make contracts for its use with other companies, and furnish terminal facilities similar to those granted to the party of the second part.” The seventeenth clause prohibits the party of the second part from selling the lease, or underletting, and that it shall have no right to contract with other railroads seeking an entrance into the city. The eighteenth clause provides, that the party of the second part shall comply with all reasonable rules established by the party of the first part in regard to the exercise of the rights conferred, and it is “agreed that the party of-the first part shall have the general control, management and supervision of the main line of the track, * * * and the full and sole control and direction of the management, use, location, improvement and repair of the same. ” The lease also provides that the party of the first part shall, during the term, exercise its corporate powers, and keep in repair the main track, etc.; that the party of the first part shall have the general control, management and supervision of the main line of track, “and the full and sole control and direction of the management, use, location, improvement and repair of the same, the appointment and supervision of all officers, agents and employes. ”

The lease is lengthy, and contains many provisions, but enough have been referred to, to show its scope and general object. From an examination of the whole lease, it is apparent, as to the main line of the road, the Chicago and Eastern Illinois Railroad Company has acquired the mere right to run its trains over the road from Dalton to the terminus of the road in Chicago, while the Western Indiana retains all of its franchises and powers, keeps the road in repair, retains the general management, and has the right to allow as many other railroad companies as it may please, to run their trains over the same line of road. Under such circumstances, it is difficult to understand what property interest of the lessee would be jeopardized or taken away if another railroad company is allowed to cross the track of the Western Indiana. The lessee has no ownership of the right of way, of the roadbed, or the track. It acquires none of the franchises of the lessor, for the lease expressly provides that they are retained by the latter: Under such circumstances, can it be said that the defendant in error has an interest in the railroad crossing, as owner or otherwise, within the meaning of the Statute of Eminent Domain? We think not. The ownership of the crossing, the property condemned, was retained by the Western Indiana company. Suppose it had conveyed the right to cross its track, by deed, and the plaintiff in error had commenced the construction of its crossing under that instrument, would a court of equity enjoin that which the owner had agreed might be done ?

But it is said, that the Eastern Illinois company has the right to run its trains over the line, and it can object; but the answer to this is, that the lease, which authorizes the running of its trains over the road, expressly provides that the Western Indiana shall have the management and supervision of the main line of track, and also the sole control and direction of the management, use, location, improvement and repair of the same. Now, if the Western Indiana can direct the use of the track, it surely can authorize some other company to cross the same, and that without the consent of the lessee. If the Western Indiana possesses this right, and would refuse its consent for the other railroad to cross its tracks, when the latter road would undertake to condemn, it would seem to follow, that if the Western Indiana was made a party to the proceeding, the judgment of condemnation ought to be valid, although the defendant in error was not made a.party to the proceeding.

That clause of the lease in which the Western Indiana reserves the right to control the main line of track, and reserves “the fall and sole control and direction of the management, use, location, improvement and repair of the same, ” we regard as an-important one in fixing the rights of the parties. It shows, plainly, that the Eastern Illinois company has no voice in the determination of who shall use the track, but, on the other hand, its use is a matter which pertains solely to the Western Indiana company. If the Western Indiana can allow any railroad company it may choose, to run along its tracks, as it can under the lease, -we see no reason why it may not allow a company to cross its tracks, and if it can confer this power, regardless of the lessee, then the lessee would not be an interested party in a proceeding to condemn.

In conclusion, we are of opinion that the decree of the circuit court was correct.

The decision of the Appellate Court will be reversed, and the decree of the circuit court will be affirmed.

Decree affirmed.

Mr. Chief Justice Mulkey : I am not satisfied with the

conclusion in this case.

Mr. Justice Sheldon does not concur in the opinion.


author: Mr. Chief Justice Scott

text:
    Mary Queenan et al. v. John M. Palmer et al.

      Filed at Springfield June 10, 1886.

    1. Chancery jurisdiction—distribution of common fund. Where a common fund exists, upon which numerous persons have claims, which may or may not be sufficient to satisfy all demands upon it, a court of equity will have jurisdiction to ascertain the amount of such fund, and its sufficiency, and distribute or apportion the same among those it may find entitled to share therein.
    2. Same—to enforce liability of stockholders of a bank corporation. Where the charter of a banking corporation makes its stockholders individually liable to the amount of the stock held by them, .respectively, to depositors and other creditors of the bank, for any losses they may sustain, such liability is a common fund for the security of creditors, and a court of equity, aside from the ground of discovery, will have jurisdiction of a bill by a creditor, for himself and others, to enforce such liability, and control the fund thus raised for their benefit, and distribute the same ratably among them, the remedy at law in such case being inadequate without the bringing of a multiplicity of suits.
    3. Stockholders—individual liability—whether penal in its nature. A bank charter provided that the stockholders should “be responsible, in their individual property, in an amount equal to the amount of stock held by them, respectively, to make good losses to depositors or others:” Held, that the indivichml liability was not in the nature of a penalty, and therefore enforceable only in a court of law, but was primary, and subject to the demands of depositors and other creditors, equally with the assets of the bank.
    4. Same—statute making stockholders liable, construed. A charter or statute making the stockholders of a corporation individually responsible in an amount equal to their stock, “to make good losses to depositors or'others,” will be construed to make the stockholders liable to all creditors who may suffer from the default or failure of the corporation to pay its indebtedness. The total or partial insolvency of the corporation, and its neglect to pay, is a loss to the creditor, in the sense of that word as used in the statute. Besides, the words, “to make good all losses,” are equivalent to the words, “to make good all deposits,” and mean, to protect depositors against losses.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the 'Circuit Court of Sangamon county; the Hon. Jesse J. Phillips, Judge, presiding.
    Messrs. McClernand & Keyes, and Mr. L. F. Hamilton, for the appellants:
    It is claimed that a court of equity has no jurisdiction to enforce the liability of the stockholders of the bank to depositors, the remedy being at law. This we deny. The right to sue at law does not necessarily exclude the jurisdiction of a court of equity, provided there are equitable grounds therefor. Eames v. Doris, 102 Ill. 350.
    The court in that case had jurisdiction upon either of three grounds: First, the debts largely exceeded the assets and the liability of the stockholders combined; second, the liability of the stockholders was a common fund for the benefit of all the creditors entitled to share therein, and the securing a ratable distribution of the fund was a proper ground of equitable jurisdiction; and third, the avoidance of a multiplicity of suits. «
    The discovery sought was sufficient to give jurisdiction, and where that once attaches, the bill will be retained for other relief. 1 Story’s Eq. Jur. sec. 71; Pool v. Decker, 92 Ill. 509.

      The remedy at law in a case like this is wholly inadequate. The fact of a concurrent remedy at law does not exclude the jurisdiction of a court of equity. Bank of Poughkeepsie v. Ibbotson, 24 Wend. 473; Van Hook v. Whittock, 3 Paige, 409; Norris v. Johnson, 34 Md. 485; Perry v. Turner, 55 Mo. 418; Dozier v. Thornton, 19 Ga. 325.
    When the bank, after receiving the money of depositors, became insolvent, closed its doors, and suspended payment, which it never resumed, a loss occurred to them in the sense of the charter, and they are not required to sue the bank or attempt to realize from its assets.
    The liability of the stockholders is founded on a contract contained in the charter, with the depositors, and is not based on a statutory penalty. Their liability is primary. Coleman v. White, 14 Wis. 762; Corning v. McCullough, 1 Com. 47; Hanger v. McCullough, 2 Denio, 123; Paine v. Steivart, 33 Conn. 516; Young v. Rosenbaum, 39 Cal. 646; Aspinwall v. Sacchi, 57 N. Y. 331; Culver v. Third Nat. Bank, 64 Ill. 528; Corwith v. Culver, 69 id. 502; Fuller v. Ledden, 97 id. 310.
    The stockholder stands in the relation of partner to his co-stockholders, as to creditors of the common corporation ; and the common law liability as a partner attaches to him in that character, independently of the charter. His subscription, paid or unpaid, constitutes alike an asset, or fund, bound for the debts of the corporation. Spear v. Crawford, 14 Wend. 20; Manufacturing Co. v. Small, 21 id. 273; 2 Hill, 127; Railroad Co. v. Kennedy, 12 Conn. 499; Turnpike Co. v. McChesney, 21 Wend. 296; Sagara v. Dubois, 3 Sandf. Ch. 494.
    Messrs. Palmees, Robinson & Shutt, for Helmle, Reisch, and John M. Palmer:
    The act under which the bank organized, provides that the stockholders shall be responsible “to make good all losses to depositors or others.” The word “others,” means all persons who may suffer losses by the default or misconduct of the corporation, acting in any of its legal capacities. The obligation of the stockholder commences when the bank has not only failed in its duty, but when a loss has already happened. To recover of the stockholders, proof of actual loss must be made.
    The losses of depositors and others, by the default of the hank, are in the nature of unliquidated damages, recoverable at law, and not in equity. Besides, the alleged liability is penal. Diversy v. Smith, 103 Ill. 378.
    Messrs. Orendorff & Patton, for the appellee Bradford:
    Whatever may be the nature of the alleged liability, the complainants’ rights are purely legal, arising upon a statute which does not designate the forum for their enforcement, and therefore the remedy is at law. Culver v. Third Nat. Bank, 64 Ill. 528; Corwith v. Culver, 69 id. 502; McCarthy v. Lavasche, 89 id. 277; Wincock v. Turpin, 96 id. 135.
    Mr. N. M. Broadwell, for the appellee Tracy:
    Under a statute creating a liability, the remedy is at law, unless it provides an equitable remedy. 2 Wait’s Actions and Defences, 485; Wincock v. Turpin, 96 Ill. 135; Windham Provs. Inst. v. Sprague, 43 Vt. 502; Culver v. Third Nat. Bank, 64 Ill. 528; Tibbals v. Libby, 87 id. 142; Arenz v. Weir, 89 id. 25; Fuller v. Ledden, 87 id. 310.
    To give a court of equity jurisdiction, the bill must show some equitable grounds of relief. Fames v. Doris, 102 Ill. 350; Morris v. Tillson, 81 id. 607.
    This liability being in derogation of the common law, the statute imposing it must be strictly pursued. Brandy v. Goodwin, 95 Ill. 118.
    The loss being the contingency upon which the liability of the stockholders was to arise, it could only attach to those who were stockholders at the time of the loss. Morse on Banks, 494; Bored v. Appleton, S Mass. 472; Thebus v. Smiley, 110 Ill. 316.
    Complainants must show they have exhausted the assets of the bank, before they can pursue the stockholders in equity. Harper v. Manufacturing Co. 101 Ill. 225.
    Messrs. Stuart, Edwards & Brown, for Hickox, Fox, Million, and J. A. Chestnut.
    Mr. J. A. Chestnut, pro se, and for T. S. Wood.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

As is seen from the record, the “Springfield Savings Bank” was incorporated by a special act of the General Assembly, approved February, 1867. It seems its capital stock was $100,000, and was divided into shares of $100 each. The charter of the corporation was amended by an act of the legislature, passed April 11, 1869, which amendment contained the following provision: “That the stockholders of said corporation shall be responsible in their individual property in an amount equal to the.amount of stock held by them, respectively, to make good all losses to depositors or others; and no assignment of their stock shall release them from such liabilities until after the fact of such an assignment, and name of the person to whom made, and the amount of the stock assigned, shall have been advertised in some public newspaper published in the city of Springfield, for the period of three months. ” The capital stock was soon taken, the bank organized, .and thereafter it continued to transact the usual business done by such institutions, until the 17th day of .December, 1877, when it suspended, and never again resumed. It seems the officers, notwithstanding the bank had suspended operations, continued in possession of its property, as they had previously been, doing some business looking to the closing up of its affairs, until the 9th day of April, 1879, when the corporation made an assignment of its effects and assets, under the Insolvent act, for the benefit of its creditors. The assignee appointed, qualified in due time, and entered upon the duties of the trust. Afterwards, the original assignee resigned, and John S. Bradford was appointed successor, and has since continued to act. At the time the bank suspended operations, its books contained the names of the stockholders, the number of shares owned by each, and the par value.

The original complainants in this case were Mary Queenan and Theodore Kerger, who filed their bill in the circuit court on the 21st day of' January, 1880, on their own behalf and on behalf of all other creditors of the bank who might come in and contribute to the expense of the suit. Subsequently, quite a number of persons, by leave of court, came in and became co-complainants with the original complainants. Mary Queenan alleged, by her bill, that she commenced to deposit money with the bank about the 5 th of August, 1872, and continued to do so, from time to time, up to May 1,1875, and that the bank, at the time of filing the bill, was indebted to her, on account of such deposits, in the sum of $4000. The other complainants, by appropriate allegations, stated the amounts, and when and how their respective claims accrued. It is charged that certain persons, all of whom are made defendants to the bill, were owners of stock in the bank at and before the deposits were made by complainants, but they say they do not know 'and can not state the number of shares owned by each defendant. Complainants allege the loss of their respective deposits by the suspension and insolvency of -the bank. A discovery of certain facts is sought, by requiring answers, under oath, to interrogatories propounded in the bill, and the prayer is, that on the hearing of the cause the respective sums due to complainants may be ascertained by the court, and also the number of shares of stock held by each defendant, and that defendants may be required by the decree of the court to pay to complainants, within a time to be fixed, the sums of money due to each from the bank. A demurrer filed to the bill by a number of defendants was overruled by the court. Most of the defendants answered the bill, but a few of them failed to do so, and as to them a decree pro confesso was rendered. Aside from the fact defendants admit the number of shares of stock held by each of them, the answers contained little else, except it is charged in some of them the liability of the stockholders is by way of statutory penalty, and set up the two years’ limitation as contained in the statute, and in respect to all intervening petitioners the five years’ statute of limitation is insisted upon as a bar to any relief as to them. The cause was referred to the master, and it seems exceptions were taken to his report by both parties, but in the view that is to be taken of the case it will not be necessary to consider them at this time. The court, on the master’s report, found certain defendants were owners of stock in the bank, and the number of shares owned by each of them, and decreed that all of defendants found to be owners of and liable for stock, “pay an amount equal to the value of the shares of stock owned by them, as hereinbefore found and stated, to be collected of the living, by execution directly, and of those not living, in due course of administration, as provided in the case of the estates of deceased persons. ”

It was also found by the court, in its decree, that the bank was liable for the whole amount due to complainants, but that it was insolvent. . This decree of the circuit court was, on the appeal of some of defendants, reversed by the Appellate Court for the Third District, and the cause remanded, with direction to that court to dismiss complainants’ bill.

As this case now comes before this court, it will only be necessary .to consider two of the principal questions made on the record: First, what liability, if any, does the amended charter of the “Springfield Savings Bank” impose upon the holders of shares of stock in the corporation; and second, has chancery jurisdiction to entertain complainants’ bill, and to afford the relief sought by it. Other minor questions raised on the hearing in the circuit court need not now be passed upon. Should the case ever come before the Appellate Court again, that court will no doubt give satisfactory answers to them, without any suggestions in advance from this court.

Naturally, the jurisdictional question made, first presents itself as one of controlling importance. It is confidently maintained, that whatever may be the character of defendants’, responsibility under the charter of the corporation, 'the remedy, if any exists, is at law, and hence the present bill should have been dismissed on the demurrer of some of defendants, for want of jurisdiction. This, it is thought, is a misapprehension of the law. The jurisdiction of the court does not rest on the ground the bill in this case may invoke a discovery of evidence of fact material to enable complainants to maintain their bill. It has a better understood principle of jurisdiction upon which to rest, and one uniformly recognized by the courts of this and other States. It may be that an action at law might have been maintained against defendants on their statutory liability, but that fact would not necessarily exclude a court of equity of jurisdiction. The remedy at law, if any in fact exists in this ease, is totally inadequate to afford the full measure of relief without the .bringing of a multiplicity of suits, which the law does not favor where it can be avoided. Undoubtedly the law is, where a common fund exists upon which numerous persons have claims, equity will seize hold of it, and pay it out ratably upon their respective claims, or pay them in full, if the fund shall be sufficient for that purpose, in cases where it is wrongfully withheld. It may not be always known in advance whether the common fund will be sufficient to satisfy all demands upon it, and to ascertain that fact is a well recognized head of equity jurisdiction. Treating the liability the statute creates upon the stockholders in this bank as a common fund, out of -which depositors may be paid, as well as out of the assets of the bank itself, the jurisdiction of a court of equity to seize such fund, and control it for the benefit of depositors, would hardly be questioned where an exigency arises that demands the exercise of such power.

It is said the alleged liability of the stockholders, under the statute, is penal. If this proposition can be maintained, it would, of course, exclude chancery jurisdiction, and depositors would have to resort to the law courts for whatever remedy might exist. Whether the liability of stockholders is primary, or a mere penalty, depends upon the construction that shall be given to that clause of the amended charter which imposes responsibility upon thém as to their individual property. The language of that amendment is broad and comprehensive. It provides, the stockholders of the corporation “shall be responsible, in their individual property, in an amount equal to the amount of stock held by them, respectively, to make good losses to depositors or others. ” It will be perceived, from a close reading of the charter, the liability it imposes is upon the “stockholders ” of the corporation as a class, and not separately, as individuals. The imposition of a penalty is in the nature of punishment, for wrongful or tortious conduct in an individual, and is never imposed upon a class of persons in the aggregate, as a body. The definition of a penal statute is well understood. It is “one which imposes a forfeiture or penalty for transgressing its provisions, or for doing a thing prohibited. ” A familiar illustration often occurring is, where the charter requires certain things shall be done before any business shall be transacted by the corporation, and if done, it will subject the corporators to a certain measure of liability, that has always been held to be penalty, as punishment for wrongful or tortious conduct on the part of the corporators, which can only be recovered in an action at law. But the clause of the statute being considered, has no element that brings it within the definition of a penal statute. The provision of the charter simply creates a liability in favor of depositors. What may be the extent of that liability will be considered further on. It simply creates a liability upon the stockholders, to depositors or others, and whatever that responsibility may be, it is primary, and exists with the liability of the bank to its depositors or other creditors. It is as much a fund for their security as the assets of the bank. This is declaring no -new doctrine. It is simply the application of principles settled by the previous decisions of this court. It has been repeatedly held, the statutory liability of stockholders created by the charter, for the debts of the corporation, is a common fund for the security of its creditors. The securing of a distribution, ratably or otherwise, of such fund among creditors entitled to share in it, is a proper ground for the equitable jurisdiction of a court of chancery, as was expressly decided by this court in Eames v. Doris, 102 Ill. 350, for the benefit of depositors.

Assuming it is a correct construction of this clause of the charter that the liability imposed by its terms upon stockholders constitutes a common fund for the benefit of depositors or others, counsel do not question the fact that Eames v. Doris maintains the jurisdiction of a court of equity to administer such a fund whenever a proper case is .made for so doing, for it is a familiar branch of equity jurisdiction. That it is the correct construction of the charter that the responsibility imposed upon stockholders is primary, and exists with the obligation of the corporation itself, and that it constitutes a common fund for the benefit of depositors or others, seems clear, both upon principle and upon authority, and hence the jurisdiction o,f a court of chancery in such cases is equally clear.

The other branch of the case, that has relation to the. extent of the responsibility of the stockholders of the bank, to depositors or others, needs only a brief discussion. The'question presented, is entirely new in this court, and arises out of the peculiar and unusual language contained in the charter. The obligation, as has been seen, is. to “make good all losses to depositors or others. ” It is said the word “losses, ” in the charter, refers to all persons who may suffer losses by the default of the bank,—depositors or others. That is undoubtedly correct; but what is meant by the term “losses,” as used in the statute ? It would seem, from the argument, that defendants would restrict the meaning of the term “losses” to' signify only the difference between the depositor’s claim, and what he might realize by an action or bill against the insolvent bank. There are many cogent reasons, in the way of adopting this definition, some of which do not readily admit of any satisfactory answer. In the first place, it would require that the responsibility imposed upon the stockholders should be treated as secondary to that of the bank, and not primary. That, as has been seen, can not be done. Again, it would render it necessary for the depositors, by bill,—for it could not be done otherwise,—to procure a ratable distribution of the assets of the insolvent corporation among all persons interested. After that should be done, then in like manner to proceed against the common fund arising from the statutory liability of the stockholders. The law has imposed no such duty upon the depositor. He may proceed against one or both funds, at his election. A party having more than one remedy, is at liberty to pursue either or all until he has obtained satisfaction of his claim. It can not be that the term “losses ” was used, in this connection, in that restricted sense as to mean that Avhich can never be recovered. OtherAA’ise there might be no such thing as any “losses ” to the depositors in this case, for there might exist a remedy against the bank for one portion, and against the stockholders for the residue, and Avhat would there be left for the term to attach ? Obviously, the term “losses” was used in a more general sense, and one usually attached to it by a common understanding. In its most general sense, the word “loss, ” means any deprivation. In some instances it may mean that which can never be recovered, and in others that which is simply withheld or that of which a party is dispossessed. Often the context assists to a clearer understanding of the words employed in a statute or written agreement. By another section, this corporation was authorized to receive deposits from laborers and servants, and was obligated to repay such deposits when required. ' The suspension of the bank, by reason of insolvency, was an absolute refusal to repay the deposits to the owners, and operated as a deprivation,—a withholding of thé same from the depositors,—and that is a loss, in the ordinary acceptation of that word. A portion of the value of such deposits, or all, might ultimately be recovered from .either the bank or stockholder, but the deposits are lost to the owner. After the suspension of the bank, nothing remained of his deposits but the obligation of the bank or the stockholders to pay the value. That obligation might, or might not, be of value to him, depending on the fact of the solvency or insolvency of both the corporation and the stockholders. At all events, the funds have been wasted by the corporation becoming partially or totally insolvent, and that is a loss to the depositor, in the sense that term is used in the statute, and his right to proceed against the stockholders arises at once. Any other definition of this word “losses, ” would be inconsistent with the context, and would afford no adequate security to the depositors or others dealing with the'bank.

There is another view that may be taken that leads to the same conclusion. The phrase, “to make good all losses,” is equivalent “to make good all deposits.” As before seen, the second section of the charter authorized the bank to receive deposits from laborers, servants and others, to be repaid when required. What would commonly be understood by the phrase, “make good all losses, ” or, which is the same thing, “make good all deposits?” Obviously, considered in connection with the duty imposed by the second section of the charter, to repay deposits when required, is to pay them to the parties entitled to receive them, on the bank making default. How else can the “losses” or “deposits” be made good? The charter has inqposed upon the stockholders the responsibility to make good all losses to depositors or others, to an amount equal to the amount of stock held by them, and the legal effect of the liability created is, to that extent they shall be required to pay back deposits to the owners when the bank suspends and refuses to pay depositors or others. This view of the law seems to have been tacitly adopted by the court in Eames v. Doris, supra. The bill in that case was to enforce the stock liability against the stockholders of the “State Savings Institution, ” in respect to trust funds deposited within it. It does not seem the charter imposed any stock liability for anything other than trust funds. Section 9 of the charter provided, each stockholder in the corporation shall, as to the trust funds or saving funds deposited therewith, be individually liable, to the amount of his share or shares of the capital stock, for all “losses or deficiencies” that may occur while he was such stockholder. It will be noticed, that the only difference in the words employed in this section to indicate for what the- stockholders shall be liable, and in the charter of the Springfield Savings Bank, is the addition of the words, “or deficiencies.” The use of these words in no way. enlarges or changes the degree of responsibility created. It is obvious, the words “losses, ” and “deficiencies,” are used in this connection as convertible or equivalent terms, and as meaning precisely the same "thing. Without any discussion of the meaning of the words “losses” or “deficiencies,” it was held in Eames v. Dorisf the stockholders, to the extent specified in the statute, were primarily liable for the trust funds deposited in the institution, and that a bill in equity would lie to enforce that liability. That is the only case to which the attention of this court has been called, bearing even remotely on the questions being discussed, and it is thought it should control.

The judgment of the Appellate Court will be reversed, arid the cause remanded to the circuit court for further proceedings not inconsistent with this opinion.

Judgment reversed.

Mr. Justice Scholfield, dissenting.


text:
    Henry H. Gage v. Jacob Mayer.

      Filed at Ottawa May 15, 1886.

    1. Tax title—stricti juris. The validity of a tax title depends upon a strict compliance with the statute.
    2. Same—notice, and affidavit thereof—to authorize the malting of a tax deed. Under section 216 of the Revenue act, the right of a holder of a certificate of purchase at a tax sale, to a deed for the property sold, rests entirely upon the sufficiency of the affidavit filed with the county clerk, to show a proper service of notice of the purchase, and when the time of redemption will expire. Parol evidence can not be received to supply defects or omissions in the affidavit.
    3. The statute only authorizes a deed to be executed upon a purchase at tax sale, upon an affidavit being filed which contains certain specified facts, and if it fails to contain such facts, the deed is unauthorized and nugatory, regardless of what the real facts may be, or what may be proved.
    4. ’ tyi this case, an affidavit made by an agent of a purchaser at a tax sale, in August, 1877, that he visited the lot on December 6, 1878, to serve the occupant with a notice of the sale, etc., and there was no person in possession of the same, but the property was vacant and unoccupied, that it was taxed in the name of W. H. Rice and I. Mayer, and he served a notice, of which the annexed was a true copy, on W. H. Rice and I. Mayer, by handing the same to and leaving the same with W. H. Rice, personalty, at No. 188 Washington street, and Z. Mayer, personalty, at Howland block, Chicago, in said county, both on March 19, 1879: Held, that the affidavit failed to show service of notice on I. Mayer, one of the persons in whose name the lot was taxed, and that the deed issued thereon was void.

      5. Chancery—setting aside tax deed as a cloud upon title—upon what terms. On bill to set aside a tax deed for a lot bought in 1877, in computing the amount the complainant should pay the defendant, the court included amounts the defendant had paid for jther and prior tax sales, under which he claimed title: Helil, that the error was not one of which the defendant could complain, as it did him no harm. In such case, the defendant was not bound to accept the sums deposited to meet his payments on the other tax titles, the validity of which was not involved.
    6. Same—remedy at law—trial of legal titles. On a bill by one claiming to be the owner of land, to set aside a tax deed as a cloud on the title, the defendant filed a cross-bill setting up other distinct legal titles to the land, in fee, to which the court sustained a demurrer: Held, that the demurrer was properly sustained, on the ground the defendant had a complete remedy at law by the action of ejectment.
    7. It is a well settled principle, that a court of equity is not the proper tribunal for the trial of legal titles to real estate. An action of ejectment can not be tried, in a court of equity, by bill or by cross-bill.
    8. Same—cross-bill—must be germane to the original bill. Matters sought to be investigated by cross-bill shquld be germane to the subject involved in the original bill. If the original bill seeks to set aside a tax deed as a cloud on complainant’s title, any matter having a bearing on the validity of the sale or deed is proper for the defendant to present. But the establishment of another legal title, not sought to be avoided, can not be had on cross-bill.
    Appeal from the Circuit Court of Cook county; the Hon. T. A. Moran, Judge, presiding.
    Mr. Augustus N. Gage, for the appellant:
    The service of the notice on I. Mayer, by leaving it with J. Mayer, was sufficient, because, first, it was proved they were the same person, and the notice was in fact served on the right person; and second, the letters “I” and “J” are synonymous, and are used interchangeably. Hammond v. People, 32 111. 446.
    It does not appear in the record that the yeas and nays were not called upon the passage of the appropriation ordinance, and whether they were called can in no way affect injuriously the tax deed or the justice of the tax. Neither does the record show the taxes of the town entered into the judgment. Chiniquy v. People, 78 Ill. 570; Thatcher v. People, 79 id. 597; Riverside Co. v. Howell, 113 id. 256.
    The court should not have required appellee to pay appellant for titles not in issue under the bill, and against appellant’s protest.
    This was a proper case to "entertain a cross-bill, that complete justice might have been done to all. A freehold was involved in the original bill and also by the cross-bill. Gage v. Scales, 100 Ill. 218; Gage v. Ewing, 107 id. 11.
    The demurrer in this cause would not lie to the cross-bill. The cross-bill needs not any ground of equity to support the jurisdiction of the court. 2 Barbour’s Ch. Pr. 127, 128, 131, 133; Story’s Eq. PI. secs. 399, 628, 832.
    The subject matter of the cross-bill is germane to the subject matter of the original bill. Jones v. Smith, 14 Ill. 229; Hurd v. Case, 32 id. 45; Robbins v. Swain, 68 id. 197; Artesian Well Co. v. Life Ins Co. 57 id. 424.
    The cross-bill set up a title in appellant adverse and superior to the title of appellee, together with all the requisites of an absolute legal title, which was admitted by the demurrer to the cross-bill, and the proof properly adduced under the answer to the orignal bill shows such allegations were true. Gage v. Reid, 104 Ill. 509.
    Mr. Marshall D. Ewell, also for the appellant, contended that I and J are the same letter, and used interchangeably, and under the doctrine of idem sonans, the affidavit showed a valid service, citing Blackwell on Tax Titles, (4th ed.) 393; 1 Bishop on Crim. Proc. see. 688; 3 Chitty’s Gen. Prac. 171; Ward v. State, 28 Ala. 53; Petrie v. Woodworth, 3 Cal. 119; Barnes v. People, 18 Ill. 52.
    Mr. Consider H. Willett, for the appellee:
    The notice and the affidavit show that service was not made upon the party in whose name the lots, were assessed.

      The provision of the statute is mandatory, and strict compliance is essential to every tax deed. Gage v. Hervey, 111 111. 305; Burroughs on Taxation, 320, sec. 116.
    The affidavit, upon which the tax deed issued, does not show that I. Mayer could not be found in Cook county, and therefore the publication notice was a nullity. Chappel v. Spire, 106 111. 472; Barnard Y.-Hoyt, 63 id. 341; Holbrook y. Fellows, 38 id. 440; Gage v. Schmidt, 104 id. 106.
    The yeas and nays were not called or recorded, and hence the appropriation ordinance was void. Steckert v. East Saginaw, 22 Mich. 106; Toiun of Olin v. Meyers, 55 Iowa, 209.
    The demurrer was properly sustained to the cross-bill, because it was an ejectment bill. A cross-hill, like an original bill, must contain its own grounds for equitable relief. A court of law is the forum in which to try legal titles. Parker v. Shannon, 114 Ill. 192; Fire Ins. Co. v. Buckmaster, 13 id. 201; Kennedy v. Northup, 15 id. 153; Hipp v. Babin, 19 How. 271; Killian v. Effingham, 110 U. S. 568; Machine Co. v. Perry, 119 Mass. 123; Sedgwick & Wait on Trial of Title to Lands, sec. 169.
    The demurrer was properly sustained to the cross-bill, because it is not based on any equitable grounds of relief. Tobey v. Foreman, 79 Ill. 498.
    The last tax deed is the true source, of title, because, in legal contemplation, it takes the place of every other title.
    Gage having given in evidence all taxes extinguished by him upon the lots by payment and by purchase at tax sale, the decree properly embraced them.
    A tax sale is not a judicial sale, and the presumptions of law in favor of the latter are not extended to it. Beatty v. Mason, 30 Md. 409; Oliver v. Robinson, 58 Ala. 46.
   Mr. Justice Ceaig

delivered the opinion of the Court:

This was a bill brought by Jacob Mayer, in the circuit court of Cook county, against Henry H. Gage, to set aside a tax deed issued to Gage on the 26th day of March, 1880, purporting to convey certain lots situated in the town of Lake, in Cook county, which had been sold for the non-payment of taxes, on the 27th day of August, 1877.

As to the validity of the deed, but one question need be considered, as we regard that conclusive.

Section 216, chapter 120, of the Revised Statutes of 1874, provides : “Hereafter no purchaser = * * *' at any sale of lands * * * for taxes * * * shall be entitled to a deed * * * until the following conditions have been complied with, to-wit: Such purchaser shall serve * "* * notice of such purchase on every person in * * *■ possession * * * of such land, * * * and also the person in whose name the same was taxed, * * * if * * * he can be found in the county. ” Section 217 provides, that the purchaser shall make an affidavit, stating particularly the facts relied upon as compliance with section 216, supra, before he shall be entitled to a deed. Under section 216, no person is entitled to a deed, and no deed can lawfully be issued, unless the notice specified in the section has been given. Section 217 is equally imperative, that the purchaser, before he shall be entitled to a deed, shall make an affidavit showing a compliance with the section of the statute. The affidavit is required to be filed with the county clerk, whose duty it is to enter it upon the records of his office.

The affidavit relied upon as showing a compliance with the statute, was made by the agent of the purchaser at the tax sale, and states that he visited the property December 6, 1878, to serve the occupant with a notice, and there was no person in possession of the same, but the property was vacant and unoccupied; that the property was taxed in the name of W. H. Rice and I. Mayer, and he served a notice, of which the annexed is a true copy, on W. H. Rice and I. Mayer,'by handing the same to, and leaving the same with, W. H. Rice, personally, at No. 188 Washington street, and J. Mayer, personally, at Howland block, Chicago, in said county, both on March 19, 1879.

From this affidavit, it appears that the lots were assessed in the names of two persons, W. H. Rice and I. Mayer, but the notice was served on W. H. Rice and J. Mayer. So far as I. Mayer is concerned, it does not appear, from the affidavit, that he was served with any notice whatever. Had the affidavit shown that I. Mayer and J. Mayer were one and the same person, or that there was no such person as I. Mayer, and the assessment in his name was a clerical error, intended for J. Mayer, who was the real owner of the land when assessed, it might have been a sufficient compliance with the statute to authorize the execution of the tax deed. This, however, does not appear from the affidavit, and we perceive no ground upon which the affidavit can be held sufficient, unless we can say that a service on J. Mayer was a service on I. Mayer,— in other words, that J. Mayer and I. Mayer are idem sonans. In support of this view, it is said, in the argument: “The initials I and J are not to be taken as mere initials, but as abbreviations for the name Jacob, for which they stand. If the word had been fully spelled out, ‘Iacob,’ it could not have been successfully contended that this was not ‘Jacob.’ In contemplation of law the two eases are identical.” We are willing to concede, that Jacob and Iacob may be regarded as one and the same name. Where the letter I is placed before “acob,” any person would see, without a moment’s reflection, that it was intended for the letter J; but upon what theory can it be said that the letter J stands for Jacob? It may as well stand for John, or James, or any other given name which commences with that letter. So, also, I may stand for Isaac, Ion, or any other given name which commences with that letter. The use of either of the letters would not in the least indicate that they were intended as an abbreviation of the ■word Jacob. It may be, as claimed in the argument, that I was formerly used in words where J is now written, but we do not think it is so used at the present time. At all events, we are satisfied that there is no authority for holding that I. Mayer and J. Mayer are to be regarded as one and the same person, and leaving a notice with J. Mayer was not a service on I. Mayer, the person in whose name the property was taxed. Gage, v. Hervey, 111 Ill. 308, may be regarded as an authority on the question.

We have not remarked upon the evidence introduced on the trial, tending to prove that I. Mayer and J. Mayer was one and the same person, as we did not regard such evidence competent in' the case. The execution of the deed rests entirely upon the sufficiency of the affidavit filed with the clerk, upon which it issued. Parol evidence can not be introduced to supply defects or omissions in the affidavit. The statute only authorizes a deed to be executed, upon an affidavit being filed which contains certain specified facts. If the affidavit does not contain the specified facts, the deed is unauthorized and nugatory, regardless of what the real facts may be, or what may be proved.

. Pond v. Ennis, 69 Ill. 341, has been cited as an authority on the sufficiency of the notice. In the case cited, a defendant, in a proceeding to foreclose a mortgage, was served bj^ a wrong name, and it was held, that the party was bound to plead the misnomer, and on failure to do so, was bound by the decree rendered in the cause. There is no doubt in regard to the rule laid down in the ease cited, but that was a proceeding in court, and it has no bearing on the validity of the steps required to be taken under the Revenue law. to make a tax title to real estate. The validity of a tax title, as has often been held by this court, depends upon a strict compliance with the statute.

It appears from the record, that appellant had purchased the lots in question for taxes at sales prior to the one involved in this proceeding, and the master, in computing the amount complainant should pay, included amounts which appellant had paid on and under those sales, and it is urged that the court erred in requiring appellee to pay appellant for tax titles not in issue under the bill. The fact that appellee may be required to pay too large an amount, can not injure appellant, and if not injured, there can be no just ground of complaint. The validity of the sales made prior to 1877 was not involved in this bill, and if the appellant should be of opinion that an acceptance of the money decreed to be paid by appellee, which had been paid out by appellant, on or under such sales, would have any bearing upon such sales, he can leave that amount in the hands of the person with whom it has been deposited, and take the balance of the money paid under the decree.

The appellant filed a cross-bill, in which he alleged that he was the owner of the land in fee simple, under four distinct sources of title: First, under a deed from Herman Lieb, county clerk, dated February 10, 1877; second, under a deed from the same party, dated March 28, 1877; third, under a deed from E. T. 0. Klokke, county clerk, dated March 26, 1880; and fourth, under a deed from same party, dated July 2,1880. The complainant interposed a demurrer to the cross-bill, which the court sustained, for the reason that it failed to show any ground for equitable relief; that the cross-bill set up a legal title in appellant, and that his remedy was at law. It may be regarded as a well settled principle, that a court of equity is not the proper tribunal for the trial of legal titles to real estate. An action of ejectment, in a court of law, must be resorted to where the parties desire to contest the validity of conflicting titles. An action of ejectment can not be tried, in a court of equity, by bill or cross-bill. (Parker v. Shannon, 114 Ill. 192.) From an inspection of the cross-bill, it is apparent that the relief therein claimed was not a proper subject to be determined in a court of equity. Complainant’s bill was brought to impeach a tax deed, issued on the 26th day of March, 1880, on the ground that it was void, and hence a cloud upon his title. Any matter or thing having a bearing on the validity of the sale or deed was proper for the appellant to present. But the fact that appellant held other deeds for the property involved, which may have invested him with the fee, could ’ not properly be set up by an affirmative bill. If he holds the fee to the property under such deeds, he has his remedy in an action of ejectment, where his title and that of the complainant may be investigated and determined, as their rights may appear. On a bill for partition, conflicting titles may be investigated and determined, as settled in some of the'eases cited by appellant; but this is not a proceeding of that character, and the rules that govern in such a case have no bearing here.

The decree of the circuit court will be affirmed.

Decree affirmed.


author: Per Curiam :

text:
    Daniel B. Brant v. Benjamin E. Gallup et al.

      Filed at Ottawa May 15, 1886.

    1. Practice in the Supreme Court—rehearing—of an application after one rehearing has been granted. Where a different judgment is rendered upon a rehearing granted at the instance of .one party, the other party may apply for a rehearing by giving the notice and filing his petition therefor within the time prescribed by the rule on that subject.
    2. Same—excuse for not applying for a rehearing in proper time. The fact that an unsuccessful party, immediately after the filing of the opinion of this court, applies to his attorneys to take steps to procure a reconsideration, and is informed by them that nothing can be done, wheréby thirty days elapse before he learns of his right to apply for a rehearing, affords no ground for allowing him to file his petition for a rehearing after the time fixed by rule of court has expired.
    3. Same—former decision—as to rehearing granted by the court on its own motion, in order to correct an erroneous entry. The case of Chicago

      Planing Mill Co. v. Merchants' National Bank, 97 HI. 299, is to be distinguished from this. In that case the judgment, by mistake of the clerk, was entered wrong, and this court at a subsequent term, of its own motion, ordered a rehearing, in order to correct the error. .Such a rehearing is not regulated by the rule of the court on the subject.
    Appeal from the Appellate Court for the First District.
    This was a motion by the appellant for leave to file a petition for a rehearing.
    Mr. J. M. Beverly, and Messrs. Dent, 'Black & Gratty Bros., in support of the motion:
    Messrs. Paddock & Alois, contra.

   Per Curiam :

In this case an opinion was filed and judgment rendered reversing the judgment of the Appellate Court. At the September term, 1884, on motion of the appellees, a rehearing was granted. On the 22d day of January, 1885, an opinion was filed receding from the conclusion reached in the former opinion, and affirming the judgment of the Appellate Court, and judgment entered accordingly. (Beported in 111 111. 487.) .The March term, 1885, of the court passed, without any further step in the cause having been taken. At the September term, 1885, the appellant, Brant, moved the court for leave to file his petition for a rehearing of the ease. The rule of the court upon the subject is, that a party desiring a rehearing, shall, within fifteen days after the opinion is filed, give notice to the opposite party of his intention to file a petition for a rehearing, and shall, within thirty days after the filing of the opinion, file the petition for rehearing. Upon the rehearing granted on the application of the appellees, there having been rendered a decision adverse to appellant, he would have been entitled to file his petition for a rehearing, upon compliance with the rule of court in that regard, each party being allowed to petition for a rehearing where the decisión is against him, but the same party not being allowed a second petition for a rehearing. But there was not here a compliance with the rule. In excuse therefor, the affidavits of appellant and his attorney are presented, to ■ the effect, that immediately after the filing of the last opinion appellant applied to his attorney, and urged that whatever was possible should be at once done to secure a reconsideration of the case, and was then advised by his attorney that nothing further could be done in the case, and that the last opinion was a finality:. that appellant believed as he was thus advised, and did not learn until a considerable time after the thirty days prescribed by the rule had elapsed, and not until after the adjournment of the court at its March term, that a petition for rehearing could have been filed in his behalf to secure the reconsideration of the last opinion.

Reference is made to Chicago Planing Mill Co. v. Merchants’ National Bank, 97 Ill. 299, as in favor of the motion. It appears, there, that a rehearing was granted without any petition therefor having been filed, in compliance with the rule. But that was a case where, by inadvertence, the judgment of this court was made to affirm the judgment of the court below, when it was intended to affirm only an order of that court allowing an amendment to the sheriff’s return to the summons, and to reverse the judgment of the court below. At a subsequent term, upon having our attention called to the mistake, we, of our own motion, ordered a rehearing of the cause. That was quite a different case from this. There is here nothing of mistake, or anything of that kind, or any new matter presented by the petition for rehearing asked to be filed, but only matter already considered by this court upon the former arguments in the cause. In Blatchford v. Newberry, 100 Ill. 484, it was said: “We do not- undertake to say that in no case will this court, of its own motion, set aside a judgment at the second term after the same is rendered, or grant a rehearing. * * * When the case has been twice heard and considered, and the same result reached at both hearings, and a judgment has been rendered, * * * public "policy and the stability of legal proceedings demand that such judgment should not, after one entire term has intervened, be disturbed, for no other cause than that some of the judges may have changed their views of the law. ” Though this was said in reference to another sort of case, where a party who had already been granted a rehearing, moved the court to grant another hearing of its own motion, we think it may be pertinently repeated here, upon this application for a rehearing not under the rule of the court. It is important there should be a period when litigation shall come to an end, when the judgment of the ultimate tribunal may be reposed upon as final, and secure from disturbance.

We are of opinion that upon the case presented there should not be granted leave to file the petition for a rehearing, and the motion must be denied.

Motion denied.