text:
    William Henderson et al. v. The People of the State of Illinois.

      Filed at Springfield May 10, 1888.

    1. Criminal law—enticing away an unmarried female for purpose of prostitution or concubinage—elements of the offense. Under section 1 of the Criminal Code, making it a crime to entice or take away an unmarried female of chaste life and conversation from her parents’ house, or wherever she may be found, for the purpose of prostitution or concubinage, or to aid or assist therein, the gravamen of the offense is the purpose or intent with which the eñticing or taking away is done.

      2. The offense, if committed at all, is complete the moment the subject of the crime is removed from the power and control of her parents, or of others having lawful charge of her, whether any illicit intercourse ever takes •place or not. Subsequent acts are only important as affording reliable evidence of the original purpose or intent of the accused.
    3. Same—concubinage—whether the relation exists. Where a single woman consents to unlawfully cohabit with a man generally, as though the marriage relation existed between them, without any limit as to the duration of such illicit intercourse, and actually commences cohabiting with him in pursuance of that understanding, she becomes his concubine,—or, in other words, hie “kept mistress.”
    4. No great length of time or long continued illicit intercourse is necessary to the establishment of the relation of concubinage. That relation, like marriage, may be contracted or assumed in a day as easily as in a year. Any remarks in Slocum v. The People, 90 Ill. 274, to the contrary, are not approved.
    5. Same—“prostitution”—“concubinage”—sense in which the words are used in the statute. The words “prostitution” and “concubinage” in section 1 of the Criminal Code, relating to the abduction of unmarried females for the purpose of prostitution or concubinage, were used by the legislature • in their general or popular signification.
    6. Same—determining the intent. As a general rule, the safest way of judging of one’s intention about a particular matter, is to look to his acts, rather than his professions respecting it, especially when they are found to be in conflict.
    7. Practice—time to object—obscure expressions in an instruction. Where the trial court, on its own motion, instructs the jury, if any explanation of terms used in the instruction is desired, the party should ask for it. In .the absence of any such request, a judgment will not be reversed because the court fails to define the meaning of the terms used in an instruction, and this more especially when the terms are not technical terms, but are words in common and general use.
    Wbit of Bbbob to the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.
    Messrs. John M. & John Mayo Palmer, and Messrs. Patton & Hamilton, for the plaintiffs in error.
    Mr. George Hunt, Attorney General, for the People.
   Mr. Justice Mulkey

delivered the opinion of the Court:

At the September term, 1887, of the Champaign circuit •court, the grand jury returned into open court an indictment, . founded upon the first section of the Criminal Code, against William Henderson, John Henderson, Carroll Shutt and Julia ■Shutt. The first count charges that the defendants, on the second day of September, 1887, unlawfully and feloniously enticed and took away one Joanna Carman, then and there being an unmarried female of chaste life and conversation, from her parents’ house, for the purpose of prostitution. In another count of the indictment the defendants are charged with enticing and taking away the prosecutrix for the purpose •of concubinage. In other respects the latter count is like the first. Upon consideration of the evidence, in the light of the charge of the court, the jury returned a verdict of guilty against .all the defendants, fixing their respective terms in the penitentiary as follows: William • Henderson’s at eight years, Carroll Shutt’s at two, John Henderson’s at one, and Julia Shutt’s at one. A motion for a new trial having been made and overruled, the court pronounced sentence and judgment upon the ■ defendants, in conformity with the verdict. The question to be considered is, whether the finding of the jury, and the judgment and sentence of the court, are warranted by the law and the evidence.

The defendants William and John Henderson are brothers. Julia Shutt is their sister, and the wife of Carroll Shutt. The prosecutrix, Joanna Carman, is the daughter of Benjamin F; and Eliza Carman, and at the time of the alleged abduction was about fifteen years old. The Shutts and Carmans lived near each other in the city of Urbana, and had been on visiting terms some three years prior to this occurrence. ’ William Henderson, the principal in the affair, is a barber by trade, and a dissolute, drunken character, who spent most of his time .in the vicinity of Urbana, and was frequently at Shutt’s house, with whom his brother, John, was temporarily stopping at the time in question. About the first of July, 1887, William Henderson commenced making calls at Carman’s house and paying his attentions to the prosecutrix. It was not long before Mrs. Carman, her mother, became acquainted with his dissolute habits and bad reputation, and forbade his coming to her house any more. He nevertheless managed to meet with her daughter at Shutt’s and other places, and finally, by means of promises, threats, etc., induced her to consent to an elopement, for the purpose, as he put it, of getting married, and she, doubtless, so understood it. In settling the preliminaries, he told her that they could start from Mrs. Shutt’s, his sister’s, —“that she would not give them away.” They accordingly did start from there on the evening of the second of September, a little after dark. John Henderson, about dusk of that evening, went to Carman’s house, where he found Joanna out in the yard, and, without attracting the attention of any of the family, told her that William was ready to go, and was up on the corner of the street, waiting for her. After joining him on the street, the, two repaired to Shutt’s house, where all four of the defendants met together and talked over the matter of the elopement, which was accelerated by the approach of Joanna’s-sister, upon discovering which, John remarked, in the presence of them all: “Will, I tell you what is the matter: you want to hurry up and get out of here, because here comes Stell, and she is long-nosed, and will give it away.” It was understood by all present, that the two were to go to the Doyle House, in Champaign City, but a short distance from Shutt’s, for the purpose, as was stated to her, of waiting for the night train, but nothing seems to have been said about where they were to go beyond there, or their ultimate plans or purposes. On arriving at the hotel, about eight o’clock, instead of sitting up for the train, or ordering separate rooms, and making arrangements to be called for the train, Henderson engaged a single room, “for,” as he put it, “himself and wife,” and the two were at once conducted to it, where they lodged together as husband and wife. They remained at the hotel together, under that assumed relation, until next evening about five o’clock, when they returned afoot to Shutt’s house, John Henderson going back with them. They reached Shutt’s house some time before night. John had visited them at the Doyle House three times that day,—in the morning, at noon, and in the evening,—and told them that they would have to keep hid or they would be found. After their return to Shutt’s, on Saturday evening, Joanna’s father came to the front gate, and was engaged in a conversation with Carroll Shutt. Joanna was, at the time, in the back yard, though she recognized her father’s voice, and heard him make the remark, “That girl is in this town, and I am going to find her.” The parties, however, were . not speaking sufficiently loud to enable her to understand anything else that passed between them. While this conversation was going on, Mrs. Shutt, and John and William Henderson, were most of the time out in the hack yard with Joanna, all of whom knew of the conversation, and that the object of Car-man’s call there was to find his daughter. Occasionally John Henderson would go round in front and participate in the conversation for a short time, and then return and caution the parties to speak lower, or they would be discovered. After Carman had left, and about eleven o’clock at night, the party out of doors, being informed the coast was clear, went into the house, whereupon Mrs. Shutt brought some bedding into the back room adjoining the kitchen, and threw it down on the floor, telling William to fix his bed, and he and Joanna were left in that room by themselves, where they slept together until about two o’clock in the morning, when John Henderson, Mrs. Shutt, her daughter and mother, rushed into the room where William and Joanna were sleeping, and told them to jump up,— that her father and mother, with the police, were at the gate. Being thus warned, they hastily retreated through a door lead- ■ ing'to the rear of the building, whence, by means of an alley, they made their escape, John accompanying them to the fair grounds, but a short distance from the house. The latter, on parting with them, remarked, “I will bet, before to-morrow night I will be taken up for this.” The two fugitives, after parting with John, proceeded afoot to Tolono, thence to Sadoris, thence to Ivesdale, and thence towards Bement. On Sunday night they lodged in a cornfield within about a mile and a half of that place. Monday morning Henderson went into the town, and brought back with him a young man, who, by his direction, took Joanna to Bement, and left her at a hotel, where, in a short time afterwards, she was taken into custody by an officer. Henderson, who had gone to town by another route, was soon afterwards discovered and placed under arrest.

This statement presents the substance of the prosecutrix’ testimony, and we do not think its force or effect is materially impaired by the other evidence in the record.

The section of the statute above referred to, and on which the indictment is founded, is as follows: “Whoever entices or takes away any unmarried female of chaste life and conversation, from her parents’ house, or wherever she may be found, for the purpose of 'prostitution or concubinage, and whoever aids and assists in such abduction for such purpose, shall be imprisoned in the penitentiary not less than one nor more than ten years.” '

The elements which go to make up the offense created by this section of the statute are so plainly and concisely expressed, that it would be useless to attempt to make any change in the language used, with the hope of presenting them in a more concise or perspicuous form. Indeed, the section, in both these respects) may be regarded as a specimen of model legislation.

But two questions are made in the brief of counsel for p>lain-tiffs in error, and they will be considered in the order made.

» It is contended, first, that the evidence fails to show that the prosecutrix was enticed and taken away from her father’s house for the purpose either of prostitution- or concubinage, but, on the contrary, for the purpose of marriage, only,—in other words, the enticing and taking away is confessed, but the purpose or intent with which it is alleged to have been done is denied. While the proofs satisfactorily show that the prosecutrix left her father’s house with the intent and expectation of being married to the accused, and while it is equally clear that he professed to be taking her away for the purpose of marrying her, yet we agree with the jury and court below that that was not his real intention. On the contrary, we are of opinion that his expressed purpose to marry her was a mere subterfuge and -pretense, to enable him to get her completely within his power, that he might the more certainly and effectually overcome all scruples of modesty and virtue, and finally indpce her to surrender her person and honor as a willing sacrifice to his licentious passion and beastly lust. That marriage was not seriously intended on his part, we think is shown by the decided weight of testimony. As a general rule, the safest way of judging one’s intentions about a particular matter is to look to his acts rather than his professions respecting it, especially when they are found to be in conflict, as was the case here. The night train upon which Henderson pretended he wanted to leave, did not reach the depot in Champaign City until about one o’clock in the night. It was in the light of the moon, and not a very long walk over to the depot, which was but a few steps from the Doyle House. Had his intentions been honorable, he would most likely have remained with his intended wife at his brother-in-law’s until near train time, and then walked over to the depot,—at least this would have been the more natural and appropriate course to pursue. So far as the record shows, neither the place nor time of the marriage was pre-arranged, nor even so much as talked about, either before or after their departure. The evidence shows that Henderson personally knew that he could not get a license authorizing their marriage in this State, without some one committing perjury, and the conclusion is warranted, from the evidence, that he was destitute of means to defray their traveling expenses out of the State, or anywhere else. Although his bill at the Doyle House was only one dollar, he was not able to pay that, and was compelled to pledge his satchel and contents, consisting of a few old razors, as security for the amount, and they were still unredeemed at the • time of the trial. It is reasonable to suppose his impecunious condition was known to his brother and the Shutt family, and the fact that John went over to the Doyle House Saturday morning, and called upon the prosecutrix at her room, is a circumstance tending strongly to show that he did not expect them to leave on the night train. All day Saturday, when not in or about the Doyle House, the accused was out on the streets, drinking and spreeing' around, as usual. At five in the evening, as heretofore seen, he and the prosecutrix, accompanied by John, returned to Shutt’s in broad daylight, and deliberately took up their quarters there, both occupying the same bed at night, in utter defiance of law, decency and public morals. Is there anything in all this, tending to show that his object in taking her from the home of her parents was to make her his wife, rather than his kept mistress ? If there is, we confess we have not been able to discover it.

As before indicated, the gravamen of the offense is the pur- . pose or intent with which the enticing and abduction is done, and hence, the offense, if committed at all, is complete the moment the subject of the crime is removed beyond the power and control of her parents, or of others having lawful charge of her, whether any illicit intercourse ever takes place or not. Subsequent acts are only important as affording the most reliable means of forming a correct conclusion with respect to the original purpose and intention of the accused. It is with this view we have gone so minutely into the history and details of the case as we have.

The remaining point to be considered is, whether there is any material error in the charge of the court to the jury, for which the case should be reversed. The record shows that the court gave a general charge to the jury, on its own motion, and that no other instructions were asked or given. One of the objections taken to the charge is, that the court should have explained to the jury what is meant by the terms “prostitution” and “concubinage, ” as they occur in the statute. The court was not asked to give an explanation of these terms, and no reason is perceived why it should have done so in the absence of such request. At any rate, it would be going much further than we are prepared to go, to reverse the judgment on that ground. The words in question are in general use, and we have no doubt that they were used by the legislature in their general or popular signification. They are in no sense words of art, or technical terms, and if it were apprehended that they would not be correctly understood by the jury, counsel should have prepared an instruction defining the words, and submitted it to the court, to be ruled upon in the usual way. It is but a fair presumption that the jury understood the words in the sense in which they are used in the statute, and that they were used by the court, in its charge, in the same sense.

It is said that “nothing short of continuous and regular illicit intercourse would constitute concubinage,” within the meaning of the statute, and Slocum et al. v. The People, 90 Ill. 274, is cited in support of the statement. Conceding this to be so, it does not follow that the court erred in neglecting to give an instruction that was not asked for. With respect to the case •cited, it was clearly decided right. Yet we think there are certain expressions in the opinion which were not necessary to a •decision of the case,—that if applied to cases under the statute that might be suggested, would need modification. If by the above statement it is intended to assert that any great length of time or long continued illicit intercourse is necessary to the establishment of that relation which results in concubinage, the proposition, in our judgment, is unsound. The' relation which gives rise to the disreputable state of woman indicated by that term, may, like that of marriage, be contracted, or assumed in a day as easily as in a year. When a single-woman consents to unlawfully cohabit with a man generally,, as though the marriage relation existed between them, without, any limit as to the duration of such illicit intercourse, and actually commences cohabiting with him in pursuance of that, understanding, she becomes his concubine, or, as it is usually expressed in modern times, “his kept mistress, ” which amounts, to the same thing. So we hold in this case, that when the heartless libertine, by his seductive arts, or other means, induces his confiding or intimidated victim, as the ease may be, to abandon home and the wholesome restraints of parental authority, to accompany him whithersoever he may see proper to take her, without limit as to time or place, for the purpose-of submitting to his licentious embraces and ministering to-his unbridled lust, he clearly brings himself within the provisions of the section of the statute we are now considering, and subjects himself to the punishment therein denounced. In short, we do not think any of the objections pointed out to the charge of the court materially affected the result, or are, in any view, of so serious a character as to require a reversal of the judgment. Upon the whole, we think the charge was fully as fair to the accused' as it ought to have been. In'our opinion, a clear case is made out against William Henderson, and if it be possible to make out a case of aiding and assisting, in the commission of an offense, it must be admitted that it has been done in this, as to the other defendants. The evidence not only shows them guilty, but demonstrates that they knew at the time they were violating the law.

The judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Magruder

license: Public Domain

text:
    Valentine Schalucky v. Marshall Field.

      Filed at Ottawa May 9, 1888.

    1. Stockholders — liability for debts of the corporation—character cmd measure of such liability. A bank charter provided that “when default shall be made in the payment of any debt or liability contracted by said corporation, the stockholders shall be held individually responsible for an amount equal to the amount of stock held by them, respectively,” etc.: Held, that the stockholders, with respect to their individual liability, were, in effect, partners, and liable, as such, to the creditors of the corporation to an amount equal to that of their stock.
    2. Under such a charter, when a debt was created by the bank, the liability of those who were then stockholders attached, and from that moment they became primarily bound, in the same manner and with like effect as if they had been doing business as partners unincorporated, except that the liability of each was limited to an amount equal to the amount of stock held by him.
    3. Same-—action—by creditor against stockholder. An action at law by a single creditor will lie against any stockholder of an insolvent corporation, to enforce the individual liability created by its charter.
    4. Same—entries by bank officers in depositor's pass-book—binding on stockholders. The officers of a bank, in making written entries of deposits in the pass-books of depositors, act as the agents and representatives, not only of the corporate entity, but also of the stockholders, regarded as unincorporated partners; and such entries are as binding on them as upon the bank, in a suit by a depositor to enforce their individual liability.
    5. Limitation—entries in the bank book of a depositor. The stockholders of a bank" who are made individually liable for the debts of the bank, occupy the same relation to the creditors as the bank, so far as the Statute of Limitations is concerned. Hence a suit against a stockholder by a depositor, upon a debt evidenced by written entries in his bank book, is not barred until ten years after the cause of action shall have accrued.
    6. Pleading—carrying demurrer back. A demurrer to a replication will be carried back and sustained to the plea, if the latter be defective.
    Writ op Error to the Appellate Court for the First District ;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.

      Messrs. Blum & Blum, for the plaintiff in error :
    The only question arising upon the record is, whether the plea of the five years’ Statute of Limitations was applicable to the case, and this is the question to be decided. The declaration clearly shows that the action was on “evidences of indebtedness in writing,” and hence that no shorter period than ten years could be pleaded, such being- the period prescribed by section 16 of our Statute of Limitations. That section provides, that “actions on bonds, promissory notes, bills of exchange, written leases, written contracts, or other evidences of indebtedness in writing, shall be commenced within ten (10) years next after the cause of action accrued.” That a deposit book, like the one declared upon, is a written instrument, is settled by Jassoy v. Horn, 64 Ill. 379.
    It is sufficient, to authorize a reversal, to find that the plea setting up the five-year bar was not applicable.
    A suit against the bank could, have been brought within ten years, and an action is not barred against the stockholders until it is barred against the bank. Wood on Statute of Limitations, sec. 149; Conklin v. Furman, 8 Abb. Pr. (N. S.) 161.
    Is is unnecessary to enter into a discussion of the nature of defendant’s liability. That it is primary, is too well settled by this court. Fuller v. Ledden, 87 Ill. 310; Buchanan v. Meisser, 105 id. 638; Corning v. McCullough, 1 Comst. 47.
    We desire, in this connection, to refer the court to the case of Fleischer v. Rentchler, 17 Bradw. 402, a case on “all fours” with the one at bar, where the court held, in a similar action, that ten years constitute the period of limitation in such an action. Defendant, in one of his pleas, sets up the two years bar, upon the theory that we were suing for a penalty; but this theory is utterly repudiated. Flash v. Conn, 109 U. S. 309; Hodgson v. Cheever, 8 Mo. App. 318.
   Mr. Justice Magruder

delivered the opinion, of the Court:

This action was brought by the plaintiff in error, in the Superior Court of Cook county, against the defendant in error, as a stockholder in the German Savings Bank of Chicago, to recover the balance due upon certain amounts deposited by him in said Bank. The judgment was in favor of the defendant, and, on appeal to the Appellate Court of the First District, was affirmed. The case is brought before us by writ of error to the Appellate Court, two of the judges having granted the statutory certificate of importance.

The provision in the Bank’s charter, (being section 9 of the act of the legislature of Illinois incorporating the Bank to be found in Private Laws of 1869, volume 3, page 393) upon which the individual liability of the stockholders is founded, and upon which this suit was brought, is as follows: “When default shall be made in the payment of any debt or liability contracted by said corporation, the stockholders shall be held individually responsible for an amount equal to the - amount of stock held by them respectively,” etc:

This suit was begun on September 19,1883, and an amended declaration was filed on December 26, 1883. The declaration avers that defendant was, on January 1, 1874, the owner of fifty shares of the stock of said Bank, amounting to $5000, and that, since July 1,1877, the Bank has been utterly insolvent, and that demand has been made on it, etc. The declaration also avers, that plaintiff made a number of deposits of money in the Bank between August 8, 1874 and July 1877, and received a number of payments out of these deposits during that period, leaving a balance due him on July 1,1877, upon which a payment of $359.62 was subsequently made. It is further averred, that the deposits and interest thereon were entered by the Bank in a Bank or Pass book issued by it to the plaintiff, wherein the Bank, when such deposits were made and the interest became due, made entries in writing, as evidence of its indebtedness to the plaintiff. The amount sued for is the balance shown to be due by the written entries in the passbook.

The defendant pleaded three pleas to the amended declaration : First, nil clebet; second, that the cause of action did not accrue within two years next before the commencement of the suit; third, that the cause of action did not accrue within five years next before the commencement of the suit. The plaintiff joined issue on the first plea and demurred to the second. He filed a. replication to the third plea, setting up a payment to him, on June 30, 1883, of $359.62 by a receiver of the Bank, appointed in a chancery proceeding brought against the Bank at the suit of certain creditors. This sum was the amount of a dividend of seventy per cent upon plaintiff’s claim, declared in said proceeding and paid under the order of the Court. The defendant demurred to the replication.

The cause was heard upon plaintiff’s demurrer to the second plea and upon defendant’s demurrer to the replication to the third plea. The court sustained both demurrers, and rendered judgment in favor of the defendant for the costs.

Even though the replication to the third plea be defective, yet the demurrer must be carried back and sustained to the third plea, if the latter is defective. (P. and O.). Railroad Co. v. Neill, 16 Ill. 269.)

The only matter, then, which is presented for our consideration, is the validity of the third j)lea. The question to be determined is, whether or not the cause of action in this suit is barred by the five years’ limitation of the statute.

Section 15 of the Limitation Law provides that “actions on unwritten contracts, express or implied, * * * and all civil actions not otherwise provided for, shall be commenced within five years next after the cause of action accrued.” Section 16 provides, that “actions on bonds, promissory notes, bills of exchange, written leases, written contracts, or other evidences of indebtedness in writing, shall be commenced within ten years next after the cause of action accrued,” etc. The period of ten years named in the latter section was sixteen years under the law of 1849, which was in force before July 1,1872.

In Jassoy v. Horn, 64 Ill. 379, the action was assumpsit, .and the evidence of indebtedness, produced by the plaintiff, was a depositor’s bank book kept in the usual form; the bar ■of five years was pleaded, but it was held that the account •evidenced by the bank book was not barred until the lapse of sixteen years after the cause of action accrued. In that case we said: “The entries in the book were made by the bankers .■and they charged themselves with the money deposited. They ■constituted ‘evidence of indebtedness in writing,’ within the meaning of the statute.”

Therefore, as between plaintiff in error and the German Savings Bank, this action was not barred by reason of its not being brought within five years, but must be regarded as having been brought upon such an “evidence of indebtedness in writing” as would not be barred until after the lapse of ten years.

Does it make any difference that the action is against a stockholder and not against the Bank itself ?

This court has frequently held that an action at law by a single creditor will lie against any stockholder of an insolvent corporation to enforce an individual liability created by its charter. • (Culver v. Third National Bank, 64 Ill. 528; Corwith v. Culver, 69 id. 502; Tibballs v. Libby, 87 id. 142; Fidler v. Ledden, id. 310; McCarthy v. Lavasche, 89 id. 270; Arenz v. Weir, id. 25; Buchanan v. Meisser, 105 id. 638; Thompson v. Meisser, 108 id. 359.) In the last two cases, the section of the charter of the People’s Bank of Belleville, under which ■suits were brought by creditors against Meisser, as a stockholder, was exactly the same as section 9 of the German Savings Bank of Chicago, as above quoted.

The stockholders, with respect to their personal liability under such a provision as section 9, are, in effect, partners, and are liable, as such, to the creditors of the corporation to an amount equal to the amount of stock held by them respectively. The stockholders in the German Savings Bank assumed a primary liability to the creditors to pay the indebtedness of the Bank to the amount stated in section 9. When a debt was contracted by the Bank, the liability of those, who were then stockholders, attached, and, from that moment, they became bound in the same manner and with like effect as if they had been doing business as partners unincorporated, except that the liability of each stockholder was limited to an amount equal to the amount of stock held by him. Fuller v. Ledden, supra; Thompson v. Meisser, supra.

Inasmuch as the liability of the stockholders to the creditors is primary and must be regarded as that of partners unincorporated, it follows that -the stockholders occupy the same relation to the creditors as the Bank does, so far as the statute of limitations is concerned. The stockholder owes the same debt to the depositor which the Bank owes. He can be sued for that debt just as the Bank may be sued and as soon as the Bank may be sued. There is no reason why the remedy should be pursued within a shorter time in the one case than in the other. It is true that the entries in the pass-book are made by an officer of the bank and not by the stockholder. But such officer, in making the written entries, acts as the agent and representative not only of the corporate entity known as the Bank, but of the stockholders regarded as unincorporated partners. The written evidence of indebtedness is as binding upon the latter as upon the former. (Wood on Limitation of Actions, sec. 149; Conklin v. Furman, 8 Abb. Pr. Rep. (N. S.) 161.) The liability of the stockholder “ends at the same time that liability on the part of the corporation ends,” and not sooner.

We are, therefore, of the opinion that this action against defendant in error was not subject to the bar of the statute of limitations until after the lapse of ten years according to the terms of section 16, as above quoted.

In the consideration of this case, we have not been aided by any argument on behalf of the defendant in error.

The judgments of the Appellate and Superior Courts are reversed, and the cause is remanded to the Superior Court of Cook county for further proceedings in accordance with the views here expressed.

Judgment reversed.


author: Mr. Chief Justice Sheldon

text:
    The Cheltenham Stone and Gravel Company v. The Gates Iron Works.

      Filed at Ottawa May 9, 1888.

    1. Payment—effect of accepting the promissory note of a third person, or of the debtor himself. The fact that a creditor takes from his debtor the note of a third person, and enters the amount thereof as a credit upon his books, and includes the same in a subsequent statement of the account, does not afford a presumption of law that such note was received as an actual payment, and throw the burden of proof „upon the creditor to show the contrary by a preponderance of the evidence.
    2. The taking of a note, either of the debtor or of a third, person, for a pre-existing debt, is no payment, unless it be expressly agreed to take the note as payment and to run the risk of its being paid, or unless the creditor parts with the note, or is guilty of laches in not presenting it for payment in due time. And it seems that the giving of a receipt for the amount is not enough to establish such a positive agreement.
    3. Practice—improper remarles of counsel to jury. In a case where the question was raised whether a note on a corporation was given in payment on account, defendant’s counsel, against the plaintiff’s objection, was allowed to argue that a scheme had existed whereby one of the officers of the defendant had foisted the note upon the plaintiff, knowing the maker to be or about to become insolvent, so that the loss might fall upon the plaintiff, the latter asked an instruction that there was no evidence in such regard, and that the jury should disregard such remarks, which was refused: Held, that while the remarks may have been improper, and the court might well have interposed as requested, this court could not say that the refusal to do so was such error as to require a reversal.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. Frederic Ullmann, for the appellant:
    The crediting of the note on the plaintiff’s books, and the rendering of the account so credited, With the balance struck, is evidence of an accord and satisfaction. Frisbie v. Lairned, 21 Wend. 451.
    Mr. Hervey H. Anderson, for the appellee:
    The check or note of a third person, given in payment of a note, is no payment, unless the check or note is paid. People v. Howell, 4 Johns. 296; Tobey v. Barber, 5 id. 68.
    The rule universally recognized is, that the mere acceptance from a debtor, of his own note or the note of a third person, in case of an antecedent indebtedness, is not a payment of such indebtedness. In the absence of a special agreement, it is considered as a conditional payment, or as a collateral security. The debtor continues liable for his own debt” in the event of the failure of -payment of the note thus given or transferred. Thus, it is said in Tobey v. Bonier, 5 Johns. 68, that “the rule is well settled that taking a note, either of the debtor or of a third person, for a pre-existing debt, is no payment, unless it be expressly agreed to take the note as payment and run the risk of its being paid.” This rule is also supported by the following authorities: Hunter v. Moul, 98 Pa. St. 13; Johnson v. Weed, 9 Johns. 310; James v. Haddey, 16 id. 273; Peter v. Beverly, 10 Pet. 532; Akin v. Peters, 45 Ark. 313; Griffeth v. Grogan, 12 Cal. 317; Brown v. Olmsted, 50 id. 162; Jaffrey v. Cornish, 10 N. H. 505; League v. Waring, 85 Pa. St. 244; McIntyre v. Kennedy, 29 id. 448.
    To the same effect are the decisions of our courts: Wilhelm, v. Schmidt, 84 Ill. 183; Heartt v. Rhodes, 66 id. 351; Walsh v. Lennon, 98 id. 27; Stevens v. Park, 73 id. 387; Preston v. Jones, 3 Bradw. 632.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

This is an appeal from a judgment of the Appellate Court for the First District, affirming a. judgment of the Superior Court of Cook county.

The case made by the evidence was this: Between March 19 and October 15, 1885, appellee, the Gates Iron Works, sold to appellant, the Cheltenham Stone and Gravel Company, machinery and merchandise to the amount of $3940.97. Accounts were rendered monthly, and payments were made on account from time to time. During August, 1885, appellee received from appellant iron to the amount of $2600, and a note, dated August 10,1885, for $1000, due in ninety days from said date, signed by the Cheltenham Improvement Company, payable to appellee. Both these items, the-iron and the note, were credited appellant on appellee’s books, and the statement of account rendered appellant on September 1, showed a credit of the two amounts, and the statement of account thereafter rendered ■started off with the balance after deducting these amounts. When the transactions for the season were closed, appellee’s hooks showed an indebtedness against appellant of $145.97. This amount is conceded to be still due. Prior to the maturity ■of its note the Improvement Company had become insolvent, and the note was not paid. Appellee sued the Improvement •Company on the note, and obtained judgment, but was unable to collect it. Then it brought this suit against appellant on the account, ignoring the credit it had given for the amount of the note, and on the trial tendered appellant an assignment of its judgment against the Improvement Company. Appellee recovered a verdict and judgment for $1145.97, the full amount of its claim.

It is insisted that the presumption of law from these facts was that the note was'taken in absolute payment, and as there was no evidence offered tending to rebut that presumption, appellee was, on the ease made by it, only entitled to a verdict for $145.97, and that the court erred in not granting appellant’s motion, made when the appellee rested its case, to direct the jury to find a verdict for appellee for $145.97, and also in not giving the following instruction asked by appellant, but refused, viz:

“If the jury believe, from the evidence, that the note referred to was credited by the plaintiff to the defendant on the books of the plaintiff, and included as a credit in statements of account afterwards rendered by the plaintiff to defendant, then the presumption of law is that said note was received in payment, and the burden of proof is upon the plaintiff to show that such was not the intention of the parties at the time said note was given; and if the plaintiff has failed to show such intention that the same should not be received as payment, by a fair preponderance of testimony, the jury will find for the defendant on that issue.”

Story, in his work on Promissory Notes, sec. 104, lays down the rule in this respect as follows: “In general, by our law, unless otherwise specially agreed, the taking of a promissory note for a pre-existing debt, or a contemporaneous consideration, is treated, prima facie, as a conditional payment only,— that is, as payment, only, if it is duly paid at maturity. But in some of the American States a different rule is applied, and, unless it is otherwise agreed, the taking of a promissory note is deemed, prima facie, an absolute payment of the pre-existing debt or other consideration. But in each case the rule is founded upon a mere presumption of the supposed intention of the parties, and is open to explanation and rebutter, by establishing, by proper proofs, what the real intention of the parties was; and this may be established, not only by express words, but by reasonable implication from the attendant circumstances.” In Tobey v. Barber, 5 Johns. 68, a note of a third person was given for rent due, and a receipt given for the rent. The note was not paid, the maker having become insolvent before the note became due. The court say: “The taking of the note was no extinguishment of the debt due for the rent. It is a rule, well settled and repeatedly recognized in this court, that taking a note, either of the debtor or of a third person, for a pre-existing debt, is no payment, unless it be expressly agreed to take the note as payment, and to run the risk of its being paid, or unless the creditor parts with the note, or is guilty of laches in not presenting it for payment in due time.” And it was held that the inference arising from the receipt was not enough to establish such a positive agreement. Johnson v. Weed, 9 Johns. 310, is to the same effect,— a case where the note of a third person had been given in payment of a debt, and a receipt in full given. McIntyre v. Kennedy, 29 Pa. St. 448, Hunter v. Moni, 98 id. 13, Brown v. Olmsted, 50 Cal. 162, are authorities in support of the rule that taking the note of a third person for a pre-existing debt is no payment, unless it be expressly agreed to take the note as payment. The decisions in this State are essentially to the same effect. Walsh v. Lennon, 98 Ill. 27; Wilhelm v. Schmidt, 84 id. 185.

It is insisted, that although the acceptance of the note, merely, might not be payment, yet treating the note as payment, as was done here, by crediting it as payment on appellee’s books and in statements of account rendered, shows that the note was taken in payment. We do not consider this any stronger evidence in that regard than were the receipts in full which were given in the cases cited from Johnson. In regard to the receipt in Johnson v. Weed, the court remarked: “It might still have been understood, consistently with the words of it, (receipt,) that the note was received in full, under the usual condition of its being a good note.” And so in Brigham v. Lally, 130 Mass. 485, a case where such a note of a third person had been taken on an open account and the debtor credited therewith, it was held that the trial court properly refused to rule that placing the note to the credit of the defendant upon the plaintiff’s journal and ledger, and making no other appropriation of the money, was, in law, a payment. We think the ruling of the court here complained of is entirely well sustained by authority.

Counsel for appellee, in his address to the jury, was allowed by the court, against appellant’s objection, to argue that a scheme had existed whereby one of the defendant’s officers had foisted the note upon the plaintiff, knowing the maker to be or about to become insolvent, so that the loss might fall upon the plaintiff; and an instruction asked by the defendant that there was no evidence in such regard, and that the jury should disregard the remarks of counsel with reference thereto, was refused, and this action of the court is assigned for error. While these remarks of counsel may have been improper, and the court might well have interposed, as requested, we can not say that the refusal to do so was such error as should cause a reversal of the judgment.

The judgment of the. Appellate Court must be affirmed.

Judgment affirmed.


text:
    Charles A. Wilson et al. v. Marie Schneider et al.

      Filed at Ottawa May 9, 1888.

    1. Redemption by judgment creditor—to case the judgment debtor has died—the-statute construed. The object of section 27, chapter 77, of the Revised Statutes, was to give a judgment creditor whose judgment was obtained after the death of his debtor, by the allowance of his claim in the probate court, the same right of redemption as was given to the judgment creditor who had recovered his judgment in the lifetime of the debtor, and to prescribe for the former the same mode of effecting such redemption as had been prescribed for the latter.
    2. Same—execution—necessity therefor—and of the time within which it must be issued. In either case, whether the judgment shall have been recovered in the lifetime of the debtor or not, it is essential to the right of redemption that an execution shall have been issued, and whatever limitation as to the time within which the execution must be issued, applies as well to the special execution named in section 27 as to the ordinary fieri facias mentioned in section 20 of the same chapter.
    3. So where the owner of a claim allowed against an estate, desires to redeem land of the deceased debtor sold on execution or decree of foreclosure, he must take out a special execution within seven years from the time his claim is allowed. His right to redeem does not exist outside of the statute, and he must follow the proceeding pointed out in the statute, and in the mode therein prescribed.
    Writ of Error to the Circuit Court of Iroquois county; the Hon. Alfred Sample, Judge, presiding.
    This case arises under the petition of Joseph Euans for a writ of assistance to put him into the possession of a tract of land which he purchased at the master’s sale under a decree for the foreclosure of a mortgage given by John Arends, in his lifetime, and for which land he held the master’s deed, dated August 29, 1887. This petition was against Marie and Antoine Schneider. Comstock & Co: intervened by filing their petition, setting up that they had redeemed from the sale to Euans, and asking the court to deny the writ, claiming that it would hinder and vex them in their rights acquired under the redemption. Under the facts stated in the petitions, the circuit court granted the writ as prayed for by Euans, holding that the redemption was void, for the reason the special execution under which it was made was not issued within seven years after the date of the judgment allowing their claim against the estate of Arends.
    Messrs. Payson & Raymond, for the plaintiffs in error:
    Laws allowing redemption should be liberally construed, so that the debtor may pay as many of his debts as possible. Schuck v. Gerlach, 101 Ill. 338.
    Actions and proceedings in the county court to sell land to pay debts, will not be barred after a lapse of seven years, when the delay is explained. Wolf v. Ogden, 66 Ill. 224; Bursen v.
      Goodspeed, 60 id. 277; Rosenthal v. Renick, 44 id. 203; Moore v. Ellsworth, 61 id. 308; Bishop v. O’Conner, 69 id. 431; McCoy v. Morrow, 18 id. 519. But if the execution was erroneously issued, Buans can not object.
    An execution issued after the period fixed by statute is not void. It stands valid and good until reversed. Proceedings had under it are valid and binding, until, in a proper manner, they are set aside, and it is only voidable at the instance of the party against whom it is issued. Morgan v. Evans, 72 Ill. 586; Hernandez v. Drake, 81 id. 34; Freeman on Judgments, sees. 29, 30; Borer on Judicial Sales, sec. 656.
    The redemption money is in the hands of the sheriff; subject to the order of Buans, and he can suffer no loss by this redemption. The validity of the execution can not be questioned by him. Schuck v. Gerlach, 101 Ill. 242.
    By the very terms of the statute, Comstock & Co. had a right to redeem. “For the purpose of redemption * * * any person whose claim shall have been probated and allowed * * * shall be considered a judgment creditor.” Rev. Stat. chap. 77, sec. 27.
    Messrs. Kay & Euans, for the defendant in error Joseph Euans:
    Section 27, of chapter 77, of the Bevised Statutes, merely declares that the owner of the claim in probate shall be con- ; sidered a judgment creditor. It does not purport to place him upon any other footing than that of a judgment creditor. When and under what circumstances such judgment creditors can redeem, must be determined by a reference to sections 1 , and 6 of the statute, and the decisions under them, as they stood when section 27 was enacted. We cite in support of our position, Hay v. Hayes, 56 Ill. 342; Scammon v. Swartwout, 35 id. 326; Clingman v. Hopkie, 78 id. 152; Tenney v. Hemenioay, 53 id. 97; Hastings v. Bryant, 115 id. 69; Barth v. National Bank, id. 472; Littler v. People, 43 id. 194.

      A sale of land on an execution issued contrary to the requirements of the statute, is void, and no title passes. Coran v. Pittenger, 92 Ill. 241.
    The right of a judgment creditor to redeem is governed by the statute, and although a redemption may, in fact, be made in a case not authorized by the law, the party making the redemption will not get a title. The purchaser from whom the redemption is to he made is not bound to accept the redemption money unless the statutory requirements are observed. Meyer v. Mintonye, 106 Ill. 414.
   Mr. Justice Magruder

delivered the opinion of the Court :

John Arends, now deceased, executed a mortgage in his lifetime to Charles A. Wilson and Luppe I. Arends upon east half south-west quarter section 28, Town. 28 N. Range 10 B. of 3d P. M. in Iroquois county. After his decease a bill to foreclose was filed by the mortgagees in the Circuit Court of said county against his heirs and the administrator of his estate, and certain parties in possession, named Marie Schneider and Antoine Schneider, and others. It does not appear that any of the creditors, whose claims were allowed against the estate, were made defendants to the hill.

Decree of sale was entered in the foreclosure suit on February 24, 1886, and, in pursuance thereof, the premises were sold, on May 10, 1886, to Joseph Buans. The usual certificate of purchase was issued to Buans and the master’s report of sale was confirmed. The fifteen months for redemption expired on August 10, 1887, and the master’s deed was executed and delivered to the purchaser on August' 29, 1887.

The estate of Arends proved to be insolvent. On January 19, 1880, Comstock & Co. procured the allowance of a claim against the estate in the Probate Court of Iroquois county.' On August 9,1887,—seven years, six months and twenty days after the allowance of the claim—Comstock & Co. caused a special execution to be issued by the clerk of the Probate Court to the sheriff of the county for the purpose of redeeming from the foreclosure sale. The execution came into the sheriff’s hands on the same day, and Comstock & Co. at once paid him the amount necessary to redeem. The certificate of redemption was executed and recorded on said 9th day of August, 1887, and after being duly advertised the premises were sold on September 9, 1887, to Comstock & Co., who then paid to the sheriff the redemption money and interest, and received from him the usual sheriff’s deed.

As we understand the facts, notice was given of the attempted redemption by Comstock & Co. to the master and to the purchaser at the foreclosure sale before the execution to such purchaser of the master’s deed above mentioned.

The controversy is between the creditors, Comstock & Co., and the purchaser, Euans. The question involved is as to the right of a creditor, whose claim has been allowed against the estate of a deceased debtor, to redeem from the sale of the debtor’s land after the expiration of seven years from the allowance of the claim. The Circuit Court decided against such ■right.

Section 27 of chapter 77 of the Revised Statutes, entitled “Judgments, Decrees and Executions,” provides that “for the purpose of redemption from the sale of real estate of a deceased debtor, any person, whose claim shall have been probated and allowed against the estate of such deceased debtor, shall be considered a judgment creditor, and, for the purpose of enabling such creditor to redeem from such sale, it shall be lawful for the clerk of the court, wherein letters testamentary or of administration were granted, to issue special execution to the sheriff of the proper county, commanding him, upon redemption being made, to levy upon and sell the premises so sought to be redeemed, and like proceedings shall be had as upon other executions.”

This section 27 is a part of the act of March 22, 1872, entitled as aforesaid. It went into effect at the same time with the rest of the act. In order to ascertain its meaning, it must he construed in connection with the other sections, which precede and follow it. The person, whose claim has been allowed against the estate, is to be considered a “judgment creditor” in the sense, in which the term; “judgment creditor,” had already been used in the preceding sections. As a creditor, who had obtained his judgment in the lifetime of the debtor, had been required to have execution issued and a levy and. sale made, so a creditor, obtaining judgment against the estate of the deceased debtor, was also required to proceed in the same way. The object of section 27 was to give the judgment creditor of the deceased debtor the same right of redemption, which had just been given to the judgment creditor of the living debtor, and to prescribe for the former the same mode of effecting such redemption as had been prescribed for the latter.

In both cases, the issuance of an execution is an essential requirement in the proceeding for redemption. Whatever limitation the act may contain as to the time, within which an execution must be issued, applies as well to the special execution named in section 27 as to the ordinary fi. fa. mentioned in section 20. Turning to section 6, we find this language : “No execution shall issue upon any judgment after the expiration of seven years from the time the same becomes a lien, except upon the revival of the same by scire facias,” etc. The words, “any judgment,” are broad enough to include the probated claim, which is to be considered a judgment by the terms of section 27, and the special execution, provided for in that section, is certainly comprehended within the meaning of the words, “no execution.” We are, therefore, of the opinion, that the restriction laid down in section 6 was intended to apply to the claims and special executions referred to in section 27.

In the present case, the judgment was rendered on January 19, 1880, and the special execution was issued more than seven years thereafter. That execution must be regarded as having been void and of no effect, if the judgment of Comstock & Co. can be regarded as having become a lien at the date of its rendition. By the terms of section 6 the period of seven years begins with the time when the judgment “becomes a lien.”

Section 1 of the act provides “that a judgment of a court of record shall be a lien on the real estate of the person, against whom it is obtained, * * * from the time the same is rendered or revived for the period of seven years and no longer.” It is true, that the judgment in favor of the claimant against an estate is, not that he recover his damages and costs and have execution therefor, but that the amount due him be paid in due course of administration" by the administrator, etc.

But the creditors, who prove up their claims against an estate, have a right to have the land of the deceased debtor subjected to the payment of such claims in case of a deficiency of personal assets. Where the administrator files his petition to sell the land within a proper time, the purchaser at the administrator’s sale will hold the property as against the grantee of the heir. This right of the creditors of an estate to have the realty sold to pay their debts is in the nature of a lien upon the land. In Vansyclde v. Richardson, 13 Ill. 171, we said: “The statute, in effect, reserves a lien on the lands of an intestate, to secure the payment of any excess of indebtedness beyond the proceeds of the personal estate. This lien is to be enforced by the administrator for the benefit of the creditors generally.” (McCoy v. Morrow, 18 Ill. 519; Bursen v. Goodspeed, 60 id. 277; Myer v. McDoügal, 47 id. 278; Wheeler v. Daioson, 63 id. 54; Reed v. Colby, 89 id. 104; Furlong v. Riley, 103 id. 628.) In Bishop v. O’Conner, 69 Ill. 431, it is said: “It is not accurate to say that the lands are charged, but rather that they are liable to be charged,” etc.

While the liability of the lands to be charged with the debts of the decedent may not amount to a lien within the technical meaning of that word, yet the creditor may so enforce this liability, through the administrator, as against purchasers and encumbrancers holding under the heir, that he derives from it all the advantages of a lien.

This being so, there is no reason why a creditor, having a judgment against the estate of a deceased debtor, should have a longer time for the enforcement of his rights against the debtor’s land through the medium of an execution, than is awarded to a creditor obtaining his judgment in the lifetime of the debtor. Why should the former be assimilated to the latter as to the mode, in which he may redeem, and not as to the time within which he must redeem? If the lien of the latter’s judgment is for only seven years so that he can not issue an execution after that time for the purpose of redemption, why should not the former’s right to reach the debtor’s land, not through administration, but through an execution issued for the purpose of redemption, be also limited to seven years ? There would be no justice in making any distinction between the two classes of creditors so far as the exercise of the right to redeem is concerned.

We have held that, by analogy to the duration of a judgment lien-, the administrator must file his petition to sell within seven years from the death of the owner, unless such facts are shown as furnish a satisfactory explanation of the delay. (Reed v. Colby, supra; McCoy v. Morrow, supra.) Even if this rule were applied in the present case, no good reasons are given why the petition to sell the mortgaged premises may not have been filed within the seven years.

The record does not show when Arends died, nor when letters of administration were taken out upon his estate. The proof only furnishes the date of the allowance of the claim of Comstock & Co. But although the petition to sell may be filed after seven years have passed since the death of the intestate if the delay is satisfactorily explained, yet we are of the opinion that, when the owner of the probated claim desires to redeem, he must take out execution within seven years from the time his claim is allowed, independently of what reasons may or may not exist for the delay. His right th redeem is derived solely from the statute. It does not exist-outside of the statute. He must, therefore, follow the proceeding pointed out in the statute and in the mode there prescribed.. Other judgment creditors have a lien for only seven years, from the time judgment is rendered and can not issue execution for redemption purposes after the lapse of that period. In like manner the creditor, proving his claim against the estate of the deceased debtor, can only have a charge upon or liability against the laúd, so far as the remedy by redemption is concerned, for seven years from the time his claim is allowed, and can not issue the special execution provided for. in section 27 after that time. This was the view of the court below and. we think' its decision was correct.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
      The Peopleex rel. George R. Davis, Collector, v. The City of Chicago.

      Filed at Ottawa May 9, 1888.

    1. Taxation—exemption—strict construction. All property, oí every description, in the State, except such as has been specifically exempted, is required to bear its just proportion oí the burden of taxation. All laws claimed as exempting property from taxation will be subject to a strict construction by the courts, and nothing will be held to come within the exemption which does not clearly appear to be so.
    2. Same—lands belonging to a city—whether subject to taxation. Lands owned by an incorporated city, not applicable to use for municipal purposes, although taken in part payment of corporate funds which an officer of the city had embezzled or appropriated to his own use, and which funds had been raised by taxation, are subject to taxation, the same as lands of private persons.
    3. The fact that the funds of the city which had been embezzled, and which are represented by the lands, are not taxable, can make no difference, as those funds were to be used in defraying the expenses of the city, and were not intended to be held for a number of years and placed at interest. Had the funds been so intended to be held and used, no reason is perceived why they would not themselves have been subject to taxation.
    Appeal from the County Court of Cook county; the Hon. Richabd Pbendebgast, Judge, presiding.
    This was an application by the tax collector of Cook county, for judgment against certain lots and lands for the taxes and special assessments due thereon. To this application the city of Chicago appeared, and filed objections as to the lands involved in this controversy. The court below sustained the objections, and refused to render judgment as asked, and the collector brings the case here by appeal.
    Messrs. Whitehead & Pickard, and Mr. Thomas H. Hood, for the appellant.
    Mr. John W. Green, and Mr. Theodore Brentano, for the appellee.
   Mr. Justice Craig

delivered the opinion of the Court:

The question presented by this record is, whether the lands owned by the city of Chicago, situated in the towns of Cicero and Riverside, and commonly known as the “Gage Farm,” are exempt from taxation.

The facts in regard to the manner the city acquired and. holds the lands, are agreed upon as follows: • “That in the year 1871, David A. Gage was city treasurer of the city of Chicago; that a defalcation having been made by him, to the amount of $507,703.56 of city funds, such as school, water, etc., (the amount of school fund taken or embezzled being $47,947.38,) in part adjustment of such defalcation the said lands were conveyed by him to one George Taylor, to have and hold the same in trust for the city of Chicago; that afterwards, the said George Taylor, in the discharge of his duty as said trustee, conveyed the said lands to the city of Chicago, to replace, pro tanto, the money of the city for which the defaulting city treas- ; urer has failed to account; that the title to said lands was received hy the city to liquidate, in part, the said indebtedness" from said Gage to the said city; that the city money which this property represents, amounts, in large part, of school funds, and the rental obtained hy the city from the property is divided up and credited to the several funds which said property represents; that when the property is sold, as it must be; eventually, under the provision of the trust, the proceeds of the sales must be divided among the several funds of the city which were depleted by the defalcations of the said Gage, and that the defalcation largely exceeds the value of all the property held by the city to meet the same; that the said lands lie wholly in the corporate limits of the towns of Riverside and Cicero, and outside the corporate limits of the city of Chicago; that part, only, of said lands are leased by the city of Chicago to certain parties, for a stipulated yearly rental of $300, and that such portions of said lands as are so leased are used by the tenants for farm .purposes, and that such portions as are not leased are vacant and unoccupied lands; that' the revenue derived from the lands is used and applied as above stated, and that the lands rented by the city are described as follows: (describing lands.) It is understood and agreed, however, that the funds above referred to were derived either by special assessment or taxation, including the school funds above mentioned ; that said school funds are no part of the funds derived from the State for school purposes.”

Section 3, of article 9, of our constitution, declares: “The property of the State, counties, and other municipal corporations, both real and personal, and such other property as may be used exclusively for agricultural and horticultural societies, for school, religious, cemetery and charitable purposes, may be exempted from taxation, but such exemption shall be only by general law.” Under this provision of the constitution the legislature incorporated' in the ¡Revenue law a section, under which certain property is exempt from taxation. See par. 2, sec. 2, Starr & Curtis, 2027.

Paragraph 1 of the statute cited above, declares “that the property named in this section shall be assessed and taxed, except so much thereof as may be in this act exempted.” Then follows the property, and first, “all real and personal property in this State.” Under the plain language here employed, the lands involved in this suit are liable to taxation unless exempted by some provision which follows. We will, then, examine those provisions which have relation to property belonging to cities and .incorporated towns, in order to determine whether the lands involved fall within them. Under clause 6 of the article, all property belonging to a town, village or city, used exclusively for the maintenance of the poor, and all public buildings belonging to a city or incorporated town, with the ground on which such buildings are erected, not exceeding ten acres, is exempt. Under clause 8, all fire-engines, with the building used for the safe keeping thereof, and the lot on which the building is located, when belonging to any city, town or village, are exempt. Under clause 9, all market-houses, public squares, or other public grounds used exclusively for public purposes, all works, machinery and fixtures belonging exclusively to any town, village or city, and used exclusively for conveying water to such town, village or city, are exempt. We find no other provision of the statute exempting from taxation any other property held or owned by a city or incorporated town, and if there is any other provision, it has escaped our attention.

No argument is needed to show that lands like the Gage farm, held or owned by a city or incorporated town, do not fall within any one of the provisions of the statute above, exempting property from taxation. Indeed, we do not understand ,that counsel for the city claim that the property falls .-within any one clause of the statute which we have cited, hut, to use their own language, “the position of the city of Chicago in the case at bar is, that the property is public land, held by the city exclusively for public purposes. The land represents and takes the place of so much public money. It is held by the city, not in its ‘social or commercial capacity’ as a private corporation, and for its own benefit, but it is held by the municipality in its governmental capacity, as one of the agencies of State government.” It is true, the city obtained this property from Gage in payment of money he had appropriated to his own use, which had been raised by taxation; but that fact does not exempt the property from taxation. All property, of every description, in the State, except such as has been specifically exempted, is required to bear its just proportion of the burden of taxation, and, as held in Matter of Charles P. Sivigert, Auditor, 119 Ill. 83, all laws exempting property from taxation will be subject to a strict construction by the courts, when called upon to enforce them, and hence nothing will be held to come within the exemption which does not clearly appear to be so, and all reasonable intendments will be indulged in favor of the State. The difficulty with the position of appellee is, that the legislature has nowhere provided that a city or incorporated town may acquire a large tract of land, and hold it for years free from taxation. There is a necessity for exempting from taxation the public buildings of a city, and the grounds upon which they stand, not exceeding ten acres; but why a large tract of land located remote from the city should be held by a city free from the burdens of taxation for years, it may be difficult to understand.

City of Chicago v. The People, 80 Ill. 384, has been cited as ' authority, but the case has no bearing here. In that case it was held, where moneys belonging to the school fund, derived from the sale of the 16th section, are loaned on mortgage security, and the title to real estate is thus acquired on foreclosure of such mortgage, and held, in the name of the city, for school purposes, such lands are not subject to taxation. The decision is predicated on the ground that real estate thus acquired in fact belongs to the State, in trust for school purposes, which is expressly exempted from taxation by section 2, supra. Under the stipulation of facts shown by the record, the school funds which went into the lands here involved were not derived from the sale of section 16, but arose from general taxation. The fact, therefore, that a portion of the money which paid for the lands was school funds, has no bearing on the case.

It is also suggested that the funds embezzled by the city treasurer were not, and would not be, subject to taxation had they remained in the treasury, and as these lands represent the embezzled funds, they are also exempt. But the funds which were in the treasurer’s hands were not placed there to remain as a permanent fund. These funds were raised to be paid out to defray the expenses of the city, and of course it was not a fund liable to taxation; but if a city had the power to accumulate a large fund, and hold it, from year to year, in its treasury, or keep it at interest, no reason is perceived why •such fund might not be taxed. These lands have been held for a number of years. It is not claimed that they are now, ■or ever will be, needed for any municipal use of the city. On the other hand, they are held for profit,—for the annual increase in price,—and we perceive no reason why the city should not pay taxes where lands are so held, in like manner as an individual who purchases and holds lands as an investment.

The judgment will be reversed, and the cause remanded for further proceedings consistent with this opinion.

Judgment reversed.


author: Mr. Justice Mulkey

text:
    The People ex rel. George Hunt, Attorney General, v. Thomas W. McFall et al.

      Filed at Springfield May 9, 1888.

    1. Quo warbanto—leave to file—in term time, and in vacation On application to the circuit court, in term time, for leave to file an information in the nature of a quo wan-ranto, the court may grant leave either on an ex parte showing, or it may order a rule nisi to be entered against the respondents, requiring them to appear on a day fixed and show cause why leave shall not be granted, and have a forrpal and full hearing.
    2. This rule can not be applied, however, when the application is made to a judge in vacation, as a judge can exercise no judicial functions in vacation, unless expressly authorized to do so.

      3. Appeal—reviewing facts. Where a full hearing is had on an application to the circuit court for leave to file an information in the nature of a quo warranto, by the presentation of affidavits and counter-affidavits as-to the facts relied on, and leave is refused, and the judgment is affirmed by the Appellate Court, this court can not consider an assignment of error questioning the finding of the facts by that court.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Adams-county; the Hon. William Mabsh, Judge, presiding:
    Mr. George Hunt, Attorney General, and Mr. J. N. Sprigg, for the appellants:
    Leave to file an information in the nature of a quo wcwranto should be granted to the Attorney General as of public right, upon the complaint of the latter, and on an ex parte showing. Rev. Stat. chap. 112, sec. 1; People v. Golden Rule, 114 Ill. 42; People v. Railway Co. 88 id. 544; High on Ex. Legal Rem. (2d ed.) secs. 697, 699, 707.
    Upon a charge of usurpation in quo warranto proceedings, the burden is on the defendant to show that no usurpation has been committed. High on Ex. Legal Rem. secs. 629, 696b, 747.
    Separate schools, maintained at public expense, for pupils of African descent, the exclusion of such pupils from the pub-lie schools where they, reside, or the discrimination in such schools against pupils of African descent, are each unlawful. Const. 1870, art. 8, sec. 1; Chase v. Stephenson, 71 Ill. 383; Rev. Stat. 1874, chap. 122, secs. 105-107; Laws of 1885, p. 64, secs. 1, 2; People ex rel. v. Board of Education, 101 Ill. 308; Board of Education v. Tinnon, 26 Kan. 1; 40 Am. Rep. 203; Clark v. Board of Education, 24 Iowa, 266; Smith v. School Directors, 40 id. 518; Dore v. School District, 41 id. 689; Kane v. Commonwealth, 101 Pa. St. 490; People v. Board of Education 18 Mich. 400; 46 N. J. L. 70; 7 Key. 342; School District v. Aldrich, 13 N. H. 139.
    Public school officers have no power to exclude pupils, of whatever color, solely for the reason that there is no room in the school house for them. It is the duty of such officers to provide equal accommodations for all children eligible to attend the public schools. Const. 1870, art. 8, sec. 1; Rev. Stat. chap. 122, sec. 119, et seq.; Compulsory Education Law; Chase v. Stephenson, 71 Ill. 385.
    Mr. L. E. Emmons, and Messrs. Carter & Govert, for the appellees:
    Leave to file an information in the nature of a quo wairanio is in the sound discretion of the court to which the application is made; and it is proper practice to lay a rule nisi on the defendants to show cause why the leave to file the information, should not be granted. People v. Moore, 73 Ill. 132; People v. Waite, 70 id. 25; People v. Callaghan, 83 id. 128; People v. Railway Co. 88 id. 543; Cone v. Anison, 15 Serg. & R. 133; People v. Sweeting, 2 Johns. 183; State v. Tehoe, 7 Rich. 246; State v. Tolan, 33 N. J. L. 195; State v. Bridge Co. 18 Ala. 678; State v. Frisbee, 28 Vt. 714.
    The objection of the prosecution being to forfeit the officers of their rights, and the seizure of the franchise into the hands of the State, the “Board of Education of the City of Quincy,” being a corporation by that name, should have been made a party. 5 Ark. 595; 41 Am. Dec. 109; Cheshire v. Kelley, 30 Am. Dec. 50.
    Leave will not be granted to file an information where it appears to the court that the public officer making the application has been imposed upon by persons who are attempting to make use of the proceeding to attain private ends, or to annoy and harrass public officers in the discharge of their duties. People v. Railway Co. 88 Ill. 546.
    Courts do not favor this means of redressing the abuse of corporate powers, and will refuse to countenance it where there is other ample remedy, (10 Ohio, 535,) or where the abuse is doubtful. People v. Hillsdale, 2 Johns. 190.
   Mr. Justice Mulkey

delivered the opinion of the Court:

On the 25th day of September, 1886, the Attorney General filed in the circuit court of Adams county, the same being then in session, a petition for leave to file an information in the nature of a quo warranto, against Thomas McFall and others, “requiring them to show by what authority they claim to have, use and exercise certain powers and privileges as members and officers of the board of education of the city of Quincy, in said county,” as set forth in the petition therewith presented. The information proposed to be filed, after setting out the incorporation of the board of education, its powers, duties, etc., proceeds to charge the members thereof with official misconduct and abuse of their franchises, by illegally and unjustly discriminating, in various ways, against the negro children and pupils within then- jurisdiction, on account of then: race and color. The affidavits of a number of colored persons were presented, tending to support those charges, but in many respects they were vague and unsatisfactory. Upon the showing made, the court, as it would seem, was disinclined, without further inquiry, to either allow or disallow the information to be filed, and therefore ordered a rule nisi to be entered against the respondents, requiring them to appear on a certain day of the then term of the court and show cause why the information should not be filed. A formal and full hearing was had under the rule, in open court, on the 14th day of October following, resulting in the entry of an order denying leave to file the information. On appeal from this order, the Appellate Court, in an exhaustive review of the various charges, and the evidence bearing upon them, affirmed the order.

On the present appeal the case is brought within very narrow limits. It is assigned for error that the Appellate Court erred in affirming, and in not reversing, the judgment of the circuit court. So far as this assignment of error questions the findings of the Appellate Court upon the facts, we can not review it. The only ruling of the circuit court complained of, and which is open to review here, is its refusal to allow the information to be filed on the ex parte showing of the Attorney General, its entering a rule nisi against respondents, and permitting them to file counter-affidavits. This very question was passed upon in The People ex rel. v. Moore et al. 73 Ill. 132, and decided adversely to the claim now made by appellant. In that case the trial court, against the objections of the State’s attorney, placed the respondents under a rule to show cause, as was done here, and this court sustained its action. The counterpart of this ruling is found in The People ex rel. v. Golden Rule et al. 114 Ill. 34, where it is held that the court may grant such leave without a rule nisi. Taking the two eases together, it follows that the court may or may not dispense with 'the rule nisi, as in its opinion the exigencies of the case demand. Of course, this rule could not be applied to a case of this kind, where the application is made, as it may be, to a judge in vacation, for a judge can exercise no judicial functions in vacation, unless expressly authorized to do so.

Upon the whole record, we think it clear there are no merits in the case, and that the judgment of the Appellate Court should therefore be affirmed.

Judgment affirmed.


text:
    The City of Chicago v. Ebenezer Hill et al.

      Filed at Ottawa May 9, 1888.

    1. Dedication—intention, as an essential element—evidence to establish it. Long continued use of a strip of land for a street will not alone establish a dedication of it to the public. It is of the essence of a dedication that there should be the intention to make it, and the evidence should be clear, either of such actual intention, or of such acts and declarations as will equitably estop the owner from denying such intention.
    . 2. The fencing out of a strip of land by the owner affords strong evidence of its being left out for a street, and, without countervailing evidence, might be accepted as satisfactory proof of its dedication.
    3. Same—acts of municipal authorities as concluding them from claiming there was a dedication. The passage of an ordinance by a city for the condemnation of a strip of land for a street, and the filing of a petition to condemn the same, and its applying for and obtaining license of the owner to lay a sewer in such strip, will conclude the city from asserting that such strip had been dedicated by the owners.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. Clarence A. Knight, and Mr. George Berny, for the appellant:
    If the owner of the soil throws open the passage, and neither marks, by any visible distinction, that he means to preserve all his rights over it, nor excludes persons from passing through it, by positive prohibition, he shall be presumed to have dedicated it to the public. Rex v. Lloyd, 1 Campb. 262; Cincinnati v. White, 6 Pet. 440; Marcy v. Taylor, 19 Ill. 636; Wragg v. Penn Township, 94 id. 24.
    If land is used by the public as a street, with the knowledge and acquiescence of the owner, a dedication will be presumed. Cincinnati v. White, 6 Pet. 439; Warren v. Jacksonville, 15 Ill. 240; Dimon, v. People, 17 id. 422; Alvord v. Ashley, id. 369;
      Rees v. Chicago, 38 id. 338; Chicago v. Wright, 69 id. 328; Follansbee v. Chicago, 62 id. 288; Regina v. Petrie, 4 E. & B. 737; Jarvis v. Dean, 3 Bing. 447.
    When the intention to dedicate is' established, the length of the public use is not important. Marcy v. Taylor, 19 Ill. 636; Rees v. Chicago, 38 id. 337.
    It is not important whether the owners, at the time of the dedication, were non-residents, and had personal knowledge of what was done by their agents. Barclay v. Howell, 6 Pet. 512; Dimon v. People, 17 Ill. 416.
    The extent of the dedication can not be limited by evidence that the ground was not fit for immediate use as a street. Barclay v. Howell, 6 Pet. 498; Rowan v. Portland, 8 B. Mon. 250; Lake View v. Le Bahn, 120 Ill. 92.
    Great importance is attached to the fact that investments and improvements have been made, in reference to the dedication. Godfrey v. City of Alton, 12 Ill. 36; Rees v. Chicago, 38 id. 337; Chicago v. Wright, 69 id. 328.
    As between the owner and the city, in a case like this, dedication is complete, without acceptance other than public use. People v. Commissioners, 52 Ill. 501; Marcy v. Taylor, 19 id. 637; Lake View v. Le Bahn, 120 id. 92.
    A dedication once completed can not be revoked by the former owner, and binds his privies in estate. Warren v. Jacksonville, 15 Ill. 240; Rees v. Chicago, 38 id. 339.
    The city can not surrender or divest itself of the trust created by the dedication, except in the way provided by law. Lee v. Town of Mound Station, 118 Ill. 316; Chicago v. Wright, 69 id. 328.
    Messrs. Montgomery & Smith, for the appellees:
    The city has no claim by prescription. Grube v. Nichols, 36 Ill. 92; Manrose v. Parker, 90 id. 582; Gentleman v. Soule, 32 id. 271; Quincy v. Jones, 76 id. 231; Kyle v. Town of Logan, 87 id. 64.

      The alleged acts relied upon by appellant to establish a dedication, are insufficient. Grube v. Nichols, 36 Ill. 92; Herhold v. Chicago, 108 id. 467; Fish v. Town of Havana, 88 id. 208; Kelly v. Chicago, 48 id. 388; McIntyre v. Storey, 80 id. 127; Marcy v. Taylor, 19 id. 634.
    Intent to accept must be clearly shown. Grube v. Nichols, 36 Ill. 96; Insurance Co. v. Littlefield, 67 id. 368.
    Want of acceptance was shown by proceedings to condemn, and appellant is estopped to claim a dedication. Chicago v. Johnson, 98 Ill. 618; Town of Princeton v. Templeton, 71 id. 71.
    A dedication can only be made by the owner of the fee. Gentleman v. Soule, 32 Ill. 271; Kyle v. Town of Logan, 87 id. 64.
   Mr. Chief Justice Sheldon

delivered the opinion of the ' Court:

This was a suit in ejectment, brought by the appellees, against the city of Chicago, to recover possession of the west thirty-three feet of lot 3, in the assessor’s division of the northeast quarter of the north-east quarter of the south-west quarter of section 34, town 39 north, range 14, east of the third principal meridian.

May, 1848, George Dellicker bought this ten acre tract. May, 1849, he died, leaving seven brothers as heirs. Three of these sold their interests to their brothers William and Frederick, so that in February, 1855, William and Frederick owned five-sevenths, Samuel one-seventh, and Leonard N. one-seventh; that same year,—October, 1855,—Leonard N. died, leaving three children,—William F., Ellen W. and Julia W., who were all minors. In 1859, Frederick Dellicker brought suit for partition against his brothers William and Samuel, and Samuel C. Wildman, as guardian of the minor children of Leonard N. In May, I860, partition was decreed, and in December the master made deeds in pursuance of the decree. In 1864 the assessor, following the partition made by the commissioners, made the following subdivision:

Douglas place appears to he the same as Thirty-fifth street, hereinafter spoken of.

The title of appellee Ella W. Wildman is derived, two-thirds by inheritance from her father, Leonard N. Dellicker, and one-sixth from her brother William F. Dellicker, who died intestate May 6,1863, under twenty-one years of age. Appellees Ebenezer Hill, Jr., Julia D. Hill and Ella L. Hill, all infants, take from their mother, Julia W. Hill, who died intestate April 22, 1884, leaving them, and her husband, Ebenezer Hill, Sr., surviving. Mrs. Hill, like Mrs. Wildman, derived title, two-thirds. from her father, Leonard N. Dellicker, and one-sixth from her. brother William F. Dellieker. Ella W. Wildman became of age in 1865, and Julia W. Hill in 1870.

The suit was commenced in 1886, and tried in 1887. A trial before the court, without a jury, resulted in a finding and judgment in favor of the plaintiffs, and the defendant, the city of Chicago, took this appeal.

The proof of title in the plaintiffs, aside from a dedication, is not disputed, but it is insisted the land in controversy has been dedicated for the purpose of a street, known as Forest avenue, and this is the only question presented.

The strip of land claimed is thirty-three feet wide and four hundred and sixty-two feet long. Its north end is the centre line of Douglas place, which is sixty-six feet wide, then for four hundred and twenty-nine feet on the west it forms the east half of Forest avenue, which also is sixty-six feet wide. The west line of lot 3 is identical with the centre line of Forest avenue. The fence on Forest avenue is, at the north end, one-tenth of a foot west, and at the south end one foot west, of the east line of the thirty-three foot strip, measuring to the outside of the fence, but measuring to the inside of the posts, it is just about on the line. The fence on Thirty-fifth street is a little south of the south line of the street, as shown on the plat. As to who built these fences, or when, and under what circumstances they were built, the record is silent, further than may be inferred from the following testimony:

The witness Richards testified that he lived on the corner of Thirty-fifth street and Kankakee avenue, from September, 1861, to 1881; that he was gardening, and the lot he occupied was bounded on the east by Kankakee avenue, north by Douglas place, west by Forest avenue, and extended south about five or six hundred feet. Thirty-sixth street was not open. He rented from the agents for the ground; that Forest avenue was not graded; there was a roadway there,—a track where teams drove through; that the fences were in the same place they now are,—the same posts; that the agent of the property . told him that if he wanted more ground he might move the fences out thirty-three feet west and north. From the general appearance of the fence at the time he went there, he should think it had been there at least five or six years.

The witness Doane testified that he had been acquainted with the vicinity of Forest avenue and Thirty-fifth street since 1865; that he lived on the south-west corner about ten or eleven years,—had six hundred feet front on Forest avenue; that at that time (1865) there was a fence on the opposite— the east—side of Forest avenue, and he placed his fence, under direction of the county surveyor, sixty-six feet west of it. From appearances, he should think the fence had been there quite a while,—five or ten years,—and that it still remains in the same place, both on Douglas jfiaee and Forest avenue; that the street had always been called Forest avenue ever since he knew it. There was a track, from ten to fifteen feet wide, such as is made in teams passing. The street was not thrown up while he was there. For the last fourteen or fifteen years there had been a sidewalk on the west side; that a double brick house was built on the east side, fourteen or fifteen years ago, and a wooden one nearly opposite his lot, and between Thirty-fifth and Thirty-ninth streets there must have been at least six houses built on Forest avenue, from 1865 to 1875.

The witness Beren had known Forest avenue, from Thirty-fifth street south, since May, 1866. He bought, at that time, fifty feet on it, and built in 1882, and the year after there was a sidewalk built on the east side of the street; that the street was open the same width as far as Thirty-eighth street; whether to Thirty-ninth street, he was not positive. It appeared that appellees had all the while paid taxes on the whole of lot 3; that they were non-residents of the State; that the property was in the charge of local agents.

There was a stipulation as to certain facts, among which were, that July 23, 1873, the city council of Chicago passed a'n ordinance to widen Forest avenue from Thirty-fifth to Thirty-ninth street, directing the condemnation, among other-property, of this strip, which ordinance was afterwards repealed April 8, 1883; that on May 20, 1875, th’e city filed a petition to condemn, under that ordinance, which petition was-dismissed December 7, 1885; that the gas company laid gas-pipe through the strip, nine feet east of the centre line of Forest avenue, fifteen years before; that in 1875, the city made-an assessment for lamp-posts, which was paid by appellees,, and in the same year a lamp-post was erected about one hundred feet south from Thirty-fifth street, at the curb line, on the-east side of the street; that the city, hy ordinance, January 27, 1873, established the grade of Forest avenue from Thirty-fifth to Thirty-seventh street; that June 5, 1884, appelleesbuilt a fence on the north, west and south sides of the strip, connecting with the old fence; that the same day the city tore-down the fence. The stipulation embraces some other projects of improvement of the street by the city, which, as they were subsequent to the petition for condemnation, and were-resisted by appellees, it is not deemed material to mention. It appears further, that in the summer of 1879, the city constructed a three-foot brick sewer two and one-half feet east of the centre line of Forest avenue, from Thirty-fifth street south to Thirty-ninth street, but that license to do so was first asked, and obtained from the agent in charge of the property.

From the facts appearing, we are of opinion the court was-justified in finding that there had not been a dedication of this-strip for the purpose of a street. There had been, it is true, user for a long time by the public, of the ground, for the purpose of travel. But this alone will not establish a dedication. It is of the essence of a dedication that there should be the intention to make the dedication, and the evidence should be-clear, either of such actual intention or of such acts or declarations as will equitably estop the owner from denying such intention. Grube v. Nichols, 36 Ill. 92; Kelly v. City of Chicago, 48 id. 389; McIntyre v. Storey, 80 id. 127; Herhold v. City of Chicago, 108 id. 467; City of Chicago v. Johnson, 98 id. 618.

In Grube v. Nichols, it was said: “The intention to dedicate is a vital, controlling element in such a grant. A dedication is not an act of omission to assert a right, but it is the affirmative act of the mind of the donor. It arises from the active and not the passive condition of the mind of the owner. The mere non-assertion of a right does not establish a dedication, unless the circumstances establish the purpose or intention "to donate the use to the public.” It was remarked in Kelly v. City of Chicago: “As this court has, in several cases, said, in order to justify us'in holding that title has been divested by dedication, the proof should be very satisfactory, either of an actual intention to dedicate, or of such acts or declarations as should estop the owner from denying such intention.” There was clearly no intention on the part of these appellees to make any dedication, or knowledge on their part that their land was being used for a street, until shortly before the suit was commenced, as they testify. But there might have been such an intention in some predecessor in the title, and that -would have sufficed. The placing of the fences on the west and north sides of the lot, just thirty-three feet within both the west and north lines, and thus fencing out these two strips of thirty-three feet each, is very strong evidence of their being .left out for a street, and perhaps should be accepted as satisfactory evidence of a dedication, but for the strong countervailing evidence which is found in the case, that there had been no dedication. It is true, there is no direct evidence who .actually built the fences; biit it may be fair to presume they were built by the owner, and especially when made, as they were, with such a manifest design and exactness of purpose to fence out just thirty-three feet. In disproof of intention to ■dedicate, Richards, the tenant, says the agent of the property -told him, if he wanted more ground, to move the fences out -.thirty-three feet west and north, but he did not move them.

On July 23, 1873, the city passed an ordinance to widen Forest avenue from Thirty-fifth to Thirty-ninth street, and directing the condemnation, among other property, of this strip. The ordinance, though, on April 3, 1883, was repealed, and on May 20, 1875, the city filed a petition to condemn, under that ordinance, it being dismissed December 7, 1885. This ordinance and petition was most potent evidence that there had not been a dedication of this strip to public use, and should, we think,—particularly in connection with the applying for and obtaining by the city of a license to lay a sewer in the strip, as stated above,—conclude the city from asserting that there had been such a dedication. In Toion of Princeton v. Templeton, 71 Ill. 71, it was held that such a condemnation proceeding a little further prosecuted was a clear admission that the town had no claim to the premises sought to be condemned, and was an admission that estopped the town from claiming a dedication.

That the gas company laid gas-pipe through the strip some fifteen years ago, does not appear to have been known to appellees. It was but an act of trespass, which we can not see should affect their title.

The making by the city, in 1875, of an assessment for lampposts, which was paid by appellees, and the erecting of .a lamppost, in the same year, on the east side of the street and of this strip, were after the commencement of the condemnation proceeding, and whilst it was pending. Appellees had reason to believe the strip would be condemned and made part of the street, and we see nothing in this lamp-post assessment and proceeding to make against appellees.

The appellee Wildman, and the mother of the appellees from whom they inherited, were minors much of the time. The appellees were all non-residents of the State, and we find nothing in the circumstances of this case which should equitably estop them from denying the dedication claimed.

The judgment of the Superior Court will be affirmed.

Judgment affirmed.