author: Mr. Justice Walkee

text:
    W. E. Richmond v. Charles K. Moore.

      Filed at Ottawa June 16, 1883

      1883—Rehearing denied September Term, 1883.

    1. Sunday—contract made on Sunday is valid. A contract entered into on a Sunday is not void by reason of having been made on that day, either at the common law, or under the 261st section of the Criminal Code, forbidding the disturbance of the peace and good order of society by labor, etc., on Sunday. The statute was not intended to prohibit the transaction of business merely, as distinguished from labor, on Sunday. Decisions of other courts, holding a different rule, were made under statutes essentially different from our own.
    2. Statute—language construed in its ordinary sense. The courts must, in the absence of all qualifying circumstances, presume that in the enactment of laws the language used was used in its ordinary sense. Hence, the word “labor, ” in section 261 of the Criminal Code, does not include mere business.
    Appeal from the Appellate Court for the Eirst District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Mr. E. A. Otis, for the appellant:
    In King v. Fleming, 72 Ill. 21, it was held that a note signed on Sunday, but not delivered until Monday, was not void, as it was not executed until its delivery. The same was held in respect of a deed, in Love v. Wells, 25 Ind. 503. In Langabier v. Fairbury, Pontiac and Northwestern R. R. Co. 64 Ill. 243, the issuing of an injunction on Sunday was justified on the ground of necessity. In People v. Johnson, 31 Ill. 469, the taking of a recognizance on that day was justified on the same ground. In Baxter v. People, 3 Gilm. 368, the court justified receiving a verdict on Sunday, but held that a judgment entered on that day was void. In Thomas v. Hinsdale, 78 Ill. 279, an attachment issued on Sunday was held void.

      The statute carefully points out such acts as may be performed on Sunday, such as works of necessity and charity; carriers may discharge passengers’ and freight, ferries may carry travelers, and so, by implication as 'well as expressly, it prohibits other kinds of labor, both of body or brain.. There are statutes on this subject in force in nearly all the States, based largely on 29th Charles II, chap. 7, and all substantially alike, and the decisions are uniform that contracts made on Sunday, unless subsequently ratified, or unless they come within some of the exceptions named in the statute, are absolutely null and void. Holcomb v. Donley, 51 Vt. 428 ; Stevens v. Wood, 127 Mass. 123; Meader v. White, 66 Maine, 90; Ellis v. Hammond, 57 Ga. 179; Clough v. Goggin, 40 Iowa, 325 ; Tucker v. West, 29 Ark. 386 ; Varney v. French, 19 N. H. 233; O’Donnell v. Sweeny, 5 Ala. 468; Brimhall v. Van Campen, 8 Minn. 13; Adams v. Hamell, 2 Doug. (Mich.) 73; Banks v. Werts, 13 Ind. 203.
    That the act in question is remedial, and not a penal statute, is well settled. Smith v. Wilcox, 24 N. Y. 354; Northrup v. Foot, 14 Wend. 249; Fennell v. Ridles, 5 Barn. & Cress. 406 ; Smith v. Sparrow, 4 Bing. 84.
    Mr. William H. Condon, for the appellee:
    The common law of England, and the statutes and acts to supply its defects, with certain exceptions, which are the rule of decision in this State, were in force in England prior to the fourth year of James I, 1607. There was no Sunday law in force at that time in England, and this State has enacted none, except such as prevent disturbance on Sunday.
    At common law Sunday differed from no other day, and all business transacted on that day was valid, with the exception of not being a day for legal proceedings. Rex v. Brotherton, Stra. 702; Mackally’s Case, 9 Rep. 66 b, Cro. Juc. 280; Waite v. The Hundred of Stokes, id. 496; Drury v. Defontaine, 1 Taunt. 131; Merritt v. Earle, 31 Barb. 41.

      Contracts made on Sunday were held valid in these eases: Adams v. Gray, 19 Vt. 358; Miller v. Bousler, 4 E. D. Smith, 234; Boynton v. Page, 13 Wend. 425; Greenbury v. Williams, 9 Abb. 206; Shank v. Shoemaker, 18 N. Y. 480; Morris v. Cranes, 4 Ch. sec. 6; Myers v. Meinrath, 3 Am. R. 368.
    Where Sunday laws are in force against persons working in their ordinary calling, a sale of goods on Sunday, which was not in the ordinary calling of the vendor, has been held valid. Drury v. Defontaine, 1 Taunt. 131; 2 Parsons on Contracts, 757, and notes.
   Mr. Justice Walkee

delivered the opinion of the Court:

This was an action of assumpsit, brought in the Superior Court of Cook county. There was a special and the common counts. It was averred in the special count that a contract was entered into between the plaintiff and defendant that the former was to sail the vessel “Scotia” for the latter, during the season of 1880, for the sum of $1000, but defendant prevented plaintiff from performing the contract, whereby he had sustained loss, etc. Defendant pleaded the general issue, and gave notice that he would, under that plea, prove, on the trial, that the contract was not to be performed within one year from the time it was entered into, and there was no memorandum, in writing, of its terms, signed by the parties; and that the agreement was made on representations by plaintiff that he was competent, and possessed the requisite skill and knowledge to fill the position of master of the vessel; that he was a man of honor, integrity, and of good repute, and that such assurances were untrue and false, and the plaintiff was discharged for good cause. The case was submitted to the court for trial, by consent of the parties, without a jury. The court found the issues for plaintiff, assessed his damages at $566, and rendered a judgment in his favor for that sum, and costs. An appeal was perfected to the Appellate Court, where the judgment was affirmed, and the case is brought here by appeal, on a certificate from the Appellate Court.

On the trial in the Superior Court the evidence tended to prove the agreement was entered into on Sunday. Defendant, on this evidence, asked the court to hold that the contract was prohibited by our statute, and was void, but the Superior Court refused to so hold, and the principal question discussed by counsel is, whether, under our statute, such a contract is void, or binding on the parties.

The provision of our statute which it is claimed renders this contract void, is the 261st section of our Criminal Code. The portion of that section claimed to render the contract void, is this: “Whoever disturbs the peace and good order of society by labor (works of necessity and charity excepted) or hy amusements or diversion on Sunday, shall be fined not exceeding $25.” It contains other exceptions, of which is this: “Nor to prevent the due exercise of the rights of conscience by whomsoever thinks proper to keep any other day as a Sabbath.” The common law did not prohibit the making of such contracts. In Drury v. Defontaine, 1 Taunt. 136, Lord Mansfield, in delivering the opinion, said: “It does not appear that the common law ever considered those contracts as void which were made on Sunday.” Judgment was accordingly given for the price of a horse sold on. that day. And the doctrine is supported by the cases of Comyns v. Boyer, Cro. Eliz. 485, Rex v. Brotherton, Strange, 702, The King v. Whitnash, 7 B. & C. 596, and Bloxsome v. Williams, 3 id. 232,—and this is the doctrine of all the cases, English or American, with perhaps no more than one or two exceptions that announce a different doctrine. The doctrine that contracts made on Sunday are void, depends, therefore, alone on statutory enactments, and in the various States of the Union the statutes vary, in language or substance, and the decisions of the different courts have been based on the phraseology of their several statutes. The common law, on the other hand, seems always to have prohibited all judicial proceedings on Sunday. Before the adoption of the 29th Car. II, chap. 257, legal process could- be served on that day, as well as other ministerial acts pertaining to legal proceedings. (See Comyn’s Digest, book 3, title “Temps.”) And such has been held to be the law in this State. (Baxter v. The People, 3 Gilm. 368.) There is at the common law a well defined distinction between judicial and individual or ministerial acts performed on Sunday.

The 29th Car. II, chap. 257, seems to be the basis of the enactments of the various States of the Union. It ‘is this: “That no tradesman, artificer, workman, laborer, or other person whatsoever, shall do or exercise any worldly labor, business or work, on the Lord’s day.” It contains exceptions, of which are works of necessity or charity. A mere glance at that and our statute will show that they are materially different. That prohibits labor and business; ours only prohibits labor or amusement that disturbs the peace and good order of society. The offence by that statute is the performance of labor or business, and by ours it is the disturbance of the peace and good order of society. The British statute is much more comprehensive in its purposes and language than ours. Ours only prohibits labor that disturbs the peace and good order of society, not naming business, whilst, the British statute renders the mere act of labor or business penal.

■Although we are required, under the first section of the chapter entitled “Statutes,” to give all words, clauses and phrases found in all laws a liberal construction, to carry out the legislative intention, we have no power to inject provisions into the statute which were omitted by the law makers. We are, therefore, required by this rule to ascertain and enforce the intention of the statute, and a careful examination of our statute unmistakably shows the intention to be to preserve the community from being disturbed by the labor or amusements of other persons. The language will .bear no other construction. .The, 29th Car. II, was no doubt the statute from which ours was modeled, and when the legislature made such clear and substantial changes in the provision, we are irresistibly impelled to the conclusion that it was not intended to adopt the provisions of that act, or the construction given it by the British courts. The change in the language is. so obvious and important that it repels all presumption that the intention was to adopt thb British statute in its full scope. Our statute, by its very terms, is for the preservation of the peace and good order of society from disturbance. It is not, nor can it be,-held to have been the purpose of the statute to compel the performance of a religious duty, however necessary to the future welfare of the individual failing to perform it.

But the statute does protect the religious community from being disturbed in their devotions and worship by the indecent disregard of their right to be undisturbed on that day. But it permits others, that do not recognize the Christian Sabbath, to keep another day of rest. This exception embraces Jews, Seven Days Baptists, and, it may be, some other religious denominations. The object of the statute is to protect persons keeping the Christian Sabbath as a day of holiness, from disturbance in its observance, and not to compel the performance of religious duties, as such. That is no part of governmental duty under our institutions. Our government is unlike the British government, as that government combines the ecclesiastical and secular powers. Its constitution is based upon the union of church and State, and it claims and exercises the power to enforce the faith and doctrines of the established church, by statutes imposing penalties for failing to perform religious duties and requirements, and compelling all to contribute support to the State church; on the contrary, however, a total severance of church and State is one of the great controlling foundation principles of our system of government. The spiritual welfare of our people is left entirely to the hierarchy of the various churches. The government protects all alike in their religious beliefs and unbeliefs. It is no part of the function of our government to prescribe and enforce religious tenets. The great purpose of the formation of our system of government is to protect the people in the enjoyment of their temporal and. spiritual rights, and to prohibit crime, vice and wrong to any portion of the community, and to pass and enforce laws for the promotion of the temporal interests of the people, and, as far as possible, secure their temporal welfare and happiness. -Although it is no part of the functions of our system of government to propagate religion, and to enforce its tenets, when the great body of the people are Christians, in fact or sentiment, our laws and institutions must necessarily be based upon and embody the teachings of the Redeemer of mankind. It is impossible that it should be otherwise. And in this sense, and to this extent, our civilization and institutions are emphatically Christian, but not for the purpose of compelling men to embrace particular doctrines or creeds of any church, or to support one or another denomination by public burthens, but simply to afford protection to all in the enjoyment of their belief or unbelief. But the State has the unquestioned power to suppress crime, vice and immorality, even if such acts are claimed to be the exercise of religious belief.

The legislature is absolutely powerless to enforce religious doctrines or beliefs, merely as such. It may be that in suppressing crime, vice, or immorality, it may incidentally enforce^-religious doctrines. The Christian religion forbids all crime, vice and immorality, and good government equally requires their suppression. They are suppressed by the government because required for the general welfare, and not because they are religious doctrines. The third section of article 2 of our constitution in terms guarantees the free exercise and enjoyment of religious profession and worship to all, and prohibits any preference from being given by law to any denomination or mode of worship, or being compelled to support any such worship. In all countries and ages, among civilized or partially civilized peoples, governments have set apart days of rest, recurring at short periods. This has been, and still is, regarded as necessary to the temporal welfare of the people, as a certain amoun-t of rest is regarded as absolutely necessary to man and animals subjected to labor. Considerations of public policy demanding such periods of rest, and the great body of Christians holding the observance of Sunday to be a religious duty, it is natural that the lawmaking power, as a matter, of public policy, should specify Sunday as the day of rest, thereby conforming public policy to religious sentiment. But that Sunday is kept as a holy day by most Christian denominations neither adds to nor detracts from the validity of the enactment. Had any other day of the week been selected, the enactment would have had the same binding force.

But even if such a contract was void at the common law, it w'ould not necessarily follow that it would be under our laws. We have seen that church and State were united under the British constitution, while they are totally severed by our constitution. The government of Great Britain has the power to pass laws to promote and enforce religious tenets. This is a part of the common law of England which was excluded from the constitutional power of the legislature, and is not adapted to our form of government, and the legislative power of the State is therefore left to adopt all law's tending to promote the general temporal welfafe of the governed. Nor has the judicial department any power to enforce religious doctrines, as such, but must be governed entirely by the law as it exists. Courts can only enforce the law as it exists, and the legislature having failed to declare contracts of the character of that under consideration void, we must enforce it as if it had been entered into on a secular day.

In support of these views we refer to the cases of Specht v. Commonwealth, 8 Barr, 312, City Council v. Benjamin, 2 Strob. L. R. 508, and Bloom v. Richards, 2 Ohio St. 387. In those cases it was held that it was merely exercising the power of the State in adopting such laws, which is wholly disconnected from any kind of religion; that the legislature had the power to select a day of rest, and could have as well selected any other day of the week; that it was essentially a civil regulation, made for the government of man, as a member of society, and it w7as held that the law interfered with no man’s conscience because he. was compelled to refrain from secular employment on that day; that the selection of a day of rest is a mere question of expediency. In New Hampshire, Vermont, Pennsylvania, Massachusetts, Alabama, Michigan, Georgia, Wisconsin, Maine and Minnesota, their several statutes, like the 29th Gar. II, prohibit both labor and business on Sunday, and no doubt the statutes of other States contain similar provisions, and the decisions by the courts of those States referred to were made with reference to the language of their statutes.

In the case of Bloom v. Richards, supra, a contract w'as involved wdiich was entered into on Sunday. In an able opinion, where the authorities are extensively reviewed, it was held the contract was valid, and capable of being enforced in their courts. The statute of the State prohibits labor, etc., on Sunday, under a penalty, but the act in terms does not prohibit the exercise of mere business, as do the other statutes to which we have referred, and it was there held that entering into a contract for the sale of land was not, in the sense of the statute, common labor.

Is the making of such a contract as that under consideration embraced in our statute as labor ? Could the parties to this contract have been criminally prosecuted, convicted and fined? If they could, then the contract-is void, as no principle is more firmly established or better recognized than that a contract made which violates a statute is void. If the term “labor” necessarily embraces business of all kinds, why were the terms “labor” and “business” both used in the various statutes to which we have referred ? It was for the obvious reason that those who framed and adopted the statutes supposed that the word “labor” did not necessarily embrace “business,” nor does the word “labor” include as a definition mere “business, ” and this being the ordinary meaning of the word, we must accept it as the sense in which it was used by the legislature. We must, in the absence of all qualifying circumstances, presume, in the enactment of laws, that language is used in its ordinary sense. This is a canon of interpretation that has ever obtained. We must, therefore, accept this term in this sense.

But even under' the 29th Car. II, the British courts have held that the sale of a horse on Sunday, out of the usual course of trade, by the vendor, was not void. (Drury v. Defontaine, supra.) So the hiring of a laborer on Sunday by a farmer for a year, was held legal and binding, and conferred a settlement of the laborer in the parish. (King v. Whitnash, supra.) That a baker might prepare dinners for his customers on Sunday. (5 T. B. 449; Chitty on Contracts, 335.) Thus it is seen that the statute was rigidly construed, and the same is true of most of the statutes of the various States of the Union. Here there was nothing'done to disturb the peace and good order of society, which it is the primary purpose of the statute to' prevent. . Had this contract been made in such a manner as to disturb the peace and good order of society, or any portion of it, then a very different question would have been presented, but one which need not be discussed here. But there is no evidence that in the slightest degree tends to prove any one was disturbed.

If this contract should be held to be illegal, then every contract not shown to have been absolutely necessary, or performed for charitable purposes, would be void, and render parties to it liable to the penalty. The marriage contract is held to be a civil contract' by our laws, and yet vast numbers of such contracts are entered into on Sunday. It would be difficult to show such contracts necessary, in the sense of the statute, and shall it be held that such contracts are void, and the parties to them guilty of living in an open state of adultery or fornication, and liable to be criminally punished, and must their children be held to be bastards? Must a person be criminally punished for writing a letter to a friend on Sunday, or a barber for shaving a customer, or a person for selling to another a cigar, or purchasing and reading a newspaper on Sunday, and for almost innumerable like acts ? Shall a person be punished because he studies scientific works or secular branches of literature on Sunday? The statute never could have been adopted in such a spirit or for such purposes.

It is claimed that the decisions of this court have virtually settled this question in favor of appellant. This is a misconception. In the case of Johnston v. The People, 31 Ill. 469, it was held that a recognizance, although to some extent a judicial act, taken on a Sunday, was valid. In the case of Langabier v. Fairbury and Pontiac R. R. Co. 64 Ill. 243, it was held that issuing an injunction on Sunday was not prohibited by the statute, because it was a matter of- necessity. In the case of Thomas v. Hinsdale, 78 Ill, 259, it was held that the issuing of an attachment on Sunday was void. In the case of Scammon v. Chicago, 40 Ill. 146, it was held the publication of a legal notice which required the count of a Sunday issue of the paper to have the required number of publications, was not sufficient. In the case of Baxter v. The People, supra, it was held that it was illegal to enter a judgment on Sunday, but not to receive and record a verdict on that day. The case of King v. Fleming, 72 Ill. 21, involved the validity of a promissory note made in Indiana», and signed by one of the makers on Sunday, but not delivered till a subsequent secular day, and the note was held valid. It is thus seen that this question has never before been presented to this court for decision. The legislature has the sole power to prohibit every kind of secular labor or business on Sunday, or such only as it may choose; but we have no power to prohibit any labor or business on that or any other day. "We can only enforce the law as it is enacted. When the legislature shall prohibit labor, whether it shall disturb others or not, and the transaction of business, or the making of contracts, we will unhesitatingly carry out the legislative will; but we can neither add to nor detract from statutes as they are enacted.

Under the defence of the Statute of Frauds the circuit court heard the evidence, and held as a fact, from that evidence, that the contract was to be performed within one year from the time it was entered into by the parties, and that finding was affirmed by the Appellate Court, and we are precluded from examining the evidence to determine whether it sustains that finding.

The judgment of the Appellate Court is affirmed.

Judgment affirmed,.


source: Caselaw Access Project

author: Mr. Chief Justice Sheldon

license: Public Domain

text:
    Meads C. Pugh et al. v. James L. Reat.

      Filed at Springfield October 1, 1883.

    1. New tbiai<—in ejectment, under the statute—motion for must be within one year, and all costs paid. A plaintiff in ejectment recovered judgment on April 12,1882, and on May 1,1882, the defendants paid all costs up to that time. On March 9, 1883, the plaintiff sued out a writ of possession, making thereby one dollar additional costs, of which the defendants» had notice. On April 13, 1883, the defendants for the first time entered a motion to vacate the judgment, and for a new trial, under the statute, without having paid these additional costs. The court overruled the motion: Held, that the motion was properly overruled, for two reasons,—the failure to pay all costs, and to make the application within one year after the judgment.
    2. Time—mode of computing. The proper mode of computing time, where an act is to be performed within a particular period from or after a specified day, is to exclude the day named and include the day on which the act is to be done.
    Appeal from the Circuit Court of Douglas county; the Hon. C. B. Smith, Judge, presiding.
    Messrs. Brooks & McPherson, for the appellants.
    Mr. Thomas H. Macoughtry, for the appellee.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

This was an action of ejectment, wherein judgment was rendered for the plaintiff on April 12, 1882. On May 4, 1882, defendants paid all the costs which had then accrued in the ease. On the 9th of March, 1883, a writ of possession was issued, the costs of issuing which amounted to the sum of one dollar. On April 6, 1883, defendants’ attorney requested the clerk of the circuit court in' which the judgment was rendered to place the cause upon the docket of the court, at which time the clerk informed him that since the payment of costs as aforesaid the plaintiff had caused a writ of possession to issue in the ease, thereby making additional costs in the suit. The costs of this writ of possession were never paid. On the 13th day of April, 1883, being the fifth day of the April term of the circuit court, the defendants made a motion for .a new trial in the case, which motion the court overruled. No motion to vacate the judgment or to grant a new trial had previously been rnadedo the court, or filed in vacation. Prom the order overruling .said motion this appeal is taken.

The statutory provision under which the new trial was claimed in this case is as follows: “At any time within one year after a judgment, either upon default or verdict, in the action of ejectment, the party against whom it is rendered, his heirs or assigns, upon the payment of all costs recovered therein, shall be entitled to have the judgment vacated and a new trial granted in the cause.” There was here failure of compliance by the defendants with either one of the two conditions which alone entitled them to have the judgment vacated and a new trial granted, viz: the payment of the costs, and application for vacation of the judgment and granting, a new trial within one year after the judgment. The costs of the writ of possession were not paid; they were a part of the costs recovered in the suit; they had accrued, and the defendants had been informed thereof previous to the motion for a new trial, and they should have paid the same to entitle them to a grant of the motion. The judgment having been rendered on April 12, 1882, and the motion for a new trial not having been made until on April 13, 1883, the motion was not made within one year after the judgment.

In Ewing v. Bailey, 4 Scam. 420, this court laid down the rule that the proper mode of computing time, when an act is to be performed within a particular period from or after a specified day, is to exclude the day named and include the day on which the act is to be done. This was laid down and applied in respect to the time of filing in the office of the clerk of the circuit court an appeal- bond taken by a justice of the peace, the statute requiring the bond to be filed within twenty days after the approval of the hond. In computing the time the court say: “The day on which the appeal bond was executed was to be excluded in the computation of the twenty days.” This rule has ever since been followed by this court. See People v. Hatch, 33 Ill. 14; Roan v. Rohrer, 72 id. 582; Protection Life Ins. Co. v. Palmer, 81 id. 88.

The judgment having been rendered on the 12th day of April, 1882, the one year after the judgment commenced to run on the 13th of April, 1882, and was completed on the 12th day of April, 1883. The motion for a new trial not having been made or filed until on the 13th of April, 1883, it was not made within one year after the judgment, and so not within the time limited by the statute. The circuit court rightly overruled the motion for a new trial, and the judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Scholpield

text:
    Georgietta L. Hamlin et al. v. The United States Express Company.

      Filed at Springfield October 1, 1883.

    1. Will—limitation over repugnant to devise, is inoperative. Where there is a devise of an unlimited power of disposition of an estate in such manner as the devisee may think fit, a limitation over is inoperative and void, by reason of its repugnance to the principal devise.
    2. Same—when power of disposition carries a fee. If an estate be given to a person, generally or indefinitely, with a power of disposition, it carries a fee, unless the testator gives to the first taker an estate for life only, and annexes to it a power of disposition of the reversion. In that ease the express limitation for life will control the operation of the power, and prevent it from enlarging the estate to a fee.
    3. Same—rule of construction—intention—how found. In construing a will, the intention of the testator, if not inconsistent with the rules of law, must govern; and this intention is to be ascertained from the whole will and all its parts taken together. Every clause and provision, if possible, should have effect given to it according to the intention of the maker. A later clause of a will, when repugnant to a former provision, is to be considered as intending to modify or abrogate the former.
    4. Same—power of disposition may be annexed to a life estate. It is not opposed to any rule of law to create a life estate with a power to sell and convey, and limit a remainder after its termination.

      5. Same—construed, as creating life estate with power of disposition. A testator devised all his estate, real and personal, to his wife, for her own irse and benefit, with full power to hold, use, enjoy or dispose of the same in any manner she might choose; and the will further provided, that if she so desired she should have full power and authority to convey any and all of the real estate by absolute conveyance in fee simple. By a subsequent clause the will provided, that after the wife’s death, all the real estate not conveyed by her should be sold at the best advantage, and the proceeds distributed in the mode prescribed: Held, that but for the latter clause the wife would have taken an estate in fee, hut with the qualification in the latter clause, and in order to give it any effect, the wife should be deemed to have taken only a life estate in the lands, with the power to convey any part of it she might deem necessary.
    Wbit oe Ebeoe to the Circuit Court of Sangamou couuty; the Hon. Chables S. Zane, Judge, presiding.
    This was an action of ejectment, brought by Georgietta L. Hamlin and others, against the United States Express Company, for the recovery of certain parts of lots 1 and 2, in block 21, -in the old town (now city) of Springfield. The case was tried - by the court on an agreed state of facts, namely, that George Woods, at his death, was the owner in fee of the real éstate claimed in the declaration; that he died May 8, 1878, leaving a will, which was duly probated September 3, 187S; that on November 17, 1882, Lucinda Woods, his widow, died, without having in any way disposed of said real estate; that plaintiffs were heirs at law of Lucinda Woods, and, if entitled to recover, had the right to the one undivided one-fourth of said real estate. The court found for the defendant, and rendered judgment accordingly.
    Messrs. McClebnand & Keyes, and Mr. N. M. Bboadwell, for the plaintiffs in error:
    When land is devised to a person with general power to dispose of the same, an estate in fee simple passes. Firman v. Beal, 14 Ill. 244; Ramsdell v. Ramsdell, 21 Maine, 288; 4 Kent’s Com. *535, 536; McKenzie’s Appeal, 41 Conn. 607.

      Under our statute every devise of lands is deemed a fee, if a less estate is not limited. Rev. Stat. chap. 30, sec 13; McConnell v. Smith, 23 Ill. 611; Leiter v. Shepherd, 85 id. 242.
    If lands are devised to a person and his heirs, with a gift over if he die intestate or shall not part with the property in his lifetime, the gift over is repugnant and void. 2 Jar-man on Wills, *15 ; Rand v. Meir, 47 Iowa, 607; McKenzie's Appeal, 41 Conn. 607; Ryan v. Meyer, 1 Coldw. 226; Siegwald v. Siegwald, 37 Ill. 430; Holliday v. Dixon, 27 id. 33; Welsch v. Bank, 94 id. 203 ; Brownfield v. Wilson, 78 id. 471; Roseboom v. Roseboom, 81 N. Y. 356.
    A valid executory devise can not subsist under an absolute power of disposition in the first taker. 4 Kent’s Com. * 270; Jackson v. Robbins, 16 Johns. 537; Ryan v. Meyer, 1 Coldw. 226.
    Messrs. Greene, Burnett & Humphrey, for the defendant in error:
    The position contended for by plaintiffs in error is to give effect only to the first few lines of the will, leaving all that follows without purpose,—in other words, that it was not in the power of the testator, after giving an estate without qualification in one part of the will, to qualify the estate in a subsequent part, and that this is true no matter how clearly the intention to limit the estate granted may appear. The intention of the testator, as gathered from every part of the will, must govern. Smith v. Bell, 6 Pet. 68; Johnson v. Johnson, 98 Ill. 564; Bland v. Bland, 103 id. 12; Smith v. Taylor, 21 id. 296; Willis v. Watson, 4 Scam. 64; Caruthers v. McNeil, 97 Ill. 256; Holliday v. Dixon, 27 id. 33; Pool v. Blakie, 53 id. 495; Markillie v. Ragland, 77 id. 98; Duryea v. Duryea, 85 id. 91.
    An estate devised may be enlarged, restricted or limited by subsequent words in a will. Smith v. Bell, 6 Pet. 68; Bergan v. Cahill, 55 Ill. 161; Johnson v. Johnson, 98 id. 564.

      Mr. Joseph M. Grout, for the legatees in the will:
    The intention of the testator must he sought and enforced, if consistent with the rules .of law. Boyd v. Strahan, 36 Ill. 358; Bergan v. Cahill, 55 id. 160; Markillie v. Ragland, 77 id. 101; Rountree v. Talbot, 89 id. 249; Johnson v. Johnson, 98 id. 564; Bland v. Bland, 103 id. 12; Kennedy et al. v. Kennedy et al. 105 id. 353.
    The intention must be gathered from the whole instrument. Bergan v. Cahill, 55 Ill. 160; Markillie v. Ragland, 77 id. 100; Caruthers v. McNeil, 97 id. 256; Johnson v. Johnson, 98 id. 564; Bland v. Bland, 103 id. 12.
    If possible, all clauses of the will must be given effect. Bland v. Bland, 103 Ill. 12; Johnson v. Johnson, 98 id. 564; Brownfield v. Wilson, 78 id. 467; Rountree v. Talbot, 89 id. 249; Markillie v. Ragland, 77 id. 101; Bergan v. Cahill, 55 id. 160.
    We think it is clearly settled in this State that a power of sale attached to a life estate will not enlarge it into a fee. If the life estate is given in express terms, it is beyond all question. Fairman v. Beal, 14 Ill. 244; Boyd v. Strahan, 36 id. 355; Funk v. Eggleston, 92 id. 532.
    Messrs. Gross & Zane, also, for the defendant in error:
    So far as applicable to the facts of this case,, the decisions of this court would seem to establish the following rules of construction:
    The prime object in the construction of wills is, to ascertain the intention of the testator. Boyd v. Strahan, 36 Ill. 359; Markillie v. Ragland, 77 id. 98; Brownfield v. Wilson, 78 id. 467; Kennedy v. Kennedy, 104 id. 350.
    For this purpose courts will look to the language of the will itself. (Siegwald v. Siegwald, 37 Ill. 435; City of Peoria v. Darst, 101 id. 609; Blanchard v. Maynard, 108 id. 60.) And will consider all parts of the will together. (Bergan v. Cahill, 55 Ill. 160; Johnson v. Johnson, 98 id. 564.) And, if possible, give effect to every part. (Bland v. Bland, 103 Ill. 11; 1 Sheppardfs Touchstone, *451.) And this though it may contravene an artificial rule of construction. Kennedy v. Kennedy, 104 Ill. 350.
    If the different parts of a will are found to be irreconcilable, the latter provisions must prevail as a modification or abrogation of the former. Murfitt v. Jessop, 94 Ill. 158.
    A devise for life may be coupled with an absolute power of disposition in a life tenant. Markillie v. Ragland, 77 Ill. 98; Welsch v. Belleville Savings Bank, 94 id. 191; Henderson v. Blackburn, 104 id. 227; Fairman v. Beal, 14 id. 244.
    The gift of an estate of inheritance in lands may be restricted by subsequent words, and changed to an estate for life. Bergan v. Cahill, 55 Ill. 160; Johnson v. Johnson, 98 id. 564.
   Mr. Justice Scholpield

delivered the opinion of the Court:

The only question presented upon this record is, whether Lucinda Woods took a title in fee simple under the will of her husband, George Woods. If she did, the judgment below must be reversed. If she did not, it must be affirmed.

The provisions of the will material to the question are as follows: “After the payment of my just debts and funeral expenses, I give, devise and bequeath all my estate, real and personal, of whatever kind and wherever situated, to my wife, Lucinda Woods, for her own use and benefit, with full power to hold, use, enjoy or dispose of the same in any manner she may choose, and, if she so desires, she shall have full power and authority to convey any and all of my real estate by absolute conveyance in fee simple. After the death of my wife, Lucinda Woods, it is my will that all my real estate which shall not have been conveyed by her shall be sold at the best advantage, and in such manner as shall seem for the best interest of said estate, and of the proceeds of said sale it is my will that $5000 be invested for the use and benefit of Carrie Sweet, in the following manner,” etc. “$5000 to be for th.e benefit of George W. Sweet; $5000 for the benefit of Marion H. Sweet; $2000 to be paid to Joanna D. Stokes,” etc.

It was admitted upon the trial that Joanna D. Stokes, named in said will, was a favorite niece of George Woods; that - Carrie Sweet was raised by Mr. and Mrs. Woods as a member of the family; that all the legatees are living, and are taking steps to have said real estate sold as provided by the will, and that Mr. and Mrs. Woods never had any children.

The doctrine relied upon by counsel for plaintiffs in error, that where there is a devise of an unlimited power of disposition of an estate in such manner as the devisee may think fit, a limitation over is inoperative and void by reason of its repugnance to the principal devise, is not controverted by counsel for defendant in error, and is undoubtedly well established.' (Fairman v. Beal, 14 Ill. 244, Welsch v. Belleville Savings Bank, 94 id. 203, and other authorities cited.) But this doctrine has no application to a case where a life estate is clearly given to the first taker. (Welsch v. Belleville Savings Bank, supra.) “If an estate be given to a person, generally or indefinitely, with a powTer of disposition, it carries a fee, unless the testator gives to the first taker an estate for life only, and annexes to it a power of disposition of the reversion. In that case the express limitation for life will control the operation of the power, and prevent it from enlarging the estate to a fee.” 4 Kent’s Com. (8th ed.) 603, *526.

The principal rules of construction in such cases have been often quoted by this court, and are familiar to the profession. They are: The intention of the testator, if not inconsistent with the rules of law, shall govern, and this intention is to be ascertained from the whole will and all its part's taken together. Every clause and provision, if possible, should have effect given to it according to the intention of the maker. A later clause of a will, when repugnant to a former provision, is to he considered as intending to modify or abrogate the former. It is not opposed to any rule of law to create a life estate, with power to sell and convey, and limit a remainder after its termination. Rountree v. Talbot, 89 Ill. 249; Brownfield v. Wilson, 78 id. 467; City of Peoria v. Darst, 101 id. 609; Bland et al. v. Bland et al. 103 id. 11; Henderson v. Blackburn, 104 id. 227; Bergan v. Cahill, 55 id. 160; Friedman v. Steiner, ante, p. 125; Smith v. Bell, 6 Pet. 68.

The language of this will is such as to leave no rational doubt that it was intended the wife of the testator should take a life estate, with power of disposing of and conveying the fee, and that the specific legatees should take the remainder. The wife is given everything, with full power to use, enjoy and dispose of the same, and convey the real estate by absolute conveyance in fee simple. This, if unqualified, would, of course, vest a fee simple in the real estate; but being qualified, in order to give the language of the qualification any effect this language must be restricted to the life of the wife of the testator. It is contemplated there will be real estate which shall not have been sold by the wife in her lifetime, and this is to be sold, not for the benefit of the wife’s estate, but for the benefit of the estate of the testator, and the proceeds divided among other designated objects of his bounty. Having no children, it was not unnatural, but was, indeed, most reasonable, that the testator should design that his wife should have the use of his entire estate during her life, with the privilege of conveying whatever part of it she might deem necessary, and yet at the same time intend that what she should not consume should go to other objects of his bounty,—those standing next highest in his affections. The latter part of the will is to be considered no less than the former part, and to the extent there is repugnance the language of the former part is to he read as modified by that of the latter part. So reading it, the words, “during her ,natural life, ” must be understood as annexed to and qualifying the first clause. The cases before cited as quoting the tules of construction applicable to the present case, will be found to be entirely analogous in principle.

We see no cause to disturb the judgment below, and it is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    The Wiggins Ferry Company v. The East St. Louis Union Railway Company.

      Filed at Springfield October 1, 1883.

    1. East St. Louis—charter construed, as to grant of streets for railroads. Section 20 of the charter of the city of East St. Louis, authorizing the city council to make any contract or arrangement with any street or horse railroad company for the use of any street, etc., provided the consent, in writing, of the owners of three-fourths of the property per lineal foot fronting on such streets, etc., be first obtained, applies exclusively to the street or horse railroads strictly so called, and has no application to railroads contemplated in the general Railroad law.
    2. Horse and dummy railroads—chapter 66 of the Revised Statutes does not provide for their incorporation. Chapter 66 of the Revised Statutes, entitled- "Horse and Dummy Railroads, ” does not provide for the incorporation of companies to build and operate this class of railroads. It simply extends the provisions of the act to such companies as had been, or might thereafter be, incorporated under the general laws of the State. ' The incorporation of such companies is provided for in section 1, of chapter 32, entitled “Corporations,” and it is doubtful whether the general Railroad law (chapter 114) has any application to such roads.
    3. Railroad—whether assent of lot owners is necessary to enable a railway to use a public street. Under the general law relating to railroads, it is only necessary to procure the assent of the municipal authorities of a city to authorize a railroad company to construct its track or tracks over or along a public street therein. That act, as revised in 1874, does not require the assent of the abutting lot owners, and in the absence of any special statutory provision requiring such assent it will not be necessary.

      i. In cities, towns or villages organized under the general Incorporation law, which requires such assent, or under special charters containing a similar provision' to that in the general law, this rule does not apply, and the assent of the requisite number of the abutting property owners will be required, as well as that of the municipality.
    5. Same—may be of limited extent, and may limit its business. A railway company may organize under the general Railroad law to construct its road exclusively within the limits of a city, for the purpose of transferring, in railroad cars, freight between the different depots, warehouses, elevators, manufactories, etc., that are or may be on its line, or may be reached by its lateral branches. Such business is such as is usually done by railway companies. If such company elects to carry freight only, it will be under no obligation to carry passengers, and vice versa. And so if it holds itself out as a carrier of a particular kind of freight, or of freight generally, prepared for carrying in a particular way, it will only be bound to carry to the extent and in the manner proposed.
    Appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    Mr. R. A. Halbert, for the appellant,
    among many other points, contended that a railroad company could not legally be organized where its termini were within the limits of a street in a city Powers granted a private corporation are to be strictly construed.
    Under the general Incorporation law of 1872, cities and villages are denied the power to grant the use of or the right to lay down any railroad tracks in any street, except on petition of the owners of the land representing more than one-half of the frontage of the street sought to be used. (Section 62, paragraph 90.) The charter of the city, which is special, gives the city council no power to grant its streets to railroads, without the consent, in writing, of the owners of three-fourths of the adjacent lots. Private Laws 1869, vol. 1, p. 904, sec. 20; Pitzman v. Village of Freeburg, 92 Ill. 111.
    The recent legislation of this State shows, as does the special charter, that the fee of the streets is not fully vested in the city, so as to enable it to grant them to a railroad corporation. The building of a railroad upon a highway is an additional servitude, and compensation must be made therefor. Indianapolis, Bloomington and Western R. R. Co. v. Hartley, 67 Ill. 439.
    An injunction lies in this case on two grounds: First, the taking or damaging of private property without compensation ; and second, the unlawful or excessive use of corporate powers by a private corporation. Cobb v. Indianapolis and St. Louis R. R. Co. 68 Ill. 233.
    Property can not be taken for public use until compensation therefor is ascertained and paid. (People v. McRoberts, 62 Ill. 38; City of Chicago v. Barbian, 80 id. 483.) And an injunction lies if an attempt to do so is made. High on Injunctions, 622.
    The supposed ordinance is void. It is farming out a public highway for fifty years to a private corporation. Streets can not be used for speculation by the city, and the council has no power to pass such ordinance, and it is absolutely void. Davis v. Mayor of New York, 14 N. Y. 506; Million v. Short, 17 Barb. 435; Same v. Same, 27 N. Y. 621; Gager v. Georgetown, 6 Wheat. 593; State v. Cincinnati Gas Co. 18 Ohio, 262; Britton v. Mayor, 21 How. Pr. (N. Y.) 251; Illinois Canal Co. v. St. Louis, 2 Dillon, C. C. 87.
    Messrs. G. & G. A. Koerner, for the appellee:
    When a corporation owns the fee of the streets by its charter, the local authorities are invested with exclusive control over them, and if those authorities grant permission to locate railway tracks along a street, the owners of property fronting thereon can not enjoin the laying of such tracks. Moses v. Pittsburg, Ft. Wayne and Chicago R. R. Co. 21 Ill. 516.
    It is a legitimate use of a street or highway to allow a railroad track to be laid down in it. Murphy v. City of Chicago, 29 Ill. 279.

      When the fee remains in abutting land owners, the corporation may grant the right to a railway company to lay its tracks therein, but at the peril of the railroad company. If a laying its tracks causes private injury to land owners, it must make good the damages sustained. Hartley v. Indianapolis, Bloomington and Western R. R. Co. 67 Ill. 445.
    A city may authorize the laying of a railroad track in its streets. This may even be done by resolution. When a city has conveyed a street to a railroad company, that conveyance is operative to the extent the city has power, viz: to give to the company the right to construct, maintain and operate its railroad in the streets. City of Quincy v. Chicago, Burlington and Quincy R. R. Co. 92 Ill. 21.
    In Illinois, cities are given exclusive control of all streets and alleys within the corporate limits. The fee of the streets is in the corporation, and the dominion over them is as absolute as that of the owner of other lands. Cairo and Vincennes R. R. Co. v. The People, 92 Ill. 174.
    If the fee in the streets is in the public, or in the city for public use, and not in the abutter, the legislature may authorize them to be used by a railroad company in the construction of its road withóut compensation to the adjoining owners or the city,, and without the consent, and even against the wishes, of either! 2 Dillon on Mun. Corp. 556.
    It is the settled law that a railroad in the street is not, per se, a nuisance, and being authorized by the proper authority, it is. to be regarded as .rightfully in the use of the street so long as it does not exceed the limits of its grant, nor unnecessarily hinders and obstructs the ordinary travel. Angelí on Highways, 242; Commonwealth v. Erie and N. E. R. R. Co. 27 Pa. 339; Redfield on Railways, sec. 76; Lexington v. Applegate, 8 Dana, 288; Regina v. Train, 9 Cox, 180; New Albany v. O’Dailley, 12 N. 557.
    Mr. M. Millard, for-the appellant, in reply.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The East St. Louis Union Railway Company, the appellee, is a railway corporation organized under chapter 114 of the Revised Statutes of 1874, known as the “Railroad and Warehouse act.” As appears from its articles of incorporation, the object of its organization was to construct and operate a single and double track railroad in this State, from the north to the south end of Front street, in the city of East St. Louis. After its organization the city of East St. Louis passed an ordinance granting the company permission to construct and operate its road along and over Front street, as contemplated by its articles of incorporation. When, in pursuance of this grant, the company was about to lay down its tracks, the Wiggins Ferry Company, the appellant, filed the present bill, alleging, among other things, the complainant was the owner of more than three-fourths of the real estate abutting on said Front street; that it was a large tax-payer of the city; that it had not petitioned for the passage of the ordinance granting the right of way, nor had it given its consent to the construction of the proposed railroad over the street, and prayed for an injunction restraining the company from laying down its tracks, or otherwise using the street for the purpose in question. The company answered, admitting most of the facts charged in the bill, and declaring its purpose to proceed without delay to lay down its tracks and operate the road, in pursuance of the city’s grant, as in the bill alleged. Upon the filing of the bill a temporary injunction was awarded, which, upon the final hearing, was dissolved, and a decree entered dismissing the bill, to reverse which the complainant brings this appeal.

This suit is brought upon the legal hypothesis that the permission of the municipal authorities alone did not authorize the company to construct and operate its road in one of the public streets of the city in the manner and for the purposes proposed, alone, but that in addition to this the company was bound to obtain the assent of the requisite -number of the abutting property owners, which it is conceded was not done in this case. The trial court held, as matter of law, that under the circumstances of this case it was not necessary to obtain the assent of the abutting lot owners, or any portion of them, to warrant the company in constructing and operating its road in the manner proposed,—that for such purpose the grant of the right of way by the city was all that was required,—and this ruling, of the trial court presents the main question for determination on this appeal.

It is to be observed, in the first place, the city of East St. Louis is incorporated under a special charter, (see vol. 1, Private Laws 1869, page 904,) and the only provision in it relating to the subject under consideration is found in section 20, which is as follows: “The city council is hereby authorized to make any contract or arrangement with any street or horse railroad company for the use of any street, highway or alley, for any length of time not exceeding twenty-five years, and for such compensation as may be agreed upon, deemed proper and beneficial to the interests of the city: Provided, the consent in writing of the owners of three-fourths of the property per lineal foot fronting on such streets, etc., be first obtained.” We are of opinion this section of the charter applies exclusively to street or horse railways strictly so called, and hence it has no application to the road under consideration.

Appellee contends the road in question is a railroad within the meaning of the general Railroad act, under which it was organized, and bases its right or claim to corporate existence exclusively upon that act, and denies that it comes within the category of roads known as horse, dummy or street railways. To say the least of it, it is a matter of grave doubt whether the consolidated act of 1874, entitled “Railroads and Warehouses, ” has any application to this latter class of roads, or whether persons associated for their construction or operation can lawfully incorporate- at all under that act. Nor does chapter 66 of the Revised Statutes, entitled “Horse and Dummy Railroads,” provide for the incorporation of that class of companies, but simply extends the provisions of the act to such companies as have been or may thereafter be incorporated under the general laws of the State, and the only special provision we have found in the statute relating to their incorporation is found in the first section of chapter 32, entitled “Corporations.” It is there provided “that horse and dummy railroads * * * may be organized and conducted under the provisions of that act. ” This special provision in the general Incorporation act would seem to indicate a purpose on the part of the legislature to treat horse and dummy railways, at least in some respects, as a distinct class of roads, and this purpose on the part of the legislature is further manifested in certain provisions found in the Railroad and Warehouse act. That act, as consolidated in the revision of 1874, consists of a number of statutes, passed by the legislature at different times, but each having in view the accomplishment of some particular object or objects. While the terms of the first section of the act seem to be sufficiently broad to embrace horse and dummy railways, which we regard as falling within the general description “street railways,” yet in other subdivisions of the act this class of roads is expressly excluded from its operation. (See sections 77 and 95, chapter 114, Hurd’s compilation.) Taking all these provisions of the statute together, it is extremely questionable whether street railway companies, strictly so called, can be lawfully organized at all, except under chapter 32, of the Revised Statutes, entitled “Corporations.” But since, as we have -already seen, appellee bases its whole right or claim to corporate existence under the Railroad and Warehouse act, it is not necessary to pass definitely upon this question.

Recurring, then, to the main question in the case, namely, whether the assent of the abutting lot owners to the laying doWn of appellee’s tracks was necessary, it is to be noted as a significant fact the act under which the company was organized requires no such assent. The only limitation imposed by that act is the assent of the municipality whose street is sought to be used for such purpose. (See. 20, chap. 114, Rev. Stat.) The same is true of horse and dummy railways. (Sec. 3, chap. 66, Rev. Stat.) The general rule unquestionably is, that in the absence of any special statutory provision requiring such assent, it will not be necessary. Of course, in towns, cities or villages organized under the general Incorporation law, which requires such assent, or under special charters containing a provision similar to that in the general Incorporation law, this general rule does not apply, and the assent of the requisite number of the abutting property owners will be required, as well as that of the municipality.

The proposed road, when completed, is to be used solely “for the purpose of transferring, in railroad cars, freight between the different depots, warehouses, elevators, manufactories, etc., that are or may be on its line, or may be reached by its lateral tracks, ” and the point is made that a company whose line of road is limited to a single street, and whose proposed business is so circumscribed, does not come within the purview of the act authorizing the incorporation of railway companies by general law. The argument is, that the legislature, in providing a general law on the subject, must have intended to include only such companies as would perform the ordinary functions of common carriers, and as the company in question does not propose to receive shipments of freight generally, or carry passengers at all, it is contended the appellee is not, within the meaning of the act, a railway company, and hence its supposed organization was unauthorized, and all acts done under it are illegal and void. The proposed business of this company is clearly such as is usually, if not uniformly, done by railway companies, and we are aware of no rule of law requiring a railway track to be of any particular length, or that it should extend beyond the limits of a particular town or city, though most railroads certainly do.

f Nor do we see anything in the objection that the business of the company is to be limited to the carrying of freight offered in cars only. Every common carrier has the right to determine what particular line of business he will follow. If he elects to carry freight only, he will be under no obligations to carry passengers, and vice versa. So if he holds himself out as a carrier of a particular kind of freight, or of freight generally, prepared for carriage in a particular way, he will only be bound to carry to the extent and in the manner proposed. He will nevertheless be a common carrier.^ 2 Eob. Prae. 525.

The decree of the circuit court being in conformity with the views here expressed, we perceive no ground for disturbing it.

Decree affirmed.


author: Mr. Justice Scholfield

text:
    Thomas Eagan v. Susan Connelly

      Filed at Springfield October 1, 1883.

    1. Evidence—of statutes of another State. A book, the title page of ■which reads, “ Statutes of Ohio—By authority of the General Assembly—In force August 1st, 1854—Published in pursuance of the act of the General Assembly of April 18th, 1854,” is admissible in evidence, under our law, to prove a particular statute of the State of Ohio.
    2. Deed — of proof of its execution in conformity with the law of another State. A deed executed and acknowledged, or proved, in another State, conveying land in this State, may be shown to have been executed and acknowledged, or proved, in conformity with the laws of such other State, by any legal mode of proving that fact. The foreign statute being proved, the certificates of acknowledgment will show for themselves whether they conform to it, and nothing more is needed, if such conformity is thereby shown.
    3. Same—will pass husbandis title, if his wife does not join in its execution. In an action of ejectment a deed was offered in evidence purporting to convey the land of a man, in which a woman joined in its execution. ' It was objected that it was not properly shown that the woman was the wife of the grantor: Held, that the objection was trivial, as the deed would pass the legal title of the husband, though his wife did not join in its execution.
    ■ 4. Tax title—what objections may be made without proof of the payment of all taxes. Where a tax title is set up in defence to an action of ejectment, the plaintiff may Object to the want of a sufficient judgment, precept or deed, without first showing that all taxes due upon the land have been paid.
    5. Same—must be based on a valid judgment and precept. A tax deed, when relied upon as title, is void, and not admissible in evidence, unless it is supported by a valid judgment and precept. The precept, though not technically process within the constitutional provision requiring all process to run in the name of the People, performs the office of an execution, and is the authority under which the officer sells.
    6. Same—sufficiency of precept. A precept for the sale of lands for taxes, issued in 1837, under a judgment for the taxes of 1836, under which land was sold, was not signed or sealed by the county clerk, and had no certificate of his attached thereto at the time of the sale: Held, that the precept was void, and that no title passed by the sale and subsequent deed, and that an amendment of the precept afterwards did not cute the defect, and render the sale valid.
    7. Same—amending precept. A precept for the sale of land for taxes, though not technically process, but answering the place and performing the office of an execution, should, in respect of amendments, be governed by the same rule applicable to the amendments of executions. Its amendment should not be allowed without notice to the owner whose land was sold, and it seems this should not be allowed at all after the time of redemption has expired. If absolutely void for want of the signature of the clerk and the seal of the court, it is not amendable.
    8. Where a preoept is a nullity, for any cause, the collector has no authority to sell land under it. His act of selling is a nullity, and a purchaser can base no right thereon; and if no right passes at such sale, no subsequent amendment of the precept can relate back and cause something then to pass, or of itself divest one man of his title and invest it in another. .

      Appeal from the' Circuit Court of Ford county; the Hon. Franklin Blades, Judge, presiding.
    Mr. Calvin H. Frew, for the appellant:
    The first error assigned is, that the appellee did not put himself in position to question any of the tax proceedings in this ease. The statute then in force required that the plaintiff below should show that she “was the owner of the land at the time of the sale,” and that all taxes due upon the land have been paid by such person, (chap. 89, sec. 73, Gross’ Stat. p. 575, sec. 15,) which was not done. Curry v. Hinman, 11 Ill. 420.
    The court erred in excluding the copy of the delinquent list, judgment and order of sale, and the certificate thereto by the county clerk, attached by leave of the county court.
    As to the authority of the court to allow the amendment, counsel cited Rev. Stat. chap. 7, secs. 6, 7, 8, 9; Doty v. Colton, 90 Ill. 453; Cairo and St. Louis R. R. Co. v. Holbrook, 72 id. 419; Church v. English, 81 id. 442; Dunham v. South Park Comrs. 87 id. 185; May v. People, 92 id. 343; Grassly et al. v. Adams, 71 id. 550; Chicago Planing Mill Co. v. Merchants’ National Bank, 86 id. 587.
    The copy of the judgment order is in no sense process. Curry v. Hinman, 11 Ill. 420.
    In this case, J. T. Wilson was a bona fide purchaser, and had nothing to do with the irregularities of the officers. Phillips v. Coffey, 17 Ill. 154; Rorer on Judicial Sales, secs. 139, 589, 659, 661; Durham et al. v. Heaton, 28 Ill. 264; Goodwin et al. v. Mix, 38 id. 116; Iverson v. Loberg, 26 id. 179; Kruse v. Wilson, 79 id. 233; Stow v. Steel, 45 id. 333.
    These authorities sustain the doctrine the omission of the clerk was a mere irregularity, and that, in this case, can not be attacked collaterally.

      The court erred in admitting the hook as evidence of the statute of Ohio. There was no sufficient proof or compliance with our statute.
    The certificates of acknowledgment do not certify that Emily S. Bruce is the wife of Cosmore G. Bruce—a like defect in Key’s deed.
    Mr. M. H. Cloud, for the appellee:
    The statute book of Ohio was properly admitted in evidence. Bev. Stat. 1874, p. 490, sec. 10; Charlesworth v. Williams, 16 Ill. 338; 1 Greenleaf on Evidence, sec. 489.
    The claim that the Ohio statute required the officer to certify that Emily S. Bruce was the wife of Cosmore G. .Bruce, ’is not supported by’the statute. A tax title, if a title at all, is so stricti juris. Altes v. Hinckler, 36 Ill. 267.
    The precept under which the sale was made was not certified by the clerk, as required by the statute. (1 Gross’ Stat. 1873, pp. 604, 605, sec. 164.) It performs the same office as an execution. Pitkin v. Yaw, 13 Ill. 252.
    An execution without a seal is void. Davis v. Ransom et al. 26 Ill. 200.
    An amendment will not be allowed after such a lapse of time. O’Conner v. Wilson, 57 Ill. 226.
    The amendment of the precept was unauthorized. An execution is-not amendable, if void. McCormick v. Wheeler, 36 Ill. 122.
    Material amendments are not allowed at a subsequent term of the court. Lilly v. Shaw, 59 Ill. 72; Lill v. Stookey, 72 id. 295.
    The amendment was made without notice to the appellee. Such an amendment is void. Swift v. Allen, 55 Ill. 303; Bryant v. Vix, 83 id. 14; Massachusetts Mutual Life Ins. Co. v. Kellogg, 82 id. 616; Gouch v. Patterson, 94 id. 525; Thrifts v. Fritz, 101 id. 457.

      A tax deed is void unless supported by a valid judgment and a valid precept. Hinman v. Pope, 1 Gilm. 141; Atkins v. Hinman, 2 id. 437; Pitkin v. Yaw, 13 Ill. 252; Bailey v. Doolittle, 24 id. 579; Holbrook v. Dickinson, 46 id. 286; Wilding et al. v. Horner, 50 id. 50; Williams et al. v. Underhill, 58 id. 138; Gage v. Lightburn et al. 93 id. 248.
    It is a settled principle of the common law that a party claiming title under a summary and extraordinary proceeding must show that all the indispensable preliminaries to a valid sale, which the law has prescribed, have been complied with, or the conveyance to, him will pass no title. Garrett v. Wiggins, 1 Scam. 131; Conway v. Cable et al. 37 Ill. 88; Fischer v. Eslaman, 68 id. 78.
    The statute has never been held to require a party to show payment of taxes before objecting to the proceedings, where the tax proceedings are not sufficient to show a prima facie title in the grantee in the tax deed. Spellman v. Curtenius, 12 Ill. 412; Wilson v. McKenna, 52 id. 48.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was ejectment, by Susan Connelly, against Thomas Eagan, in the Gireuit court of Ford county, for the west half of the south-east quarter of section 25, in township 28 north, range 9 east, of the third principal meridian, in that county. Judgment was given for the plaintiff, and the case is brought here by the appeal of the defendant.

Plaintiff gave in evidence, upon the trial, a patent from the United States to Cosmore G. Bruce, a deed from Bruce and wife to Ell N. Keys, and a deed from Keys and wife to plaintiff, all embracing the land in controversy. Defendant objected to the reading of these deeds in evidence, upon the ground that the acknowledgments do not show that the grantors were personally known to the officer taking the acknowledgment. Both deeds were executed and acknowledged in the State of Ohio, and upon this objection being made, plaintiff offered in evidence a book, the title page whereof reads thus: “Statutes of Ohio—By authority of the General Assembly— In force August 1st, 1854—Published in pursuance to the act of the General Assembly of April 18th, 1854.” And plaintiff then also offered in evidence chapter 34, page 309, thereof, relating to the acknowledgment, etc., of conveyances. Defendant objected to this evidence, but the court overruled the objection, and permitted the statute to be read in evidence; and the court also, after the reading of this evidence, permitted the deeds to be read in evidence. Exception was taken to this ruling, and it is now assigned for error. No question is made but that the deeds were acknowledged as required by the statute read in evidence, and it will therefore be unnecessary to compare the acknowledgments with the requirements of the statute. We think the evidence was properly admitted. Section 10, chapter 51, of the Revised Statutes of 1874, page 490, provides that “the printed statute books * * * of the several States * * * purporting to be printed under the authority of * * * said States, * * * shall be evidence in all courts and places in this State of the acts therein contained.” And it is provided by section 23, of chapter 30, of the Revised Statutes of 1874, page 277, that “all deeds, conveyances, and powers of'attorney for the conveyance of lands lying in this State, which have been or may be acknowledged or proved * * * in conformity with the laws of any foreign State, * * * shall be deemed as good and valid in law as though acknowledged or proved in conformity with the existing laws of this State. ” And section 22 provides that “any legal mode of proving that the same is executed in conformity with such foreign law may be resorted to in any court in which the question of such acknowledgment may arise.” The statute being proved, the certificates of acknowledgment show for themselves whether they conform to it, and nothing more is needed.

An objection is also made that the women joining in the acknowledgments are not properly shown to be the wives of the grantors. This is trivial. The deeds would pass the legal'title though the wives did not join in their execution. The only object in having them join is that they may release their rights of dower, which is of no consequence whatever in this suit.

The defence interposed was a judgment and sale for taxes, and a deed thereunder, and plaintiff made certain objections thereto, to be hereafter noticed. Defendant, however, contends these objections can not be considered, because plaintiff did not show that all taxes due upon the land had been paid by her. This will not avail as against the objections here interposed. All persons may object to the want of a sufficient judgment, precept or deed. Spellman v. Curtenius, 12 Ill. 412; Wilson v. McKenna, 52 id. 48.

The judgment relied upon by defendant was for the delinquent taxes for the year 1866. The record of the lands and town lots against which the judgment was rendered, and upon and by virtue of- which the land in controversy was sold, was not signed or sealed by the county clerk, nor did it have any certificate of his attached thereto at the time of the sale; but on the 4th of April, 1883, nearly sixteen years after the sale, the county court made an order that lames S. Frederick, who was county clerk at the time of the sale, be granted “leave to attach the proper form of the clerk’s certificate authenticating the record,” etc., and the certificate was thereupon attached. The court, upon the trial, excluded the record so amended as evidence, and held no valid precept authorizing the sale was shown. The statute in force at the time of the rendering of the judgment and the making of the sale provided: “The clerk of the county court shall, before the day of sale, make a correct record of the lands and town lots against which judgment is rendered in any suit for taxes due thereon, and which shall set forth the name of the owner, if known, the description of the property, and the amount due on each tract or lot, in the same order as said property may be set forth in the judgment book, and shall attach thereto a correct copy of the order of the court, and his certificate of the truth of Such record, which record, so attested, shall hereafter constitute the process on which all real property shall be sold for taxes, as well as the sales of such property.” 1 Purple’s Stat. sec. 164, page 604.

It is true, as contended by counsel for the defendant, in Curry v. Hinman, 11 Ill. 420, it was held that a precept, substantially as required by the foregoing language, was not process, within the meaning of the 7th section of the 4tli article of the constitution of 1848, and need not run in the name of the People; but this related only to the technical name of the instrument, and had no reference whatever to its effect. In Pitkin v. Yaw, 13 Ill. 251, in an action of ejectment to recover possession of certain lands by virtue of a deed claimed to have been made pursuant to a sale for taxes, it was held the record,was properly excluded for want of a valid precept, and it was said: -“A party claiming title by virtue of a sale for taxes must show a valid judgment against the land, a precept authorizing the sale thereof, and a sheriff’s deed to the purchaser or his assignee. The precept is the authority under which the sheriff makes the sale. It performs the same office in this respect as an execution on an ordinary judgment.” This court has many times held that a tax deed is void unless it is supported by a valid judgment and a valid precept. Hinman v. Pope, 1 Gilm. 141; Baily v. Doolittle, 24 Ill. 577; Holbrook v. Dickinson, 46 id. 285; Wilding et al. v. Horner, 50 id. 50; Williams et al. v. Underhill, 58 id. 137; Gage v. Lightburn et al. 93 id. 248. Although, therefore, not technically process, it answering the place and performing the office of an execution, should, in respect of amendments, be governed by the same rule applicable to the amendments of executions. The amendment ought not, in any event, to have been allowed without notice to the opposite party. But this is of but minor importance.

It is too obvious to require argument, that without the certificate of the clerk, as required by the statute, the record made up constituted no precept. This was as indispensable as his attestation to an execution. As we said in Sidwell v. Schumacher, 99 Ill. 426: “Where the law expressly directs that process, ”—and we may here add, that which stands in the place and performs the office of process,—“shall be in a specified form, and issued in a particular manner, such a provision is mandatory, and a failure on the part of the official whose duty it is to issue it, to comply with the law in that respect, will render such process void.” And from this it logically follows, no subsequent amendment can relate back to and make valid a sale made under and by virtue of such void process,—and so we held in that case. There having been no precept at the time of the sale, the collector had no authority to make the sale. His act was a nullity, and the purchaser could base no right thereon. If no right passed at the sale, no subsequent amendment could, by relation, cause something to then pass, or of itself divest one man of his title and invest it in another. Were it possible to give an amendment such an effect, it would, in such cases, deprive a party of his right of redemption, for he could not be expected to exercise it so long as nothing passed by the pretended sale. See Cooley on Taxation, 242, and cases cited in note 1.

Our conclusion is, the record was properly excluded, and the judgment must, therefore, be affirmed.

Judgment affirmed.


text:
    Martin Holman v. Lee M. Gill et al.

      Filed at Springfield October 1, 1883.

    1. Partition—decree as to a part of the owners no bar to a second bill. It is a fundamental doctrine of the law of partition that all co-tenants must be made parties to the proceeding, otherwise the decree will be no bar to a second partition, at the suit of the omitted parties.
    2. Same—may be had, subject to life estate. The fact that a widow may have a life estate in premises left by her husband as an estate of homestead or dower, is no bar to proceedings for partition of such premises between the heirs. Like any other intervening life, estate, it could only postpone the possession of the reversion until its termination.
    3. Seizin in fee—what constitutes—heir is seized, though subject to dower in land. A bill for partition charged that upon the death of a person his children, eight in number, became seized in fee simple, as tenants in common of certain real estate, of an undivided one-eighth share each, while the proof showed the estate of the children was subject to the widow’s dower and homestead: Held, that there was no variance, as the heirs, in technical language, were severally seized in fee of their respective shares.
    4. Homestead—as against heirs. Where an owner of real estate died, in 1865, leaving a widow and children, it was held that the widow, under the law then in force, had no homestead in the premises as against the heirs.
    5. Practice—when to take an objection—as to variance. If a party desires to raise the question, in this court, of variance between an allegation in a bill in chancery and the proof offered, he should make the same specifically in the court below, so as to afford an opportunity to obviate the same by amendment.
    6. Sajie—when specific objection necessary. A general objection to the evidence offered is not sufficient to raise the question of variance, but is regarded as going to the competency of the evidence. Equity always looks to the real substance of matters put in evidence, and will disregard mere technical objections that do not affect the merits of the controversy, and which might readily be removed if the attention of the opposite party or of the court had been called to them.
    7. Allegations and proofs—variance—when immaterial. A bill seeking the partition of real estate by a purchaser under execution of the interest of two out of eight heirs, alleged that the sheriff levied upon the lands above described, while the levy was only upon the undivided two-eighths thereof: Held, that the variance was clearly immaterial.

      8. A party claiming as a purchaser under a judgment and execution sale and sheriff’s deed, as against two of eight co-tenants, in his bill for partition alleged that he recovered judgment against such two tenants in common for $121, and costs of suit, whereas the proof showed the judgment was for $121.35. There was no proof showing the existence of any other judgment against the same parties in favor of the complainant: Held, that in a court of equity, where the substance and real merits are looked to more than to literal accuracy, the variance was not such as to defeat a partition.
    9. Judicial sale—and title thebeundeb—defective return on execution. The title of a purchaser at an execution sale can not be defeated by the failure of the sheriff to make a proper return of the execution, or, indeed, by a failure to make any return whatever. The purchaser’s title depends on a valid judgment, execution, levy, and a sheriff’s deed appearing on its face to have been made by virtue of a sale under such judgment and execution.
    10. Same—variance between certificate of purchase and sheriff’s deed. A certificate of purchase showed that a purchaser bid for certain lots, and not for two-eighths interest in them, which alone was levied on, but it showed that the sheriff offered for sale the undivided two-eighths of the lots. The sheriff’s deed recited that the sheriff levied on the lands thereinafter described, and the same were struck off to the grantee, and then proceeded to convey to him two of the lots, described by their numbers, and the undivided two-eighths of the other two lots: Held, that these discrepancies, both in the certificate of purchase and sheriff’s deed, were not fatal to the title of the purchaser.
    11. Shebiee’s deed—statute requiring amount of judgment to be stated, construed. The statutory provision which prescribes the form of a sheriff’s deed, so far as it requires the amount of the judgment to be inserted in the deed, is merely directory. It is sufficient if it clearly appears that the deed is made by the officer in his official capacity, and in consummation of the legal proceedings upon which it is founded, with such references to the proceedings themselves as that they may be readily found and identified.
    12. A sheriff’s deed to H. of land, recited that H., at the August term of the circuit court of Macon county, recovered a judgment against A B and 0 D, for the sum of “one hundred and twenty-one-and costs of suit,” upon which judgment an execution was issued, dated September 21, 1866, directed to the sheriff of Macon county to execute: Held, that in the absence of proof that H. had any other judgment in that court against the same parties, there was no doubt as to the judgment referred to, and that the deed was not invalid on account of the omission of the word “dollars,” in the blank.
    Appeal from the Circuit Court of Macon county; the Hon. C. B. Smith, Judge, presiding.

      Messrs. Outten & Vail, for the appellant:
    It is contended that appellant is estopped, hy reason of his presence and silence at the master’s sale, from now claiming any interest in the property. A master’s sale in a partition proceeding is a judicial sale, and the rule of caveat emptor applies. McManus v. Keith et al. 49 Ill. 388; Bassett v. Lockard, 60 id. 164.
    A purchaser at a judicial sale is hound to know the title. England v. Clark, 4 Scam. 486; Owings v. Thompson, 3 id. 502; Bishop et al. v. O'Connor et al. 69 Ill. 431; Walden v. Gridley, 36 id. 523.
    The sheriff’s return to the execution is immaterial. Phillips v. Coffee, 17 Ill. 154; Kinney v. Knoebel, 47 id. 417.
    The certificate of purchase has no necessary connection in the chain of title.
    The omission of the word “dollars,” in that part of the sheriff’s deed which recites the judgment, is a mere clerical error of an officer.
    The sheriff’s deed could convey only the interest of the Gill heirs. The deed purporting to convey all the lots must include the lesser interest—an undivided interest, which is included in the whole. Fisher v. Eslaman et al. 68 Ill. 78.
    It is sufficient if the sheriff so recites the judgment that it may he fully identified. Hayes v. Bernard, 38 Ill. 297; Loomis v. Riley, 24 id. 307; Phillips v. Coffee, 17 id. 154; Durham v. Heaton, 28 id. 264; Swiggart v. Harber, 4 Scam. 364; Stow v. Steel, 45 Ill. 328; Kinney v. Knoebel, 47 id. 417 ; Jackson et al. v. Spink, 59 id. 404.
    Mere non-compliance with the statute hy the officer does not of itself make the sale a nullity.- Rev. Stat. 1845, p. 302, sec. 11.
    The purchaser has the right to rely upon the judgment, execution and levy upon the property, and his deed. He can not he affected hy an imperfect return, or hy the fact that no return whatever was made. The statute says that the deed shall be evidence that the law has been complied with, until the contrary be shown. Phillips v. Coffee, 17 Ill. 154; Doe ex dem. Wolf v. Heath, 7 Black, 154; Wheaton v. Sexton’s Lessee, 4 Wheat. 503; Kinney v. Knoebel, 47 Ill. 417.
    It has been fully settled by this court, in cases somewhat . analogous to the present ease, that a sale under the circumstances is only voidable; can only be corrected by the defendant in the execution; that he must act promptly, and that it can not be disturbed in a collateral proceeding. Swiggart v. Harber, 4 Scam. 364; Phillips v. Coffee, 17 Ill. 154; Wimberly v. Hurst, 33 id. 166; Fergus v. Woodworth, 44 id. 374; Hamilton v. Quimby, 46 id. 90; Nixon v. Cobleigh, 52 id. 387; McConnell v. Gibson, 12 id. 128.
    Mr. J. A. Buckingham, and Mr. W. C. Johns, for the appellees:
    When there is a variance between the allegations of the bill and 'the proofs, the complainant must fail. McKay v. Bissett, 5 Gilm. 499; White v. Morrison, 11 Ill. 361; Rowan v. Bowles, 21 id. 17; Chaffin v. Heirs of Kimball, 23 id. 36; Fish v. Cleland, 33 id. 238; Bush v. Connelly, id. 437; Ohling v. Luitjens, 32 id. 23; Fergus v. Tinkham, 38 id. 407.
    When tenants in common, or joint owners, hold property incumbered or burdened, either may take up outstanding title, or make advances to preserve title or save property from destruction; and the one not doing so, seeking partition, must offer to contribute. Wilton v. Tazewell, 86 Ill. 29 ; Louvalle v. Menard, 1 Gilm. 39; Harvey v. Goings, 13 Ill. 108; Dean v. O’Meara, 47 id. 120; Kurtz v. Hibner, 55 id. 514.
    There should be entire uniformity in the return to the execution, the certificate of sale, and the deed, where real estate is sold, or the sale will he invalid. Dickerman v. Burgess, 20 Ill. 267; Johnson v. Adleman, 35 id. 265; Kinney v. Knoebel, 47 id. 417; Harmon v. Larned, 58 id. 167; Johnson v. Baker,
      38 id. 102; Johnson v. Bantock, id. 111; Herman, on Executions, 476, 477.
    It is necessary the sheriff’s deed should recite the judgment upon which execution was issued and sale had. Gross’ Stat. 1869, p. 3S1, sec. 22.
    If one so far countenance the sale of his own property as to stand by and see it sold by the sheriff or other officer as the property of, and on execution against, another, without objecting to the sale, he will be estopped to deny the validity thereof as against a Iona fide purchaser. Rorer on Judicial Sales, 164; Epley v. Witheren, 7 Watts, 163; Carr v. Wallace, id. 394; Read v. Heasley, 2 B. Mon. 254; Markham v. O’Connor, 52 Ga. 183.
   Mr. Justice Mulkey

delivered the opinion of the Court:

John Gill, on the 19th of March, 1865, died intestate, leaving a widow and eight children. At the time of his death he was the owner in fee of lots 8 and 9, in block 2, of Plant & Tuttle’s addition, and lots 5 and 6, in block 8, of Smith & Co.’s addition, to the city of Decatur, this State, being the same property now in controversy. The lots in question constituted the homestead of the deceased, and continued to be occupied by the widow as such after his death, without any allotment of her dower. In August, 1866, Martin Holman, the appellant, recovered in the Macon circuit court a judgment against John and William Gill, two of the children and heirs of the deceased, for the sum of $121.35, which became a lien upon their interests in the lots. An execution was issued upon the judgment on the 21st of September, in the same year, which, in the month of October following, was levied by the sheriff on the undivided two-eighths of said lots. The execution was subsequently returned with the following indorsement thereon:

“This execution, satisfied in full by sale of real estate to Martin Holman, on the 3d day of November, 1866, all costs paid clerk, except my own.

A. A. Murray, Sheriff.”

No redemption having been made from said sale, John. E. Jones, the then sheriff of Macon county, and successor in office of Murray, on the 24th of February, 1868, executed to Holman a deed, in the usual form, for said lots 8 and 9, and for the undivided two-eighths of lots 5 and 6. It also appears that in pursuance of a decree of the circuit court of Macon county, rendered in a partition proceeding, at its December term, 1876, said lots were sold at public vendue to Lee M. Gill, one of the present appellees, who received a master’s deed therefor in pursuance of the sale. Clinton Payne, the remaining appellee, purchased one of these lots of Lee M. Gill, and claims title through him. It is conceded appellant was not made a party to the partition proceeding, and that the rights of the other heirs to the lots in question have, by virtue thereof, become extinguished. On the 29th of April, 1881, appellant brought the present bill for a second partition of the same lots, making the said John M. Gill and Clinton Payne parties. The court, upon the hearing, found the equities with appellees, and rendered a decree dismissing the bill, to reverse which Holman brings this appeal.

It is a fundamental doctrine of the law of partition that all co-tenants must be made parties to the proceeding, otherwise "the decree will be no bar to a second partition at the suit of the omitted parties. (Freeman on Co-tenancy and-Partition, sec. 463.) We do not understand this view of the law to be controverted; but the contention of appellees, if we do not misapprehend counsel, is, first, that the proceedings under the judgment against John and William Gill, through which appellant claims title to two undivided eighths of the land in controversy, were so irregular and defective that appellant took nothing by them; and second, that, conceding his title to be good, the allegations in his bill with respect to those proceedings are fatally variant from the proofs,—hence it is concluded the bill, on either ground, was properly dismissed on the hearing. We do not think either of these positions tenable. In the presentation of our views we shall confine ourselves to such of the questions discussed in appellees’ brief as we deem worthy of notice, and in doing so shall pursue, substantially, the same order there observed.

The first point made by appellees is, that the bill charges upon the death of John Gill his “children became seized in fee simple, as tenants in common of said premises, of an undivided one-eiglith share each, ” while the proofs show the premises on his death were subject to the widow’s dower and homestead. We discover no variance in this. There were eight of the children, and they consequently took an undivided eighth part, each, in their father’s real estate, including these lots. The interest thus taken was a present vested interest, subject to no contingency whatever, and of indefinite duration, hence, in technical language, the heirs were severally seized in fee of their respective shares or interests, and the mere fact the estate was subject to the widow’s dower made no difference in this respect. As to the homestead, there was none, as against the heirs, as the law then stood. But suppose there had been, that would have made no difference. Like any other intervening life estate it would only have postponed the possession of the reversioner in fee till its termination.

It is next objected the bill avers that complainant recovered a judgment against William and John Gill for $121, and costs of suit, whereas the proofs show the judgment was for $121.35, thus making a difference of thirty-five cents between the amount of the judgment as charged and proved. We do not think a variance like the one shown,—where it is clear, as it is here, no one could have been misled or otherwise injured by it,—should be visited with consequences so fatal as to defeat the right of recovery in a mere collateral proceeding like this, especially in a court of equity, where the substance of an aveyment, rather than its literal accuracy, is always looked to. The substance of the charge in the bill in this case is; that Holman had recovered a judgment against two of the owners of these lots for as much as $121, and the mere fact it was for a few cents over that sum is of no consequence, especially in the absence of all evidence tending to show there were more judgments than one, or that appellees had been in any way misled by it. No specific objection was made to the introduction of this judgment when offered in evidence. Had the objection now urged been then made, the bill would doubtless have been at once amended, and thereby removed all real or apparent cause for complaint on the ground suggested. Under such circumstances we are not inclined to encourage objections of this character, when made, as this one is, for the first time in this court. The general objection made at the time, without assigning any reason upon which it was based, can only be regarded as going to the competenej' of the evidence, and for the purposes of the question now before us must be treated as if no objection had been made at all. While chancery procedure does not, perhaps, enforce rules governing the production of testimony with the same strictness which obtains in courts of law, or visit an infraction of them with the same serious consequences that uniformly- attend their non-observance in those courts, yet anything like culpable negligence or a willful disregard of those rules meets with as little favor in a court of equity as in a court of law. Equity always looks to the real substance of matters put in evidence, and will disregard mere technical objections that do not affect the merits of the controversy, and which might readily be removed if the attention of the opposite party, or of the court, had been called to them. Stow v. Steel, 45 Ill. 328; Beaver v. Slanker, 94 id. 175; Newman v. Willitts, 60 id. 519.

It is well settled the title of a purchaser at an execution sale can not be defeated by the failure of the sheriff to make a proper return, or indeed, by a failure to make any return whatever. The purchaser’s title depends on “a valid judgment, execution and levy, and a sheriff’s deed appearing on its face to have been made by virtue of a sale under such judgment and execution.” Kinney et al. v. Knoebel, 47 Ill. 417; Phillips v. Coffee, 17 id. 154; Loomis v. Riley, 24 id. 307.

It is further objected that the execution was levied on the undivided two-eighths of all these lots, while the bill charges ■the sheriff, by virtue of the execution, levied upon the lands above described. The variance in this respect is clearly immaterial. The averment the lots were levied on, fully warranted proof that the interests of the defendants in the execution were levied upon. The allegation was simply a little broader ■than the proof, but there was not such a repugnancy between the two as to require a rejection of the proof. The certificate of purchase shows that Holman bid for the lots, and not for the two-eighths interest in them, which alone was levied on, while, on the other hand, it shows the sheriff offered •for sale the undivided two-eighths of said lots, and not the ■lots themselves. Similar discrepancies occur in the sheriff’s deed. It recites, the sheriff, by virtue of the execution, levied on the lands thereinafter described, and the same were struck off to Holman, and then proceeds to convey to him lots 8 and 9, and the undivided two-eighths of lots 5 and 6. These discrepancies, both in the certificate of purchase and sheriff’s deed, are relied on by appellees as fatal to appellant’s right to the relief sought by his bill. Tor reasons already stated, we do not think they should have that effect.

The remaining objection which, we shall notice, is the fact the sheriff’s deed fails to recite the amount of the judgment upon which the execution issued. This objection, we confess, on first impression struck us with considerable force, principally on the ground the form prescribed by the statute requires the amount of the judgment to be so inserted in the sheriff’s deed; but upon more mature consideration we are very clear there is nothing in the objection. The statute in this respect, according to the general current of authorities, is directory merely. The amount of the judgment, which is usually recited in a sheriff’s deed, is but one of the numerous means by which its execution is traceable to the proper source. It is sufficient in all cases if enough appears to clearly and unmistakably show that the deed is made by the officer in his official capacity, and in consummation of the legal proceedings upon which it is founded, with such reference to the proceedings themselves as they may be readily found and identified. (Borer on Judicial Sales, secs. 1011— 1014.) In the present case, notwithstanding the omission of the amount of the judgment in the recitals of the deed, sufficient remains to clearly point out the judgment and execution upon which the deed is based. It sets forth, by way of recital, that “Holman, at the August term, 1866, of the circuit court of Macon county, recovered a judgment, against William H. and John N. Gill for the sum of one hundred and twenty-one-and costs of suit, upon which judgment an execution was issued, dated on the 21st day of September, 1866, directed to the sheriff of Macon county to execute,” etc. With this reference, in the absence of any evidence tending to show that Holman had any other judgment in that court against the same parties, and in the absence of any claim to that effect, there clearly can be no doubt as to what judgment was intended, and no want of means by which to identify it. When this is accomplished, all the requirements of the law are met. It is manifest the want of the word “dollars,” in the recital contained in the sheriff’s deed, is a mere clerical omission, that any one with ordinary sense and business experience would readily supply from tbe context with almost absolute certainty, hence it is highly improbable that any one could be misled by it. But if this were not so, when the recital is taken as a whole it points so unerringly to the judgment itself, the omission is fully supplied by the reference. Id cerium est quod cerium reddi potest. . .

In this case it is clear and unquestioned that Holman obtained a valid judgment against William and John Gill for $121.35, together,with costs of suit, and that this judgment was an existing lien on their interests in the lots in controversy ; that a valid execution was duly issued on the judgment and placed in the hands of the sheriff, who levied the same upon the undivided two-eighths of said lots. So far there is no question as to the validity or regularity of the proceedings. As to the remaining portion of the proceedings, culminating in a sale and sheriff’s deed to Holman, they are entirely regular, except in the respects already mentioned. As to lots 5 and 6, there is scarcely the slightest pretext for questioning the appellant’s title to a two-eighths interest in them. As to them, a two-eighths interest was levied upon, offered for sale, and conveyed by the sheriff’s deed, so that the title to these lots, to the extent stated, must in any event be regarded as good.

Most of the objections urged against the proceedings seem to us of a highly technical character, which surely does not commend them to a court of equity, and the question now is, shall the slight discrepancies and variances in question be held by a court of equity, which looks mainly to the real justice and merits of a cause, to defeat appellant’s title altogether? We can not give our sanction to such a conclusion. On the contrary, we hold the two-eighths interest in these lots having been levied upon and sold under a valid execution, followed by a sheriff’s deed for the lots, passed to Holman John and William Gill’s two-eighths interest in them; and it follows, Holman had the right to have the premises, partitioned in the manner proposed, and we have no doubt of the sufficiency of the averments in the bill to .warrant the relief prayed.

The judgment of the circuit court of Macon county is therefore reversed, and the cause remanded for further proceedings in conformity with the views here expressed.

Judgment reversed.