author: Mr. Justice Shore

text:
    The P. C. Hanford Oil Company et al. v. The First National Bank of Chicago.

      Filed at Ottawa October 2, 1888.

    1. Insolvent lebtoks—powers and jurisdiction of county court—in case of voluntary assignment. Where a voluntary assignment is made under the statute, and the property has passed into the hands of the assignee, the property is thereby brought under the administrative control of the county court, and that court is invested with ample power and jurisdiction to make all orders in respect thereof necessary to the distribution under the law, and to that end to adjudicate upon,and determine the conflicting rights of claimants thereto.
    2. Same—assignee—Ms relation as between debtor and creditor. The assignee, in cases of voluntary assignments for the benefit of creditors, is not the representative of the creditors, but the agent of the assignor for the distribution of the property, and the assignee’s agreement with one creditor will in no way bind or conclude another creditor.
    3. Same—priorities among creditors—adjusted by county court. The' county court has the power to determine whether certain executions have or have not the prior lien, and entitled to be first paid out of the debtor’s estate, and make all proper orders to protect the rights of all parties in interest.
    4. Same—preferences among creditors. Notwithstanding the Voluntary Assignment act, a debtor, though insolvent, may still secure, by mortgage or confession of judgment, or otherwise, a bona fide indebtedness, if done in good faith, and not in contemplation of making an assignment under that act.
    5. Where the debtor enters upon a course of conduct having for its object the disposition of all his estate for the benefit of his creditors, and, as part of the plan by which to effect that object, executes a general assignment, the distribution must be to his creditors in proportion to the amounts of their respective claims. If he takes steps whereby to give one creditor preference over another, his action will be fraudulent and void.
    6. A debtor had, on October 13,1884, given his note to a bank, which authorized the entry of judgment by confession at any time the payee might think proper, and it was agreed that the maker should give the bank timely notice in case of financial distress, so that it might take measures to secure itself. On December 15, 1884, the debtor had prepared a general assignment of his property, which was not, however, executed until on the 17th. Shortly before the execution of the assignment, the bank was notified of financial trouble and of the proposed assignment, and in consequence of such information took'a judgment by confession, and had a levy made on the debtor’s property before possession taken by the assignee: Held, that the judgment in favor of the bank, and the levy of its execution, were fraudulent as against the other creditors, and gave no priority in favor of the bank.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Gwynn Garnett, Judge, presiding.

      The firm of Ferris & Avery were merchants doing business in Chicago. On the 13th day of October, 1884, they being in good credit, though really insolvent, borrowed of the appellee bank $1600, and gave their note at ninety days, accompanied with a power of attorney to confess judgment thereon at any time before or after the note became due. Counsel for appellee, in his statement of facts, says: “There was a more or less definite understanding between the bank and Ferris & Avery, antedating this particular loan, and not specifically referring to it, that if, at any time, the firm got into financial trouble, the bank should be informed in time to have opportunity to get the benefit of its security by entering judgment.” This statement is substantially in accordance with the evidence.
    On the 11th day of December, 1884, Ferris & Avery, being pressed by creditors from abroad, consulted their attorney, who decided they could not go on, and advised an assignment, to which the debtors assented, but were anxious to prefer certain of their creditors, especially the appellee bank, and the Merriam & Morgan Paraffine Company, to which they owed something over $5000. Their attorney advised against making preferences, and a deed of assignment was ultimately prepared so as to show no preference. The assignment was prepared Monday, the 15th day of December, 1884, but was not executed or delivered until the 17th. On the 15th the assignee was called in, and ■ consented to serve as assignee. On the 16th (Tuesday) the debtors gave to the Paraffine Company a judgment note for $5700, due one day after date, but upon consultation it was concluded that this note might bear days of grace, and would not be available for immediate use. Some discrepancy also existed between the amount of this note and the actual sum due, so that on the morning of the 17th of December another note, payable on demand, with like power, was substituted.
    About one o’clock of Wednesday, the 17th day of December, one of the debtors went to the bank and told its vice-president that they were in financial trouble. The attorney of the bank was called in and given the note of October 13, and, with the debtor, went to the office of the attorney acting for the debtor firm, and there met the debtors, their attorney, and the person named as assignee, and was told that Ferris & Avery “were in financial trouble, and were going to make an assignment that afternoon.” The matter of the insolvency of the firm and the assignment was there talked over, and the probable effect of the assignment upon the judgments taken upon said note was discussed. The attorney for the debtor firm refused to act for the Paraffine Company in entering up judgment, and their note, and appellee’s note, also, were given, to Mr. Hanesy, an attorney officing in the same building, to enter up judgments thereon, with the understanding that he should so conduct the business as to give priority to the judgment of appellee. The judgment on the bank note was entered at 3:50 o’clock P. M., and on the Paraffine Company note at 3 :55 o’clock P. M., and executions were immediately issued and delivered to the sheriff. Ten minutes later, at 4:05 o’clock P. M., the assignment, duly executed and acknowledged, was filed with the county clerk and in the recorder’s office. The assignee went immediately to insure the assets, as he says, , but in about twenty or thirty minutes after filing the assign- ¡ ment, went to the store of the debtors and found the sheriff in custody, under the said execution. On the next day (December 18) the assignee presented his petition, alleging that the entire assets of the firm were in the possession of the sheriff, admitting 'the prior lien of both of said executions, and representing that the estate would be prejudiced by a sale thereof by the sheriff, and praying for an order authorizing himself, as assignee, to pay off said executions, severally, out of the first money derived from the sale of the estate, upon condition that the execution creditors would consent to turn the assets into his hands. On the same day, the court, by consent of the assignee and of the bank and Paraffine Company, entered an order directing the sheriff to turn over the assets to the assignee, and ordering the latter to sell the estate, and first satisfy said executions, etc. Thereupon the entire estate was surrendered to the assignee.
    On the 3d day of January, 1885, other creditors of the insolvent, including appellants, representing over $18,000 of debts, petitioned the county court to modify the foregoing order, so as not to recognize the validity of said execution liens, and to reserve to the creditors the right to contest the same. On the 6th day of January, 1885, the court modified the previous order, reserving the “right of all parties in interest to question and contest the liens, executions and judgment in such (former) order mentioned,”' and granting leave to file a petition for that purpose. Under that leave, a petition, and subsequently an amended petition, were filed, setting up the facts, etc., showing, as alleged, that said judgments and execution liens were an unlawful preference, and praying that they be so declared, and that the assets be distributed pro rata among all the creditors of said insolvents proving their claims. Upon hearing, the court set aside so much of its order of December 18,1884, as recognized the lien of the execution issued on the judgment in favor of the Paraffine Company, but refused to modify it as to the lien in favor of appellee. From this last order the creditors appealed to the Superior Court of Cook county, where, on leave, an amended petition was filed, and, on hearing, an order was entered adjudging the execution of the lien in favor of appellee, for $1600, to be a valid first lien on the assets in the hands of the assignee, and ordering him to pay the same. The case is brought to this court by appeal from the Appellate Court.
    Messrs. Trumbull, Willits, Bobbins & Trumbull, for the appellants:
    The judgment to the bank was an unlawful preference. Preston v. Spaulding, 120 Ill. 217; Clark v. Iselin, 21 Wall. 374; Heineman v. Hart, 55 Mich. 76.

      Mr. Orville Peckham,' for the appellee.
   Mr. Justice Shore

delivered the opinion of the Court:

The principal question arising upon this record is, was the judgment of the appellee an unlawful preference, within the meaning of the 13th section of the Voluntary Assignment act. Preliminary, however, to the consideration of this question, "the power and jurisdiction of the county court to make any order affecting the lien of the execution issued on said judgment are challenged.

It is the settled law in this State, that when a voluntary assignment is made under the statute, and the property has passed into the possession of the assignee, the property is thereby brought under the administrative control of the county court, and that court is vested with ample power and jurisdiction to make all orders in respect thereof, necessary to its •distribution under the law, and to that end to adjudicate upon and determine the conflicting rights of claimants thereto. All •of the cases determined by this court in which this question is involved, since the Voluntary Assignment act went into effect, have gone to this extent. In one of the eases last-before the •court, (Preston et al. v. Spaulding et al. 120 Ill. 208,) while expressly holding that the act did not confer upon the county •court general chancery jurisdiction, the jurisdiction of the county court to adjudicate in respect of all conflicting claims to property in the hands of the assignee, as announced in previous cases, was expressly recognized, and those cases, in that respect, approved.

Counsel concedes the law to be as stated, but insists, if we ■accurately comprehend his point, that although the property was in the actual possession of the assignee, it could not be considered in his legal custody, for the reason that the judgment creditors were induced to consent to a surrender of the assets held by the sheriff under the executions on their judgments, by the entry of the order of December 18, 1884, by consent of the assignee, preserving the priority of their claims in the distribution of the estate by the assignee. The contention is without merit. Appellants had the undoubted right to contest the validity and priority of these judgments, and if it be conceded, as contended by counsel, that this could not have been done in the county court before the assignee had acquired possession of the estate, there was nothing to prevent its being done in a proper forum,—hence no substantial right of the judgment creditors was affected. Appellants were in no way bound by the agreement between appellee and the assignee, or by the consent given by the assignee. “The assignee is not the representative of the creditors, but the agent of the assignor for the distribution of the property.” (Bouton v. Dement, 123 Ill. 142.) The judgment creditors, with the assignee, invoked the jurisdiction of the county court in the entry of the order preserving the priority of their execution liens, which, under the statute, the court undoubtedly had power to enter; and in procuring and consenting to said order, appellee was required to know, that while the court retained jurisdiction, the order was subject to modification or to be set aside, and, upon proper application, it was the duty of the court to set it aside or modify it, if necessary to protect the rights of parties in interest, or to distribute the estate conformably to law.

That the note of October 13, 1884, given by the debtors to the bank, (appellee,) was for a bona fide debt owing by them to the bank, is not questioned; and the right of the bank, then, to take, and of the debtors to give, security, can not be denied. That the power of attorney to confess judgment was taken that judgment might be entered, and thereby priority given to the bank in the event of financial trouble to the debtor firm, is also established; and if appellee, in the exercise of diligence as a creditor of the failing firm, had taken judgment, and thereby secured an execution lien prior to the assignment becoming effective, no one would question its right to do so, or that the priority should be maintained.

Notwithstanding the Voluntary Assignment act, a debtor, though insolvent, may still secure, by mortgage or confession of judgment, or otherwise, a Iona fide indebtedness, if done in good faith, and not in contemplation of making an assignment under said act. When, however, the debtor enters upon a course of conduct having for its object the disposition of all his estate for the benefit of his creditors, and, as part of the plan by which to effect that object, .executes a general assignment, the distribution must be to his creditors in proportion to the amounts of their respective claims. This question was before this court in a case of very considerable importance, and there received full consideration; and we then, with entire unanimity, announced the doctrine, that any preference obtained by the creditor, by or through the acts of the debtor, after the debtor had determined to yield dominion of his estate by making a general assignment for the benefit of creditors, fell within the prohibition of the statute, and was therefore void. (Preston et al. v. Spaulding et al. supra.) All the acts of the debtor performed with the intent and for the purpose of effecting a disposition of all his property for the benefit of his creditors, are to be regarded as a single transaction, each constituting part of the general assignment of his assets under the statute. Beference is also made to Sartwell v. North, 144 Mass. 188; Sage v. Wyncoop, 104 U. S. 319; Winner v. Hoyt, 66 Wis. 227; Clapp v. Nordmeyer, 25 Fed. Rep. 71. In the ease last cited the authorities are collated, to which reference is made.

The doctrine announced by this court is, as said by counsel for appellee, “in accordance with established principles of construction,” as well as in line with the decided weight of authority. It is conceded that the law in this State is as stated, but it is insisted that the rule announced is not applicable to the case at bar, for the reason that the judgment note executed to appellee on the 13th day of October, 1884, “then gave appellee whatever advantage or preference the judgment, whenever taken in accordance with that power, would confer and it is said, an intention to assign, first formed months later, can not have the retroactive effect of making the advantage or preference thus obtained, an unlawful preference. It is also said, that although appellee was moved by the information from the insolvent debtors to enter judgment on said notes, such information having been given in pursuance of an understanding between the debtors and appellee that information of financial trouble would be given, the act of the debtors related back, in the same way the judgment note did, to a time anterior to the time when the intention to assign was formed, • and was therefore no part of the assignment. It is manifest, from what has been said, that this will depend upon whether the preference resulted from the act of the debtors after they had determined to make an assignment, or from the diligence of the creditor. It is undoubtedly true that the law favors the diligent creditor, and he is not debarred by the statute under consideration, from taking any steps that he might previously have taken to make'or secure his debt.

It is apparent from the record, that the debtors, although desiring to prefer appellee and certain other of their creditors, determined to make a general assignment for the benefit of all their creditors, on the 11th day of December, 1884,—that they were prevented from making preferences in the deed of assignment, by the advice of their counsel. The schedules and assignment were prepared by their attorneys, ready for execution, on the 15th day of the same month, but the assignment was not executed and delivered until the afternoon of the 17th. For the purpose of effecting a preference, as it is clearly shown, in favor of another creditor, the debtors, on the 16th of December, gave to the Merriam & Morgan Paraffine Company a judgment note for about $5700, due one day' after date. This note not being for the exact amount due said company, and it having been determined, on consultation, that it would probably bear days of grace, and therefore be unavailing for immediate use in entering judgment thereon, on the following morning (Wednesday, 17th,) another judgment note, payable on demand, was substituted therefor. The person chosen as assignee had been consulted as early as Monday, the 15th, and had consented to act. About one o’clock in the afternoon of Wednesday, the 17th, one'of the debtors went to the bank of appellee, and advised its vice-president that his firm was in financial trouble. The attorney of the bank was called in, given the note of October 13, 1884, and, with the debtor, went to the office of the attorneys acting for the debtor firm, and there met the debtors and their attorney, and -the person selected as assignee, and was told that Ferris & Avery “were in financial trouble, and were going to make an assignment that afternoon.” The matter of the debtors’ insolvency, and the proposed assignment, and the probable effect of the assignment upon the judgments entered upon the two notes mentioned, was then talked over, and it was then determined to enter said judgments that afternoon, in such manner as to give priority to appellee’s judgment over that of the Paraffine Company. It is also shown, that it was talked over, and understood, that the sheriff should levy executions issued on said judgments, and subsequently turn the property over to the assignee. Ferris testifies, “it was an understood thing that the sheriff should be relieved, and Tifft (assignee) take possession.” It is not shown, however, that the attorney of appellee participated in this last mentioned understanding. The judgment on appellee’s note was entered at 3 :50 o’clock P. M. on said 17th day of December, and on the Paraffine Company’s note five minutes later, on which judgments executions were immediately issued, and delivered to the sheriff; and ten minutes later, at 4:05 o’clock, the deed of assignment was filed for record. Instead of the assignee immediately taking possession of the assets of the insolvents, he went, as he claims, “to have the goods insured, and within twenty or thirty minutes reached the store of Ferris & Avery, and found .the sheriff in possession” under the executions. On the next day, in pursuance of the understanding testified to by Ferris, we find the assignee in the county court, recognizing the priority of both said execution liens, asking to be permitted to pay them in full out of the assets of the estate, and for an order on the sheriff to surrender to him the custody of ■the property in the sheriff’s possession, and the said judgment creditors consenting thereto. It is true, the attorney of appellee gives as the reason for his consent, that it was feared that if the entire estate was sold by the sheriff upon execution, sufficient would not be realized to pay both of said judgments, while in the hands of the assignee it could be more economically disposed of. It is conceded that up j;o the time when Ferris notified the vice-president of appellee that his firm was in financial trouble,—about one o’clock of the day on which the judgments were entered and the assignment filed,—the appellee had no notice of the condition of said debtor firm, or any intention whatever to enter judgment on its note, and it is apparent that appellee was put in motion solely by the affirmative act of the debtor in giving such notice.

It is manifest from the foregoing, that the fact that appellee’s judgment was entered in advance of the filing of the deed of assignment, was due to no diligence on the part of the creditor, but was the result of the expressed intention of the debtors to give a preference to appellee. But for the affirmative act of the debtors, the deed of assignment would have gone upon record, and the title to the estate vested in the assignee for ratable distribution among all their creditors. The simple question therefore is, does the fact that appellee took its judgment note with the understanding that the debtor, in case of financial trouble, should notify it, take the case out of the rule announced in Preston v. Spaulding.

It is conceded, as it must be, that by taking the judgment note no lien was thereby given to appellee, nor was any right or priority thereby acquired over the general creditor. Something more was required to effect priority,—the power given must be exercised. The vice of the contention consists in supposing that in some way, not easily understood, the creditor to whom the judgment note is given has some right, superior to other creditors, over or against the estate of the common debtor. If any such right existed, it would, from its very nature, necessarily be secret, and for that reason not favored by the law. Suppose that prior to the determination of these debtors to make an assignment of their estate for the benefit of creditors, they had executed to persons other than appellee, for bona fide indebtedness, like judgment notes, and coupled with the like agreement,—then, when financial trouble came, they so timed their notice that one perfected his execution lien at one hour, and another at a subsequent hour, and so on, and had left appellee to acquire the last lien,—will it be contended that the priority of the execution liens, depending, as it does, upon the date when the execution comes to the hands of the officer, had any relation to the time of the execution of the judgment notes, or in the slightest degree depended upon the agreement referred to ? Manifestly, the efficient cause of the priority would, in the case supposed, be the act of the debtor, which had enabled one creditor to secure his execution in advance of the others. If the doctrine contended for should be established, then creditors other than appellee will avail of its benefits by taking judgment notes with a like agreement for notice. Favored creditors would be notified in time, as was here done, to enter judgments sufficient to absorb the entire estate, and others less favored, although having used equal diligence and standing upon the same footing, would find their powers of attorney and agreements for notice wholly unavailing, and would he left to the useless ceremony of proving their claims under the assignment in an estate after favored creditors had taken the entire assets.

If, instead of executing the power of attorney with the agreement mentioned, the debtor should execute a chattel mortgage to his creditor, with an agreement that it should not he placed of record until financial trouble came, of which notice ^should be given by the debtor, and the debtor, after determining to assign for the benefit of all his creditors, should give the notice, and the chattel mortgage be filed for record, could it be contended that such mortgage would have a better standing than, or priority over, another mortgage executed and recorded contemporaneously with the first mentioned mortgage ? Obviously not. Yet it will be conceded that the mortgage last mentioned would fall directly within the rulé announced by this court in its previous decisions, and would, with the deed of assignment, be considered one transaction, ¡having for its object the disposition of the testator’s estate for the benefit of his creditors, and the preference thereby attempted to be created be declared void.

It is, however, said, that the act of the debtors, “done after they had formed the purpose of making a general assignment, for the purpose and with the view of aiding the bank in rendering its security and intended preference effectual, must be ■considered as belonging to and forming a part of the transaction of creating such preference, and not as forming a part of the transaction making the general assignment,” and the reasoning in the case of Lampton et al. v. Arnold, 19 Iowa, 477, et seq., is referred to as sustaining that position. That case was before this court in the determination of the case before referred to, and can be, as it was by the same court in the subsequent case of Van Patten et al. v. Burr, 52 Iowa, 518, distinguished in its facts from the eases where the doctrine of Preston v. Spaulding has been announced. In the Van Patten case the court say: “We think it (the Lampton case) may be readily distinguished from the case before us. * * * It will be observed that the opinion is based upon the right of the insolvent to appropriate his property while he may exercise over it the jus disponendi, the statute simply limiting his right .to prefer creditors where he makes a general assignment. The court rightly held that the payment by the insolvent, and the assignment, did not constitute one transaction.” But that court adds, distinguishing the case then under consideration from the.former case: “But if, with the intention of disposing of all his property for the benefit of his creditors, he mortgages part and assigns the remainder, these constitute one transaction. The property passes to the mortgagee and assignee in trust, to be disposed of as required by law and the conditions of the instruments he executed. The law announced by this court in Burrows et al. v. Lehndorff, 8 Iowa, 96, and Cole v. Dealham, 13 id. 551, regards the transaction as an assignment, and if a part of the creditors are preferred, it is void under the statute. ” Moreover, Lampton et al. v. Arnold, supra, is, it seems, placed upon the ground that the statute should receive a restricted construction. It is said, “the statute does not, expressly or by implication, extend any further, or apply to any instrument or conveyance other than to a general assignment,” and that the word “assignment” was used in the statute in its technical sense. All the other cases in that court so hold, as is shown by the extract before given from the Van Patten case, and which is in harmony with the ruling Qf this court.

Without extending the discussion further, it seems clear to us that the preference obtained by appellee was not by reason of any diligence on its part, but resulted solely, as has been said, from the affirmative act of the debtors. It is difficult to perceive the distinction between the case of appellee as made, and a ease where the debtor has agreed to give security, in the event that security becomes necessary, to protect the creditor, and the security is given after the debtor has entered upon the general disposition of his estate for the benefit of all his creditors. In the latter case, the right of the creditor to priority would exist only from the time the security was taken, and could not relate back, upon any known principle, to the time when his debtor agreed to secure him. In this case it is clearly shown that the debtors were especially desirous of securing this creditor, and so expressed themselves,—that the taking of the judgments, filing of the assignment, taking possession of the property, in fact all the different steps, -were so planned and timed as to carry into execution this determination on the part of the debtors.

We are of opinion, unless we recede from the previous rulings of this court, that where the, preference is so closely connected with the assignment as to raise the presumption that it was part of the same general intent to dispose of all the property of the debtor, or it is shown that the preference results from the act of the debtor while contemplating a general assignment, the preference must be held to constitute a part of the general assignment, and therefore void. The preference secured by appellee, for the reason that it resulted alone from the acts of the debtors after they could rightfully thus dispose of their estate, although done in pursuance of a previous agreement, constituted, with the assignment, but one transaction, having for its object the disposition of all the property of the debtors, and falls clearly within the spirit of the statute prohibiting preferences.

This case is distinguishable from Field et al. v. Geohegan et al. 125 Ill. 68, in the fact that the preference was there the result of the diligence of the creditor, and did not result from any affirmative act of the debtor.

The judgments of the Appellate, Superior and county courts will therefore be reversed, and the cause remanded to the latter court for further proceedings in conformity with this opinion.

Judgment reversed.

Mr. Justice Bailey, having heard this case in the Appellate Court, took" no part in this decision.


source: Caselaw Access Project

author: Mr. Justice Magruder

license: Public Domain

text:
    John S. Perry et al. v. George W. Burton et al.

      Filed at Ottawa November 15, 1888.

    1. Tax title—valid judgment amd precept essential. A party claiming title under a tax deed executed under the act of 1839, and according to the form therein prescribed, must show a valid judgment and precept before he can read his deed in evidence.
    2. Limitation—act of 1839—conditions which must concur. To make the bar of the seven years limitation act of 1839 complete, it is not sufficient that there be merely color of title. There must also be payment of taxes for seven years, either while the land is in possession, or while it is vacant and unoccupied.
    3. To constitute a bar under that statute, the possession of the holder of color of title must continue during the same years for which he pays the taxes. The possession and payment of taxes must concur and unite in the same person. The party paying taxes under color of title can not, by purchase from one in possession under an outstanding claim, avail of the possession of his grantor, in order to make the seven years’ possession.
    4. Pbactice—proceedings after reversal and remandment. Where a decree is reversed, and the cause remanded without directions, the lower court will have the power to allow amendments of the pleadings and the introduction of other evidence on the hearing.
    Appeal from the Superior Court of Cook county; the Hon. Henby M. Shepabd, Judge, presiding.
    Mr. Edmund S. Holbbook, and Mr. A. D. Eddy, for the appellants :
    The decision of this court when the case was here before is res judicata, and conclusive on the title to the land. Johnson v. Von Kettler, 84 Ill. 315; Hough v. Harvey, 71 id. 72; 84 id. 308; Mosier v. Norton, 83 id. 519; Hanna v. Read, 102 id. 596; Bailey v. Bailey, 115 id. 551; Osborn v. McCartney, 120 id. 409; Ogden v. Larrabee, 70 id. 510; Ruegger v. Railroad Co. 103 id. 449; Cooper v. Corbin, 105 id. 224; Newberry v.
      Blatchford, 106 id. 586; Walker v. Doane, 108 id. 236; Hook v. Richeson, 115 id. 431; Railroad Co. v. Peterson, id. 597; Umlauf v. Umlauf, 117 id. 580; Manufacturing Co. v. Wire Fence Co. 119 id. 31; Cable v. Ellis, 120 id. 136; Chaffin v. Taylor, 116 U. S. 567; Gates v. Preston, 41 N. T. 113; Lewis v. Lewis, 106 Mass. 309; Ballard v. Insurance Co. 81 Ind. 239; Parks v. 9 Lea, 524; Choteau v. Gibson, 76 Mo. 43; Wells’ Bes Judicata, see. 619; 1 Herman on Estoppel and Stare Decisis, sec. 122, et seq.

    Mr. Melville W. Fuller, and Mr. Granville W. Browning, for the appellees:
    The order reversing and remanding, with general directions to proceed, is not a final decree, in any sense. The court be- ■ low had power to allow amendments to the pleadings, and allow the introduction of other evidence. Cable v. Ellis, 120 Ill. 139; Chickering v. Failes, 29 id. 294; Hook v. Richeson, 115 id. 440; Moore v. Robbins, 18 Wall. 588.
    Mr. William Garnett, Jr., for the Louisville Banking Co.
   Mr. Justice Magruder

delivered the opinion of the Court:

This case has been before this court heretofore, as will be seen by reference to the opinion filed on September 27,18.84, and reported as Perry et al. v. Burton et al. 111 Ill. 138. The facts are sufficiently stated there, and it is unnecessary to recapitulate them here. By the terms of the former opinion the cause was reversed and remanded. After the case was docketed in the court below, it was reheard, partly upon testimony' introduced at the first hearing, and partly upon new evidence, and a decree was rendered dismissing the bill. From that decree this appeal is prosecuted.

Appellants insist that the trial court should have entered a decree, finding Perry and Henderson to be the owners of an undivided one half of the forty acres and should have proceeded with the partition of the property between them and the owners of the other half, upon the alleged ground that the former decision of this court settled the rights of the parties and was a final adjudication thereof. Inasmuch as the cause was reversed and remanded without directions, we think that the trial court had the power to allow amendments to the pleadings and to permit the introduction of other evidence, in accordance with the views expressed in Chickering v. Failes, 29 Ill. 294, and Cable et al. v. Ellis et al. 120 id. 136.

Upon the record as it fiow stands, we see no escape from the same conclusion, which we reached when the case was here before. We then held that the proofs did not clearly show a sale for taxes of the undivided one half of the land that was owned by Chambers and Benedict. Upon the second trial appellees supplied the necessary proof upon this subject, and it now appears, that the undivided half then belonging to Chambers and Benedict was sold to Cook at the tax sale in November 1842, and conveyed to him by the tax deed dated December 9, 1844. Cook made a deed of the whole tract of" eighty acres to Finnell and Wintersmith in July 1857. Appellants claim, that, between 1844 and 1857, under the tax deed as color of title, Cook paid all the taxes upon the land for seven successive years while it was vacant and unoccupied. To make the bar of the statute complete, it is not sufficient that there be merely color of title. There must also he payment of taxes for seven years. Upon the hearing below, no new evidence was introduced in regard to the payment of taxes by Cook. The only witness upon that subject was Cook himself,, nor has he been re-examined. His deposition, taken on August 24, 1882, and which was read upon the first trial, was re-read upon the second trial. Cook’s testimony as given in this deposition is the only evidence now in the record as to the payment of taxes prior to 1857, and is the same evidence, which we commented upon in our former opinion. We there held it to he insufficient to -show such payment. Our views as then expressed upon its value for such purpose are binding upon us now.

The tax deed of 1844, standing alone, does not vest Cook with the title. It was executed under the Act of February 26, 1839, and according to the form there prescribed. (Laws of Ill. Dec. 1838, page 17). We have held, that a party, claiming title under a tax deed executed in accordance with the provisions of that Act, must show a valid judgment and precept before he can read the sheriff’s deed as evidence of title. (Hinman v. Pope, 1 Gilm. 131; Atkins v. Hinman, 2 id. 437). No judgment or precept has been shown here.

It is claimed, however, that there were possession and payment of taxes for seven successive years under the deed from Cook to Finnell and Winter smith, executed July 6, 1857. We have examined the record with great care and do not find this claim sustained by the evidence. The property was sold in 1857 for the taxes of 1856 and purchased at the tax sale by Frederick B. Wilson. The testimony of Finnell is to the effect that he paid the taxes from 1857 to 1861 inclusive. But a tax deed was issued to Wilson in pursuance of the sale to him, and such tax deed was recorded on August 24, 1859. In June 1861 Wilson leased the land to one Bradley, who built a house upon the 80 acres near the center of the tract with the intention of living there five years, but, on account of the low and wet condition of the ground, Bradley moved away in the fall of 1861 taking his house apart and carrying it off with him. Finnell testifies that he saw this house on the land in September 1861, and at onCe entered into negotiations for the purchase of Wilson’s tax title, but, owing to the fact of his being in the Union army during the civil war, he did not complete these negotiations with Wilson until after the war. He states that they were pending “in a loose sort of way” until April 26, 1865, on which day a quitclaim deed was executed to him by Wilson.

Finnell states, that, at the time he received this deed from Wilson in April 1865, there was a house upon the land occupied by a tenant of Wilson. This tenant at once attorned to Finnell and afterwards paid him rent. He had been paying Wilson for the grass as his tenant for some time prior to April 26, 1865, but at what time between 1861 and 1865 he went into possession of the land, or at what date the house was built does not appear.

Finnell also states that John Forsythe paid the taxes in 1863 and 1864, that is for the years 1862 and 1863, and that he afterwards settled with Forsythe through one Hunter, and “redeemed the land under his (Forsythe’s) purchase or forfeiture.” Counsel for appellees say in their brief: “John Forsythe bid in the property for the taxes of 1862 and paid for 1863.”

It thus appears, that, if Finnell paid all the taxes from 1857 to 1861 inclusive, he only paid for five successive years. He did not pay the taxes of 1862, but suffered the premises to be sold for the taxes of that year. Nor during the five years in question was the land continuously vacant and unoccupied. Wilson’s tenant, Bradley, was in possession of it, living on it with his family from June 1861 to the fall of 1861.

In 1869 there was a partition between Finnell and Winter-smith, by the terms of which Wintersmith deeded to Finnell the south forty acres of the tract. Finnell sold and conveyed this tract of forty acres to George G. Street on February 23, 1871. Street sold and conveyed the forty acres to Hansbrough about March 1, 1871, and afterwards on January 30, 1872, Hansbrough conveyed the forty acres to George W. Burton.

The testimony does not show certainly whether the taxes of 1864 were paid by Forsythe or Finnell, but it does show that Finnell paid all the taxes from 1865 to 1870 inclusive. If it be conceded, however, that Finnell paid all the taxes during the seven years from 1864 to 1870 inclusive, there is no evidence, either that the premises were vacant and unoccupied during these seven years, or that they were in his possession during the whole period of the seven years. There was a house on the land in the occupancy of a tenant in 1865, 1866, 1867 and 1868. But as to the years 1869, 1870 and 1871 there is nothing to show whether the premises were vacant and unoccupied, or in the possession of some one. It is not proven that the house and tenant referred to remained there after 1868. Porter and Hitt swear that the eighty acres were vacant in April 1872, but at what time they became so between 1868 and 1872 does not appear. Hansbrough swears, that the land was “raw prairie” with no house or fence on it in February or March 1873, and that he then fenced it and built a house on it, as agent for Burton. He also states that he paid the taxes of 1873, but it is not shown by whom the taxes of 1871 and 1872 were paid, or whether they were paid at all. The bill in this case was filed July 18, 1873.

Counsel for appellees say: “the evidence shows actual possession by "Wilson for the eight years from 1861 to 1868 inclusive, and the payment of the taxes from 1864 to 1870 inclusive by General Finnell, and also for 1863 if the repayment to Forsythe of the amount advanced for the taxes of that year be treated as payment.” If it be admitted that this statement is sustained by the proofs, it does not establish a legal bar under the statute. The possession must continue during the same' years for which the taxes are paid. The possession of Wilson from 1861 to 1868 cannot be tacked on to Finnell’s payment of taxes from 1864 to 1870 inclusive. To make the bar complete in Finnell’s favor, he should have been in possession from 1864 to 1870 while he was paying taxes. Moreover, it cannot be said that Wilson was in possession from 1865 to 1868 inclusive, because, as has already been stated, he conveyed his title and delivered his possession to Finnell in April 1865.

Our attention is called to the peculiar hardship of the former decision in this case, in view of the large amounts of money expended by appellees in the purchase of a title, which they believed to be good. Whatever may be the fact in this regard, we cannot hold otherwise than in accordance with the views here expressed without overturning a long line of decisions that have for many years been followed as rules of property in this State. We must say, as was said by the Supreme Court of the United States, speaking through Mr. Justice Harlan, in the case of Buchanan v. Litchfield, 102 U. S. 278, “Waiving all considerations of the case, in its moral aspects, it is only necessary to say, that the settled principles of law cannot, with safety to the public, be disregarded in order to remedy the hardships of special cases.”

The decree of the Superior Court of Cook County is reversed and the cause is remanded.

Decree reversed.


author: Mr. Justice Baker

text:
    Alfred H. Andrews v. Mary Boedecker, Admx.

      Filed at Ottawa November 15, 1888.

    1. Respondeat superior—negligence of servant—liability of master. The owner of a quantity of lumber employed teamsters to haul the same to an appointed place, where they were directed to unload and pile it. The teamsters so employed did unload and place in piles a part of the lumber without assistance, and the residue with the voluntary and gratuitous assistance of a third person. Such residue of the lumber was piled by those persons in so unskillful and unsafe a manner that it fell over and upon another person, causing his death, without any want of ordinary care on his part: Held, that the employer—the owner of the lumber—was liable in an action for the injury resulting. Whether the third person who assisted in piling the lumber was or was not a servant of the owner sought to be held liable was immaterial.
    2. Action—injwy from negligence—joint mid several liability. Parties who act in concert, and co-operate in doing an act in a negligent manner, whereby an injury results to another, will be liable, either jointly or severally, to the person injured, for the damages thereby occasioned, whether the relation of master and servant exists between ■ the parties doing the negligent act, or not.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding.
    This was an action on the case, prosecuted by Mary Boedecker, administratrix of Henry J. Boedecker, deceased, to recover damages for the death' of her intestate. A second trial, in the Superior Court of Cook county, resulted in a verdict and judgment against Alfred H. Andrews, defendant in the trial court and appellant here, for $2500, and that judgment has been affirmed by the Appellate Court for the First District.
    ■ Frank Douglass was the proprietor of a kiln for drying lumber, at 228 South Clinton street, Chicago, and adjacent to the kiln was a platform, some five feet high, upon which lumber was received. Douglass paid one Andrew B. Honey seventy-five cents a thousand to receive lumber on this platform, cross-pile it on trucks, run it through the dry-kiln, and when dried run it out again at the opposite end of the kiln, and deliver it again to the wagons. The platform would hold from fifteen to twenty thousand feet of lumber, and the kiln about thirty thousand feet. At and about the time of the transactions here in issue, Andrews, the appellant, seems to have been the sole or principal patron of the kiln. He had the privilege, when the platform was full, of unloading his lumber elsewhere in the yard forming part of the premises of Douglass, and the duty of unloading the wagons, and placing and piling the lumber in the yard, was incumbent on the teamsters and servants of appellant. For the extra handling required to get the lumber on the platform from the yard, Andrews paid Honey twenty cents a thousand. The lumber was usually delivered and taken away by the teamsters of Andrews. Á pile of maple lumber, some twelve feet high, had been standing for several days prior to the 15th day of January, 1884, near the south line of the lot occupied by Douglass, and on that day a portion of it fell over onto the adjoining lot, breaking down the fence between the lots and crushing a privy on the adjoining lot, in which appellee’s intestate happened to be at the time, causing his death. This pile of lumber was on the ground opposite the platform, a wagon-way or road intervening. A space west of the platform was vacant, on which the lumber, or any portion of it, could have been placed. There were no cross-pieces in the pile, and the lumber was piled in- a careless, negligent and unsafe manner.
    Some weeks before the accident, teamsters in the service of appellant unloaded the lumber constituting the lower portion of said pile, from appellant’s wagons, and piled the same without assistance, the pile thus formed being about five feet high. On the Saturday before the accident said teamsters brought the residue of said'lumber to the yard, where it was to be unloaded, and they and said Honey took it from the wagons and placed it on said pile, thus making the pile about twelve feet high. In unloading and piling said lumber, the teamster stood on -the ground, and after raising each piece of lumber so as to balance it on the stake of the wagon, raised the opposite end up, so that Honey, who was standing on the pile of lumber, could get hold of it. Honey then took it and placed it on the top of the pile. The service thus performed by Honey was voluntary, and without compensation. It was not within the terms of his contract with appellant, and he did not understand it to be, that he should assist in unloading the lumber from the wagons and piling it in the yard, but his contract merely was, that he should take the lumber from the piles, wherever they might be in the yard, and place it on the platform. It appears, however, that piling the lumber opposite the platform, and piling it to a considerable height, rendered it easier for him afterward to transfer it to the platform.

      Mr. Lyman M. Paine, for the appellant:
    The liability of one person for damages arising from the negligence of another; under the doctrine of respondeat superior, is confined, in its application, to the relation of principal and agent, or master and servant.
    The responsibility of the master grows out of, is measured by, and begins and ends with, his control of the servant, because the servant, while he is engaged in the business of the master, is supposed to be acting under and in conformity to his directions. But where an injury is done by a person exercising an independent employment, doing work according to his own ideas, without directions or control by his employer, the party employing him is not responsible to the person injured, unless the work is, per se, a nuisance. Scammon v. Chicago, 25 Ill. 424; Schwartz v, Gilmore, 45 id. 456; Pfau v. Williamson, 63 id. 16; Chicago v. Joney, 60 id. 383; West v. Railroad Co. 63 id. 545; Loan and Trust Co. v. Doig, 70 id. 52; Hale v. Johnson, 80 id. 185; Kepperly v. Ramsden, 83 id. 354; Addison on Torts, sec. 579; Cooley on Torts, 546; Field on Corp. see. 534; 2 Hilliard on Torts, chap. 40, sees. 11, 17; 1 Parsons on Contracts, 102; Shearman & Bedfield on Negligence, secs. 73, 76, 77; Story on Agency, sec. 452;, 2 Thompson on Negligence, 899; Wharton on Negligence, sec. 177; Wood on Master arid Servant, see. 312.
    A volunteer assistant, not having the intention of rendering a service, but assisting others only because he can not otherwise effect his own purpose, is not in any sense a servant. 2 Thompson on Negligence, 1045; Wood on Master and Servant, sec. 455; Shearman & Bedfield on Negligence, secs. 106, 107; Holmes v. Railway Co. 6 L. R. Q. B. Div. 252; Railway Co. v. Bolton, 43 Ohio St. 224.
    It is not sufficient that a part of the instructions contain a correct exposition of the law, if it is incorrectly announced in others. Railroad Co. v. Payne, 49 Ill. 500; Manufacturing

      Co. v. Ballou, 71 id. 417; Railroad Co. v. Murray, 62 id. 326; Baldwin v. Killian, 63 id. 550; Railroad Co. v. Maffit, 67 id. 431.
    Mr. George W. Stanford, for the appellee:
    The duty of appellant’s teamsters was to safely pile the lumber, and if, while acting for him, they permitted some one else to interfere and assist them in the work, and an injury is caused by reason of the negligence of the one whom they permit to interfere, the negligence is theirs, and their principal will be liable. Althorf v. Wolfe, 22 N. Y. 355; Randleson v. Murray, 8 Ad. & E. 109; Booth v. Mister, 7 C. & P. 76; Wood on Master and Servant, p. 588, sec. 308.
   Mr. Justice Baker

delivered the opinion of the Court:

All controverted questions of fact in the case are settled in favor of appellee by the verdict of the jury and the judgment of affirmance in the Appellate Court. The grounds upon which a reversal is now asked, are, that the first and second instructions for appellee were erroneous, and that it was error to refuse the third instruction 'tendered by appellant.

In said first instruction, the court instructed the jury, in substance, that if the teamsters of appellant, by direction of appellant, hauled the lumber which slid over and upon the deceased, to the premises used and occupied as and for a dry-kiln and place for piling and handling such lumber, and that such teamsters unloaded and piled a portion of such lumber without the assistance of others, and unloaded and piled the balance.of such lumber with the voluntary and gratuitous assistance of the witness Honey, and if such lumber was piled by such persons in an unskillful and unsafe way and manner, and by reason' of such unskillful and unsafe piling of such lumber the same fell over and upon the deceased, and killed him, without any negligence or want of ordinary care on his part, then the defendant was guilty. The instruction proceeds upon the hypothesis that the teamsters of appellant unloaded and piled a portion of the lumber without the assistance of others, and unloaded and piled the residue of it with the assistance of Honey. Upon the hypothesis stated, the acts of' unloading and piling a portion of the .lumber were the acts of' appellant, by his teamsters and servants; and the acts of unloading and piling the other portion were the joint acts of' Honey and of appellant, by his same teamsters and servants.. Parties who act in concert, and co-operate in doing a negligent act which causes an injury, are liable, either jointly or severally, to the person injured, for the damage thereby occasioned. The theoretical case stated in the instruction was supported by the evidence, and it imposed a clear legal liability upon appellant, regardless of the fact whether Honey is or is not to be regarded as having been his servant, volunteer or otherwise, in the transactions involved in the suit. We see no valid objection to the instruction, and hold it was not error to give it.

The relation of master and servant existed between appellant and his teamsters, and it was within the scope of the employment of the latter not only to haul the lumber to the yard, but to deliver it there, the platform being full, by unloading and piling it upon the ground. This being so, and it being immaterial whether Honey was or was not a servant of appellant, the rulings of the trial court in refusing the third instruction asked by appellant and giving the second instruction for appellee, and without reference to the question of the propriety of such rulings, affords no ground for reversal, as whatever was the relation of Honey to appellant, the rule of respondeat superior was applicable to the ease.

We find no manifest error in the ease. The judgment of' the Appellate Court is affirmed.

' Judgment affirmed.

Mr. Justice Bailey, having heard this cause in the Appellate Court, took no part in its decision.


author: Per Curiam Mr. Chief Justice Craig,

text:
    Charles S. French v. Julius Willer.

      Filed at Ottawa November 15, 1888.

    1. Forcible entry and detainer—pursuing the statute, essential to jurisdiction—conditions to be observed. The action of forcible entry and detainer, or forcible detainer, being a special statutory proceeding, summary in its nature, and in derogation of the common law, it follows that the statute conferring jurisdiction must be strictly pursued in the method of procedure prescribed by it, or the jurisdiction will fail to attach, and the proceeding be coram nonjudice.

    2. In forcible detainer, a demand for possession is required to be made upon the tenant before the commencement of the action, a complaint in writing must be made before the summons issues, service of the summons must be made in a manner different from that in other actions at law, and no writ of restitution shall be issued until the expiration of five days after judgment. These provisions can not be changed by the contract of the parties.
    3. Confession of judgment—warrant of attorney—of its proper office and effect. A warrant of attorney to confess judgment for a debt, authorizes the attorney therein named to appear for the defendant and receive a declaration in an action for the debt, and to confess the action, or suffer judgment by nil dicit, or otherwise, to pass. It is generally prospective security for a debt not due when it is given.
    4. Same—cognovit—difference between it and warrant of attorney. A cognovit actionem, at common law, is not an authority given before the action is brought, but is a confession signed by the defendant after the process has issued, authorizing the plaintiff to take judgment and issue execution for a sum named.
    5. Same—whether allowable—in cases of tort—forcible detainer. The practice of entering judgment by confession upon warrant of attorney, without process, in actions for tort, is not allowed by the common law. It is allowed only in respect to debts.
    6. A judgment entered by confession under a power of attorney and cognovit in a forcible detainer suit, is unauthorized by law, and void. In such case, the court acquires no jurisdiction of the person of the defendant by the filing of the cognovit in pursuance of a warrant of attorney contained in the lease under which the defendant entered.
    7. A confession of judgment upon a warrant of attorney, in an action of forcible detainer, in a court of record, is as irregular and unauthorized as it would be in a justice’s court. Such court of record does not proceed, in forcible detainer, by virtue of its power as a court of general jurisdiction, but derives its authority wholly from the statute, and in such "proceeding is to be treated as a court of special and limited jurisdiction.
    8. Statutory remedy—whether exclusive. Where the legislature has prescribed a remedy for the party aggrieved, and the mode of procedure, all other remedies and modes of procedure are excluded, and the parties can not, by contract, substitute other and different ones. And this applies to summary statutory proceedings in courts of record.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    In this case, the appellant filed in the Superior Court of Cook county his complaint in an action of forcible detainer, verified by affidavit, alleging that he was entitled to the possession of certain premises in Cook county, and that the appellee unlawfully withheld the possession thereof from him. Accompanying the complaint was an affidavit of the appellant stating, in substance, that the appellee was unlawfully holding said premises after the expiration of a certain lease of the same to him from the Connecticut Mutual Life Insurance Company and after demand of possession, and that the appellant was the assignee of the reversion. There was also filed with the complaint a certain lease from said insurance company to the appellee, demising to him said premises for a term which had then expired, the execution of said lease by the appellee being duly proved by affidavit, said lease containing, among other things, a covenant on the part of the lessees to surrender possession of the demised premises to the lessor or its assigns at the expiration of the term, and also a warrant of attorney authorizing any attorney of any court of record, for the lessee and in his name and stead, to appear in any court of record, at any time after default or failure by the appellee in the performance of any of the covenants of the lease, to waive the issuing and service of process, and to file a cognovit and confession of judgment for the possession of the whole of the demised premises, and for costs of suit, in an action of forcible entry and detainer or forcible detainer, in favor of the lessor, its successors and assigns, and against the lessee, and a waiver and release in writing of all errors in entering such action and judgment, and a consent in writing that a writ of restitution might be issued and executed immediately, the lessee expressly agreeing to release all errors and defects whatever in entering such action or judgment, or any proceeding therein enforcing or concerning the same. There was also filed a cognovit, in accordance with the terms of the warrant of attorney, confessing judgment in favor of the appellant and against the appellee, for the possession of said premises, in an action of forcible detainer, and consenting to the immediate issuing and execution of a writ of restitution, and waiving and releasing all errors that might intervene in the entry of the judgment or the issuing or execution of said writ.
    Upon the filing of said papers in the Superior Court, judgment was entered in favor of the appellant and against the appellee, for the possession of said premises and for costs, and the writ of restitution was immediately issued. The appellee thereupon entered his motion to quash said writ and to vacate said judgment, and introduced and offered certain evidence in support of said motion, but said motion was overruled by the court. The Appellate Court, on appeal, reversed said judgment without remanding the cause for further proceedings, and awarded to the appellant a certificate that the case involved questions of law of such importance, on account of principal and collateral interests, that it should be passed upon by this court, and the appellant brings the record here by appeal. The Appellate Court, in deciding the case, filed the following opinion:

      Moban, P. J.—“The complaint filed in the court helow contained allegations sufficient to entitle appellee to the remedy sought under the forcible entry and detainer act. . In this respect this case differs from the case of Bmns v. Nash, decided by this court. 23 111. App. 552. The sole question for us to determine on the record is, whether the Superior Court obtained jurisdiction of the person of the appellant, by means of the filing of the cognovit in pursuance of the warrant of attorney contained in the lease.
    “It is contended by counsel for appellee that a warrant of attorney to confess judgment is a familiar.common law security, and cases are cited which it is asserted show, that it was the practice at common law to enter judgments in ejectment upon confession under a warrant of attorney, and that the practice has also obtained in Pennsylvania, and been sustained by the Supreme Court of that State. There is some misapprehension as to the practice at common law. .There were at common law, besides the judgment by default, two methods of obtaining judgment without trial. One by a confession of judgment under a warrant of attorney, and the other upon a cognovit actionem, signed by the defendant in the action.
    “The warrant of attorney authorized the attorney named therein to appear for the defendant and receive a declaration in an action for debt, and to confess the action or suffer judgment by nil dicit, or otherwise, to pass. ‘A warrant of attorney’ says Chitty, ‘is more frequently given independently of any action, and very generally is prospective security, and although at the time it is executed, nothing is due from the party. It is in that respect a convenient collateral security to bankers and others, in consideration of their agreeing to make pecuniary advances, or to suffer a customer to overdraw his account.’ 3 Chitty Gen. Prae. 669.
    “The cognovit actionem was not an authority given before the action commenced, but was a confession signed by the defendant after the process was issued. ‘When a writ has already been issued against a defendant, a cognovit actionem, ■or, in other words, a written confession of the action subscribed by the defendant but not sealed, and authorizing the plaintiff "to sign judgment and issue execution for a named sum, is a very usual mode of saving the expenses of further proceedings in the action.’ 3 Chitty Gen. Prac. 664. Now two at least ■of the cases cited by counsel to show that confession of judgment was permitted in ejectment are eases in which the judgments were entered on a cognovit actionem.

    “In Doe dem. Locke v. Franklin, 7 Taunton, 9, the plaintiff obtained from the defendants in possession a cognovit of the action, and a retraxit of the plea, so that not only was there no warrant of attorney to appear and confess, but the defendants who did confess the action were already in court by service of process) and also by plea filed. Doe dem. Rees v. Howell, 12 Adolph. & Ellis, 696, was also a case where the defendant ■signed a cognovit confessing the action. These eases give no support to the contention that a warrant of attorney to appear and confess judgment was a recognized mode of procedure in ejectment at common law.

      “Kingston v. Kingston, 1 Dow. N. S. 263, appears to have "been a rule nisi to set aside a judgment entered upon a warrant of attorney in an action of ejectment, for the reason that there was no attestation clause to the warrant of attorney in •conformity with the statute then recently enacted. Patteson, J., held that the statute had no application to actions in ejectment, and in that was clearly wrong, as the same statute was Feld applicable to actions of ejectment in Doe dem. Rees v. Howell, swpra, where the question was decided by four of the judges of the court of King’s Bench. The point as to the right "to enter the judgment under a warrant of attorney was not raised in the case, but the implication that it was a recognized practice which might be drawn from the fact that the point was not made is negatived in the subsequent case of Beaumont w. Beaumont, 2 Dow. N. S. 972, vsFere, in moving for leave to enter a judgment on a warrant of attorney authorizing the landlord to sign judgment in ejectment upon the determination of the tenancy by notice to quit, counsel admitted that no case of a similar description was to be found in the books, but contended that there could be no objection to such a warrant of attorney. Coleridge, J., said, ‘If a party enters into: such an agreement, I see no reason why it should not be enforced,’ but for lack of a sufficient affidavit no judgment was entered in the case, and therefore it is no precedent, but it shows that as late as 1843, no such practice had obtained in England. The fact that no reference to such a method of proceeding in ejectment is found in works on common law practice (so. far as we have been able to examine), goes to show pretty conclusively that such a practice was unknown to the courts and to the profession.
    “It appears from the cases in Pennsylvania that there is known in that State a practice of entering what are termed amicable actions, and that such actions and judgments by confession in them may be entered by the court on agreement by the parties. McCalmont v. City of Philadelphia, 13 S. & R„ 190; Cook v. Gilbert, 8 id. 567. In Flanegan v. City of Philadelphia, 51 Pa. St. 491, the lease provided that it might be terminated on the violation of any covenant, by a notice of five days, and .that on such termination, any attorney might sign an agreement for entering an amicable action in ejectment against the lessee. Such an action was entered and judgment confessed, and on motion to set it aside on the-ground that it was not entered in compliance with a rule of court governing the entry of judgments on warrants of attorney, the court said: ‘It nowhere appears in this record that the confession by the attorney of the defendant was in pursuance of a warrant of attorney. The amicable action and confession of judgment is according to ancient and established practice existing before the act of 1806, as well as since.’

      “The practice seems to he peculiar to the State of Pennsylvania, at least our attention has not been called to a similar practice elsewhere. We do not think it can be regarded as establishing the proposition that the practice of confessing judgment upon warrant of attorney and without process having been issued, obtained at common law in actions of ejectment. In Secrist v. Zimmerman, 55 Pa. St. 446, cited by counsel, there was no warrant of attorney, and no question of a confession on a warrant of attorney made or decided in the case. The action of ejectment was brought against the defendant for the land, and a year after its commencement the defendant confessed judgment to the plaintiff for the land in dispute and costs. The court held the judgment conclusive,as to the parties and their privies, on the ground that the most important interests, not only of property and liberty, but of life itself, are habitually concluded, judicially, by solemn confession made by the party in interest in the face of a court of justice. The confession of which the court is speaking in that case was made in open court, in the face of the court after service of process, and it has never been doubted that such a confession would authorize the judgment, and probably no one would say that such a confession would not be good in a forcible detainer case.
    “An examination of all the cases counsel have been able to find seems to us to confirm what was said by this court in. Burns v. Nash, supra, that ‘the practice of entering judgment by confession upon warrant of attorney, without process, in actions of tort, did not obtain, and there is no precedent for it at common law.’
    “The practice of entering judgments in debt on warrants of attorney is very old, so old that the date of its origin is unknown. Chitty says: ‘How or when this peculiar security for a debt authorizing a creditor, as it were per saltum, to sign a judgment and issue execution, without even issuing a writ, .was first invented, does not appear, but it has now become one of the most usual collateral securities on loans of money or contracts to pay an annuity and for debts, but usually accompanied with some other deed or security.’ 2 Gen. Prac. 334.
    “It was early found that unconscionable advantage was taken of debtors by creditors- by means of such warrants of attorney, obtained when the debt was incurred, and when the debtor was hopeful, and executed with harshness against him in the hour of his distress, and the courts were compelled to prescribe rules, and parliament to enact statutes, to limit the operation of such warrants, and restrain the injustice to which the use of them frequently gave rise.
    “But if it were established that confessions of judgments upon warrants of attorney obtained as a practice at common law in an action of ejectment or in other actions in form of tort, it would not authorize the practice in an action of forcible entry and detainer under the law of this State.' This action is a special statutory proceeding, summary in its nature, and in derogation of the common law, and it is a rule of universal application in such actions, that the statute conferring jurisdiction must be strictly pursued in the method of procedure prescribed by it, or the jurisdiction will fail to attach, and the proceeding be coram nonjudice and void. Davis v. Davis, 115 Pa. St. 261; Burns v. Nash, supra, and cases there cited.
    “While forcible entry and detainer is a civil proceeding for restitution, it is based upon, and has by modern legislation been evolved from the English forcible entry and detainer, which was a criminal proceeding merely. Ejectment, from its slow progress, was an inadequate remedy to a landlord, and the legislature provided the summary remedy by which a speedy recovery of possession may be secured, but to prevent hasty action and to secure tenants and their families from the danger and inconvenience of being forcibly ejected without notice and reasonable time for preparation, certain safeguards ’ were provided by the statute. A demand for possession is required to be made upon the tenant, before the commencement of the action, a complaint in writing must he filed before summons issues, service of the summons is to be made in a manner different from the service in other actions at law, and if judgment is rendered against the tenant, the statute provides that ‘no writ of restitution shall be issued in any case until the expiration of five days.’ There is in the statute a policy discoverable, as was said by Mr. Justice McAllister in Brums v. Nash, ‘based upon humane considerations of oppression and hardships which might ensue, if families in any kind of weather, and at any time of day or night, be forcibly ejected from their homes with all their effects, without notice or warning,’ which forbids the conclusion that a landlord, by exacting from his tenant a power of attorney in his lease, can obtain the right to an immediate judgment without having demanded possession or having process issued or served, and to an immediate writ of restitution, and to avail himself of the remedy against his tenant furnished by a statute, every provision of which with reference to procedure, he has set aside by contract, and thus to proceed to the ejection of the occupants and the recovery of possession, ‘by leaps,’ as the creditor was enabled by a similar warrant to sign judgment and issue execution against his debtor at common law, without affording an opportunity to the tenant of raising any objection or making any defense. What wrong might be perpetrated, were such a practice to be established, is illustrated by the operation of the ‘amicable ejectment’ proceeding in Pennsylvania, as shown in Grossman’s Appeal, 102 Pa. St. 137, where after the death of the lessee and the acceptance of a month’s rent in advance from the widow, and before the expiration of the month, the landlord, on an unfounded rumor that the widow had assigned the lease, and thus broken the covenant against assignment, confessed a judgment against the dead man under the terms of the lease, and without previous notice of the judgment or execution, the widow and heirs were dispossessed ‘at the early hour of eight o’clock in the morning in February.’
    “Whatever may be thought of the public policy of such a practice, it can not be engrafted upon our forcible, detainer proceeding without the consent of the Legislature. The act provides a new remedy, and the course of procedure to obtain it, and no remedy or mode of procedure can be pursued, except that directed by the act. ‘If the act has prescribed the remedy for the party aggrieved, and the mode of prosecution, all other remedies and modes are excluded.’ Millar v. Taylor., 4 Burr. 23, 24; Smith v. Lockwood, 13 Barb. 217.
    “Parties can not by their contracts vary the procedure in courts of justice prescribed by the statute. This was expressly decided by the Supreme Court of Iowa in a case which we consider in point, and decisive of the question under consideration. A judgment was entered up in the District Court under a warrant of attorney in a judgment note made in Pennsylvania, which authorized any attorney in any court of record within the United States, to confess judgment against the maker of the note. A petition was filed by the' maker of the note to have the judgment declared void, arid the court so ordered. On appeal the Supreme Court said: ‘It is claimed by appellant that the principles of the common law authorizr ing a warrant of attorney to confess judgment are in force in this State, and that the provisions of our code respecting the recovery of judgment by action are merely cumulative. We do not think this position is correct. The whole subject o.f recovery and rendition of judgment is fully reviewed in the code, and the course to be pursued in obtaining judgment is specifically pointed out. * * * A confession of judgment (pertains to the remedy. A party seeking to enforce here a contract made in another State must do so in accordance with the laws of the State. Parties can not by contract made in | another State engraft upon our procedure here remedies which •our laws do not contemplate nor authorize.’ ' Hamilton v. Schoenberger, 47 Iowa, 385.

      “A fortiori, parties within the State can not hy contract ■engraft upon the procedure prescribed for a summary proceeding, a remedy or practice not warranted by the statute. While parties by consent may waive rights they can not thus amend the law. A fundamental requisite to the validity of .a judgment is that the court should have jurisdiction of the subject matter and of the parties. A judgment against a defendant who has not been served at all with process and who has not appeared, is a nullity. The record shows no process "to the defendant, and no appearance by him, but shows a departure from the course specifically pointed out by the statute, and an attempt to give jurisdiction of the defendant, and enter judgment against him in a manner which the statute does not contemplate nor authorize. A confession of judgment upon a warrant of attorney in an action of forcible detainer in a court of record is as irregular and unauthorized as it would be in a justice’s court. Such court of record does not proceed in forcible detainer by virtue of its power as a court of general jurisdiction, but derives its authority wholly from the statute, and in such proceeding is therefore to be treated as a court of special and limited jurisdiction. Phillips on Evidence, 946, Cowen & Hill’s notes; Biurns v. Nash, supra. A court of special and limited jurisdiction like a justice’s court, has no authority to enter a judgment by confession on a warrant of attorney, even in a case where such judgment would be authorized in a court of record by the common law. Alberty v. Dawson, 1 Binn. 105.
    “From no point of view are we able to sustain the authority ■of the court to enter the judgment appealed from. We have carefully examined the question, and re-examined the views expressed in the opinion of Mr. Justice McAllister in Burns v. Nash, supra, and such re-examination has tended to confirm us in the position there announced. The court had no power to enter the judgment in this form of proceeding on the warrant of attorney contained in the lease, and the judgment is therefore coram nonjudice and void, and must be reversed.”
    Messrs. Williams & Thompson, for the appellant:
    A warrant of attorney to confess judgment does not depend for its validity upon positive enactment of the legislature, but is a valid power, whose exercise has been recognized repeatedly by the common law. It is a familiar common law security. Bush v. Hanson, 70 Ill. 480; Osgood v. Blackmore, 59 id. 261; Sherman v. Baddely, 11 id. 622.
    As to warrants of attorney to confess judgments: Vandeveere v. Gaston, 24 N. J. L. 818; Ely v. Parkhurst, 25 id. 188; Association v. Gardner, 2 W. (N. C.) 96; McCalmont v. Admire, 13 S. & R. 196; Doe ex dem. v. Kingston, 1 Dow. (N. S.) 264; Doe ex dem. v. Beaumont, 2 id. 972; Hall v. Hamilton, 74 Ill. 437; Rees v. Howell, 12 A. & E. 696; Locke v. Franklin, 7 Taunt. 9; Secrist v. Zimmerman, 55 Pa. 446; Betz v. Valer, 15 Phil. 324; Flanigan v. Philo, 51 Pa. St. 491.
    Messrs. Moses & Newman, for the appellee:
    The common law is adopted in this State only so far as applicable to this country, and of a general nature. Fisher v. Deering, 60 Ill. 115; Boyer v. Sweet, 3 Scam. 120; Middleton v. Pritchard, id. 510; Lavalle v. Strobel, 89 Ill. 370; Railroad Co. v. Crane, 102 id. 249.
    Parties can not waive exemption laws by executory contract. Recht v. Kelly, 82 Ill. 148; Phelps v. Phelps, 72 id. 545; Greenhood on Public Policy, 496.
    An executory contract by mortgagor, waiving the right of redemption, is void. Greenhood on Public Policy, 499.
    A contract not to plead the Statute of Limitations, is held void. Greenhood on Public Policy, 504, 508.
    We refer to the case of Fort Dearborn Lodge v. Klein, 115 Ill. 177, for a statement of the common law rules on the subject of forcible entry and detainer.
   Per Curiam

: We are satisfied with and adopt the foregoing opinion of the Appellate Court. Counsel for the appellant have furnished us with a brief criticising both the conclusions and reasoning of the opinion with great earnestness, and we have carefully examined the various propositions discussed and authorities cited, in the light of the suggestions thus made by counsel, and after having fully considered the case, we are disposed to concur with the Appellate Court both in its conclusions and in the process of reasoning by which those conclusions are reached.

The judgment of the Appellate Court will therefore be affirmed.

Judgment affirmed.

Mr. Chief Justice Craig,

dissenting:

I do not concur in this decision. Forcible detainer is a mere civil proceeding authorized by the statute, under which the owner of lands may recover possession where the possession is unlawfully withheld. Forcible detainer is not an action of tort. At an early day this doctrine was announced in Robinson v. Crammer, 5 Gilm. 222. It is there said: “At common law the party was liable to indictment, and might be convicted of either a forcible entry or a forcible detainer, each being considered a distinct offense. Not so under our statute. The proceeding is purely a civil remedy, the sole object of which is to regain the possession that has been invaded.”

If it be true that a judgment could not be confessed under a cognovit in forcible detainer, at common law, upon the ground that the action was a tort, that fact does not, in my judgment, establish the doctrine that a judgment could not be entered under a cognovit in forcible detainer, as that action is known and recognized under our statute. A cognovit to confess a judgment on a note, bond or contract for a debt may be given, and a judgment rendered under such a cognovit has always been regarded as valid and binding. If binding and obligatory on a contract to pay money, why not on a contract to surrender possession of a lot or tract of land? A judgment rendered on a note or bond grows out of a breach of contract. So, too, a judgment for forcible detainer grows out"of a breach of contract, and'if a cognovit' to render judgment in the one case may be sustained, upon principle I see no reason why it may not in the other.

Again, in Fabri v. Bryan, 80 Ill. 182, this court held, that where a lease contains a license to the landlord to enter into possession of the leased premises without process of law, and expel and remove the tenant,’ and use such force as may be Uecessary in doing so, the landlord may enter and remove the tenant after the expiration of the term, and the tenant can not maintain an action of trespass against the landlord. If, as held, the tenant may make a lawful contract with the landlord, under which the latter may enter and remove the tenant, what principle of law forbids the tenant from incorporating in a lease a provision under which, upon default of surrendering possession at the end of the term, a judgment for possession may be confessed in a court of competent jurisdiction 2

Mr. Justice Wilkin : I concur in the views expressed by Mr. Chief Justice Craig.

Mr. Justice Magruder : I concur in the dissenting opinion of Mr. 'Chief Justice Craig.


text:
    The Chicago City Railway Company v. Mary A. Robinson, Admx.

      Filed at Ottawa November 15, 1888.

    1. Negligence—as a question of law or of fact—circumstances making the question one purely of fact. It is only when the conclusion of negligence necessarily results from the statement of fact, that the court can be called upon to say to the jury that a fact establishes negligence as a matter of law.
    2. The fact that a person passing over a sidewalk crossing in a city, steps on the track of a street railroad, whether the cars accustomed to run thereon are horse cars or grip cars, without first stopping to look and see whether a car is approaching, is not, as matter of law, and without regard to surrounding circumstances, negligence and a want of ordinary care. The question of negligence and a want of ordinary care is, in such case, a question of fact for the jury, in the light of the attendant circumstances.
    3. Where street car tracks are in close proximity, the running of a car or train of cars in one direction at a rapid speed, without signal or warning, over a sidewalk crossing, while a car or train bound in the opposite direction is discharging passengers at such crossing, and where the view of the approaching train is obstructed by the standing cars from which the person injured had just alighted, is such conduct as fairly tends to prove culpable negligence, even though the rate of speed of the approaching train does not exceed that allowed by ordinance; and it can not be said, as matter of law, that such conduct is not negligence.
    4. Same—injury to a child—of imputing negligence to parent. An instruction in an action to recover for the death of a child six years old by negligence of the defendant, based upon the fact that the child itself was in the exercise of ordinary care when he was killed, need not contain any reference to the, care or negligence on the part of its parent.
    5. Where a child killed through defendant’s negligence was in the exercise of ordinary care and prudence, the question of the degree of care and vigilance of its mother is immaterial, so far as the liability of the defendant is, concerned.
    6. : In a cáse where ,the conduct of an infant would not. be negligence in an adult, the question of imputable negligence is immaterial.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Bichard W. Clifford, Judge, presiding.
    Messrs. Hynes & Dunne, for the appellant:
    Appellant was guilty of no negligence. B was not its duty to stop at every crossing. Railway Co. v. Casey, 56 Ind. 396; Young v. Harvey, 16 id. 314.
    The negligence of the plaintiff and deceased is, of itself, sufficient to defeat a recovery. Railway Co. v. Gersten, 15 Bradw. 614.
    The failure to stop before attempting to cross, and look to see if a train was- coming, is negligence per se. Railroad Co. v. McKean, 40 Ill. 236; Jacob’s case, 63 id. 179; Railway Co. v. Dimick, 96 id. 45;, Railroad Co. v. Bell, 70 id. 102; Railroad Co. v. Houston, 95 U. S. 697; Haven v. Railway Co. 41 N. Y. 296; Baxter v. Railway Co. id. 503.
    The negligence of the child must be imputed to the parent. Railway Co. v. Grable, 88 Ill. 441; Railway Co. v. Stratton, 78 id. 88; Reed v. Railway Co. 34 Minn. 557.
    This doctrine of imputed negligence,—that want of care on the part of the parent or guardian furnishes the same answer to an action by, the child as would,the omission of proper care on the part of the plaintiff in an action by an adult,—is further supported by the following cases: Willetts v. Railroad Co. 14 Barb. 585; Honegsburgh v. Railroad Co. 33 How. Pr. 193; 16 Keys, 570; Mangam v. Railroad Co. 38 N. Y. 455; Wharton on Negligence, sec. 311, note.
    There can b,e no recovery where the plaintiff is guilty of want of ordinary care, unless the injury was willfully or wantonly inflicted. Railroad Co. v. Weisbeck, 14 Bradw. 530; Railroad Co. v. Hetherington, 83 Ill. 516.
    The cases all go the length of holding, when a person has been injured for want of ordinary care, no action will lie, unless the injury is willfully inflicted by the defendant. Railroad Co. v. Lee, 68 Ill. 580; Railroad Co. v. Johnson, 103 id. 514; Railroad Co. v. Sweeney, 52 id. 325; Railroad Co. v. Gretzner, 46 id. 74; Railroad Co. v. Van Patten, 64 id. 510; Railroad Co. v. Green, 81 id. 19; Railroad Co. v. Lee, 68 id. 576.
    Messrs. Frank J. Smith & Helmer, for the appellee.
   Mr. Justice Baker

delivered the opinion of the Court:

In this case, appellee, as administratrix of her 'intestate, a boy some six years old, recovered judgment in the Cook circuit court for $1500, damages, against appellant, for wrongfully causing the death of such intestate, through the negligence of its servants. The judgment was affirmed in the Appellate Court for the First District.

Two grounds are urged in this cqurt for the reversal of the judgment. One is, the refusal of the trial court, when the plaintiff below rested her case in chief, to instruct the jury to find for the defendant, because there was no evidence of negligence on the part of defendant, and no evidence of due care on the part of the plaintiff. We can not accede to either of the propositions involved in the motion that was made by appellant. It is only when the conclusion of negligence necessarily results from the statement of fact, that the court can be called upon to say to the jury that a fact establishes negligence, as a matter of law. (Chicago and Eastern Illinois Railroad Co. v. O’Connor, 119 Ill. 586.) The fact that a person passing over a sidewalk crossing in a city, steps onto the track of a street railroad, whether the cars accustomed-to run thereon are horse cars or grip cars, without first stopping and looking to see whether a car is approaching, is not, as matter of law, and without any regard to surrounding circumstances, negligence and a want of ordinary care. The question of negligence and a want of ordinary care is, in such cases, a question of'fact for the determination of the jury, in the light of the attendant circumstances.

Where street car tracks are in close proximity, to run a car or train of ears in one direction, at rapid speed and without signal or warning, over a sidewalk crossing, while a car or train bound in the opposite direction is discharging passengers at such crossing, and where, as in this case, the view of the approaching train is obstructed by the standing car from which the person injured has just alighted, is surely conduct which fairly tends to prove culpable negligence, even though the rate of speed of such approaching train does not exceed that which is permitted by ordinance, and it can not be said, as matter of law, that such conduct is not negligence. From the testimony for appellee contained in this record, we think it was not manifest error to deny the motion of appellant to take the case from the jury.

It is urged that the first instruction for appellee was erroneous, in that it contained no reference to the element of contributory negligence on the part of the mother of the deceased child. The theory of the instruction was, that the child himself was in the exercise of ordinary and reasonable care at the time he was killed. Several of the instructions given at the instance of appellant were predicated upon the same theory of fact that lies at the foundation of this instruction in question,—i. e., that the deceased was capable of exercising ordinary care and prudence,—and said instructions stated fully the duty thereby incumbent upon deceased in that regard. The jury, in returning a verdict for appellee, under the instructions of the court, must necessarily have found that the child was in the exercise of ordinary care and prudence. In such state of the case,—and it is the case stated hypothetically in the instruction,—it would be a matter of no moment, in respect to the liability of appellant, what degree of care and vigilance the mother was exercising for the safety of her child, since the child himself was using all the care which the occasion required. In a case where the conduct of an infant would not he negligence in an adult, the question of imputable negligence is immaterial. (Cummings v. Brooklyn City Ry. Co. 6 Cent. Rep. 394.) The view, the minor did not use, and was incapable of exercising, care, by reason of his tender years and immature judgment, and that in the event the jury so found, the doctrine of imputable negligence, on account of the neglect of the mother, was applicable to the case, was fully given to the jury in instructions tendered by appellant. Appellee made no claim, at the trial, that the age of the deceased would excuse in him conduct which would be negligence in a person of mature judgment; and as the case went to the jury upon the instructions, the issue was conceded to appellant, without the jury found, from the evidence, that the child was in the exercise of ordinary care at the time he was killed. We think the instruction complained of was not erroneous.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

Mr. Justice Bailey, having heard this case in the Appellate Court, took no part in its decision here.


author: Mr. Justice Shope

text:
    William H. Johnson et al. v. Fannie P. Huling.

      Filed at Ottawa November 15, 1888.

    1. Removing cloud upon title—question of possession—or that the premises are vacant and unoccupied. On bill to remove alleged clouds upon the title to land, the burden of proof is on the complainant to make out a case,—and this is not done unless he shows that he was in possession, or that the property was vacant and unoccupied, at the time of the filing of the bill. It is not sufficient to prove that the premises were vacant at some time after the suit is brought.
    2. Same—setting aside tax title—upon terms. .It is error to decree that certain tax titles be set aside as a cloud upon title, except upon the condition that the complainant shall pay to the parties entitled thereto, the amount found by the court to be equitably due. If there is doubt as to which of several defendants is entitled to receive the same, the money should be ordered into court for the use of the parties entitled.
    Appeal from the Superior Court of Cook county; the Hon. Egbert Jamieson, Judge, presiding.
    Mr. H. S. McCartney, for the appellants:
    In Hardin v. Jones, 86 Ill. 315, the court say: “There are only two cases, under our law, in which a party may file a bill to quiet title to or remove a cloud from the title to real property: First, where he is in possession of the lands; and second, when he claims to be the owner, and the lands in controversy are unimproved and unoccupied.” So also in Gage v. Abbott, 99 Ill. 367; Gage v. Parker, 103 id. 534; Gage v. Schmidt, 104 id. 106; Gage v. Bailey, 100 id. 530.
    A party seeking to have tax titles set aside, must refund the amount of the sale and taxes paid, with interest, as a condition to the relief. Phelps v. Harding, 87 Ill. 442; Gage v. Schmidt, 104 id. 107; Gage v. Nichol, 112 id. 269.
    Mr. Consider H. Willett, for the appellee.
   Mr. Justice Shope

delivered the opinion of the Court:

This was a hill filed in the Superior Court of Cook county, by appellee, against appellants, to set aside and remove certain tax deeds as a cloud upon her title to lots 12 and 13, in block 2, Crane & Mead’s subdivision, in section 2, town 38, north, range 14, east, in Cook county. The bill contained the offer of the complainant, “to pay said William H. Johnson the amount he respectively paid said county collector upon said sales, together with all their reasonable costs concerning said tax deed, and all subsequent taxes which he may have paid upon said lands, together with interest at six per cent per annum upon such amounts,” and “further tender any sum of money, and offer to do any act, which the court, in its discretion, may deem proper as a condition to the granting of the relief herein prayed.” The court, by its decree, found “that complainant has tendered to said defendants the amount of said taxes for which said lots sold on the 15th day of September, 1883, together with interest at six per cent since that date, and the amount of taxes paid by W. H. Johnson on the 17th day of September, 1883, together with interest at six per cent, and the aggregate amounts for which said lots were sold September 17, -1883,” etc., and subsequent taxes paid, amounting to $252, '“which said sums defendants have refused to accept, and have prayed an appeal,” but failed to require the payment of the same to the holders of the tax deeds cancelled and set aside, as a condition to the relief granted, or to secure the same to the persons entitled.thereto.

It is contended that there was an award of execution against the complainant therefor. This-was, if true, not sufficient to authorize the decree. It should have been made conditional upon the payment to the.parties entitled thereto, of the amount found by the court to be equitably due, or, if doubt arose as to which one or more of the defendants was entitled to receive the same, the money should have been ordered paid into court, for the use of the parties thereto entitled. (Gage v. Nichols, 112 Ill. 271; Gage v. Schmidt, 104 id. 107; Phelps v. Harding, 87 id. 442.) If a tender was made to Johnson, or to the defendants, it may or may not have been a good tender as to the defendant Knapp. In any event, the complainant, by her bill, having offered to pay, should not have been relieved of that just obligation by her tender, but should have been required to have made such tender good by the actual payment of the money to the use of the parties interested therein.

Again, the bill alleges that the complainant was the owner of the premises in controversy, and that “said property has always been, and is now, vacant and unoccupied.” The only evidence to sustain this latter allegation is, that the property was vacant and unoccupied on the 8th day of May, 1888. The bill was filed September 10, 1887. It is manifest, proof that the premises were vacant on the 8th of May, 1888, does not prove they were vacant and unoccupied at the time of filing the bill. For aught that appears in the proof, the premises may have then been in the possession of the defendant. (Gage v. Bailey, 100 Ill. 530.) The burden was upon the complainant to make out a ease under the law, and this she could only do by showing that she was in possession, or that the lots were vacant and unoccupied at the time of filing her bill. Gage v. Abbott, 99 Ill. 366; Hardin v. Jones, 86 id. 313; Gage v. Parker, 103 id. 528; Oakley v. Hurlbut, 100 id. 204.

Numerous other errors are assigned, questioning the correctness of the ruling of the court in respect to the validity of the tax deeds mentioned. These errors are not properly before us until the complainant shall have shown herself entitled to the relief sought by her bill. Unless she is in condition to maintain her bill, a court of equity will not, at her instance, investigate the validity of adverse titles.

For the errors indicated, the decree of the Superior Court is reversed, and the cause remanded to that court for further proceedings.

Decree reversed.