author: Mr. Justice Sheldon

text:
    Dee McReynolds et al. v. The Burlington and Ohio River Railway Company.

      Filed at Springfield March 29, 1883.

    1. Evidence—opinions of witnesses as to damages, in proceeding to condemn right of way—of their weight. The opinions o£ witnesses upon the question of damages, in a proceeding to condemn land for a right of Way, are not to be passively .received and blindly followed, but they are to be weighed by the jury, and judged of in view of all the testimony in the case and the jury’s own general knowledge of affairs, and have only such consideration given to them as the jury may believe them entitled to receive.
    2. Eminent domain—what are elements of damages—railroad crossing a farm. The inconvenience of carrying on a farm divided into two parts by a railroad, is a legitimate element of damages to be considered by the jury in assessing damages for right of way, although such damages may be largely conjectural, and not susceptible of anything like definite ascertainment.

      3. Same—danger in crossing the railroad track—as an element of damages. But damages 'from danger of crossing the road with teams, and for danger to children and members of the family of the owner, are so unreliable and uncertain as not to form a proper basis in the assessment of damages. The assessment should be confined to such damages only as are reasonably probable.'
    4. Same—special benefits—when allowed as against damages. It is not error to instruct a jury on the assessment of damages in a proceeding to condemn land for a right of way, that if by the construction of the railway the defendant’s lands will be specially benefited, they should find only the compensation for the land actually taken, where there is evidence on which to base such instruction.

      5. Same—new trial on evidence. Where the evidence as to damages from locating a railway across a farm is conflicting and widely variant, and the jury go upon the premises and examine for themselves, their assessment of damages will not be set aside though not so large as the preponderance of the evidence preserved might justify, where the finding is not manifestly wrong upon the proofs.
    6. Practice—right to open and close case before jury. The party against whom judgment would be given as to a particular issue, whether affirmative or negative, in case no proof was offered on either side, has the burden of proof, and has the right to open and close the case, whether plaintiff or defendant. Therefore a party seeking to condemn land for right of way, on the question of the assessment of the damages to be paid has the right to open and close the case to the jury.
    7. Same—right to withdraw motion for new trial. There is no error in allowing a party to withdraw his motion for a new trial after the opposite party consents that the motion be allowed. There is nothing to preclude a party from withdrawing a motion made by him, and the consenting of the adverse party to its allowance can make no difference.
    Appeal from the County Court of Macoupin county; the Hon. Lewis P. Peebles, Judge, presiding.
    Mr. G. L. Zink, and Messrs. Anderson & Bell, for the appellants:
    The verdict of the jury is so clearly against the preponderance of the evidence that a new trial should have been granted. The witnesses place the damages greatly in excess of the sum allowed by the jury. These witnesses, in the language of the court in Keithsburg and Eastern R. R. Co. v.
      Henry, 79 Ill. 290, “were all acquainted with the farm; they knew the value of the land, and were familiar with the use and productions of such property, and were well qualified to form correct opinions as to the value of the farm, either with or without the road, ” etc.
    The fact that the jury make a personal examination of the land and the line of the road, will not authorize them to entirely disregard the other evidence in the case.
    The court erred in instructing the jury they might deduct and set off from the damages to the land not actually taken;' any special benefits resulting to the farm from the construction and operation of the road. This is in the face of section 9 of the Eminent Domain act, and Keithsburg and Eastern R. R. Co. v. Henry, 79 Ill. 290.
    The court erred in permitting .appellee to withdraw its motion for a new trial, against the objection of appellants, after the same had been confessed, and consented to by appellants. Penn v. Oglesby, 89 Ill. 110.
    Mr. R. B. Shirley, for the appellee:
    The testimony as to the damages amounts to nothing but the opinions of witnesses, and the jury were only required to weigh such testimony, and give such weight as they believed it to deserve. Keithsburg and Eastern R. R. Co. v. Henry, 79 Ill. 290.
    Where the jury go upon the premises and make a personal examination, what they thus learn from their own observation the court can not know. The result of such investigation may have justified the assessment made, even if the preponderance of the evidence in the record might be different. Chicago and Iowa R. R. Co. v. Hopkins et al. 90 Ill. 323.
    The term “special benefits,” in the instruction complained of, means such as are special to the land, and not those that are common to other property.

      There was no error in allowing appellee to withdraw the motion for a new trial, nor in refusing to allow appellants to open and close the case to the jury. Village of Hyde Park v. Dunham, 85 Ill. 572.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a petition filed by the Burlington and Ohio Biver Bailway Company, in the county court of Macoupin county, for the purpose of condemning, for the right of way of its railway, two certain strips of land. The defendants in the petition were the owners of two different farms, lying each in a compact body, and consisting, one of 256 acres, and the other of 420 acres. The petition sought to condemn a strip of land through the smaller body, ninety feet wide, containing acres, and one through the other, sixty-six feet wide, containing 9 acres and a fraction. A cross-petition was filed by the defendants, claiming damages to the whole of the several 256 acres and 420 acres. ' The jury went upon and viewed the premises, as provided for by the statute, and found the damages to be, to the smaller tract, $404.20, and to the larger, $859.50,—$1263.07 in all. The defendants appeal from the assessment.

It is complained that the verdict is clearly against the preponderance of the evidence. This would be so if the opinions of witnesses, as expressed, were to be taken as the measure of damages. The sum of the several estimates of damages, divided by the number of witnesses, would give an amount much larger than that which was assessed. But this is not the mode to deal with the opinions of witnesses. They are not to be passively received and blindly followed, but they are to be weighed by the jury, and judged of in view of all the testimony in the case and the jury’s own general knowledge of affairs, and have only such consideration given to them as the jury may believe them entitled to receive. The opinions of witnesses is a variable and uncertain class of testimony, especially upon a question of damages like the present, where there was no matter of special damage claimed, but damage only from the general inconvenience of carrying on the farm with the railroad running through it. An,illustration is found in this case, where opinions of the amount of damages range from nothing to $4000 and upwards. There was testimony that the land would be specially benefited in the draining of it. The basis upon which the larger amounts of damages was estimated, was, in part, of the most unreliable and unsatisfactory character,—such as, the danger of crossing with teams, and danger of children and members of the family getting hurt, besides the general inconvenience in carrying on a farm divided into two parts by a railroad. The inconvenience of carrying on the farm because of the railroad would be a legitimate item of damage to be considered, although the damage from that source would be largely conjectural, and not susceptible of anything like definite ascertainment; but injury from the other sources of danger above named would be but merely possible. Such merely possible damages do not form a proper basis for the assessment of the amount of damages,—it is only such damages that are reasonably probable. See Jones v. Chicago and Iowa R. R. Co. 68 Ill. 380.

The opinions of witnesses, here, were extremely conflicting. The jury went upon the premises, and saw for themselves the situation. What was the influence of the evidence which the jury thus derived from their own personal observation in determining the value to be placed upon the opinions of witnesses, we know not. The force of such evidence was remarked upon in Chicago and Iowa R. R. Co. v. Hopkins, 90 Ill. 323, where we said the result of the jury’s own observation, where they go upon and view the land, may have been such as to have justified the assessment made, even if it was clear the preponderance of evidence preserved in the record was against the amount of the assessment. We can not say that the finding of the jury, here, was so manifestly wrong under the evidence that it should be disturbed.

Objection is taken to the refusal of the court below to permit the defendant’s counsel, on his motion, to open and close the case before the jury. The decisions of courts are not uniform upon this question. The general rule, as laid down in Wharton on Evidence, sec. 357, is: “It may be stated, as a test of universal application, that whether the proposition be affirmative or negative, the party against whom judgment would be given as to a particular issue, supposing no proof to be offered on either side, has on him, whether he be plaintiff or defendant, the burden of proof, which he must satisfactorily sustain.” The present proceeding is not one by the land owner to have an assessment made of his damages or compensation for the taking of his land, but it is a proceeding instituted by the railroad company to ascertain what is a just compensation for the land sought to be appropriated. By our State constitution the land can not be acquired without just compensation to the land owner, to be ascertained by a jury. The statute upon the subject contemplates that the jury are to ascertain the compensation “after hearing the proof offered.” Should there, then, be nó proof offered, the petitioner would be defeated. It would fail of having an ascertainment by the jury upon proof offered of what was a just compensation for the land, without which it would be unable to acquire the land sought to be appropriated. Under the rule, then, that the party entitled to begin is he who would have a verdict against him if no evidence were given on either side, we think the court below properly ruled that the petitioner should open and close. This view is in agreement with the decision of the Supreme Court of Ohio upon this precise question, in the well considered case of Neff v. Cincinnati, 32 Ohio St. 215, under the constitution and statute of that State, which we take to be similar to ours upon this subject.

The petitioner moved the court below for a new trial, and consented that the motion be overruled pro forma. The defendants confessed the motion. The petitioner then asked leave to withdraw the motion. Leave was granted, to which ruling defendants excepted, and entered their motion for a new trial, which motion was afterward overruled, and judgment entered upon the verdict. This action of the court in permitting petitioner to withdraw its motion for a new trial, against the objection of the defendants, after the same had been confessed and assented to by defendants, is assigned for error. The action of the court in the above regard was proper. There is nothing to preclude a party from withdrawing a motion he may have made, whether for a new trial, or of other character; and the consenting to the motion by the opposite party would make no difference.

The jury were instructed, that if, by the construction of the railway, the lands would be specially benefited to the extent, or greater than, they would be damaged, then the jury would only find a verdict for the compensation for the strips of land actually taken. Exception is taken to this instruction. The fault found with it is in the respect of special benefits, in not limiting them to such as are not common to other property. Special benefits mean benefits not common to other property; and any possible danger that there could have been of the jury being misled in that respect, was obviated by instructions asked and given on behalf of the defendants, defining and explaining special benefits as such that were not common to other property.

Finding no error in the rulings below, the judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    Calvin H. Frew v. George H. Taylor.

      Filed at Springfield March 29, 1883.

    1. Tax title—defeat in notice of application for judgment cured by appearance and resisting application. Where the owner of land appears and. resists an application for judgment against the same for taxes, this is a waiver of all objection to the sufficiency of the notice of the application, and gives the court jurisdiction, and he or his grantee will not be allowed to urge the insufficiency of the notice to defeat a sale made under the judgment of the court in such proceeding.
    2. Same—former adjudication—as to objections filed. Where the owner of land appears and files objections to the rendering of judgment against the same for taxes, which are overruled, the questions thus put in issue and decided against him become res judicata, and he and his grantee will be precluded from urging the same matters thus decided to defeat the tax title acquired by a sale under the judgment.
    3. Same—mere error no ground to defeat tax sale. Where the court rendering a judgment against land for taxes has jurisdiction, the judgment, though erroneous, is just as conclusive until reversed as if it was entirely free from all error.
    4. Same—of the proof required to support judgment for taxes. On application for judgment against land for taxes, the collector’s report of the list of delinquent lands, when proof is made of the notice of the application, makes out a prima facie case in support of the application, and judgment will be rendered upon it unless good cause is shown to the contrary by those contesting the same; and when the application is resisted, and the objections to the rendering of judgment are overruled, and the land sold and a tax deed taken out, the party relying on such tax deed is not required to prove that the taxes were lawfully levied, and the authority to collect the same, to maintain his title.
    5. Same—variance between amount of judgment and amount bid 'at the sale—as affecting the validity of the sale. The question of variance between the amount of the judgment against land for taxes and the amount bid at the sale not being jurisdictional, can not affect the validity of the title acquired at the sale. It seems questionable whether the addition of the costs to the amount of the judgment constitutes any variance.
    6. Same—of the precept—by whom to be issued, in case of appeal to circuit court—form of the precept. Where judgment has been rendered against lands or lots for taxes, on appeal to the circuit court it is the duty of the circuit clerk to make and deliver to the county clerk a record of the lands and lots against which judgment is rendered, substantially as is required of county clerks by section 194 of the Bevenue act, which shall constitute the process on which such lands shall be sold. Such record, made in substantial compliance with the statute, will be sufficient, and it will not be invalidated by the insertion therein of more than the statute requires. The statute having prescribed no form to be observed, the addition of useless but not repugnant matter will not vitiate it.
    7. Same—effect of a precept also issued by the county cleric. Where a sufficient precept of sale of delinquent lands has been made out by the clerk of the circuit court on a judgment against real estate for taxes, rendered in that court on appeal from the county court, and delivered to the county clerk, which, alone, is a sufficient authority for the sale, a precept of sale, also issued by the county clerk for the same purpose, being an abortive attempt to confer power already existing, is harmless, and can not invalidate the sale.
    8. Same—of the notice to be given before taking out tax deed. Under section 5, article 9, of the constitution, relating to notices of tax sales, the legislature is unrestricted as to the kind of notice to be given. It may be provided that the notice shall be by publication, and if by publication', in what form, or that it shall be otherwise, and prescribe in what manner. The only imperative requirement is, that occupants shall be served with personal notice.
    9. The affidavit of the notice of a purchase at a tax sale showed that no person was in the actual possession of the land sold, to a period less than three months before the time of redemption expired, which is more than the statute requires; that the land was assessed in the name of J. M., and that he, upon diligent inquiry, could not be found in the county, and did not reside therein for any period of the time from the day of the sale down to within three months before the expiration of the time of redemption, and it appeared from the record that J. M. continued to he owner of the land until the sale for taxes: Held, that it was not the duty of the purchaser, in giving notice under the statute, to hunt up other parties claiming to have subsequently acquired an interest in the property, and that notice by publication was sufficient to entitle him to a deed.
    10. The statute prescribes no form of notice to be published,'and specifies nothing essential, except that which is to be included in the body of the notice,—-that is, when the land or lot was purchased, in whose name it was taxed, the description of the land or lot, for what year taxed, and when the time of redemption expires. It is no objection that it is directed “to whom it may concern.”
    Appeal from the Circuit Court of Ford county; the Hon. Owen T. Beeves, Judge, presiding.

      Mr. Calvin H. Frew, pro se.

    Mr. Charles H. Wood, for the appellee.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This appeal brings before us for review the record of a judgment of the Ford circuit court, in an action of ejectment, wherein appellee was plaintiff and appellant was defendant. On the trial it was admitted by appellant that the United States conveyed the tract of land in controversy to the Illinois Central Railroad Company; that that company conveyed the same to James Mix, on the 30th of April, 1870, and that he conveyed the same to appellee on the 1st of November, 1879. There is, therefore, no question as to the completeness and sufficiency of appellee’s chain of title, unless it has been broken by legal proceedings divesting the title from that chain, and investing it in appellant. Appellant claims that this has been done by judgments and sales for taxes, and deeds made pursuant thereto, and in support of this claim he offered in evidence the record of a judgment of the Ford county court, of its May term, 1875, for the delinquent taxes of 1874, against this tract of land. Appellee interposed the objection, and now insists upon it, that there was not proper foundation laid for the reading of this judgment in evidence. He contends that appellant should have proved the lawful levy of a tax, authority to collect it, and the publication of the notice in such case prescribed by statute, none of which, he insists, was proved. It is enough to say, in reply to this, that the record affirmatively shows that James Mix, the then owner of the land, appeared before the county court in person, and filed numerous objections, in writing, embracing all those now urged by appellee, and more, against the rendition of the judgment; that those objections were overruled, and a sale of the tract of land ordered by the court; that Mix appealed from this judgment to the circuit court of that county, where the same objections were passed upon and overruled, and judgment was rendered that the tract of land be sold, and that Mix appealed from that judgment to this court, and we here affirmed the judgment of the circuit court. We held in The People ex rel. v. Sherman et al. 83 Ill. 165, and Hale v. The People ex rel. 87 id. 72, that a general personal appearance by the owner of real estate to an application to sell it for delinquent taxes, is a waiver of all objections to the sufficiency of the notice; and in Graceland Cemetery Co. v. The People, 92 Ill. 621, we said: “Where there is no want of jurisdiction, an erroneous judgment is just as binding on the parties to it, until reversed, as a judgment entirely free from error,” — and this has been followed in Belleville Nail Co. v. The People, 98 Ill. 399, and Gage v. Bailey, 102 id. 11. When the record in that case was before us we overruled these identical objections now urged, holding that on an application for judgment against lands for taxes, the collector’s report of the list of delinquent lands, where proof is made of the notice of the application, makes out a prima facie case, and judgment will be rendered upon it unless good cause be shown to the contrary by those contesting the same, and that no such cause was there shown; and we held, -also, the proof of publication of the notice then before us sufficient. It is too clear to admit of controversy that all questions then in issue are now res fidicata.

The question of' variance between the amount of the judgment and the amount bid at the sale, sought to be raised by counsel, is not jurisdictional, and can not therefore affect the validity of the title acquired at the sale, whether it be well or ill founded. (Spellman v. Curtenius, 12 Ill. 409.) What is claimed to be a variance is caused by the mere addition-of costs, and we incline to the belief that in fact there is no variance, the costs being properly added. But we regard it unnecessary to express any opinion on this subject.

The objection was urged by appellee in the court below, and is also renewed here, that after the affirmance of the judgment for delinquent taxes against the tract of land in controversy in this court, and after the record was remitted to the circuit court, the county clerk made out a new precept, under which the lands were sold, which, as he contends, was wholly unauthorized by law. Appeals in this class of cases, from the county court to the circuit court, were authorized by section 192, chapter 120, Rev. Stat. 1874, and it is provided by section 193 of that chapter, that “if judgment shall be rendered against any particular lot, piece, parcel or tract of land embraced in such appeal, it shall be the duty of the clerk of said circuit court, in all cases of appeal, to make and deliver to the county clerk a record of the lands and lots against which judgment was rendered, substantially as is provided for county clerks in section 194 of this act; which record, when filed in the office of said county clerk, shall be the process on which such real estate, or any interest therein, shall be sold for such taxes or assessments, as well as the record for the sale thereof; and it shall be the duty of the county collector, assisted by the county clerk, to proceed and sell the same for the amount of s.uch judgment and costs, in the manner provided where judgment is rendered by the court against delinquent real estate.” The provision of section 194 thus referred to, is : “The county clerk shall, before the day of sale, make a record of the lands and lots against which judgment is rendered, which shall set forth the name of the owner, if known, the description of the property, the total amount of judgment on each tract or lot, and the year or years for which the same is due, in the same descriptive order as said property may be set forth in the judgment book, and shall attach thereto a copy of- the order of court, and his certificate that such record is correct.”

As we understand this record, the clerk of the Ford circuit court did make out and deliver to the county clerk of that ' county a record in substantial compliance with these provisions of the statute. It shows a record of a judgment against the south-east quarter of the south-east quarter of the northwest quarter of section 8, township 23, range 10,—the tract of land in controversy. It sets forth the name of the owner, (James Mix,) and shows him to be the contestant appealing the application for judgment. It shows the total amount of the judgment on this tract to be $8.85. It is in the same descriptive order as the property is set forth in the judgment book, and it has attached thereto a copy of the order of the court. Undoubtedly this is done in an awkward and unclerical way,—being, in truth, by certifying a complete transcript of the record,—but all that the law requires is therein set forth and shown. The only practical difference between this and a more artistic and formally correct record is, it requires more labor to obtain the knowledge designed to be thereby imparted; but the statute prescribes no form to be observed, and we are not prepared to hold that the addition of useless but not repugnant matter vitiates it. It need only be said with regard to the precept of the county clerk, if, without that precept the record was sufficient, it is not possible that it could vitiate it. No instance is recalled wherein an abortive attempt to confer power, where it already exists, vitiates or annuls the preexisting power. In that view, at most, the precept was only supererogatory.

The final objection urged by appellee against appellant’s title relates to the sufficiency of the affidavit for the tax deed. He urges three objections to it:

First—Although it is proved that appellee became owner of the land November 1, 1879, no effort is shown to find him or serve him with personal notice.
Second—The notice published is insufficient, because it is only to “whom it may concern. ”
Third—The affidavit does not state, particularly, the facts relied on as compliance with the law.

The constitutional mandate is, simply: “And the General Assembly shall provide, by law, for reasonable notice to be given to the owners or parties interested, by publication or otherwise, of the fact of the sale of the property for such taxes or assessments, and when the time of redemption shall expire: Provided, that occupants shall, in all cases, be served with personal notice before the time of redemption expires.” (Const. 1870, art. 9, sec. 5.) And it will thus be observed that as to the kind of notice to be given the General Assembly is unrestricted. It may enact that it shall be by publication, and if by publication, in what form, or that it shall be otherwise, and prescribe how. The only imperative requirement is, that occupants shall be served with personal notice. The General Assembly, in obedience to this mandate, enacted: “Such purchaser or assignee shall serve, or cause to be served, a written or printed, or partly written or partly printed, notice of such purchase, on every person in actual possession or occupancy of such land or lot, and also the person in whose name the same was taxed or specially assessed, if, upon diligent inquiry, he can be found in the county, at least three months before the expiration of the time of redemption on such sale, in which notice he shall state when he purchased the land or lot, in whose name taxed, the description of the land or lot he has purchased, for what year taxed or specially assessed, and when the time of redemption will expire. If no person is in actual possession or occupancy of such land or lot, and the person in whose name the same was taxed or specially assessed, upon diligent inquiry can. not be found in the county, then such person or his assignee shall publish such notice. ” It thus appears that it was not necessary, under the facts here shown, to make an effort to find the owner of the land. The affidavit explicitly shows that no person was in the actual possession of the land to a period less than three months before the time of redemption expired, which is more than the statute required; that the land was assessed in the name of J ames Mix, and that he, upon diligent inquiry, could not be found in the county, and did not reside therein for any period of the time from the day of said sale down to within three months before the expiration of the time of redemption. The record shows, not only that James Mix was owner of the land when taxes for which it was sold became delinquent, but that he continued to be such owner until after the sale. Under that state of case we do not regard it as having been the duty of appellant, in giving notice, to hunt up other parties claiming, to have subsequently acquired interest in the property.

The objection that the notice is “to whom it may concern, ” we regard as untenable. • The statute prescribes no form of notice. It directs no particular caption or-address, and does not specify anything as essential except that which is to be included in the body of the notice,—i. e., when the land or lot was purchased, in whose name it was taxed, the description of the land or lot, for what year taxed, and when the time of redemption expires,—all of which this notice contains.

The objection to the affidavit we do not think has any support in the facts. It does sufficiently show the particular-facts relied on as a compliance with the law, and those facts we deem sufficient to support appellant’s deed.

The questions arising upon the second judgment do not differ materially from those we have herein noticed arising upon the first. Our conclusion is, the court below erred in excluding the evidence of appellant’s title offered, and for that error the judgment must be reversed and the cause remanded.

Judgment reversed.


author: Mr. Justice Mulkey

text:
    The Heirs of Peter Critz v. Hiram L. Pierce.

      Filed at Springfield March 29, 1883.

    1. Will—probate of will—sufficiency of proof. 'Where a will is properly signed by the maker and two attesting witnesses, both of the witnesses testifying they were present and saw the testator sign the will in their presence, and that they believe he was of, sound mind and memory at the time of executing it, this, in the absence of proof of any fraud, compulsion, or other improper conduct, is sufficient to make out a prima facie case, and entitle the will to probate.
    2. Same—evidence admissible in opposition to probate. In a proceeding to probate a will, on appeal to the circuit court the contestants may introduce any evidence tending to show there was fraud, compulsion, or improper conduct connected with its execution, that will invalidate or destroy the same; and when the proponent of the will has been appointed conservator of the testator before the date of the proposed will, and continued as such up to the testator’s death, the fact, and the inquest resulting in the appointment of the proponent, and other evidence as to insanity, may, it seems, be received upon the question of fraud, compulsion, or other improper conduct, but not to establish the distinct and independent defence of unsoundness of mind of the testator.
    3. Same—of the witnesses who may testify in resistance of probate of will—upon the question of sanity. On appeal to the circuit court from an order of the county court refusing to probate a proposed will, the light to go into general evidence of the sanity of the testator, outside of the testimony of the subcribing witnesses, is expressly limited to those “seeking probate,” while the parties resisting probate are restricted to the testimony of the subscribing witnesses upon the question of sanity.
    4. Same—contesting will in chancery—how the right affected by having resisted probate of will—and of the evidence admissible. A party, by appearing and resisting an application to admit a will to probate in the county court, or in the higher courts on appeal, when unsuccessful is not concluded by its admission to probate, but may, at any time within three years, file his bill in chancery, and contest the validity of the proposed will, when he may introduce any and all legitimate testimony, outside of that of the attesting witnesses, to show the testator was not of sound mind at the time of executing the same, or any other matter or thing which will establish the fact that the writing is not the will of the person it purports to be.

      Appeal from the' Appellate Court for the Third District; —heard in that court on appeal from the Circuit Court of Logan county; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Moore & Warner, for the appellants:
    Peter Critz, Sr., having been adjudged a distracted person, incapable of the control of his own property, and a conservator having been appointed, could not dispose of his property by contract or devise, until restored by an order of court, (Rev. Stat. chap. 86, secs. 5, 14, 16, S3, 37, Ayers v. Mussetter, 46 Ill. 472, Gardner v. Maroney, 95 id. 558,) and that finding is conclusive until set aside by the direct proceeding provided by the .statute, and can not be inquired into collaterally. Wight v. Wallbawn, 39 Ill. 563; Gardner v. Maroney, 95 id. 560; Dodge v. Cole et al. 97 id. 351; Emmert v. Hays, 89 id. 12; Bigelow on Estoppel, 159, 160.
    Pierce, the proponent of the will, having continued to act as the conservator of Critz until his death, is estopped from claiming that Critz was of sound mind and memory at the time he executed the supposed will. And if such conservator is not estopped, he should be required to show, beyond a reasonable doubt, his ward’s mental capacity, etc. Breed v. Pratt, 18 Pick. 115.
    A will, drawn at the dictation of a conservator, sustaining a relation of peculiar confidence with the testator, is presumptively fraudulent, and must be supported by strict proof that the testator, at the time of executing the instrument, was capable of making a will, and that no undue influence was used or advantage taken to obtain its execution. Vreeland v. McClelland, 1 Bradw. 393; Limburger v. Ranch, 2 Abbott, (N. S.) 279; Lee v. Dill, 2 Abb. Pr. 214; Saber v. Renney, 33 Barb. 49; Crispell v. Dubois, 4 id. 393; Lansing v. Russell, 13 id. 510; Stratham v. Ferguson, 25 Gratt. (Va.) 28; Delayfield v. Parrish, 25 N. Y. 9.

      It is settled law that one under guardianship is prima facie incompetent to make a will. 1 Redfield on Wills, (2d ed.) secs. 42, 43, chap. 3, pp. 103, 113.
    When one who has been adjudged to be a distracted person, under guardianship, has become able and desires to make a will, application should be made to the court, which may permit him to do so under the superintendence of an officer of the court. 1 Redfield on Wills, (2d ed.) 37; The Matter of Burr, 2 Barb. Ch. 208.
    It was competent for the contestants to introduce rebutting testimony, not only for the purpose of showing that fraud, compulsion, or other improper conduct was practiced on Critz to procure his execution of the instrument, but also to show that he was not of sound mind and memory at the time. Dickey v. Carter, 42 Ill. 376; Reynolds et al. v. Adams, 90 id. 134; Waterman v. Whitney, 1 Kern. 157; Boyland v. Meeker, 4 Dutch. 274.
    Messrs. Blink & Hoblitt, for the appellee:
    The evidence showing the appointment of a conservator was competent for but one purpose,—to show the relation of the parties. The probate having been refused in the county court, other witnesses could be called by the proponents besides the subscribing witnesses. Underwood’s Stat. chap. 148, sec. 13.
    The contestants of the will can not, on such trial, introduce evidence of the mental capacity of the testator, except for the purpose of showing that the person making the will was a subject that might be controlled by improper influences, and for no other purpose. Underwood’s Stat. sec. 13, chap. 148; Rev. Stat. 1833, secs. 2,135, p. 612; Walker v. Walker, 2 Scam. 294; Rev. Stat. 1845, sec. 1, p. 596, act of February 25, 1845; Andrews et al. v. Black et al. 43 Ill. 256.
    The contestants of a will can only introduce evidence of mental capacity of the testator, to establish incapacity to make a will, in a trial upon bill in chancery to contest the will after it has been admitted to probate. The testamentary capacity of a person making a will does not depend upon whether he was under guardianship, but upon his mental capacity at the time the will was made. Stone v. Damon, 12 Mass. 488; 1 Jarman on Wills, (5th ed.) 37.
    It is incumbent on the part of those charging undue influence or fraud, to affirmatively prove it. Roe v. Taylor, 45 Ill. 485.
    The undue influence, to vitiate an act like making a will, must amount to force and coercion, destroying free agency, and there must be proof that the act was obtained by this coercion. Gardner v. Gardner, 22 Wend. 540; Roe et al. v. Taylor, 45 Ill. 485; Rutherford v. Morris, 77 id. 397; Allmon et al. v. Pigg, 82 id. 149; Chandler v. Ferris, 1 Harr. 464.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Peter Critz, Sr., being possessed of an estate amounting to some §50,000 or §60,000, departed this life, at his residence in Logan county, this State, on the 26th day of June, 1881, leaving an instrument purporting to be his last will and testament, which was subsequently, on the 18th day of July, 1881, filed by Hiram L. Pierce, the executor therein named, in the county court of said county, and asked to be admitted to record as such. The case was heard at the following August term of the county court, resulting in the refusal of that court to admit the instrument to probate as the will of the deceased. On appeal to the circuit court a contrary conclusion was reached, and the instrument in question was ordered by that court to be admitted to record as such will. From this last order the heirs at law of the deceased have appealed to this court.

The instrument, so far as anything appears on its face, seems to have been executed in conformity with the statute. It was properly signed by the testator and two attesting witnesses, both of whom swore, on the trial, they were present, and saw the deceased sign it in their presence, and that they believed that he was of sound mind and memory at the time of executing the same. This, in the absence of proof of “any fraud, compulsion, or other improper conduct, ” was sufficient to make out a prima facie case, and entitle the instrument to probate. To meet this case the appellants examined a large number of witnesses, with the view of showing the deceased was of unsound mind at the time of making the alleged will, and also introduced the records of the county court, from which it appears the deceased, at the July term, 1878, of said court, was adjudged a person of unsound mind, and incapable of transacting his own business or of managing his own estate, and that in pursuance of such adjudication Hiram L. Pierce, the appellee, was appointed conservator of his estate, which office and trust he thereupon assumed, and continued to fill and discharge up to the time of the death of the said Peter Critz. This evidence was heard by the court as indirectly bearing upon the question whether there was “any fraud, compulsion, or other improper conduct, ” connected with the execution of the instrument that would “invalidate or destroy the same” as a will,—which, by the express words of the statute, may always be shown where the proponent of a will is seeking to have it admitted to probate. But the court being of opinion this evidence was not admissible for the purpose of establishing, as a distinct and independent defence to the proceeding, unsoundness of mind or want of testamentary capacity in the testator, refused to consider it for that purpose, and the ruling of the court upon this point presents the most important question in the present controversy, and the only one we deem it necessary to discuss.

The question thus presented is not an entirely new one, and as we understand it, the rule or principle which must control it is settled by the previous decisions of this court. The first ease bearing on the question is that of Walker v. Walker, 2 Scam. 291, which was an appeal by the executrix from an order of the circuit court of Cook county denying probate of a will. A similar order had been made in the probate court, from which an appeal had been taken to the circuit court. It was held in that case, under the statute then in force, which, with certain exceptions hereafter to be noted, was substantially the same as the law governing the present case, that on such an appeal “it is not competent for either party to introduce any testimony in relation to the sanity of the testator, except that of the subscribing witnesses, ” and that if the will is not sustained by these witnesses it should not be probated. Under this construction of the statute, of the correctness of which we have no doubt, it will be perceived that parties interested in sustaining the will were placed completely at the mercy of the subscribing witnesses, so far as the sanity of the testator was concerned. If, where there were but two attesting witnesses, one of them, from corrupt motives, or otherwise, should refuse to swear that he believed the testator was of sound mind at the time of the execution of the will, however palpable it might be that such was the fact, and however many witnesses were present, other than the subscribing witnesses, by whom such fact might be satisfactorily established, the proponents of the will, under the law, as it then existed, were entirely remediless. But not so, however, with those interested in defeating the will, where it had been improperly admitted to probate. Such parties, under the law then in force, were allowed five, and under the present are allowed three years, in which to contest, by bill in chancery, the validity of a will thus admitted to probate, in which proceeding either party is permitted, on the trial, to go into general evidence touching the testator’s sanity, or any other matter or thing which may tend to defeat or establish the will. With a view of remedying this defect in the law, and for the purpose of placing those interested in establishing the will on something like equal terms with those interested in defeating it, the legislature, by act of the 25th of February, 1845, (Rev. Stat. 1845, page 596,) provided, in substance, that upon an appeal from an order of the probate court refusing probate of a will, it should “be competent for the party seeking prohate of the will, to support the same, on hearing in the said circuit court, by any evidence which would be competent” in a proceeding in chancery for the purpose of contesting a will. And it is further provided by this act, that a will thus proved shall be admitted to probate, but subject, however, to be contested in the same manner as “in case of wills admitted to probate in the first instance. ” This provision is the same, in substance, as the present law on that subject, and has been the law of this State ever since it was first adopted.

There are several considerations which repel the idea the legislature intended by this act to authorize parties resisting the probate to avail themselves of its provisions, two of which appear on the face of' the act itself. First, it will be perceived the right to go into general evidence on such an appeal is expressly limited to those “seeking probate” of the will. In the second place, with the view of rebutting the presumption that those interested in defeating the will might, in any manner, be concluded or prejudiced by permitting the proponents of the will to thus go into general evidence in its support, it was expressly provided that its admission to probate upon such general evidence should not affect the former’s right to contest the validity of the will by bill in chancery, as then provided by law. If it had been intended that upon such appeal both parties should go into general evidence upon the subject, what object or purpose could have been subserved by retaining the remedy by bill ? Could it have been intended that the parties resisting the will should have the benefit of a full trial on .the merits, and if defeated, then turn round and • bring their bill in chancery, and relitigate the matter again upon the merits ? Certainly not; yet such would be the case if the view insisted on is the correct one. But, it may be asked, if one resisting a will is a mere looker on upon such an appeal, why is he permitted to become a party to the proceeding at all ? He is not bound to; yet to avoid being driven to his bill in chancery, he is permitted by the statute to do so. He has the right to appear and see the proponent of the will, by proper and legitimate testimony, makes out a prima facie case warranting the admission of the alleged will to probate. When this has been done, and he is unable to produce satisfactory evidence of “fraud, compulsion, or other improper conduct, ” sufficient to invalidate or destroy such will, and it does not otherwise appear from the evidence, he has done all the law permits him to do in that proceeding. If he has countervailing testimony upon the testator’s sanity or capacity to make a will, he must resort to his bill in chancery. The conclusions reached by this court in Andrews et al. v. Black et al. 43 Ill. 256, and Weld, Exr. v. Sweeney, 85 id. 50, fully sustain the view here presented.

It is claimed that Dickie et al. v. Carter, 42 Ill. 376, and Reynolds et al. v. Adams, 90 id. 134, are inconsistent with the view here taken. This is a misapprehension. In the latter case the will was admitted to probate in both the probate and circuit courts, and hence the question could not have arisen. It is true that in the Garter case general evidence touching the testator’s sanity was gone into on both sides, but no question as to its competency was made, and hence this court did not, and could not, have passed upon the question. Here, the question is directly presented for determination. We have been referred to no case, and know of none, laying down a different rule from the one here announced.

The appellants are by no means concluded by the conclusion reached here or in the circuit court. They may to-morrow, or at any time within the limitation of three years, by bill in chancery, contest the validity of said will, in which proceeding they will be permitted to introduce any legitimate testimony tending to show the testator was not of sound mind at the time of executing the same, or any other matter or thing which will establish the fact that the instrument in question is not the will of Peter Critz, Sr.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    Ebenezer B. Mitchell v. John H. Milholland.

      Filed at Springfield March 29, 1883.

    1. Evidence—proof of the reversal of a decision relied on, by a higher tribunal. Where one party on the trial of a cause introduces in evidence and relies on the decision of the presbytery as having a bearing upon the merits of the case, there is no error in allowing the opposite party to show the proceeding of the synod, a higher church tribunal, reversing and annulling that decision, the synod being invested with power to decide the question involved.
    2. Slander—malice implied from speaking actionable words. In an action for slander, in which a plea of justification was interposed, the court instructed the jury, in substance, that the words “he perjured himself,” “you swore to a lie,” (having reference to the plaintiff’s testimony in a suit,) when spoken concerning a person in the hearing of others, are what the law terms “actionable words,” and from the speaking of such words the law implies malice, and presumes that the person concerning whom the words are spoken is damaged: Feld, that the instruction stated the law correctly.
    3. Same—malice in fact need not be proved. In an action for slander the law does not require malice in fact to be proven, as malice is implied from the speaking of slanderous words.

      4. Instruction—plaintiff need not anticipate defence. The plaintiff is only obliged to state the law correctly in his instructions applicable to his theory of the case, and is not bound, in every instruction, to anticipate and exclude every possible defence.

      5. So in an action for slander, when the speaking of the words were justified as true, an instruction that the words charged were actionable, and imported malice, is not erroneous as ignoring the fact of the truth of the words spoken, especially when the jury are instructed for the defence that if they find the words spoken are true, no recovery could be had.
    6. Same—assumption of fact. Where one party gave in evidence a decision of a presbytery that the session had no right to elect a new clerk without declaring the office vacant, or giving notice to the incumbent of the office, and the other party then gave in evidence a contrary ruling, made by a higher church tribunal on appeal from the presbytery, it was held, that an instruction for such other party that the session had the right to elect the new clerk without declaring the office vacant or giving notice to the incumbent, was not erroneous as an unwarranted assumption of fact, as it left the matter where the ecclesiastical decision placed it.
    7. Same—not based on evidence, properly refused,. Where the record fails to show any evidence on which an instruction is asked, there is no error in its refusal.
    8. Limitation—as applicable to new count in declaration. Where an amended declaration filed in a cause is merely a restatement of the cause of action as originally declared on, but in a different form, such amendment will not be regarded as introducing a new cause of action so as to give effect to the bar of the Statute of Limitations.
    9. So where an amended declaration was filed in an action for slander after one year from the speaking of the words, merely restating the words spoken, and introducing no new cause of action, an instruction that if the slanderous words set out in- the amended declaration were spoken more than one year before the amended declaration was filed the action for such words was barred, was held properly refused.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.
    Messrs. Williams, Burr & Capen, and Messrs. Rowell & Hamilton, for the appellant:
    It is not slander to speak the truth of another. McDavid v. Blevins, 85 Ill. 238.
    The plea of justification puts in issue the truth of the alleged slanderous statement, and it is error to charge the jury, where such plea is filed, that if they believe, from the evidence, that the defendant spoke the words charged, they should find him guilty.
    In a contested case, where there is a conflict in the evidence, the jury should be very carefully instructed; and if an instruction is given on one side that standing alone would be erroneous, the error is not cured by giving a counter instruction for the other side. Springdale Cemetery Association v. Smith, 24 Ill. 482; Chicago, Burlington and Quincy R. R. Co. v. Payne, 49 id. 505; Chicago, Burlington and Quincy R. R. Co. v. Dunn, 61 id. 386; Toledo, Wabash and Western Ry. Co. v. Larmon, 67 id. 68; Chicago, Burlington and Quincy R. R. Co. v. Harwood, 80. id. 88; Camp Point Manf. Co. v. Ballou, 71 id. 417; Swan v. People, 98 id. 610; Stratton v. Chicago City Horse Ry. Co. 95 id. 25; Steinmeyer v. People, 95 id. 383; Rupp v. Jarrett, 94 id. 479; Wabash Ry. Co. v. Henks, 91 id. 406; Illinois Linen Co. v. Hough, 91 id. 63; American Ins. Co. v. Crawford, 89 id. 62; Toledo, Peoria and Warsaw Ry. Co. v. Grable, 88 id. 441; Cushman v. Cogswell, 86 id. 62; Quinn v. Donovan, 85 id. 194; Ludwig v. Sager, 84 id. 99.
    The fact as to whether or not a man testified falsely, is to be determined by the facts and circumstances existing at the time, and not by any subsequent change of circumstances.
    A plea of justification in slander is not an aggravation, if made in good faith. Sloan v. Petrie, 15 Ill. 425; Hawver v. Hawver, 78 id. 412; Rev. Stat. chap. “Slander,” see. 3.
    Good faith goes in mitigation of damages. Moore v. Mauk, 3 Bradw. 114.
    Words spoken in good faith, in the belief that they are true, are not malicious in fact, and such good faith should always go in mitigation of damages.
    A cause of action that is barred by the Statute of Limitations can not be vitalized by amending or adding new counts to a declaration in a suit brought upon another cause of action. Illinois Central R. R. Co. v. Cobb et al. 64 Ill. 128, and cases cited; Illinois Central R. R. Co. v. Phelps, 4 Bradw. 238; Phelps v. Illinois Central R. R. Co. 94 Ill. 548.
    Messrs. Fifer & Phillips, for the appellee:
    The words, “he perjured himself, ” are actionable per se, without colloquium or inducement. Sanford v. Geddis, 13 Ill. 329.
    Malice is the gist of the action in slander. Gilmer v. Eubanks, 13 Ill. 274; Ayers v. Grider, 15 id. 37; McKee v. Ingalls, 4 Scam. 30.
    The speaking of actionable words is evidence of malice. McKee v. Ingalls, 4 Scam. 30; Flagg v. Roberts, 67 Ill. 485; Ayers v. Grider, 15 id. 37; Horsley v. Brooks, 20 id. 116.
    The law presumes that the person speaking actionable words intends the injury which the slander is calculated to effect. Baker v. Young, 44 Ill. 42; McKee v. Ingalls, 4 Scam. 30.
    Repetition of slanderous words may be considered by the jury on the question of malice, and in aggravation of damages, (Stowell v. Beagle, 79 Ill. 525,) and for this purpose a repetition after suit brought may be shown. Hatch v. Potter, 2 Gilm. 725.
    Justification, pleaded without a bona fide expectation of proving it, is a re-publication of the slander, and may be considered by the jury in aggravation of damages; and of the good faith of the plea the jury are the judges. Harbison v. Shook, 41 Ill. 141; Sloan v. Petrie, 15 id. 425; Spencer v. McMasters, 16 id. 405; Freeman v. Tinsley, 50 id. 497; Hawver v. Hawver, 78 id. 412.
    The law implies damage from the speaking of actionable words, (McKee v. Ingalls, 4 Scam. 30; Baker v. Young, 44 Ill. 42,) and the jury are to determine, from all the circumstances, what damage should be given, and are not confined to pecuniary loss or injury. Baker v. Young, supra; Spencer v. McMasters, 16 Ill. 405.

      Mental suffering, caused by words actionable per se, is proper to be considered as an element of damage. Adams v. Smith, 58 Ill. 417.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action brought by appellee, against appellant, for slander. The trial in the circuit court resulted in a verdict and -judgment for the plaintiff in the action, which, on appeal, was affirmed in the Appellate Court. The grounds for reversing the judgment relied upon here, are the admission of improper evidence, the giving of improper instructions for plaintiff, and refusing certain instructions asked by the defendant.

It appears from the record that there is a church in the west part of McLean county, of the Cumberland Presbyterian denomination, known as the West Union Church. Appellee was pastor, and appellant was one of the elders. In this church there were in all six elders. The session of the church, under the rules of the denomination, is composed of the elders and the pastor, the latter being, ex officio, moderator. In 1875 it appears that one Hayberger, an elder, was elected clerk of ■ the session, and no change was made in the office until 1879, when, as appears, some trouble arose between the pastor and appellant in regard to church matters, and Hayberger being in sympathy with appellant, at a meeting of the session, on September 5, 1879, he was superseded in the office of clerk by one Williams, who was then formally elected to that office. The church record was subsequently surrendered to Williams. At a meeting of the presbytery at Danvers, within which this church is located, in March, 1880, the following question 'was submitted to that body for decision : “Can a church session elect a clerk, when there is no vacancy, without notifying the acting clerk?” The decision of the question was deferred until the August meeting, at Lincoln, when the presbytery decided in the negative. Subsequently the session of West Union presented the question to the presbytery in form, and requested that body to decide who was the legal clerk of the session. In March, 1881, in conformity to the former decision, it was held that Hayberger was the legal clerk of the session. An appeal was taken from this decision to the synod of Sangamon, which body had the right and authority to review the decision of the presbytery, where the former decision, that Hayberger was clerk, was reversed, and Williams was declared to be the clerk of the session. In the meantime, however, after the decision of the presbytery on the question propounded, and before the decision of the synod, on January 4,1881, Hayberger brought an action of replevin against Williams, before a justice of the peace, to recover the possession of the church record. On the trial of this cause appellee was a witness, where the question involved was who was clerk of the session, and entitled to the custody of the record, and the alleged slanders grew out of the testimony given by appellee on that trial, appellant, on various occasions, making the charge, in substance, that appellee had sworn falsely on that trial.

On the trial of the cause appellant put in evidence the proceedings of the presbytery held at Stanford, in March, 1881, wherein it was decided that Hayberger was the lawful clerk. Appellee also read in evidence the proceedings of the synod reversing the proceedings of the presbytery, on appeal to that body,—and the decision allowing this evidence is claimed to be erroneous. Whether any of this evidence was strictly competent, is a question which it is not necessary here to decide; but it is apparent if the proceedings of the presbytery were legitimate evidence, the proceedings of the synod were also competent for the jury. Under the regulations of the church the synod had the power to reverse decisions of the presbytery, and when appellant interposed any right under the action of the latter body, it would have been manifest injustice to have denied appellee the right to prove that those proceedings had been annulled and set aside by a higher tribunal. The testimony which was charged to have been false was given before the decision had been rendered either in the presbytery or the synod, and if either of the decisions is to govern, it is very plain that the one made on appeal in the higher tribunal, as the one of last resort, must control. The reversed decision put in evidence by appellant could settle nothing, and the moment he put it in evidence appellee had the undoubted right to show that the decision had been reversed and annulled by a tribunal higher in authority.

We now come to the instructions claimed to be erroneous. Instruction No. 3 is the first one. In substance it directed the jury that the words “he perjured himself, ” “you swore to a lie, ” when spoken concerning a person in the hearing of other persons, are what the law terms “actionable words,” and from the speaking of such words the law infers malice, and presumes that the person concerning whom the words are spoken is damaged. Appellant had interposed a plea of justification to each count of the declaration, and he contends that the instruction is erroneous because it ignores the very material fact as to the truth of the words spoken. Of course the truth of the words spoken would defeat a recovery, but we do not understand that it was necessary to add the qualification as to the truth of the words spoken to every instruction given for the plaintiff. It was enough if the jury was distinctly directed, in any of the instructions, that if they found the charge or charges so uttered were true, no recovery could be had. In the third, and perhaps other instructions given for the defendant, the jury were, in clear and express terms, directed, that if they found, from the evidence, that the words spoken were true, no recovery could be had. There was no room for the jury to be misled by the instructions. The plaintiff’s third instruction informed them correctly as to the propositions of law upon his theory of the case, and then the defendant’s instruction came in and gave directions upon the theory of the defendant. We do not think the plaintiff was bound, in his instructions, to anticipate and exclude defences. As was said in Logg v. The People, 92 Ill. 598 : “The plaintiff is only obliged to present the law correctly in his instructions applicable to his theory of the case, and is not bound, in every instruction, to anticipate and exclude every possible defence.” What has been said in regard to the third, meets the objection urged against instructions Nos. 4 and 5.

It is objected to the ninth instruction, that in giving it the court determined a question of ecclesiastical law contrary to the ruling in Chase v. Cheney, 58 Ill. 509. Whether it was an “unwarranted assumption of the civil court,” as claimed by counsel, for the circuit court to instruct the jury that the session had the right to elect a new clerk without declaring the office vacant or giving notice to the incumbent of the office, is not a matter which could in the least affect the rights of the parties.- The decision of the presbytery, and the decision of the synod reversing that decision, and holding that the election of the new clerk was proper, were in evidence before the jury, and the instruction left the matter where the ecclesiastical decision, which appellant had brought before the jury, placed it.

Exception was taken to the eighth, twelfth, thirteenth and fifteenth instructions, but we perceive no substantial objection to either of them.

It is also contended that appellant’s first-refused instruction is correct, and the court erred in refusing it. This instruction is based upon the supposed fact that the presby- • tery at Lincoln had decided who was the legal clerk of the session; and as the record fails to show that such a decision had been made, there was no evidence upon which the instruction could be predicated, and for this reason, if for no other, the instruction was properly refused.

The second refused instruction directed the jury, that if the slanderous words set up in the amended declaration were spoken more than one year before the amended declaration was filed, the action for such words was barred by the Statute of Limitations. Had a new cause of action, not embraced in the original declaration, been brought into the suit by the amended declaration, the instruction might have been correct. But such was not the case. The amendment was a mere restatement of the cause of action by way of amendment, and, as was held in Dickson v. Chicago, Burlington and Quincy R. R. Co. 81 Ill. 215, this may be done without its being obnoxious to the objection of introducing new causes of action. The amendment was but a different form of. the same charge of slander alleged in the original declaration.

The third refused instruction in substance directed the jury, that “to constitute slander per sc, the defendant must have uttered the slanderous words charged in the declaration both falsely and maliciously. ” The law does not require malice in fact to be proven,—malice is implied from the speaking of the words. Gilmer v. Eubanks, 13 Ill. 271.

This disposes of the objections relied upon to reverse the judgment, and in conclusion we would add, that after a careful examination of the entire record we perceive no ground whatever for disturbing the judgment.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Chief Justice Scott

text:
    The People ex rel. A. G. Damron, State’s Attorney v. T. J. McCormick et al.

      Filed at Springfield March 29, 1883.

    1. Practice—in mandamus—traversing facts after demurrer to answer ■—discretion. Where a demurrer to an answer to a petition for a mandamus has been overruled, this court, in its discretion, may or may not allow an issue of fact to be made. It will be allowed when the ends of justice seem to demand it, otherwise it will be denied.
    2. Pleading—carrying demurrer back—in mandamus proceedings. The familiar rule that a demurrer will be carried back and made to reach the first defect in the pleading of either party, has its application in proceedings by mandamus, as well as to other pleadings, either at law or in equity.
    3. Mandamus—to compel inferior tribunal to do an act within its discretion. Where an inferior tribunal is invested by law with authority to decide any matter submitted to it, it may be compelled, by mandamus, to act; but how it shall decide a given case is always a matter for its judgment, and with the exercise of which no other tribunal or court may interfere.
    4. Same—to compel county board to require suit to be instituted against county clerk. A petition for a mandamus sought to compel a county board to require a county clerk, whose term of office had expired, to forthwith pay to the county treasurer certain moneys alleged to be in his hands belonging to the county, and in default thereof to require the relator, as State’s attorney, to commence suit on the official bond of the clerk for the recovery of such moneys. It appeared that the county board had once acted on the matter and refused to make such order. It was held, that the petition failed to show a case that would justify the granting of the writ, such matters being purely within the discretion of the county board, and a demurrer to the answer was sustained to the petition, and the same dismissed.
    This was a petition for a mandamus, filed in this court, the contents, object and purpose of which fully appear in the opinion of the court.
    Mr. A. G. Damron, State’s Attorney, pro se:

    As I understand the present practice, the petition takes the place of the alternative writ, and the answer that of the return. Wood on Mandamus, 43; People v. Glann, 70 Ill. 233.

      If the return is insufficient, the relator may demur or move to quash. Moses on Mandamus, 214; High on Extraordinary Remedies, sec. 460.
    A special demurrer is not necessary in any instance. Wood on Mandamus, 46.
    If the demurrer is overruled, the relator is at liberty to plead to or traverse any of the material facts alleged in the return. High on Extraordinary Remedies, secs. 496, 497.
    Messrs. Morris & Boyer, Mr. William A. Spann, and Mr. James M. Gregg, for the respondents:
    The demurrer filed by the relator should be carried back and sustained to the first defective pleading. Wood on Mandamus, 37.
    The petition is defective, because, first, the relator, as State’s attorney, had the power to sue on the official bond of respondent without any direction of the county board. (Rev. Stat. 1874, chap. 14, see. 5, par. 1.) Second, it was a matter within the discretion of the board to grant or refuse an order directing a suit when applied for, and being a discretionary matter, a mandamus can not be awarded. People ex rel. v. Chicago and Alton R. R. Co. 55 Ill. 95; County of St. Clair v. People, 85 id. 396.
    The action of the board in auditing the claim for extra clerk hire, and in approving the reports in which such credits were asked, was of a judicial character, and not subject to be reviewed by this court in this proceeding. Wood on Mandamus, 20.
    The object of the writ is to put the inferior tribunal in motion,—to compel it to act,—and not to review its action. The county board has acted in this matter,—a matter expressly committed to it by law. An appeal lies from its action in allowing claims against the county.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

This is an original proceeding in this court, and the petition is for a writ of mandamus. The suit is brought in the name of the People of the State of Illinois, on the relation of Almus G. Damron, who represents himself to be “the State’s attorney, and also a citizen and tax-payer, of Johnson county,” against T. J. McCormick, W. T. Davis and L. F. Walker, county commissioners of Johnson county, and Francis M. Jones, county clerk of the same county. It is alleged in the petition that the respondent (Jones) was elected county clerk of Johnson county at the general election in November, 1877, and thereafter entered upon the discharge of the duties of such office, and continued to hold siich office up to the first Monday of December, 1882, being for a period of five years, and that prior to his election the county board had fixed the salary of the county clerk at $1000 per annum, and the allowance for clerk hire at $240 per annum. It is then alleged that such clerk, after deducting his salary and the sum allowed for clerk hire, had still in his hands a certain sum received by him as fees earned in his office, and also that the county board had made him certain allowances for extra clerk hire, and for making the tax books, as required by statute they should be made, and that such allowances had been paid to him, either by fees in his hands or out of other funds in the county treasury, and that such allowances were made without authority of law, and therefore it is unlawful for respondent to have or retain the sums of money so paid to him. The prayer of the petition is for a writ of mandamus to compel the county commissioners of such county forthwith to enter an order of record requiring the county clerk tó pay to the county treasurer the sum or sums of money alleged to be in his hands that of right belong to the county, and in default thereof, that the county commissioners be required immediately to enter an order of record authorizing petitioner, as such State’s attorney, to commence suit upon the official bond of such county clerk for the recovery of the money so alleged to be due to the county.

Two of the commissioners,—McCormick and Davis,—and the county clérk, have filed an answer to the petition, in which they admit many of the principal facts, and then state minutely and definitely all the county clerk has done in the management of his office, and what disposition he has made of the earnings of his office during his incumbency, and what allowances have been made to him by the county board and on what account, affirming that such allowances were authorized by the statute; and, in substance, it is further stated the county clerk has managed his office to the entire satisfaction of a majority of the county board, and that the county board had and did appoint a committee of citizens of the county to investigate the accounts, earnings, receipts and disbursements of the county clerk’s office; that the committee were afforded the fullest opportunity to make a thorough investigation, and that the report of such committee 'was a “full and complete vindication” of the official conduct of the county clerk. The other commissioner (Walker) filed no answer.

To the answer of respondents, setting forth these and other facts concerning the conduct and management of the office of the county clerk, with the usual formalities, the relator filed a demurrer. The cause has been submitted for decision on the petition, the answer of respondents, and the demurrer of the relator.

It is suggested by relator, if the demurrer be overruled he be at liberty to plead to or traverse any or all of the material facts alleged in the answer or return. The practice in that-respect is, the court, in its discretion, may or may not allow an issue of fact to be made after the case has been onde submitted on demurrer to the petition or answer. When the ends of justice seem to demand it, an issue of fact will be allowed, otherwise it will be disallowed.

The familiar rule that a demurrer will be carried back and made to reach the first defect in the pleading of either party, has its application in proceedings by mandamus, as well as to other pleadings, either at law or in equity. That may be done in this case, and hence the inquiry arises, does the petition herein show any such clear right to the relief sought as would authorize a writ of mandamus to issue ? It seems clear no such case is made by the petition. Although the county clerk is made a defendant, it will be perceived the court is not asked by the prayer of the petition to compel him to do or perform any act which it is his duty, by law, to perform. It is sought to compel the county board, first, to require the county clerk forthwith to pay to the county treasurer certain moneys alleged to be in his hands belonging to the county, and in default thereof, second, to immediately require relator, as State’s attorney, to commence suit on the bond of such county clerk for the recovery of the sums of money alleged to be in his hands. Both acts it is sought to have the county board perform are matters purely within its discretion. The acts required to be done involve duties in the nature 'of judicial powers, with the exercise of which this court has no rightful authority to interfere. Both the petition and the answer show the county board has once acted in the premises, and decided not to make the orders demanded. No principle is perceived on which an inferior tribunal, invested by law with authority to decide any matter that may be submitted to it, can be compelled to decide a given question, one way or the other. Such a tribunal may be compelled to act, but how it shall decide a given case is always a matter for its judgment, and with the exercise of which no other tribunal or court may interfere. That is precisely the case here, and whether the answer is sufficient or not is a matter of no consequence, and concerning which no opinion will be expressed. The petition itself makes no case that calls for the exercise of the extraordinary powers of the court by mandamus.

The demurrer will be carried back and sustained to the petition, which is done, and the petition dismissed.

Petition dismissed.


author: Mr. Justice Walker

text:
    The Equitable Trust Company et al. v. Septimus Fisher et al.

      Filed at Springfield March 29, 1883.

    1. Trust deed—terms of the trust—may be prescribed and must be observed. The grantor in a deed of trust, in declaring the trust, may mould and give it any shape he chooses, and he may provide for the appointment of a successor or successors to the trustee upon such terms as he may choose to impose, but when imposed the terms must be pursued, to render the acts of the successor in trust valid. It is alone by force of the power delegated by the deed that the trustee can perform any act with reference to the trust property or fund, and in executing these powers he must pursue them, or his acts will be void.
    2. Same—sale by one as successor must be in accordance with the power. The owner of land gave a deed of trust on the same to secure the payment of notes, etc., to A, as trustee, with a provision therein that in case of A’s death, absence from the State, his inability or refusal to act at any time when action should be required of him, B should be his successor in the trust, with like powers to act as such, and also providing that for the same reasons as to B, G should become successor, and have the power to act when required. The latter advertised the property for sale before A or B had declined to act, they afterward executing a formal declension, which was antedated so as to make its date cover the time required for the notice of the sale, and the evidence failed to show that G was called upon to act by the holder of the indebtedness until more than twenty days after he gave notice of the sale, which was required to be thirty days. 0 sold the premises at great sacrifice to one D, for B, making statements at the sale disparaging the title. It was held, there was no error in a decree setting aside the sale on bill by the debtor for that purpose, and allowing him to redeem from the trust deed.
    3. Same—whether a request is necessary before a trustee can act. "Where a trust deed gives the trustee the power to advertise and sell the mortgaged premises on default of payment, when so requested by the holder of the indebtedness, giving thirty days’ notice of such sale, and the trustee, without being so requested, advertises the property for sale, his act will be unauthorized by the power, and a sale made by him on written request, made not more than eleven days before the sale, may be avoided and set aside, as made in violation of the terms of the power.
    4. Same—absence of trustee from, the State—what so regarded, so as to confer power upon another. A clause in a deed of trust that in case of the absence from the State of the trustee therein named when required to act, another person should be his successor, and invested with all his rights and powers to act, means a permanent absence from the State, and not a mere casual or temporary absence.
    5. Same—duty of trustee in conducting the sale—must act fairly. It is the duty of a trustee selling land under a trust deed, to use all reasonable efforts to procure the best price he can for the land sold. If he states in the notice of sale that some other parties claim some interest of record in the land, which is not shown -to be true, and the property is sacrificed, it can not be said that he has acted fairly, and a sale to one under whom he takes possession claiming to have purchased the land, may be set-aside for the fraud on the rights of the debtor.
    6. Redemption from sale under trust deed—of the terms thereof— rents and profits—improvements. Where one, as an active manager, of a trust company, through another, purchases land at a trustee’s sale, for such company, and places another in possession of the premises, on bill to set aside the trustee’s sale and deed for defect of power in the person making the sale, as trustee,'and for leave to redeem from the trust deed, there is no error in stating the account of the sum due the company, to charge it with the reasonable rents and profits of the land until the possession is restored.
    7. In such case the party in possession will not be allowed to charge and receive pay for improvements made by him on the premises by cutting off timber on the same, especially when there is proof that such act is an injury to the land, and a waste.
    8. Former adjudication—when not a bar. As a general rule a judgment or decree can be only pleaded in bar of a second suit, when the same question has been adjudicated and determined by a court of competent jurisdiction to try and decide the same.
    9. Same—judgment in forcible detainer — as affecting right of the defendant to question title by bill. A judgment of a justice of the peace, in an action of forcible detainer, in favor of the purchaser of land at a sale under a trust deed, against the former owner, giving 'the possession to the purchaser, is no bar to a bill by the former owner to set aside the trustee’s sale and deed, and for leave to redeem from the trust deed, the question of the validity of the sale not being involved in the suit at law, the justice of the peace having no jurisdiction to determine whether the power of sale had been legally exercised.

      Appeal from the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.
    Mr. Thomas Teacher, and Mr. J. S. Wolfe, for the appellants :
    The essential things to effect a foreclosure were the publication of the notice, and the making of the sale and the receipt of the purchase price. Heath v. Hall, 60 Ill. 344.
    Mere inadequacy of price is not ground for impeaching the sale, where no fraud is shown. Wild v. Rees, 48 Ill. 428; Waterman v. Spaulding, 51 id. 425; Booker v. Anderson, 35 id. 66.
    It is no objection to the sale that the trustee making it after-wards acquired a contract for the purchase of the property. Dempster v. West, 69 Ill. 613; Bush v. Sherman, 80 id. 160.
    If the objection is made that Bond, being a successor in trust, purchased, the proof is that he never acted under either of the deeds, and refused to act. 1 Leading Cases in Equity, 151, notes Hare & Wallace.
    If the sale were irregular, complainants would be estopped by their delay from claiming to have the sale set aside. Bush v. Sherman, 80 Ill. 160; McHany v. Schenk, 88 id. 357; Jenkins v. Pierce, 98 id. 646.
    The person creating a trust may mould it in such form as he pleases, and he may provide on a certain contingency the original trustee may retire, and a new one be substituted. Lewin on Trusts, 554; Perry on Trusts, see. 287; Ellis v. Boston, Hartford and Erie R. R. Co. 107 Mass. 12; National Webster Bank v. Eldridge, 115 id. 424.
    The validity of the foreclosure being involved in the forcible detainer suit brought for possession, the judgment for possession is a bar to this bill seeking to impeach the sale. State v. Beloit, 20 Wis. 79.
    A valid judgment for the plaintiff sweeps away every defence that could have been raised,—and this, too, for the purpose of every subsequent suit, whether founded upon the same or a different cause of action. 70 Ill. 378; 57 id. 244; 64 id. 33; Kepley v. Luke, 10 Bradw. 403.
    The trust company was improperly charged with the rents and profits, as it never received any income from the land. 1 Edwards’ Ch. 399.
    The possession of Harmon is easily distinguished from that of a mortgagee who is the owner of the debt secured.
    The master’s report is wrong in not allowing to defendant Harmon $400 paid By him for clearing wood and brush land. He entered in good faith, believing himself to be the owner. (Jones on Mortgages, secs. 1115, 1117.) Nor is he to be treated as a trespasser. Harper v. Ely, 70 Ill. 581.
    Mr. J. L. Ray, and Mr. C. H. Chitty, for the appellees:
    When Edwards accepted the office of trustee the title to the lands passed to him, and he could not divest himself of it or the duties of his trust without the consent of all parties interested, or by decree of court. 1 Perry on Trusts, secs. 259-261, 267, 268, 274, 401; 2 id. sec. 602; Shepherd v. McEvers, 4 Johns. Ch. 135 ; Cruger v. Holliday, 11 Paige, 314.
    The power to create a new trustee in place of the original one can only be given by the author of the trust. 1 Perry on Trusts, sec. 287.
    The renunciation or disclaimer of Edwards did not convey the title from him to Harmon. 1 Perry on Trusts, sec. 268; Conyreham v. Conyreham, 1 Ves. 522; Cruger v. Holliday, 11 Paige, 314; Armstrong v. Merrill, 14 Wall. 138; Reed v. Truelove, Amb. 417. But if Harmon was trustee at all he could not become a purchaser at his own sale, either directly, or indirectly through another. Roberts et al. v. Fleming et al. 53 Ill. 196; Mapps v. Barbour, 49 id. 370; Pensoneau et al. v. Bleakley et al. 14 id. 15; Miles et al. v. Wheeler et al. 43 id. 123; Ogden v. Larrabee, 57 id. 405; Bush et al. v. Sherman, 80 id. 161.

      To avoid such a sale it is not necessary the trustee should have made any advantage in the purchase. 2 Sugden on Vendors, 412; Davoue v. Fanning, 2 Johns. Ch. 251; Van-Epps v. Van Epps, 9 Paige, 237; Thorp v. McCullum et al. 1 Gilm. 614.
    Sales under power will be set aside upon very slight proof of fraud or unfair conduct, or of any departure from the terms of the power. 2 Perry on Trusts, 175; Bloom v. Reuse et al. 15 Ill. 507; Longsmith v. Butler, 3 Gilm. 32.
    Fisher was entitled to the rents and profits from some one, and as the company procured and caused all the steps that put Harmon in possession, it should be held liable. It is also liable for the waste in cutting off the timber. An allowance for clearing land can not be made. The allowance of claims against the debtor for new improvements is never permitted, except under very extraordinary circumstances. 1 Johns. Ch. 387; McConnel v. Holobush, 11 Ill. 70; Smith v. Sinclair, 5 Gilm. 122.
   Mr. Justice Walker

delivered the opinion of the Court:

This was a bill in chancery, filed by appellees in the Champaign circuit court, to vacate and set aside the sale and conveyance of 246 acres of land, sold by a trustee under a trust deed.

It appears that in February, 1877, Septimus Fisher borrowed from the Equitable Trust Company $3000, payable in five years from date. He executed three notes, of $1000 each, and gave interest notes for seven per cent on the loan, payable semi-annually. To secure the payment of principal and interest, Fisher and wife executed a trust deed on the lands to Jonathan Edwards. The loan was made at nine per cent interest, and for the two per cent not included in notes and deed of trust there were given ten notes of $30, one falling due every six months. To secure their payment another deed of trust was given on the same land, subject to the first. It was to Edwards, his heirs and assigns. The deed, however, contained a provision that in case of Edwards’ death, absence from this State, inability or refusal to act at any time when his action under the power of sale should be required, then H. B. Bond should be and was thereby appointed his successor in the trusts, with like power and authority, and the title to the premises to vest in him; and by another clause it was provided, that in case of the death of Edwards and Bond, their absence from this State, their inability or refusal to act when action should be required, then A. E. Harmon was to be successor in the trusts, with power to act and perform the trusts. On the 24th of July, 1880, Harmon advertised the property for sale, claiming there was a default in the payment of the first six notes described in the second deed of trust, and fixed the time of sale on the 26th day of August, 1880. On that day Harmon sold the property, and it-was bid in-by one Bussell, at the request of Harmon, for Bond, his co-trustee, for the sum of $1200. Harmon executed a deed to Bond for the premises, and the former went into possession soon after, as it is claimed, under Bond, and has so remained ever since. It is claimed that Harmon, some time after going into possession, purchased the property from Bond, or the trust company. The bill alleges that Harmon acted without power, and that the sale by him was void; that the notice was defective, and that whilst the property was struck off to Bond, the sale was, in fact, to himself, and that inasmuch as he had no power to purchase at his own sale, it was voidable, and Fisher offers to redeem, and prays an account of rents and profits, and the amount due. On a hearing the, court below granted the relief sought, by setting aside the sale and permitting a redemption by paying the balance due on the entire loan within four months. The court found the sum due $5223.76, and by the master’s report that the rents, issues and profits amounted to $1880.76, for which the trust company must account. From this defendants appeal.

It is admitted by a stipulation of record, that Edwards or Bond had not formally declined to act as trustee until the 15th of August, 1880, nor was there any written request for Harmon to act as successor in the trusteeship until that date; but it is stipulated that these papers were executed at that time, and were antedated, one to the 9th and the other to the 8th of June previous. These papers were then executed only ten days before the sale, and the deed of trust required at least thirty days’ notice of the time and place of the sale by the trustee. The notice was dated' July 24,—twenty-two days before the other trustees declined to act, and but eleven days after they declined before the land was sold. It is true that the person creating and declaring the trust may mould and give it any shape he chooses, and may provide for the appointment of a successor or successors to the trustee, upon such terms as he may choose to impose, and when imposed they must be pursued, to render the acts of the trustee valid. By this and like trust deeds the grantor conveys the legal estate to the trustee, to hold for the specified trusts, and he confers power on the trustee to execute and carry into effect the specific trusts. It is alone by force of the power delegated by the deed that the trustee can perform any act with reference to the trust property or fund, and in executing these powers he must pursue them, or-his acts will be void.

If, then, in this case, Harmon had not become the successor of Edwards and Bond in the manner prescribed by the deed, he was devoid of all power, and the sale made by him was absolutely void for want of power,—as completely so as if made by a person not named in the deed. It is true Bond testifies that he and Edwards had informally declined to act in the early part of June; but he states no precise time, nor does he say they ever communicated the fact to the holders of the securities, to Harmon, or to any other person. Whether it was an expressed declination Bond does not say. He gives no particulars or circumstances to enable us to determine whether it was to operate at that or some future time,— whether it was absolute or merely contingent. Bond and Edwards, it seems, knew that their declension was necessary, and that it should be clear, distinct and unequivocal before Harmon could exercise any of the powers conferred by the trust deed. They manifested such knowledge by executing the paper declining to act, and by antedating it, so as to apparently cover the time necessary to' the thirty days’ notice of the sale by Harmon. They thus resorted to a trick to give the transaction the appearance of conformity to the requirements of the deed, and it was an attempted fraud on- the rights of Fisher,—an attempt to deprive him of his large and valuable property, of largely more value than the debt, in a mode not authorized by the trust deed, and contrary to its provisions. Such an act can never be sanctioned by the law.

Again, we have been unable to find any evidence that Harmon was called on to act as trustee until more than twenty days after he gave the notice. He had no authority to act until required by the holder of the indebtedness. It is provided in the deed of trust that the trustee having the power may act when there is a default, and such a request is made. Until such a request, Harmon, if otherwise competent, had no power to advertise when he did. He was not invested with that power more than eleven days before he sold the Xiroperty, because before that time he was not invested with the powers of a trustee, nor was he required to advertise and sell the property. And this request to act was also a mere trick in fraud of Fisher’s rights. He had the unquestioned right to insist that the property, when sold, should be by a person upon whom he had conferred the power, and not until a request was made by the holder of the indebtedness, and not until thirty days’ notice of the sale given after the request was made.

Appellants rely on the refusal of Edwards and Bond to act, as conferring power on Harmon, and not on their absence from the State. It is true Bond testifies that neither of them was in the State during the months of June, July and August of 1880; but there is no evidence that they were permanently absent, nor had they refused to act until eleven days before the sale. A fair and reasonable construction of the language would require a permanent absence, and not a mere casual or temporary absence. Would any one imagine that a mere absence for a day, under such language, would vest the title in and authorize the successor to execute the powers of the trust? Such was manifestly not the purpose of the parties to this trust deed. Appellants gave it a different construction when they procured the written refusal of Edwards and Bond to act, and that construction is fair and reasonable, and is the true one.

Again, Harmon stated in the notice of the sale that the Singer company claimed some interest of record in the land. No such interest was shown on the trial. Why was it volunteered when it presumably is untrue ? Manifestly to deter bidders, and depreciate the price of the property. Is this not strong evidence that Harmon had some interest or improper purpose in reducing the price? Nor did he state in the notice the amount claimed to be due on the indebtedness, as is explicitly required by the statute. Why this effort to depreciate the price of the property, unless it was to accomplish an unfair purpose ? As a fair and honest trustee he surely would not gratuitously injure Fisher to obtain the land for the trust company for less than half its value. It was his duty to use all reasonable efforts to procure the best price he could for the land. Instead of doing so, he seems by fraud to have endeavored to obtain the smallest.

The judgment in the forcible detainer suit was pleaded, and seems to be relied upon as a bar to this proceeding. It seems to be urged with earnestness as forming a defence. As a general rule a judgment or decree can only be so pleaded when the same question involved has been adjudicated and determined by a court of competent jurisdiction to try and determine the question. In that case the question of the right of possession was alone involved, and not the title. The statute has provided that a person who purchases at a sale under a power of sale in a mortgage or deed of trust, may recover possession in that form of action. The only issue to be tried by the justice of the peace was, whether Bond was the purchaser at the trustee’s sale under a power contained in the trust deed. If it were found he w.as, and that Fisher was in possession, the justice was bound, under the statute, to render a judgment that Bond recover possession. This is the requirement of the statute. The justice had no jurisdiction to hear and determine whether the power had been legally exercised and the sale properly made, and had he attempted to decide that question he would have exceeded his power, and his finding in that regard would have bound no one. That judgment is not a bar, because the questions here presented were not, nor could they be, legally presented in the justice’s court 'for determination.

It follows, from these considerations, that the court below did not err in setting aside the sale because it was made without power in the trustee. And this conclusion renders it unnecessary to consider any of the other questions urged by counsel, except the assignment of error on the decree against the trust company for rents and profits.

It is urged that the company is not liable because it has received no rents or profits, and that it has not, but Harmon has, occupied the farm. Bond swears he purchased through Bussell, for the trust company. If so, in equity the title he acquired, whatever it was, belonged to the company. He brought forcible detainer, and recovered possession for the company. He was an officer and active manager of the company, and if he, as the managing officer of the company, placed Harmon in possession, it was the act of the company.

It is claimed that Harmon went into possession under an agreement to purchase from the company, and it is not, therefore; liable to account for rents. There is no evidence of the character of the contract,—whether it was legal and binding, absolute or conditional. Nor is it shown that the contract remained in force, or that it was soon thereafter canceled. Nor does it appear that Harmon has ever paid a dollar on the agreement, or can enforce the contract. The mere statement that he entered under an agreement to purchase, is too indefinite to release the company from liability. The company had the property bid in for its use. It placed Harmon in possession, and to escape liability to account it must show that Harmon was not liable to it for use and occupation. What has become of the agreement does not appear. For anything appearing in evidence the company may hold Harmon’s obligation to pay every dollar of rent that was found against it. We are therefore of opinion that on the proofs in the case the company is liable to account. The company holding the title was bound to account for fair and reasonable rents received, or that could have been received by the exercise of reasonable diligence. It is not pretended that Harmon paid for the land, or holds a deed from Bond, or even has an obligation for its conveyance; and in the absence of all proof we must presume that none of these requirements to render a sale valid exist.

Again, it does not appear the company was free from the fraud that was practiced on Fisher in the effort to wrongfully deprive him of this property at a heavy sacrifice, and if guilty of or it participated in the fraud, it can not be heard to complain that it is held liable for the consequences of that fraud. All the steps taken to 'consummate the sale were inaugurated by the officers of the company.

It is also claimed that there should have been a credit of $400 allowed for improvements made by Harmon in clearing brush and timber land, preparing it for cultivation. Harmon had no right to make improvements without the consent of Fisher, and the credit can not be allowed. Moore v. Cobb, 1 Johns. Ch. 387, is a case in point; and the same rule has been established by numerous decisions of this court. It is true there are exceptions to the general rule, but only in rare cases and under extraordinary circumstances; but the facts in this case forbid it being made an exception. There is evidence that the removal of this timber was an injury to the farm,- and if so it was waste, and it is believed that no case exists where compensation was allowed an occupant for committing waste.

The entire record considered we perceive no error requiring a reversal of the decree, and it is affirmed.

Decree affirmed.