text:
    John Workman v. David Greening.

      Filed at Springfield January 22, 1886.

    1. Mortgage—of a deed absolute in form—whether a mortgage. It is a question of intention whether a deed absolute in form is a mortgage or absolute conveyance, to be ascertained from all the circumstances in evidence; and if it appears, no matter as to the form of the transaction, that the “conveyance is but an indemnity or security, it will be held a mortgage, and the kind of indemnity or indebtedness intended to be secured is unimportant.
    2. Same—parol evidence to shou' the character of the transaction. It is competent in a court of equity to show by parol evidence that an instrument purporting on its face to be an absolute conveyance of real estate, is in fact but a mortgage.
    Appeal from the Circuit Court of Sangamon county; the Hon. C. S. Zane, Judge, presiding.

      Messrs. McGuire & Salzenstein, and Messrs. Matheny & Matheny, for the appellant:
    There can be no mortgage without a debt, and the surrender of the notes upon the delivery of the deed is evidence of its absolute character. Rue v. Dole, 107 Ill. 275; Pitts v. Cable, 44 id. 103; Hanford v. Blessing, 80 id. 188.
    The surrender of possession to the grantee and the payment of rent to him, and payment of taxes by the latter, negatives the idea that the parties intended the deed as a security.
    This is not a bill for a specific performance of the contract to reconvey, and the decree can not be supported on that theory. Pitts v. Cable, 44 Ill. 103.
    Mr. N. M. Broadwell, for the appellee:
    A deed absolute on its face is to be regarded as a mortgage, when it appears from satisfactory evidence that it was given as a security for the payment of money. 2 Story’s Eq. Jur. sec. 1018; Miller v. Thomas, 14 Ill. 428; Bishop v. Williams, 18 id. 101; Tillson v. Moulton, 23 id. 648; Shaun v. Woodward, 28 id. 277; Smith v. Creamer, 71 id. 185; Insurance Co. v. White, 106 id. 67.
    The fact being established that the grant was intended as a mortgage, the rights of the parties are measured by the rules of law applicable to mortgagor and- mortgagee, the conveyance remaining a mortgage until the equity of redemption shall be foreclosed or barred. “Once a mortgage, -always a mortgage.” Wynkoop v. Corning, 21 Ill. 570; Smith v. Creamer, supra; Insurance Co. v. White, supra; Tenny v. Nicholson, 87 Ill. 464; Ennor v. Thompson, 46 id. 214.
    In doubtful cases, courts of equity will construe the transaction to be a mortgage rather than a sale, because such construction will be most apt to attain the ends of justice, and prevent fraud and oppression. 2 Story’s Eq. Jur. sec. 1018 b; 4 Wait’s Actions and Defences, 515; Russell v. Southard, 12 How. 139.

      A mortgage does not depend on the kind of indebtedness secured, the form in which the indebtedness exists being-immaterial. The debt may be by bond, note, or parol undertaking. 1 Jones on Mortgages, secs. 264-5; Hodgdon v. Shannon, 44 N. H. 572; Smith v. Bank, 24 Me. 185; Rice v. Rice, 4 Pick. 349; Robinson v. Cropsy, 2 Edw. Ch. 143; Horn v. Kittellas, 46 N. Y. 605; Russell v. Southard, supra.

    A mortgagee in the possession of the mortgaged premises, receiving the rents and profits, is bound to pay the taxes on such premises. Moore v. Titman, 44 Ill. 367; Mosher v. Norton, 100 id. 63.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was a .bill in equity, by appellee, against appellant, alleging that a certain instrument, purporting on its face to be an absolute conveyance of real estate, was, in fact, but a mortgage, and praying to be allowed to redeem therefrom. Appellant answered, without oath, denying the allegation, and the cause was referred to the master in chancery to take the evidence and report his conclusions thereon. The master found that the instrument was, in fact, a mortgage. Objections were filed to his finding, which he overruled, and he then reported the finding, and the objections filed thereto, and the evidence taken, to the circuit' court. The objections were there renewed, but they were overruled by the court, and the court thereupon decreed confirming the master’s report and granting appellee the relief prayed in his bill.

The several points discussed in the arguments on behalf of appellant all relate to the question whether the conclusion that the instrument was, in fact, but a mortgage, is warranted by the evidence. The rule is familiar that it is competent, in a court of equity, to show, by parol, that an instrument purporting on its face to be an absolute conveyance of real estate, is, in fact, but a mortgage. The question is one of intention, to be ascertained from all the circumstances in evidence; and if it shall appear, no matter what the form of the transaction, that the conveyance is, in fact, but an indemnity or security, it will be held' a mortgage, and the character of liability against which' ihdemnity is intended, or the kind or dignity of indebtedness intended to be secured, is unimportant. Miller v. Thomas, 14 Ill. 428; Tillson v. Moulton, 23 id. 648; Shaver v. Woodward et al. 28 id. 277; Smith v. Cremer et al. 71 id. 185; Union Mutual Life Ins. Co. v. White, 106 id. 67; Bearss et al. v. Ford, 108 id. 16.

Appellee testified that he was indebted to one Bennett; on a promissory note originally executed to one Caldwell, but then possessed by Bennett, in the sum of a little mófe than $700, which was secured by a mortgage on the property in controversy, and that he was also, at the same time, indebted to appellant in small amounts, evidenced by two promissory notes; that he applied to appellant to borrow a sum of money with which to pay off the Caldwell note in the hands of Bennett, and offering to give appellant a mortgage on real estate, to secure the loan; that appellant replied to this application, that he would not loan money and take a mortgage any more, but would take a deed, because if he took a mortgage it would cost him $100 to foreclose it; that if he loaned to appellant he would take a deed, and if appellee was ready to pay back it would be no trouble to make a deed, and would not cost anything. Appellee further testified, that after several interviews, in which substantially the same conversation was repeated, appellant finally told him that he would pay off the Caldwell note if Bennett would wait on him until May or June, and that in two or three days thereafter he told appellee that Bennett had agreed to wait, and that he would pay the note and bring it to appellee; that on the 3d of July, 1879, appellant brought to appellee the "Caldwell note and the two small notes which appellant had before held against appellee,—the interest and principal upon all then amounting to $1067.93,—and that it was then agreed between them that the absolute deed should be executed, that appellee should have five years within which to redeem, and that appellant should have one-third of the crops on the land to pay interest on the indebtednes, and that thereupon, and pursuant to this agreement, the absolute deed was executed and delivered to appellant, and the notes were delivered to appellee. Appellee repeats that appellant was to take the money" at any time appellee would get it, within the five years, and that the deed was intended for a security instead of a mortgage. Appellant, however, in his testimony, denied that he loaned money to appellee and that the deed was intended as a security. He testified that, holding the two small notes on appellee, he called upon him to see about them; that appellee then told him that Bennett had notified him that if he did not pay off the Frank Caldwell mortgage he would foreclose, and sell the land, and bid it in for $100, and he would then run oil his other property and make the balance of his money; that appellee further said that if the land would pay the debt it might go, but that it would ruin him if Bennett went on his other property; that appellant subsequently proposed to appellee to pay off the Caldwell note, and surrender it, with the two small notes he held himself, to appellee, for the land; that some time subsequently, appellee accepted this proposal, and that he paid off the Caldwell note, and surrendered it, together with the two small notes, to appellee, and appellee executed and delivered to him the deed, in compliance with the agreement. He claims it was an unconditional purchase, in consideration of the surrender of these notes. Thus the testimony of each party fairly shows himself entitled to a decree. Which, then, is best supported by other evidence ?

At the time of the execution of the deed, and as a part of the transaction, appellant indorsed the following on one of the small notes which he surrendered:

“You can redeem it in a reasonable time by paying me my money and ten per cent.
John Workman.”

It is not denied that this means redeem the land then conveyed by appellee to appellant, and Workman admits that the language and penmanship are his, but he denies that he gave it to appellee. This is his version: “I called, and he” (appellee) “came to the fence. His wife came with the deed. She came up behind where he was standing. She said: ‘Mr. Workman, we would like to have a chance to have this land' back some day.’ Mr. Greening” (appellee) “threw up his hand and said, ‘I never want it back, and never intend to try to buy it back.’ He stepped to one side and she came up in his place, and said if he would not have anything to do with it, she would like to have a chance to buy it back herself. He said he would never have anything to do with it, and I remarked to her, ‘In a reasonable time I’ll let you have it back.’ She then handed me the deeds, and I handed her the notes. * * * She then spoke about life being uncertain, and asked me if I wouldn’t as soon write what I had said. * * * She handed me that note, and I wrote that on it.” Appellee testified that he did not say to appellant that he did not want the land back, but repeats that it was agreed that he was to have five years within which to make redemption. He says it was understood he was to have the writing before the deed was delivered; that appellant only expressed a part of the agreement in this writing ; “that the writing by Workman did not contain all the agreement. He wrote it at the time the deed was delivered, and left it there.” Again, on re-cross-examination, he said: “I and my wife had talked about having a writing before he got the deed. I said I was willing to take Workman’s word, but she was not willing. When he gave this writing, and he agreed that we should have five years to redeem, and take one-third of the crops, he got the deed, and not before.” So again the testimony of the one meets that of the other.

The indorsement is a direct contradiction of the claim made by appellant that there was an absolute sale. We must accept his language to mean what the words in their ordinary acceptation import. The word “redeem” implies the existence of a debt, and negatives the idea of an absolute sale. So, too, the words, “by paying me my money,” clearly imply a debt due—that “my”—i. e., his—.“money” is in the hands, or, at least, is still owed by the debtor.

There is some other evidence, which we do not think it necessary to set out, tending also to corroborate the testimony of appellee.

Bejecting as inadmissible the testimony of appellee’s wife, we are still unable to say that the preponderance of the evidence is against the decree.

The decree must therefore be affirmed.

Decree affirmed.

This case, when first considered, was assigned to the late Mr. Justice Dickey to prepare the opinion, but no opinion having been prepared in his lifetime, it was re-assigned at the November term, A. D. 1885.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    Alexander F. Greig v. Frances A. Russell et al.

      Filed at Ottawa January 25, 1886.

    1. Equitable title—of facts as showing whether it exists. A bill in chancery alleged that in the year 1847 one S. was in the possession of a lot, claiming equitable rights therein; that he lawfully entered upon the lot when wild land, and built large and extensive improvements upon it; that at the same time one K., then of the State of Connecticut, held the legal title to the lot, but acknowledged the equitable rights and interest of S. in the same; that on or about July 24, 1847, S. purchased from E. the interest of the hatter in the lot, and took from E. a contract of purchase at the price of $7000, and made valuable improvements on the same, but being unable to complete the payment, in pursuance of an agreement to that affect, S., in 1852, assigned to E. his contract-of purchase, and made him a quitclaim deed for the lot, clearing up all liens on his interest, and received back a new contract of purchase for $7277.50 on credit, making time of performance of the essence of the contract, and providing for forfeiture of all payments and rights for failure to make prompt payments, and also showed a declaration of forfeiture by the vendor for non-payment: Held, that the hill did not show any equitable title in S. at the time of the making of the quitclaim deed.
    2. Vendor and purchaser—or mortgagor and mortgagee—which relation exists. Where a purchaser of real estate, being in default of payment, by an arrangement with his vendor made a quitclaim deed of the property, and surrendered his contract of purchase, and another contract of purchase was executed providing for a conveyance on payment of the sum due under the former contract, in installments, it was held, that the relation of mortgagee and mortgagor was not thereby created, but that the true relation between the parties was still that of vendor and purchaser, and the latter failing to make his payments, could not, after a forfeiture under his contract, maintain a bill to redeem as a mortgagor.
    3. Pleading—admission by demurrer. A demurrer to a pleading admits the truth of the facts well pleaded, but not the conclusions sought to be drawn from them. An averment in a bill that a transaction set out was a mortgage, is but an inference of the pleader from the facts stated, and such inference is not admitted by a demurrer to the bill.
    4. Same—allegation contrary to written contract. Where it is disclosed in the bill that a contract of purchase had been assigned to the vendor, and a new contract of purchase voluntarily and knowingly entered into for a purchase on different terms and conditions, and there was no fraud or mistake claimed, this alone will be looked to as showing the intentions of the parties, and treated as the consummation of the agreement between them, and an allegation showing an agreement different from what the written one expresses will not prevail so as to be regarded as admitted by a demurrer to the bill.
    Appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Mr. Samuel H. Wright, for the appellant.
    Mr. Jno. N. Jewett, for the appellees.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a hill to redeem from an alleged mortgage upon a lot of land in the city of Chicago. The court below sustained a demurrer to the bill for want of equity, and dismissed the same, and the complainant appealed.

The material facts alleged in the bill are, that in the year 1847 one William H. Stow was in the possession of lot No. 9, block 28, old town of Chicago, claiming equitable rights and interests therein; that he lawfully entered upon the lot when wild land, and built large and extensive improvements upon it; that at the same time one Samuel Russell, then of Middletown, in the State of Connecticut, held the legal title to the lot, but acknowledged the equitable rights and interest of Stow in the same; that on or about July 24, 1847, Stow purchased from Russell the latter’s interest in the lot, and took from Russell a contract of purchase, the purchase price being $7000, payable $1000 on the execution of the contract, and the balance in five equal annual payments, with six per cent interest; that the $1000 was paid, and other payments made, the last on August 2, 1852, at which date Stow was owing Russell $4152.50 on the contract of purchase; that meanwhile Stow continued to occupy the lot, pay the taxes and assessments, and made other valuable improvements thereon, the lot, with the improvements and buildings thereon, then being of the value of $40,000 and upwards; that on and shortly before August 2,1852, Russell required from Stow immediate payment of all sums due him, as well on account of the contract of purchase as otherwise, and Stow being unable to make immediate payment of said sum so owing, it was thereupon mutually agreed between them that- Stow should secure Russell the debt, with ten per cent interest, said security to be effected by assigning said contract of purchase to Russell, and obtaining an assignment of all outstanding liens or claims upon said contract or said lot, or Stow’s rights and equities therein, in such manner as would leave the title unaffected thereby in the hands of Bussell, and by Stow and his wife executing to Bussell a deed of all their interest in the lot, and then Bussell should extend the time of payment, this to be effected by a contract in writing, the consideration named therein being $7277.50, which sum was the old indebtedness and ten per cent interest thereon up to the time of the several payments provided for in the new contract; that Stow obtained an assignment of all liens and claims against his equitable interest in the premises, and on July 31, 1852, he and his wife executed a deed to Bussell of all their interest in the lot, which deed and assignment Stow delivered to Bussell on August 2, 1852, on which day Bussell and Stow executed the new contract in writing between them, which is set forth in full, and which purports to be an agreement for the sale by Bussell to Stow, and the purchase by Stow of the lot from Bussell for the price of $7277.50. Under this new contract, which provided for monthly payments from December 1, 1852, up to December 1, 1855, the bill alleges that Stow had paid, prior to September 15, 1854, the sum of $4200; that on January, 1855, there was tendered by Stow $400, which was refused; that again, on December 1, 1855, Stow tendered $3951.35, and on December 2,1855, $4426.01, in full satisfaction of' his indebtedness; that said tenders were refused upon the ground that the new contract was one for the sale and purchase of the lot, and as such had become void, and the payments made thereon forfeited, which claim, it is insisted, was fraudulent and unfounded, and that said transaction was a mortgage; that the complainant has succeeded to all the rights of Stow, and that the defendants (except the Sheldons, who are made parties as agents only,) have succeeded to the rights of Bussell. The bill also sets forth that in 1856 Bussell caused suits in ejectment to be brought in the United States Court against various persons, tenants of Stow, in possession of separate portions of the lot, in which judgments were recovered against the defendants, and under process issued thereupon Bussell was put in possession of such portions of the lot by the marshal, and that he and his representatives have ever since been in possession, collecting rents, etc. The prayer is for a redemption from the alleged mortgage, an account of the rents received, etc. The conveyance to the complainant is stated as bearing date July 30, 1883. The bill was filed October 22, 1883.

It is insisted by appellees’ counsel, that the quitclaim deed of Stow’s equitable interest in the lot, made by Stow and wife to Bussell, stamps the contract of August 2, 1855, as a mortgage. The bill does not show that Stow ever had any equitable interest in the lot. As respecting any interest before 'the making of the contract of purchase from Bussell, in 1847, the hill alleges that prior to that time Stow was in possession of the lot, claiming equitable rights and interests therein; that he lawfully entered upon the lot when wild land, and built thereon large and extensive improvements. All this fails of showing any equitable right. What was a lawful entry is a mere conclusion—it might have been deemed such from the entry having been on wild land. No facts are alleged to negative the idea that in 1847 the improvements did not belong to the owner of the lot, as a part thereof. The bill admits that Bussell held the legal title to the lot, and that on July 27, 1847, Stow made a contract in writing with Bus-sell for the purchase of the lot from him. Under that contract of purchase the bill does not show any equitable right in Stow, for although he had paid considerable sums of money under the contract, and had made improvements, he had failed in performance of the contract on his part, the time for making payment having expired, leaving a large amount of the purchase price unpaid, and without any excuse therefor. Whatever may he vaguely said in the hill about indefinite equities, it can not be seen, from any facts stated in the bill, that Stow had in reality any equitable interest in the land at the time of his quitclaim deed to Russell, or that it conveyed any. It does not appear that Russell required or looked upon that deed as any additional security, further than might appear from the fact of giving the deed. The taking of the deed, together with the assignment of the old contract, may well have been for the purpose of disembarrassing the title, of that contract.

The contract in writing of August 2, 1852, most distinctly expresses what the arrangement was which at that time was made between the parties—what was their object and intention ; and it contains no hint of a mortgage, or of any security for 'money. It is a plain contract for the sale and .purchase of the lot, whereby Russell agrees to sell to Stow, and Stow agrees to purchase from Russell, the lot for the sum of $7000, with stringent provisions making time of the essence of the contract, and forfeiture for non-payment. There is no indication, from facts stated, that the contract was adopted as a clonk of any other purpose, or that there was any intention of the parties otherwise than as expressed by that contract. At the beginning, there was a contract for the sale and purchase of the lot. The relation between the parties was that of vendor and vendee, and we think that relation of vendor and vendee has continued'throughout, there never having been anything but a contract of sale, and no mortgage, or relation of mortgagor and mortgagee. The pur'chaser failing of performance, the old contract was cancelled and a new contract in writing was made between the parties, giving further time for payment of the purchase money, and increasing the rate of interest from six to ten per cent. We think the parties were content with, and understandingly entered into, that contract as it purports, as the measure of their rights, and that they should be held to abide thereby.

A demurrer to a pleading admits the truth of the facts well pleaded, but does not admit the conclusions sought to be drawn from them. The averment of the bill that the transaction was a mortgage, is but an inference of the pleader from the facts stated, and the correctness of that inference is not admitted by the demurrer.

But it is urged there is an averment in the bill that it was mutually agreed between the parties that Stow should secure said Bussell the said debt, said security to be effected by assigning the old contract to Bussell, obtaining an assignment of all outstanding liens or claims upon said contract or land, and by executing the quitclaim deed,—that this is an averment of fact, which is admitted by the demurrer, and which shows there was a mortgage. The written contract was the consummation of the agreement between the parties, and expressive of what it was. There is no pretence of any fraud or mistake in the written contract in not expressing what was the real and final agreement. We can attach no more importance to this alleged agreement as to securing the debt, than that the security for the payment of the purchase price of the lot was to be by entering into the written contract of August 2, 1852, with its stringent provisions for payment, Stow having on his part executed the writings which he was to execute, and that such allegation of agreement should not, under the facts set forth in the bill, prevent such written contract from being taken as showing the rights of the parties. See Sutphen v. Cushman, 35 Ill. 186.

Finding no error in sustaining the demurrer, the order of dismissal must be affirmed.

Order affirmed.

The record in this case was assigned to Judge Dickey, and he not having prepared an opinion in his lifetime, the record was re-assigned at the November term, 1885.


author: Mr. Justice Scott

text:
    John W. Doane et al. v. Henry B. Lockwood et al.

      Filed at Ottawa January 25, 1886.

    1. Rescission oe contract—for fraud—as, in the case of a sale and delivery of goods—rights of the parties, respectively. A sale and delivery of goods upon credit induced by fraudulent representations of the purchaser as to his financial ability, may be rescinded by the seller, within a reasonable time after discovery of the fraud, upon a return or offer to return the security taken for the price, and the goods reclaimed as against any one not an innocent purchaser for value.
    2. But where the vendor has received any valuable consideration or note of the purchaser upon a sale of goods, he can not rescind the contract for fraud without first returning or offering to return the consideration received, whatever it may be.
    3. Where a sale of goods is rescinded by the vendor for fraud on the part of the purchaser, it will be as though no sale had been made, and the original taking by the purchaser will be regarded as tortious and without the consent of the vendor, and the title and right of possession will at once be reinvested in him. But until the contract is rescinded, both the title and the right of possession will remain in the purchaser, and replevin by the vendor will be premature.
    4. Replevin—by vendor against fraudulent purchaser—whether retorno habendo awarded. Where;the vendor of goods brings replévin against a fraudulent perchaser, without having rescinded the sale by an offer to return the note given for the price, he must fail; but if, after suit brought and before trial, he offers to return the note, and thereby rescinds the sale, the court should not order a return of the property, but should only give judgment against the plaintiff for costs, and such damages, if any, as the defendant may have sustained.
    5. Practice—directing the jury to find for the defendant. Instructing the jury to find the issues for the defendant after the plaintiff has closed his evidence, is in effect the same thing as sustaining a demurrer to the evidence, and is error, unless, admitting all that the evidence tends to prove, it is insufficient in law to sustain the action.
    Appeal from the Appellate Court for the First District;—. heard in that court on appeal from the Superior Court of Cook county; the Hon. BolliN’S. Williamson, Judge,.presiding.

      Messrs. Flower, Remy & Gregory, for the appellants:
    If Lockwood was insolvent when he bought the goods, and did not intend to pay for them, then appellants were entitled to reclaim'them, and on the question of intent, evidence of other contemporaneous frauds is admissible. McKenney v. Dingley, 4 Greenlf. 172; Carey v. Hotaling, 1 Hill, 311; Miller v. Barber, 66 N. Y. 558; Irving v. Motley, 5 M. & P. 380; Cragan v. Tarr, 32 Me. 55; Hersey v. Benedict, 15 Hun, 282; French v. White, 5 Duer, 254; Castle v. Bullard, 23 How. 172; Wood v. United States, 16 Pet. 342; United States v. Tobacco, 6 Ben. 68; Lincoln v. Claflin, 7 Wall. 132; Gray v. St. John, 35 Ill. 222.
    In several w'ell-reasoned ■ cases in New York, evidence of much less convincing character than that shown in this record has been held ample to sustain a verdict. Hennequin v. Naylor, 24 N. Y. 139 ; Byrd v. Hall, 2 Keyes, 647; Johnson v. Monell, id. 655; Devo v. Brandt, 53 N. Y. 462.
    The general principle that goods sold on a credit obtained by false representations by the vendee, may be reclaimed, is so familiar as to need no citation of authorites in its support, but those above cited fully sustain it. The cases last cited hold that such reclamation may be made where the vendee buys not intending to pay, even though he make no ■false representations. And similar doctrine is- held in other cases. Talcott v. Henderson, 31 Ohio St. 162; Powell v. Bradlee, 9 Gill & J. 220.
    A demand of the goods from the sheriff was not necessary before bringing replevin. Dow v. Sunburn, 3 Allen, 181; Kellogg v. Turpie, 93 Ill. 265.
    A sheriff taking goods so bought under execution or attachment against a fraudulent vendee thereof, stands in the same position as such vendee, and no demand is necessary. Schweizer v. Tracy, 76 Ill. 345; Express Co. v. Willsie, 79 id. 92; Bussing v. Rice, 2 Cush. 48; Asher v. Campbell, 23 Wend. 372; Buffington v. Girrish, 15 Mass. 156.

      The question of demand goes merely to the issues made by the pleas non cepit and non detin et, and when the defendants appear and submit, by pleas of property in themselves, their rights to the- property, they waive proof of demand. Redding v. Page, 52 Iowa, 406; Smith v. McLean, 24 id. 322; Cranz v. Kroger; 22 Ill. 74; Johnson v. How, 2 Gilm. 342; Lewis v. Smart, 67 Me. 206.
    As the failure by plaintiff to prove demand only entitles the defendant to a verdict in his favor on the pleas of non cepit and non detinet, no return of the property will in such case be awarded to him. Bourk v. Riggs, 38 Ill. 320; Hanford v. Obrecht, id. 493; Mattson v. Hanisch, 5 Bradw. 102.
    If a demand of the goods were necessary, a failure to make it does not warrant a return of the goods, and a surrender of the notes given for the price at or before the trial is sufficient. Whitcomb v. Denio, 52 Vt. 382; Williamson v. Railroad Co. 29 N. J. Eq. 311;
    Messrs. Horton, Hoyne & Saunders, for the appellees:
    Although the purchase of the goods was obtained by fraudulent representations of the vendee, the sale was not void, but only voidable at the option or election of 'the vendor. The sale is valid until rescinded by the vendor. Wells on Replevin, sec. 372; McCoy v. Rock, 50 Ind. 283; Thayer v. Turner, 8 Metc. 552; Bowen v. Schuler, 41 Ill. 195; Schweizer v. Tracy, 76 id. 348.
    To sustain the action of replevin for wrongful taking and detaining a personal chattel, it is necessary to show that the defendant wrongfully took it from the actual or constructive possession of the plaintiff, This is elementary law. Simmons v. Jenkins, 76 Ill. 482; Johnson v. Prussing, 4 Bradw. 578; 2 Story on Contracts, sec. 1087.
    Even if appellants had a right under the facts in this case to rescind the sale, they must have done so before this suit was commenced, or they can not recover. This is well settled in two recent cases in this court hereinafter quoted from. Railway Co. v. Noe, 77 Ill. 514; Moriarty v. Stofferan, 89 Ill. 529.
    Where notes had been given, as in the case at bar, it was “preliminary to a rescission of the contract” that such notes should have been returned or cancelled. Staley v. Murphy, 47 Ill. 244; Snyder v. Sandling; 57 id. 488; Comstock v. Brasseau, 65 id. 42; Carney v. Newberry, 24 id. 206.
    ■ The fact that there was no demand or refusal to return the goods, is fatal to a recovery. Moriarty v. Stofferan, 89 Ill. 529; Railway Co. v. Noe, 77 id. 514; Clark v. Lewis, 35 id. 423; Ingalls v. Bulkley, 13 id. 317; Thayer v. Turner, 8 Metc. 552; Holladay v. Bertholomae, 11 Bradw. 208.
    Demand must- be made before suit is begun. Wells on Replevin, sec. 371; Chennyworth v. Daily, 7 Porter, (Ind.) 284; Boughton v. Bruce, 20 Wend. 234; Darling v. Tegler, 30 Mich. 54; Brown v. Holmes, 13 Kan. 482; Alden v. Carver, 13 Iowa, 254.
    Demand and refusal are necessary in all cases when the defendant obtains possession lawfully. 1 Chitty’s Pleading, (15th Am. ed.) *157; Railway Co. v. Noe, 77 Ill. 513.
    Where an officer levies an execution on property in the possession of the defendant in the execution as his property, he only discharges his duty, and his possession is lawful, and if another party claims the goods he must - make a demand before he can maintain replevin for them; but if the goods are in the possession of the party so claiming them when levied on, then no demand is necessary. Tuttle v. Robinson, 78 Ill. 333; Corbin v. Pearce, 81 id. 463.
    Wells on Replevin, sec. 368, says: “Where an officer holding proper legal process takes goods from the possession of the defendant named in his writ, he is but doing his duty, and his possession is lawful, so that replevin can not be maintained against him without demand, ”—citing Vose v. Stickney, 8 Minn. 75; Danniel v. Gorham, 6 Cal. 43; Taylor v. Seymour, 6 id. 512; Killey v. Scannell, 12 id. 73; Bond v.
      Ward, 7 Mass. 123; Shumway v. Rutter, 8 Pick. 443; Bancroft v. Blizzard, 13 Ohio, 30.
   Mr. Justice Scott

delivered the opinion of the Court: .

This action was commenced in replevin in the Superior Court, by John W. Doane, against Henry B. Lockwood, and Orrin L. Mann, and was to recover a certain quantity of tea of the value of $2000. Afterwards, by leave of court, the pleadings were so amended as to make John H. Adams and Henry J. Sawdy co-plaintiffs with the original plaintiff. Defendant Mann was the sheriff of Cook county, and was the defendant in whose hands or possession the goods were found by the officers serving the writ of replevin. The declaration is in the usual form, and charges defendants with the wrongful taking and detention of the goods, and to which defendant Lockwood pleaded non cepit, non detinet, and property in himself, and his co-defendant, Mann, pleaded non cepit, non detinet, and also a plea of justification that he took the property replevied as the property of his co-defendant, Lockwood, by virtue of an execution issued on a judgment against him and in favor of Carter, Hawley & Macy, and which had been delivered to him as sheriff of Cook county, and that the goods were, in fact, the property of the defendant in the execution. Issues were joined on the pleas of non cepit and non detinet, and replications to the pleas of property in Lockwood were filed, upon which issues were formed. After plaintiffs had introduced their evidence and rested the case, the court, on motion of defendants, instructed the jury to find the issues for defendant, which they did. Plaintiffs then entered a motion for a new trial, which the court overruled, and entered a judgment on the verdict. That judgment was affirmed in the Appellate Court for the First District, and plaintiffs bring the ease to this court on their further appeal.

Instructing the jury to find the issues for defendant, is, in effect, the same thing as sustaining a demurrer to the evidence. In either case the court holds, that, admitting all the evidence tends to prove, it is not sufficient in law to sustain the action. It will therefore he necessary, in order to pass on the correctness of the ruling of the court, to ascertain what facts the evidence tends to establish. It is seen there is evidence to the effect plaintiffs were induced, by fraudulent representations made to them by defendant Lockwood as to his financial ability, to sell the goods replevined to him, on four months’ credit, for which plaintiffs took Lockwood’s promissory note. It seems the goods were delivered to Lockwood immediately after the sale to him, and shortly thereafter sheriff Mann levied upon them by virtue of the execution in his hands, as the property of Lockwood, and thereupon plaintiffs replevied the same. As there is evidence tending to show the goods were obtained from plaintiff by fraud on the part of Lockwood, that fact will be regarded as sufficiently proved. That being so, the plaintiffs had the clear right to rescind the contract of sale so soon as they discovered the fraud practiced upon them, and could reclaim the goods from any one not an innocent purchaser for value. That, plaintiffs undertook to do by commencing their suit in replevin to recover the possession of the goods. The fact the goods were obtained from the plaintiff by fraudulent representations made by Lockwood, does not appear to have been controverted at the trial. Indeed, the motion made by defendants to have the court instruct the jury to find the issues for defendant, was based on other grounds: First, because the rescission of a sale must be before suit brought; second, without a demand this suit can not be maintained, no matter what the other facts are; and third, that a rescission must be in toto, and can not be as to a part. It was for these reasons the court was asked to charge the jury as it did.

The making of a motion for the reasons stated, as was done, is an admission, by necessary implication, the fraud of Lockwood was such that plaintiffs had the right to rescind the contract of sale, and hence the taking by Lockwood would be regarded in law as a tortious taking without the consent of plaintiffs. Conceding, then, as must be done, the making of the sale to Lockwood was procured by fraud, was it indispensable, before plaintiffs could replevy the goods, there should be a formal rescinding of the contract of sale, by returning to or offering to surrender to him the notes taken for the goods ? That is one of the principal questions made on this record. Undoubtedly, the law is, where a party has received any valuable consideration upon the sale of property, he can not rescind the contract for fraud without first returning to or offering to return to the purchaser the consideration received, whatever it may be. The title of the fraudulent purchaser is subject to be divested, at the election of the seller, within any reasonable time after the' fraud is discovered. "When a sale is thus rescinded for fraud, it is as though no sale of the property had been made, and in that event the original taking will be regarded as a tortious taking without the consent of the vendor, and the title at once becomes reinvested in him, as though it had never been divested. Until the contract is rescinded, it is obvious both the title and the right of possession remain in the fraudulent purchaser. This precise question arose in Moriarty v. Stofferan, 89 Ill. 52S, and it was there held that in case of fraud on the part of the vendee of chattels, where nothing but the promissory note of the vendee and another was received, the vendor, to rescind the sale, must return the note, and- this • must be done before replevin brought, otherwise the action was premature. The same doctrine was declared in Buchenau v. Horney, 12 Ill. 336, and in Smith v. Doty, 24 id. 163. The case of Ryan v. Brant, 42 Ill. 78, was not an action of replevin, and is not, for that reason, inconsistent with Moriarty v. Stofferan, supra. That was an action of trespass, and the offer to surrender the notes received, to defendant, at the trial, on receiving a verdict, was held sufficient in law to place the vendee in statu quo, and therefore authorize plaintiff to recover his damages. There is no pretence plaintiffs in this case offered to surrender the notes taken for the goods, before this suit was commenced, and it follows that as the contract of .sale had, not been rescinded, .both the title and the right of possession were in defendant Lockwood, and according to the doctrine of the cases cited, plaintiffs could not sustain their action.

But after this action had been commenced, and before the cause came to trial, plaintiffs did offer to surrender to Lockwood his notes, and in that way did rescind the contract of sale on account of the fraud practiced upon them by Lockwood, and thereafter the right of immediate possession was in them. This raises the question whether the court ought to have ordered a return of the property, as it did, to the sheriff, from whose custody it had been taken. It is thought there is error in the record in this respect. Section 22, chapter 119, of the Revised Statutes of 1874, provides: “If the plaintiff in the action of replevin fails to prosecute his suit with effect, or suffers a non-suit or discontinuance, or if the right of property is adjudged against him, judgment shall be given for a return of the property, and damages for the use thereof from the time it was taken until a return thereof shall be made, unless the plaintiff shall, in the meantime, have become entitled to the possession of the property, when judgment may be given against him for costs and such damages as defendant shall have sustained. ” The facts of this case bring it precisely within the provisions of this statute. Since this action was commenced, plaintiffs, by rescinding the contract of sale, as they had a lawful right to do, “have become entitled to the possession of the property” in controversy, and it was error in the court to order a return of the property to the sheriff. After the contract had been rescinded, neither Lockwood nor the sheriff had any right to the property, as against plaintiffs. The law will not require the doing of a useless thing. Should the property be returned to the sheriff, now that plaintiffs have the right to possession, they could immediately reclaim it, or perhaps they would be liable to no more than nominal damages for a non-compliance with the order of the court to return the property. The utmost the court could do, under this statute, on the facts as they appear in the record, would have been to render a judgment against plaintiffs for costs, and such damages, if any, as defendants may have sustained.

On account of the errors indicated, the judgment of the Appellate Court will be reversed, and the cause remanded to the Superior Court, with directions to enter the proper judgment. ■

Till Judgment reversed.


author: Mr. Justice Scholfield

text:
    Dugald A. McMillan v. Sebastian S. Lovejoy.

      Filed at Ottawa January 25, 1886.

    1. Foreign judgment—transcript as evidence, without placiia. A transcript of a judgment of a sister State, when properly certified under the act of Congress, is admissible in evidence in an action upon such judgment, although it shows no placita.

    2. Same—subject to what defence. Under the act of Congress, where a transcript of a judgment of a sister State, duly certified, is offered in evidence, no questions are open to inquiry except those of jurisdiction.
    3. Judgment—defects in form, as affecting its conclusive effect. In a collateral proceeding, as, a suit upon a judgment or decree, when the tran-' script shows it to be the adjudication of a court or judge having jurisdiction over the parties and subject matter, the judgment or decree, however defective in form, is conclusive upon the parties.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Stephenson county; the Hon. William Brown, Judge, presiding.

      This is a suit in debt, brought in the circuit court of Stephenson county, upon a judgment rendered in the circuit court of Rock county, in the State of Wisconsin. The declaration is in the usual form, the pleas are nul tiel record and release. The case was tried by the court and a jury, and resulted in a verdict and judgment against the appellant, defendant below, for $1577.54 debt, and $111.34, damages. The following is a copy of the transcript:
    “State of Wisconsin, } Circuit Court Rock County, )

      Sebastian S. Loveyoy, Plt’ff, v. D. A. McMillan, Deft.

    “The summons in this action having been duly and personally served upon the said defendant, D. A. McMillan, on the 2Sth day of February, A. D. 1883, as appears by the return of the sheriff of Rock county, aforesaid, on file in this court, and the summons and complaint in this action having been duly filed in the office of the clerk of this court on the 13th day of March, A. D. 1883, and more than twenty days having elapsed since the time of the service of said summons upon the said defendant, and it duly appearing by the affidavit of J. J. R. Pease, one of the attorneys for the plaintiff herein, that no answer nor demurrer to the said complaint, and no notice of appearance in this action, nor demand for a copy of the said complaint has been served upon the plaintiff’s attorneys or received at the address mentioned in said summons, and it so satisfactorily appearing to the court by evidence produced and proofs made in open court, the court finds that all of the allegations in the said complaint contained are true.
    “Now, therefore, on motion of Pease & Ruger, attorneys for said plaintiff, it is ordered and adjudged that the note described and set forth in the complaint in this action be reformed so that the date thereof shall be September 12, 1877, instead of September 12, 1878, and that the said plaintiff, Sebastian S. Lovejoy, do have and recover of and from D. A. McMillan, the defendant, the sum of $1555 damages, together with $22.54 for costs and disbursements, amounting in the aggregate to the sum of $1577.54.
    “Dated the 31st day of March, A. D. 1883.
    “By the court.
    John B. Bennett, Presiding Judge.”

    Mr. J. A. Crain, for the appellant:
    The want of a placita in the so-called transcript of judgment offered in evidence, was and is a fatal defect, and there was no proof of a judgment. Planing Mill Co. v. Chicago, 56 Ill. 305; Rich v. Chicago, 59 id. 298; Dukes v. Rowley, 24 id. 220.
    Mr. M. Stoskopf, for the appellee:
    If the copy produced purports to be a record, and not a mere transcript of minutes from the docket, and the clerk certifies that it is truly taken from the record, and his attestation is certified to be in due form of law by the presiding judge, it will be presumed that the paper is a full copy of the entire record, and will be sufficient. 1 Greenleaf on Evidence, secs. 504, 505.
    The transcript shows that the judge was acting as a court as fully and completely as would a formal placita. The only office of a placita is merely to show the judge that is holding the court. Hall v. Hamilton, 74 Ill. 443.
    The act of Congress in relation to authentication of records, ÍJ. S. Bev. Stat. 1873-4, (ed. 1878,) title 13, chap. 17, also found in Hurd’s Stat. page 84.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The question, here, is whether, in an action upon a judg- ■ ment of a sister State, it is a valid objection to the transcript of the judgment certified in conformity with the act of Congress, when offered in evidence, that it shows no placita. We think it is very clear that it is not. The decisions in this court holding that the transcript of a judgment or decree must show a placita, were all in direct proceedings to reverse the judgment or decree. But the rule is general, in a collateral proceeding, however defective in form may be the judgment or decree, if the transcript show that it is the adjudication of a court or judge having jurisdiction over the parties and the subject matter, it will be held conclusive. Phillips et al. v. Webster et al. 85 Ill. 146; Cooper v. Reynolds, 10 Wall. 309; Gunn v. Plant, 94 U. S. (4 Otto,) 664. Moreover, in what language a judgment or decree shall be entered up, depends upon the law relating to the practice of the courts in the State where it is rendered; and under the act of Congress, when a transcript duly certified is offered in evidence in another State, no questions are open to inquiry except those of jurisdiction. Bimeler v. Dawson, 4 Scam. 537 ; McJilton v. Love, 13 Ill. 492; Ducommun v. Hysinger et al. 14 id. 249; Zepp v. Hager, 70 id. 223. The transcript here read in evidence is of what purports to be the record of the circuit court of Bock county, in the State of Wisconsin, in a case wherein judgment is rendered by the court for the plaintiff, and against the defendant, for the sum of $1555 damages, and $22.54 costs and disbursements. The certificates of the clerk and of the judge of the court, appended, conform to the requirements of the act of Congress, and the conclusion must be that the transcript is- a full copy of the entire record, and sufficient. 1 Greenleaf on Evidence, secs. 504, 505, 506.

The judgment is affirmed.

Judgment affirmed.

This case, when first considered, was assigned to the late Justice Dickey to prepare the opinion, but no opinion having been prepared in his lifetime, the case was re-assigned at the November term, A. D. 1885.


author: Mr. Justice Walkeb

text:
    William D. Kerfoot v. Cromwell Mound Company.

      Filed at Ottawa May 19, 1884.

    1. Contract—written contract not signed by the party sought to be charged—liability. It is not always essential to the liability of a person sought to be charged upon a written contract, that his name be signed thereto.
    2. In this case certain property owners in the city of Chicago, desiring to procure the improvement of certain streets upon which their property was situated, entered into a contract for that purpose. The contract was reduced to writing, the person who was to make the improvement being designated as party of the first part, and the property owners as party of the second part, among the latter the name of W. D. Kerfoot, who disputed his liability on the ground that he had not signed the instrument, being given. C. A. Kerfoot was also named as one of the parties of the second part. The instrument provided that the party of the first part should do the work, and the parties of the second part should pay for it, and concluded as follows: “In witness whereof the parties hereto have caused the contract to be signed by the parties representing first and second part, ” etc. The paper ivas signed, after the signature of the contractor, in the following form:
    0. A. Kerfoot, By W. D. Kerfoot, A. M. Jones.
    Committee and agents for owners of property.
    This was considered a sufficient execution of the contract by W. D. Kerfoot to bind him according to its terms, and to render the instrument admissible in evidence against him in an action upon the written contract to enforce his liability.
    3. The name of W. D. Kerfoot appears in the written contract as one of the parties of the second part. The agreement purports to bind him as well as the other parties of the second part, and the testing clause recites that the contract was caused to be signed by the persons representing the parties of the first and second parts. Kurther, W. D. Kerfoot, the person sought to be charged, did sign his name to the paper for O. A. Kerfoot, one of the two persons appointed to represent the parties of the second part. Having signed the agreement, W. D. Kerfoot must be presumed to have known that he was named as a party to it, and that it was intended to bind him according to its terms. Having so signed and delivered the instrument, he must be presumed to have intended to bind himself by it.. He thereby adopted it as his own.

      4. Appeal—reviewing controverted questions of fact—constitutionality of section 89 of the Practice act in its limitation upon the power of the Supreme Court in that regard. Section 89 of the Practice act, in limiting the jurisdiction of the Supreme Court to review controverted questions of fact, is not subject to the objection that it assumes to restrict the “appellate jurisdiction” of that court, as given in the constitution. It is entirely competent for the legislature, subject to certain enumerated exceptions, to make all judgments and decrees affirmed by the Appellate Court, final and conclusive; and so may make any portion of such judgments, as, in its finding of the facts, conclusive upon the Supreme Court.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    The contract declared upon in this case was as follows:
    “Agreement made and entered into this 23d day of August, A. D. 1875, by and between the Cromwell Mound Company, party of' the first part, and David Kreigh, D. N. Burnham, O. J. Hines, John Tyrell, A. M. Jones, Barrett, Todd & Cochrane, and W. D. and C. A. Kerfoot, party of the second part, witnesseth: That the said party of the first part, in consideration of the payment to be made by the party of the second part, as hereinafter set forth, hereby covenant and agree to and with the said second party, to provide and deliver a sufficient quantity of Cromwell gravel taken from the Cromwell gravel pit, near Lombard, Illinois, in Du Page county, to form a road bed on the following described amount as described, ” (giving a description of the streets upon which the improvement was to be made, and of the character of work to be done.) And the said party of the second part, in consideration of the premises, hereby agree to pay to the said party of the first part two dollars and twenty-five cents per cubic yard, to be measured by the engineer that may be agreed upon by both parties, and to be measured on the cars at the places most convenient to unload for said streets, and the said party of the second part agrees to pay for the gravel as fast as the front of any block shall be graveled.

      “In witness whereof, the parties hereto have caused the contract to be signed by the parties representing first and second part, on the day and year first above written.
    0. Huse,
    President Cromwell Mound Co.
    C. A. Kebfoot, By W. D. Kerfoot, A. M. Jones,

      „ ... . , „ Gommittee ?nd agents for prop6rty'
    Messrs. Collins & Adaib, with whom was Mr. J. P. Wilson, for the appellant.
    Messrs. Ellis & Meek, for the appellee.
   Mr. Justice Walkeb

delivered the opinion of the Court:

This was an action of assumpsit, brought by appellee, in the Superior Court of Cook county, against appellant, on a contract, to recover damages for its breach. The declaration contained special and common counts. The case was tried by the court without a jury, by consent of the parties, and the issues were found for plaintiff, the damages assessed, and judgment rendered in its favor. The case was taken to the Appellate Court for the First District, where the judgment was affirmed, and defendant brings the record to this court, and assigns errors.

It is first urged that the Superior Court erred in admitting the agreement because it was not executed by appellant, and it therefore was variant from the agreement declared on in the declaration. Whether the written agreement is binding on appellant is the first question to be determined. Appellant’s name appears in the written contract as one of the parties of the second part. The agreement purports to bind him as well as the other parties of the second part, and the testing clause recites that the contract was caused to be signed by the parties representing the parties of the first and second parts. Hot only so, but appellant signed his name to it for C. A. Kerfoot, one of the two persons appointed to represent, and who did represent, the parties of the second part. Having signed the agreement, no difference whether for himself or for C. A. Kerfoot, he must be presumed to have known that he was named as a party to it, and that it was intended to bind him according to its terms. Having signed and delivered the agreement, he must be presumed to have intended to bind himself according to its terms. He thereby adopted, and bound himself by, the agreement. It being binding on him, it was properly read in evidence. If it varied from the contract set out in the declaration so as to be precluded from being read under the special counts, being a valid contract, which bound appellant, appellee having fully performed its part of the contract, it, according to all the authorities, was admissible under the common counts.

It appears from the evidence, and it is not controverted, that appellant, and a number of other owners of property in the city, determined to have the streets in front of such property graveled, and they authorized Jones and C. A. Kerfoot to contract with appellee to have the gravel furnished and the work done. They agreed upon the terms of the contract, and it was reduced to writing, and executed and delivered, as above stated, among themselves, each owner agreeing to pay for the improvement that should be thus made in front of his property. The company having performed its part of the agreement, and appellant having failed to pay his portion of the money, this action was brought for its recovery, and we think the written agreement was clearly admissible, under the common if not the special counts, in connection with the other evidence in the case, to establish a liability on the part" of appellant. The contract, when admitted, showed a request by appellant for appellee to furnish the gravel and to perform the work, and it fixed the price to be paid when performed. There was therefore no error in admitting the written agreement in evidence.

The other questions presented in the Superior Court are questions of fact, and are setttled by the findings of the Appellate Court. But it is insisted that the 89th section of the Practice act is unconstitutional. It provides: “The Supreme Court shall reexamine cases brought to it by appeal or writ of error, as to questions of law only, and no assignment of error shall be allowed which shall call in question the determination of the inferior or Appellate Courts upon controverted questions of fact in any case, excepting those enumerated in the preceding section.” The section referred to, as amended in 1879, (Sess. Acts .1879, p. 223,) is this: “Appeals from and writs of error to the circuit courts, the Superior Court of Cook county, the Criminal Court of Cook county, county courts and city courts, in all criminal cases below the grade of felony, shall be taken directly to the Appellate Court, and in all criminal cases above the grade of misdemeanors, and eases in which a franchise or freehold or the validity of a statute or the construction of the constitution is involved, and in all cases relating to revenue, or in which the State is interested, as a party or otherwise, shall be taken directly to the Supreme Court. ” Thus it- is seen that we are prohibited from reviewing the facts in all other cases, except, as is held, cases in chancery. Moore v. Tierney, 100 Ill. 207.

It is contended that the first section of article 6 is violated by that provision. The portion to which reference is made provides that the Supreme Court shall have original jurisdiction in cases relating to revenue, etc., and “appellate jurisdiction in all other cases.” The 11th section of that article provides that the General Assembly may organize Appellate Courts, “to which such appeals and writs of error as the General Assembly may provide may be prosecuted from circuit and other courts, and from which appeals and writs of error shall lie to the Supreme Court in all criminal cases, and cases in which a franchise, or freehold, or the validity of a statute is involved, and in such other cases as may be prescribed by law.” From this provision it is seen that, with the exceptions named, the General Assembly has the power to make all judgments and decrees affirmed by the Appellate Court, final and conclusive, and the section confers unrestricted authority on the General Assembly to require all appeals and writs of error to be tried in that court but the enumerated exceptions. Having the power to make all judgments of that court final but the excepted cases, it may provide that any portion of its judgments shall be final, on the principle that the whole contains all of its parts. If it has power to make the entire judgment final, as we have seen it has, it may any portion of the judgment,—hence the power to make the judgment of that court, on the facts, final- and conclusive on this court.

When our Supreme Court was first organized, the common law of England had been adopted and was in force in this State. Under that law the appellate courts never considered the weight of the evidence except in appeals in chancery. The findings of the jury were final, and not subject to review by the appellate court. It is true the circuit judge could set aside the verdict and grant a new trial, but the appellate court received and acted upon the findings of the facts as conclusive, and considered only questions of law arising on the record. This being the common law, and it being in force in this State, it became and was the law of the Supreme Court of the State. It so remained until the 21st of July, 1837, when the General Assembly required the court to pass upon the evidence when the finding of the facts was excepted to in the circuit court. The enactment provides: “Exceptions taken to opinions or decisions of the circuit courts overruling motions in arrest of judgment, motions for new trials, and for continuances. of cases, shall hereafter be allowed; and the party excepting may assign for error any opinion so excepted to, any usage to the contrary notwithstanding. ” (Laws Special Sess. 1837, p. 109.) That was the first introduction of the practice of reviewing the evidence heard by the jury in the court below,'by this court. Down to that time this court looked to the evidence in the case merely to see in what manner questions of law were presented, and only considered such questions. The same constitutional provision as to the jurisdiction of our Supreme Court was, in substance, inserted in the constitution of 1818, and in both subsequent constitutions, and it was under that provision that the practice of this court in considering questions of law alone obtained until 1837, and that practice still obtains in the Supreme Court of the United States, and other States in the Union. We are aware of no case 'that holds that parties have a constitutional or vested right in the practice governing courts, except as the right of trial by jury is secured. It has never been held that the legislature has no power to alter the practice of the courts of the State. Under the present practice the evidence may be reviewed in all cases by the Appellate Court, which was not allowed at the common law. The General Assembly may, no doubt, under the constitution, restore the common law practice, and permit the review of the evidence by either the Appellate or this court. When the constitution of 1818 was adopted there was no practice in the appellate courts, except in chancery, to review the evidence, and that was because the court, on appeal, had before it the same evidence, in the same form, in writing, that was heard by the vice-chancellor. No such practice as the appellate court, in cases at law, reviewing the evidence, was known at that time, hence the term “appellate jurisdiction, ” meant only the power to review and decide questions of law. We therefore do not have the slightest doubt of the constitutionality of the section challenged.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Magruder

text:
    David Cooter et al. v. Laura J. Dearborn et al.

      Filed at Springfield January 22, 1886.

    1. Guardian’s deed—must, be based on decree. A guardian has no power to sell the ward’s land without an order of the proper court, for the purpose of raising funds for the ward’s support and education. Without any petition for leave to sell the ward’s land, and a decree granting leave, the guardian’s deed is absolutely void.
    2. Limitations—Milder the act of 1889—of the good faith required. Where a party, with full knowledge of the worthlessness of his deed, by misrepresentation as to the value of the land induces the mother of the infant owner to convey the same to him, neither he nor any one claiming through or under him, can claim under it as color of- title made in good faith.
    3. Same—concurrence of color of title, possession, and payment of taxes. To establish a bar under the seven years’ Limitation law, the possession and the payment of taxes must relate to the same land which is described in the instrument relied on as color of title, and the payment must be for seven successive years.
    4. Same—as between tenants in common. As a general rule, the Statute of Limitations does not run as between tenants in common, for the reason that the possession of one tenant, in legal contemplation, is the possession of the others; and this is especially so when all parties derive title from the same deed or conveyance. Under the statute, the possession must be adverse before it will begin to run in favor of one tenant in common against the others.
    5. Laches—excused by infancy and coverture. Where a guardian, without any authority, sold and conveyed his ward’s land in September, 1863, and the ward married before her majority, it was held, that such ward, in view of her infancy and coverture, was not guilty of laches in failing to file a bill until in 1875, to set aside such deed as a cloud upon her title.
    6. Partition—equalizing interests by money compensation—or owelty. Where an equal partition of land can not otherwise be made, courts of equity may order that a certain sum be paid by the party to whom the most valuable property ha's been assigned. The sum so directed to be paid is called owelty.
    7. Same—allowance for improvements—deduction of rents. One of several tenants in common out of actual possession will be charged, not with the price or cost of improvements put upon the land by another tenant, but only with his proportion of the amount, which, at the time of the partition, they add to the value of the premises; and from this amount he will be allowed to deduct any sum to which he may have a just claim for use and occupancy of his portion enjoyed by the tenant making the improvements.

      Appeal from the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.
    Mr. William B. Webbeb, for the appellants:
    As between tenants in common one ought not to protit by improvements made by another, but should make fair contribution. Freeman on Co-tenancy- and Partition, secs. 507, 510; Hopkins v. Medley, 97 Ill. 402; Jessup v. Jessup, 102 id. 480; Gardner v. Dedrichs, 41 id. 164; Dean v. O’Meara, 47 id. 120; Wilton v. Tazewell, 86 id. 29.
    As to parol partition, see Nichols v. Padfield, 77 Ill. 253. If a party receive and retain the purchase money of his land sold, he affirms the sale, and can not claim against it, whether it is void or only voidable. Maple v. Kassart, 53 Pa. St. 348; Strable v. Smith, 8 Watt, 280; Wendall v. VanRensalaer, 1 Johns. Ch. 344; Brandon v. Brown, 106 Ill. 527; Tilton v. Nelson, 27 Barb. 595; Carpenter v. Dougherty, 67 id. 397.
    The principle of estoppel of this character applies to infants as well as adults. Penn v. Wisey, 19 Ill. 300.
    Rescission of a sale for' fraud must be sought within a reasonable time. 1 Hilliard on Vendors, 335; Cunningham v. Fithian, 2 Gilm. 651; Gaddis v. Leeson, 55 Ill. 83.
    Presumption of good faith from the purchase and payment of land, payment of taxes, etc. Hardin v. Gouveneur, 69 Ill. 141; Brooks v. Bruyn, 35 id. 392.
    Color of title may be under a void title. Brooks v. Bruyn, 35 Ill. 392; Woodard v. Blanchard, 16 id. 32; Stubblefield v. Borders, 92 id. 283; Conner v. Goodman, 104 id. 365.
    Laura • Dearborn has not placed herself within the rule adopted from analogy to section 8 of the Limitation act. She became of age January 4, 1867, and did not bring this suit until August 12, 1875,—not within three years after attaining her majority. Keal v. Healy, 84 Ill. 105; Cole v. Pennoyer, 14 id. 158; Davis v. Hall, 92 id. 85.

      Messrs. Bradley & Bradley, for the appellees:
    Laura Dearborn was a feme covert from before arriving at majority until long after the bringing of this suit, and no Statute of Limitations could run against her. Bev. Stat. chap. 83, sec. 8.
    As a general rule the statute does not run as between tenants in common, especially when they all derive title from the same source or deed. Ball v. Palmer, 81 Ill. 370; Dugan v. Follett, 100 id. 588; Busch v. Huston, 75 id. 343.
    The court below considered the rents as equal to any and all improvements, which is fair, under the facts.
   Mr. Justice Magruder

delivered the opinion of the Court:

Laura J. Dearborn, and her husband, George H. Dearborn, and Andrew Goodwin, appellees herein, filed their bill on August 12, 1875, in the circuit court of Champaign county, for a partition of 320 acres of land, described as the east half of section 13, township 22 north, range 7 east, and for the purpose of setting aside a deed from Jane Terwilliger, as guardian of Laura J. Dearborn, to one Nicholas Dolph, as a cloud upon the interest of said Laura in said land.

It is conceded that the premises were originally owned by James Goodwin, who died intestate about 1851, leaving the said Jane (since married), his widow, and fourteen children, two of whom are the said Laura and Andrew. By the death of James Goodwin, his fourteen children became owners, each of an undivided one-fourteenth of the 320 acres. By deeds from eight of the children, Benjamin Houston became the owner of eight-fourteenths, or fifty-six ninety-eighths, of the land. One of the children, Margaret Goodwin, died in 1859, at the age of seven years; another, Mary E. Goodwin, died in 1860, at the age of sixteen years. By the deaths of Margaret and Mary E., the remaining twelve children became the owners, each of an additional one ninety-eighth of said premises, and the widow, Jane Terwilliger, mother of Margaret and Mary E., became the owner of two ninety-eighths of said 320 acres. Thomas L. Goodwin, one of the surviving twelve children, conveyed to Benjamin Houston the one ninety-eighth inherited from his deceased sisters, thus making said Houston the owner of fifty-seven ninety-eighths, or about 186^^- undivided acres. Two of the fourteen children, Sarah E. and Samantha A., not included in the eight under wrhom Houston held, seemed to have made such transfers as that either all or a portion of their interests have become vested in George W. Gere, trustee for Burnham, Condit & Co. Houston died August 12, 1875, (the date of the filing of the bill,) and, from some time prior to 1858 to the day of his death, was in possession of the north 87 acres of the 320-acre tract. Since his death his- administrator has sold the 87 acres above named to pay debts, and the same has been purchased by Nathaniel Helmick. On October 18, 1858, Houston, being then the owner of an undivided seven-fourteenths, or forty-nine ninety-eighths, of the 320 acres, made a transfer of some sort of interest to David and Marion Cooter, and David Cooter took possession of the 73 acres south of the north 87 acres, and has been in possession thereof ever since. Gere, trustee as aforesaid, claims to be owner of, and is in possession of, the 101-1 acres south of and adjoining the said 73 acres, but just how his title is derived, except as to the interests of- Sarah E. and Samantha A., above named, does not appear very distinctly from the evidence. One Nicholas Dolph, in his lifetime, claimed to be the owner of the remaining 58|- acres of said tract lying south of the 101-1 acres above named, and was in possession of the same when he died, in 1864. He had obtained three deeds,—one, dated March 10, 1864, was from Gardner Sweet and wife, conveying 58-| acres off the south side of the south-east quarter of said section, but it is not shown that Sw'eet ever had any title to such 58-f- acres; one, dated September 26, 1863, was obtained from Jane Terwilliger, as guardian of Laura J. Goodwin, (now Dearborn,) and conveys the undivided interest of said Laura in the tract in question, which descended to her as heir at law of James Goodwin; the third, dated July 13,1863, was made to'Dolph by Houston, conveying the undivided interest obtained by Houston from Thomas L. Goodwin, one of the fourteen children of James Goodwin. Nicholas Dolph died in 1864, leaving one child, Ida M. Dolph, and a widow, Julia A. Dolph, who married Isaac Devore in 1874, and Jesse Richards in 1877. Ida M. Dolph married Charles A. Weidner, and died in 1883, testate, and left her husband, Weidner, her sole devisee. It is claimed that Nicholas Dolph, in his lifetime, and his widow and child, since his death, have been in pos- , session of the 58|- acres since 1864.

The master, to whom the cause was referred in the court below, found that Helmick, holding as above stated, was in possession of the north 87 acres; that David Cooter, holding as already stated, was in possession of the 73 acres next south of the 87 acres; that Gere, trustee, holding as stated, was in possession of the 1011 acres next south of the 73 acres, and that Weidner, holding as stated, was in possession of the south 58|- acres above named. No finding was made in the master’s report, or in the decree thereon, as to the nature or extent of the titles of the parties so in possession to the portions of the tract respectively held by them.

On November 13, 1874, the widow, Jane Terwilliger, conveyed her interest'of two ninety-eighths or acres, undivided, to appellee George H. Dearborn. Andrew Goodwin, appellee, by inheritance from his father and his two deceased sisters, became the. owner of eight ninety-eighths or 26^^ acres, undivided. Laura J. Dearborn, by inheritance from her father and her deceased sisters, also became the owner of eight ninety-eighths or 26^^ acres, undivided. The total amount claimed by appellees is 58r6g7g- acres, undivided.

The first question to be considered is the validity of the deed from Jane Terwilliger, as guardian of Laura J. Goodwin, to Nicholas Dolph. This deed was absolutely void, and conveyed no title whatever. Laura herself did not sign it. She was only fourteen years old on September 26, 1863, when it w:as made. Whether her mother was then her guardian or not, does not appear from any evidence in the case. She says herself she was not then the guardian of her child. In this deed, however, in which she describes herself as guardian, she conveyed away to Dolph the undivided interest of her daughter in the 320 acres, “being all the right, interest and claim which descended to her, the said Laura Isabella Goodwin, as heir at law of James Goodwin, deceased.” She had no power to sell the land of her ward without an order of the - proper court directing her so to do, for the purpose of raising funds for the ward’s support and education. No petition was ever presented asking for authority to make such a sale, and no decree was ever entered by any court permitting such a sale to be made.

It is claimed, however, that this deed was good color of title, and that Dolph went into possession under it as claim and color of title made in good faith. Whether the instrument shows on its face such a want of authority as to negative the idea .of its having been made in good faith, is a question which it is not necessary to consider. The proof show's that the land v7as located in Champaign county, and that Dolph came over from Champaign county to Springfield, in Sangamon county, where Mrs. Terwilliger lived with her daughter, and there induced her to make a deed, with full knowledge of its worthlessness, and by misrepresentation as to the character and value of the land. Therefore neither he, nor his widow, nor his daughter, nor his son-in-law, the devisee of his daughter, could claim under it as color of title made in good faith. McCagg v. Heacock, 34 Ill. 476; Hardin v. Gouveneur, 69 id. 140; Davis v. Hall, 92 id. 85.

In view of her minority and coverture, Mrs. Dearborn has been guilty of no laches in bringing this bill for partition and to remove the cloud on her title. The court below decided correctly in setting aside the deed to Nicholas Dolph. Courts can not be too careful in protecting the interests of minors, who are liable to be the victims of designing men and ignorant or faithless guardians.

It is to be observed that the deed from Mrs* Terwilliger, as guardian, to Nicholas Dolph, only describes the one-fourteenth, or seven ninety-eighths, inherited by Laura Goodwin from her father, James Goodwin. Besides the seven ninety-eighths she also owned one ninety-eighth inherited from her deceased sisters, Margaret and Mary E. Goodwin. Even if the deed from her mother to Dolph had been valid, it did not pass the one ninety-eighth that came to her from her sisters, nor did she ever convey away this one ninety-eighth to any other person. She was, therefore, a tenant in common, in any event, with Nicholas Dolph and Houston in the ownership of the 320 acres. George H. Dearborn and Andrew Goodwin were also tenants in common in the ownership of the tract with Houston and Dolph. Dolph became the owner of eight ninety-eighths of said tract by deed to him, dated July 13, 1863, from Houston, conveying the eight ninety-eighths which Houston had obtained from Thomas L. Goodwin,—hence Dolph was already a tenant in common with Andrew Goodwin and Mrs. Terwilliger and Laura J. Goodwin, before he attempted to get the interest of the latter, on September 26, 1863. It follows that the possession of the north 87 acres by Houston and his heirs, and of the south 58|- acres by Dolph and his heirs, can not be set up against the appellees, under the Limitation law, in reference to the payment of taxes and possession for seven years under claim and color of title. For the general rule unquestionably is, that the statute does not run as between tenants in common, on the ground, in part, that the possession of one tenant, in con-temptation of law, is the possession of the others; and this is especially so where all the parties derive title from the same deed or conveyance. (Busch v. Huston, 75 Ill. 343; Ball et al. v. Palmer, 81 id. 370; Dugan v. Follett, 100 id. 588.) There is nothing in the facts of this case which brings it within any of the exceptions to this general rule, or which tends to establish an adverse holding by any of the tenants in common against the others. Counsel for appellants says, in his brief: “I acknowledge the general rule to be that one tenant in common can not set up this statute as against another tenant in common. ”

David Cooter claims the benefit of -the seven years’ Limitation law as to the 73 acres held by him. October 18, 1858, Houston deeded to David Cooter and Marion Cooter land described as follows: “Of the east half of the north-west half of section 13, township 22 north, range 7 east, 61 acres, be the same more or less.” This deed only conveyed to David Cooter the undivided half of a certain 61 acres. He did not obtain title to the other undivided half of this 61 acres that was deeded to Marion Cooter, until February 26, 1866. The tract which David Cooter took possession of, and upon which he claims to have paid taxes for seven years, and which he claims to have occupied for more than seven years, is 73 acres in the south half of the north-east quarter of said section 13. Evidently he can not claim this 73 acres under the deed from Houston, as color of title. Just what “the east half of the north-west half” means, is not apparent. It certainly does not describe the 73 acres in the south half of the north-east quarter of section 13. The proof shows that the possession was of one tract, wdiile the deed set up as color of title, under which the possession was taken and held, describes an entirely different tract. The color of title describes one tract, while the tax receipts show that the taxes were paid on another tract. To establish a bar under the statute, the possession and the payment of taxes must relate to the same land which is described in the instrument introduced as'claim and color of title. (Sedgwick & Wait on Trial of Titles to Land, sec. 768.) Cooler has- not, therefore, brought himself within the requirements of the seven years’ Limitation law. It is true that on February 1,1869, Houston executed a deed to David Cooler, conveying the 73 acres by a correct description ; but seven years did not elapse after the date of this deed, before the filing of the bill. Moreover, Cooler does not produce any tax receipts for the years 1859, 1860 and 1861, and unless it be assumed that 1865 has been written in the record by mistake for 1868, there is no receipt for the taxes of 1868. Without the receipts for 1859, 1860,1864 and 1868, Cooler has not shown the payment of taxes for any full period of seven years prior to the filing of the bill, upon any land, whether described in the color of title or not.

The decree rendered by the court below did not disturb the respective possessions of Helmick, Cooler, Gere and Weidner, as herein indicated. It decreed complainants to be the owners of 58|- undivided acres in the whole tract, and finding the value of the 58-| acres in dollars and cents, directed the amount to be paid by the parties in possession in certain proportions. This method of settling the rights of the parties seems to have been assented to by the counsel for the defendants below. The master does not find what the respective interests of the defendants were in the 320 acres. He says in his report: “I should have found the respective interests of all the defendants in said lands, but the solicitors for the defendants respectively desired that such finding should not be made.” The aw-arding of a money compensation to some of the tenants in common, in lieu of a portion of the land itself, is within the power of a court of chancery in partition proceedings. When an equal partition can not be otherwise made, courts of equity may order that a certain sum he paid by the party to -whom the most valuable purparty has been assigned. The sum itself directed to be paid to make the partition equal, is called owelty. Freeman on Co-tenancy and Partition, sec. 507.

Gere, one of the defendants below, does not attack the decree. He has taken' no appeal and assigned no errors. Appellants Helmick, Cooter and Weidner object to the portion of the decree now under consideration, upon two grounds. The first relates to the improvements. Houston made some improvements upon the 87 acres, Cooter upon the 73 acres, and Dolph and his representatives upon the 5Sf acres. They claim that the court should have ascertained the value of these improvements, the value of the land independent of the improvements, and the enhanced value of the land by reason of the improvements. Whatever improvements they placed upon the premises they are allowed to retain. There is some testimony showing the nature and value of the improvements, and the commissioners found and reported the value of the land. As the allowance or compensation for improvements is in all cases made, not as a matter of legal right, but purely from the desire of the court to do justice, the compensation will be estimated so as to inflict no injury on the co-tenant against wdiom the improvements are charged. He will therefore be charged, not with the price of the improvements, but only with his proportion of the amount which at the time of the partition they add to the value of the premises. From this amount he will also be entitled to deduct any sum to which he may have a just claim for use and occupancy of his moiety enjoyed by the co-tenant making the improvements. Freeman on Co-tenancy and Partition, sec. 510; Rowan v. Reed, 19 Ill. 28.

Appellants and those under w'hom they claim have been in the occupancy of the "respective portions of this 320 acres which are now held by them, for many years. They are not only allowed to keep their improvements and retain their possession, but they are charged nothing for the use and occupancy of the 58^- acres owned by appellees. The value of such use and occupancy is a fair offset to such proportion of the increased value given to said premises by the improvements thereon as appellees are justly chargeable with.

The second objection has reference to the manner in which the total amount assessed against appellants and in favor of appellees has been apportioned among the appellants and Gere. Without going into detail, we are satisfied, from a careful examination of the record, that the apportionment has been fairly and equitably made, and so as to do appellants no injustice.

The decree of the court below is affirmed.

Decree affirmed.

The record in this case was originally assigned to Justice Dicicey. No opinion having been written bj? him in his lifetime, the record was re-assigned in November, 1SS5.


author: Mr. Justice Craig

text:
    The City of Olney v. Mary Wharf.

      Filed at Mt. Vernon January 25, 1886.

    1. Munich?ai oobpobation—granting use of streets for railway purposes—liability to abutting property owners for injury therefrom. An incorporated city or town may lawfully grant the right and privilege of constructing and operating a railroad in a public street, the fee of which is in the city or town, if it makes all proper and reasonable provisions to protect lot owners and the public in the free use of the same, and in so doing will incur no liability to owners of lots abutting on such street, who must look to the railway company for any damage thereby caused to their property.
    2. A railway company being authorized by law to construct and operate its road through an incorporated town which held the fee to its streets, the town authorities by ordinance granted the privilege of constructing the road along the center of a public street, upon condition the company should grade the street and plank its track with two-inch boards, so as to secure, as far as possible, to the public the free and uninterrupted use of the street, and the road was so constructed, whereby a lot owner, whose lot was on the street, was damaged in consequence of raising the grade of the street and by obstructing the view from his premises, etc.: Held, that the town having lawfully granted the right of way, and being guilty of no negligence or wrongful act, was not liable to the lot owner.
    Appeal from the Appellate Court for the Fourth District; —heard in that court on appeal from the Circuit Court of Richland county; the Hon. William C. Jones, Judge, presiding.
    Messrs. Wilson & Hutchinson, for the appellant.
    Messrs. Allen & Fritchey, for the appellee.
   Mr. Justice Craig

delivered the opinion of the Court:

On the 10th day of March, 1869, the legislature passed an act to incorporate the Danville, Olney and Ohio River Railroad Company. (2 Private Laws 1869, p. 975.) Under section 1 of the act, the company was authorized and empowered to locate, construct and complete a railroad from Danville, through Olney, in Richland county, to the Ohio river. On the 11th day of October, 1881, the city council of the city of Olney passed an ordinance granting the right of way to the railroad company through the city of Olney, from,a point where Camp avenue, when extended due north from its present northern terminus, strikes the right of way of the Peoria, Decatur and Evansville Railroad Company, thence south along the middle of said Camp avenue to the south, line of said city. The right of way was granted upon certain conditions named in the ordinance requiring the railroad company to grade the street and plank the track, so as to preserve, so far as possible, the rights of the public in the free and uninterrupted use of the street as a highway. Under the authority conferred by the ordinance, the railroad company entered upon the street and constructed its road, and the plaintiff being the owner of two lots, occupied as a residence, abutting on Camp avenue, brought her action against the city to recover damages alleged to be sustained in the depreciation of her property, occasioned by the construction and operation of the railroad over and along the street.

It may be fairly inferred, from the evidence, that appellee’s property has depreciated in value by the construction and operation of the railroad. A part of the depreciation arose from the running of trains along the street, thus disturbing appellee’s quiet enjoyment of her property, a part from the standing of trains opposite appellee’s house, thus obstructing her view, and a part from the fact that the railroad company carried the grade of the street somewhat above the level of appellee’s lots, and thereby obstructed the ingress and egress. It seems, however, from the evidence, that twenty-five dollars would liquidate the damages arising from a change of the grade of the street. The main damages therefore arose from other causes. But this is not a matter of great importance. The controverted question in the case is, who is liable for the damages sustained. On behalf of appellee it is contended that the city is liable, while on the other hand it is contended by appellant that if a right of action exists in favor of appellee, her only remedy is against the railroad company.

At the request of the plaintiff, the court instructed the jury that if they found, from the evidence, that plaintiff’s property was damaged by the construction of the railroad along the street, they should find for plaintiff, and assess her damages at such sum as the evidence shows the property has depreciated in value by the construction and operation of the road. The court also instructed as follows:

“That when a city owns the fee in a street, and grants the right of way to a railroad company to construct its railroad upon such street, the city becomes liable to the owners of abutting. property for any damage such owners may sustain by reason of the construction of said road. ”

Several instructions presenting the opposite view, that the railroad company was not liable in such a case, were asked and refused by the court.

The fee of the street where the railroad company was per-' mitted to construct the road was in the city of Olney. As before observed, the legislature had authorized the railroad company to construct its road through the town of Olney. It was therefore a duty resting upon the city council of Olney, upon the application of the railroad company, to designate a street upon which the road might be constructed through the city. This obligation the city discharged by the passage of an ordinance authorizing the construction of the railroad in the center of Camp avenue,—a street eighty feet wide. The ordinance required the railroad company to grade and drain the street, and plank the cross-ties with plank two inches thick, so that the public travel on the street might not be hindered or obstructed. The ordinance also provided that the railroad company should be subject to such police regulations as might be enacted by the city of Olney, and if at any time the railroad company failed or refused to perform its several duties under the ordinance, then the right to use the street for railroad purposes should cease and determine. It will thus be seen that the city of Olney did not act in a hasty or reckless manner in conferring the right on the railroad company to occupy the street, but on the other hand, in the passage of the ordinance the city incorporated into the ordinance such provisions as seemed necessary to protect the rights of property owners along the street, and also the rights of the public in the free use and enjoyment of the street as a public highway.

Is the city liable for damages sustained by the owners of property abutting on the street, for granting permission to the railroad company to construct and operate a railroad through Olney, as authorized by an act of the legislature? Prior to the adoption of our present constitution this court had held, in at least two well considered cases, that the property owner had no right of action against any person. Moses v. Pittsburg, Ft. Wayne and Chicago Railroad Co. 21 Ill. 516; Murphy v. The City of Chicago, 29 id. 286. In the last case named it is said: “It is the settled law of this court, as well as in most of the other States of the Union, that it is a legitimate use of a street or highway to allow a railroad track to be laid down, on it, and for doing so the city is not liable for any damages which may accrue to individuals. ” In the other case cited, which was a bill against the railroad company to enjoin it from constructing the road on a street, it was held that the property owners could not enjoin the laying of tracks, nor recover damages for the use of the street.

But it is contended that since the adoption of the constitution of 1870, in which it is provided that “private property shall not be taken or damaged for public use without just compensation, ” the doctrine of the cases cited has been abandoned, and a new rule established, under which the city is liable. The cases relied upon by appellee to sustain a recovery against the city of Olney, are City of Pekin v. Brereton, 67 Ill. 477, Stack v. City of East St. Louis, 85 id. 377, and Rigney v. City of Chicago, 102 id. 64. The first of the eases named was an action brought to recover damages for the making of deep excavations in the street and sidewalk adjoining the lots, so that plaintiffs were injured and deprived of the use of their lots; that there was danger that injury would result from caving and falling of the street, and it did not appear that the fee of the streets was in the city. These were the facts under which the city was held liable. It is plain that a city has no right to make dangerous excavations in the streets, or suffer or permit others to so use the public streets, and if a city allowed dangerous excavations to be made, it might be liable, as held in the case cited. But there is no similarity between that case and the one under consideration. Here all reasonable precaution was taken to protect the rights of the public in a free and uninterrupted use of the street, after the road should be constructed, in the same manner as before. The ordinance which conferred the right upon the railroad company to use the street, at the same time required that it should be graded, drained, -and the ties on the track planked with two-inch plank. Again, as the fee of the street was not in the city of Pekin, the abutting land owners were entitled to additional compensation when additional burdens were imposed, as ruled in Indianapolis, Bloomington and Western Railroad Co. v. Hartley, 67 Ill. 439, and the city was powerless to confer the right on the railroad company to the use of the street for railroad purposes, where the fee of the street was in the land owners, without compensating them for the additional burdens imposed.

Stack v. The City of East St. Louis, upon examination will he found to have no bearing here. In that case the city obstructed the street and diverted its use as a public street for travel to another purpose. Those were the circumstances under which the city was held liable. It is there said: “The city has no power to sell, lease, or otherwise appropriate it to other purposes, nor can it be closed or obstructed so as to deprive the public from its use as a highway. * * * It has, however, been held that a city or village may authorize the laying of railroad tracks in their streets,—that such a use is not inconsistent with the trust for ■which the}' are held by the city. But in thus permitting them to he used, the city has no right to so obstruct the streets as to deprive the public and adjacent property holders from their use as streets. ” From this, and, indeed, from the whole tenor of the decision, it is apparent that it has no hearing on such a case as we are now considering.

The other case (Rigney v. The City of Chicago,) was an action brought by a lot owner against the city to recover damages on account of the construction of a viaduct across a certain street, which prevented the plaintiff from traveling from his property on the street. Here the street was obstructed, and the usual travel from the plaintiff’s premises was stopped, and the city was held liable, for the reason that it had no right to obstruct a public street, and deprive the lot owner of the right to use the streets for the purposes for which they were laid out. But no question arose in the case as to the liability of a city for allowing a railroad the use of the streets, as is here presented, and the case has no bearing on this case.

This court has held in a large number of cases, that the construction and operation of a railroad on a public street, in a city or incorporated town, is a proper and legitimate use of a public street. Our public streets in our cities are designed for travel, but the travel over or upon them is not confined to any one mode of conveyance. They may be used for the wagon, the carriage, or cars propelled by horse power or steam. Each and all may be regarded as a legitimate use of the street by the public. Here the city authorized the construction and operation of the railroad upon a public street, as it had the right to do. All the safeguards were thrown around the power conferred which the nature of the transaction seemed to demand, and if appellee or any other lot owner on the street has been damaged by the construction or operation of the railroad, the city is in no manner liable, but the liability for all damages sustained must fall upon the railroad company. There are cases where a city might properly be held liable to respond in damages for an injury resulting from an act of the city, as in Nevins v. City of Peoria, 41 Ill. 507, but there is no similarity between that case and this. Here the citjr of Olney has committed no wrong, nor has it been guilty of any act of negligence, and we perceive no principle upon which it can be held liable. If the city had been guilty of a tort, or acted in a negligent manner, in consequence of which the appellee had been damaged, there might be some ground for holding the city liable; but such is not the case.

The judgments of the Appellate and circuit courts will be reversed, and the cause remanded for further proceedings consistent with this opinion.

Judgment reversed. .