author: Mr. Justice Scholeteld

text:
    Thomas Millett v. The People of the State of Illinois.

      Filed at Mt. Vernon June 12, 1886.

    1. Constitutional law—deprivation of rights—what is “due process of law.” The words “due process of law,” in the constitutional provision “that no person shall be deprived of life, liberty or property without due process of law,” are synonymous with the words “the law of the land,” which mean general public law, binding upon all the members of the community under all circumstances, and not partial or private laws, affecting the rights of private individuals or classes of individuals.
    2. Mines and mining—the weighing of coal at the mines, and keeping scales for that purposed-right of persons to make their own contracts in that regard. Section 29, article 4, of the constitution, which enjoins legislation in the interest of miners, means legislation for the personal safety of miners, and relates only to the enactment of police regulations to promote that end;
    3. So far as the owner or operator of a mine shall contract for the mining of coal, or the selling of coal by weight, there is no constitutional objection to the statutes imposing upon him the duty of procuring scales for that purpose; but when he has no necessity for the use of scales in these respects, he can not be compelled to keep and use them.
    4. So much of the act of 1885, amendatory of the act of 1883, providing for the weighing of coal at mines, as provides that all contracts for the mining of coal, in which the weighing of the coal, as provided for in that act, shall be dispensed with, shall be null and void, is in violation of the constitution.
    5. It is not competent for the legislature, under the constitution, to single out owners and operators of coal mines, and provide that they shall bear burdens not imposed on other owners of property or employers of labor, and prohibit them from making contracts which it is competent for other owners of property or employers of labor to make. Such legislation can not be sustained as an exercise of the police power.
    6. Same—use of private property to supply statistics for the public— the element of eminent domain considered. The legislature has not the power to require the owners and operators of coal mines in this State to furnish scales, and employ a person to use them and keep books of entries of weights, for the benefit or information of the public, without first making compensation to the owners, that being tantamount to an appropriation to public use of private property, which is the cost of the scales, and a clerk to keep the books.
    . 7. The constitution prohibits the legislature from imposing the burden upon any corporation or individual not acting under a license or by virtue of a franchise, of buying property and hiring labor merely to furnish public statistics, unless upon due compensation to be paid therefor.
    Appeal from the Circuit Court of St. Clair county; the Hon. Amo? Watts, Judge, presiding.
    Messrs. Wilderman & Hamill, for the appellant;
    The act entitled “An act to provide for the weighing of coal at the mines, ” passed in 1883, as amended by the act of 1885, (Laws of 1S.S5, p. 221,) is unconstitutional, in depriving the owners of coal mines of the right to make contracts for their free use and enjoyment. The right of the individual to make contracts for the use and enjoyment of property, is a right of property, which consists of the free use, enjoyment and disposal of all his acquisitions, without any control or diminution, save only by the law of the land. (1 Cooley’» Black. Com. 137.) This right is" guaranteed to every person by the constitution. Art. 2, sec. 5.

      A regulation made for any one class of citizens or property owners, as this, is entirely arbitrary in its character, and, restricting their rights, privileges or legal capacities in a manner before unknown to the law, can not be sustained, notwithstanding its generality. To forbid an individual or a class the right to the acquisition or use or enjoyment of property in such a manner as should be permitted to the community at large, would be to deprive them of liberty in particulars of primary importance to their pursuit of happiness. Cooley’s Const. Lim. 485-487; Wynehamer v. People, 13 N. Y. 433.
    When the rights connected with and flowing from property are either abridged or destroyed, the value of the tangible, physical thing itself is destroyed. Cooley’s Const. Lim. 477.
    The making of contra'cts for wages between the owners of coal mines and the men employed by them, does not come within the police power of the State. Cooley’s Const. Lim. 737, 739.
    It. is not within the power of the legislature, under the pretence of exercising the police power of the State, to enact laws, not necessary to the preservation of the health and safety of the community, that will be oppressive and burdensome upon the citizen. Railroad Co. v. Jacksonville, 67 Ill. 40; King v. Davenport, 98 id. 314.
    The legislature has no power, under the pretence of exercising the police power, to pass laws impairing the obligation of contracts, or to take or impair private property for public use. Commonwealth v. Canal Co. 66 Pa. St. 50; Crenshaw v. Slate River Co. 6 Band. 264; Miller v. Railroad Co. 21 Barb. 518; People v. Railroad Co. 9 Mich. 307.
    The contracts of this coal company with its employes, to mine coal at so much per box, were made long before this act passed or went into effect, and the legislature had no power to interfere with or abrogate such contracts. Railroad Co. v. Railroad Co. 79 Ill. 121; Mix v. Vail, 86 id. 40.

      Mr. George Hunt, Attorney General, for the People:
    The constitution recognizes the operation of coal mines as a special subject for legislation, and experience has demonstrated, that not only the legislation which the constitution makes it the duty of the General Assembly to adopt for the protection of the health and safety of miners, is necessary, but that it is also necessary to adopt legislation to protect the rights of miners in their contracts with the owners and operators of mines.
    The operation of coal mines usually involves large amounts of capital and powerful individual combinations, against which the individual miner is powerless if left to the ordinary remedies which apply to business transactions generally. The General Assembly, recognizing these necessities for special protection, has placed upon the statutes the law in question, for the purpose of affording proper protection to an otherwise helpless-class, as well as on the grounds of public policy in the respects hereinbefore referred 'to.
    The legislature has power to regulate weights and measures, and compel dealers to conform to the fixed standards, and to provide penalties for a failure to conform. Cooley’s Const. Lim. 749; Rev. Stat. chap. 147, p.1175.
    The constitutional provision prohibiting the deprivation of property, is not infringed by the proper regulation of a business which may render the property used less valuable. Munn v. People, 69 Ill. 80.
    The legislature has power, under the constitution, to establish reasonable police regulations for the operation of mines, and the question whether a requirement is a police regulation, is a legislative one. Daniels v. Hilgard, 77 Ill. 640.
    Every subject within the domain of legislation, not withdrawn from it by the constitution of the State or the United States,-can be dealt with by the General Assembly, by general lawk to affect the whole State and all the people within it. Munn v. People, 69 Ill. 80.

      We maintain that the General Assembly is not forbidden by the constitution to pass laws regulating the business of operating coal mines, and not being forbidden to pass such laws, it has full power to enact such legislation in regard thereto as it may deem wise, and as best conduces to the public good.
    The duty of the court is to uphold a statute when the conflict between it and the constitution is not clear. Newland v. Marsh, 19 Ill. 385; Johnson v. Railroad Co. 23 id. 207.
    What is there to make contracts in relation to mining coal less within that. power, or to prohibit the legislature from requiring the operators of' mines to keep a record of the amount of coal hoisted ? All these matters are of public interest, and the legislature has wisely so determined.
    If the operation of a coal mine is a business affected with a public interest, and of this we believe there can remain no doubt, then such business may be regulated by statute. Munn v. People, 94 U. S. 113.
    Mr. James M. Dill, also for the. People.
   Mr. Justice Scholeteld

delivered the opinion of the Court:

The defendant was indicted and convicted of failing, as the agent of the owner of a certain coal mine, to cause to be furnished and placed upon the railroad track, adjacent to the coal mine, a track scale of standard measure, upon which to weigh the coal hoisted from the mine, as provided by section 1 of “-An act to provide for the weighing of coal at the mines, ” approved June 14, 1883, and the several sections of the act to amend sections 2, 3 and 4 of that act, approved June 29, 1885.

We held in Jones v. The People, 110 Ill. 590, that it was competent to show, in defence of a person indicted under the same section before the approval of the amendatory act of June 29, 1885, that at the time the act toolLuffectr-airdriung prior thereto, the corporation in that case owning and operating the coal mine had a contract with all the men employed to mine coal in that mine, during that period, to receive, as the wages for their labor, from said company, the sum of forty cents per box for each box of coal mined and taken from said mine; that all the persons employed in the mine to mine coal for said company, had always been and were then perfectly satisfied to work under said contract, and that they did not want the coal taken from the mine weighed, as a basis upon which to compute their wages, etc. It was, in considering this question, among other things then said: “Although section 2 does provide that the weight determined by weighing on the scales furnished shall be considered the basis upon which the w'ages of persons mining coal shall be computed, we do not regard this as requiring that in all contracts for the mining of coal, the wages of the miners must be computed upon the basis of the weight of the coal mined. That would be a quite arbitrary provision,—seemingly an undue interference with men’s rights of making contracts,—and we can not ascribe to the legislature the making of .such an enactment unless it be plainly declared, which is not done in this case. ” The second section of the amendatory act, approved June 29, 1S85, requires that all coal produced in this State shall be weighed on the scales, as provided in section 1 of the act approved June 14, 1883, and that a correct record of the same shall be kept, in a well bound book furnished by the owner, agent or operator of such mine for that purpose, by a competent person, at the expense of such owner, agent or operator,—said record to be subject to the inspection (at all reasonable business hours) of the miner, operator, carrier, land owner, adjacent land owner, members of the Bureau of Labor Statistics, mine inspectors, and all others interested. Section 3 provides that it shall.be lawful for the miners employed in any coal mine or colliery in this State, to furnish a check weigher, at their own expense, whose duty it shall be to balance said scales, and see that the coal is properly weighed, and keep a correct account of the same; and for this purpose he shall have-access, at.all times, to the beam box of said scales while such weighing is being performed. The fourth section provides that a fine, or fine and imprisonment, as prescribed, shall be imposed on any owner or agent operating a coal mine, failing to comply with these provisions. And another section provides that all contracts for the mining of. coal, in which the weighing of the coal, as provided for in that act, shall be dispensed with, shall be null and void.

The court, at the instance of the People, instructed the jury, that since the first day of July, 1885, the law prohibits the making of any contracts between the operators of coal mines and the miners, in-which the weighing of' coal, as provided by law7, is sought to be avoided, and the court refused to instruct the jury “that if they believe, from the evidence, that the company for which the defendant is working does not sell, or offer to sell, coal by weight at its mine at which defendant is employed, and that it has contracts with all the men employed in its mine to mine coal at twenty-five or twenty cents per box, then the jury should find the defendant not guilty. ”

There was evidence before the jury on which to predicate this instruction. TBe question is thus presented, whether it is competent for the General Assembly to single out owners and operators of coal mines as a distinct class, and provide that they shall bear burdens not imposed on other owners of property or employers of laborers, and prohibit them from making contracts which it is competent for other owners of property or0 employers of laborers to make.

It is declared in section 2, article 2, of our constitution, that “no person shall be deprived of life, liberty or property without due process of law. ” And section 13 of the same article provides that private property shall not be taken or damaged for public use without just compensation. The words, “due process of law,” in this connection, are held to-be synonymous with the words “the law of the land.” Cooley on Const. Lim. (1st ed.) pp. 352-3. And this means general public law, binding upon all the members of the community, under all circumstances, and not partial or private laws, affecting the rights of private individuals or classes of individuals. Jones v. Reynolds, 2 Texas, 251. See, also, Wyenheimer v. The People, 13 N. Y. 432; Vanzandt v. Waddell, 2 Yerger, 269.

“Every one, ” says Cooley, (Const. Lim. 1st ed. page 391,) “has a right to demand that, he be governed by general rules, and a special statute that singles his case out as one to be regulated by a different law from that which is applied in all similar Cases, would not be legitimate' legislation, but an arbitrary mandate, unrecognized in free government. Mr. Locke has said of those who make the laws: 1 They are to govern by promulgated, established laws, not to be varied in particular cases, but to have one rule for rich and poor,—for the favorite at court and the countryman at plough.’ And this may justly be said to have become a maxim in the law by which may be tested the authority and binding force of legislative enactments.” And, again, the same authority says, (p. 393): “The doubt might also arise whether a regulation made for any one class of citizens, entirely arbitrary in its character, and restricting their rights, privileges or legal capacities in a manner before unknown to. the law, could be sustained. Distinctions in these respects should be based upon some reason Which renders them important,—like the want of capacity in infants and insane persons; but if the legislature should undertake to provide that persons following some specified lawful trade or employment should not have capacity to make contracts, or to receive conveyances, or to build such houses as others were allowed to erect, or in any other way to make such use of their property as was permissible to others, it can scarcely be doubted that the act would transcend the due bounds of legislative power, even-if—i-t did rja@t'come in conflict with express constitutional provisions. The man or the class forbidden the acquisition or enjoyment of property in the manner permitted to the community at large, would be deprived of liberty in particulars of primary importance to his or their pursuit of happiness. ” See,' also, Budd v. The State, 3 Humph. 483, where one of the sections of the act incorporating the Union bank, which provided that if any of the officers, agents or servants of that bank should embezzle the funds of the bank, or make false entries, they should be guilty of felony, was held unconstitutional, because it did not apply generally to officers, agents or servants of banks committing like offences. And Wally’s Heirs v. Kennedy, 2 Yerg. 554, where an act authorizing the court to dismiss Indian reservation cases where prosecuted for the use of another, was held unconstitutional. In the last case the court said: “The rights of every individual must stand or fall by the same rule or laio that governs every other member of the body politic, or land, under similar circumstances; and every partial or private law which directly proposes to destroy or affect individual rights, or does the same thing by affording remedies leading to similar consequences, is unconstitutional and void. Were it otherwise, odious individuals or corporate bodies would be governed by one law, the mass of the community and those who made the law, by another; whereas a like general law, affecting the whole community equally, could not have been passed.” On like principle is, also, The People v. Marx, 99 N. Y. 377.

What is there in the condition or situation of the laborer in the mine to disqualify him from contracting in regard to the price of his labor, or in regard to the mode of ascertaining the price ? And why should the owner of the mine, or the agent in control of the mine, not be allowed to contract in respect to matters as to which all other property owners and agents may contract? Undoubtedly, if these sections fall.' within the police power, they may be maintained on that: ground; but it is quite obvious that they do not. Their re-, quirements have no tendency to insure the personal safety of the miner, or to protect his property, or the property of others. They do not meet Dwarris’ definition of police regulations. They do not have reference to the comfort, the safety or the welfare of society. (Potter’s Dwarris on Statutes, 45S.) In Austin v. Murray, 16 Pick. 121, it was said: “The law will not allow the rights of property to be invaded under the guise of a police regulation for the promotion of health, when it is manifest that such is not the object and purpose of the regulation.” See, also, to like effect, the language of Colt, J., in Watertown v. Mayo, 109 Mass. 315, and the opinion of the court and cases referred to in Matter of application of Jacobs, 98 N. Y. 109, et seq., and The People v. Marx, supra.

But it is suggested, in argument, that one purpose of the sections is to furnish needful information to the public. If that be so, then, under section 13, article 2, supra, there must first be made compensation to the owner of the property thus to be devoted to public use; for it must be too apparent to .need argument in its support, that to compel the purchasing of scales, and the employing of a person to use them, for the benefit of the public, is to appropriate the private property,— i. e., the money which this will cost,—to public use. Morse v. Stoeker, 1 Allen, 150; State v Glenn, 7 Jones’ L. 321.

The main reliance of the counsel representing the State, to sustain the ruling below, seems, however, to be on the ground that mining for coal is affected with • a public use, so that it may be regulated by law, like public warehouses, as held in Munn v. Illinois, 94 U. S. (4 Otto,) 113. It can not be claimed that mining for coal was, by the common law, affected with a public use, and therefore specially regulated by law, like the business of inn-keepers, common carriers, millers, etc.; and, in our opinion, it is not, like the business of public warehousing, within the principle controlling such classes of business. The public are not compelled to resort to mine owners any more than they are compelled to resort to the owners of wood, or turf, or even to the owners of grain, domestic animals, or to those owning any of the other ordinary necessaries or conveniences of life which form a part of the commerce of the country. The owner of a coal mine is under no obligation to obtain a license from any public authority, and therefore "when he chooses to mine his coal he exercises no franchise. We are aware of no case wherein it has been held that the owner or operator of a coal mine stands on a different footing, as respects the control and sale of his property, than the owner or operator of any other kind of property in general demand by the public.

We are not unmindful that our constitution, in section 29, article 4, enjoins legislation in the interest of miners; but this is solely as respects their personal safety,—the enactment of police regulations to promote that end. It recognizes that the business is dangerous to life and health, but it nowhere intimates that there is anything in it which disqualifies parties engaged in it from contracting as they may in regard to other matters, or that gives the public' a use in it. There is, also, in section 5, article 13, a provision requiring railroad companies to permit connections to be made with their tracks, so that coal banks or coal yards may be reached; but the same provision also applies to consignees of grain, and it affects the duty of the carrier alone, for no duty or obligation is enjoined on the owner of the coal bank or coal yard in that respect. We recognize fully the right of the-General Assembly, subject to the paramount authority of Congress, to prescribe weights and measures, and to enforce their use in proper cases; but we do not think that the General Assembly has power to deny to persons in one kind of business the privilege to contract for labor and to sell their products without regard to weight, while at the same1 time allowing to persons in all other kinds of business this privilege, there being nothing in the business itself to distinguish it in this respect from any other kind of business; and we. deny that the burden can be imposed on any corporation or individual not acting under aJicense or by virtue of a franchise, of buying property and hiring labor merely to furnish public statistics, unless upon due compensation to be made therefor.

So far as the owner or operator of a mine shall contract, for the mining of coal or the selling of coal by weight, we see no objection to the statute as imposing upon him the duty of procuring scales for that purpose. But we do not think that he can be compelled to make all his contracts in these respects to be regulated by weight, and when he has no necessity for the use of scales in these respects, he can not, in our opinion, be compelled to keep and use them. We think the court erred in its ruling in giving the one and refusing the other instruction.

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

Jadgment reversed.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    Ellis Kaufman et al. v. Stephen L. Breckinridge et al.

      Filed at Mt. Vernon June 12, 1886.

    1. Will—estate for life, with power of disposition—extent of the power. A testator devised to his wife all his goods, estates and chattels, real, personal and mixed, “to have, hold and rise the same so long as she might remain his widow,” said goods, estates, etc., to be disposed of and used agreeably to her direction and approval, and in such manner as she “might deem most conducive to the welfare and comfortable subsistence of herself and their children,” who were mostly dependent on the testator for support. The will contemplated that the widow and children should remain upon the homestead and have a’comfortable living, and it appeared that the testator left but little personal property, and that most of the. real estate was unproductive, and the income' thereof was insufficient to support the family and keep up the homestead as was required: Held, that the widow took an estate in the property, both real and personal, during her widowhood, with the power to sell and dispose of it, except the homestead, in fee.
    2. Where a power of disposal, accompanies a devise o^bequest of a life, estate, that power will be limited to the estate which the devisee takes under the will, and be held to mean only such a disposal as a tenant.for life could make, unless there are other words clearly indicating that a larger power was intended.
    3. But where there is given to the life tenant the power to dispose of the property for a certain purpose, which can not be accomplished by a disposition of the life estate only, and can be effectuated only by a sale of the property absolutely, the power of disposition given will be held to be that which is necessary for the accomplishment of the object for which it is given.
    4. Same—extrinsic evidence to aid in ascertaining intent. To enable the court to arrive at the intention of a testator in making disposition <of his property, extrinsic evidence or testimonj' is proper to show the circumstances under which the will was made,—as, the state and condition of his property, of his family, and the like. <
    Appeal from the Circuit Court of Madison qountythe Hon. William H. Snyder, Judge, presiding.
    This was a bill filed in the Madison county circuit court, on September 26, 1883, for partition of real estate lying in that county and in the county of Cook, by the two children and five grand-children of Stephen H. Long, deceased. The latter was a resident of Alton, Madison county, Illinois, and died September 4, 1864, leaving him surviving, his widow, Martha Long, and .three, children,—Henry Long, William D. Long and Lucy L. Breckinridge, then the wife of Marcus P.. Breckinridge. The will of the deceased, made January 12, 1864, and drawn by himself, contained the following provisions :

      “Item first—I give and.bequeath to my beloved wife, Martha Long, all my goods, estates and chattels, real, personal and mixed, to have, hold and usé the same so long as she may remain my widow, said goods, estates, etc., to be disposed of and used agreeably to her direction and approval, and in such manner as she may deem most conducive to the welfare and comfortable subsistence of herself and our beloved children, William D. Long, Henry C. Long and Lucy L. Breckinridge.

      “Item second—From and after the demise of the said Martha, the surviving children of the said William, Henry and Lucy, or either of them, shall share equally with the said William, Henry and Lucy in the division and distribution of said goods, estates, etc.

      “Item fourth—With regard to my homestead, lately purchased of Alfred Dow and others, and now occupied by my family, no sale, division or distribution shall be made thereof except as hereinafter provided for, but the same shall remain in the occupancy and possession of some one or more of my said family so long as the homestead shall be kept by the occupants thereof in good condition and repair in all respects; but in case said occupants should fail to keep said homestead in good condition and repair, then, and in that event, the said homestead is hereby donated to the city council of Alton, Illinois, to be occupied exclusively as a seminary for young ladies, ” etc., and in case of failure by .the city council to keep it in good repair and condition, it was to revert to the heirs.

      “Item sixth—I hereby constitute, ordain and appoint Marcus P. Breckinridge; my son-in-law, as principal executor and administrator, and Henry C. Long, my son, as assistant executor and administrator, to carry into effect, on consultation and approval.of the said Martha, my wife, and others of my fardily, all the provisions and.bequests contemplated in this my last will and testament, the said Henry being desired and expected to aid and assist the said Marcus in the arduous and responsible duties devolving on the latter as principal executor and administrator, whenever -the assistance of the said Henry is needed and required by the said Marcus, who is desired and expected to fix his permanent residence, with his wife and children, in and at the said homestead, while the said assistant executor, etc., is likely to be absent therefrom more or less frequently, and for longer or shorter periods.” • Stephen H. Long was a colonel in the engineer corps of the United States army. At the-, time of the making of his will, and of. his death, his family consisted of himself, wife, and his son, William D. Long, who was imbecile from his birth,' his son-in-law, M. P. Breckinridge, and wife and four children, the eldest about ten years old, residing with him at the time, and also his son, Henry 0. Long. The evidence shows they were all, except Henry C. Long, dependent upon Stephen H. Long; that Henry C. was to a considerable extent dependent on him, because of his intemperance. Since her father’s death another child has been born to Mrs. Breckinridge. As the witnesses say, Colonel Long lived in first rate style, and in keeping with his position as colonel in the regular army, and after his death the family maintained about the same style of living. The inventory of his estate showed real estate of the value of $47,880, chattel property of the value of $991, and notes and- accounts of the value of $1940, the testimony being that a large portion of the latter was against relations, and not collectible. Mr. Davis, a lawyer residing at Alton, in a deposition given in 1873, in another case, and used in this by consent, says: After the death of Col. S. H. Long,
    “I was consulted by his executors, and.became intimately acquainted with the pecuniary condition of his estate, and the nature and condition of his property. His estate consisted of unproductive real estate, with the exception of a small portion of personal property. The real estate could not- be rented so as to produce an income, and it could only be made available to support the family by selling it; unless this could be done his family would be left almost destitute. Under my advice Mrs. Long has sold some of .the real estate to support herself and family. The sales made by her have never been questioned," and the proceeds from such sales have been the only support of herself and family and her grand-children. These grand-children should now be receiving an education suitable for their condition in life. ” From time to time, from April 27,1865, to January 11,1867, Martha Long, the widow, and Marcus P. Breckinridge, the executor, sold and conveyed, in fee simple, the lands in Madison county, and on June 1, 1872, Mrs. Long (Marcus P. Breckinridge having died in 1870,) sold and conveyed, by warranty deed, the lands in Cook county, the latter, in all two hundred acres, for $40,000. Lucy L. Breckinridge, the daughter, united in this conveyance as grantor. Henry C. Long died about April 11,1871, intestate, and without widow or children. . Martha Long, the widow, died September 4, 1873.
    The bill was filed by Lucy L. Breckinridge and William D. Long, the two surviving children Of Stephen D. Long, and by the five children of Lucy L. Breckinridge.. It prays that all the said deeds made by Martha Long, and by Martha Long and Marcus P. Breckinridge, be declared of no effect as against the complainants under the will; that the title to all the said lands be declared to be vested in the complainants, since the death of said Martha Long, and for a partition. Answers were filed and proofs taken, and, on final hearing, the court decreed in favor of the complainants, finding the title to the lands to be in them; that by the will of Stephen H. Long no power was conferred upon said Martha Long, or Marcus P. Breckinridge, the executor, to convey the lands in fee; that under the will the said Martha Long had power to dispose of the life estate only, which was thereby devised to her. ,
    Mr. George F. McNulty, for the appellants Long, Spaulding, Graessli and Stanley:
    In construing wills, the intention of the testator must be the governing principle. It is collected from the whole will. All the words and provisions should be used. Boyd v. Strahan, 36 Ill. 358; Brownfield v. Wilson, 78 id. 467; Rountree v. Tal

      bot, 89 id. 246; Caruthers v. McNeil, 97 id. 256; Kennedy v. Kennedy, 105 id. 350; Hamlin v. Express Co. 107 id. 443.
    No part should be left inoperative. Jones v. Bramblet, 1 Scam. 276; Bergan v. Cahill, 55 Ill. 160; Markillie v. Ragland, 77 id. 198.
    Particular expressions yield to the general purpose. Updike v. Tompkins, 100 Ill. 406.
    When wills are written by persons unskilled in the use of legal terms, technical rules are not rigidly enforced. Brownfield v. Wilson, 78 Ills. 467.
    Courts may resort to surrounding circumstances to aid in ascertaining the intention of the testator. Brownfield v. Wilson, supra; Jarman on Wills, 10th rule; 4 Kent’s Com. 535.
    This will gave the widow of testator a life estate, with power to sell the fee. Jarrott v. Vaughn, 2 Gilm. 132; Fairman v. Beal, 14 Ill. 244; Funk v. Eggleston, 92 id. 515; Henderson v. Blackburn, 104 id. 229.
    The power to sell was a trust, for “every power given in a will is considered, in a court of chancery, as a trust for the person for whose use the power is made.” 2 Washburn on Real Prop. 663; Bispham’s Eg. sec. 77, p. 116; Clinefelter v. Ayers, 16 Ill. 329.
    Messrs. Baker & Baker, for the appellants Norman Stanley, Peter Lohr and John S. Culp:
    That the widow took a power of absolute disposition, see Raiks v. Ward, 1 Hare, 445; Lambe v. Eames, L. B. 6 Ch. 597; Hughes v. Washington, 72 Illl. 84; Markillie v. Ragland, 77 id. 98; Jennings v. Jennings, 27 id. 522; Funk v. Eggleston, 92 id. 515; Welsch v. Belleville Savings Bank, 94 id. 191; Crozier v. Hoyt, 97 id. 23; Henderson v. Blackburn, 104 id. 227; Hamlin v. Express Co. 107 id. 443.
    That the intention of the testator must govern, see 3 Jarman on Wills, 705, 733; Wigram on Wills, (2d ed.) 75; Jesson v. Wright, 2 Bligh, 1; Smith v. Bell, 6 Pet. 68; Finlay
      v. King, 3 id. 377; Hunt v. White, 24 Texas, 642; Stephenson v. Denly, 4 Ind. 519; Glover v. Hayward, A Cush. 580; Smith v. Taylor, 21 Ill. 296.
    Messrs. Bosenthal & Pence, for the appellant the International Bank:
    The right to dispose of the estate clearly refers to the property itself, and not merely to her interest in it. Roe v. Bacon, 4 M. & S. 366; Uthwatt v. Bryant, 6 Taunt. 316; Leiter v. Shepard, 85 Ill. 247; Leland v. Adams, 9 Gray, 174.
    The devise of a life estate, with power to sell and dispose of the fee, with remainder over if not disposed of, contravenes no principle of law. Markillie v. Ragland, 77 Ill. 98; Henderson v. Blackburn, 104 id. 227; Funk v. Eggleston, 92 id. 515; Crozier v. Hoyt, 97 id. 23; Hamlin v. Express Co. 107 id. 443; Surman v. Surman, 5 Madd. 123; Larned v. Bridge, 17 Peck, 339.
    All the circumstances surrounding the testator will be inquired into, not for the purpose of ascertaining the intention outside, but for the purpose of adding light as to the meaning of the various provisions. A court will place itself in the position of the testator in order to fully comprehend the objects and intentions of the testator as expressed in the instrument. Funk v. Eggleston, 92 Ill. 515 ; Welsch v. Belleville Savings Bank, 94 id. 191; Rountree v. Talbot, id. 246; Poole v. Blakie, 53 id. 495.
    The power to dispose of, implies the power to convey. Hem-street v. Burdick, 90 Ill. 444; Fogarty v. Sawyer, 17 Cal. 591; Valentine v. Piper, 22 Pick. 85.
    A power of sale created by will, without stating who is to execute it, can be executed by him or her who is directed to handle, use or distribute the funds. 2 Perry oh Trusts, see. 501; 3 Redfield on Wills, chap. 5, sec. 18, p. 138; 1 Williams on Executors, 1580; Lippincott v. Lippincott, 4 Greene’s Ch. 120; Pool v.Potter, 68 Ill. 537; Starr v. Moulton, 97 id. 534.

      Messrs. Metcalfe & Bradshaw, for the appellants Stanley and others:
    The intention of the testator is the controlling element in the construction of wills. Rountree v. Talbot, 89 Ill. 240; Funk v. Eggleston, 92 id. 515.
    The intention to be gathered from the whole will must prevail. Boyd v. Strahan, 36 Ill. 355; Bergan v. Cahill, 55 id. 160; Brownfield v. Wilson, 78 id. 467; Welsch v. Belleville Savings Bank, 94 id. 191; Smythe v. Taylor, 21 id. 296; Holliday v. Dixon, 27 id. 33.
    In determining the character of .power granted, the intention, gathered from the whole document, must-be ascertained. White v. Glover, 59 Ill. 459.
    A devise for life may be coupled with an absolute power of disposition in the life tenant. Fairman v. Beal, 14 Ill. 224; Markillie v. Ragland, 77 id. 98; Welsch v. Belleville Savings Bank, 94 id. 191; Henderson v. Blackburn, 104 id. 227; 1 Sugden on Powers, 173, 174.
    Messrs. Wise & Davis, and Mr. John G. Irwin, for the appellees:
    No trust is created by the language of the first item of the will. Bryan v. Howland, 98 Ill. 625; Foote v. Sanders, 72 Mo. 616; Benson v. Whittam, 5 Sim. 22; Leach v. Leach, 13 Sim. 304; Burt v. Herron, 66 Pa. St. 400; Rhett v. Mason, 18 Gratt. 541; Burke v. Valentine, 52 Barb. 412; Thorp v. Owen, 2 Hare, 607; Fox v. Fox, 27 Beav. 310; Lears v. Cunningham, 122 Mass. 538; Barst v. Marsh, 126 id. 213.
    Where a power of disposal accompanies a bequest or devise of a life estate, the power of disposal is only coextensive with the estate which the devisee takes under the will, and means such disposal as a tenant for life could ■ make, unless there are other words clearly indicating that a larger power was intended. Boyd v. Strahan, 36 Ill. 355; Welsch v. Belleville Savings Bank, 94 id. 191; Henderson v. Blackburn, 104 id. 231; Kennedy v. Kennedy, 105 id. 350; Giles v. Little, 104 U. S. 291; Foote v. Sanders, 72 Mo. 616.
    Parol evidence is not admissible, to.show the intention of the testator against the construction on the face of the will, and the state of his property can not be resorted to to explain the intention. Heslop v. Gatton, 71 111. 528; Kurtz v. ILibner, 55 id. 514; Bishop v. Morgan, 82 id. 352; Mann v. Mann, 1 Johns. Ch. 231; Charter v. Otis, 41 Barb. 525; Updike v. Tompkins, 100 111. 406; Blanchard v. Maynard, 103 id. 60; Kinney v. Kinney, 34 Mich. 250.
   Mr. Justice Sheldon

delivered the opinion of the Court:

The main question in this case is upon the construction of the will of Stephen H. Long,—whether it ¡conferred the power to dispose of the lands in fee, or only the power to dispose of the life estate, or estate during widowhood, which was devised to the widow.

The will gives to the widow, Martha Long, all the testator’s real and personal property, to have, hold and use, so long as she remains his widow, and reliance is had on the general rule that where a power of disposal accompanies a bequest or devise of a life estate, the power of disposal is only coextensive with the estate which the devisee takes under the will, and means such disposal as a tenant for life could make, unless there are other words -clearly indicating that a larger power was intended. (Welsch v. Belleville Savings Bank, 94 Ill. 191;. Henderson v. Blackburn, 104 id. 227.) We recognize the rule, and the inquiry before us is, whether, taking the whole will together, in view of the state of the testator’s family and property, it indicates the intention to give a power to dispose of anything more than the widow’s estate for life, or during widowhood, in the property.

The will contemplates that the testator’s entire family,— his widow, his two sons, one of whom was of weak mind and unable to take care of himself, and the other, who was .to some extent a charge upon the testator from his intemperate habits, his daughter with her then four small children, and her husband,—should all remain and live upon the homestead, and that the widow and testator’s children should have a comfortable subsistence out of his property. It was a prime object that the testator’s homestead should be kept in good condition and repair in all respects, in failure whereof the homestead was to go to the city of Alton for a female seminary. ■ This object would require expenditure of money. The personal property was of inconsiderable amount. 'The large quantity of real estate was wholly unimproved, and unproductive, with the exception of the homestead and some sixty or seventy acres of the Madison county land under cultivation, the rent from which would hardly more than pay the taxes on it. The taxes upon the real estate were considerable. The age of the testator’s wife at the time of the making of the will was about sixty-one years. Under such circumstances is made the devise, “I give and bequeath to my beloved wife, Martha Long, all my goods, estates and chattels, real, personal and mixed, to have, hold and use the same so long as she may remain my widow, said goods, estates, etc., to be disposed of and used agreeably to her direction and approval, and in such manner as she may deem most conducive to the welfare and comfortable subsistence of herself and our beloved children, William D. Long, Henry 0. Long and Lucy L. Breckinridge.” It is not the mere power of disjiosal which is given here, nor power of disposal for the widow’s own use and benefit, but the power of disposal for the comfortable support of herself and the three children of the testator, circumstanced as they were. There was given power to dispose of the property for the support of the testator's family. The testimony shows most fully that the widow’s life estate, or estate during widowhood, in the property, was utterly valueless as a resource for the family’s support; that it would have beefi impossible to have made sale of-it for .any amount which would contribute materially to that end. This must have been known and seen by the testator at the time he made his will, from the nature of the property. Where, in such case, there is given to the life tenant the power to dispose of the property for a certain purpose, which purpose it would be impossible to answer by disposition of the life estate, and which could be effectuated only by sale.of the property absolutely, the power of disposition given must be held to be that which is necessary for the accomplishment of the object for which it is given,—to be the power of absolute disposition. The will was drawn by the testator’s own hand, in ignorance, it is to be supposed, of any technical rules of construction. And when he gave to his wife power to dispose of his goods and estates, real and personal, in such manner as she might deem most conducive to the welfare and comfortable subsistence of herself and their children, it was his intention the family should be supported out of the property, and we can have no doubt that his meaning was to give the power to dispose of the property itself, if it was needed for that purpose, and not merely the widow’s estate -for life in the property. And to hold that because the testator had given to the widow an estate for life, or during widowhood, in the property, the power which he gave to dispose of the property was a power only to dispose of her-estate for life, or during widowhood, in the property, would be to make use of a mere artificial rule of construction to frustrate a testator’s clear meaning. Goods and chattels and lands are grouped together under the power of disposal which is given. It is the same power of disposal which is given in respect of each. It is unreasonable to suppose that it was only the widow’s estate for life, or during widowhood, in the goods and chattels, and not the goods and chattels themselves, which the testator intended she should sell for the support of- the family. Item fourth, in providing that no sale should be made of the homestead, affords some implication that power of sale of the whole property had been given, and that it was deemed necessary to make exception of the homestead.

It is objected that all of the extrinsic testimony as to the ■lands being unimproved and producing no income, and as to the testator’s family, etc., is improper in this case. This objection is not well taken. Rule 10, of the general rules of construction of wills, laid down by Jarman, in his work on Wills, (vol. 2, p. 841,) is: “The court will look at the circumstances under which the devisor makes his will,—as, the state of his property, of his family, and the like.” This court has often held that there may be created a life estate with power to sell and convey the fee, and limit a remainder after the termination of the life estate. Fairman v. Beal, 14 Ill. 244; Funk v. Eggleston, 92 id. 515; Hamlin v. United States Express Co. 107’id. 443; Hendersons. Blackburn, 104 id. 227; Markillie v. Ragland, 77 id. 98. It depends upon the intention, to be gathered from the whole instrument, in the light ' of the circumstances surrounding the testator, whether the power be given.

We are of opinion-that by this will the widow was clothed with a power of the disposition of the absolute estate in favor of herself and children, and that by the exercise of that power •her grantees here took the fee, and not her mere life estate in the lands.

There is no charge in the bill of collusion or fraud respecting the sale .of the property, or that it did not sell for its full value, or that the proceeds of the sales were not necessary, and used for the support of the family.

The view we have taken renders it unnecessary to consider other important questions which are raised in-the case.

The decree will be reversed, and the cause remanded for ■further proceedings in conformity with this opinion.

Decree reversed.


author: Mr. Chief Justice Scott

text:
    Harriet A. Freeman et al. v. Adella Easly et al.

      Filed at ML Vernon June 12, 1888.

    1. Will—right of disposition of property. A party having the capacity to make a will may dispose of his property as he sees fit, and he may bestow his bounty where he wishes, either upon his heirs or others; and if he makes an unequal disposition among his heirs, it is wholly immaterial whether he has any reasons therefor or not.
    2. Same—disposing capacity — degree of mental impairment to disqualify the testator. In a case where the evidence as to a person’s capacity to make a will was conflicting, the court instructed the jury: If they should believe, from the evidence, that at the time of the execution of the instrument, the validity of which was in question, by the testator, he was so diseased, mentally7, as not to be of sound mind, their verdict should be for the complainants, the contestants: Held, that the instruction was erroneous, as it stated the rule too broadly.
    3. A person may be so diseased, mentally, as not to be of sound mind, and yet possess a disposing mind, which is the mental capacity to know and understand what disposition he may wish to make of his property and upon whom he will bestow his bounty.
    4. A person who is capable of transacting ordinary business is also capable of making a valid will. The derangement or imbecility, to incapacitate a person from making a will, must be of that character which renders him incapable of understanding the effects and consequences of his acts. If a party is capable of acting rationally in the ordinary affairs of life, so that he may comprehend what disposition he may wish to make of his property, and be able to select the objects of his bounty, that is all that is required to make a will.
    5. Witness—credibility—swearing falsely. An instruction that if any witness has sworn falsely on any point material to the issues, the jury may disregard all his testimony unless corroborated by other unimpeached testimony, is bad, as omitting the important qualification that the witness must have willfully or knowingly sworn falsely. Such an instruction, even when most accurately formulated, is of doubtful propriety.
    6. Same—competency as against persons swing or defending as heirs. A bill to contest a will was brought by two minor heirs of the testator, by their next friend; but they becoming of age, the next friend, on motion, was dismissed out of the case, and on the trial of the issue was called and testified as a witness, he having no interest in the result: Held, that he was a competent witness.

      7. On bill by a part of the heirs of a deceased person, against his executor, widow, and the other heirs, to set aside the ancestor’s will for want of sufficient capacity, the widow of the deceased is not a competent witness against the complainants suing as heirs.
    8. Execution—against an executor. It is improper, on a bill to contest a will filed by a part of the heirs against the executor and other heirs, to decree costs against the executor and award execution to collect the same.
    9. Parties—6ill to contest a will. On bill to contest a will, all parties interested in the estate should be made parties, either complainants or defendants.
    Appeal from the Circuit Court of Jackson county; the Hon. ' Oliver A. Barker, Judge, presiding.
    Messrs. Hill & Martin, for the appellants:
    In the seventh instruction the court told the jury, that if they believed, from the evidence, that the testator was so diseased, mentally, as not to be of sound mind when he signed his will, then their verdict should be for the complainants. This is not a proper proof of testamentary capacity. A person’s mind may b'e greatly impaired,—may be unsound to a considerable extent,-—yet so long as he retains mind enough to understand and reasonably transact ordinary business affairs, he has sufficient mental capacity to make a valid will and dispose of his property. Meeker v. Meeker, 75 Ill. 260; Rutherford v. Morris, 77 id. 397; Carpenter v. Calvert, 83 id. 62; Brown v. Riggin, 94 id. 560; Roe v. Taylor, 45 id. 485 ; Lindsey V. Lindsey, 50 id. 79.
    This instruction did not present the law correctly, and was misleading in the, extreme, especially in view.of Dr. Nutting’s testimony that there is no time when a person is diseased of body that he can be said to be sound'mentally.
    All persons who have any substantial, beneficial or legal interest in the subject matter in litigation, and ivho will be materially affected by the decree, must be made parties. Moore v. Munn, 69 Ill. 591; Atkins v. Billings, 72 id. 597; Hopkins v. Roseclare Lead Co. id. 373; Brown v. Riggin, 94 id. 560.

      The judgment for costs against the executor, and awarding execution against him, was error. Pingree v. Jones, 80 Ill. 177.
    The admission of the testimony of the father and hext friend of the infant complainants was error. The disqualification extends to all persons who have any interest in the result of the suit, if it be only a liability to pay costs. Section 7,, chapter 51, of the Revised Statutes, provides that no person who is incompetent shall be rendered competent by any release or re-assignment of his interest; hence the withdrawal from the suit as a party did not render W. J. Easly competent.
    The court erred in excluding the deposition of Harriet A. Freeman, widow of the testator. Not being called to testify in behalf of her own interest, she was competent, independent of the statute. Kimball v. Cook, 1 Gilm. 423; Stokes v. Kane, 4 Scam. 167; Muchmore v. Jeffrey, 25 Ill. 199; Bradshaw v. Combs, 102 id. 428; Smith v. West, 106 id. 332.
    Mr. W. J. Allen, Mr. J. M. Freels, and Messrs. Smith & Stephens, for the appellees, after stating the facts, discussed "the evidence and its bearings at some length, their argument being principally upon the facts.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

On the 22d day of March, 1880, John D. Freeman made and published what purports to be his last will and testament, and. afterwards,.on t,he 5th day of April, in the same year, he departed this life. The will was executed with the usual formalities, and was admitted to probate in Jackson county, where the testator had lately resided. On the 28th of October, 1880, the bill in this case was filed, in the circuit court of Jackson county, by a part of the heirs of the testator, against-the executor named in the bill, the widow, and a portion of the other heirs who are named as devisees, to set aside the will, on the ground the testator, at the time of making and executing the same, was not of sound,and disposing mind, and that he was wholly incapable of making a valid will. An answer filed by defendants, and the replication thereto, put the matters and things alleged in the bill at issue, and thereupon the court directed an issue at law to be made up, whether the writing referred to in the pleadings, and purporting to be the last will and testament of John D. Freeman, was his last will and- testament or not. Although the bill in this case was exhibited at the December term, 1880,-of the circuit court, the cause was continued from term to term, and no trial was had until the March term, 1884, of that court. The cause was then submitted to a jury upon the evidence introduced, but as they were, unable to agree upon a verdict, they were discharged from the further consideration of the matters submitted to them. No other trial was had until on the, 6th day of February, 1886, when the case was again submitted to a jury, who, after hearing the evidence, found by their verdict, “the instrument in question not to be the last will and testament of John D. Freeman,” and thereupon the court ordered, adjudged and decreed that the instrument in writing purporting to be the last will and testament of John D„ Freeman, deceased, and the probate thereof, be set aside and declared null and void. From that decree the defendants bring the case to this court on appeal.

Without expressing any opinion as to the weight of the testimony touching the testamentary capacity of the testator at the time of making the instrument alleged to be his last will and testament, it is thought that in view of the conflicting character of the evidence the present decree must be reversed on account of the seventh instruction of the series given by the court on behalf of complainants. It is as follows:

“If you should believe, from the evidence, that at the time of the execution of the instrument (the validity of which is in question,) by J. D. Freeman, he was so diseased, mentally, as not to be of sound mind, then your verdict should be for complainants.”

Obviously this charge does not state the law accurately, and in view of what may be fairly said of the unsatisfactory character of the evidence, it must - have been hurtful to the defence. No doubt it is true a party may be so diseased, mentally, as not to be of sound mind, and yet he might possess what the law terms a ‘.‘disposing mind, ” that is, the mental capacity to know and understand what disposition he may wish to make of his property, and upon whom he will bestow his bounty. It is a rule of law that a person who is capable of transacting, ordinary business is also capable of making a valid will. In Meeker v. Meeker, 75 Ill. 260, it was held by this court, the derangement or imbecility to incapacitate the person from making a valid will must be of that character which renders him incapable of understanding the effect and consequences of his acts. A test usually recognized is, the party must be capable of acting rationally in the ordinary affairs of life, so that he may comprehend what disposition he may wish to make of his property, and be able to select the subjects of his bounty. Nothing more is required, and so the authorities in this State uniformly hold. {Meeker v. Meeker supra; Rutherford v. Morris, 77 Ill. 397, and subsequent cases that follow the doctrine of the cases cited.) Medical testimony in this record is to the effect that in all cases of diseases of the body, the mind is in some degree affected, and the party might be said to be of “unsound mind,” and still be capable of transacting ordinary business, such as is done in daily life. In this ease the testator suffered greatly from severe bodily disease, and no doubt his mind was affected to a degree it might be, at least in a partial sense, unsound; but the jury should not, for that reason alone, be told, as a matter of law, that would incapacitate him to make a valid will. That would be to state the rule of law on this subject broader than the authorities in this and other States will warrant.

It is conceded by counsel this instruction may be faulty, but it is insisted, when considered in connection with other charges given upon this branch.of the case which state the law with more accuracy, it was not calculated to mislead the jury, .This may or may not be so. It accords with com•mon observation that in contests concerning wills, where the testator has made, or has seemingly..made, an unequal or •inequitable disposition of his property among those occupying the same relation to him, by consanguinity or otherwise, there is a disposition in most minds to seek for a cause for holding the will invalid; The inclination in this direction that is found to exist in the minds of most, if not all, jurors, can not always be controlled by instructing them there is no law requiring a testator, nor is he bound, to devise his property equitably or in equal proportions among his heirs. Of course, the law is he may make such disposition of his property as he sees fit, and he may bestow, his. bounty where he wishes,, either upon his heirs or others. While this is undoubtedly the law, the common mind is disinclined to recognize it, and jurors will too frequently seize upon any pretext for finding a verdict in accordance with what they regard as natural justice. In .this case it appears the testator did make an unequal disposition of his estate among his heirs. He may have had the best of reasons for so doing, and it may have been both just and equitable. But whether he had, or had not, that is not a matter for inquiry. If he had sufficient testamentary capacity, he might dispose of property in any way not forbidden by law or public policy. As before remarked, it is difficult to get jurors to recognize this abstract principle of law. It may be the jury in this case seized upon this charge given them by the court, to enable them to find a verdict in accordance with their own sense of justice, rather than the law as it is. If so, the instruction was most hurtful to the defence, and it was error to give it.

The fifth instruction of the series is also faulty. By it the jury were told, if “any witness has sworn falsely on any point material to the issues, ” they might disregard all his testimony, unless corroborated by other'unimpeached'.testimony. It omits the qualification the witness must have willfully or knowingly sworn falsely. Eyep the most candid witness might make a false ..statement on a point material to the issues, and unless wdllfully or corruptly done, it ought not to disparage his other testimony. Such an instruction, even when most accurately formulated, is of doubtful propriety, and certainly it should never be given unless most accurately worded, to prevent misapprehension.

It may be well to notice a.few objections discussed on the present record that may arise on another trial, if one shall be had. At the time the bill was filed, two of complainants were minors, and they commenced the suit in their own behalf, in the name of their father, W. J. Easly, as their next friend. Afterwards, on the 11th day of January, 1886, proof was made that each of these complainants had attained their majority, and the suit as to W. J. Easly, the next friend, by order of court, was dismissed. On the next trial of the cause, complainants offered W. J. Easly as a witness on their behalf, and it was objected he was incompetent under the statute, which forbids any party to the record, or in interest, to testify of his own motion, where any adverse party sues or defends as executor, heir, legatee or devisee. The objection is untenable. Since the witness was dismissed from the record it is as though he had never been a party. He never had any interest in the subject matter of the litigation, and if not now a party to the record there is no reason why he is not a competent witness. Section 7, chapter 51, of the Bevised Statutes of 1874, can have no application, for the reason the witness had no interest to be released.

It is also insisted the trial court erred in excluding the deposition of Harriet A. Freeman, widow of the testator. In this ruling of the court there was no error. She was a party to the- record, in interest, and therefore, under the statute, was not a competent witness in a case like the one being considered, where .-complainants sue as heirs.

■ It seems the decree rendered, inadvertently adjudged costs against the executor and awarded execution for the collection of the same. It needs no suggestion from this cpurt that such an order was improper.

If it shall be made to appear, or if it does now appear, that other parties interested in the estate are not parties to the suit, either as complainants or defendants, it would be well that such persons be made defendants before another trial shall be had. .

The decree of the - circuit court' will be reversed and the cause remanded.

Decree reversed.


text:
    Hayes Houston v. Peter W. Buer.

      Filed at Mt. Vernon June 12, 1886.

    1. Bedemption—from tax sale'—as distinguished from a purchase— when done by an agent, how far conclusive upon him. Where a party to whom an agency had been turned over by a prior agent, assuming to act as agent of the owner, but having no funds of the latter in his hands, took an assignment to himself of a certificate of purchase at a tax sale, the assignment thereon reading, “to the use of J. B.,” the agent, it was held, that as between the assignee and the owner of the land sold, the transaction would be taken as a redemption, and not a purchase, and that as against the principal he could not hold the land further than as a security for the redemption money paid.
    2. Where a party assuming to act as the agent of the owner of land makes a redemption of the land from a tax sale, by paying the money necessary for that purpose and taking an assignment of the certificate of purchase, it can not be undone subsequently by assigning back the certificate and accepting the money so paid. In such case the agent’s act being for the benefit of the principal, his ratification may be presumed, but it is enough the person acting considered himself authorized, and was acting under color of authority.
    Appeal from the Circuit Court of Gallatin county; the Hon. Carroll C. Boggs, Judge, presiding.
    Messrs. Roedel & Sisson, for the appellant:
    Boyd being a stranger to the title, and having no interest in the land, had no right to redeem from the tax sale.
    The acceptance of the redemption money by Mrs. Houston did not affect her right. She accepted the money on the representation of Boyd-that, he had a right to redeem, as ■Buer’s agent.- The assignment of- the certificates was made without her knowledge or consent. When she learned the facts, she disavowed the act, and took steps to reinvest herself with the title to the certificates. Byington v. Bookwalter, 7 Iowa, 512; Penn v. Clemens, 19 Iowa, 372.
    Boyd’s conduct shows that the transaction with Mrs. Houston was .a purchase on his part, and not a redemption. At the proper time he gave notice as the assignee, for the purpose of taking out a deed to himself.
    Mr. Silas Rhoades, for the appellee:
    It is a matter of but little moment in what way an agent derives his power.' If his authority is not disputed by his principal, no other person has a right to, complain. Marston v. Beasley, 3 Ohio, 301.
    Boyd, in making the redemption, was acting as agent for Buer, and it is well settled that a principal has the right to ratify the unauthorized acts of one who claims to act for him as agent. Owings v. Hull, 9 Pet. 607.
    Section 215 of the Revenue act provides, that “where the purchaser receives the purchase money, or returns the certificates of purchase. for cancellation, it shall operate as a release.” If the purchaser accepts the redemption money, the sale is avoided, and the redemption inures to the benefit of the owner. Cox v. Startwell, 9 Harr. 480; Orr v. Cunningham, 4 Watts & Serg. 294; Holloway v. Clark, 27 Ill. 483.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a bill of complaint, filed in the Gallatin county circuit court, by Peter W. Buer, against Hayes Houston, to remove an alleged cloud of a tax deed upon' the title to land. The circuit court decreed in favor of the complainant, upon his paying to the defendant the sum of $164.24, and the defendant appealed.

The bill charges there was a redemption from the tax sale, and further, that the tax deed was invalid for non-compliance with the statute in giving the notice of the tax sale, and in making the required affidavit under the Revenue law.

It appears that Buer was the owner of the land, and in 1875, and ever since, resided in Texas; that for. that year he paid the taxes on the land, through H. C. Barger, of Gallatin county, who was his agent for the land, to pay taxes on it and sell timber from the land for the purpose, if he did not have the money to pay them. For the years 1876 and 1877 Barger failed to pay the taxes; and the land was forfeited to the State for the taxes of those years, and in 1879, in the month of September, one Mariah L. Houston became the purchaser of the land for the taxes of 1878 and the back taxes of 1876 and 1877. In the latter part of 1880, or early in 1881; Barger died; but some eight or nine months before, he sold his abstract books and real estate agency, including that of the land in-question, to one John R. Boyd, of Shawneetown, and thereupon Boyd took charge of the land. Barger gave Boyd a list of the lands for which he was agent, in which was this Buer land. They then both wrote to all the owners for the purpose of getting them to ratify Barger’s action in making Boyd agent. Neither of them heard from Buer until the summer of 1882, when he came to see his land. At the time Barger turned over his business to Boyd, he informed the latter that Mrs. Houston had bought this Buer land for taxes, he not having any funds in his hands to pay taxes, and not being willing to advance money for that purpose. Boyd afterward applied to Mrs. Houston, through her son, John, to redeem the land, representing himself as Buer’s agent. John Houston brought in the tax certificates, and Boyd redeemed the land, and took an assignment of the certificates through Mrs. Houston’s son, John, he signing her name for her. The form of the assignment was, “to the use of John B. Boyd. ” Afterwards, Boyd, as assignee of Mariah L. Houston, gave notice of the tax sale, and that he would apply for a tax deed, by publication in a newspaper. After seeing the notice, Mrs. Houston applied to Boyd for a re-assignment of the certificates, claiming he had no right to redeem the land; that he was not the agent of Buer in redeeming, and tendering him back the redemption money which he had paid. Boyd first refused the money and to make a re-assignment, but after-wards accepted the money and re-assigned the certificates to Mrs. Houston, who obtained the tax deed, and subsequently made a quitclaim deed of the land to her son, the defendant. She had threatened Boyd that if he would not re-assign the tax certificates, she would have him indicted for obtaining goods under false pretences. After he had re-assigned the certificates, Boyd saw Buer, and the latter ratified the action of Barger in making Boyd agent. Boyd had not heard from Buer before the re-assignment, and had no funds of Buer in his hands.

There is no doubt that Boyd assumed to redeem from the tax sale for and on behalf of Buer, as his agent, and that as between these two the transaction would have been taken to be a redemption, and -not a purchase by Boyd for himself, and that as against Buer, Boyd could not have held the land further than as security for the redemption money paid, although the assignment of the tax certificate was taken “to the use of Boyd.” It was so taken by him "for the purpose of such security. Mrs. Houston evidently did not so understand it, supposing, from the assignment of the tax certificates that was made, that Boyd was purchasing and acquiring the title to the land-for himself exclusively. Had she rightly understood the legal effect of what was done, there is reason to believe she would have remained content, as she herself testifies, “If John had signed my name by way of cancelling certificates, that would have been all right; ” and again she says, before Boyd re-assigned the certificates, “I told him I would be satisfied if he would enter on the record that the land was redeemed for Peter Buer.” What was done was, in legal effect, .just this, and no more, except to give Boyd security on the land for the money he advanced, so that to establish there was a redemption, would be but to carry out what was the substantial desire and purpose of both the parties, Boyd and Mrs. Houston, in .paying and accepting the redemption money; and a redemption having been made, it could not be undone by subsequently re-assigning the tax certificates and taking back the redemption money, especially when the reason thereof was the mistaken supposition, on the part of Mrs. Houston, that a redemption had not been effected.

The denial of there having been redemption, is, of course, upon the ground that Boyd was not the agent of Buer, authorized by him to make the "redemption. Barger, at a former time, was such agent, having charge of the land to pay taxes on it. Quitting the real estate business, he sold out to Boyd, and placed in the latter’s hands to manage and care for all the lands which Barger had the agency for, including this land in question.. Thenceforth Boyd assumed to take care of the land. Buer residing in a distant State, both Barger and Bo.yd wrote to him informing him of -the change of agency, but it so happened that Buer was not heard from until after the redemption was made. To make the redemption was a mere ministerial act. It was beneficial to Buer, and his ratification of it might be presumed. • We do not think that the rule of a strict legal agency should be applied in. defeat of a redemption attempted to be made under such circumstances, but rather that a liberal view should be taken, so as to sustain the redemption, if it may consistently be done. The last clause of section 210 of the Revenue law, in relation to redemption from tax sales, is: “Any redemption made shall inure to the benefit of the person having the legal or equitable title to the property redeemed, subject to the right of the person making the same to be reimbursed .by the person benefited.” Section 215 is: “The receipt of the redemption money of any tract of land or lot, by any purchaser, or the return of the certificate of • purchase for cancellation, shall operate as a release of all the claim to such tract or lot, under or by virtue of the purchase.

We would not wish to be understood as holding that any mere stranger may redeem from a tax sale. But Boyd was more than a mere stranger to the land. He had some color of authority to act in the premises, and no doubt did act in good faith, as agent. His effort to save the land for his unheard from expected principal was well intended, and a very proper act, and we think should be sustained. We are of opinion that he was enough of an agent, in respect to the land, to redeem from the tax sale, and that he did make a valid redemption. Mariah L. Houston made but a quitclaim deed of the land to her son, the defendant, who¿paid nothing for it, and stands in no better position than his grantor.

The decree will be affirmed.

Decree affirmed.


author: Mr. Justice Scholfield

text:
    Done Bros. & Co. et al. v. Alexander & Taussig.

      Filed at Mt. Vernon June 12, 1886.

    1. Attachment—pro rata distribution, including proceeds of sale of perishable property. Where two attachments against the same defendant are returnable to the'same term, the -several attaching' creditors are entitled to share pro rata in all the property attached; and this applies as well to the proceeds of perishable property, arising from a sale before judgment,'as to other property. Each attachment is a lien upon all the property attached, to the extent of the entire amount of the indebtedness for which it was issued.
    2. Same—purchaser of one of the judgments—rights of the other creditors—merger. A purchaser of property subject to the liens of two writs of attachment must discharge those liens in order to hold the property, and with respect to it becomes a debtor to the extent of the liens. But if he purchases one of the judgments, so that he occupies the position of the party required to pay and also the one entitled to receive the amount for which the property is liable, in respect to the judgment so purchased, there will be a merger of the qualities of debtor and creditor, and an extinguishment of both.
    3. ' Same—assignment of judgment—protected at law. The assignment of a judgment in an attachment suit will invest the assignee" with the right to receive in the distribution of proceeds of the attached property, the sum his assignor would otherwise be entitled to; and a court of law will recognize and enforce the rights of such assignee.
    Appeal from the Appellate Court for the Fourth District; —heard in that court on appeal from the Circuit Court of St.Clair county; the Hon. Amos Watts, Judge, presiding.
    This is an appeal from a judgment of the Appellate Court for the Fourth District, which was heard in that court on appeal from the circuit court of St. Clair county. The following is a statement of the ease:
    Edmund C. Donk and others filed their affidavit in attachment against Ottomar W. Heyer, November 28, 1881; 'writ issued the same day, returnable to the February term, 1882, of St. Clair circuit court; levy made on real estate of Heyer, and some personal property, as shown by writ; additional levy on other personal property made December 3, 1881, as shown by writ and sheriff’s indorsement thereon; declaration filed February 9, 1882; appearance of Ottomar W. Heyer, entered by W. C. Kueffner, on the fifth Wednesday of the term, and judgment, by consent of parties, for $2600.75, as per stipulation on file, on the fifth Thursday, being the 23d of March, 1882.
    Alexander & Taussig commenced suit in assumpsit against Ottomar W. Heyer, December 2, 1881; summons issued the same day; writ of attachment in aid sued out and issued same day; both writs returnable to February term, 1882. Levy was made on all the property before then attached under writ in' favor of Donk and others, and also the additional, viz, “the entire stock of bone black in the buildings on the premises, about fifty barrels of marble dust or whiting, one part barrel grape sugar, two kegs of syrup and three sets of double harness. ” The additional property was found, and directed to be levied on by Mr. Taussig, one of the plaintiffs, and this additional levy was also, on the same day, indorsed on the Donk writ; declaration filed February 9,1882.
    On November 29, 1881, Ottomar W. Heyer made an assignment to Hugo Muench, assignee, in pursuance • of the statute of Missouri, relating to assignments. This deed of assignment was recorded in St. Clair county, December 3, 1881, after the above levies. On December 13, 1881, the circuit court of St. Louis, Mo., made an order directing said Hugo Muench, as assignee, to sell all the property of O. W. Heyer, subject to all incumbrances, on the 5th day of January, 1882, and subject to the approval of the said court. On January 5, 1882, said assignee sold all of the attached property, real and personal, except that sold by the sheriff as perishable, to John B. Lovingston, William D. Marshall and George W. Lubke, as trustees for a corporation" thereafter to be formed, for $2000. Said sale purported to be in pursuance of the above order, and the notice of the sale specified that the sale was to be made subject to incumbrances. - Deed made by assignee to said vendees, dated January- 7, 1882. Be port of sale approved by St. Louis circuit court, January 6, 1882. At said sale personal notice óf the levy of the attachment in favor of Alexander & Taussig was given by their attorney.
    On February 27, 1882, the St. Louis Syrup, Glucose and Grape Sugar Company was incorporated, with John B. Ldvingston, W. D. Marshall, George W. Lubke, L. S. Metcalf, Jr., and others, as stockholders. By deed dated February 28, 1882, John B. Lovingston, W. D. Marshall and George W. Lubke, as trustees, convened to the St. Louis Syrup, Glucose and Grape Sugar Company, in consideration of $30,000, which was in full paid shares of the capital stock of said party of the second part, and whereof they retained for themselves, as trustees, $12,000, the property acquired by-said trustees at the assignee’s sale, “excepting such of said articles as have been heretofore sold by the sheriff of said St. Clair county, under levy of- a certain writ of attachment issued in favor of Donk Bros, against said O. W. Heyer. ”
    On January 26, 1882, the sheriff of St. Clair county,- Illinois, sold the perishable property levied on under the attachment of Donk Bros., for $1363.70. On April 11, 1882, the court rendered judgment fdr $2600.75, and awarded special execution therefor against property attached in favor of .Donk Bros.
    On April 25,1882, the judgment of Dónk Bros. v. Heyer, was duly assigned by Donk Bros, to Lyne S. Metcalf, Jr., and a special execution was issued upon said judgment in favor of Donk Bros., on March 19, 1883, but no sale made under it. On the 24th of October, 1883, the said Lyne S. Metcalf, Jr., executed to the St. Louis Syrup* Glucose and Grape Sugar Company the following instrument:

      “Whereas, Donk Bros. & Co., on November 28, 1881, in St. Clair county, Illinois, sued out an attachment, and levied upon certain leasehold and other property then belonging to Ottomar W. Heyer, defendant in said cause, and in which cause judgment was, on March 23, 1882, rendered in favor of said Donk Bros. & Co. for $2600 and costs, and which judgment was subsequently assigned to Lyne S. Metcalf, Jr.; and whereas, the St. Louis Syrup, Glucose and Grape Sugar Company has purchased all the property so attached and not sold: Now, know all men by these presents, that I, the said Lyne S. Metcalf, Jr., of St. Louis, Mo., do hereby, in consideration of $10 to me paid by said St. Louis Syrup, Glucose and Grape. Sugar. Company, receipt of which is hereby acknowledged, remise, release and forever quitclaim unto said company, their assigns and legal- representatives, all and singular any right or lien I may have against the premises and property so attached, of every kind, name and nature, and do hereby further assign, transfer and set over unto said corporation the judgment against said O. W. Heyer, hereinbefore recited, and assigned to me by said Donk Bros. & Co., to have and to hold said property and premises, and said judgment, with all the rights that I may or might be entitled to.
    “In witness whereof, I have hereunto- set my hand and seal, the 24th day of October, 1883.
    L. S. Metcalf, Jr. [l. s.] ”
    Acknowledged at St. Louis, Mo., and recorded in the recorder’s office of St. Clair county, 111., in Book 173, p. 456.
    At the February term, 1882, of the circuit court, in the case of Alexander & Taussig v. Heyer, the defendant appeared, and filed a plea to the declaration. Hugo Mtiench, as assignee of Heyer, filed an interpleader, claiming the property attached, real and personal, as assignee. Lovingston, Marshall and Lubke interpleaded, claiming the property attached as their own, as trustees, and as purchasers from Muench, and claiming the proceeds of sale of the perishable articles, subject to the Donk attachment. The St. Louis' Syrup, Glucose and Grape Sugar Company filed their interpleader, claiming the real and personal property attached as their own. Issues were joined, and at a subsequent term all the issues were tided, and decided by the court in favor of the plaintiff, and judgment rendered in the sum of $902.56, and general and special executions awarded. 'The interpleaders and the defendant sued out a writ of error to the Appellate Court, where the judgment was affirmed, then sued out a writ of error to the Supreme Court, where the judgment was likewise affirmed. Upon the final disposition of the case, Alexander & Taussig caused an execution to be issued, and all the personal property not sold as perishable, and all the buildings and fixtures having first been before destroyed by fire, the sheriff, under said execution, sold the leasehold estate of said Heyer, then in possession of the St. Louis Glucose Company, to plaintiffs, for $700, March 5,1884, and the same was redeemed by said glucose company March 8, 1884, by payment'of $701.90 to the sheriff. The following is a statement of the net proceeds of said sales under said attachment writs:
    Proceeds of sale under Donk Bros, attachment ------- $1863.70
    Costs of attachment - $178.52
    Costs of execution ----- 7.45
    - 185.97
    Net proceeds of the Donk attachment - $1177.73
    Proceeds of sale under attachment of Alexander and Taussig - $701.90
    Costs of attachment ... - $17.90
    Costs of execution ----- 116.65
    - 1.34.55
    Net amount left $567.35

      This was all the evidence. Then the court found, as matter of law, that the claim of the judgment of Alexander & Taussig was preferred to .the claim of Donk Bros. & Co., and entitled to preference in sharing the proceeds of the said sales, and to this finding Donk Bros. & Co. and the St. Louis Syrup, Glucose and Grape,Sugar .Company at the time excepted, and then the said Donk Bros. & Co. and the said company moved the court for a new trial or hearing of the motion, because the finding of the court wras contrary to law, but the court denied the motion, and the movers thereof excepted. The court ordered the sheriff to pay out of the proceeds of said sales the judgment of Alexander & Taussig .in full, and the balance to the said company, and to this judgment the said company and the firm of Donk Bros. & Co. excepted, and appealed to the Appellate Court for the Fourth District. The Appellate Court affirmed the judgment of the circuit court. This appeal is from that judgment.
    Mr. Charles W. Thomas, for the appellants:
    After the sale under the attachment of Donk Bros. & Co., they assigned their judgment to Metcalf, who subsequently, and before, a sale under the judgment of Alexander & Taussig, had fixed the amount to be credited on each judgment, and assigned the first named judgment to the St. Louis Syrup, Glucose and Grape Sugar Company. These assignments carried with them the right to participate in the proceeds of the sales.
    The company never, became the owner of any lien upon the personalty because that was sold before it bought the Donk judgment. The- property sold under the Donk attachment was sold as perishable property, and was expressly excepted from the sale to the trustees of the company.
    The question of merger or extinguishment is not presented by the record. The question here is, whether the company which has purchased real estate upon which' the judgment was a lien, waived its right to receive money due on the judgment arising from a former sale of personalty, by merely purchasing the judgment. This is a proceeding at law, and under the statute all the court could do was to distribute the funds pro rata to the several judgment creditors. If there are equities to be adjusted, they should be referred to the equity side of the court.
    Mr. Chas. P. Knispel, for the appellees:
    Where a vendee of land takes an assignment of a judgment affecting the property, he stands on his rights as vendee as to third persons, and his rights merge. 7 Wait’s Actions and Defences, 321, 322.
    An assignment of a judgment against two joint defendants, to a firm in which one defendant is a member, is a satisfaction of the judgment in favor of both: Marley v. Stevens, 47 How. 228; Cox v. Hodge, 7 Blackf. 146; Sattle v. Whitlock, 4 Mon. 452.
    Any rights which "depend for their support on the estate or right merged, will fail with it. 7 Wait’s Actions and Defences, 321; Clift v. White, 15 Barb. 70. Thus the right to share pro rata, of Donk’s assignee, will fail because of the merger of the judgment upon which this right would depend.
    The judgment in favor of Donk Bros, must be considered satisfied, and all proceedings under it would be null and void, and the writs issued for its enforcement must also be treated as satisfied. Freeman on Judgments, sec. 480; Freeman on Executions, sec. 442; McHenry v. Watkins, 12 Ill. 233.
    , As to merger of estates and extinguishment of debt or lien, see Dickason v. Williams, 129 Mass. 182; Pike v. Brown, 7 Cush. 133; Braman v. Douse, 12 id. 227; Jewett v. Draper, 6 Allen, 434; 2 Washburn on Real. Prop. 193; Strout v. Mining Co. 9 Cal. 78.
   Mr. Justice Scholfield

delivered the opinion of the Court:

We find no reason to -disagree with the Appellate Court in its conclusions as to the law on these facts, as announced in its opinion filed on affirming the judgment of the circuit court. Donk Bros, et al. v. St. Louis Glucose and Grape Sugar Co. 17 Bradw. 374.

But counsel for appellants contend that the fact that appellants did not purchase the perishable property sold under the Donk judgment, renders the reasoning in the opinion of the Appellate Court inapplicable to the case before the court. This seems to assume that the Donk attachment, and the sale of the perishable property under it, are independent of the Alexander & Taussig attachment, and of the levy of both attachments upon other property which appellants did purchase, which is, very clearly, not admissible. The sale of the perishable property before judgment was obtained, was merely to prevent loss. (Attachment act, 1 Starr & Curtiss, sec. 20, p. 318.) So far as any question involved here is concerned, the case may be considered just as if that and all the other property attached had remained in the hands of the sheriff until the -final sale by him of all the property attached, under both attachments, for since both attachments were returnable at the same term, they would share in the property attached pro rata, (see. 37, Attachment act, supra,) and this applies as well to the proceeds of the perishable property as to the other property. Neither attachment was entitled to priority over the other in respect to any of the property attached, and each was a lien upon all of the property attached, to the extent of the entire amount of the indebtedness for which it was issued. And hence, when the appellant company, after it became the owner, subject to these attachments, of .all the property attached except that which had been sold as perishable, purchased and became the assignee of the Donk judgment, it occupied, to the extent of the amount of that judgment, the position of both debtor and creditor, and in such cases there is a merger of the qualities of debtor and creditor, extinguishing both. Abbott, in his Law Dictionary, vol. 2, title, “Merger, ” says: “Merger is the equivalent of confusion in the Roman law,'and- (when used with reference to demands,) indicates that where the qualities of debtor and creditor become united in the same individual, there arises a confusion of rights which extinguishes both qualities; whence, also, merger is often called extinguishment. ” Bouvier, in his Dictionary, vol. 2, title, “Merger, ” under the head of “Rights, ” says: “Rights are said to be merged when the same person who is bound to pay is also entitled to receive. This is-more properly called a confusion of rights, or extinguishment. When there is a confusion of rights, and the debtor and- creditor become the same person, there can be no right to put in execution.” The same rule is recognized in Pomeroy’s Equity, vol. 2, secs. 789, 790.. The extinguishment is complete at law, though in equity, under certain circumstances, a merger or extinguishment will be prevented. (Ibid.) The assignments of the judgment invested the assignees, in the order of the assignments, successively, with the right to receive the .amount to which the plaintiff in the judgment was before entitled, and a court of law recognizes and enforces the rights of such assignees. Chapman v. Shattuck, 3 Gilm. 49; Carr v. Waugh, 28 Ill. 418; Morris, Admr. et al. v. Cheney, 51 id. 451; Hodson et al. v. McConnel, 12 id. 170.

No right, therefore, recognized by a ,court of law, remained, in Donk Bros, after the assignment, and there was nothing to prevent ¡the legal merger or extinguishment.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


text:
    Charles Johns v. Alexander Boyd.

      Filed at Ottawa,June 12, 1886.

      Appeal—as whether involving a freehold. A bill was filed to enjoin a levy and sale of land under an execution, on the ground the complainant, the defendant in execution, had no such interest in the property as was subject to levy and sale, and prayed that in case of a sale it be set aside as a cloud on the title. A sale having been made, the court on the hearing found the allegations of the bill to be true, and set aside the sheriff’s sale and the certificate of purchase: Held, that no freehold being involved, an appeal did not lie from the decree to this court in the first instance.
    Appeal from the Circuit Court of Bureau county; the Hon. George W. Stipp, Judge, presiding.
    Messrs.'Henderson & Tumbler, for the appellant.
    Messrs. Kendall & Lovejoy, and Mr. John Scott, for the appellee.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

The bill in this case was brought by Alexander Boyd, in the circuit court of Bureau county, against Charles Johns, and was to set aside-a levy made on the right, title and interest of complainant in certain premises, by virtue of an execution issued on a judgment rendered in the circuit court, in favor of defendant and against complainant, on the ground complainant had no such interest in the premises as was subject to levy and sale on execution. The bill was filed before any sale was made by the sheriff, and the bill prayed that in case a sale should be made of the property before the cause should come to a hearing, such sale might be declared void, and set aside as a cloud upon the title to the premises. It seems the property was sold by the sheriff after the bill had been filed, and on the final hearing of the cause the court found most of the allegations of the bill to be true, and decreed that, the levy upon and sale of the premises on the execution, and the certificate of .purchase issued to defendant in pursuance of such sale, be declared null and void, and that the same be set aside as a cloud upbn the title to the premises. From that decree defendant prayed for and was allowed an appeal directly to this court, which he afterwards perfected by giving bond as required in the order of the court allowing the appeal.

It is obvious the appeal in this case was inadvertently taken directly to this court, as no freehold is involved, nor, indeed, any other question that would give this court jurisdiction in the first instance to hear and determine the cause. It should have been taken to the Appellate Court, It is seen the bill in the first place was simply to set aside a levy made upon certain premises by virtue .of an execution. It contained also a prayer that in case a sale should be made by the sheriff, of the property-, before the cause should be heard, such sale might be declared null and void, as a cloud upon the title to the property. No deed was ever made by the sheriff to the purchaser at such sale, or to any one else, for the property. The only question made is, whether the interest which complainant has in the real estate levied upon, whatever that may be, is subject to levy and sale on execution. It is therefore plain no freehold is involved. Even if the property was sold it might be redeemed by the defendant in the execution or a judgment creditor of his, and so the sale might never ripen into title. Previous decisions of this court are conclusive of this question.

Appeal dismissed.