text:
    William Bennett v. James M. Walker et al.

      Filed at Ottawa November 10, 1881.

    1. Settlement—conclusive, unless impeached for fraud, etc. A settlement made by attorneys with a client after his majority, in respect to moneys and securities received by the former on a compromise of litigation affecting the interest of the latter, while a minor, and for attorney’s fees and advances made in his behalf, will not be disturbed unless it is impeached for fraud, unfairness, or mistake.
    2. Evidence—weight of evidence. The sworn answer of two defendants, and their testimony, as to a settlement with a complainant, and its fairness, is not overcome by the testimony of the complainant alone, impeaching its fairness.
    Appeal from the Appellate Court for the First District;— heard in that court on writ of error to the Circuit Court of Cook county.
    Mr. James Felch, fon the appellant.
    Mr. John J. Herrick, for the appellees.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a bill in equity, brought by the appellant, William Bennett, in the circuit court of Cook county, against George Sedgwick and James M. Walker, seeking an account of moneys and securities received by the latter as attorneys of the complainant, arising from a compromise of complainant’s interest in a tract of land in the city of Chicago, then in litigation. The case was heard on the pleadings and proofs, and the circuit court dismissed the bill. The decree was affirmed by the Appellate Court for the First District, and Bennett appealed to this court. Subsequent to the decree in the circuit court, both defendants died, and the appeal is prosecuted against the executrix of the survivor.

It appears that in February, 1855, Henry Walker and others brought, a bill in equity in the circuit, court of Cook county, against Bennett, setting up that the father of Bennett, in 1834, purchased of the United' States a certain described tract of land of 80 acres, in Cook county; that he subsequently conveyed the same to one Kinzie, under whom Walker and others claimed the land; .that the deed to Kinzie was never recorded, and had been lost; that the father had died, leaving Bennett his sole heir,—and the bill asking that Bennett be decreed to execute a deed of the land to Walker and others. -At the time of the filing of the bill the land was within the limits of the city of Chicago, and valued at from,$500,000 to $800,000. Bennett was a minor, not quite, eighteen years of age, and without means, and Sedgwick and Walker, being practicing attorneys in Chicago, were employed to, and did as such attorneys, take charge of the defence of the interest of Bennett in the land, making all needed disbursements. On the hearing of that case it was decided in favor of the complainants, and to the effect that the defendant, Bennett, had no right in the property. The case was taken to the Supreme Court, where the decision was affirmed.

Pending the cause in the Supreme Court, and on the 9th day of April, 1859, a compromise was effected, so far as 60 acres of the land involved in the suit were concerned, in virtue of which there were received by Sedgwick and Walker seven lots in the city of Chicago, valued at $3500, $8200 in money, and $11,500 in notes, secured by mortgage. Soon thereafter, and as of the 23d day of April, 1859, a settlement- was had between Bennett and Sedgwick, whereby the seven lots, valued at $3500, and $100 in money, were received by Bennett, and the residue of what was received on the compromise was retained by Sedgwick and Walker.

It is with respect to the money and securities received on this compromise that the bill in this case, filed March 3, 1873, seeks an account, it alleging, as against the settlement above named, and in excuse of the delay in filing the bill, that Bennett accepted the seven lots as his share arising out of the compromise, relying upon the statement of Sedgwick and Walker that they only received money enough to reimburse them for what they had paid out, without informing Bennett how much was received in cash and notes, and that the first information he (Bennett) had of the amount of money and notes so received, was in November, 1869.

The bill alleges that the employment of Sedgwick and Walker was under an agreement that the two latter were to advance all money for necessary costs and expenses of every kind, and were to receive for such money to be advanced and the services to be rendered by them only one-eighth part of whatever should be recovered or realized of the land. Bennett and his mother both testify that such an agreement in writing was entered into with Sedgwick and Walker in 1855, the agreement being left with the latter. Sedgwick and Walker deny the making of any such agreement, and produce a written agreement—which they testify to be the only one ever made in the matter—entered into between them and Hugh Maher, the guardian of Bennett, dated April 16,1856, whereby Sedgwick and Walker were to rnake all advances for costs, etc., and in case of failure in the suit to receive nothing for money paid out, or services, but in case of any recovery, by suit or compromise, they to be repaid all money paid out, also nine times the amount so paid out for the risk in making such -advances, and they to retain reasonable attorney’s fees and all sums paid to other counsel, for services, employed by them in the management of the business, after such payments the remainder to be equally divided between Bennett and Sedgwick and Walker.

On the margin of this agreement there appears indorsed a ratification of the same, signed by Bennett, of the date of August 28,1858. Bennett came of age July 17, 1858. This ratification, if understandingly made, would be strong evidence against the alleged agreement of 1855, and that the agreement of April 16, 1856, with Maher, guardian, was all the agreement there was upon the subject. .But without remarking further in respect to these agreements, we think the disposition of the case should rest upon the settlement which was had between the parties in 1859, and which seems to have been made without reference to the written agreement of April 16,1856. Bennett, in his testimony, speaks of this as, and calls it, a settlement, but seeks to impugn it on the ground that the attorneys did not disclose to him what, besides the lots, they received upon the compromise they made, further than that they received just barely enough money to reimburse them what they had paid out; that he never knew anything about their having received $8200 in money, and $11,200 in notes, secured by mortgage. He testifies fully to this, but there is his testimony alone in this respect.

The answers of the defendants are required to be under oath, and by their sworn answers they state that it was explicitly agreed between them and complainant that the latter should have the seven lots in addition to the money paid out to- and for him; that' defendants were to retain the amount of money paid out by them, with interest at ten per cent, till April 23, 1859; also, the amount defendants had agreed to pay, and did pay, amounting to $8453.89, and the notes and mortgages which had been received. They annex a detailed statement of their advances, amounting, with such interest, to $8447.77. . They testify, in addition, that at the settlement it was mentioned and talked over what was the amount of notes and mortgages received on the compromise, and the amount in money which was received, and that it would all be required to repay their advances; and, further, that the makers of the notes were insolvent, and on foreclosure of the mortgages securing the notes they realized but $5764.96, they themselves bidding in the mortgaged premises at the foreclosure sale for that sum.

This settlement, made between the parties at a time when complainant was of full age and competent to act, should stand, unless it be impeached for fraud, or mistake, or unfairness. The unsupported • testimony of complainant is not sufficient for that purpose against the answers under oath and the„ testimony of the defendants to the contrary. Appellant’s counsel admit this as the general rule, but say that it should not apply in this case, on account of the relation which subsisted between the parties,—that of attorney and client; that because of that relation the burden of proof was upon the defendants to show affirmatively that the settlement was just' and fair. Even if the general rule, that where a dealing has been had between attorney and client, and the propriety of the transaction is called in question, the onus is upon the attorney to show its fairness, does apply in the case of such a settlement as the one here, we think this rule of proof is met in the present case.

As observed, there is but a single witness, the complainant, impeaching the settlement; there is the answer, under oath, of the défendants sustaining it. As evidence, an answer under oath, when it is required, is more than the equivalent of the testimony of one witness, so. that the answer here makes a preponderance of evidence in favor of the fairness of the settlement.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    Portia Gage v. William M. Bailey et al.

      Filed at Ottawa November 10, 1881.

    1. Tax sale—notice to owner or occupant essential to validity of tax deed. Sec. 5 of art. 9 of the constitution of 1870, guarantees the right of redemption from sale for taxes or special assessments for the period of two years, and that occupants of the premises sold shall in all cases be served with notice before the time of redemption expires. This is fundamental, and a compliance with it is an indispensable condition precedent to the right to acquire a tax deed.
    2. Same—when publication is sufficient. To make notice by publication sufficient to authorize a deed for land sold for taxes or special assessments, it must be shown that no one is in the actual possession of the premises at the time of the publication. An affidavit made more than five months before the expiration of the time of redemption, that no one -was in possession of the premises, and that they were vacant and unoccupied at that time, is not sufficient to authorize publication by notice to the owner in a newspaper.
    3. Same—sufficiency of notice of purchase. A notice by publication of a purchase of land for taxes, which states that the time of redemption will expire on October 26, 1876, when it does not expire until November 6, 1876, is fatally defective.
    Writ of Error to the Circuit Court of Cook county; the Hon. William H. Éarnum, Judge, presiding.
    This was a bill filed in the circuit court of Cook county by William M. Bailey, George B. Buggies and Amasa M. Eaton, trustees under the will of Sarah B. Eaton, deceased, praying that a certain tax deed executed by the clerk of the county court of Cqok county to Portia Gage, dated February 14, 1877, be set aside and cancelled as a cloud on the title of defendants in error. The circuit court, on a hearing, granted the .relief prayed for, setting aside the. tax deed, to reverse which decree the cause is brought to this court.

      Mr. Augustus N. Gage, and Mr. Henry D. Beam, for the plaintiff in error:
    1. Even in a direct proceeding, by appeal, to reverse the judgment, error or informality in the proceedings of any of the.officers connected with the assessment, levying or collecting of the taxes, not affecting the substantial justice of the tax itself, will not vitiate the tax or assessment. Rev. Stat. 1874, p. 890, secs. 190, 282; Buck v. The People, 78 Ill. 561; Thatcher v. The People, 79 id. 597; Purrington v. The People, id. 11; Enright v. The People, id. 214; Chiniquy v. The People, 78 id. 570; Wright v. The People, 87 id. 582; Beers v. The People, 83 id. 488.
    2. Even in a direct proceeding, by appeal, to reverse the judgment of the county court, it will be presumed that the taxes are properly and legally assessed, and are legally and justly due, in the absence of proof to the contrary. The collector’s list and report of delinquent lands, in the manner prescribed by statute, entitles him to judgment, unless the tax-payer satisfactorily shows that the taxes have been paid, or some other legal defence going to the merits. Beers v. The People, 83 Ill. 488; Buck v. The People, 78 id. 566.
    3. The collector’s return is of itself evidence, and ample evidence, of the assessment, the levy of the tax, and that it is due and unpaid. Chiniquy v. The People, 78 Ill. 574.
    4. The judgment of the county court is in rein, and its adjudication is res adjudicata, and no collateral attack thereon can be made,—the complainants are estopped. Rev. Stat. ch. 120, sec. 191; Bigelow on Estoppel, (2d ed.) ch. 4, pp. 140-150; Chesnut v. Marsh, 12 Ill. 173; Mayo v. Ah Loy, 32 Cal. 479; Porter v. Purdy, 29 N. Y. 106; The People v. Brislin, 80 Ill. 423; C. and N. W. R. R. v. People, 83 id. 467; Andrews v. People, 84 id. 28; Graceland Cemetery v. People, 92 id. 619; Griffith v. Bogart, 18 How. 158; Gray v. Brignordello, 1 Wall. 627; Pidgeon v. People, 36 Ill. 249; Spellman v. Curtenius, 12 id. 409; Olcott v. People, 5 Gilm. 481; Brown
      v. Joliet, 22 Ill. 123; People v. Nichols, 49 id. 517; St. John v. City of East St. Louis, 50 id. 92; Atkins v. Hinman, 2 Gilm. 437; Starkie on Evidence, secs. 320, 350, 380, 372; Crandson v. Leonard, 4 Cranch, 434; Galston v. Hoyt, 13 Johns. 561; 3 Wheat. 246; McCahill v. Ins. Co. 26 N. J. Equity, 531; Bradstreet v. Neptune Ins. Co. 3 Sumner, 600; Young v. Thompson, 14 Ill. 380; Young v. Lorain, 11 id. 624; Hobson v. Ewan, 62 id. 146; Conover v. Musgrave, 68 id. 58; Osgood v. Blackmore, 59 id. 261; Prescott v. Chicago, 60 id. 121; Feaster v. Fleming, 56 id. 457; Thompson v. Morris, 57 id. 333; Rogers v. Higgins, id. 244; Karnes v. People, 73 id. 274; Zepp v. Hager, 70 id. 223; People v. Gray, 72 id. 343; Mulford v. Stalzenback, 46 id. 303.
    Mr. J. P. Altgeld, and Messrs. Peckham & Bbown, for the defendants in error:
    1. The town tax of the town of West Chicago, for the year 1872, and which formed a part of the sum for which the land was sold, was absolutely void.
    2. The sale was void because it was held on a different day from that fixed by statute, and the record nowhere shows an adjournment.
    3. No sufficient notice was given before taking out a deed. The tax was never levied by the town authorities, and the county board failed to levy it as it was then required, by law. See art. 13 of the Township law, sec. 124; Rev. Stat. ch. 39, sec. 4, art. 4; Wisner v. Bullard, 43 Ill. 471; Purrington v. People, 79 id. 11.
    The cases cited by plaintiff in error simply hold that the judgment of the county court cures formal matters. This question is not new. It was settled in McLaughlin v. Thompson, 55 Ill. 249; Belleville Nail Co. v. People, 98 id. 399.
    The third ground urged for holding the deed void was, that there was no sufficient notice given of the expiration of the time of redemption from the sale.

      Notice was given only by publication. No personal notice was given to anybody. Three affidavits were filed before taking out the deed, viz: the affidavits of Edward L. Couch, W. B. Morley and Asahel Gage, neither of lyliich makes a case for publication.
    The land, at the time the notice should have been given, was owned by Joseph J. Blanchard, who was then, and had been for some years, engaged in business in Chicago, and could easily have been found. At the same time, one John Johnston, Jr., who also lived in the city, held a trust deed on the land which was subsequently foreclosed and under which defendants in error acquired title. But no attempt was made to serve either the owner or the trustee with notice, nor was any reason given for not doing so. See sec. 5, art. 9, const, of 1870, and Rev. Stat. 1874, p. 893, secs. 216, 217.
    If any notice could then have been given to owners and parties interested that would have been legal, it must have been such a notice as the common law would recognize, viz, personal notice. Now, as no such notice ivas given or attempted to be given to Blanchard, the owner, nor to Johnston, the trustee, although both were at the time engaged in business in Chicago and could easily have been found, the deed must be held to be void. Wilson v. McKennon, 52 Ill. 43; Barnard v. Hoyt, 63 id. 341; Cooley on Taxation, 336.
    But the notice as published was void for the further reason that it did not correctly state the date when the time for redemption would empire. It stated that the time for redemption would expire October 26, 1876. This would have been correct had there been no subsequent sale of the property for taxes.
    On the proposition that if a court of chancery found this tax deed void and a cloud on the title, it might set it aside, we cite, Rev. Stat. 1874, ch. 22, sec. 50; Wing v. Sherer, 77 Ill. 200; Emery v. Cochran, 82 id. 65.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was a bill by defendants in error against plaintiff in error, to set aside a deed made under a certain sale for taxes as a cloud upon the title of defendants in error.

Section 5, of article 9, of the constitution of 1870, provides : “The right of redemption from all sales of real estate for the non-payment of taxes or special assessments, of any character whatever, shall exist in favor of owners and persons interested in such real estate for a period of not less than two years from such sales thereof. And the General Assembly shall provide by law for reasonable notice to be given to the owners or parties interested, by publication or otherwise, of the fact of the sale of the property for such taxes or assessments, and when the time of redemption shall expire: Provided, that occupants shall in all cases be served with personal notice before the time of redemption expires.”

For the purpose of executing this section, it is enacted in section 216, chapter 120, Rev. Stat. 1874, as follows:

“Sec. 216. * * * Such purchaser or assignee shall serve or cause to be served a written or printed, or partly written and partly printed, notice of such purchase on every person in actual possession or occupancy of such land or lot, and also the person in whose name the same was taxed or specially assessed, if, upon diligent inquiry, he can be found in the county, at least three months before the expiration of the time of redemption on such sale; in which notice he shall state when he purchased the land or lot, in whose name taxed, the description of the land or lot he has purchased, for what year taxed or specially assessed, and when the time of redemption will expire. If no person is in actual possession or occupancy of such land or lot, and the person in whose name the same was taxed or specially assessed, upon diligent inquiry can not be found in the county, then such person or his assignee shall publish such notice in some newspaper printed in such county, and if no newspaper is printed in the county, then in the .nearest newspaper that is published in this State to the county seat of the county in which such land or lot is situated; which notice shall be inserted three times, the first time not more than five months, and the last time not less than three months before the time of redemption shall expire. ”

In the present case, the property belonged, at the time it was sold for non-payment of taxes, and for some time after-wards, to one Joseph J. Blanchard, but it was assessed as belonging to an unknown owner, and no personal notice by the purchaser at the tax sale of the time when the period of redemption from such sale would expire was served upon any body.

On the 2d day of March, 1876, one Edward L. Couch made and subscribed an affidavit, in which he deposed that he was the agent of Asahel Gage, the purchaser at the tax sale, and that as such agent he visited the premises in controversy on the 23d day of November, 1875, for the purpose of serving notice of the purchase of the property at the tax sale, and when the period of redemption would expire, upon the. occupant, but there was no person in possession of the premises, and that the premises were vacant and unoccupied, and had been so for more than three months previous to that date.

On the 31st of May, 1876, one W. R. Morley also made and subscribed an affidavit, in which he deposed that he also was the agent of Asahel Gage, the purchaser at the tax sale; that as such agent he visited the premises in controversy on the 15th day of May, 1876, for the purpose of serving notice, the same as alleged by Couch in his affidavit, on the occupant, but there was no person in possession of said premises; that he is acquainted with said premises, and that the same were vacant, unoccupied, and in the possession of no person at that time and for more than thirty days previous.

Asahel Gage made and subscribed his affidavit on the 14th of February, 1877, in which he deposed that he purchased-the property in controversy at the tax sale, and caused to be published a notice, which will hereafter be referred to. He states nothing in regard to the premises being unoccupied.

There is no proof in the record, by affidavit or otherwise, that diligent, or indeed any, inquiry was made to find the owner of the property. The property was sold on the 26th of October, 1874, and, of course, two years from that time would expire October 26, 1876. But on November 6, 1874, the record also shows the same property was sold for the city taxes of the city of Chicago for the year'1873, and it is provided by section 211, chapter 120, Revised Statutes 1874: “If any purchaser of real estate sold for taxes or special assessments, shall suffer the same to be again sold for taxes or special assessments before the expiration of the last day of the second annual sale thereafter, such purchaser shall not be entitled to a deed for such real property until the expiration of a like term from the date of the second sale, during which time the land shall be subject to redemption, upon the terms and conditions prescribed in this act. ” * * *

It will be observed the section of the constitution we have quoted guarantees the right of redemption for the period of two years, and that occupants shall in all cases be served with notice before the time of redemption expires, and this is fundamental, and compliance with it is an indispensable condition precedent to the right to make a deed. Holbrook v. Fellows, 38 Ill. 440.

The notice required.by section 216, chapter 120, Rev. Stat. swpra, it will be remembered, is to be by publication,—the first not more than five months and the last not less than three months before the time of redemption shall' expire,—but no publication is to be made until it shall be made to appear that no person is in the actual possession or occupancy of the land or. lot, and the person in whose name the same was taxed, upon diligent inquiry can not be found. This can, of course, only mean that no person is in the actual possession at the time of the publication, for the important and controlling requirement is, the occupant shall have notice. If there is an occupant, he must have personal notice, and there can be no presumption of the sufficiency of notice by publication until it is excluded that when it was made there was no occupant. Now, the affidavits here fall short of showing that there was no occupant up to within five months of the expiration of the time of redemption. The time of redemption, we have seen, expired November 6, 1876, and five months before that time would be June 6, 1876. But Couch’s affidavit was made on the 2d of March, 1876, and that of Morley on the 31st of May, 1876, and of course neither can be accepted as proof of anything that transpired subsequent to the time it was made.

But the notice itself is liable to objection. It= stated the time for redemption would expire October 26, 1876, instead of November 6, 1876, and this was held fatal in Wilson et al. v. McKenna, 52 Ill. 43, and Barnard v. Hoyt, 63 id. 341.

The judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    The People ex rel. Harvey B. Hurd v. William T. Johnson.

      Filed at Ottawa November 10, 1881.

    1. Mandamus—whether it will lie. While the remedy by mandamus rests largely in the discretion of the court, yet the rule is uniform and inflexible that the writ will not be granted unless the relator’s right to it is clearly established.
    2. Same—to compel county treasurer to pay county order. As a general rule mandamus will lie to compel a county treasurer, or other public disbursing officer, to pay an order legally drawn upon funds in his hands, subject to the payment of the same, and this though he has, through inadvertence or mistake, paid, the amount to one not entitled to be paid.
    3. But when by reason'of a complication of extraneous circumstances not specifically provided for by the statute, a well-founded doubt arises, either as to the right of the applicant to receive the fund, or the duty of the officer to pay it out, mandamus is not the proper remedy. The right in such case being doubtful, the claimant must resort to some other appropriate remedy to determine it.
    4. County officers—no power to bind county by commercial paper. The officers or official agents of a county or other municipal corporation, without express legislation, have no power' to issue commercial paper, and thereby impose upon the municipality the duties and liabilities incident to such paper; and the statute for the issuing of county orders confers no such power.
    5. County orders—as negotiable or commercial paper—rights of assignee. Warrants or orders drawn by one municipal officer upon another in the disbursement of the funds of the municipality and payment of its indebtedness, are not regarded as negotiable or commercial paper, cutting off equities against the corporation. Chapter 98 of the Bevised Statutes, entitled “Negotiable Instruments, ” has no application to such warrants or orders.
    6. A county order does not possess the essential qualities of commercial paper. When countersigned and registered by the treasurer, it is at once due without presentment, and whether assigned or not is always open to any defence proper against the original payee.
    7. An assignment of a county order, however, is valid to pass the legal title of the payee, so as to enable the assignee to sue in his own name.
    8. Loss of county order—rights of the■ parties. A county order for an indebtedness not being a payment, its loss, even though the order is indorsed in blank, can not affect the right of the payee to payment of his debt. In such case it is proper to issue to him a duplicate order, on the payment and surrender of which the original order will become inoperative and void.
    9. When there has been no actual transfer or payment of a county order before the proper county officers are notified of its loss, the original creditor will be entitled to payment notwithstanding such loss, and the holder of the lost order, though an innocent purchaser for its full market value, will be without remedy against the county, whether the order was transferred by written assignment or by delivery only.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.

      Mr. H. B. Hurd, for the appellant:
    We do not claim that county orders and other municipal obligations have that quality of negotiable paper which cuts off inquiry into its validity in the hands of innocent holders. Such paper is always open to inquiry into the power of the authorities to issue it, and to determine that question the consideration and the state of the account between the parties, at the time of its issue, may be inquired into. School Directors v. Fogleman, 76 Ill. 189; Hewitt v. School District, 94 Ill. 528.
    To the same effect are the cases cited by Mr. Dillon in his note to sec. 487, (3d ed.) Municipal Corporations, and this is the extent to which they go.
    With this exception such paper has, almost uniformly been held to be governed by the same rules as other negotiable paper. The Mayor v. Ray, 19 Wall. 468; Bank v. Farmington, 41 N. H. 32; Bull v. Sims, 23 N. Y. 570; Kelley v. Mayor of Brooklyn, 4 Hill, 265; 1 Daniel’s Negotiable Instruments, (2d ed.) sec. 428.
    Whatever may be the law in other States, county orders, when legally issued, are, in this State, negotiable by indorsement. Rev. Stat. ch. 98, secs. 3, 4; Garvin v. Wiswell, 83 Ill. 215; City of Springfield v. Hickox, 2 Gilm. 241; Johnson v. County of Stark, 24 Ill. 75; Supervisors of Mercer Co. v. Hubbard, 45 id. 139; Criminal Code, sec. 212; Rev. Stat. 1845, ch. 28, sec. 23; Rev. Stat. 1874, ch. 120, sec. 154.
    The main question is, whether, after the payee had by his own act and fault placed the order beyond his control, it was within the power of himself and the county board to prejudice the rights of those into whose hands it had then or might thereafter come in the regular course of business. See Story on Promissory Notes, 590; Morris v. Preston, 93 Ill. 215.
    The power of the county board was exhausted with the issuance of this order, and it had no jurisdiction to issue a second on the same debt while this was outstanding. Rev. Stat. ch. 35, sec. 10, and ch. 36, secs. 7, 8, 9.
    The manner of issuing county orders, and of their payment, is carefully provided for by law. All discretion on the part of the county officials is taken away by this legislation. County of Hardin v. McFarlan, 82 Ill. 138; Bond Cases, 12 S. C. 201; Shirk v. Pulaski County, 4 Dillon, 209; The Floyd Acceptances, 7 Wall. 666.
    The statement in the order that it is payable “out of money in the treasury not otherwise appropriated, ” does not deprive the order of its negotiability. Bull v. Sims, 23 N. Y. 570.

      Mandamus is the proper remedy. People ex rel. Clemens v. Smith and Miner, 43 Ill. 219; People ex rel. v. Lippincott, 72 id. 578; High on Extraordinary Legal Remedies, secs. 110-112.
    Mr. Consider H. Willett, for the appellee:
    1. Mandamus is not the proper remedy under the facts of this case. It does not lie in such a case until after judgment has been obtained and the county refuses to levy taxes for its payment. People v. Cairo, 50 Ill. 154; Chicago v. People, 48 id. 416; Moses on Mandamus, 15, 60, 61; High on Extraordinary Remedies, 8, 9, 10; People v. Clark, 50 Ill. 213.
    In the case at bar, in the Appellate Court, (Johnson v. People, 8 Bradw. 397,) Bailey, J., said: “The rule is inflexible, ever since the passage of the amendatory act of 1874, that mandamus will not lie where the right sought to be enforced is doubtful. The party resorting to this writ must show a clear legal right to have the thing sought by it done. (People v. Village of Crotty, 93 Ill. 180; People v. Klokke, 92 id. 134). The least that can be said in this case is, that the relator has failed to show such clear legal right to payment of the county order in question as can entitle him to have such payment enforced by mandamus.” County of St. Clair v. People ex rel. 85 Ill. 396; People ex rel. v. Lieb, id. 483;
      People ex rel. v. Trustees of Schools, 86 id. 613; People ex rel. v. Highway Comrs. 88 id. 142; Rogers v. People, 68 id. 154.
    2. County orders are not negotiable paper, and are not made so by sec. 3, chap. 98, Revised Statutes. That does not apply to municipal corporations. Madison County v. Bartlett, 1 Scam. 69; Pekin v. Reynolds, 31 Ill. 532; Hewitt v. Normal School District, 94 id. 532.
    County orders are not negotiable because payable out of specific funds which are raised by taxation. Whatever defects reach this fund also reach the county orders. Turner v. P. and S. Railroad Co. 95 Ill. 134; Baird v. Underwood, 74 id. 176; Husband v. Epling, 81 id. 172; Mills v. Kuykendall, 2 Black, 47; West v. Foreman, 21 Ala. 400; Corbett v. State, 24 Ga. 287.
    An essential quality of negotiable paper is the personal liability of the maker, and there being no personal liability upon any one for the payment of a county order, establishes conclusively its non-negotiable character. Turner v. P. and S. Railroad Co. 95 Ill. 146; Bank of Montreal v. C. C. and W. Railroad Co. 48 Iowa, 518.
    In the following cases county orders were held not negotiable :Hyde v. Franklin County, 27 Vt. 185; People v. Eldorado County, 11 Cal. 170; Dana v. San Francisco County, 19 id. 486; Keller v. Hicks, 22 id. 457; People v. Gray, 23 id. 125.
    City warrants held not to be negotiable in the following cases: Clark v. City of Des Moines, 19 Iowa, 199; Argenti v. San Francisco, 16 Cal. 255; Mason v. San Francisco, 16 id. 285; Hackettstown v. Schwackhamer, 8 Vroom, 191; Knapp v. Hoboken, 10 id. 194; Nashville v. Ray, 19 Wall. 468.
    School orders held not negotiable: Ohio ex rel. v. Treasurer of Liberty Township, 22 Ohio St. 144; School Directors v. Fogleman, 76 Ill. 189; Hewitt v. Normal School District, 94 id. 528.
    Town orders held not negotiable: Smith v. Inhabitants of Cheshire, 13 Gray, 318; Matthis v. Town of Cameron, 62 Mo. 504.

      County orders, though held assignable, also held in the following cases not negotiable like commercial paper, but that all defences could be interposed as though not assigned: Willey v. Greenhish, 30 Me. 452; Sturtevant v. Inhabitants of Liberty, 46 id. 457; Emery v. Mariaville, 56 id. 315; Clark v. Polk County, 19 Iowa, 248; Clark v. Des Moines, id. 199; Hackettstown v. Schwackhamer, 8 Vroom, (N. J.) 191; Knapp v. Hoboken, 10 id. 394; Mayor v. Ray, 10 Wall. 468.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is an appeal by the People, on the relation of Harvey B. Hurd, from a judgment of the Appellate Court for the First District, reversing a judgment of the circuit court of Cook county, awarding a peremptory mandamus commanding the county treasurer of Cook county to pay to the relator, Harvey B. Hurd, $250, the amount of a county order issued by Cook county to John Comiskey, on account of his services as clerk of the county board.

The order was in the usual form, bearing date June 1,1877, signed by the county clerk, and countersigned and registered by the treasurer. On the day of its issue, Comiskey, the payee, indorsed it in blank, and while on his way to the treasurer’s office to obtain payment casually lost it, and it subsequently came into the hands of the relator in the regular course of business, he having purchased the same in good faith at its full market value, without any notice of the defective title. On the 25th of the same month, on proof of the loss of the order by Comiskey, a duplicate order was issued to him by order of the county board, which was paid by the county treasurer in August following, and before the commencement of the present proceeding, the county neither taking nor requiring any indemnity from Comiskey on account of the lost order.

Two questions are presented for our determination by the foregoing state of facts:

First—Assuming the county is liable to the relator in some form of action, is mandamus the proper remedy ?

Second—Is the county, under the facts stated, liable to the relator in any form of action ?

In the view we have taken of this case, both these questions must be answered in the negative.

It is to be remarked, in the first place, that all the duties of a statutory disbursing officer, such as county treasurer, are generally, if not universally, specifically defined by statute, so that ordinarily, where no discretion is given him- in the discharge of those duties, there can be no just ground for controversy as to when he will be bound to honor orders drawn on him, and when he will not. Hence, as a general rule, mandamus will lie to compel a county treasurer, or other disbursing officer, to pay an order legally drawn upon funds in his hands, subject to the payment of such order. Nor would the rule, in this respect, be changed by reason of the officer having, through inadvertence or misapprehension of duty, made payment to another who had no claim upon, or pretence of right to, the fund thus paid out. The People ex rel. v. Smith and Miner, 43 Ill. 219. But where, in such case, by reason of a complication of extraneous circumstances not specifically provided for by the statute, a well-founded doubt arises, either as to the right of the applicant to receive the fund, or the duty of the officer to pay it out, mandamus is not the proper remedy. The right in such case being doubtful, the claimant must resort to some other appropriate remedy to determine it. The People ex rel. v. Dulaney et al. 96 Ill. 503; The People ex rel. v. Klokke et al. 92 id. 134.

While the remedy by mandamus rests largely in the discretion of the courts, yet the rule is uniform and inflexible that .the writ will not be granted unless the relator’s right to it is clearly established. People ex rel. v. Davis et al. 93 Ill. 133.

It is difficult to perceive upon what theory it can be seriously contended that the relator has shown a clear right to the writ in this case. The county was indebted to Comiskey, on account of his services as clerk, in the sum of $250. The drawing of the order on the county treasurer for that sum did not operate as a payment, or change the character of the indebtedness. The order was given simply because it was an essential part of the plan or system which the law has provided for the disbursement of the county funds and the payment of its indebtedness. By means of these orders any discrepancies between the allowances made, by the county board and the account of the treasurer can be easily detected. They serve as vouchers in the hands of the treasurer, and this was doubtless the primary object of the legislature in requiring them to be issued. This being so, the mere loss of the order in question, although indorsed in blank, could not have affected the right of Comiskey to payment for his services. It was, therefore, entirely proper for the county board to order the county clerk to issue a duplicate order for the amount, so as to provide the treasurer with the appropriate voucher on payment. This was done. The debt having been paid upon the surrender of the duplicate order, the original order became inoperative and void.

It is claimed, however, that the order in question is to be regarded as negotiable paper, and that the relator having-purchased it at its full market value, in the regular course of business, without notice of any infirmity in it, the county is bound to protect him by paying the amount of the order again; and this brings us to the second question presented for our determination, namely: Is the county liable, under the facts of this case, in any form of action ?

If any one proposition can be regarded as clearly and definitely settled beyond all question, it is that the officers or official agents of a county or other municipal corporation have no power, without express legislation for that purpose, to issue commercial paper, and thereby impose upon the municipality the duties and liabilities incident to such paper. And we think it equally clear, as shown by the whole course of decisions in this State, that the statute authorizing the issuing of county orders was not intended to, nor does it, confer any such power, nor do those orders, when issued, possess the essential qualities and attributes of commercial paper. As soon as countersigned and registered by the treasurer they are at once due, without presentment for or demand of payment, and hence, whether assignable or not, they are always open to any defence which would be available if the suit were brought in the name of the original payee. Indeed, it is admitted by counsel in this case that the true state of the account between the payee of the order and the county may always be shown by way of defence, even as against an innocent holder. This is, in effect, conceding they are not eommercial paper, for, if commercial paper, such a defence would not be available as against an innocent holder. In all cases the county has to deal with the indebtedness which the order represents, and it can not be made liable twice on account of the same indebtedness. Should the officer pay the claim to an unauthorized person not in possession of the order, it would not operate as a discharge of the debt, and the officer would be personally liable for a misappropriation of the fund. The creditor of the county is not to be deprived of his claim because he has accidentally lost the order which represents it, provided he notifies the county of the loss before payment to the holder of the order, who must necessarily derive his title through a polluted source. Where there has been no actual transfer or payment of the indebtedness before the proper authorities of the county are notified of the loss of the order, the creditor will be entitled to payment notwithstanding such loss, and the holder of such lost order will be remediless, so far as the county is concerned. His only remedy would be against the party from whom he got it; and there would be no hardship in this, since every one purchasing such paper is conclusively presumed to know that by his purchase he only acquires the rights of his assignor, whatever they may be, and whether there has been a written assignment or a mere transfer by delivery, makes no difference in this respect.

We regard the rule well settled, by considerations of public policy as well as by a decided preponderance of authority, that warrants or orders drawn by one municipal officer upon another, in the disbursement of the funds of the municipality and payment of its indebtedness, are not to be regarded as negotiable or commercial paper, cutting off equities against the corporation. As we have already seen, the official agents of these municipalities have no implied power to execute such paper, and to clothe these warrants or orders with the qualities and attributes of commercial securities, would be to give them a character foreign to the object and purposes of their creation. Hewitt v. Normal School District, 94 Ill. 528.

While these orders, if payable at a future day, would be in form inland bills of exchange, yet; there is, in fact, a want of the usual parties essential to such paper. In the case of a bill of exchange, we have the drawer, payee and drawee, the latter after . acceptance being called the acceptor. These parties, upon tlm execution of the paper, assume certain specific duties and obligations towards each other. The instrument is a written contract between them. In the case of a municipal warrant or order, nothing, in fact, of this kind occurs. The officers signing the paper assume no personal liability upon it. If never paid, the officer drawing it could not successfully be sued upon it, nor could the treasurer be sued for non-payment, except where he refuses after the necessary funds have been provided for that purpose, and then not on the instrument itself. Indeed, neither the clerk nor the treasurer is a party to a county order. The county, in contemplation of law, is both drawer and drawee. That is, the county, through its official agent, the clerk, draws an order on itself. No duty or obligation, therefore, is created between the apparent drawer' and drawee upon the making of such an order as is usually created in the case of a bill of exchange, for the drawer and drawee are the same party, and, strictly speaking, one can not owe a legal duty to himself. Moreover, this instrument was payable out of a particular fund, namely, such moneys as might happen to be in the treasury not otherwise appropriated, while it is essential to commercial paper that it be payable absolutely, and at all events. This of itself shows that such orders or warrants are not to be regarded as commercial paper. These considerations, when taken in connection with the manifest objects and purposes of the legislature in providing for such orders, as heretofore stated, clearly show they were not intended to be included in that class of instruments provided for in chapter 98 of the Revised Statutes, entitled “Negotiable Instruments.”

In addition to this, it is manifest, from even a cursory examination of that chapter, that many of its provisions are wholly inapplicable to instruments of the character we are considering. The case of Garvin v. Wiswell, 83 Ill. 215, is cited as holding a contrary doctrine. The instrument in that case was not, like the one in the present, an ordinary county order, issued under the general law relating to such instruments. On the contrary, it was not only in form a negotiable, security, but was intended by the county authorities, at the time of its issue, to be put upon the market and sold as such. And while there was no authority to issue it at the time it was done, yet a few days afterwards the legislature passed a special act ratifying the action of the board of supervisors in issuing it and others of a similar character, whereby the same were rendered valid and binding on the county. (Vol. 1, Pr. Laws, 1865.) The effect of this act was equivalent to a previous authority to issue the instrument, and gave to it, as was originally intended, all the attributes of commercial paper. That the legislature has ample power to authorize counties or other municipalities to issue negotiable securities is not to be questioned, yet, without such special legislative authority, they have no power to do so, and there is no pretence that the order in this case was issued for .any such purpose, or was authorized by any special act of the legislature.

Nevertheless, in many of the States, including our own, it has become quite common in business transactions to transfer these instruments by written indorsements, in the same manner as if commercial paper, and this usage or custom prevails to such an extent that many courts of the highest respectability have recognized the validity of such assignments, for the purpose, simply, of enabling the assignee to sue in his own name, saving to the municipality all equities and defences which would be available if the suit were brought in the name of the original payee.

We perceive no substantial objections to this doctrine, and it is believed that public convenience will be promoted by its recognition. Indeed, the principle has already been recognized by previous decisions of this court: Newell v. School Directors, 68 Ill. 514; Turner v. P. and S. R. R. Co. 95 id. 134.

The foregoing general views are believed to be fully sustained by the following authorities: 1 Daniel’s Negotiable Instruments, sec. 427; Dillon on Municipal Corporations, sec. 406, (1st ed.); Mayor v. Ray, 10 Wall. 468; Dana v. San Francisco, 19 Cal. 491; People v. Eldorado County, 11 id. 175; Clark v. Polk County, 19 Iowa, 248; Clark v. City of DesMoines, id. 199; Hyde v. Franklin County, 27 Vt. 185.

It follows, from what we have already said, that an action for the amount of the order in question could not, after, payment to Comiskey, have been maintained in his name against the county, either for his own use or that of the relator, and hence the county, under the facts of this case, is not, as we have already stated, liable to the relator in any form of action.

The judgment of the Appellate Court will therefore be affirmed.

Judgment affirmed.

Walker, J., dissenting.


author: Mr. Chief Justice Craig

text:
    The People of the State of Illinois v. Charles H. Force et al.

      Filed at Ottawa November 10, 1881.

    1. Purchaser—sale of canal land by State officer to himself is not void. A sale of canal land by the treasurer of the board of canal commissioners, whose duty it was to sell the same, to himself, at the price fixed by law, is not void, and will pass the title, if not avoided by the State, and this can not be done in an action of ejectment. The sale can be set aside only in a court of equity, where the rights of all the parties in interest may be protected.
    2. Same—ratification of voidable sale maltes it good. If a sale of canal lands by an officer of the State to himself was voidable by the State, a subsequent ratification of it by the State will render the sale valid and binding, which ratification may be shown by the receipt by the State of the price, and returning the land as subject to taxation, and the collection of subsequent taxes thereon.
    3. Ejectment—legal title only considered. In an action of ejectment legal titles only are considered, and not equities. Therefore any sale of land by the State, though voidable in equity for irregularity, must prevail in a court of law.
    Appeal from the Circuit Court of LaSalle county; the Hon. F. Goodspeed, Judge, presiding.
    Mr. E. F. Bull, for the People:
    1. It was claimed at the circuit court that the State of Illinois was estopped from denying that this land had been sold, and estopped from claiming that this certificate was void, for the reason that the property had been assessed for taxation, and had been returned by the Auditor- General of the State, upon several occasions, to the county clerk of La Salle county, under the revenue laws then in existence, as delinquent land, for the taxes of 1835 and 1837. A sufficient answer to this proposition is, that the doctrine of estoppel can not be applied to the sovereign power. It can not be asserted in favor of the citizen against the State. The People v. Brown, 67 Ill. 435.
    2. Mr. Campbell, as the agent of the State to sell this land, was not authorized to sell to himself, and hence no title passed by his attempted sale to himself. McDonald v. Fithian, 1 Scam. 269; Hughes v. Washington, 72 Ill. 85; Pensonneau v. Bleakley, 14 id. 15; Dennis v. McCagg, 32 id. 429; Cotton v. Holliday, 79 id. 176; Ziegler v. Hughes, 55 id. 228.
    Messrs. Leland & Gilbert, and Mr. N. Kilburn, for the appellees:
    Appellees rely upon two items of proof to defeat appellant’s claim. The first is the certificate issued by James B. Campbell, treasurer, to James B. Campbell, dated January 10, 1831, and the second is the entry in the book of patents in the office of the Secretary of State, showing that a patent for this land was issued to James B. Campbell,’ January 10, 1831.
    1. If Campbell, as the agent of the State, made this certificate to himself, the State suffered no injury or loss. He could not sell the land for more than $1.25 per acre, and it did not matter to the State who was the purchaser, so that it received the maximum price.
    2. The fact that the Governor issued a patent for the land, that the Auditor certified it for taxation, and that the State made no claim to the land for fifty years after the patent issued, affords strong circumstantial evidence that the land was paid for.
    3. Again, if Campbell occupied the position of a trustee, his sale to himself was not void, but only voidable, and hence this defence is of no avail in an action of ejectment. The People must resort to a bill in equity, and offer to return the purchase price of the land.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

This was an action of ejectment brought by the canal commissioners, in the name of the People of the State of Illinois, to recover the possession of the west half of the south-east quarter of section 13, town 33 north, range 3 east, in LaSalle county. On a trial in the circuit court, before a jury, a verdict was returned in favor of the defendants, upon which the court rendered a judgment, and plaintiff appealed.

The plaintiff, for the purpose of establishing title to the land, read in evidence an exemplification of a patent from the United States to the State of Illinois for the land in question, dated March 5, 1830. The defendants, for the purpose of showing that the State had parted with its title, read in evidence a certified copy of a certificate of sale on file in the office of the Auditor of State, which read as follows:

“No. 93.

Treasurer’s Office, Rapids of Illinois,

January 10, 1831.

“It is hereby certified, that in pursuance of law James B. Campbell has this day purchased at this office the south-east quarter of section No. 13, township No. 33 north, 3 east, containing 160 acres, at the rate of $1.25 per acre, amounting to $200, for which he has made payment in full.

“Signed in duplicate,

James B. Campbell, Treasurer Board Oanal Comrs.

The defendants also read in evidence a certified copy of a patent book, on file in the office of the Secretary of State, so far as it related to the land in question, showing the sale of. the land to Campbell; The defendants also proved that the Auditor of Public Accounts certified the land for taxation in 1835, and again in 1837.

Section 8 of the act of 1829, Public Laws of 1829, page 14, which was in force when the land in question was sold, provides: “The treasurer (of canal commissioners), at all times, (except the time of public sale,) shall keep an office open at some point on the route.of said canal, at which persons may enter any of the lands included within the said donation, at $1.25 per acre in cash, in the same manner in which lands may be entered in any of the land offices of the United States. And at all such private sales the treasurer shall grant a certificate of purchase to the purchaser, containing a description of the quantity of land, and the price for which the same was sold, upon presenting which to the Governor the party shall be entitled to receive a patent for the same, as above provided. It shall be the further duty of the treasurer to make entries -of sales of lands made by him, in a book or books to be kept for that purpose, containing a faithful description of the quantity of acres in each tract sold by him, and the price at which the same was sold; and he shall make monthly returns therefor to the Auditor of Public Accounts.” . •

The authority of James B. Campbell, treasurer of the board of canal commissioners, to sell the land in question at-$1.25 per acre is not denied, nor is it questioned that a certificate of sale, such as was given, would be competent and legitimate evidence to establish the fact that the State had parted with its title to the land; but it is contended by appellant that the certificate of sale read in evidence is void because- Campbell, the treasurer, sold the land to himself. Conceding that Campbell, who was at the time treasurer of the board of canal commissioners, clothed with authority to sell the land, did, in fact become the purchaser, the transaction would not be void. The most that can-be claimed is, that it would be voidable. The price at which the land could be sold was fixed by law at $1.25 per acre,—it could not be sold for more nor less than that sum. Whether Campbell or a stranger became the purchaser of a tract of land, could in no manner affect the State. If the price provided by law was paid, the State could not be injured. Indeed, it was a matter of no consequence to the State who purchased the land. All it expected or desired was $1.25 per acre. That the State received pay for the land in question does not admit of a doubt. Campbell, the treasurer, in the certificate of sale, a duplicate of which was filed in the Auditor’s office, acknowledged receipt of the money for which the land was sold, and when his term of office expired, and his successor was appointed, it will be presumed, in the absence of proof, that he settled with the State and paid over all moneys in his hands which ' were receive^ in the discharge of his official duties. Under such circumstances we perceive no ground upon which it can be held that the sale was void.

But suppose the sale was voidable, if the State, after the land was thus sold, ratified the act, the legality of the sale would then be beyond dispute. The record contains evidence tending to prove a ratification of the sale. The land was returned by the Auditor to the county clerk of LaSalle as subject to taxation, which would not have been done unless the State had sold it. This action by the officers of the State shows clearly that the sale made by Campbell was regarded as proper and legitimate.

Again, if the relation of Campbell to the State was such that he could not properly become a purchaser of lands entrusted to 1pm to sell, that question can not be raised in a court of law on the trial of an action of ejectment. If the sale was voidable, and the State had the right to set it aside, it must go into a court of equity to do so, where the rights of all parties in interest can be adjusted and protected. In an action of ejectment legal titles only are taken into consideration,—equities are not considered. If a trustee, who may be authorized by a deed of trust to sell a tract of land, procures a third party to purchase at the sale, and then takes a conveyance to himself, the original owner of the land may, by proper proceedings in a court of equity, set aside the sale, but he could not recover the land in an action of ejectment. The principle which would preclude a recovery in the case supposed, would also prevent a recovery in the case under consideration.

The certificate of sale r.ead in evidence by the defendants was sufficient, in our judgment, on the trial of the action of ejectment, to establish the fact that the State had parted with its title to the land, and so long as that certificate remains in force we perceive no ground upon which the plaintiff could recover.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Walker

text:
    Van H. Higgins v. James G. Dwen.

      Filed at Ottawa November 10, 1881.

    1. Will—construed as to property devised. A will of a wife in these words: “I give and bequeath to my husband, James G-. Dwen, all moneys and properties, real and personal, of every description, in the city of Chicago, county of Cook, and in Ogle county, State of Illinois; also, all money and properties which may hereafter come to me, by reason of will or otherwise, he to pay all my just debts,” etc., was held to pass real estate of the testatrix in Cook county, although outside of the city of Chicago, to her husband.
    2. Same—testator presumed to dispose of all his estate. It is presumed that a testator, when he makes and publishes his will, intends to dispose of the whole of his estate, unless the presumption is rebutted by its provisions, or otherwise, by evidence to the contrary.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.
    Mr. Van H. Higgins, pro se.

    Mr. James Dablow, for the appellee.
   Mr. Justice Walker

delivered the opinion of the Court:

This was a bill for a specific performance of a contract for the sale and purchase of forty-two acres of land in Cook dounty. The vendor tendered a deed, and the purchaser was willing to receive it and pay for the land if he could obtain a perfect title, but denies that the vendor can make such a title.

There are no disputed facts in the case, and it all depends on the question whether James Gr. Dwen took title to this land by the will of his wife, Ellen L. Dwen, deceased. The circuit court held he did, and the decree was affirmed on appeal to the Appellate Court for the First District, and the case is brought by appeal to this court.

The controversy grows out of the construction of this clause of the will: “I give and bequeath to my husband, James Gr. Dwen, all moneys and properties, real and personal, of every description, in the city of Chicago, county of Cook, and in Ogle county, State of Illinois; also, all money and properties which may hereafter come to me, by reason of will or otherwise, he to pay all my just debts,’’ etc.

On the one side it is claimed, that the true meaning of the language gives Dwen only the property in the city of Chicago and in Ogle county, and not in Cook county outside of the limits of the city. On the other hand it is claimed, that title to all real estate situated in the city, and in Cook county outside of the city, as well as any situated in Ogle county, passed to the devisee, under the language of the will. This is the question presented for determination by this record.

The question may not be altogether free from doubt, but we are of opinion the latter view is correct. The language will bear that construction equally well, if not better, than the other. Testatrix held real estate in the city, and in Cook county out of the city, also in Ogle county, and on considering the clause the intention -seems to have been to devise the entire property of testatrix to her husband. Had such not been the case, after using the language employed some reservation or exception would have been made to exclude such an apparent intention. The first member of the clause gives “all moneys and properties, real and personal, of every description.” Had it stopped here, no doubt could have existed that the intention was to invest the devisee with all of her property, of every description, wherever situated. The further clause, “also all money and properties which may hereafter come to me, by reason of will or otherwise, ” etc., seems clearly to manifest an intention to devise all of her property to him. These general descriptions are sufficient to have that effect, and show such an intention.

Nor does the local or. special description of the location or situation of the property overcome the general description. To upset or overcome this general description, and to repel the intention it implies, language equally clear should have been employed in the local description. It is presumed that a testator, when he makes and publishes his will, intends to dispose of his whole estate, unless the presumption is rebutted by its provisions, or evidence to the' contrary. Smith v. Smith, 17 Gratt. 268; Irwin v. Zane, 15 W. Va. 646.

Applying that presumption in- this case, if testatrix did not intend to devise the real estate outside of the city, but in Cook county, to her husband, she would in all probability have devised it to some one else. The fact that she made a will, is a strong presumption that she intended to and did dispose of the whole of her estate. This presumption is strengthened from the fact that language was employed that reasonably bears that construction, and no clause in the will contradicts it.

We are, after a careful consideration of the question, of opinion that the land outside of the city in Cook county passed by the will to James G. Dwen, precisely as did the city property and the property in Ogle county.

The decree of the Appellate Court is therefore affirmed.

Decree affirmed.


author: Mr. Justice Scott

text:
    Edward Pulsifer v. Asmus Clauson.

      Filed at Ottawa November 10, 1881.

      Appeal—from an Appellate Court. In an action on the case for flooding the plaintiff’s land by stopping the natural channels or water passages, where judgment is rendered for the defendant, the judgment of the Appellate Court in affirmance is final on the plaintiff, and he can not bring the case to this court without a certificate of the Appellate Court that it “involves questions of law of such importance, either on account of principal or collateral interests, as that it should be passed upon by the Supreme Court.”
    Appeal from the Appellate-Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Mr. Jno. M. G-artside, for the appellant.
    Messrs. Campbell & Custer, for the appellee.
   Mr. Justice Scott

delivered the opinion of the Court:

This was an action on the case, brought by Edward F. Pulsifer against Asmus Clauson, to recover damages alleged to have been occasioned to the lands of plaintiff, described in his declaration, by the wrongful conduct of defendant in preventing the natural flow of water from his premises, by stopping the natural channels or water passages, so that plaintiff’s lands were overflowed with water, thereby rendering the lands untillable, to the great damage of plaintiff. On the trial in the Superior Court the issues were found for defendant, and the court rendered judgment against plaintiff for costs. That judgment wras affirmed in the Appellate Court for the First District, and plaintiff brings the case to this court on appeal.

The action is one sounding in damages. No judgment was rendered in the trial court for $1000, or for any amount in excess of .that sum, exclusive of costs; and as the judges of the Appellate Court have not certified the case “involves questions of law of such importance, either on account of principal or collateral interests, as that it should be passed upon by the Supreme Court, ” it is plain the judgment of the Appellate Court is final, and this court has no jurisdiction to hear the appeal.

For the reason assigned the appeal will be dismissed.

Appeal dismissed.


author: Mr. Justice Dickey

text:
    Emily Parkhurst v. George A. Race et al.

      Filed at Ottawa November 10, 1881.

    1. Limitation—to writ of error—how presented. In the absence of a plea of the Statute of Limitations to a writ of error, or some other matter in the record showing that the suit brought by a minor comes too late, a suggestion in argument that the suit is not brought in time can not be considered.
    2. Allegations and decebe—must correspond. It is error for the court to find a fact not alleged in the pleadings of the parties, but stated directly the reverse, and against the entire evidence preserved in the record.
    3. So, where a party by his answer to an original bill, and in his cross-bill, alleges a redemption from a master’s sale on foreclosure, which fact is proven by the evidence in the case, it is error for the court to find in favor of such person that no redemption had been made, or attempted to be made, and invest him with the title to the premises as a purchaser of the certificate of the sale, and thereby deprive a minor heir of her title, which was saved by the redemption.
    4. Ohanceby—presumption m favor of a finding of facts. Where it appears that oral evidence was heard on the trial of a chancery suit, which is not preserved in the record, and the decree contains a recital of the facts proven, in the absence of anything in the record to the contrary it will be presumed that the findings and recitals in the decree were sustained by proofs not in the record; hut when such finding is directly contrary to the finding of this court previously had in the same case, and such fact is not alleged- in the pleadings, but is at variance with the pleading of the party relying upon such supposed facts, and it is proven in the ease not be true, such a presumption of course can not prevail.
    5. Redemption—effect upon title under the sale. No title can properly be deduced through a sale under a foreclosure of a mortgage, after that sale has been rendered inoperative by a redemption.
    Writ of Error to the City Court of Aurora; the Hon. Charles D. E. Smith, Judge, presiding.
    In 1855, Nahum Parkhurst and his son, Reuben Parkhurst, bought of one Ferris the tract of land, in the county of Kendall, to which this controversy relates, and it was conveyed to them jointly. They then executed a note and mortgage to Ferris for the sum of about $1000, being the purchase money, or a part thereof. In May, 1863, Reuben died, leaving a widow, Jannette, and an infant daughter, Emily, (who is the plaintiff in error in this case.) In December, 1863, a suit was brought in chancery for the foreclosure of this mortgage by one Amos Parkhurst, who was the assignee of this note and mortgage. Nahum Parkhurst, and the widow and minor heir of Reuben Parkhurst, were made defendants. In May, 1865, a decree of foreclosure was rendered in the circuit court of Kendall county, and the master in chancery sold the land under this decree on the 5th of August, 1865, to B. F. Phillips, for $1700. The master at once paid the mortgage debt and costs, and there remained a surplus of $609. Pending the suit for foreclosure, Nahum Parkhurst had, by quitclaim deed, conveyed to B. F. Phillips the undivided half of this land; and in May, 1866, under an order of court, this surplus was paid over, one-half to Phillips, and one-half to the widow of Reuben Parkhurst, who was also the guardian of the minor heir, Emily. The widow, by this time, by marriage, had become Jannette Earl.
    On the 2d of August, 1866, three days before the time for redemption from the master’s sale under the mortgage expired, Jannette Earl, (herself having right of dower in one undivided half of this land, and being the guardian of the infant, Emily, in whom was the fee thereof,) with money furnished by a friend, A. D. Titsworth, tendered to Phillips the amount of money necessary to redeem the land from the master’s sale. He refused to take the money, and thereupon, upon the same day, she deposited with the master who had made the sale, the full amount, as a redemption from that sale, and thereupon the master, on the same day, tendered this redemption money to Phillips, who again refused the same, On the 31st day of the same month Phillips assigned to Mrs. Mary F. Stout the certificate of purchase given to him at the master’s sale of August 5, 1865, and Mrs. Stout presented the same to the master, with the assignment of Phillips thereon, and demanded the money in his hands which had been deposited as redemption money by Mrs. Earl, the guardian of Emily, and the master paid the same over to her, taking her receipt for the same, being $1870. The master received the certificate of purchase, and delivered the same to Jannette Earl, who had paid the redemption money. On the 27th of September, 1866, Jannette sold the land to George A. Race for $2200, and she and Titsworth executed to Race a warranty deed for the same.
    • On May 10, 1867, this suit was begun by Mary E. Stout, in the circuit court of Kendall county, claiming to own one undivided half of this land, and asking for partition thereof. One George Race, and Emma Parkhurst, the minor heir of Reuben, deceased, and also Jannette Earl, (formerly Jannette Parkhurst, and the widow of Reuben Parkhurst, deceased,) who was guardian of her minor child, Emily, (called Emma in this petition,) and one A. D. Titsworth, who was also a guardian of this minor, were all made defendants, and served with process. In this bill no mention was made of the mortgage, or of the proceedings and sale made under the same, but it said that Race claimed to own one-half the land under a deed from Jannette and Titsworth to him.

      Race and the other defendants answered jointly, and among other things set up the mortgage and subsequent proceedings stated, and setting up a redemption from the master’s sale, made with money furnished by Titsworth to Jannette, who was the widow of Reuben, entitled to dower in the land, and was also guardian of the minor, Emily, and claiming that Mary Stout could not equitably have partition without refunding one-half of the money paid for redemption. The answer also stated that after paying the money to redeem the land, Jannette sold the land to Race, and she and Titsworth made a warranty deed, conveying the same to Race for $2200.
    The statements of Race and others in this answer, as to the fact of a redemption, were, that Titsworth furnished to Jannette Earl the money with which to make the redemption, and the same was paid over to Phillips, or to Mrs. Stout or to her husband, and that Jannette took up the certificate; that had not this been done, the title of Emily would have been extinguished; that Titsworth advanced “ the money to make the redemption with;” and that, after paying to redeem, Jannette sold the land to Race, and she and Titsworth made to Race a warranty deed for the same, and received from him the sum of $2200.
    The case was brought to issue, proofs taken, the venue was changed to the City Court of Aurora, where the cause was brought to a hearing, and a final decree rendered for a partition of the land, setting off one-half thereof to Mary E. Stout, the complainant. This decree was reversed in this court upon the ground that Mary F. Stout could not have partition equitably, except subject to an equitable lien of the guardian of Emily for the payment of one-half the redemption money, and the cause was remanded to the circuit court of Kendall county for further proceedings. (See Titsworth et al. v. Stout, 49 Ill. 78.)
    • When the case came again before the City Court of Aurora, Race, by leave, filed a cross-bill, not claiming to enforce from Mrs. Stout the payment of one-half of the redemption money, as suggested by this court, but claiming that he owned all the land, as an equitable assignee of the certificate of purchase given to Phillips at the sale under the mortgage. In that cross-bill, among other things, he says, “that before the time of redemption expired, Jannette, as stated in her answer, by raising money of A. D. Titsworth, as stated in the answer, paid master’s certificate of sale of property, ” and he asks that the facts set up in the answer “may be taken as part of this his bill.” This cross-bill was answered by Mary F. Stout, and also by Jannette, in April, 1871, by general denials.
    On April 13, 1871, a settlement of the controversy with Mrs. Stout was agreed upon by counsel for Titsworth and Race, with counsel for Mrs. Stout, and a stipulation signed and filed providing that Titsworth and Race should pay Mrs. Stout $750 for her interest in the premises, and should pay the unpaid costs in the suit, and that Mrs. Stout should convey all her interest in the property by quitclaim deed to Race, and that Race might take a decree on his cross-bill, holding Mrs. Stout harmless from costs. On the same day, the record shows that the cross-bill of Mrs. Earl, and her answer to the cross-bill of Race, and the answer of Mrs. Stout to the cross-bill of Race, were all withdrawn. The cross-bill of Race was taken for confessed as to all of the defendants thereto, except as against the minor, Emily Parkhurst. For her a guardian ad litem was appointed, and a formal answer for her was filed. On the next day the cause was heard, and then was made and entered the decree to reverse which this writ of- error is brought by Emily Parkhurst, now Emily Speer by marriage. That decree was as follows:
    “The above cause coming on to be heard by stipulation of record in vacation, and on motion of George A. Race the cross-bill of Jannette Earl is dismissed and stricken from the docket, and the answer of Jannette Earl, Mary F. Stout and Peter S. Stout to the cross-bill of complaint having been withdrawn, the said cross-bill of George A. Race is ordered to be taken as confessed against Jannette Earl, Abraham D. Titsworth, Mary E. Stout and Peter S. Stout. And it appearing to the court that Emily Parkhurst is a minor, A. B. Smith was appointed guardian ad litem for said Emily, and the answer of the guardian ad litem having been filed, this cause came on to be heard upon the bill, answer, replication, cross-bill of George A. Race, and answer; and the material allegations of the cross-bill of George A. Race having been established by proof heard in open court, and it also appearing, by agreement between complainants Mary F. Stout and George' A. Race, that George A. Race should have a decree against said complainant Mary F. Stout, and have a decree according to the prayer of his cross-bill of complaint ; and it further appearing to the court that Nahum Parkhurst and Reuben P. Parkhurst purchased the property of Hiram Ferris, as charged in the cross-bill of complaint, and had given hack a mortgage to secure the payment of the purchase money; that Amos T. Parkhurst purchased said mortgage of Ferris, and filed his bill of complaint to foreclose said mortgage in the Kendall county circuit court, making Nahum Parkhurst, Emily Parkhurst, Jannette Parkhurst, (now Jannette Earl,) parties defendant; that a decree of foreclosure in the usual form was had and obtained; that on the 5th day of August, 1865, the property was sold under said decree by the master in chancery of said court to Benjamin F. Phillips for $1700, and after paying the decree and all' the costs and interest thereon, there was remaining in the hands of the master in chancery the sum of $609.24; and it further appearing that Mary F. Stout had purchased all the right, title and interest of Nahum Parkhurst of, in and to said property, by order of court the said surplus arising from said master’s sale was equally divided between Mary F. Stout, of the one part, and Jannette Earl and Emily Parkhurst of the other part; and it further appearing that Benjamin F. Phillips had assigned said certificate of sale to Mary F. Stout; and it further appearing that on the 31st day of August, 1866, Jannette Earl and Abraham D. Tits-worth paid Mary F. Stout the sum of $1870, and she received the sum, and Jannette Earl and Abraham D. Titsworth became and were the equitable owners and holders of said certificate of purchase made and executed by said master in chancery, which certificate of the master in chancery is in the words and figures following, to-wit:
    “‘ State of Illinois, Kenclall County.

    “‘I, Joseph W. Helme, master in chancery in'and for the county of Kendall, in the State of Illinois, of the Kendall county circuit court, sitting in chancery in said State, do hereby certify that hy virtue and in pursuance of a decree of said court made and rendered at the special May term of said court, A. D. 1865, in a certain cause then therein pending, by bill in chancery to foreclose a mortgage, in which Amos T. Parkhurst was complainant, and Nahum Parkhurst, Jannette Parkhurst and Emily Parkhurst were defendants, I did, on the 5th day of August, 1865, at ten o’clock in the forenoon, at the north door of the old court house, in the town of Oswego, in said county, pursuant to notice thereof given as required in and by said decree, sell at public. auction to Benjamin F. Phillips, for the sum of $1700 cash in hand, the following described premises, real estate situated and being in the said county of Kendall and State of Illinois, to-wit: (Here follows description of land, same as described in petition). The said Benjamin F. Phillips being the highest and best bidder for the same, and said premises were then and there struck off and sold to the said Benjamin F. Phillips on his bid for the said sum of $1700, above mentioned.
    Joseph W. Helme, [Seal.]
    Dated August 5, 1865. Master in Chancery.''

      “ And said certificate of sale bears the following indorsements, to-wit:
    “‘State op Illinois, ) Kendall County. ) ss‘
    “‘This certificate was filed for record this 7th day of August, 1865, at three o’clock P. M., and duly recorded in book L of Deeds, page 425. A. M. Hobbs, Recorder.’
    “ ‘For a valuable consideration I assign the within certificate of sale to Mary F. Stout.
    Dated August 31, 1866. Benjamin F. Phillips.’
    “ ‘ Subscribed to and acknowledged before me this 31st day of August, 1866.
    [Notarial Seal.] Ed. A. Bbadley, N. P.’
    “ That it further appearing to the court that no person has redeemed from said sale, and the owners of said certificate are entitled to a deed under the same, conveying and assuring to the owners and holders thereof a perfect and complete title to said real estate in said certificate described, being the real estate in controversy in this suit; and it further appearing to the court that Jannette Earl and Abraham D. Tits-worth, after having acquired such equitable title to said master’s certificate, sold and conveyed all right, title and interest which they had therein to George A. Race, and that George A. Race is the equitable owner and holder of said master’s certificate, and is entitled to all the benefits arising and growing out of such ownership thereof; and it further appearing that no person has redeemed, or attempted 'to redeem, from said sale, and that the equitable owner and holder of said certificate is entitled to a deed thereon:
    “It is therefore ordered, adjudged and decreed, that the land in this decree mentioned and described aforesaid be the property of George A. Race, and that all right, title and interest of Jannette Earl, Mary F. Stout, Peter S. Stout and Emily Parkhurst, or either of them therein, be and is hereby declared to be ended and extinguished and determined, and they and each and every of them are perpetually enjoined and restrained from setting up or claiming any title thereto, and the master in chancery of this court is hereby appointed a special commissioner to make, execute, acknowledge and deliver to George A. Bace a deed of the premises in controversy, conveying and assigning to said George A. Bace all right, title and interest of the said defendants, and each of them, of, in and to the said premises, which deed so executed by said master in chancery shall have the same force, validity and effect as if the master in chancery of Kendall county had made a deed to the owners and holders of said certificate of sale after the time'of redemption had expired. It is further ordered that George A. Bace pay all costs of this proceeding.”
    The. proofs in the record at that time, showing a redemption had in part been made, were:
    First—The testimony of Jannette Earl, that “on the 2d or 3d of August, 1866, I went in company with A. D. Titsworth and tendered him” (Phillips) “the money due on the certificate of sale, $1870. He would not take it. I then went and deposited the money with Judge Helme, the master in chancery. ”
    Second—The testimony of Titsworth, saying: “I went with Mrs. Earl and saw Phillips. He would not take the money. It was August 2d or 3d, 1866. We then went and deposited the money with Judge Helme, the master in chancery. Mrs. Earl and I afterwards conveyed the property to Bace for $2200. The tender to Phillips was before the year had expired. ”
    Third—The assignment of the certificate of sale by Phillips to Mary F. Stout, dated August 31, 1866.
    Fourth—The official certificate of the master in chancery, that on August 2, 1866, he received of Mrs. Earl the sum of $1870, (as redemption from the sale in question,) and for the use of the holder of the certificate, and that on August 3, 1866, he went to Phillips, the purchaser, and tendered this redemption money to him, and that Phillips refused to receive the same, and that afterwards, on the 31st of August, 1866, Mary E. Stout presented to him the certificate of purchase duly assigned to her, and demanded and received the redemption money, and gave her receipt for the same. And lastly, the testimony of Peter Stout, the husband of Mary, saying that he “was present when she received the redemption money from the master, and counted the money for her. ” No proofs preserved in the record tend to contradict this testimony and evidence.
    Mr. Eugene Canfield, for the plaintiff in error:
    1. A minor is incapable of appearing in court as a defendant, by the uniform practice of our courts, save by a guardian ad litem, appointed by the court, and acting as its officer as well as for the infant. Peak v. Shasted, 21 Ill. 137; Hall et al. v. Davis, 44 id. 494; Kesler v. Penninger, 59 id. 134; Enos et al. v. Capps, 12 id. 255.
    The guardian ad litem can not waive any of the rights of the infant whom he represents, by answer or otherwise. Cartwright v. Wise et al. 14 Ill. 417; McClay et al. v. Norris, 4 Gilm. 370; Chaffin v. Kimball, 23 Ill. 36; Rhoads, Exr. v. Rhoads et al. 43 id. 239; Fischer v. Fischer, 54 id. 231; Turner et al v. Jenkins, 79 id. 228.
    And it is the duty of the court to see that all the rights of the infant are properly protected by the guardian ad litem. Peak v. Pricer, 21 Ill. 164; Rhoads v. Rhoads, 43 id. 239.
    2. The decree, though, should be reversed upon the merits. Mrs. Stout, in her' petition, had expressly set out that the plaintiff in error was the owner of an undivided half of the land, subject to the dower rights of her mother. The defendants, Jannette Earl, Race and Titsworth, had expressly admitted this in their answer, and set up the redemption by her guardian from the sale under the decree of foreclosure. These allegations had been proved, and this court had judicially determined that such were the facts and such the rights of the plaintiff in error. They ought not to have been permitted in any manner to allege or bring it about to the contrary.
    The plaintiff in error became of age about a year since, and brings this case to this court, within the time limited by the statute, on error.
    Mr. Charles Wheaton, for the defendant in error George A. Race:
    In the first place, it appears that Jannette Earl was the lawful guardian of plaintiff in error, and she appeared in the case in the Kendall circuit court, by her said guardian, and the guardian put in an answer for her. This was a sufficient appearance and answer, and just as good as though done by a guardian ad litem. The chapter of the statute concerning partition provides (Rev. Stat. 1874, chap. 106, sec. 4,) that infants may appear by guardian or conservator, or the court may appoint a guardian ad litem. So an appearance of am infant by her guardian, and an answer by that guardian, is as good as an appearance by a guardian ad litem. (See Peak v. Shasted, 21 Ill. 137; Herdman et al. v. Short, 18 id. 59.) Moreover, a legally appointed guardian has greater authority to bind the ward by his acts and agreements than a guardian ad litem. A guardian has power to bind his ward by submitting his rights to arbitration. Weed v. Ellis, 3 Caines, 253.
    Infants are as much bound as adults by the action of those who conduct their defence, provided their conduct is bonafide. 1 Daniell’s Chancery Practice, 123 (3d Am. ed.)
    An absolute decree is as binding against an infant as an adult, and can only be impeached for fraud or collusion. 1 Daniell’s Chancery Practice, 153.

      The decree finds that Race is the equitable owner and holder of the master’s certificate of purchase, and is entitled to all the benefits growing out of such ownership, and specifically recites in detail the facts in evidence. This is equivalent to a certificate of evidence being filed. Jones v. Nitty, 72 id. 449; Durham v. Mulkey, 59 id. 91; Martin et al. v. Hargardine, 46 Ill. 323; Kidder v. Sholtz, 36 Ill. 478; Croskey v. Northern Manufacturing Co. 48 id. 481.
    Where a decree finds facts from the evidence, and they are sufficient to sustain the decree, no other preservation of the evidence is necessary. The court will presume the finding correct, unless a certificate of evidence shows a different state of facts proven on the trial. Walker et al. v. Abt et al. 83 Ill. 226; Rhoads et al. v. Rhoads, 88 id. 139; Paris and Danville R. R. Co. v. Henderson, 89 id. 85.
   Mr. Justice Dickey

delivered the opinion of the Court:

It is objected by counsel for defendants in error that this writ of error comes too late. Counsel say, “nothing appears in the record to show at what time the plaintiff in error attained her majority, or that she has brought her suit to this court within the statutory period. For all that appears here, her claim is a stale one.” This question can not be raised on the record in this case by mere suggestion in the argument in the case. In the absence of a plea alleging a bar, or some other matter in the record showing that this writ comes- too late, we can not properly entertain the question.

When this case was at a former time before this court, on an appeal taken by Race and the other defendants to the original petition, it was said by Mr. Justice Laweence, speaking for the court: “The mother of Emily Parkhurst, having the right of dower in an undivided half of the premises, and being the guardian for Emily, redeemed the premises, within twelve months of the sale, by paying to the master the requisite' amount. The master tendered the money to Phillips, who refused to receive it, saying the matter was out of his hands, and a few days afterwards Mrs. Stout demanded and received the money, giving her receipt to the master. * * * The lien under the mortgage was thus cancelled. ” And upon this statement of the facts, this court then adjudged that “the mother of Emily Parkhurst, who redeemed, * * * has a valid claim against Mrs. Stout, which amounts to an equitable lien.on the land while in her hands; ” and held that the court “did err in not providing in its decree that complainant (Mrs. Stout) should take her allotment, subject to' the equitable lien of the guardian of Emily Parhhurst, for the payment of one-half the redemption money. ” The decree, on that ground, was reversed, and that this might be done, the case was remanded to the court, below.

When the mandate of this court was filed in the court below, instead of entering the decree suggested by this court, the court below, among other things, permitted Race to file a cross-bill. The controversy with Mrs. Stout was brought to an end by the purchase of her interest by Mrs. Earl and Race, for the benefit of Race. The subsequent proceedings concerned no one but Race and Emily Parkhurst. A hearing was had between them (she appearing only by a general answer by a guardian acl litem). The proofs supporting the truth of .the statement that a valid redemption from the master’s sale under the mortgage had been made within the twelve months succeeding the sale, and which were considered by this court, were at the time of this last hearing all in the record, and formed a part of the case, although the attention of the court may not have been called to them. They consisted of the direct testimony of Mrs. Earl, Mr. Titsworth, and the certificate of redemption by the master, and the testimony of the husband of Mrs. Stout that he was present when Mrs. Stout (to whom the certificate of purchase was assigned) accepted the redemption money from the master.

At the time of the hearing, also, there was nothing in the pleadings which could authorize the introduction of proof tending to show that no redemption was ever made. . Race had said, in substance, in his answer to Mrs. Stout’s original hill (which was a joint answer by him and Mrs. Bari and others), that a redemption from the master’s sale had been successfully made, so the title of Emily Parkhurst was saved from being extinguished by the sale. In his cross-bill, under which the last decree was made, there is no allegation that there was no redemption. On the contrary, he said in his cross-bill, “that before the time of redemption had expired, Jannette Earl, as stated in her answer” (which was the joint answer above mentioned), “by raising money of A. D. Tits-worth, as stated in the answer, paid for the master’s certificate of sale of the property, all of which facts are fully stated in the answer, which he asks may be taken as a part of this his bill. ” So it appears tharfc by the allegations of this cross-bill (taking the details in the answer as a part thereof), there was a redemption before the time of redemption expired.

It was, then, clearly an error in the court below to find and recite in this last decree that “no person has redeemed or attempted to redeem from said sale.” On that error the decree is based, which holds that the certificate of purchase having been bought, from Mrs. Stout by Mrs. Earl, and sold to Race, thereby Race became, in equity, entitled to a master’s deed, under the sale by the master under the decree of foreclosure of the mortgage.

It is true, that in the trial of a cause in chancery, where it appears that oral evidence was heard which is not preserved in the record, and where the decree contains a recital of the facts proven, this court, in the absence of any matter in the record to repel such a presumption, will presume that 'the findings and recitals of the decree were fully sustained by proof not preserved in the record. But where such recital is of a supposed fact directly contrary to the finding of this court previously had in the case, and of a supposed fact not alleged in the pleadings, but at variance with the pleading of the party relying upon such supposed fact, and is also overwhelmingly proven not to be a fact by proofs which are preserved in the record, such a presumption can not prevail. The property having been redeemed, the legal title remained in Emily Parkhurst. It is true, that it would seem to have been liable to an equitable lien, in favor of her guardian, for one-half of the money expended in making the redemption. It may be that by the subsequent purchase of Mrs. Stout’s interest, and the transactions between Mrs. Earl and Race, when she undertook to sell this land to him for money to repay Titsworth, and by reason of other money which may have been expended for her ward, some rights and equities passed to Eace, but they are not stated in his cross-bill; and it may be that by a proper cross-bill in this case such rights and equities may properly be enforced. But these questions are not before us, and need not be passed upon.

•It is exceedingly clear that the deed by Mrs. Earl to Eace did not divest the legal title of Emily to an undivided half of this land, and it is equally clear no title could properly be deduced through the sale under the mortgage after that sale had been rendered inoperative by redemption. If Eace has any equities or rights as against Emily, he has misconceived them in his cross-bill. This decree must be reversed. As Eace may have rights and equities which, under proper pleadings, might have been protected or enforced, the cause will be remanded, that he may be allowed, on proper terms, to present other and appropriate pleadings, if he so desires, and may have an opportunity to assert and sustain the same, as he shall be advised.

The decree is therefore reversed, and the cause remanded for further proceedings not inconsistent with the views herein expressed.

Decree reversed.

Scott, J., dissenting.