author: Mr. Justice Shope

text:
    Martin J. Ryan et al. v. Omar H. Allen.

      Filed at Ottawa May 12, 1887.

    1. • "Wrens—the words “heirs,” and “nearest heirs,” construed. Where the word “heir” or “heirs” is used in a will, and there is nothing in the context explaining or controlling its use, or showing a different intention on the part of the testator, it must be interpreted according to its strict and technical import; and hence it includes and designates-the persons upon whom the law would cast the inheritance in case of intestacy, whether they are few or man)'.
    2. The word “nearest,” like “next” or “first,” prefixed to the term “heir” or “heirs, ” without the use of other words of limitation on the devise to the heir, will not vary the effect of the devise. Therefore, a devise to the nearest heirs of a person is the same as a devise to his heirs generally.
    3. Same—rule in Shelley’s case—given, and applied. Where an ancestor, by any gift or conveyance, takes an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs, in fee or in tail, the words, “the heirs, ” are words of limitation of the estate, and not words of purchase, and the remainder is immediately executed in possession, in the ancestor so taking the freehold, and he takes the title in fee.
    4. The conditions which must concur in order to the operation of the rule in case of a devise, are: First, a freehold must be devised; second, the estate of freehold must be taken by the same instrument which contains the limitation to the heirs, and for this purpose a will and codicil will be deemed one instrument; and third, the interest devised to the ancestor, and limited to the heirs, must be of the same quality.
    5. In this case, the owner of the land devised it as follows: “I give and bequeath to my step-son, A, the use or rents accruing from my house, and one acre of land that the house stands upon, after his father’s decease, provided his father does not sell said property, which privilege I grant him, provided it is necessary for his maintenance.' After the said A’s decease, the said house and land is to go to his nearest heirs:” Held, that on the failure of the father to sell and dispose of the property in Ms life, A took the same in fee.
    6. Same—when the legal interest passes, on a devise of the use. A devise of the income for the use of the devisee, or of the rents and profits of land, is equivalent to a devise of the land itself, and will cany the legal as well as the beneficial interest therein.

      Writ of Error to the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Omar H. Allen, the defendant in error, entered into a written contract of sale with Martin J. Ryan and Michael J. Ryan, the plaintiffs in error, whereby Allen agreed to convey to the Ryans, in fee simple, clear of all incumbrances, that part of lot 4, of O. H. Allen’s subdivision of block 5, assessor’s subdivision of unsubdivided lands in the north-east quarter and the east half of the north-west quarter of section 6, township 39, north of range 13, east of the third principal meridian, lying north of a line running parallel with, and distant ninety-nine feet southerly from, the south line of North avenue, in Cook county, and in consideration, the Ryans agreed to pay Allen $450, as soon as Allen should convey to them “a good, clear and merchantable title” to the premises, and that the Ryans should take immediate possession, and pay the taxes. The Ryans went into possession under the contract, and have since occupied the same. Allen submitted to them an abstract of title, tendered or offered to make a deed, and demanded the purchase money. The Ryans refused to accept the deed and pay the money, because, as they contended, Allen had only a life estate in the premises, and therefore could not convey a good, clear and merchantable title in fee simple. Thereupon, Allen exhibited his bill in the Superior Court of Cook county, against the Ryans, for specific performance of the contract.
    It appears from the bill and its exhibits, that the premises in question were owned by Elizabeth H. S. Allen, step-mother of the complainant, now defendant in error; that Elizabeth died testate, leaving surviving, Nathan Allen, her husband, and Kate A. E. Johnson, a daughter by adoption, her only heirs-at-law; that the will and codicil of Elizabeth were duly probated in Cook county; that by the original will, the entire estate was devised to her husband, Nathan, for life, with full power of disposition, with remainder to her step-son, Omar, and her adopted daughter, Kate,—Omar to take the Du Page county property, and Kate the residue, except a certain five acres, which was to “go to my son Omar, as the DuPage property does; ” but that, by the codicil, testatrix gave to her step-son, Omar, “the use or rents accruing from my house, and one acre of land that the said house stands upon, after his father’s decease, provided his father does not sell said property, which privilege I grant him, provided it is necessary for his maintenance. After the said Omar H. Allen’s decease, the said house and land is to go to his nearest heirs,”— fully describing the parcel of land; that the lands described in the contract of sale are a part of the premises described in and devised to Omar in and by the codicil; that long after the death of the testatrix,' Kate A. E. Johnson conveyed all her interest in the premises to Omar; that afterwards, Nathan Allen, and his then wife, Martha, by their warranty deed, conveyed the same house and acre of land to Omar, reserving therein to the wife, Martha, a right of occupancy during her life, and this deed was placed in escrow, to be delivered on the death of Nathan; that afterwards, and upon Nathan’s death, the deed in escrow was delivered to Omar; that afterwards, the widow, Martha, by her deed, conveyed her interest in the premises to Omar. And the bill averred, that by virtue of the codicil and the subsequent conveyances, Omar became seized in fee of the premises described in the contract of sale, and prayed specific performance. The defendants, the Byans, interposed a demurrer to the bill, which was overruled, and a decree of specific performance rendered by the Superior Court.
    The assignment of error questions the decree of the 'court in finding and decreeing that Allen had an estate in fee simple in the lands described in the contract.

      Messrs. Abbott, Oliver & Showalter, for the plaintiffs in error:
    The decree is ineffectual to help the title. It can not be known, till the death of Omar Allen, who will be his heirs. Tie may survive all his children. “The remainder to said persons, ” whoever they may turn out to be, is a contingent remainder. As touching the same, no right, estate or interest yet exists in any person. Any decree rendered can not be pleaded by such heirs, for the reason that when made they have no interest to be affected by it.
    If an estate be given to A for life, with remainder to the heirs of B, A takes a life estate only, and neither B nor his “heirs,” in the strict sense of that word, take anything. But certain persons, namely, those who, under the law, will be ascertained as taking B’s landed property immediately at his death, take the remainder as purchasers, in case A survives B, for since no estate is given to B, the word “heirs” can not describe any estate in him.
    If a testator gives to A an estate for life, with remainder to A’s heirs, but using other words of qualification, showing that by the term “heirs,”, he meant those persons whom the law will identify, at the death of A; as the first takers from him in the line of heirship,—those persons who will take immediately on the death of A, and who, as distinguished from their successors, will stand “nearest” to A in time,—then A will take only a life estate, and said persons, as purchasers, will take a remainder in fee, or for life, according to the intent.
    Again, if a testator gives to A an estate for life, with remainder to his “nearest heirs,” the court, apart from our statute, and on common principles, would probably hold that the word “heirs” imputed an intent to give the inheritance. Unless the word “nearest” be rejected, there can be but one meaning, namely, persons who are to take as purchasers,— the sense of succession in heirship which lurks in the word “heirs, ” when used to designate persons, being expressly excluded when the qualifying word “nearest,” is added.
    By our statute, section 13 of the Conveyance act, the word “heirs” is not necessary to carry the inheritance in a deed or will. Hence, with us, an estate to A with remainder to his heirs, is one thing, while an estate to A with remainder to his “nearest heirs, ” is another.
    The devise is to Omar for life, and to persons in esse at his death. At the time of his decease the land was to go, etc. This shows the testatrix had it in mind to make said persons, and not Omar, the devisees of the remainder.
    Messrs. Horton & Hoyne, for the defendant in error:
    The word “first, ” “next, ” or “eldest, ” makes no difference in a devise. Fearne on Contingent Remainders, *179, 195; 1 Preston on Estates, 347.
    The rule in Shelley’s case is in force in this State. Baker v. Scott, 62 Ill. 86; Brislain v. Wilson, 63 id. 173; Beacroft v. Strawn, 67 id. 28; Butler v. Huestis, 68 id. 594; Riggin v. Love, 72 id. 553; Lynch v. Swayne, 83 id. 336; Belslay v. Engel, 107 id. 182.
    A decree against the first tenant in tail in esse, binds those in remainder or reversion, and those not in esse. Story’s Eq. Pl. secs. 144, 145.
   Mr. Justice Shope

delivered the opinion of the Court:

The premises described in the contract of sale, for the specific performance of which this bill is filed, are a part of the lands devised to appellee in the codicil of the will of Elizabeth H. S. Allen, his step-mother, and the material question arising, upon which it is necessary for this court to. express an opinion, is the construction and effect to be given to the following clause of the codicil: “I give and bequeath to my step-son, Omar H. Allen, the use or rents accruing from my house, and one acre of land that the said house stands upon, after his father’s decease, provided his father does not sell said property, which privilege I grant him, provided it is necessary for his maintenance. After the said Omar H. Allen’s decease, the said house and land is to go to his nearest heirs.”

4 devise of the income for the use of the devisee, or of the rents and profits of land, “is equivalent to a devise of the land itself, and will carry the legal as well as beneficial interest therein. ” (2 Jarman on Wills, 609, and eases cited.) An estate for life is here devised to Omar, with remainder over' to• “his nearest heirs,” and it is contended that the case is thereby brought within the rule in Shelley’s case. The rule announced in that case as part of the common law, has been in force in this State since its organization.- As originally expressed in the reported case, and also as formulated by Mr. Preston in his work on Estates, (vol. 1, p. 263,) the rule has frequently received the approval of this court, but preference is expressed for the statement of it found in the reported case, viz.: “That where the ancestor, by any gift or conveyance, taketh an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs, in fee or in tail, ‘the heirs’ are words of limitation of the estate, and not words of purchase. The remainder is immediately executed in possession, in the ancestor so taking the freehold.” 1 Coke’s Rep. 93 b; 1 Preston on Estates, 264; 4 Kent’s Com. *215; Baker v. Scott, 62 Ill. 86; Brislain v. Wilson, 63 id. 173; Beacroft v. Strawn, 67 id. 28.

The conditions which must concur in order to the operation of the rule in case of a devise, are: First, a freehold must be devised; second, the estate of freehold must be taken by the same instrument which contains the limitation to the heirs, and for this purpose a will and codicil will be deemed one instrument, (3 Jarman on Wills, 110;) and third, the interest devised to the ancestor, and limited to the heirs, must be of the same quality. (Baker v. Scott, supra.) Applying these principles to the devise under consideration, it is seen that every condition necessary to the operation of the rule is there fulfilled, unless the prefixing of the word “nearest” to the word “heirs” defeats its application. The rule is, that when the word “heir” or “heirs” is used in a will, and there is nothing in the context explaining or controlling its use, or showing a different intention on the part of the testator, it must be interpreted according to its strict and technical import. Thus construed, the word “heirs” includes and designates the persons upon whom the law would cast the inheritance in case of intestacy, and whether few or many, all are comprehended in the single word “heirs.” 2 Jarman on Wills, 61, note; Rawson et al. v. Rawson et al. 52 Ill. 66.

When there are a number of persons falling within the designation of “heirs,”—that is, having the right to take by inheritance from the ancestor,—although they may not take equally as to amount, the law furnishes no means of determining which one or more of the common class is or are “nearest” in the quality or right of inheritance. The word “nearest,” like “next” or “first, ” prefixed to the term “heirs” or “heir, ” without the use of other words of limitation on the devise to the heir, will'not vary the effect of the devise. The nearest heirs are all those persons upon whom the law would cast the inheritance in the first instance, upon the death of the ancestor intestate, and there can be no other heirs. Those who are heirs are.therefore necessarily nearest heirs, and, conversely, nearest heirs can be no other than heirs generally, and must include all those who stand in the same relation to the ancestor in respect of the right of inheritance. (Jar-man on Wills, 326, and citations.) So that in this case, no effect can be given to the word “nearest, ” as qualifying the term “heirs, ” by virtue of which operation has been given to the rule, or as showing an intention on the part of .the testator to use the term “heirs” or “nearest heirs,” as descriptive merely of some person or persons who should take the estate upon the decease of Omar H. Allen.

It follows, that Omar H. Allen took the fee to the laud subject to the estate and power reserved in Nathan Allen by the terms of the devise. And although, by the codicil, power was given to Nathan, the father of Omar, to sell the land in question, there is no pretence that he exercised the power by sale and conveyance of the premises, unless the deed left by him in escrow, and delivered to Omar after the death of said Nathan, was an execution of the power of sale. If it was a sale and conveyance within the power, Omar acquired title by virtue of the conveyance. But if, as is contended, the making of that deed was not within the power, and for that-reason void, then Omar’s interest and estate were unaffected thereby, and upon the death of his father all precedent estates and conditions, subject to which he took his estate, became extinguished.

We are therefore of opinion, appellee, Omar H. Allen, having title to the premises in fee, could convey such title as he contracted, and that a decree for specific performance was properly entered by the Superior Court.

Decree affirmed.

Mr. Chief Justice Scott, dissenting.


source: Caselaw Access Project

author: Mr. Justice Craig

license: Public Domain

text:
    Carrie E. Agnew et al. v. Harvey O. Perry.

      Filed at Ottawa May 12, 1887.

    1. Ejectment—plaintiff must show title or right. It is a familiar rule, that in an action of ejectment the plaintiff must recover on the strength of his own title, and not on the weakness of that of the defendant.
    2. So in order to recover a lot in a town laid out on certain parts of a section of land, the plaintiff must show that the lot is situate in some part of the section, to which he has title, or he must fail.

      3. Same—plea of the Statute of Limitations, as operating to relieve the plaintiff from showing title. The fact that a defendant in ejectment relies on the Statute of Limitations as a defence, will not, of itself, operate as a waiver of the requirement that the plaintiff must show title in order to recover.
    Writ oe Error to the Circuit Court of Ogle county; the Hon. William Brown, Judge, presiding.
    Messrs. Mayborne, Chumasero & Knight, for the plaintiffs in error.
    Mr. M. D. Hathaway, for the defendant in error.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action of ejectment, brought by plaintiffs in error in the circuit court of Ogle county, against Harvey O. Perry, to recover lot 6, block 5, in Rochelle. The parties, by agreement, waived a jury, and a trial was had before the' court, resulting in a judgment against the plaintiffs.

The plaintiffs claimed title to the lot in question as heirs-at-law of Maria Ross, who was a daughter and only heir of Sheldon Bartholomew, who died intestate in 1846, seized of two certain tracts of land, situated in Ogle county, described as the north-east and south-west quarters of the south-west quarter of section 24, town 40 north, range 1, east of the third principal meridian, of which the lot in question is claimed to be a part. The defendant interposed as a defence, on the trial in the circuit court, claim and color of title, made in good faith, with possession and payment of all taxes since 1857, under what is known as the Limitation act of 1839. For the purpose of bringing himself within the provisions of section 6 of our Statute of Limitations, which was originally know as section 8 of the act of 1839, defendant read in evidence a warranty deed for the lot in question, dated April 2, 1857, from Homer Morgan and wife, to Jacob Fesler. He then introduced evidence showing that Fesler entered into the actual possession of the lot about the time the deed was executed, and continued in possession, and paid all taxes assessed each year on the property, until the 13th day of March, 1876, when he conveyed, by warranty deed, to the defendant, who went into the possession of the property upon making the purchase, and occupied it, and paid all taxes from the date of his purchase down to the time the action was brought, on the 4th day of November, 1885. The plaintiffs, however, proved on the trial, that Maria Boss, in March, 1851, married Isaac Boss; that they resided together as husband and wife until 1871, when she died; that Boss lived until the year 1885; that several children were born while they resided together.

Under this evidence, it is claimed that Maria Boss was under the disability of coverture, and the Statute of Limitations did not run against her. It is also insisted, that after the death of Isaac Boss, who, it is said, had a life estate in the property, the heirs of Maria Boss might then have maintained an action to recover the property. Whether the title of the plaintiffs was barred by the Statute of Limitations, under the evidence introduced on the trial, is a question which we do not find it necessary to determine, as the case will have to be disposed of on other grounds. It is a familiar rule, in an action of ejectment, that the plaintiff must recover on the strength of his own title, and not on the weakness of that of the defendant.

The plaintiffs brought this action to recover a certain specified lot in the town of Rochelle, viz., lot 6, block 5. In order to recover, they were required to establish, by the evidence, title to the property. It will only be necessary to briefly refer to the evidence bearing upon this point, to show that in this regard they failed.

The plaintiffs read in evidence a patent from the United States to Sheldon Bartholomew, showing that he purchased, on March 1, 1848, the north-east and south-west quarters of the south-west quarter of section 24, town 40 north, range 1, east. It, was also proven that Bartholomew died in 1846, .intestate, leaving Maria Boss his only heir. This, of course, proved title to the two forty-acre tracts in her. The plaintiff also put in evidence a plat of the town of Lane, now Rochelle, as follows:

“State of Illinois, County of Ogle, )S’
“I, the undersigned county surveyor of the said county of Ogle, do hereby certify that I have surveyed the lots, blocks, streets and alleys composing the above plat of the town of Lane, in said county of Ogle, situated in a part of section 24, T. 40, N., R. 1, E., 3d P. M., to-wit, on the whole of the S. E. ¿ of S. W. £ of said Sec. 24, and 20 rods in width by 120 rods in length on the W. side of the S. E. ¿ of Sec. 24, and 40 rods in width by 80 rods in length on the S. side of 1ST. E. of S. W. of said section 24. The dimensions of the lots, blocks, streets and alleys are inserted in the plat in feet, and the bearings of the same are also inserted in the plat, and line stones, of the dimensions described in the plat, have been set in the ground at the corners described in the plat.
“Done at the request and under the directions of the owner, Lane. Survey made July 21, 1853. Given under my hand and seal, at Oregon, this 30th day of July, A. D. 1853.
(seal.) Charles W. Joiner,
County Surveyor of Ogle Co., Ill.”

The above instrument was duly acknowledged by Robert J. Lane, before a notary public, and recorded July 30, 1853. ■In connection with this document, which was put in evidence, C. D. Etnyre testified that the lot in question was in the original town of Lane,—that it was in section 24.

Lane, the proprietor of the town, and William T. Agnew, were witnesses on the trial, and gave evidence in regard to the Boss lands, but neither of them locates the lot in question in either of the forty-acre tracts entered by Bartholomew. Nor do we find any plat of the lots in the record showing upon what tract of land the town was laid out.

Thus the evidence before the court failed entirely to show that the plaintiffs ever owned the lot involved in this action. It is true that Maria Boss, under whom plaintiffs derived title, owned two forty-acre tracts in section 24, and the lot in question is in a town located in section 24; but whether the lot is on either one of the forty-acre tracts, or some other portion of section 24, the evidence fails to disclose. It is therefore plain that plaintiffs were not entitled to recover the lot described in the declaration, and the judgment for the defendant was the only proper judgment that the court could render, under the evidence. :

But it is said this question was not raised on the trial in the circuit court, and for that reason can not be relied upon here. As before observed, the cause was tried before the court, without a jury, and after the court had heard all the evidence, a judgment was rendered in favor of the defendant. Upon what ground the court based its judgment, the record does not disclose, and we have no means of knowing. That, however, is not a material question. The record does not show that the defendant waived any proof or dispensed with any proof which the law required the plaintiffs to make to establish a right of recovery,. and hence the plaintiffs were bound to introduce evidence sufficient to authorize a judgment in their favor, otherwise the court could do no less than render a judgment in favor of the defendant. The fact that the defendant relied upon the Statute of Limitations, did not deprive him of the right to interpose other defences to defeat a recovery.

Perceiving no error in the record, the judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    William Henschel v. Franz Mamero.

      Filed at Ottawa May 12, 1887.

    1. Fraud—release of mortgage—procured by fraud—set aside in equity. As a general principle, a release or discharge of a mortgage obtained through mistake or fraud, will, as between the parties, be held inoperative, and no defence to a foreclosure.
    2. So where the holder of a promissory note secured by a deed of trust on property, is induced to surrender the note and release the security upon the verbal agreement of the debtor that the creditor, his father-in-law, shall enjoy the rents, issues and profits of the mortgaged premises during his life, and have the property itself sold and the proceeds applied to his use, if required, which agreement is made by the debtor without any intention of performing the same, and who refuses such performance, a court of equity will set aside the release of the trust deed, and enforce payment of the rióte by a sale of the property.
    3. Where a party repudiates his agreement, which is the sole consideration for the release of a debt due from him, and a mortgage securing the same, a court of equity, in order to prevent a failure of justice, will treat the mortgage as still subsisting, and place the parties in the same position they were before the release.
    4. Trust—legal title acquired by fraud. Where a person acquires the legal title to land or other property by means of an intentionally false and fraudulent verbal promise to hold the same for a certain specified purpose,— as, for example, a promise to convey the property to a designated person, or to reconvey to the grantor, and the like,—a court of equity will fasten a trust upon the property itself, and follow it into the hands of the wrongful owner.
    5. Statute oe Frauds—as to a trust arising out of a fraudulent procurement of the release of a mortgage. Where the purchaser of property induces his vendor to release his mortgage on the same for the purchase money, by his false and fraudulent promise that the latter shall, during his life, have the rents, issues and profits thereof for his support, made with the intention not to perform the same, the Statute of Frauds will not apply, and whatever rights the vendee thereby acquires at law, will be held by him, in equity, in trust for the vendor.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. H. M. Shepabd, Judge, presiding.

      Mr. Thomas Shirley, for the appellant:
    Appellant never induced the appellee to release the trust deed. He executed such release on his own motion, to avoid the payment of a claim of Zipprich, and to prevent his wife from obtaining alimony.
    The agreement to hold the property in trust, if ever made, was void under the Statute of Frauds. If the agreement is good in part, it is good as a whole, and Henschel could jointly set up, by way of defence, that the verbal trusts gave a^p. estate to Mamero for life, with remainder to Henschel, and the latter should receive credit for the rents collected by Mamero, and the ten years he boarded him.
    Mr. Arnold Tripp, for the appellee:
    Courts of equity will interfere when the price paid is so inadequate as to afford decisive evidence of fraud or undue influence. 1 Story’s Eq. sec. 246; Underhill v. Harwood, 10 Ves. 209; Copes v. Middleton, 2 Mad. 556; McArter v. Engart, 13 Ill. 242.
    Fraudulent intent may be found from the acts of the purchaser after the sale. Brown v. Schuler, 41 Ill. 192.
    Here is presented not only a case where the price paid for the note is grossly inadequate, but also a case where the appellant has obtained a note of $3000, and gives nothing in return,—a total want of consideration,—and therefore a much stronger ease for equity intervention than where the question of gross inadequacy .of price is presented.
    The very fact that appellant failed to carry out his contract, and so soon after obtaining the note, openly declares the property to be his, and that he owes appellee nothing, and tells him to get out of his house, 'may well be taken as an attempt on the part of appellant to fraudulently appropriate the note to his own use, and that, when he obtained the note, he never intended to give appellee anything,' but to swindle him out of his property. Such a transaction, if allowed to stand, would be unconscionable and unjust.
    In the case of Frazier v. Miller, 16 Ill. 48, the complainant gave all his property to the defendant, on condition that the defendant would support complainant and his wife during life, the defendant giving bond to that effect, but afterward obtaining the bond from the complainant, he refused to carry out his contract, and maltreated the complainant and his wife. This court held that he might proceed in chancery to have the conveyance rescinded. See, also, Bard v. Bard, 59 Ill. 46; Rockafellow v. Newcomb, 57 id. 186; Jones v. Neeley, 72 id. 449.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Franz Mamero and wife, by deed bearing date February 28, 1874, conveyed to their son-in-law, William Henschel, a house and lot on Sedgwick street, Chicago, being the premises now in controversy. The consideration, as expressed in the deed, was $3000, though nothing in fact was paid. The day before the deed was recorded, to-wit, on the 2d of March, 1874, Henschel executed to Mamero his two promissory notes, one for $1000, and the other for $2000, and both payable three years after date, with interest at the rate of ten per cent per annum. These notes were secured by separate trust deeds on the premises, executed by Henschel and wife to Gustavus Troost, as trustee. By deeds of release, respectively bearing date February 24, 1877, and September 22, 1881, said trust deeds were released, and the deeds of release, on the day last named, were placed on record. On the same day there was filed for record a trust deed bearing date September 13,1881, executed by Henschel and wife, conveying the premises in question to Conrad Niehoff, to secure Henschel’s note to Mamero, of same date therewith, for the sum of $3000, due three years after date, with interest at six per cent per annum, payable half-yearly.

It was agreed at the time of this transaction, as it was-when the former notes and trust deeds were executed, that Harnero should have control of the property, collect rents, etc., until Henschel should pay the note last above mentioned, and that upon such payment the property was to be his. Nothing being paid upon the notes, Harnero continued to control the property, collect rents, etc., as he always had before, until in June, 1883, when, on the occasion of a difficulty between Harnero and one Zipprich, in respect to certain alterations and improvements which the latter had contracted to make in the house on the premises, and which Harnero andHenschel did not then want made, it was concluded, after consultation with counsel, that for the purpose of preventing the enforcement of Hamero’s improvident agreement with Zipprich, the note held by the former against Henschel should, be cancelled, the trust deed to Niehoff released, and that, thereafter Henschel should collect the rents, so that'he might appear the obsolute owner of the property. As an additional inducement to consummate this scheme, Hamero’s great age was pressed upon him as a reason why he should not have the care and responsibility of looking after the property, and-with a like purpose he was assured that the rents, after payment of taxes, etc., should be paid over to him during life, and, if necessary, the property itself should be applied to his support whenever he requested it. On his death, however, the property, or whatever was left of it, was to go to Henschel. This agreement, which was at once carried into effect, was thought about, in a large degree, by the active cooperation ■of Henschel. The note was cancelled and the trust deed released without Hamero’s receiving a cent from Henschel, or any one else. All he received was Henschel’s hollow verbal promises, which he now repudiates. At the time of this last transaction Harnero was seventy or seventy-one years of age, and it may well be presumed that his advanced age had much to do with his entering into so unwise and improvident an arrangement, which stripped him of the means of support, and placed him at the mercy of one who has proved faithless to the trust reposed in him.

Some time' before the filing of the present bill, Henschel commenced threatening to sell the property and go to Europe, and proposed taking Mamero along with him. The latter declined to go, and Henschel then told him he (Henschel) should keep the property, and ordered Mamero to leave his house, which he did, and shortly thereafter filed in the Superior Court of Cook county the present bill, praying that the original deed from Mamero to Henschel be so reformed as to conform to the intentions of the parties, but in the event that, could not be done, the release of the 22d of September, 1881, be set aside, and that the deed of trust to Niehoff be foreclosed, etc. The Superior Court, on the hearing, entered a decree dismissing the bill, which, on Mamero’s appeal, was reversed by the Appellate Court for the First District, and the cause was remanded, with directions to the Superior Court-“to enter a decree setting aside the cancellation of said note and vacating the release of the deed of trust, and for a foreclosure of the deed of trust, and for a sale of the mortgaged premises for the amount appearing to be due on said note. ”■

The question to be determined here is, whether the judgment and order of the Appellate Court are warranted by the facts appearing in the record, and which are, in brief, as above stated. This question must be answered in the affirmative. To solve it otherwise would be to hold that equity is powerless to prevent the consummation of a palpable fraud, resulting in the grossest injustice. That appellee had a valid mortgage on the property in question for $3000 or more, on the 22d of September, .1881, that he was induced to release the mortgage and cancel the evidence of the debt by appellant’s express agreement that appellee should enjoy the rents, issues and profits of the premises during his life, and that he should even have the property itself sold and the proceeds applied to his own use, if he required it, is clearly shown by the decided weight of the evidence. We are also of opinion tljat the facts and circumstances shown fairly justify the inference that the promises and assurances made by Henschel to Mamero, in respect to the property, were so made without any intention of performing them, and this being so, the Statute of Frauds clearly has no application to the case. In addition to all this, it is evident, from the transactions between the parties, that appellee never intended to part with the use and enjoyment of the premises during his life without being paid the amount of his mortgage, and his mortgage was released upon this express understanding. Having repudiated his agreement, the only consideration for the release, why may not equity, for the purpose of preventing a failure of justice, treat the mortgage as still existing, and thus place the parties in the same position as they were before the transaction occurred? It is said in 4 Wait’s Actions and Defences, page 548: “Equity will keep an incumbrance alive, or consider it extinguished’, as will best serve the ends of justice and the actual, just intent of the parties,”—citing Goulding v. Bunster, 9 Wis. 513; Champney v. Cooper., 32 N. Y. 543.

This well recognized principle of equity finds illustration in many well considered cases, under a great variety of circumstances. Thus, in Hale v. Morgan, 68 Ill. 244, where the holder of the mortgage, through his agent, had delivered a release thereof to the assignee of the equity of redemption, on the verbal promise of the latter that he would pay the balance due on the mortgage in a short time, and afterwards refused to do so, it was held, the mortgage might be foreclosed notwithstanding the release. Indeed, it is a general principle that a release or discharge of a mortgage obtained through mistake or fraud, will, as between the parties, be held inoperative, and no defence to its foreclosure. 2 Jones on Mortgages, sec. 966.

Closely allied to this principle is the one upon which courts of equity act in treating the holder of the legal title to property wrongly obtained, as a mere trustee of the rightful owner. Thus it is said in 2 Pomeroy’s Equity, sec. 1055 : “A second well settled and even common form of trusts ex malificio, occurs whenever a person acquires the legal title to land or other property by means of an intentionally false and fraudulent verbal promise to hold the same for a certain specified purpose, as, for example, a promise to convey the land to a designated person, or to reconvey it to the grantor, and the like. ” In all such cases, equity fastens a trust upon the property itself, and follows it into the hands of the wrongful owner.

Looking at the subsequent conduct of the appellant, there is but little doubt that his promises to appellee, by which the latter was induced to cancel the note and release the trust deed, were made with .the intention of never performing them. If so, whatever property rights he thereby acquired at law, were held by him, in equity, in trust for appellee.

Without prolonging the discussion, suffice it to say, we are fully satisfied with the conclusion reached in this case by the Appellate Court, as well as the grounds upon which it is rested. The view we have taken of it is sustained, with more or less directness, by the following cases: Frazier v. Miller, 16 Ill. 48; Rockafellow v. Newcomb, 57 id. 186; Oard v. Oard, 59 id. 46; Jones v. Neely, 72 id. 449.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Chief Justice Scott

text:
    The Chicago and Eastern Illinois Railroad Company v. The People, for use of Frederick Tilton.

      Filed at Springfield May 12, 1887.

    1. Railroads—excess of speed in a city, in violation of ordinance— conditions to a recovery of the penalty—frightening horses, without actual collision. Where a railway train is run within a city at a speed in excess of that allowed by ordinance, whereby the horses of a person about to cross the railway track are frightened, and his carriage is upset, and he is injured in person and property, the company operating such train will become liable to the party ko aggrieved, for the penalty provided for in section 62 of the act relating to railroads, although the train may not have struck such party or his horses or carriage.
    2. In an action to recover of a railway company the penalty given by section 62 of the Railroad act, it is not necessary for the plaintiff to show that he was injured by actual collision with the train running at a greater speed than allowed by law. It is sufficient for a recovery, to show that the train was run faster than it was allowed by ordinance, and that in consequence thereof he was aggrieved, by the frightening of his. team.
    3. Same—former decision, distinguished. In such a case, the penalty is given for the violation of the statute, and the action is not brought to recover for “damages done tó the person or property” by a “locomotive engine or car,” and hence the case of Schertz v. Indianapolis, Bloomington and Western Railway Go. 107 111. 577, which was brought to recover for an injury to stock under the statute requiring the road to be fenced, has no application.
    4. Practice— objection to evidence—when the specific objection must be made. On the trial of a case, a city ordinance admitted in evidence was objected to, generally. On appeal to this court, it was urged that there was • no proof that it was ever published, or that it was an ordinance of the city: Meld, that the specific objections came too late.
    5. Error will not always reverse—as to instructions. An instruction which contains nothing prejudicial to the defence interposed, or calculated to mislead the jury, although it may not be strictly accurate in some of its expressions, will not require a reversal.
    Writ of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Vermilion county; the Hon. James F. Hughes, Judge, presiding.

      Mr. William Armstrong, for the plaintiff in error:
    This action was brought under section 87, chapter 114, of the Revised Statutes of 1885. Under that section the action does not lie, for the reason no injury is shown by actual collision or contact with any train, locomotive engine or car. The statute is penal, and should be strictly construed. This court has held, in respect to section 62 of the same chapter, relating to fencing, and which is almost identical with this section, that no recovery could be had for frightening an animal. Schertz v. Railway Co. 107 Ill. 577; Railroad Co. v. Haskell, 10 Ind. 409; Lafferty v. Railroad Co. 44 Mo. 291.
    The accident was not the result of the speed of títé train, but was attributable to Tilton’s negligence, and therefore no recovery can be had. Railroad Co. v. Hetherington, 82 Ill. 516; Railway Co. v. Hatch, 79 id. 137.
    There was no proof that the ordinance was ever published, or that it was an ordinance of the city. Proof was necessary that it was in force at the time of the injury. Railroad Co. v. Engle, 76 Ill. 317.
    Mr. H. M. Steely, and Mr. F. Bookwalter, for the defendant in error:
    It is gross negligence on the part of a railroad company to run its trains through a town at a rate of speed prohibited by law. Railroad Co. v. Becker, 84 Ill. 483; Railroad Co. v. Engle, id. 397; Railroad Co. v. Stumps, 69 id. 409; Railroad Co. v. Lee, 87 id. 454; Railroad Co. v. Henks, 91 id. 406; Railway Co. v. Zoffinger, 107 id. 199; Railroad Co. v. Peyton, 76 id. 340; Railroad Co. v. Deacon, 63 id. 91.
    It was the duty of appellant to cause a bell to be rung or a whistle sounded continuously as they approached the crossing. (See sec. 68, chap. 114, Rev. Stat. 1885.) If this contributed to the injury of appellee, or by its use might have prevented it, the company is liable. Railway Co. v. Jones, 76 Ill. 311;
      Railroad Co. v. Benton, 69 id. 174; Railroad Co. v. Siltman, 88 id. 529; Railroad Co. v. Modglin, 85 id. 481.
    It was negligence in appellant to suffer the hedge to grow upon its right of way, obstructing the view of approaching trains. Railroad Co. v. Hillmer, 72 Ill. 235; Railroad Co. v. Smith, 78 id. 112; Dimick v. Railway Co. 80 id. 338; Railroad Co. v. Siltman, 88 id. 529; Railroad Co. v. Payne, 59 id. 541.
    Witnesses for appellant being employes, all stand in the position of persons more or less accountable for the injury, and the jury are justified in giving their testimony less weight than that of others. Railroad Co. v. Triplett, 38 Ill. 484; Railroad Co. v. Cauffman, 38 id. 427.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

This action was brought in the name of the People of the State of Illinois, for the use of Frederick Tilton, against the Chicago and Eastern Illinois Railroad Company, to recover a penalty imposed by the act of 1877, amendatory of section 62, of chapter 114, of the Revised Statutes of 1874. On the trial in the circuit court, plaintiff recovered a judgment for $100, which was affirmed in the Appellate Court for the Third District, and defendant brings the ease to this court on error.

Concerning some of the facts, no controversy existed at the trial, and all controverted facts, of course, have been settled by the verdict, and judgment of the Appellate Court. It seems the party for whose use this suit was brought, was about to pass over defendant’s road at a point where the track crosses a street in the city of Hoopeston, and just as he was about to drive upon the track, a train came along, which frightened his horses so much that they turned around suddenly and upset the carriage, causing injury to him, and his daughter that was in the carriage with him, and perhaps doing some damage to his carriage and horses. An ordinance of the city was given in evidence, limiting the speed of trains to a rate not exceeding six miles an hour within the corporate limits, except in the case of passenger trains, providing they might he run at a rate not exceeding ten miles an hour. An objection taken to the admission of this ordinance in evidence will be noticed further on. It is alleged the train was being run at a greater rate of speed than was lawful under the ordinance, and as the evidence as to that fact is contradictory in the extreme, it will be understood it was found it was running at an unlawful rate of speed, and in the further consideration of the case that fact will be taken as fully proved, as alleged.

The section of the statute under which this suit was brought is as follows: “Whenever any railroad corporation, by itself or agents, run any train, locomotive engine or car at a greater rate of speed, in or through the incorporated limits of any city, town or village, than is permitted by any ordinance of such city, town or village, such corporation shall be liable to the person aggrieved, for all damages done the person or property by such train, locomotive engine or car, and the same shall be presumed to have been done by the negligence of the said corporation or their agents; and in addition to such penalties as may be .provided by such city, town or village, the person aggrieved by the violation of any provision of this section, shall have an action against such corporation so violating any of the provisions, to recover a penalty of not less than $100 nor more than $200, to be recovered in any court of competent jurisdiction.”

The point is made, there can be no recovery, because no damage was done either to the person of the party or his property, by any “train, locomotive engine or ear” of defendant,— that is, there was no actual collision. The case of Schertz v. Indianapolis, Bloomington and Western Railway Co. 107 Ill. 577, is cited in support of the position taken. That case holds, when the fences the statute requires shall be erected are not made as therein required, or when such fences are not kept in good repair, such' corporation is not liable for damage done to stock unless the injury is caused by actual collision or contact with the engine or cars. But the principle of that case can have no application to the case being considered. This suit was not brought to recover for “damages done to the person or property by such train, locomotive engine or car.” It was brought to recover the penalty imposed for the “violation of any provision of this section” of the statute. The defendant has treated the ease as one strictly to recover a penalty, otherwise this court would have no jurisdiction to hear and determine its appeal, as the sum involved is less than $1000. No claim is made for any damage done either to the person or property of the party for whose use the suit was brought. It is simply to recaver the penalty imposed in favor of the party aggrieved, by a violation of a provision of this section of the statute. One provision restricted the speed of trains to a rate not exceeding that provided by ordinance of any city, town or village. The evidence tends to show defendant’s train was run at a rate of speed greater than was allowable by the city ordinance in evidence, and that fact must be taken as established. The evidence also tends to show the beneficiary plaintiff was “aggrieved” by the wrongful conduct of defendant, and assuming that to be true, as must be done, the case shows a clear and palpable violation of one provision of the statute, for which an action is given.

Plaintiff offered in evidence chapter 18 of the ordinances of the city of Hoopeston, relating to railroads and railroad trains, and read, against the objection of defendant, so much as related to the speed of trains within the corporate limits. The objection taken at the trial was simply a general one. No specific objection was pointed out. It is now insisted there is no proof the ordinance was ever published, or that it was an ordinance of the city of Hoopeston. Had these specific objections been made at the trial, no doubt the proof might have been made fuller, if any necessity existed for doing so. It is now too late to insist upon such minor objections not made in the trial court. The case of Doyle v. Village of Bradford, 90 Ill. 416, is conclusive on this branch of the case.

The criticism made upon the instruction given for plaintiff is founded upon a misapprehension of the meaning. It does not assume the existence of certain facts, as counsel seem to suppose. Conceding, as may be done, the instruction is not strictly accurate in some of its expressions, still it contained nothing that could prejudice the defence defendant was endeavoring to make, or that was calculated to mislead the jury on the true issues involved.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Sheldon

text:
    The First National Bank of Las Vegas v. George Oberne et al.

      Filed at Ottawa May 15, 1886.

    1. Agency—repudiating act of agent beyond his authority, the principal receiving and retaining the benefits. A party can not be allowed to repudiate a contract made in his name by an assumed agent, on the ground of a want of authority in the agent to make it, without restoring the money received by him under the contract, as the result of the agent’s act.
    2. An agent authorized to check out of bank, moneys - deposited to the credit of his principals, made a loan of $1000 of his principals’ money without authority, and took a note for the same, which he, also without authority, transferred to the bank, and guaranteed its payment in his principals’ name, by him, as agent, and deposited in bank the proceeds of the discount. The agent afterward checked out the entire sum so deposited, on checks drawn in his principals’ name, of which $560 was shown to have been checked out in payment for goods purchased by him for his principals, which they received: Held, in an action by the bank against the principals, upon the guaranty, in which the execution of the guaranty was denied under oath, that the defendants were liable to the extent of $560, they having received that much of the sum realized, by the unauthorized act of their agent, and retained the same, but were not liable for the residue.

      Appeal from the Appellate Court for the First District;—■ heard in that court on appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.
    Messrs. Peckham & Brown, for the appellant:
    In consequence of the indorsement and guaranty of the note, by Davis, as agent of Oberne, Hosick & Co., $1000 was placed to their credit by appellant. This entire sum was drawn out of the plaintiff bank, on checks signed “Oberne, Hosick & Co., by Davis, ” and it has never been returned or accounted for in any manner, by the defendants, or for them.
    The plaintiff bank was justified in paying out Oberne, Ho-sick & Co.’s money on checks signed by “Oberne, Hosick & Co., by Thomas Davis, ” as they were authorized and expected by the defendants to do this, and, in fact, Davis had authority ■ to draw checks.
    Appellees can not be permitted to repudiate a contract on the ground of want of authority in the acting “agent,” without restoring or offering to restore the money which they received under and by virtue of the contract, and as the result or fruit of the act of such agent. Harding v. Parshall, 56 Ill. 219.
    Mr. Henry V. Freeman, for the appellees:
    Davis was a special agent of the appellees, and could not bind his principals, except strictly within his authority. Rossiter v. Rossiter, 8 Wend. 498; Banorgee v. Hovey, 5 Mass. 36; Rawson v. Curtiss, 19 Ill. 477; 1 Parsons on Contracts, 40-42, 44, 46.
    Davis had no power to bind appellees, by indorsement or guaranty. Tappan v. Savings Bank, 127 Mass. 109; Robinson v. Yarrow, 7 Taunt. 455; Paige v. Stone, 10 Metc. 160; Swetzer v. Wilvers, 24 Kan. 384; Iron Mine v. Citizens’ Bank, 44 Mich. 344; Parsons on Mercantile Law, 143.
    Authority to sue (had it been given) does not include authority to make a principal liable by indorsement, much less by guaranty. 1 Parsons on Contracts, 62; Bradlee v. Savings Bank, 127 Mass. 109.
    The transfer of the note, with its indorsement or guaranty, was not, therefore, the act of appellees. They have never ratified the transaction in any way, either expressly or by implication. These two points, involving mixed questions of law and fact, are sustained by the evidence and the law, as stated in the following authorities: Rossiter v. Rossiter, 8 Wend. 498; Iron Mine v. Citizens’ Bank, 44 Mich. 348; Freeman v. Rosher, 66 Eng. Com. L. R. 785; Lewis v. Read, 13 M. & W. 834; Owens v. Hull, 9 Pet. 629; Reynolds v. Ferre, 86 Ill. 576.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action brought by the First National Bank of Las Vegas, against George Oberne and Henry M. Hosick, upon the following guaranty of a promissory note, viz.:

■“$1000. Las Vegas, N. Mexico, Oct. 15, 1882.
“Six months after date, I promise to pay to the order of Oberne, Hosick & Co., $1000, at Las Vegas, New Mexico, at the rate of one per cent per month, from date, till paid. Value received. Edwin A. Prentice.
“Pay to First National Bank Las Vegas, or order.
“For and in consideration of the sum of ten cents, the receipt whereof is hereby acknowledged, ive hereby guarantee the payment of the within note, waiving demand and notice of non-payment and protest, and agree to pay all costs and expenses paid or incurred in collecting same.
Oberne, Hosick & Co.
By Thomas Davis.”

The declaration contained also the common counts. The Issue formed under the plea of the general issue, verified by affidavit, was tried by the court without a jury, and found for the defendants, and after overruling a motion for a new trial, judgment was entered accordingly, which was -affirmed on appeal to the Appellate Court for the First District, and the plaintiff appealed to this court.

Oberne, Hosick &■ Go., the defendants, were a firm in Chicago, dealing in wool, hides and pelts, etc., who bought them at various places, Las Vegas among others, had them shipped to Chicago, and sold them there. Thomas Davis was their agent at Las Vegas. The course of business was for Davis, when he made a purchase, or anticipated making one, to draw drafts on Oberne, Hosick & Co., the amounts of which were placed to their credit in open account, on the books of the bank, and were checked against by Davis, who signed the firm name of Oberne, Hosick & Co. to the checks, by Thomas Davis. On October 23, 1882, the account of Oberne, Hosick & Co. was overdrawn $16.45. On that day, Davis applied to the bank for it to purchase the note in question. The cashier wrote on the back of the note the indorsement and guaranty which appear, and Davis signed the name of the firm, by himself, thereunder. The note was then taken by the bank,, and the amount of it placed to the credit of Oberne, Hosick & Go., on the books of the bank. This amount, between October 23, and November 20 following, was all checked out by Davis, upon checks signed “Oberne, Hosick & Go., per Thomas Davis.” There were no other credits in the account of Oberne, Hosick & Co., during that period from October 23 to November 20, or until December 1, 1882. Two of the checks thus drawn,—one on October 24, the other on October 26,—for the respective sums of $500 and $60.27, were given to Weil & Graaf for hides and pelts bought of them by Thomas Davis, as agent of Oberne, Hosick & Co. The note of Prentice appears to have been given for a loan of money to him by Davis.

The foregoing facts are undisputed, and upon them we are of opinion there was a right of recovery, at least to the extent of $560.27,—the amount of the proceeds of the note whiclp was paid to Weil & Graaf. Admitting that there was no authority in Davis to bind Oberne, Hosick & Co. by the indorsement and guaranty of the note, yet it appears, that in consequence of such indorsement and guaranty there was placed to their credit, on the books of the bank, the proceeds of the note,—$1000,—and that $560.27 of such proceeds was actually paid out by the bank to Weil & Graaf upon checks given by the defendants, by their agent, in payment for hides and pelts bought of Weil & Graaf by the defendants, so that defendants actually got that much of the proceeds for the guaranteed note. Now they can not be permitted to repudiate a contract made in their name by an assumed agent, on the ground of a want of authority in the agent to make it, without restoring the money received by them under the contract, and as the result of the agent’s act. (See Harding v. Parshall, 56 Ill. 219.) It was for the consideration of the supposed guaranty by defendants, of the note, that the bank paid over to them the money, and manifestly the bank should have either one or the other,—the consideration or the money; and if defendants deny the consideration to the bank, they should repay to it the money they have received.

It is urged by appellant, that as Davis was authorized to give checks upon the bank in the name of Oberne, Hosick & Go., and as the entire proceeds of the note were drawn out on checks thus given, the whole amount should be taken as received by the defendants, or that the bank had the right to consider it as so received. Though the checks were drawn in the name of Oberne, Hosick & Co., by Thomas Davis, they might have been so drawn wrongfully, and the money not have gone to the use of defendants, in the same manner as the transaction of the note was without authority. And it was only funds in the bank, of Oberne, Hosick & Co., that Davis was authorized to check upon, and the proceeds of the note were not their funds if they repudiated the transfer and guaranty of the note.

Otherwise than as to the amount shown to have actually gone to the use of defendants, in payment for goods purchased by them, viz., $560.27, we can not say the judgment was wrong.

The judgments of the Appellate and circuit courts are reversed, and the cause remanded to the circuit court.

Judgment reversed.

Mr. Justice Mulkey : I do not concur in this opinion.


text:
    Ferdinand Setzke v. William Setzke et al.

      Filed at Ottawa May 12, 1887.

    1. New triad in ejectment—condition to new trial under the statute. The right of a party to a new trial in ejectment, under the statute, depends-upon his payment of all the costs.
    2. Same—vacating order for new trial at a subsequent term. An order granting a new trial in ejectment, under the statute, upon the payment of the costs, is interlocutory, and not final; and when the costs are not paid within the year, the court may, at a succeeding term, vacate such order and strike the case from the docket.
    . 3. Same—evidence of non-payment of costs. On a motion to vacate an order for a new trial in ejectment, granted under the statute, for the failure of the party to pay the costs, no other evidence on the question is necessary than the records of the court.
    Appeal from the Circuit Court of Cook county; the Hon. John Gr. Rogers, Judge, presiding.
    Mr. Andrew Enzenbaoher, for the appellant:
    Is ivas error to set aside the order granting a new trial without any evidence presented by affidavit, or otherwise.
    The court had no power at the September term, 1886, to set aside the order of the June term, 1885. Setting aside such order was practically the rendition of a new judgment. When a new trial is granted, the whole proceeding up to that time is wiped out, and the parties stand as if no trial was ever had. Edwards v. Edwards, 22 Ill. 122.
    Messrs. Pinckney & Tatge, for the appellees:
    The statute makes the payment of all costs a condition precedent to a new trial. Rev. Stat. chap. 45, see. 35; Emmons v. Bishiop, 14 Ill. 153; Goodhue v. Baker, 22 id. 264; Oetgen v. Ross, 36 id. 339; Pugh v. Reat, 107 id. 442.
    The court had no power to set aside the judgment until the costs were paid. Oetgen v. Ross, 36 id. 339.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action of ejectment, brought by appellees, in the circuit court of Cook county, against appellant, to recover certain premises in Chicago. On the 19th day of June, 1885, the parties, by agreement, waived a jury, and a trial was had before the court, resulting in a judgment in favor of the plaintiffs. On the day the judgment was rendered, the defendant entered a motion for a new trial, under the statute, and it is fair to presume, from what subsequently appeared, that the court allowed a new trial, but the record does not affirmatively show that fact. On September 25, 1886, on proper notice, a motion was entered to vacate an order entered on the 19th day of June, 1885, granting a new trial, under the statute. On the hearing of this motion, the defendant offered to pay the costs, which would entitle him to a new trial if paid within one year from the rendition of the judgment, but the court disregarded the offer, and entered an order vacating the order of June 19, 1885, granting a new trial. To reverse this last order appellant appealed.

The provision of the statute, under which a new trial may be granted in an action of ejectment, is as follows: “At any time within one year after a judgment, either upon default or verdiet, in the action of ejectment, the party against whom it is rendered, his heirs or assigns, upon the payment of all costs recovered therein, shall be entitled to have the judgment vacated and a new trial granted in the cause. ”, Eev. Stat. chap. 45, sec. 35.

It is manifest that in no case is a party entitled to a new trial in an action of ejectment, under the statute, unless he has first complied with the conditions precedent therein named. (Emmons v. Bishop, 14 Ill. 153.) Here was a motion made for a new trial, and an order granting it; but the order so made was interlocutory, merely, and conditional, that the costs would all be paid within one year from the rendition of the judgment. This was not done, and the court finding the case on the docket after the expiration of the time allowed “for the payment of the costs, and no payment having been made, possessed undoubted authority to strike the case from the docket, and vacate the interlocutory order previously made in the cause.

The suggestion that the order of September 25,1886, was, in effect, rendering a new judgment in the cause at a subsequent term of court, is predicated on the supposed fact that the judgment ordering a new trial was a final and conclusive-judgment, which is not the case, and hence the argument is not tenable.

It is also insisted, that the judgment is erroneous because the court heard no evidence whatever bearing on the question. The records of the court, which showed every material fact necessary to pass on the motion, were before the court, and no other- evidence was necessary or required.

As the costs were not paid, or offered to be paid, within the time required by the statute, the order granting a new trial was properly vacated, and the judgment will be affirmed.

Judgment affirmed. ;