text:
    The St. Louis Bridge Company v. Edward P. Curtis et al.

      Filed at Mt. Vernon June 21, 1882.

      1. Description— of property conveyed by deed. It is a rule of uniform application that to pass a thing granted it must be embraced in a general or specific description, and the description must be such as to distinguish it from all other things. The property may be identified by extraneous evidence, but the description in the grant can not be enlarged or restricted by such evidence. Where there is a general and a specific description, the latter must control.
    2. Effect must be given to a deed according to the intention of the parties, as ascertained from the language they have used; but it is a well established rule of construction that when the description of the property intended to be conveyed includes several particulars, all of which are necessary to ascertain the land to be conveyed, no land will pass except such as will agree with the description in every particular.
    3. Thus, where a deed describes the premises conveyed as a certain bridge, by its name, then in course of construction, together with the approaches thereto on both sides of the river, and being a strip fifty feet in width, describing such strip, together with all franchises and privileges held by the grantor company by its charter, the grant will be confined to the bridge itself, the approaches thereto, and the company’s franchises and privileges, and all other property owned by the grantor will be excluded, and will not pass.
    4. A deed of trust by a bridge company described the property conveyed as the bridge named, “and also all and singular such pieces or parcels of land occupied by the railway track, culverts, bridges, trestles and other structures thereon, of such bridge company, as now are or hereafter shall be acquired by said party of the first part, for the purpose of laying thereon railway tracks, to connect or make junction between the railway tracks on said bridge and the railway track or tracks of any other corporation or corporations, person or persons, in or about East St. Louis, together with all and singular the tenements, hereditaments and appurtenances to several lots, strips, pieces and parcels of land belonging or of right appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof; and also all rights of way, easements, licenses and claims to or for the use and occupation of the same, and also all the estate, right, title, interest, property, possession, claims and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in and to the above described premises, and every part and parcel thereof, with the appurtenances:” Held, that this description did not embrace land and lots of the bridge company not at the time or since occupied for the purposes named in the deed, or appropriated to such purposes then or since.
    5. Same—words “tenements, hereditaments and appurtenances." In such a conveyance the words “tenements, hereditaments and appurtenances,” apply to the property previously described, and not to property not before enumerated, and the same is true of the reversions, remainders, rents, issues and profits, which words are expressly confined to the property before described.
    6. Same—what passes as an appartenance. One piece of land held in fee, or by a lesser title, can not be appurtenant to another tract. Nothing can properly be appendant or appurtenant to anything, unless the principal or superior thing be of perpetual subsistence and continuance. An incorporeal hereditament or an easement may be an appurtenance, and pass as such by a grant of the principal to which it is appurtenant.
    7. Easement—what constitutes. An easement can only consist of the privilege upon or in the land of another, such as a right of way and the like. From its nature a person can never have an easement in his own land.
    8. Grant— of franchise, does not carry tangible property. The tangible property of a corporation does not pass as an incident or accession on the sale of the franchise.
    Appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.

      Messrs. G. & G. A. Koerner, for the appellant :
    The first three parcels of land in question were acquired by the old bridge company in 1869, by condemnation, they being assessed at $28,975. The condemnation proceedings being had previous to the constitution of 1870, were governed by the law then in force. Peoria and Rock Island R. R. Co. v. Bickett, 62 Ill. 332; Emerson v. W. U. R. R. Co. 75 id. 176.
    Under the law then in force an absolute fee passed on payment of the damages assessed. Act 1852, sec. 1; Gross’ Stat. p. 661, see. 13.
    The mortgages of 1870 and 1871, in terms, both covered future acquisitions of the company. The new acquisition can be an easement as well as a fee,—an incorporeal right, appurtenant to the principal thing, as well as an addition to it, or an enlargement of it. Williams v. New Jersey Southern R. R. Co. 29 N. J. Eq. 311; Stevens v. Watson, 4 Abbott, (N. Y.) 303.
    That land and buildings may pass as appurtenances to other land, when necessary to the enjoyment of the principal land, see 2 Washburn on Beal Estate, sec. 626, subdivision 36, (2d ed.) p. 668, and authorities there cited in note 4; Smoking Valley R. R. Co. v. Livermore, 47 Pa. St. 465.
    A railway company having statutory authority to take land by condemnation for the purposes of their undertaking, may take sufficient to provide for future requirements which may be reasonably contemplated. And the fact that a portion of the land so taken is not immediately used for railway purposes, but is let on lease, is not conclusive evidence that such portion is superfluous land. L. R. 8 Exch. 294; L. R. 2 H. L. 27.
    It does not matter that in acquiring the land the bridge company may have intended to devote it to a purpose other than that to which in fact it did apply it, provided that both are corporate purposes. The actual use for any corporate purpose suffices. Peoria R. R. Co. v. Railroad Co. 66 Ill. 174.
    In any case, the right of the complainant to an easement upon the parcels of land in question must be conceded. An easement would pass as an appurtenance. Kuhlman v. Hecht, 77 Ill. 570.
    The covenants contained in the two original mortgages and supplemental deed, respecting future acquisitions and further assurances, passed to and vested in the plaintiff. Phelps v. Kellogg, 15 Ill. 131; Dorsey v. St. Louis, Alton and Terre Haute R. R. Co. 58 id. 65; Sterling Hydraulic Co. v. Williams, 66 id. 399.
    Messrs. Wilderman & Hamill, for the appellees :
    The premises in question did not pass as appurtenant to the bridge and the lands on which it is situated. Land can not be appurtenant to land, or pass with it as belonging to it. Gebhardt v. Reeves, 75 Ill. 301; 2 Washburn on Real Prop. *626.
    When a tract of land is granted by an accurate description, giving it a definite and limited boundary, another tract not mentioned in the deed will not pass as appurtenant to jibe tract thus described. Gebhardt v. Reeves, supra; Chicago v. Rumsey, 87 Ill. 348; Wilcoxon v. McGhee, 12 id. 381; Harris v. Elliott, 10 Pet. 54; Jacksons. Hathaway, 15 Johns. 454; Leonard v. White, 7 Pick. 6; Grant v. Chase, 17 Mass. 443; Parsons v. Johnson, 68 N. Y. 62; 2 Washburn on Real Prop. *626.
    The terms used by the various conveyances to Humphreys and others, trustees, in describing the tracts' and parcels of land conveyed by the various conveyances, are restrictive, and exclude from them operation the lots in question, and they did not pass. The maxim, falsa demonstratio non nocet, has no application. Griscom v. Evens, 40 N. J. L. 402; Jack

      son v. Sill, 11 Johns. 201; Homer v. Homer, 8 Ch. Div. 758; same case, 25 Eng. (Moak’s e'd.) 660; Broom’s Legal Maxims, *562, *563, *570; Jackson v.Harder, 13 Johns. 531; Jackson v. Clark, 7 id. 218; Farmers' Loan and Trust Co. v. Commercial Bank, 11 Wis. 207; Dinsmore v. Racine and Miss. R. R. Co. 12 Wis. 649; Dennison v. Holliday, 38 E. L. & Eq. 529; Jones on Railroad Securities, sec. 126; Slingsby v. Grainger, 7 H. L. 273; West v. Lawday, 11 id. 375; Pullin v. Pullin, 3 Bing. 47; Doe v. Lyford, 4 M. & S. 550; Hall v. Conibes, Cro. Eliz. 368; Clay v. Barnaby, 2 Rolle’s Abr. 51; Wilson v. Mount, 3 Ves. Jr. 191; Doe v. Bell, 8 D. & E. 579 ; Roe v. Vernon, 5 East, 51; Doe v. Parkin, 5 Taunt. 321; Barnard v. Martin, 5 N. H. 536; Allen v. Richards, 5 Pick. 512; Brown v. Saltonstall, 3 Metc. 423.
    The tangible property and franchise do not constitute and pass as an entire thing by a grant of the franchise. Jones on Railroad Securities, secs. 124, 125, 126, 168; Sangamon and Morgan R. R. Co. v. Morgan Co. 14 Ill. 163; Dinsmore v. Racine and Miss. R. R. Co. 12 Wis. 649; Hunt v. Bullock, 23 Ill. 320; Titus v. Mabee, 25 id. 257.
    There are no facts shown in the case upon which to predicate a legal or equitable claim to an easement in the premises in controversy. Morrison v. King, 62 Ill. 30; Goddard on Easements, pp. 121-127; Parsons v. Johnson, 68 N. Y. 62; Butterworth v. Crawford, 46 N. Y. 353; Grant v. Chase, 17 Mass. 443; Johnson v. Jordan, 2 Metc. 234; Fetters v. Humphreys, 19 N. J. Eq. 471; Barns v. Loach, 4 Q. B. 494 ; 29 Eng. R. (Moak’s ed.) 35.
   Mr. Justice Walker

delivered the opinion of the Court:

This was a bill filed by appellant, to enjoin a sale of certain real estate situated'in East St. Louis, under a deed of trust, and to have it declared a cloud on complainant’s title.

The material facts of the case are, that the Illinois and St. Louis Bridge Company, after it had commenced erecting the bridge, issued its bonds for money borrowed, and gave a deed of trust on the bridge and its approaches, right of way, etc., to secure the same. It, however, did not embrace the property involved in. this controversy. Afterward, to secure another loan, the company executed another trust deed on the same property. On the 2d day of February, 1874, the company made a supplemental deed of trust to better secure the payment of the bonds, and to effectuate the purposes of the prior deeds of trust. This deed described the bridge and property embraced in the prior deeds, and included several other lots of ground particularly described, but it does not in terms embrace the property involved in this case. It contained a full description of the property named, and a covenant for further assurance. In the month of October, 1874, the. bridge company, being indebted to the National Bank of Missouri in the sum of $52,548.83, executed a deed of -trust to one Curtis, and conveyed to him the property in controversy, to secure its payment. The bank afterwards became insolvent, and its affairs were placed in the hands of defendant Johnson, as receiver, and the debt the deed of trust was given to secure not. having been paid, Curtis, at the request of Johnson, advertised the property for sale, in pursuance of the powers contained in the trust deed, and complainant, claiming to have acquired the title and to be the owner, filed this bill to enjoin the sale, and to have the claim of appellee thereto declared invalid, and removed as a cloud on its title, and to have it quieted. The Hlinois and St. Louis Bridge Company having failed to pay the bonds secured by the trust deeds, proceedings were instituted, and by a decree of court they were foreclosed, and the property sold, and purchased by one A. J. Thomas; and he, on the 9th day of March, 1879, conveyed the same to complainant, and it has been and now is in possession of the property thus sold. Defendants answered, and on the hearing evidence was heard, and the court dissolved the injunction and dismissed the bill, and from that decree complainant appeals and urges a reversal.

These facts present the question whether appellant is the owner of the lots described in the bill. , It is claimed on the one side that it is, and denied on the other. If the company holds title, it is through the deeds of trust and the master’s sale under the decree of foreclosure, as title is claimed from no other source. It is not claimed that this property is described in the deeds of trust given to secure the bonds, by metes and bounds, by numbers, or by any other specific designation, but it is claimed that the description, especially in the supplemental deed, is sufficiently broad and comprehensive to embrace them, and, being so, the title passed to complainant. It is a rule of uniform application that to pass a thing granted it must be embraced in a general or specific description, and the description must be such as to distinguish it from all other things; but in identifying the property granted, it may be shown by extraneous evidence, but the description in the grant can not be enlarged or restricted by such evidence. When, as is generally true, there is a general and a specific description, the special description must control. When it is said in the deed that a grantor conveys a quarter section of land situated in a county and township named, this is the general description; but if taken alone it passes nothing, because there are many tracts within the boundaries named that would fully answer the description, and, not being distinguished from these other tracts, it could not be located, and nothing would pass by the deed. But when the description proceeds to further describe the tract as being in a particular section, and locates it in a specified part of the section, by the government surveys or by metes and bounds, this particular description distinguishes this particular tract from all others, and is complete.- Effect must be given to the deed according to the intention of the parties, as ascertained from the language they have employed to express that intention; and it is an admitted and well established rule of construction, that when the description of the property intended to be conveyed includes several particulars, all of which are necessary to ascertain the land to be conveyed, no land will pass except such as will agree with the description in every particular. Broom’s Legal Maxims, (4th ed.) *497. This rule is found in the earliest English reports, and has been adopted by a multitude of modern decisions in both Great Britain and this country, nor has its correctness ever been challenged.

Tested by these rules, the property only specially described can be held to have passed by the first three trust deeds. The first and second trust deeds described the premises conveyed as the bridge then in course of construction, together with the approaches to the bridge on both sides of the river, and being a strip fifty feet in width (describing these strips), together with all franchises and privileges acquired by the company by its charters. This description confines the premises granted to the bridge itself, the approaches thereto, and its privileges and franchises. These are the only subjects named, and all others not named in the particular description must be excluded, and under the rule did not pass to the grantee.

But it is claimed that the supplemental deed enlarged the description so as to embrace the property in .controversy. After describing the bridge, it contains this clause: “And also all and singular such other pieces or parcels of land occupied by the railway tracks, culverts, bridges, trestles and other structures thereon of said biidge company, as now are or hereafter shall be acquired by said party of the first part, for the purpose of laying thereon railway tracks to connect or make junction between the railway tracks on said bridge and the railway track or tracks of any other corporation or "corporations, person or persons, in or about East St. Louis, together with all and singular the tenements, hereditaments and appurtenances to said several lots, strip, pieces and parcels of land belonging or of right appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and also all rights of way, easements, licenses and claims to or for the use and occupation of the same, and also all the estate, right, title, interest, property, possession, claims and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in and to the above described premises, and every part and parcel thereof, with the appurtenances.” This description is not sufficiently comprehensive to embrace the property named in the bill, nor is there any other that does. It embraces all land occupied by the railroad tracks, culverts, bridges, trestles and other structures thereon, of the eom-p&ny, and the evidence shows that at that or at the present time none of the lots in controversy were or are occupied for any of the purposes named, and failing to fall within that description they must be excluded from it. Nor were these lots subsequently acquired for the purpose of laying tracks to connect with the tracks of other corporations. The company then owned these lots, nor has it ever appropriated them to such purposes, and the words “ tenements, hereditaments and appurtenances ” apply to the property previously described, and not to property not before enumerated. The language employed so limits ■them in express terms, and the same is true of the reversions, remainders, rents, issues and profits, as they are expressly confined to the property before described. This enlarged description does not in general or specific terms embrace this property, as it is nowhere in any manner described as intended to pass by any of these deeds.

But it is insisted that the lands passed as an easement, oías appurtenant to the bridge. There can be no plainer proposition than that one piece of land held in fee or lesser title can not be appurtenant to another piece of land. Lord Coke, in his Commentaries on Littleton, p. 121, sec. 184, says: “A thing corporeal can not be appendant to a thing corporeal, nor a thing incorporeal to a thing incorporeal, but things incorporeal, which lie in grant, * * * may be appendant to things corporeal. ” He further says, “that nothing can be properly appendant or appurtenant to anything unless the principal or superior thing be of perpetual subsistence and continuance. Land can not, therefore, be appurtenant to other land, but an incorporeal hereditament may. So of an easement, which is appurtenant. ” As to the first proposition, see Cassell v. Buzará, 6 Bing. 141, (8 Barn. & Cress. 150,) which announces the doctrine. The books abound in cases illustrating the rule. It then follows that the lots in controversy did not, and could not, pass as appurtenances to the conveyance of the bridge, its approaches, tracks, culverts, and .connections with other roads, etc. Complainant therefore did not acquire title by that means.

It is said, the lots described in the bill were used as an easement for the use of the bridge. An easement can only consist of a privilege upon or in the land of another, such as a right of way, and the like. From its nature a man can never have an easement in his own land. Having the exclusive and the whole uninterrupted right to its enjoyment, he can in no sense have an easement connected with it.

It is also claimed that the sale of the bridge and its approaches carried with it all property held by the bridge company. This is rebutted by the particular description of what-was sold. But even if that were not so, unless it had been so stated in the grant it would not be embraced. This is the doctrine of this court, settled by a numbep of cases. It is held that the tangible property of a corporation does not pass as an incident or accession on the sale of the franchise. Sangamon and Morgan R. R. Co. v. Morgan County, 14 Ill. 163; Hunt v. Bullock, 23 id. 320; Titus v. Mabee, 25 id. 257. This doctrine is supported by the decisions of other courts, and it is based on reason and justice.

' In any view in which the case has been presented, we are unable to perceive that appellant has any title to the propj erty, whether in fee or by a lesser estate; and having no title to be clouded, the bill will not lie, and the court below decided correctly in dismissing the bill, and the decree of that court must be affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    The Mutual Union Telegraph Company v. Adolph Katkamp.

      Filed at Mt. Vernon June 21, 1882.

    Eminent domain—of the damages for right of way for a telegraph line. A telegraph company sought to condemn a strip of land eighteen inches wide and three feet deep every one hundred and fifty feet from the point of beginning, etc., of sufficient width to erect telegraph poles and fixtures thereon, the poles to be set along the line of the right of way of a railroad which was fenced, and the proof showed there would be eleven poles on defendant’s land, which was worth $60 per acre. Three witnesses for the defendant testified that the damages would be $10 a pole, arising from their interfering with the use of farming implements, while three witnesses for the petitioner testified, one that fifty cents, and the other two that one dollar a pole, would be full compensation, and that when the poles pursued the line of the right of way of a railroad company, as in this case, in their judgment there could be no other damage than the value of the land taken. It also appeared that a strip of land six feet wide across the whole tract would be two-tenths of an acre, of the value of $12, at $60 an acre, and such a strip eighteen feet wide would be but six-tenths of an acre, and worth but $36. The jury, by their verdict, gave the defendant $38.50: Held, that the verdict was manifestly too high, and for this error the judgment was reversed.
    Appeal from the County Court of Madison county; the Hon. M. J. Dale, Judge, presiding.
    Mr. A. W. Hope, for the appellant.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a proceeding on the part of the Mutual Union Telegraph Company, under the Eminent Domain act of this • State, to condemn a right of way for telegraph poles across the land of Adolph Katkamp, being described in the petition as a strip of land eighteen inches wide and three feet deep every one hundred and fifty feet from the point of beginning, etc., of sufficient width to erect telegraph poles and fixtures thereon. The damages were assessed at $38.50, and the company appealed to this court.

It appeared that the telegraph poles were to be set along the line of the right of way of the St. Louis, Jacksonville and Chicago railroad, one foot from such right of way line, that there would be eleven poles on defendant’s land, and that his land was worth $60 per acre. The defendant himself testified that the land was worth $60 an acre; that the damage to him would be $10 a pole; that the land actually taken would not be worth much; that he thought the poles being upon the land would injure its sale, and interfere with the cultivation of the land by being in the way of ihe plows and machinery, and for farming purposes. Another witness testified that in his opinion defendant’s damages would be $10 a pole; that he estimated the damage could arise from the poles interfering with the use of farming implements in cultivating the farm, and would prevent plowing as close to the railroad as if the poles were not there. A third witness testified to the damages being $10 a pole; that the poles would interfere with the cultivation of the land, and might break the plows and machinery used to cultivate the farm. This was all the testimony on the part of the defendant as to the value of the land, or as to damages. Three witnesses gave testimony on the part of the petitioner, one that fifty cents, the other two that one dollar a pole, would be full compensation to the land owner for putting up the poles on his land; that when the poles pursue the line of the right of way of a railroad company, as in this case, in their judgment there could be no other damage than the value of the land taken.

It appears that a strip of land six feet wide, extending continuously across the whole tract of defendant’s land, a quarter section, would be two-tenths of an acre of land, and of the value of $12, at $60 an acre; and such a strip, even eighteen feet wide, across the whole tract, would -be but six-tenths of an acre of land, and worth but $36. This shows that the verdict of $38.50 is manifestly against the evidence. Had either one of such strips of land been taken absolutely, it is not perceived, from the evidence, what other damage would have been sustained. There is no pretence of any damage in addition to the land taken, other than interference with the cultivation of the remainder of the land. But, as it appe'ars to us, there was the same interference in that respect from the,line of fence of the railroad right of way, as there would be from the line of telegraph poles; that there would be no more difficulty in cultivating up to the telegraph poles than there was before in cultivating up to the fence, so that there would be no enhancement of damage in this respect from the erection of telegraph poles, if allowance of compensation were made for the land taken and used by the company. Testifying to amounts of damage, where there is no basis of damage, is of no value as evidence.

Regarding the verdict as clearly against the evidence, the judgment is reversed, and the cause remanded.

Judgment reversed.


author: Mr. Justice Scholfield

text:
    The St. Louis Transfer Company v. Timothy Canty.

      Filed at Mt. Vernon June 21, 1882.

    1. Appeal—directly from the trial court to this cowrt. This court has no jurisdiction of an appeal directly from the judgment of the circuit court, when the sole question presented is, whether the court erred in holding that a garnishee was not protected by a judgment of a justice of the peace disregarding the amount of the statutory exemption in case of wages due from an employer, the appeal presenting no question of the validity of a statute or construction of the constitution.
    2. It is not sufficient to give this court jurisdiction of an appeal directly from the trial court, that counsel should claim in his brief that the claim was made below that a statute was not constitutionally enacted, and the record shows that by stipulation of the parties the journal of the House of Representatives of the session in which the law was enacted was agreed to be considered as a part of the record, when no point is made here as to the validity of the statute.
    3. It is not enough for counsel merely to say the validity of the statute is involved, to give this court jurisdiction of an appeal direct from the trial court. The record must show that the validity of the statute is in good faith, and not simply pretendedly involved, to give jurisdiction on that ground.
    Appeal from the Circuit Court of St. Clair county; the Hon. George W. Wall, Judge, presiding.
    Mr. S. M. Breckinridge, and Mr. M. F. Watts, for the appellant.
    Mr. L. H. Hite, and Mr. Geo. D. Green, for the appellee.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The sole question presented by this record is, whether the circuit court erred in adjudging that a garnishee was not protected by a judgment of a justice of the peace disregarding the amount of the statutory exemption in case of wages due from an employer. Clearly this presents no question of the validity of a statute or the construction of the constitution, and it is impossible that there can be any other ground upon which we are authorized to take jurisdiction by appeal directly from the circuit court, as this case is brought here.

Counsel for appellee assert that the claim was made below that the statute exempting $50 of the wages due laborers from garnishment was not constitutionally enacted, and the record shows that by stipulation of the parties the journal of the House of Bepresentatives of the session at which that law was enacted was agreed to be considered as a part of the record, but no point is urged here by counsel for appellant to that effect. In their brief they expressly say that the question we have stated is the only question to be considered by the court.

It is not enough for counsel merely to say the validity of a statute is involved, to give us jurisdiction; for if that were the law, every case might be brought here upon a simple assertion of counsel, however absurd that assertion might be.

The record must show that the validity of the statute is in good faith, and not simply pretendedly, involved, to give us . - jurisdiction on that ground.

This appeal must, therefore, be dismissed, and counsel will, if they desire, be allowed to withdraw 'record, abstracts and briefs, for the purpose of filing in the Appellate Court.

Appeal dismissed.


author: Mr. Justice Walker

text:
    The Laclede Bank v. Chauncey H. Keeler.

      Filed at Mt. Vernon June 21, 1882.

    1. Attachment—equitable interest in land subject thereto. Under the act of 1869, amendatory of the chapter of the Revised Statutes of 1845, entitled “Attachments,” equitable interests in lands were made subject to attachment to the same extent as legal titles.
    2. Same—interpleader—of the issues to be tried. This amendment was intended to obviate the prior rulings of this court that equitable interests were not liable to attachment, but not to change the law as it then stood relating to the trial of issues made on interpleader by third parties claiming the property.
    3. Where a third party interpleads in an action by attachment, claiming the land attached, and an issue is formed as to whether the debtor has an equitable interest subject to the writ, that issue should be submitted to a jury, and it is error for the court to refuse to submit it, or to exclude evidence tending to show such equitable interest in the debtor.
    4. A third person filed an interpleader in an action by attachment, claiming to be the owner of the land attached. The attaching creditor replied that although the deed under which the claim was made was absolute in form, it was but a mortgage to secure the payment of $7756, and the land was worth $15,000, to which the claimant rejoined, denying that the deed was a mortgage. On the trial the claimant under the deed proved the execution of a deed from the grantee of the attachment debtor, when the plaintiff offered to prove that the deed from the debtor was in fact only a mortgage, made to secure $7756, and the value of the land, and also that claimant, when he received his deed from the grantee of the debtor, knew his grantor only held the title as a security for the debt named, and also knew of the levy of the writ when he took such deed, all of which evidence the court refused to admit: Held, that the court erred in rejecting the proposed evidence.
    Appeal from the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.
    This was an action brought in attachment by the Laclede Bank against Chauncey H. Keeler. The writ was levied upon a certain tract of land in St. Clair county. The St. Louis Carbon Works Company, at the first term, filed an inter-pleader, setting up that it was the owner of the land levied upon; that July 1, 1881, Keeler, for a good and valuable consideration, sold and conveyed it to one H. A. Haeussler, and that the deed was recorded July-9, 1881, before the attachment was levied; that on September 9, 1881, Haeussler conveyed the same land to the interpleader, which is now used by it in carrying on its business, wherefore interpleader prays that the land may be released from the attachment. To this plea the plaintiff replied:
    1. That the interpleader is a corporation of the State of Missouri, and has ho right or franchise to take land in Illinois.
    2. That there is no such corporation as the interpleader.
    3. That the deed from Keeler to Haeussler was in fact a mortgage given to secure an indebtedness due from Keeler to Haeussler, and that Keeler had an equitable interest in the land at the time of the levy, of all which the interpleader had notice.
    4. That the deed from Keeler to Haeussler was made for the purpose of hindering and delaying plaintiff, who was then a creditor of Keeler, as Haeussler well knew, and whereof the interpleader had notice.
    The court sustained a demurrer to the first and fourth replications, and overruled the same as to the second and third. The plaintiff also filed a fifth replication, that the deed from Keeler to Haeussler was, when made and when the attachment was levied, a mortgage given to secure an indebtedness of $7756, due from Keeler to Haeussler, and that the land was worth $15,000, of all which interpleader had notice when it took its deed from Haeussler. A demurrer having been overruled as to the fifth replication, the interpleader rejoined as follows: “To the fifth replication, denying that such deed from Keeler was a mortgage, and averring that it was a deed absolute; also, a second rejoinder, denying the value of the land as alleged, and the fact it had notice of the character of Keeler’s deed. To the third replication the rejoinder denied that Keeler’s deed was a mortgage, and that Keeler had any equitable interest in the land, and that interpleader had notice as alleged.”
    The other material facts sufficiently appear in the opinion.
    Mr. Charles W. Thomas, for the appellant :
    Section 29 of the Attachment act provides that any person, other than the defendant claiming the property attached, may interplead without giving bail, when a jury shall be called to try the right of property. This section was a part of the Attachment act of the revision of 1845, and when it became law, and until March 31, 1869, no equitable interest in land held or claimed by a defendant was liable to attachment. Lowry v. Wright, 15 Ill. 95 ; West v. Schnebly, 54 id. 523; Farrar v. Payne, 73 id. 82.
    Under the law as it then stood nothing but the legal title to land could be inquired into upon the trial of issues made upon interplea in an attachment suit. (City Ins. Co. v. Commercial Bank, 68 Ill. 348.) But by the act of 1869, (Rev. Stat. chap. 11, sec. 8,) a debtor’s equitable interest or estate in land was made liable to attachment. This renders the prior decisions under the former law nugatory. To allow the party holding the legal title to interplead, and not allow the creditor to show the debtor has an equitable interest subject to the levy, is to abrogate the law of 1869, which was never intended.
    Mr. R. A. Halbert, and Mr. C. F. Noetling, for the interpleader :
    Section 29 of the Attachment act, allowing a third person to interplead and claim property attached, extends to real estate attached. City Ins. Co. v. Commercial Bank, 68 Ill. 349; Needham v. Clary, 62 id. 344.
    The only question which the court could try under the statute' was, who was the owner of the land at the date of the levy, and on this issue the court decided in favor of the party interpleading, as no title to said property could be shown in Keeler when the levy was made. Nothing but the legal title could be inquired into. City Ins. Co. v. Commercial Bank, 68 Ill. 348.
    The levy was not upon any equitable interest of Keeler in the land, but the levy was upon the land as the absolute property of Keeler, and this the party interpleading proved it was not. •
   Mr. Justice Walker

delivered the opinion of the Court:

The only question presented on this record is, whether, in an attachment suit, where land has been levied on, and a third party interpleads, setting up title, and there is a replication, though the deed is absolute in form, that it was intended to be and was but a mortgage, the court can try the issue, or must it be referred to a court of equity. The act of 1869, amendatory of the chapter entitled “Attachments, ” Rev. Stat. 1845, provides, that “such officer shall, without delay, execute such writ of attachment upon the lands, tenements, goods, chattels, rights, credits, moneys and effects of the debtor, or upon any lands or tenements in and to which such debtor has or may claim any equitable interest or title of sufficient value to satisfy the claim sworn to, with costs,” etc. (Laws 1869, p. 355.) It is under this provision that the issue was made in this case.

Under the law as it stood in 1845, it was held that an equitable title or interest in lands was not the subject of attachment, (May v. Baker, 15 Ill. 89, and Lowry v. Wright, id. 96,) and such proceedings were held void when the defendant was not served with process. (West v. Schnebly, 54 Ill. 523.) The evident purpose of the amendment was to render equitable interests in lands subject to attachment to the same extent as legal titles. Of this there can be no question. And in adopting the amendment no change was made in the law, as it then stood, by which the issues shall be tried and the equities settled and the property should be sold. The practice of interpleading where land is levied on under a writ of attachment, is recognized in the case of Needham v. Clary, 62 Ill. 344. The question in that case arose out of a levy on land under such a writ, and the practice was not challenged, nor is any reason perceived why a jury may not try the legal title to land on an issue made by interpleader as well as under an issue in ejectment. Whilst this is true as to legal titles, it is denied that such a mode of trial is applicable to settling equitable interests of the parties.

The question is then presented as to the mode in which the issue shall be tried. The statute in terms provides that when the issue is made on filing an interpleader, the court shall cause a jury to be impanelled to try the issue. Nor does the statute make any distinction between legal and equitable titles. It is peremptory that the issue shall be tried, and tried by a jury. Had the law-makers intended that in case a levy was made on an equitable interest in land, a trial should be had on a creditor’s bill, it would have been so provided; or had it been intended that the equities should be settled by the judge, and not by a jury, such issues would have been excepted, and the judge been required to try them; and failing to so provide, we can not thwart the intention of the statute, but must enforce it as we find it.

It is claimed that the court should have rendered judgment for the sale of the land, notwithstanding the interpleader, and have left the parties, on a bill to be subsequently filed, to have settled the question whether the defendant held an equitable title to the land. This would be in violation of the requirements of the statute. Here the interpleader claimed that he held the legal title to the land; but the attaching creditor replied that although the deed was absolute in form, it was but a mortgage to secure the payment of $7756, and the land was worth $15,000. To this replication the interpleader rejoined denying the averment that the deed of conveyance was a mortgage, and on this an issue was formed, and the case was submitted to the court for trial, plaintiff reserving the right to insist the court had no jurisdiction to try this issue. On the trial the claimant under the deed proved it' was a corporation organized under the laws of Missouri, and the execution of the deed to it by defendant Haeussler, the grantee of Keeler, which was all the evidence heard in the case. But plaintiff offered to prove that the deed was in fact but a mortgage, made to secure $7756 due from Keeler to Haeussler, and the property was worth $15,000, and that the St. Louis Carbon Works Company, when it received the conveyance of the property from Haeussler, knew he only held it as a mortgage; but the court rejected the evidence, and refused to permit plaintiff to prove such facts. He also offered to prove that defendant in attachment, at the levy of the writ, had and claimed an equity of redemption in the premises, and the company had notice of such facts, and of the levy of the writ of attachment, when it received the deed from Haeussler mentioned in the plea; but the court rejected the evidence, and held plaintiff’s only remedy was in equity. The court found that the land was not subject to the attachment, as shown by the interpleader, and quashed the writ, but rendered judgment against the defendant for the amount claimed in the affidavit praying the writ. .

We have seen that an equitable interest in land is authorized to be levied on in attachment, and an interpleader may set up title by plea, and an issue formed and a jury impanelled to try the issue. Here an issue was formed to be tried whether this deed, although absolute in form, was not in fact a mortgage, and whether the claimant under the deed did not have notice of that fact, and that the levy had been made, when the purchase was made from Haeussler. This issue was simple and free from difficulty, and any jury was competent to determine it on evidence adduced; and had the issue been submitted to a jury, it would have been error had the court rejected the evidence offered by plaintiff, and it was equally error for the court to refuse to hear and give due force to its weight;

In the case of The City Insurance Co. v. Commercial Bank, 68 Ill. 348, it was held that in a claim by an interpleader the court would not determine the equities of the creditors of an insolvent corporation, the assets of which were in the hands of a receiver, who were not parties to the attachment suit; but it was not held that the equitable rights of the interpleading receiver would not be determined. That case, therefore, in nowise conflicts with what we hold in this case, and for the error indicated the judgment of the court below is reversed.

Judgment reversed.


text:
      John Leibengut v. Louisville, New Albany and St. Louis Railway Company.

      Filed at Mt. Vernon June 21, 1882.

    1. Eminent domain—condemnation proceedings in vacation. Under the statute relating to eminent domain, the circuit and county courts are always open for proceedings to condemn land for right of way, and when the summons is quashed the court may order an alias summons returnable in vacation, and when so issued and served ten days before the return day, the court will acquire jurisdiction to assess the compensation to be paid for the right of way.
    2. Same—amending summons, when no error, though not proper. Where a summons issued by the county court on an application to condemn land for right of way was made returnable before the county court on a day in vacation, and the court caused the same to be amended so as to read “returnable before the judge,” instead of the court, but it was properly served as issued, it was held, that the amendment should not have been made, it having been properly made returnable in the first instance; but it was further held, that as the amendment worked no harm, it presented no ground to reverse the judgment of the court. A summons in such case, returnable before a judge in vacation, means before the court of which he is judge.
    Appeal from the County Court of Jefferson county; the Hon. C. A. Kellar, Judge, presiding.
    Messrs. A. M. & William H. Green, for the appellant.
    Mr. S. F. Crews, and Messrs. Patton & Watson, for the appellee.
   Mr. Justice Scholfield

delivered the opinion of the Court:

A single question is raised upon this record. The proceeding was for the purpose of condemning right of way for a railroad under the Eminent Domain act. Summons was issued returnable on the first day of the Tiovember term,—it being the 21st day of the month,—of the county court of Jefferson county. That writ, on motion of appellant’s attorneys, was on the return day quashed by order of the court. The court then ordered the cause to be continued until Monday, December 5, at nine o’clock A. M., and that alias summons be issued returnable . at that time. Summons was issued as directed, and returned properly served. This summons, as issued and served, was returnable before the county court, but, as subsequently amended, was made returnable before the county judge instead of the county court. Appellant made default, and the question is whether he is affected by the summons thus issued and served—in other words, is it sufficient service ?

The application in such cases is directed to be made to the judge of the circuit or county court, either in vacation or term time. (Sec. 1, chap. 47, Rev. Stat. 1874.) And by the 5th section of the same act it is provided: “Causes may be heard by such judges in vacation as well as in term time, but no cause shall be heard earlier than ten days after service upon defendant, or upon due publication against non-residents. ” Unquestionably, therefore, it was competent for the judge to hear the cause on the 5th day of December, although not in term time, and appellant, having had summons, notifying him when and where the cause would be heard, served upon him more than ten days before the 5th day of December, had all the notice required either by the letter or the spirit of the act. It is impossible that he could have been misled.

In Bowman et al. v. Venice and Carondelet Ry. Co. 101 Ill. 459, we held this proceeding, whether instituted in term time or in vacation, is, in fact, a proceeding in court, and that it is competent, where a proceeding has been commenced in term time, to permit an amended petition to be filed in vacation. It was said: “Under our statute the circuit and county courts are always open for proceedings of this character. The object of the legislature in so providing was to obviate delays detrimental to public interests, that often occur in legal proceedings when confined to term time. The only difference in proceeding in and out of term is, in the latter case the judge must fix a particular day for the hearing, and order a special jury, and when such jury has been summoned, if not subject to challenge on other grounds, it should serve in the trial of the cause; and whether the cause has been commenced in term time or vacation, we see no impropriety in the judge allowing such amendments to be made as are by law allowed, ” etc.

The summons here issued and served was entirely accurate, and appellant was bound to respond to it if he desired to make any defence, and not having done so, he is concluded by the judgment. The amendment of the summons should not have been made, but it does no harm, for since we hold that the authority to judges to hear such causes in- vacation is but authority to the courts of which they are judges, to do so, it must follow that a summons returnable before a judge in vacation, means before the court of which he is judge.

We see no cause to disturb the judgment below, and it is therefore affirmed.

Judgment affirmed.


author: Mr. Chief Justice Scott

text:
    The People, for use of Town of Highland v. Charles B. Suppiger et al.

      Filed at Mt. Vernon June 21, 1882.

    1. Judicial notice—as to location of incorporated town—counties under township organization. This court will take judicial notice of the county in which an incorporated town is situated, and of the fact whether such county is under township organization.
    2. Road law of 1877—repealed. The act of 1879 concerning “roads and bridges” is a revision of former laws on this subject, and in terms repeals the-act of 1877, so far as it relates to counties under township organization, and also all other acts or parts of acts inconsistent therewith.
    3. Road tax—“road and bridge tax”—how to he applied, respectively—under sections 16 and 119 of the act of 1879. The tax levied by the commissioners of highways, not exceeding fifty cents on each one hundred dollars’ worth of taxable property, under section 16 of the Road law of 1879, so far as it relates to property within incorporated villages, towns and cities in which the streets and alleys are under the care of the corporation, is required to be paid over to the treasurer of such village, town or city, to be appropriated to the improvement of the streets, alleys and bridges in such corporation.
    4. But the “road and bridge tax” levied and collected under section 119 of the Road law of 1879, is a tax distinct from the road tax levied under section 16 of the same act, and the statute is imperative that such tax, including that collected on property within incorporated villages, towns and cities, shall be paid over, when collected, to the treasurer of the commissioners of highways, except the collector’s commissions. The rule was different under the Road law of 1877.
    5. The road and bridge tax required to be levied and collected by the commissioners of highways under section 119 of the Road law of 1879 is for certain specified purposes, such as for the making and repairing of bridges, the payment of damages by reason of the opening, altering and laying out of new roads, the purchasing of necessary tools, implements and machinery for working roads, etc., and is a distinct tax from that levied and assessed under section 16 of the same act. The first must be paid in money, while the road tax may be discharged in labor on the roads.
    6. Same—former decision. The words, “except as provided in section 16,” contained in the former statute, and which were thought, in Baird v. The People, 83 Ill. 387, to make it the duty of the collector to pay the “road and bridge” tax as well as the road tax proper, levied and assessed on property situated in villages, towns and cities, to the treasurers of such corporations, have been omitted from the revision of 1879, hence that case has no application under the law as now existing.-
    Appeal from the Appellate Court for the Fourth District; —heard in that court on appeal from the Circuit Court of 'Madison county; the Hon. Amos Watts, Judge, presiding.
    Messrs. Krome & Hadley, for the appellants.
    Messrs. Metcalf & Bradshaw, for the appellees.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

This is an action of debt, and was brought in the name of the People, for the use of the board of trustees of the town of Highland, on the official bond of Charles B. Suppiger, collector of the town of Helvetia, against such collector and his sureties. As the case was submitted in the circuit court on an agreed statement of facts, it will not be necessary to remark upon the pleadings.

This court will take judicial notice the town of Highland is situated in the county of Madison—a county under township organization. The town of Highland was made a municipal corporation by a special act of the legislature, passed in 1865, and is situated within the territorial limits of the town of Helvetia, a town under township organization. Section 12 of the charter of the town of Highland, which was given in evidence, provides it shall be the duty of the municipal authorities to keep all roads, streets, alleys and bridges, in the corporate limits of the town, and for one mile beyond, in good repair, and for that purpose the authorities might require certain road labor to be performed, and the performance of such road labor should exempt the inhabitants of such town from the performance of any other road labor under the laws of the State, It is further provided, in the same section, the road tax assessed upon the property in such corporation, and upon the property for one mile beyond its limits, shall be paid to the treasurer of the town of Highland, and that it may be collected in such manner as may be prescribed by ordinance.

It is admitted there was levied and assessed, in pursuance of law, for the year 1879, and subsequent to the 1st day of July of that year, upon all the taxable property of the town of Helvetia, what is known as a “road and bridge” tax, not exceeding forty cents on each one hundred dollars’ worth of taxable property, and that the aggregate amount of such tax levied and assessed for that purpose, for the year mentioned, within the corporate limits of the town of Highland, was $1173.62, and that of that amount there came to the hands of the collector, before the commencement of this suit, $1092.40. It is stipulated the town of Highland has received from such collector the full amount of the road tax levied and collected for that year from property within1 the corporate limits of the town, but has received no part of the “road and bridge” tax so levied and collected. The treasurer of the highway commissioners of Helvetia township, and the treasurer of the town of Highland, both claim the “road and bridge” tax in the hands of the collector, and the only question raised and discussed is, which party is entitled to it.

The act of 1879, in force July 1 of that year, concerning “roads and bridges,” is a revision of former laws on this subject, and in terms repeals the act of 1877, so far as it relates to counties under township organization, and also all other acts, or parts of acts, inconsistent therewith. It is plain, therefore, the present decision must be controlled by the act of 1879., Section 16 of that act provides, commissioners of highways may cause a tax, not exceeding forty cents on each one hundred dollars’ worth of taxable property, to be levied and collected for road purposes, but the taxes levied for road purposes only on property lying within an incorporated village, town or city in which the streets and alleys are -under the care of the corporation, shall be paid over to the treasurer of such village, town or city, to be appropriated to the improvement of the streets, alleys and bridges in such corporation.- As respects any tax that could be or was levied under this section of the statute by the commissioners of highways, there is no controversy. It is admitted the full amount of such tax has been fully paid by the township collector to the treasurer of the town of Highland.

But the contention is as to the “road and bridge” tax levied and assessed under the provisions of section 119 of the act of 1879. It will be observed the “road and bridge” tax is. to be levied and collected for specific purposes, viz., for the making and -repairing of bridges, the payment of damages by reason of opening, altering and laying out of new roads, the purchasing of necessary tools, implements and machinery for working roads, and other specific objects stated. This is a distinct tax from that levied and assessed under section 16 of the same act, and so this court decided in Mee v. Paddock, 83 Ill. 494. It will be observed that the tax levied under section 16 may be paid in labor by the party owing it, while that levied under section 119 is a money tax, and being for specific objects for which money is needed, it is obvious it must be collected in money. .The statute is imperative (section 122) the “road and bridge” tax, when collected, shall be paid over to the treasurer of the commissioners of highways, by the collector, except such rate per cent as shall be allowed for collecting the same. As has been seen, all laws or parts of acts on this subject inconsistent with the act of 1879, have been expressly repealed, so that there is now no doubt as to whom the collector shall pay the “road and bridge” tax when collected. It must be paid to the treasurer of the commissioners of highways of the town imposing the tax.

The words, “except as provided in section 16,” contained in the former statute, and which were thought in Baird v. The People, 83 Ill. 387, to make it the duty of the collector'to pay the “road and bridge” as well as the road tax proper, levied and assessed on property situated in villages, towns and cities, to the treasurers of such corporations, have been omitted from the revision of 1879, hence that ease can have no bearing on the present decision.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


text:
    Mary White et al. v. John White, Jr. et al.

      Filed at Mt. Vernon June 21, 1882.

    1. Chancery—affirmative relief on answer—necessity of cross-bill. Affirmative relief can not be granted to a defendant in chancery upon his mere answer to the bill. To obtain such relief the defendant must file a cross-bill praying for the relief he seeks.
    2. Upon bill filed to reform a deed in respect to an alleged misdescription of the land intended to be conveyed, the defendant answered, admitting the mistake in the description of the land in the deed, but setting up another and different mistake—that it was intended to convey only a life estate in the land, whereas the deed purported to convey the fee. The evidence on the hearing tended strongly to support the answer, and the court below entered a decree setting the deed aside. It was held erroneous to grant such relief to the defendant in the absence of a cross-bill.
    3. Same—construction of a bill as to the character of relief sought. The deed in which the misdescription occurred, purported to convey five acres off the east side of a certain quarter section, when the intention was to convey that number of acres off the east side of a forty acres of that quarter section. The bill prayed that the deed be corrected according to the facts, and that so far as it applied to the forty-acre tract not intended to be affected, the deed be for naught held, or that the error or mistake be corrected as the court might deem best, and for other and further relief. It was held this prayer in the bill could not be construed as embracing the setting aside of the deed altogether, on the basis of the defendant’s answer, and thus to obviate the necessity of a cross-bill. The prayer was for the correction of the deed by a further conveyance, in conformity with the facts charged in the bill.
    Writ of Error to the Circuit Court of Perry county; the Hon. Amos Watts, Judge, presiding.
    Mr. J. C. Hawthorne, for the plaintiffs in error :
    Affirmative relief can not he granted to a defendant upon a simple answer without a cross-bill accompanying the same. Tarleton v. Vietes, 1 Gilm. 170; Edwards v. Helm, 4 Scam. 143; McConnell v. Hodson, 2 Gilm. 640; Mason v. McGuire, 28 Ill. 322; McCagg v. Heacock, 42 id. 135; Hanna v. Ratekin, 43 id. 462; Titsworth v, Stout, 49 id. 78; Conwell et al. v. McCowan et al. 53 id. 363; Howett v. Selby, 54 id. 151; Purdy et ux. v. Henslee et al. 97 id. 389.
    It may be said that complainants in their bill prayed for a cancellation of the deed, but this is not so. They only asked to have the deed reformed so as to correspond with the real facts of the case, and that it be a nullity so far as it did not correspond with the real facts—that it still be the basis of a correct, and true conveyance to be evolved therefrom.
    Mr. J. R. McFie, for the defendants in error :
    , The decree setting aside the deed was in pursuance of the prayer of the bill. It prayed that the deed of John White, Jr., to John White, Sr., be cancelled. The decree cancels and annuls that deed. It grants no affirmative relief whatever, not asked by the complainants.
   Mr. Justice Walker

delivered the opinion of the Court:

Plaintiffs in error exhibited their bill in the Perry circuit court, to correct and reform a deed to five acres of land conveyed by John White, Jr., the patentee, to his father; John White, Sr. He conveyed it to Samuel White, who died, leaving May White, his widow, and Eva White, his only child and heir. The bill alleges that John White, Jr., in conveying to his father, intended to convey five acres off the east side of the north-east quarter of the south-west quarter of section 6, township 4 south, range 4 west, in Perry county, but in drafting the deed a mistake was made, and it was described as being on the east side of that quarter section. The prayer of the bill was, that on a final hearing the deed from John White, Jr., to his father, be corrected according to the facts; that he be decreed and required to quitclaim the properly described lands; that the deed first made, so far as it applies to the south-east quarter of the south-west quarter of section 6, be for naught held, or that the error and mistake be corrected as the court may deem best, and for other and further relief. Defendant answered, admitting the mistake, but sets up another and different mistake, and that is, it was intended that John White, Jr., should convey to his father only a life estate in the five acres intended to be conveyed. The evidence on the hearing strongly tended to support the answer. To this answer a replication was filed, and on the hearing the court decreed that the deed be annulled, avoided and forever held for naught, and that complainants pay the costs.

Defendant having failed to file a cross-bill, it is urged that it was' manifest error to grant specific relief to defendant on the answer—that under that state of the pleadings, according to the well recognized rules of practice, the court could do no more than dismiss the bill. According to the uniform practice of this and almost all courts of chancery, the court can never grant affirmative relief on the answer. To obtain such relief the defendant has the power to, and he must, file a cross-bill praying for the relief sought. This is the rule announced in Tarleton v. Vietes, 1 Gilm. 470, Edwards v. Helm, 4 Scam. 143, McConnell v. Hodson, 2 Gilm. 640, Mason v. McGirr, 28 Ill. 322, and McCagg v. Heacock, 42 id. 153, and a long list of other cases in this court might be cited announcing the same rule. It is so plain and elementary as to require the citation of no authority for its support, as it is familiar to the entire profession. In this there was clear and fatal error. Nor has defendant attempted to distinguish this case from those cited, except he claims the decree was in accordance with the prayer of the bill. This is undeniably a misconception. The prayer is for a correction of the deed by a further conveyance, so as to conform to the facts as charged in the bill. It asks to have that part of the deed which embraces a portion of the other forty acres of the quarter to which they make no claim, declared void, and nothing more. To hold the prayer asks the entire deed be declared void, would violate every rule of construction.

It is said that the merits of the case require the affirmance of the decree, and to reverse it would be to enforce technicalities and to produce hardship. In the administration of justice some form must be observed, and there are rules of practice that must be observed, and the one under consideration is of that character. It is plain, simple, and easy of application, and when not observed by counsel, and it produces hardship, it is of his own procurement, and not that of the law, nor can it relieve against such omissions.

This error must reverse the decree, and renders it unnecessary to discuss the other questions raised and discussed. The decree of the court below is reversed, and the cause remanded.

Decree reversed„


author: Mr. Justice Mulkey

text:
    Delia L. Payne et al. v. Valentine L. Miller et al.

      Filed at Mt. Vernon June 21, 1882.

    1. Fraudulent conveyance—settlement by husband on his wife. A husband in failing circumstances had conveyed sixty acres of land, including his homestead, in satisfaction of prior loans of his wife to him of $1700, and being pressed by his creditors he procured a loan of $3000 on the land, and the wife gave up her conveyance, and joined in the mortgage to secure such loan, releasing her dower, in consideration that her husband would settle upon her twenty-three acres of the land, including their homestead, agreeing to sign any other deed or mortgage her husband might make to settle with his creditors. The husband, in pursuance of such arrangement, conveyed to her the tract of twenty-three acres, and it appeared that his indebtedness to her was ample consideration for the property conveyed to her above the amount of the homestead exemption: Held, that the conveyance to the wife was upon a sufficient consideration, and valid against the creditors of her husband.
    2. Same—conveyance by husband to his wife. A husband, though in failing circumstances, may make a conveyance to his wife, when it is made upon a full and fair consideration; and when such conveyances are made in good faith, they will be sustained to the extent of the consideration actually paid, and no further.
    3. Witness—competency of wife in relation to conveyance to her by her husband. On creditor’s bill to set aside a conveyance of land by a husband to his wife, she is a competent witness to prove the consideration of the conveyance, and its good faith.
    4. Same—of attorney, as to matters coming to him as such. An attorney at law may testify to facts coming to his knowledge while securing a debt of his client, in a contest betwe'en other parties than his client, the latter having no interest in the litigation.
    Writ of Error to the Circuit Court of Madison county; the Hon. Amos Watts, Judge, presiding.
    Messrs. Irwin & Springer, for the plaintiffs in error.
    Messrs. Metcalf & Bradshaw, for the defendants in error.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This was a creditor’s bill, brought by Valentine Miller and Jacob Stoutzenberg, in the Madison circuit court, against Henry Payne, and Delia Payne, his wife, for the purpose of setting aside a post-nuptial conveyance made by him to her, and of subjecting the property conveyed to the payment of their respective judgments. Stoutzenberg and Payne have both died since the commencement of the suit, and their respective legal representatives have been substituted as parties. The circuit court found the equities with the complainants, and entered a decree in conformity with the prayer of the bill. Delia Payne and the legal representatives of her deceased husband bring the case here on error, and ask a reversal of that decree.

The whole controversy is narrowed down to a single inquiry, namely, whether the conveyance made by Payne to his wife on the 10th day of May, 1878, of a twenty-three acre tract of land constituting their homestead was fraudulent as against the creditors of the former, and the determination of this question depends entirely upon whether the evidence shows a sufficient consideration to support the deed.

It appears, from the testimony, that in 1863 and 1864 Mrs. Payne advanced or loaned her husband all together $500, and again in 1866 $1200, making a total of $1700, none of which was ever refunded to her. About a month before the conveyance in question, her husband, in consideration of this indebtedness, conveyed to her sixty acres of land, including the twenty-three acre homestead tract. At this time he seems to have been considerably involved, and struggling with his creditors as best he could. About this time, being pressed by his creditors, Payne applied to Thomas I. Barns-back for a loan of $3000, which the latter agreed to make provided Payne and his wife would join in a mortgage to secure its payment, and that something over $800 of the amount should be paid W. W. Jarvis, one of Payne’s creditors, the claim being then in the hands of John G-. Irwin, as the attorney of Jarvis. On the 10th of May, Irwin, for the purpose of assisting in consummating the proposed loan from Barnsback, called at Payne’s, having a mortgage already prepared for execution by Payne and his wife. Irwin testifies that the latter refused to sign the mortgage except upon the condition that Payne would settle on her the homestead tract in question, which he agreed to do, and that thereupon a deed was prepared by the witness which was executed by Payne to her at the same time he and his wife signed the mortgage. Irwin swears the consideration for the deed from Payne to his wife was the execution of the mortgage then given to Barnsback, and an agreement on her part to sign any other deed or mortgage Payne might make in order to effect a settlement with his creditors, and the proofs show that subsequent deeds were made by him in which she joined, for the purpose of relinquishing her dower. Mrs. Payne swears that the consideration for the conveyance to her was the relinquishment of her dower in all his lands, and the giving up of the deed for the sixty acres of land which he had conveyed to her about a month before in satisfaction of her claim against him for loaned money, as above stated. The testimony of these two witnesses relating to the consideration stands alone, and is uncontradicted, nor is there anything in the record that weakens or impairs its force. Assuming it to be competent, we think it quite clear the consideration was ample to cover so much of the property as is not included in the homestead, and there is no pretense that the homestead i$ subject to these claims.

We perceive no force in the objection that Mrs. Payne and Irwin were incompetent witnesses. As to the former, we think she falls within at least one, if not two, of the exceptions of the statute. The controversy relates to a tract of land standing in her own name, and the facts she testifies, to go to the very foundation of her right, and it is clear if she were a feme sole she would be a necessary party to any suit that might be brought to recover it. As to Irwin, he was acting,' at the time to which his testimony relates, as the attorney of Jarvis, who has no perceivable interest in this litigation or the facts testified to by the witness. If this were a controversy between Jarvis and some one else, growing out of what occurred at that time, and Jarvis was here objecting to his testimony on the ground the facts testified to were acquired by him by reason of his employment as his attorney, there would be at least some apparent reason for the objection. But such is not the case. There is clearly nothing in the objection.

With respect to the right of a husband to make a conveyance to his wife, when in failing circumstances, the law is well settled he may do so when made upon a full, fair consideration, and where such conveyances are made in good faith they will be sustained to the extent of the consideration actually paid, and no farther. In the present case we think, as already stated, the consideration was ample. Patrick v. Patrick, 77 Ill. 555.

The decree of the circuit court will be reversed, with costs, and a decree entered in this court dismissing the complainants’ bill.

Decree reversed.


text:
    Edwin Davis v. Henry C. Moore.

      Filed at Mt. Vernon June 21, 1882.

    1. Judicial sades—sale after defendant's death. Where an execution is issued and levied upon real estate in the lifetime o£ the defendant therein, a sale after his death will be valid without any notice to his legal representative or revivor by scire facias.

      2. At common law, if a defendant died after judgment against him, no execution could be issued, but the judgment had to be revived by scire facias; but by the statute an execution is authorized to be issued against the real estate of a deceased defendant, upon notice to his legal representative, after the expiration of one year from his death, without reviving the judgment or decree. This remedy is concurrent with the common law proceeding by scire facias.

    3. Same—statute relating to sales, after defendant’s death, construed. Section 39, of chapter 77, Rev. Stat. 1874, provides that when a person shall die after a judgment or decree for the payment of money against him shall have been obtained in a court of record, execution may issue against his real estate, or a sale may be made under such decree or judgment, without reviving the same against his heirs or legal representatives, “provided, that no execution shall issue or sale be made until after the expiration of twelve months from the death of such deceased person; nor shall any sale be had on any such execution or decree until the person in whose favor the judgment or decree is, sought to be enforced shall give to the executor or administrator, etc., at least three months’ notice in writing of the existence of such judgment or decree before issuing execution or proceeding to sell:” Held, this provision has no reference to cases in which execution is issued and levied in the lifetime of the defendant in execution. The proviso relates only to executions to be issued after the death of the defendant, and sales on decrees not earned into effect in the lifetime of the defendant.
    4. Same—sale after return day is valid, if levy is made before. Where an execution is levied upon real estate in its lifetime, the officer may sell the land after, as well as before, the return day of the writ, without the issuing of a venditioni exponas.

      5. Same—purchaser at execution sale—as to equities between the parties. A purchaser of land at a sheriff’s sale on execution, who is not a party . to the judgment, need not concern himself in regard to any equities between the parties,—he is only bound to look to the judgment, the levy and the sheriff’s deed, for the protection of his title.
    Appeal from the Circuit Court of Marion county; the Hon. George W. Wall, Judge, presiding.
    This was an action of ejectment, brought by the appellee against the appellant, in the circuit court of Marion county. The record showed that William Aird was the. common source of title under whom both parties claimed title, the defendant claiming under a sale made on a deed of trust given by Aird, and the plaintiff under a sale of the same land on execution against Aird, issued upon a decree of the Marion circuit court.

      Mr. J. H. Sedgwick, Mr. O. J. Bailey, and Mr. William Walker, for the appellant.
    Mr. Henry C. Goodnow, for the appellee.
   Mr. Justice Scholfield

delivered the opinion of the Court:

Execution was issued upon a judgment of a circuit court, and levied upon real estate, in the lifetime of the defendant in execution. This real estate was .sold, by virtue of that levy, within less than two months after the death of the defendant in execution, and without giving his executor, administrator or heirs any notice in writing of the existence of the judgment on which the execution was issued. The question is, was such sale void, or did it confer upon the purchaser a legal title, subject, of course, to the right of redemption ?

Appellant claims that the sale was absolutely void, by virtue of section 39, chap. 77, Rev. Stat. 1874, p. 626, which reads as follows: “When a person shall die after the rendition of a judgment or decree for the payment of -money against him is obtained in a court of record, execution may issue against the real estate of such deceased person, or sale may be made under such decree without reviving the judgment or decree against his heirs or legal representatives: Provided, that no execution shall issue or sale be made until after the expiration of twelve months from the death of such deceased person; nor shall any sale be had on any such execution or decree until the person in whose favor the judgment or decree is sought to be enforced shall give to the executor or administrator, or if there is neither, the heirs of the deceased, at least three months’ notice in writing of the existence of such judgment or decree, before issuing execution or proceeding to sell.” But this, it is clear, has no reference to cases in which execution is issued and levied in the lifetime of the defendant in execution. 1't has reference to judgments and decrees which, after the death of the defendant in execution, it would, at common law, have been necessary to have revived by scire facias before their collection could be enforced. “By the common law all proceedings in- a suit at law were arrested by the death of the parties. If either of them died before judgment, no judgment could be entered, but the suit abated; if he died after judgment, no execution could be issued, but the judgment had to be revived by scire facias.” Brown v. Parker, 15 Ill. 307. Hence the language here is: “When a person shall die after the rendition of a judgment or decree for the payment of money against him is obtained in a court of record, execution may issue against the real estate of such deceased person, or sale may be made under such decree, without reviving” (as otherwise would be necessary) “the judgment or decree against his heirs or legal representatives.” And the remedy thus provided is concurrent with the common law proceeding by scire facias. Brown v. Parker, supra.

The proviso, that “no execution shall issue or sale be made, ” by the plainest rules of construction relates only to the executions and sales which form the subject of the enactment,—that is to say, executions to be issued after the death of the defendant in execution, and sales on decrees for the payment of money, not carried-0 into effect in the lifetime of the defendant. And this, in our opinion, is placed beyond reasonable controversy by the further clause, “nor shall any sale be had on any such execution or decree, until,” etc., thus unmistakably referring back, for its antecedents, to the first named executions and decrees.

Where an execution 'is levied upon real estate, in its lifetime, there remains only the duty of the officer to sell, and this he may do after as well as before the return day of the writ, and without the issuing of a venditioni exponas. Phillips et al. v. Dana, 3 Scam. 551; Bellingall v. Duncan et al. 3 Gilm. 477. Here, when the defendant in execution died, there remained, then, only the duty of the sheriff to sell,—a duty fixed or determined by the levy already made, and to the performance of which the further possession of the execution was unnecessary. No new process could be necessary, and the case is clearly unaffected by the statute.

We think the sale was valid. The equities talked of by counsel, in their brief, seem to be thrown in as makeweights or excuses for relying on strictly legal rights, rather than as constituting a legal defence to appellee’s cause of action, and hence deserve no special notice. The judgment, the levy and the deed are shown, and these are all to which the appellee (who was not a party to the judgment) is required to look. Phillips et al. v. Coffee, 17 Ill. 154.

An objection was urged in argument that the judgment did not determine the estate of the appellee in the premises. This is a misapprehension. The record is not defective in that regard.

We perceive no cause to disturb the judgment below, and it will, therefore, be affirmed.

Judgment affirmed.


author: Mr. Chief Justice Craig

text:
    Adolph Ruegger et al. v. The Indianapolis and St. Louis Railroad Company.

      Piled at Mt. Vernon January 16, 1882

      June Re-filed June 21, 1882.

    1. Former adjudication—when a bar to relief, or relief on new ground. Where the same matters involved in a suit in equity were involved in a prior suit, though in the United States Circuit Court, and the two suits were between the same parties, the decision in the prior suit will be conclusive on the trial of the second suit brought in the State court.

      2. Where a suit is brought in the United States Circuit Court to enjoin the collection of a certain tax for certain years, which relief is denied on a final hearing on the merits, and the bill dismissed, this will be a bar to a bill filed by the same complainant against the collectors of the same counties, seeking the same identical relief, although other reasons and grounds may be alleged in the second suit for granting the same. A prior adjudication between the-same parties is conclusive upon them, not only as to the matters actually determined, but as to every other thing within the knowledge of the parties which might have been set up as a ground for relief or defence.
    Wbit of Eeeoe to the Circuit -Court of St. Clair county; the Hon. William H. Snydeb, Judge, presiding.
    Messrs. Wise & Davis, for the plaintiffs in error :
    A former adjudication by a court of competent jurisdiction is conclusive in any subsequent suit between the same parties for the same subject matter. Hamilton v. Quimby et al. 46 Ill. 90; Rogers v. Higgins et al. 57 id. 244; Kelly et al. v. Donlin et al. 70 id. 378; Garrick et al. v. Chamberlain et al. 97 id. 620.
    Mr. John T. Dye, for the defendant in error.

       Subsequently to the filing of the opinion in this case, in January, 1882, a rehearing was granted, but upon further consideration the opinion was re-filed as the opinion of the court.

   Mr. Chief Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by the Indianapolis and St. Louis Eailroad Company, on the 22d day of June, 1878, against the collectors of the several counties of Madison, St. Clair, Macoupin, Montgomery, Christian, Shelby, Moultrie, Coles and Edgar, to enjoin them from levying upon and selling the rolling stock and personal property of complainant, by virtue of tax warrants issued to them by the clerks of the various counties, to collect certain taxes assessed by the State Board of Equalization upon capital stock for the years 1873, 1874, 1875 and 1876.

In the bill, as originally filed, it is alleged that complainant is a corporation organized and existing solely under the laws of Indiana; that it became incorporated under the laws of that State by articles of association entered into on the 28th of August, 1867; that complainant’s general offices are now, and always have been, in Indianapolis, Indiana; that it never became incorporated under any law of Illinois, general or special, or in any manner accepted or recognized any act of the General Assembly of Illinois in regard to complainant, or consolidated its capital stock or franchises with any corporation organized under the laws of Illinois; that it never did, and does not now, own, control or use any capital stock in Illinois, and owns, controls and uses no capital stock except that issued and held by it in Indiana, and uses and controls no franchises other than those granted by Indiana, except as lessees, and has not now, and never had, any indebtedness in Illinois, except for current expenses; that the State Board of Equalization of Illinois, at its first session, in August, 1873, adopted the following rule for the assessment of capital stock, including the franchises of railroad companies created under the laws of Illinois, (setting out said rule in hac verba,) which is the only rule ever adopted by said board for said purpose; that said board, at each of its sessions in 1873, 1874, 1875 and 1876, wrongfully, fraudulently, and without authority of law, assessed the complainant on capital stock and franchise in Illinois, as follows: for the year 1873 the sum of §2,919,184, for the year 1874 the sum of §1,125,139, for 1875 the sum of $1,004,416, and for 1876 the sum of §375,326; that the board, after fixing the value, distributed the same for taxation among the counties on the lines of its road, and fixed the tax thereon (the amount for each year in each county is fully set out); that the board, although well knowing complainant owned, etc., no capital stock, and had no indebtedness in Illinois except for current expenses, applied said rule to complainant as if it was a corporation organized under the laws of Illinois; that said tax is fraudulent and void because complainant had no capital stock or indebtedness in Illinois; that complainant is a common carrier of passengers and freight, and that in the performance of its duties as such it is necessary for its rolling stock to cross from Indiana into Illinois, but that the situs or location of said rolling stock is in Indiana; that it possesses all of said rolling stock as a corporation of Indiana; that said rolling stock is all listed and taxed in that State, and all the taxes thereon in that State have been fully paid by complainant.

On the 9th of December, 1880, complainant by leave filed ah. amendment to its bill, whereby it is alleged the State Board of Equalization of Illinois assessed the capital stock of the St. Louis, Alton and Terre Haute Railroad Company, for 1873, at $2,919,184; that said St. Louis, Alton and Terre Haute Railroad Company is a corporation of Illinois, owning a railroad extending from Terre Haute, Indiana, to East St. Louis, Illinois; that complainant is a corporation of Indiana, owning a railroad extending from Indianapolis to Terre Haute, in said State; that complainant, by virtue of a lease from the St. Louis, Alton and Terre Haute Railroad Company, has the right to use its rolling stock and machinery on the railroad of said railroad company, for which it pays a rental fixed by said lease, but that complainant owns no railroad in Illinois, and has no capital stock or bonded debt in said State; that the capital stock tax aforesaid is in addition to the tax on real estate and tangible property of said railroad company; that the aggregate amount of said capital stock for the year 1873 was distributed by the secretary of said board, and certified by the Auditor to the clerks of said counties as an assessment against the St. Louis, Alton and Terre Haute Railroad Company, and was not assessed by said State board or certified to said clerks as an assessment of the property of complainant, and is no lien upon its property, and complainant is not bound to pay taxes on said assessment; yet the defendants, to-wit, Adolph Ruegger, collector of Madison county, (and the others, naming them,) by virtue of warrants issued to them as collectors by said county clerks, are about to levy and sell complainant’s rolling stock and personal property used by it upon its leased line in Illinois.

The answer admits that complainant was originally a corporation of Indiana, with its general offices there, as alleged in the bill, but avers that on September 15, 1867, complainant, by written contract recorded, etc., leased from the St. Louis, Alton and Terre Haute Railroad Company, an Illinois corporation, certain lines of railroad and appurtenances in Illinois, which have been held and maintained by complainant ever since; that by an act of the General Assembly of Illinois, entitled “An act relating to the Indianapolis and St. Louis Railroad Company, and to authorize extension of said railroad,” approved March 10, 1869, it was enacted as follows: (setting out the act in hac verba.) Section 1 of said act confirms the lease aforesaid, according to its terms. Section 2 provides that the lessees (complainant), etc., shall he a railroad corporation in this State, under the style of “The Indianapolis and St. Louis Railroad Company,” and shall possess the same or as large power as the lessors, and such other powers as are usual to railroad corporations, and authorizes complainant -to extend said railroad. (Private laws 1869, vol. 3, p. 316.) That, as defendants are informed and believe, complainant accepted and acted under said act, and thereby became, and has ever since continued to he in this State, a corporation created and existing under the laws of Illinois, and has ever since held and operated said leased lines; that by the terms of the lease complainant was, during the term thereof, to pay all taxes, assessments and imposts, of whatever kind, which should he charged, levied, assessed or imposed upon said leased road, or that might be charged against the lessees by reason of its ownership of said road; that in pursuance of the assessment of the State board there was distributed, as capital stock assessment of the St. Louis, Alton and Terre Haute Railroad Company, for 1873, 1874, 1875 and 1876, the sums of money mentioned in the bill; that the taxes so levied were, in pursuance of said lease, charged to complainant, but were not levied as a tax on the capital stock of complainant.

The answer further states, that as to said taxes for 1873, 1874 and 1875, complainant filed its bill in the United States Circuit Court for the Southern District of Illinois, on the 20th of July, 1876, against James L. Vance and others, being the several collectors of the counties aforesaid, impleaded with John Fishback, collector of the city of Alton, in which bill complainant stated it was a corporation of Indiana, and a citizen thereof, with its general offices in Indianapolis, and made an exhibit of its articles of incorporation, as herein, and stated that on September 11, 1867, it leased of the St. Louis, Alton and Terre Haute Railroad Company its line of railroad in Ulinois, as described in said lease, and that it held and operated said line under said lease from the date thereof to the filing of said bill, and stating in said bill that it returned to the Auditor correct schedules of its property in Illinois, in said years 1873, 1874 and 1875; that the State board convened in each of said years, and assessed against complainant, as capital stock for said years, the several sums heretofore set out in the bill in this suit; that said assessment was unjust, illegal and "void; that said sums had been certified to the county clerks, who had extended the taxes thereon against complainant, and placed warrants in the hands of the collectors of said counties, who threatened to 'levy, etc., concluding with a prayer for injunction, etc.

It was also alleged in the answpr that an injunction was granted; that the defendants in the suit answered the bill, setting up the same matters in defence hereinbefore stated in this answer; that the complainant in the bill afterwards filed an amendment to the bill, and therein set out the act of 1869, and alleged that no person connected with complainant ever organized, subscribed for stock, or did any other act to incorporate under said act, and that no capital stock of the corporation referred to in said act was ever subscribed by the lessees referred to in said lease and act, and that all the capital stock owned by complainant was that subscribed to and issued by complainant, a corporation existing under the laws of Indiana.

The answer further sets up that upon a final hearing a decree was rendered, in which the bill was dismissed at complainant’s costs; that an appeal was taken to the Supreme Court of the United States, and the decree affirmed. It is also set up in the answer that as to the tax of 1876 a like bill was filed, answer put in, and a decision rendered thereon as in the other case.

After an amendment was made by complainant to the bill in 1880, defendants filed an answer to the same, in which it was in substance set up that the State board assessed the capital stock of the St. Louis, Alton and Terre Haute Railroad Company for 1873, as alleged in the amended bill; that said railroad company is an Hlinois corporation; neither admits nor denies that complainant is an Indiana corporation, as alleged in the amended bill, but avers that complainant is a corporation incorporated under the act of March 10, 1869, and is a corporation of Illinois, and accepted and acted under said act; admits complainant is operating said line of railroad by virtue of the lease aforesaid, but avers that in and by said lease complainant covenanted to pay the taxes, etc., during the term thereof, etc.; admits the aggregate amount of the capital stock of the St. Louis, Alton and Terre Haute Railroad Company for 1873 was distributed by the secretary of the board, and certified by the Auditor as an assessment against said railroad company, but avers the taxes extended thereon were charged to complainant in pursuance of the terms of said lease; admits said capital stock was not assessed against complainant, but avers the taxes are a lien upon the complainant’s property by virtue of the law and the lease aforesaid.

There is but one question presented by this record which it will be necessary to consider, as the determination of that fully settles the rights of the parties. That question is, whether the decree dismissing complainant’s bill in the Circuit Court of the United States for the Southern District of Illinois, and affirmed in the Supreme Court, is a bar to a recovery here. If the same matters were involved in that case as are involved in this, and the transactions were between the same parties, the decision must be held conclusive. This principle is so well and fully settled that we deem it necessary to cite but few authorities in support of the rule.

In Hamilton v. Quimby, 46 Ill. 90, it was held that a former adjudication of the matter in controversy is conclusive between the same parties in a subsequent proceeding upon the same matter, not only as to the matters actually determined, but as to every other thing then within the knowledge of the complainant which might have been then set up as ground for relief, and litigated in the first suit.

, In Rogers v. Higgins, 57 Ill. 244, it was held: “When a complainant in chancery presents his cause of action before the court, he should bring forward and urge all the reasons which then existed for its support. After a determination of the suit the controversy can not be reopened to hear any additional reason which before existed and was within the knowledge of the party, in support of the same cause of action. The principle of res judicata embraces not only what has actually been determined in the former suit, but also extends to any other matter properly involved, and which might have been raised and determined in it. ” See, also, Kelly v. Donlin, 70 Ill. 378, and Garrick v. Chamberlain, 97 id. 620.

As to the rule of law there can be no doubt. It then only remains to be determined whether the action set up in the answer was between the same parties, and involved the same matters that are involved in this action. The complainant in each case was the Indianapolis and St. Louis Railroad Company. The defendants were the same, the bill in the Circuit Court of the United States, as here, having been brought against the collectors of certain counties through which the railroad was constructed. The parties to the two bills may then be regarded as identical.

The only point upon which there is room for dispute, is in regard to the matters involved. The transcript of the proceedings in the case in the United States Court was read in evidence, and the decision of the case is reported,—Railroad Company v. Vance, 6 Otto, 450. From an inspection of the evidence it is apparent that the subject matter of each bill is the same. Each bill was brought for the purpose of enjoining the collection of a capital stock tax assessed by the State board for the years 1873, 1874, 1875 and 1876, upon the capital stock and franchises of the St. Louis, Alton and Terre Haute Railroad Company. The tax in each case which the railroad company sought to defeat was one and the same.

But it is said by counsel for the railroad company, that the issues involved in the case of Indianapolis and St. Louis Railroad Co. v. Vance were different from the issues involved in this case. In that case the bill sought to enjoin the collection of capital stock taxes against the complainant,—that is, the Indianapolis and St. Louis Railroad Company. In this case the bill seeks to enjoin the collection of capital stock taxes assessed against another corporation,—that is, against the St. Louis, Alton and Terre Haute Railroad Company. We do not regard this point well taken. The taxes sought to be defeated are the same in each suit. The testimony offered in each case shows but one assessment,—one valuation for the same years,—the same tax schedules, and the same identical"tax in question in each case. It is true a reason is urged to defeat the tax in this case which was not urged in the other case, but that can not affect the question. The court, in the ease in the Circuit Court of the United States, had jurisdiction of the parties and the subject matter, and the complainant was bound to bring forward every objection that existed to the validity of the- tax, and if he failed to do so he can not, in a subsequent suit, urge an objection which he might have insisted upon in the former action. Litigation must have a termination, and when a matter has been in issue, and the parties before the court, and opportunity afforded to assert their rights, they must be held concluded from afterwards litigating them in another proceeding. Briscoe v. Lloyd, 64 Ill. 33.

It is not, however, clear that the point now relied upon was not before the court in the Vance case. The court, in the opinion in that case, says: “The defendants, denying that there had been any assessment upon the capital stock of the complainant, insisted that the taxes in question were due upon assessments rightfully made by the State Board of Equalization of Illinois upon the capital stock and franchises of an Illinois corporation, the St. Louis, Alton and Terre Haute Railroad Company, over and above its tangible property, for so much of its main line and the Alton branch thereof as were leased to, and operated in Illinois by, the Indianapolis and St." Louis Railroad Company, to whom defendants claimed the taxes in question were therefore properly charged. ” Railroad v. Vance, 6 Otto, 450.

It is true the complainant alleged in the bill that' the assessment was made against the complainant; but that was expressly denied, and it was insisted that the assessment was made against the St. • Louis, Alton and Terre Haute Railroad Company, and, as we understand the decision, the court held that in fact the assessment was made against the St. Louis, Alton and Terre Haute Company, but that the taxes due upon such assessment were properly charged to complainant, under the act of 1869, and the lease under which it operated the road. The court say: “The State board therefore made an assessment upon the capital stock of the lessor corporation (the St. Louis, Alton and Terre Haute Railroad Company) for' that portion of the lines of railroad which passed from its control in virtue of the lease of 1867, and then distributed such assessment among the various counties on the lines of the leased railroads, in the proportion that the extent of track in the respective counties bore to the whole length of the leased lines in the State, the taxes due upon such assessment being charged to, and to be collected from, the Indianapolis and St. Louis Railroad Company, which, with the consent of the State of Illinois, as expressed in the act of March 11, 1869, was entitled to have and did have exclusive control and management of such leased lines. The mode thus adopted by the State board was, as we think, in substantial conformity to the laws of Illinois, and affords the complainant no just ground of objection. ” From this language of the court it is apparent that the manner in which the assessment was made was before the court, and fully passed upon; and the fact that complainant in the case had alleged that • the assessment was made against it, instead of alleging, as here, that it was made against the lessor corporation, cut no figure in the '* case. We are satisfied the decree in the Circuit Court of the United- States, as affirmed in the Supreme Court, is a bar to any relief here.

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

Decree reversed.

      At the time of filing this opinion originally, Mr. Justice Craig was Chief Justice.