author: Mr. Justice Mulkey Mr. Justice Walkee,

text:
    Arthur C. Weaver et al. v. Ernestine Weaver.

      Filed at Ottawa November 20, 1883.

    1. Contract—there must be mutuality. It is a rule of general application that a contract between parties sui juris must be mutual,'—that is, if either is bound both will be bound.
    2. Widow’s award— of the widow’s rights in respect thereto—power of disposal. After a widow’s rights in respect to what is termed the “widow’s award,” have once accrued to her by the death of her husband, she may exchange the specific articles of property awarded to her by the statute, or she may release her right to them altogether, or dispose of it the same as of any other property of which she is the absolute owner.
    3. Same—waiver by ante-nuptial agreement, and acceptance under it. A widow having a family consisting in part of the decedent’s children, is entitled to her award out of the personal estate, notwithstanding there is an outstanding ante-nuptial executory contract by which she has agreed to accept a certain sum of money, or something else in lieu of it,—in other words, so long as such contract remains executory she may repudiate it.
    4. But where an ante-nuptial contract is fairly made and entered into, and the intended wife is not imposed on or overreached, whereby, in consideration of a certain sum of money directed to be paid to her on the husband’s death, she releases and relinquishes all rights, interest or claims she might otherwise have had in his estate, either as heir, widow or otherwise, and after his decease, without any fraud or imposition, accepts and receives from the husband’s executors such sum of money in lieu of all her claims upon the estate, this will bar any claim, under the statute, to a widow’s award, and her right by such acceptance to repudiate the contract will no longer exist. By such acceptance the widow will be estopped from asserting any claim to such awards whether, there are any children of her husband remaining with her as a part of her family or not. What is said in Phelps v. Phelps, 72 Ill. 545, in regard to the power of the widow to dispose of her award, is not to be understood as opposed to the doctrine here laid down.
    Appeal from the Appellate Court for the First District;—; heard in that court on appeal from the Circuit Court of Cook county; the Hon. Wm. H. Baentjm, Judge, presiding.
    Ernestine Weaver, widow of Daniel Weaver, lately of Chicago, deceased, on the 3d day of November, 1881, filed in the probate court of Cook county a petition, praying that her award as widow be set off and assigned to her out of his estate. The probate court refused to allow the petition, and entered an order dismissing the same, from which order she appealed to the circuit court, where the matter was heard de novo, resulting in an order allowing the petition, which, on appeal by Weaver’s executors, (the appellants here,) was affirmed by the Appellate Court for the First District, and the executors bring the case here for- review.
    The petition alleges that the petitioner “is the widow of Daniel Weaver, deceased; that she formerly lived in New Orleans, Louisiana; that Daniel Weaver resided in Chicago, Illinois, in 1877, having also formerly resided in the State of Louisiana for some time, and been engaged in business there; that he was familiar with the laws of Louisiana; that being about to marry, he and the petitioner entered into a certain agreement prior thereto, at New Orleans, as per copy attached to petition, and made part thereof; that said marriage was duly had on June 2, 1877, and petitioner removed with her said husband to Illinois at once, and there resided until his death, on July 24, 1881; that at the time of said marriage petitioner had one female child by a former marriage, then about eight years of age, who then lived, and still lives, with petitioner, and that petitioner had no property of her own; that Daniel Weaver died seized of a large property, situate mostly in said county of Cook, and leaving a will, now duly probated in said probate court, to which reference is had; that said deceased left him surviving petitioner, (his widow,) John Weaver, Arthur Weaver, and Mrs. Ella Lewis, his adult children by a former marriage, who are made executors ; that she was recently for the first time informed of the statutory provision of Illinois for widow’s awards; that Louisiana has no such provision, and that she executed said ante-nuptial contract in ignorance of such a provision, and did not intend to waive her rights thereto by said marriage contract ; she therefore prays for appointment of appraisers to set off her award. ”
    The ante-nuptial agreement, dated June 1, 1877, between Daniel Weaver and petitioner, sets out the intended marriage of the parties; that said Weaver is possessed of considerable property, and is desirous of making some fit and suitable provision for the support and maintenance of petitioner, after his death, in case he does not survive her, and then proceeds as follows: “Now, therefore, in consideration of the premises, and of one dollar in hand paid by the said party of the second part, (Ernestine Weaver,) to him, the said party of the first part, (Daniel Weaver,) the receipt whereof is hereby acknowledged, and in consideration of the covenants and agreements of said party of the second part, hereinafter set forth and contained, the said party of the first part, for himself, his heirs and personal representatives, hereby covenants, bargains and agrees to and with the said party of the second part, her heirs and personal representatives, that in the event of his death, leaving her, the said Ernestine Hill, (now Weaver,) him surviving, as his widow, there shall be paid to her out of his estate, to be in lieu of all her claims, whether as his widow, heir, or otherwise, of whatsoever name or kind, and in lieu of her dower or widow’s portion of, in or to his estate, real, personal or mixed, and in full and absolute discharge of any and all such claim, right or interest of, in and to his said estate, the sum of twelve thousand (12,000) dollars, to he paid to her by his executors or administrators, at the time and in the manner following, namely: $2000 to be paid to her within ten days after the executors or administrators shall be qualified to act as such, and the balance of said sum, (i. e., $10,000,) in two equal installments, of $5000 each, to be paid, respectively, in three and six months from and after their being so qualified, and the receipts thereof shall be sufficient vouchers to his said executors or administrators for such disbursements. ' And the said party of the second part, for herself, her heirs, executors and administrators, doth covenant and agree to and with the said party of the first part, his heirs and personal representatives, that in consideration of the covenants and agreements aforesaid of the said party of the first part, and of the provision thereby made for her use and benefit, she will, and for the consideration aforesaid she does, hereby forever relinquish, release and discharge all claim, right or interest, of every name, kind or nature, whether present, in expectancy, or otherwise, whether for dower or as his heir, in the estate of the said party of the first part, whether possessed or owned by him at the time of their marriage, or acquired by him subsequent thereto, and that she will receive and accept the aforesaid sum or sums of money in lieu of, and in full satisfaction and discharge of, any and all such claims, rights or interests in the said estate of the said party of the first part, and that she will, at any and all times after their said marriage, upon the request of the said party of the first part, duly execute and acknowledge any and all such deeds of conveyance, mortgages, trust deeds, releases, acquittances, or other instruments in writing as may be necessary and proper for the conveying, releasing, satisfying or discharging any and all her interest, right, title or claim, whether as owner, heir, or otherwise, of, in and to the estate, real, personal or mixed, of the said party of the first part, whenever and however the same may be situated. The true intent, object and meaning of these presents is to settle upon the said party of the second part a sum in gross, being the sum herein first above mentioned, to stand and to be, in substance, for and in lieu of all claims to or interest in the estate of said party of the first part which said party of the second part would or might have in case this agreement, and the covenants herein contained, were not made or entered into. ”
    This agreement was duly signed and sealed by the parties, and formally acknowledged by them on the same day, in the city of New Orleans, Louisiana, where it was executed. The answer to the petition admits the material facts therein charged; shows that Weaver had two other children by a former marriage, not named in the petition; that he had no children by petitioner, and that all the children by his former wife were adults, and that but one of them constituted a part of his family at the time of his death, and denies he was familiar with the laws of Louisiana.
    For the purposes of the hearing, and the decision to be rendered in this case, it was stipulated as follows: First, that all the conditions of said ante-nuptial contract have been fully performed by said executors; second, that there were no children born of the marriage between said Daniel Weaver and said petitioner; third, that the children of said Daniel Weaver by his former marriage were all of age prior to his decease, and only one of them, (i. e., the said Arthur 0. Weaver,) resided with him at the time of his decease; and fourth, that Zemma Hill, the female child referred to in said petition, is a daughter of petitioner, aged as stated in the petition, and resided with Daniel Weaver from the time of petitioner’s marriage with him, to his death. Also, that petitioner, if examined as a witness in the ease, would testify that at the time she signed said ante-nuptial agreement she was ignorant of the laws of Illinois in reference to widow’s award,— this admission being made subject to all objections which might be urged to the testimony of the petitioner if examined as a witness in the case; and also that the amount in controversy in this proceeding exceeds $1000, exclusive of costs.
    Mr. C. C, Kohlsaat, for the appellants:
    The cases holding that a widow is not barred from her specific award by an ante-nuptial contract, are based upon the fact that the children of the deceased husband have rights in the same. Strawn v. Strawn, 53 Ill. 263; Recht v. Kelly, 82 id. 147; McGee et al. v. McGee et al. 91 id. 548; McMahill v. McMahill, 105 id. 596; Phelps v. Phelps, 72 id. 545; Tiernan v. Binns, 92 Pa. St. 248; Dillinger’s Appeal, 11 Casey, 359; Estate of Young, 27 Hun, 54; Brenner v. Gauch, 85 Ill. 368.
    From the foregoing authorities it seems plain that a widow’s award may be waived by ante-nuptial contract, when there are no children of the marriage, or of the decedent, interested in having the award set off.
    Mr. Melville W. Fuller, for the appellee:
    The widow’s award can not be waived by an ante-nuptial agreement. Rev. Stat. chap. 3, secs. 70, 74, 75, 76.
    The widow is a creditor of the estate to the extent of her separate allowance. Cruce v. Cruce, 21 Ill. 461; Deltzer v. Schuester, 37 id. 301.
    On the death of the widow her specific allowance passes to her administrator. York v. York, 38 Ill. 522.
    This is not a case of election as to taking under a will, or the statutory allowance, as in Cowdrey v. Hitchcock, 103 Ill. 272. The law having charged a decedent’s estate with the support of his widow and his children for the period of one year, it is against the policy of the law to allow the widow’s award to be waived or cut off by an ante-nuptial agreement. Phelps v. Phelps, 72 Ill. 545; Kneetle v. Newcomb, 22 N. Y. 249; Harper v. Leal, 10 How. Pr. 282; Sanderlin v. Sander

      lin, 1 Swan, 441; Strawn v. Strawn, 53 Ill. 274; Heirs of Sawyer v. Sawyer, 28 Vt. 245; McGee v. McGee, 91 id. 48.
    If the agreement, when made, could not be construed to bar the widow’s award, how can a compliance with it have that effect ? Suppose the agreement had provided for payment in two years after the death, would the probate court have power to suspend the allowance of an award until such payment was made ? But the agreement did not cover the widow’s award. As to that she was a creditor of the estate. Cruce v. Cruce, 21 Ill. 461; Deltzer v. Schuester, 37 id. 301.

   Mr. Justice Mulkey

delivered the opinion of the Court:

Viewed in the light of the preceding statement and the arguments of counsel, this case, so far as its legal aspects are concerned, is brought within a very narrow compass. Although it is conceded the petitioner, if examined as a witness, would swear that at the time of the execution of the ante-nuptial agreement she was not aware that a widow, under the laws of this State, was entitled to what is known as the “widow’s award,” yet, waiving the question of the competency of such testimony, it is to be noted the agreement itself, which she must be presumed to have understood, in the absence of any claim in the petition to the contrary, expressly provides the $12,000 was “to be in lieu of all her claims, whether as his ividow, heir, or otherwise, of whatsoever nature or kind, and in lieu of dower or widow’s portion. ” The expression, “widow’s portion, ” in this connection, evidently means substantially the same thing as widow’s award. So, conceding she did not know what the law of this State was in the respect mentioned, yet she did know that by the agreement she relinquished and waived all right and claim to such a provision out of her intended husband’s estate, whether the laws of this State gave it to her or not, and in that view it is difficult to perceive what difference it makes whether she did or did. not know what the law was on that subject. There is no claim, or foundation for the claim, there was any unfairness or overreaching on the part of the deceased, or any one else, by which she was induced to enter into said agreement; and in view of the fact she had no estate whatever of her own, with an infant daughter to be maintained, and the further fact the deceased at that time must have been well up in years, we are unable to say the agreement was not fair, and even liberal, on his part. But in the absence of any claim of fraud or overreaching, this is a matter of little, if any, importance. The vital inquiry is : First, what was the intention of the parties with respect to such claims as appellee would, as heir, widow, or otherwise, have against his estate if no agreement were made between them ? Did they intend, in the event she survived him, she should receive anything out of or from his estate in addition to or in excess of the $12,000, after its payment by his legal representatives, as in the agreement provided? Second, what is the legal effect of said agreement with respect to any such claims after the payment of that sum by the executors ?

As to the intention of the parties we think there is no room for doubt. It would be difficult to conceive of terms more appropriate and effective to express a clear and unequivocal purpose and intention on the part of both the contracting parties, that the payment of the $12,000 to the widow by the decedent’s legal representatives should operate as a complete discharge and satisfaction of all claims whatsoever, including the one in question, she would, as his widow, heir, or otherwise, have against his estate. From this conclusion the answer to the second inquiry follows as a matter of course, provided such an agreement is obligatory and enforeible under the laws of this State, and upon this question the decision of the ease hinges.

As the question has been ably and fairly argued by counsel on both sides, we have been relieved of much labor which its consideration would otherwise have cost us. It will therefore he unnecessary to enter upon a general review of the authorities for the purpose of expressing our own views, as it is believed most, if not all, the cases having a direct bearing on the question have been cited and commented on in one or the other, or both, the briefs of counsel.

While it is not claimed in precisely so many terms, yet the inexorable logic of appellee’s position is, that the surviving widow, having a family, is wholly powerless to do anything by way of execution or performance of an ante-nuptial contract, which gives to the wife a specific sum of money out of her husband’s estate in lieu of the award which the statute gives to her as his widow, that will be a bar, or defeat the right to such award,—or, in other words, the claim is, that in such case, upon the death of her husband, she may go to' his executors and collect from them, as was done in this case, the amount which they were bound to pay her under the ante-nuptial contract in lieu of the award, and then turn round and compel them to pay the award also. If such a position as this can be maintained it is certainly an anomaly in the law. It is a rule of general application in the law of contracts, that a contract between parties sui juris must be mutual,—that is, if either is bound, both will be bound. Now, suppose the widow’s award and dower in this case had turned out to be worth less than the $12,000, and the executors for this reason had declined to perform the agreement on their part, and she now, instead of seeking to have her award allotted to her, were prosecuting a suit on the agreement to recover the $12,-000, is it not manifest she would be entitled to recover ? And yet we are unable to perceive on what principle this could be so unless she were also bound by the agreement. The result of the decisions of this court, as we understand them, go to this extent, but no-further: A widow having a family, consisting. in part of the decedent’s children, is entitled to the widow’s award, notwithstanding there is an outstanding ante-nuptial executory contract, by which she has agreed to accept a certain sum of money, or something else in lieu of it. In other words, under the circumstances stated, so long as the contract remains executory she may repudiate it; but when, without fraud or imposition, she deliberately accepts from her husband’s legal representatives that which, by the terms of the contract, she was to receive in lieu of the award, the right to repudiate the contract at once ceases, and under such circumstances she is estopped from setting up a claim to the award itself,—and this is clearly right, upon the plainest principles of natural as well as legal justice.

We are aware that general expressions are to be found in some of the cases, particularly that of Phelps v. Phelps, 72 Ill. 545, which seem to go further than we have stated; but these expressions are to be limited by the actual facts in the cases in which they were made. The only thing actually decided by the Phelps case is, that the award of a widow having a family, consisting in part of a minor child of the deceased, is not barred by an unexecuted ante-nuptial contract, and this is in strict conformity with the rule as laid down in the other cases in this, court bearing upon the question. Brenner v. Gauch, 85 Ill. 368; Cowdrey v. Hitchcock, 103 id. 272.

The expressions just alluded to, upon a casual consideration, may be supposed to sanction the view that the children of the deceased, being members of the widow’s family, have some vested interest in her award, or that it is, in some sense, trust property, held by her for the common benefit of the family, particularly the children of the deceased, and that on this ground she is unable to dispose of it. These expressions, properly understood, do not warrant any such conclusion. They were directed to the policy of the law, or the motives which led to its adoption, and were not intended to be understood as defining or limiting vested rights under it. The language of the statute giving the right, negatives such a hypothesis in the very strongest possible terms. It expressly declares the statutory articles shall be allowed to the widow “as her sole and exclusive property forever. ” When this right once accrues to her by the death of her husband, it is well settled she may exchange the specific articles of property awarded to her by the statute, or she may release her right to them altogether. (Telford v. Boggs, 63 Ill. 498; Simmons v. Johnson, 47 id. 350.) These cases, as well as the very words of the statute, clearly show she has the same dominion and power of disposition over her award that any other absolute owner has over his property. Such being the case, upon what principle can it be said that after having acquired a vested interest in her award, as she does immediately upon the death of her husband, she may deliberately accept an equivalent for it, as fixed by her ante-nuptial contract, and yet not be bound by her acceptance ? No one, we presume, will question her right to sell or otherwise dispose of any or all of the articles of property she takes under the statute, in such manner as she may think proper, and that in the absence of fraud or imposition of any kind she will, like other persons sui juris, be bound by her contracts. Now, suppose some one other than her husband’s executors had gone to appellee and offered her the $12,000 for her entire interest in the estate, and she had accepted it, as she did from them, all will concede, we presume, that in the absence of fraud, mistake or imposition of any kind, she would have been bound by her acceptance,—and yet, on principle, there is manifestly no difference between the two cases.

It is well settled that in determining the amount of the widow’s award, without regard to whether there are children of the deceased or not, all who constituted members of the family at the time of his death, including servants and adults, are to be taken into the account. (Strawn v. Strawn, 53 Ill. 263.) Yet it does not necessarily follow, where there are no such children, the widow would be absolutely bound, as in any other case, by an executory ante-nuptial contract, when fairly entered into; but inasmuch as we hold she is bound by such an agreement, where it has, in good faith, been fully executed by the husband’s legal representatives, whether there be such children or not, that question becomes unimportant in this case, and it is therefore unnecessary to discuss it. However that question may be, from an examination of the cases to which our attention has been called, and of all that occur to us relating to this subject, it will be found that in every case where it has been held the widow was not bound by the ante-nuptial agreement, the widow’s family consisted in part of a child, or children, of the deceased husband, and that the agreement was unexecuted by his legal representatives. So far the matter has come in actual judgment, and is authoritatively settled, but no farther. On the other hand, the cases already cited fully establish that where such an agreement has, in good faith, been fully performed by the husband’s legal representatives, the widow will be concluded by it, whether there be any such children or not.

The judgment of the Appellate Court is reversed, and the cause remanded, with directions to' reverse the order of the circuit court and dismiss the petition.

Judgment reversed.

Mr. Justice Walkee,

dissenting:

I regard the decision in this case as repugnant to Phelps v. Phelps, 72 Ill. 545, and subsequent cases based upon it. As I understand that case, it holds that the claim of the widow to specific articles of personal property is not the subject of contract or ante-nuptial agreement. It is there held that such a contract is forbidden by the policy of our statutes, and the opinion of the majority of the court, in this case, holds it is the subject of ante-nuptial contract, and virtually overrules the decision in that case. Whilst I dissented in that case, I am, after such a length of time, unwilling to overrule or impair the force of that decision. I therefore dissent to the decision of the majority of the court in this case.

Mr. Justice Scott, also dissenting.


source: Caselaw Access Project

author: Mr. Chief Justice Sheldon

license: Public Domain

text:
    South Chicago Railroad Company v. Morgan Dix et al.

      Filed at Ottawa November 20, 1883.

    1. Eminent domain—condemnation for switches, turn-outs and sidetracks—limitations and conditions. A railway corporation organized under the general act of 1872, and the amendment thereto of 1877, is expressly empowered to condemn land for the purpose of switches, turn-outs and sidetracks, when necessary for the successful operation of its road.
    2. The general Railroad act requires the persons incorporating a company to name the places from and to which it is intended to construct the proposed railway, but no limitation is laid down as to the places where switches, turnouts or side-tracks shall be constructed.
    3. Under the power of an incorporated railway company to condemn land necessary for side-tracks, turn-outs or switches, it has no right to take land for the construction of an independent branch road to subserve only new private interests.
    4. But it is no valid objection to the condemnation of a strip of land for a switch or a side-track of a railway corporation, that the proposed track may serve private use, if in addition to serving such use it is one also necessary for the successful and convenient operation of the main line of the railroad.
    5. "Where a railway corporation is limited by the authorities of an incorporated village or town to thirty feet in the center of a public street on which to locate its main track, and it becomes necessary to construct a switch or sidetrack, it is no objection to the condemnation of land for that purpose that it runs perpendicular to the main track, there not being room enough in the right of away along the street for the side-track in addition to its two main tracks.
    6. To deny a petition of a railway company for the condemnation of land for a side-track, it should appear that the object thereby sought is clearly an abuse of power, and a taking of private property for an object not required for the convenient operation of the road.

      Appeal from the County Court of Cook county; the Hon. Richard Prendergast, Judge, presiding.
    This was a petition by the South Chicago Railroad Company, under the Statute of Eminent Domain, for the condemnation of a strip of ground thirty feet in width, extending north from Seventy-first street, in Hyde Park, through blocks 12, 7 and 4, crossing Seventieth and Sixty-ninth streets, to a lot of land, part of block 4, occupied by the water-works of the village of Hyde Park and town of Lake,—a distance of 1651 feet. The petition alleges the petitioner to be a corporation organized under the laws of the State, and authorized to construct and operate a line of railroad from a point on the line of the Illinois Central railroad between the stations of Hyde Park and Grand Crossing, on said road, in the township of Hyde Park, to the village of South Chicago, in said township; that petitioner had located its line of road, and that the said strip of ground was necessary for the right of way, side-tracks, depot grounds, appurtenances, etc., required by the petitioner to construct its railroad. Certain of the defendants filed a motion to dismiss the petition, and the affidavit of William D. Kerfoot in support of the motion. In opposition to the motion, the petitioner submitted its articles of incorporation, an ordinance passed by the president and trustees of the village of Hyde Park on the 3d of April, 1882, giving the petitioner permission to construct its line in said village, and locating the part in question upon the strip sought to be condemned, and the affidavit of Edward T. Jeffrey. A plat of the premises was offered, showing the land described in the petition, and the location of the railroad. The court sustained the motion, and entered an order dismissing the petition, and the petitioner appealed to this court.
    By the ordinance of the board of trustees of the village of Hyde Park, of April 3, 1882, the petitioner is granted permission to locate and construct a line of railroad upon the following route in the village of Hyde Park, namely: Beginning at a point on the Illinois Central railroad near Seventieth street, thence south-easterly on a curve to Seventy-first street, and thence east on the center thirty feet of Seventy-first street to Railroad avenue; thence on Railroad avenue, and along that part of it lying within fifteen feet on each side of the center line thereof, etc., to South Chicago; also, from a point on the first described line, near the east line of section 24, northerly, on a curve, to a point near the west line of Yates avenue, thence north on land west of Yates avenue to the Hyde Park water-works. The last is across the lands here sought to be condemned. The ordinance further provides, “that one or more tracks shall be laid down and ready for operation, from the junction with the Illinois Central railroad to South Chicago, and from that line to the Hyde Park water-works, within twelve months from the passage of this ordinance; and said company shall switch to said waterworks for the village of Hyde Park, at the usual rates charged for similar service, such coal, in car load lots, as may be needed for use at said works, in default whereof (including other requirements) the rights and privileges hereby granted shall cease, and be null and void.”
    The affidavit of Kerfoot sets forth that he is a real estate agent, and that the strip of ground in the petition mentioned is a strip which, after making the curve therein described, extends upon a line perpendicular to said Seventy-first street, north, to the water-works of the village of Hyde Park; that the strip is now actually occupied by the railroad company, not as a part of its line to South Chicago, but as a branch or spur road, running northerly therefrom, and is used, or designed to be used, by certain coal dealers who supply, or are expected to supply, coal to be used at said water-works; that such branch is not designed to be used or available for use by the general public, either for freight or passenger traffic, or for any other or different use than that to which it is to be put by said coal dealers.
    The affidavit of Jeffrey is, that he is the general superintendent of the South Chicago Railroad Company; that the company has completed a double track railroad, extending from the Illinois Central railroad to South Chicago, it being, for the most part, upon and along certain public streets in the village of Hyde Park; that the land sought to be condemned is required for a side-track, which is necessary for the convenient and successful operation of the railroad, as well as to reach the water-works; that as the company is restricted to the use of thirty feet in width along the center of said streets, there is not sufficient room in the space so limited for the construction of any side-track, and the company is compelled to seek such necessary facilities, outside of the street, as will best suit its business and the accommodation of the public; that the use of the said side-track is indispensable for the delivery of freight, and for the switching, storing and handling of cars; that, in his opinion, it would be impossible for the railroad company to operate conveniently and successfully its line of road if deprived of the side-track in question, it being impracticable, under the provisions of the ordinance, to locate and construct a suitable side-track except upon the premises in question. The South Chicago railroad extends five miles in length.
    Mr. W. C. Goudy, for the appellant:
    The railroad company is the proper judge of what land is necessary for the successful operation of its road. The power to condemn for switches is given by the statute. The court can not refuse the petition unless it can see that there is clearly an abuse of power in taking private property for an object not required for the convenient operation of the road. Dillon on Mun. Corp. secs. 405, 456; Chicago, Rock Island and Pacific R. R. Co. v. Lake, 71 Ill. 336; People v. Smith,
      21 N. Y. 505; Railroad Co. v. Kip, 46 id. 546; Lake Shore and Michigan Southern R. R. Co. v. Chicago and Western Indiana R. R. Co. 97 Ill. 506; Smith v. Chicago and Western Indiana R. R. Co. 105 id. 511; New York Central R. R. Co. v. Gas Light Co. 63 N. Y. 326; Chicago and Western Indiana R. R. Co. v. Dunbar, 100 Ill. 125.
    The power to condemn lands necessary for the road is impliedly granted. Mills on Eminent Domain, sec. 59; Getz’s Appeal, 3 Am. & Eng. Ry. Cas. 186; Toledo and Wabash Ry. Co. v. Daniels, 16 Ohio St. 390; Railroad Co. v. Speer, 56 Pa. St. 325; Protzman v. Railroad Co. 9 Ind. 467.
    In Illinois express statutory power is given therefor by section 17 of the general Railroad act. Philadelphia, Wilmington and Baltimore R. R. Co. v. Williams, 4 P. F. S. 103; Cleveland and Pittsburg R. R. Co. v. Speer, 6 id. 335; Black v. P. and R. R. R. Co. 8 id. 252; Protzman v. Railroad Co. 9 Ind. 467; Fall River Iron Works v. Railway Co. 5 Allen, 221; Carson v. Railroad Co. 35 Cal. 325; Commomvealth v. Railroad Co. 14 Gray, 379; Railway Co. v. State, 3 Ind. 421.
    The proposed track is a side-track or switch, or an appurtenant track, and not a separate and independent branch road.
    Messrs. Paddock & Addis, for the appellees:
    The county court had jurisdiction to judge for itself, and. by extrinsic evidence, whether or not the railroad authorized by the charter was in fact located across or upon the land sought to be condemned. Such location on defendant’s land was the condition precedent of the power of the court to act upon the petition at all. The statute having provided no other mode, it was proper to raise the question of dismissal in the mode pursued. General Railroad Law, sec. 18; Eminent Domain Law, secs. 1-10; Smith v. Chicago and Western Indiana R. R. Co. 105 Ill. 511.
    The jurisdiction was properly exercised by the dismissal of the petition, on the grounds shown in the affidavits. General Railroad Law, sec. 18; Eminent Domain Law, secs. 1-10; Smith v. Chicago and Western Indiana R. R. Co. 105 Ill. 511; Chicago, Burlington and Quincy R. R. Co. v. Wilson, 17 Ill. 123; St. Louis, Jacksonville and Chicago R. R. Co. v. Trustees, 43 id. 303; City of East St. Louis v. St. John, 47 id. 464; Peoria, Pekin and Jacksonville R. R. Co. v. Peoria and Springfield R. R. Co. 66 id. 174; Mitchell v. Illinois and St. Louis R. R. Co. 68 id. 288; Chicago, Rock Island and Pacific R. R. Co. v. Town of Lake, 71 id. 333; Chicago and Western Indiana R. R. Co. v. Dunbar, 100 id. 110; Cooley’s Const. Lim. 530.
    Power to build a branch depends on express statute. Morris and Essex R. R. Co. v. Central R. R. Co. of New Jersey, 2 Vroom, 205; Balt, and H. Turnpike Co. v. Union R. R. Co. 35 Md. 224.
    As to what is a lateral road, and under what authority it may be built, see Newhall v. G. and C. U. R. R. Co. 14 Ill. 273.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

The South Chicago Railroad Company was incorporated under the general act for the incorporation of railroad companies, in force March 1, 1872, and the amendment thereto, of May 11, 1877. The power to condemn property for the purpose of switches, turn-outs and side-tracks, is conferred, in express terms, by section 17 of the act. By the act, the persons incorporating a company are to name the places from and to which -it is intended to construct the proposed railway, but no limitation is laid down as to the places where switches, turn-outs, or side-tracks are to be constructed. When it is necessary to cross or occupy streets in cities or villages, the consent of the authorities thereof must first be obtained, as provided by clause 5, of section 19, of the act. Hyde Park is incorporated as a village under the general law, and clause 25, section 62, of the law, confers power on the board of trustees “to provide for the location, grade and crossing of any railroad. ” This railroad and this proposed track being within the limits of the village of Hyde Park, its board of trustees have by ordinance fixed the location of the main line of the road and this proposed track, determining what streets the road might occupy and cross.

The question in the case is, whether the proposed track is a switch or side-track, or is it an independent branch road. Appellant contends for the former, and appellee for the latter, and it is conceded by appellant’s counsel if the track he this latter, there is no right to build it, and no power to condemn land for it.

As showing the proposed track to be an independent branch road, the fact of the track running to the water-works of the village, and being used for carrying coal to those works, is relied upon, as also the provision of the ordinance making it a condition that this track should be built to these waterworks of the village. It is insisted that this is a mere private use, and that the track was built to serve this use, and because the company was obliged to build it by the requirement of the ordinance. This certainly shews that the track does serve this private use, and that it was designed to do so; and if it served this use merely, and was not an aid in the convenient operation of the main line of the railroad, appellee’s position would be maintained. But if, in addition to serving such use, the track be one which is necessary for the convenient operation of the main line of the railroad, then it may properly come within the purview of a side-track. A side-track can surely be none the less such, because, in addition to the purposes of a side-track proper, it subserves some other private individual use.

There is little force in the circumstance that the track runs perpendicular to the main line. That was the location made by the board of trustees, who had the power of fixing the location. It appears that within the thirty feet in width along the streets to which the company was restricted, there was not room, in addition to the two main tracks, for the construction of any side-track, and the company was compelled to go outside of the street for a side-track, and the place of its location it was for the company and the authorities of Hyde Park alone to determine.

All that appears in the record upon the subject of the character of the track is the petition, plat, and the affidavits of Kerfoot and Jeffrey. As between the opposing opinions of the two latter whether the proposed track is a branch road or a side-track, that of the manager of the railroad is, we think, entitled to higher consideration than that of the real estate agent. To deny "the petition it should appear that what is sought is clearly an abuse of power, and a taking of private property for an object not required for the convenient operation of the road. See Matter of B. and A. R. R. Co. 53 N. Y. 574; In re N. Y. C. R. R. Co. v. M. G. L. Co. 63 id. 326; Chicago, Rock Island and Pacific R. R. Co. v. Town of Lake, 71 Ill. 333; Smith v. Chicago and Western Indiana R. R. Co. 105 id. 511; C. and P. R. R. Co. v. Speer, 56 Pa. St. 325; In re N. Y. C. and H. R. R. Co. 77 N. Y. 248.

The petition avers that the land asked to be condemned is necessary for the right of way, side-tracks, etc., required to construct the railroad. The statement of the manager, Mr. Jeffrey, is most distinct that the land is required for a side- • track, which is necessary for the convenient and successful operation of the railroad. It can not, we think, be said, from anything appearing in the record, that the proposed track was for a use foreign to the purposes of the main line of the railroad, and not needful for its operation.

We are of opinion the court below erred in dismissing the petition, and not submitting the case to the jury to assess the damages, and the judgment must be reversed and the cause remanded.

Judgment reversed.


author: Mr. Justice Cbaig

text:
    Eliza Heacock v. Charles B. Hosmer.

      Filed at Ottawa January 23, 1884

      Rehearing denied March Term, 1884.

    1. Practice—petition for change of venue in chancery case must be preserved in record. A petition for a change of venue is a mere motion made in a case, and, like other motions, does not become a part of the record in a suit in chancery unless embodied into a bill of exceptions, on certificate properly signed by the presiding judge. The rule in equity, in this respect, is the same as at law.
    2. Same—what is part of record in chancery suit. The pleadings in a chancery case, and exhibits, and depositions in writing, are a part of the record, and no certificate of evidence is required to make them such; but the testimony of witnesses called to testify on the hearing and motions made in the case do not become a part of the record unless preserved by bill of exceptions or certificate of the judge. A petition for a change of venue is not a pleading.
    3. Burnt Records act—sufficiency of petition. A petition to establish and confirm title under the Burnt 'Records act, which gave a description of the land, and averred that the petitioner had an estate in fee simple therein, giving the chain of title under which he claimed, also the names of the persons in possession and those claiming title in opposition, is good under the statute, and such statute is a valid law.
    4. Same—petition construed, as showing defendants in possession claiming the fee. A petition to confirm title under the Burnt Records act, in attempting to state the parties claiming title adversely, stated “that the following persons own or claim, as your orator is informed and believes, an estate in fee or some interest in said lands, or some part thereof, as is hereinafter stated, as follows,” giving their names, and stating there were no others claiming the same': Held, that while the language used did not perhaps express the meaning of the pleader as clearly as might have been done, still, in substance the averment was sufficient, amounting to an averment that the parties named were in possession of the premises, claiming the fee.
    5. Jury—right to trial by, does not extend to equity cases. The present constitution of the State preserves the right of trial by jury in all cases where that right had existed before its adoption. The right to such trial does not extend to cases in equity, but is confined to cases at law. The act known as the Burnt Records act is not, therefore, unconstitutional, in depriving a party of a trial by jury.

      6. Same—waiver of right by not ashing one.' A party who abides his demurrer to a petition filed under the Burnt Records act, is not in a position to raise the question of the constitutionality of the act, as not giving a right to trial by jury. The defendant in such petition, by not demanding a trial by jury, waives that right, even if entitled to it under the constitution.
    7. Chancery—no evidence of facts admitted by demurrer is necessary. It is a fundamental rule, applicable alike to proceedings in equity as well as at law, that no proof is required of any fact which is admitted by the record to be true. So when a party admits the truth of a petition under the Burnt Records act, by demurring to the same, and abides his demurrer when overruled, he can not object that no evidence is given in support of the allegations of such petition.
    8. Same—when evidence is necessary under the Burnt Records act. Under the Burnt Records act, in only two classes of cases is proof required in support of the petition. All other cases are governed by the general rules of chancery practice. When the defendant fails to answer or demur, and a decree is entered against him by default, or when the facts set forth in the petition are put in issue by an answer, the plaintiff is bound to support his petition by evidence, and in either case the evidence must be set forth in the decree.
    9. The statute requiring the evidence to be set forth in all decrees against married women, etc., was intended to mean all cases where the statute or general rules of chancery practice require evidence to be heard,—or, in other words, where the decree is founded on evidence, and not on the admissions of the parties. It does not require evidence to be set forth when a party interposes a demurrer which is overruled, and he abides the same.
    Appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    Mr. J. Burnham, for the appellant:
    We do not claim that the Burnt Records act is unconstitutional,- but we claim it does not invest a court of chancery with jurisdiction to try a legal question of title to land. If it does, in that respect it is unconstitutional, as depriving the defendant of a trial by jury. Ward v. Farwell, 97 Rehearing 593; Whitney v. Stevens, id. 482.
    The act is not only in derogation of the common law, but it trenches so closely on constitutional limitations that it should be strictly construed. This court has uniformly held that a party out of possession is not entitled to sue for possession in chancery against one holding adversely.
    Mr. E. A. Otis, for the appellee:
    The petition for a change of venue not being preserved in the record by a bill of exceptions, though copied into the transcript, can not be considered. McElwee v. People, 77 Rehearing 493; Bedee v. People, 73 id. 320; Schlump v. Reidersdorf, 28 id. 68.
    In equity cases, depositions and exhibits made part of the bill and answer, and filed with them, become part of the record; but other evidence, motions, affidavits or proceedings must be made part of the record by certificate. Moss v. McCall, 75 Rehearing 190; Brockenbrough v. Dresser, 67 id. 225; VanPelt v. Dunford, 58 id. 145.
    The certificate contains no petition, affidavit or notice to the other side, all of which are essential. This court has repeatedly held that every presumption is to be made in favor of the correctness of the ruling of the lower court of general jurisdiction. Bedee v. People, 73 Rehearing 322; McElwee v. People, 77 id. 493; Moore v. Ellsworth, 51 Rehearing 308; Hunt v. Tinkham, 21 id. 629.
   Mr. Justice Cbaig

delivered the opinion of the Court:

This was a petition brought by Charles B. Hosmer, in the Superior Court of Cook county, under the Burnt Records act, to restore the title to a certain tract of land in Cook county. The appellant interposed a demurrer to the petition, and subsequently filed a petition for a change of venue. The court denied the application for a change of venue, and upon argument of the demurrer, it, also, was overruled, and appellant electing to abide by the demurrer, the court heard the evidence of petitioner, and rendered a decree as prayed for in the petition.

Two questions arise on the record: First, did the court err in overruling the application for a change of venue; and second, are the allegations of the petition sufficient to authorize the decree.

As to the first question, the petition for a change of venue has not been preserved in the record by certificate of evidence or bill of exceptions, and as it was not so preserved in the record, appellee contends it can not be considered by the court, on appeal. In Schlump v. Reidersdorf, 28 Ill. 68, it was held that an affidavit in support of a petition for a change of venue can only be made a part of the record by a bill of exceptions, and unless preserved there, will not be considered. In Bedee v. The People, 73 Ill. 320, which was an indictment for murder, a similar question arose, and it was held that the petition for a change of venue, and the affidavits in support thereof, can only be made a part of the record by bill of exceptions, and unless thus preserved they can not be considered by the court, although the clerk may have copied them into the transcript. In McElwee v. The People, 77 Ill. 494, the same question arose, and it was again held that ¿.motion for a change of venue does not become a part of the record unless made so by bill of exceptions. Indeed, in actions at law the general rule that a petition for change of venue does not become a part of the record unless made so by bill of exceptions, is not questioned or denied, but it is urged that the general rule has no application to chancery cases. We are unable to perceive any good reason why a petition for a change of venue should become a part of the record in a chancery case, in the absence of a certificate of evidence, when it does not in an action at law. The pleadings in a chancery case, and exhibits, and depositions in writing, are a part of the record, and no certificate of evidence is required to make such documents a part of the record, but the evidence of witnesses called to testify on the trial, and motions made in the case, do not become a part of the record unless preserved by bill of exceptions. (Brockenbrough v. Dresser, 67 Ill. 226; VanPelt v. Dunford, 58 id. 145.) A petition for a change of venue is a mere motion made in the case, and, like other motions, it does not become a part of the record unless preserved by certificate, properly signed by the presiding judge.

But it is urged that a petition for a change of venue is a pleading in the case. We are aware of no authority which holds that a petition for a change of venue is a pleading,— indeed, the authority is all the other way. In a note to Story’s Equity Pleading, page 4, will be found several concise definitions of the term “pleading.” Among others is the following: “Pleadings in equity * * * consist of the formal written allegations or statements of the respective parties on the record to maintain the suit or to defeat it, of which, when contested in matters of fact, they propose to offer proofs, and in matters of law to offer arguments to the court.” A petition for a change of venue does not fall under this definition, or any other definition of the term “pleading” within our knowledge. The petition, verified by affidavit, was used in support of a -motion entered in the cause to change the venue, and, like any other paper used on a motion made in a cause, could not become a part of the record unless preserved by certificate of evidence or bill of exceptions. This course was not pursued, and the petition is not before us. As the record stands, we have no means of knowing whether the court decided right on the motion to- change the venue, or not.

It is next urged that this is not a case for chancery jurisdiction, and that the court erred in overruling the demurrer to the petition. The petition was filed under what is known as the Burnt Records act. (Rev. Stat. 1874, page 841.) Section 15 confers jurisdiction on courts of chancery. Section 16 authorizes the filing of a petition to establish and confirm title where the records have been destroyed. This section provides what the petition shall contain, and who shall be made defendants. The petition in this case contains a description of the land, and avers that orator has an estate in fee therein, and sets out the chain of title under which he claims. The petition also gives the names of the persons in possession of the premises, and those claiming a fee in the lands in opposition to the petitioner. Without, however, going over all the allegations of the petition, we are satisfied that it contains all that the' statute requires, and if the statute itself is a valid law, the petition was not demurrable. As to the validity of the statute, several cases which called in question its validity have been before the court, and it has uniformly been sustained. Robinson v. Ferguson, 78 Ill. 539; Bertrand v. Taylor, 87 id. 235; Mulvey v. Gibbons, id. 367; Heacock v. Lubuke, 107 id. 396.

But it is said the statute deprived a party of a trial by jury, and upon this ground it is unconstitutional. The same question was raised in the case last cited, and we there held that the act was constitutional, and upon an examination of the constitutional provision bearing on the subject, the law as declared in thai case would seem to be beyond dispute. The constitution of 1818 provided that “the right of trial by jury shall remain inviolate.” The constitution of 1848 provided that “the right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy.” Thus stood the organic law of the State at the time the constitution of 1870 was adopted, and that instrument declared that “the right of trial by jury, as heretofore enjoyed, shall remain inviolate, but the trial of civil cases before justices of the peace, by a jury of less than twelve, may be authorized by law.” Under this provision the right of trial by jury was preserved in all cases, and to all persons, where that right had existed before its adoption. But the constitutional provision of 1848 on this subject has never been understood as applying to cases over which courts of equity have jurisdiction. By its express terms the right of trial by jury is confined to cases at law. Indeed, from the organization of the State down to the present time our courts have exercised jurisdiction in equity, and the practice has been uniform in such courts to hear and determine causes without a jury, and the right to do so has not been questioned or denied. It has been a common practice for years to file bills in equity to partition lands, and in a proceeding of that character the court has ample power to settle all conflicting titles, and that, too, without a jury. The power conferred upon a court of equity by the Burnt Records act is similar to a proceeding in equity for partition, and a proceeding under the former act is no more obnoxious to the constitutional provision for a jury than is a bill in equity for partition. This view of the question is sustained by Ward v. Farwell, 97 Ill. 593, and Petition of Ferrier, 103 Ill. 367. But if it be true that appellant was entitled, under the constitution, to a trial by jury, notwithstanding the statute, she is in no position here to complain of the statute, or the decision of the court under it. If she was entitled to a jury trial, it was her duty to demand a jury, and had the court refused her that right, then she would have been in a position to complain; but she did not ask for a jury in the circuit court, or in any manner indicate to the court that she desired the matters involved in the case submitted to a jury. We are therefore of opinion, as no jury was demanded, the right of trial by jury was waived.

The petition contained the following allegation: “And your orator further states that the following persons own, or claim, as your orator is informed and believes, an estate in fee or some interest in said lands, or some part thereof, as is hereinafter stated, as follows: Eliza Heacock, and her husband, William 0. Heacock, and no other persons, to the knowledge and belief of your orator, own or claim an estate in fee, or otherwise, in said lands, or any portion thereof. ” This allegation, it is claimed, rendered the petition bad. In a former part of the petition it was alleged that the petitioner owned the premises in fee, and the chain of title under which he derived title was set out. The statute also required the petitioner to allege the names of all persons owning or claiming any estate in fee in the lands, or any part thereof, as well as the names of all persons in possession. The allegation to which exception is taken was intended as a compliance with this requirement of the statute, and while the language used did not, perhaps, express the meaning of the pleader as clearly as might have been done, still in substance the averment was sufficient. ' The substance of the averment is, that the Heacocks are in the possession of the premises, claiming the fee. The petition contains all the substantial allegations required by the statute, and, in our judgment, the demurrer was properly overruled.

The decree of the Superior Court will be affirmed.

Decree affirmed.

Subsequently, on application for a rehearing the following additional opinion was filed:

Per Curiam : In the petition for a rehearing it is claimed that the decree in this case is erroneous, because it does not set forth the evidence upon which it is based. It is sufficient to say the decree, so far as Mrs. Heacock is concerned, is not based upon evidence at all, but on certain facts specifically set forth in the petition, which she, by her demurrer thereto, has solemnly admitted to be true. It is a fundamental rule, applicable alike to proceedings in equity as well as at law, that no proof is required of * any fact which is admitted by the record to be true. The 19th section of the Burnt Records act expressly provides in what cases proof shall be required in support of a petition under it. Two classes of cases only are specified, and all other cases must be governed by the general rules of chancery practice. Where the defendant fails to answer, and a decree is entered against him by default, or where the facts set forth in the petition are put in issue by an answer, the plaintiff will be bound to support his petition by evidence,—and in either case the evidence must be set forth in the decree. Had the legislature intended evidence should be heard in support of the petition, where the facts, as here, are admitted to be true, it would doubtless have said so, but we find no such a requirement in the statute. Where the statute, therefore, directs the evidence shall be set forth in all decrees against married women, etc., it must be understood to mean all cases where the statute or general rules of chancery practice require evidence to be heard,—or, in other words, where the decree is founded on evidence, and not, as in this case, upon the admissions of the parties. The statute, in express terms, contemplates a defence by demurrer, and a party thus defending has a right to stand by his demurrer, and it is hardly necessary to observe that evidence under such a pleading would be wholly inappropriate. If in such case, where a demurrer is the only pleading filed by the defendant, the plaintiff is still bound to offer proofs in support of the petition, already admitted to be true, the defendant would also clearly be entitled to offer countervailing testimony, and all this without there being any issue of fact raised by the pleadings to which the evidence could apply. We can not believe the legislature ever intended such an anomalous state of things. We are of opinion Mrs. Heacock is not in a position to complain of the alleged error, and that it presents no cause for reversal, so far as she is concerned.

The petition for a rehearing will be denied.

Rehearing denied.

Dickey, Scott and Scholfield, JJ.: We do not concur either in the original opinion or the foregoing per curiam.


text:
    The German-American Insurance Company v. Charles F. Steiger.

      Filed at Springfield March 26, 1884.

      1. Insurance—of an appraisement in case of loss—whether necessary— and whether there must be a request. Where' a policy of insurance against loss by fire provides that “loss or damage to property totally or partially destroyed, unless the amount of such loss or damage is agreed upon between the assured and the company, shall, at the written request of either party, be appraised and determined by disinterested and competent persons,” etc., no appraisal and award of the loss or damage are essential to a recovery for the same unless a written request of one of the parties is first made. Such request is a condition precedent to such appraisal and award.
    2. Same—increase of risk—evidence in respect thereto. In a suit on a policy of insurance to recover for a loss by fire-of buildings and machinery used for the manufacture of hominy and meal, in which an increase of the risk was set up in defence, caused by the substitution of a fire-dryer instead of a steam-dryer without permission of the insurer, the court permitted witnesses for the plaintiff to testify to the circumstances of the actual use of the fire-dryer: Held, that the evidence was admissible upon the strict question of increase of risk, as showing whether the fire-dryer, as constructed and as used and managed, increased the risk.
    3. On the question whether the substitution of a fire-dryer in lieu of a steam-dryer in buildings used for the manufacture of hominy increased the risk of the insurer, the policy being silent as to the kind of a dryer to be used, when the court has received in evidence all facts tending to show an increase of risk, and the witness’ opinions on the question, with their reasons, there is no error in refusing to admit evidence of the customary method of drying, or that the risk is uninsurable after the introduction of a fire-dryer.

      4. A fire-dryer for drying hominy will be considered as embracing its appurtenances, and its mode of use in connection with the works as constructed may be taken into view as bearing upon the question of the increase of the risk by its employment in the place of a steam-dryer.
    5. SAME—running a mill extra hours. Where a policy of insurance of a mill for the manufacture of hominy has fixed no hours for regularly running the mill, and no question was asked or answered in the application as to how many hours it was to be run each day, it was held, no error to refuse an instruction that if the jury believed, from the evidence, that the plaintiff’s lessees had run the mill over or extra hours, such fact would defeat a recovery upon the policy.

      6. Appeal—reviewing facts. Whether the substitution of a fire-dryer instead of a steam-dryer in buildings used for the manufacture of hominy increased the risk of an insurance company or not, is a question of fact, not reviewable by this court when the finding in the trial court is affirmed in the Appellate Court in an action on a policy of insurance.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. Charles S. Zane, Judge, presiding.
    Messrs. Palmers, Robinson & Shutt, for the appellant.
    Messrs. Bradley & Bradley, for the appellee.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

This was an action to recover the amount of a policy of insurance against fire, dated October 5, 1881, for one year. The insurance was, $750 on the brick hominy mill of the assured; $1000 on his hominy mill machinery; $250 on his frame warehouse, situated forty feet from the mill. On April 16, 1882, the property was destroyed by fire. Proofs of loss were forwarded to the insurance company on the 12th of April, 1882, and on July 18, 1882, the suit was brought, resulting, in the circuit court, in a verdict and judgment for the plaintiff for $2070. On appeal to the Appellate Court for the Third District the judgment was affirmed, and defendant appealed to this court.

The first question made is upon the want of an award of appraisers of the damage. It is raised upon objection to the sufficiency of the proofs in not containing such award, and to the refusal of an instruction asserting the necessity of the award. The conditions of the policy upon the subject of an appraisal and award are as follows:

“Loss or damage to property totally or partially destroyed, unless the amount of said loss or damage is agreed upon between the assured and the company, shall, at the written request of either party, be appraised and determined by disinterested and competent persons, one to be selected by this company and one by the assured; and where either party demands it, the two so chosen may select an umpire to act with them in case of disagreement; and if the said appraisers fail to agree, they shall refer the differences to such umpire, each party to pay their own appraiser and half of the umpire’s fee, and the award of any two, in writing, shall be binding and conclusive as to the amount of such loss or damage; but no appraisal, nor agreement for appraisal, shall be construed, under any circumstances, as evidence of the validity of said policy, or of the company’s liability thereon. . The award of the appraisers, in writing, under oath, shall form a part of the proofs hereby required, and until such proofs and certificates are produced, examinations permitted and appraisal is had, the loss shall not be payable. * * * It is expressly covenanted by the parties hereto, that no suit or action against this company, for the recovery of any claim by virtue of this policy, shall be sustainable in any court of law or chancery until after an award shall have been obtained, fixing the amount of such claim in the manner above provided. * * * And it is further expressly covenanted by the parties hereto, that no officer, agent or representative of this company shall be held to have waived any of the terms and conditions of this policy, unless such waiver shall be indorsed hereon in writing. ”

Without dwelling upon the fact of no objection having been made to the proofs which were furnished, as estopping the company from afterward objecting thereto when sued on its policy for the loss, we are of opinion that, reading all the above conditions together, the appraisal and award which were contemplated were to be at the written request of one of the parties,—that such written request was a condition precedent to such appraisal and award,—and that there not having been here a written request by either party for an appraisal, an appraisal and award were not necessary, under the conditions, in order to entitle the plaintiff to a recovery.

The most serious matter of contest in the case is in the respect of an increase of the risk by the use of a fire-dryer instead of a steam-dryer. One of the conditions of the policy' is: “Or if the risk be increased, by any means, without the consent of this company written hereon, this policy shall be void. ” It appears that the use of a dryer of some kind is a necessary part of or incident to a hominy mill in the manufacture of hominy, meal, etc., to prepare the product for market. At the time this property was insured there was in use in the mill what is known as a “steam-dryer,” which was supplied with heat by steam, conducted through metal pipes, from a boiler in the engine house, situated some distance away, to the place of drying. The fire which generated this steam was in the engine house, and was the same fire used in producing steam to propel the machinery of the mill. A short time before the fire plaintiff introduced and employed what is called a “fire-dryer. ” The process of drying by this machine was to pass the product of the mill directly into and through a cylinder heated by a coal fire, or what is called “fire heat.” For the purpose of this dryer, adjoining to one side of the main building, a wooden shed was constructed, and a stove-pipe run up through the roof, and in this shed the works for drying by the application of fire heat were placed and operated. If there was any error committed in not sustaining this defence of an increase of risk from the substitution of the fire-dryer for the steam-dryer, it was one of fact, in not finding that such substitution increased the risk- With that this court has nothing to do. It must rest with the decision of the Appellate Court. We discover no error of law which should reverse the judgment, in the submitting of the question of increase of risk to the jury for decision.

Errors are complained of in the admission and rejection of evidence. Witnesses on the part of the plaintiff were permitted, against the objection of defendant, to testify to the circumstances of the actual use of the fire-dryer. It is objected to this that the effect of the admission of the evidence was to mislead the jury as to the true question for them to consider, and make them think it to be whether there was piroper care and management in the use of the dryer, instead of whether it increased the risk. We think the evidence was admissible upon the strict question of increase of risk, as showing whether the fire-dryer, as constructed, and as used and managed, increased the risk. If the jury were liable to be misled in the respect named, and think, from such evidence, that proper care and management would suffice even if there was an increase of risk, they might have been cautioned against that, as they seem to have been, fully, by instructions asked by the defendant.

The witness Smith, State agent of the North British Insurance Company, and who had for many years been doing the work of State agent, inspecting risks, adjusting losses, and supervising agencies, after having testified that there was always some drying process of the corn and meal in connection with a hominy mill, and that there was a custom as to the method of drying, was asked by defendant, “What is that method?” On objection, the court excluded the question, counsel for defendant stating that he proposed to prove that there was a customary method of drying the product, and that this method was not adopted in this case. The policy is entirely silent as to the kind of dryer to be used,— whether a steam-dryer or a fire-dryer, and as to the customary method of drying, containing nothing whatever upon the subject of the drying process. The customary method of drying was not in issue before the jury. The customary method is not seen to have any necessary reference to safety from fire. It may stand recommended in its use by other considerations.

Exception was taken to the exclusion of the offer of testimony, by this same witness, that the risk, after the introduction of the fire-dryer, was uninsurable. The witness had before testified, that in his own opinion there was an increase of the risk by the use of the fire-dryer, giving his reasons therefor. Like testimony of other witnesses on behalf of defendant was 'given, without objection. Testimony further, that the additional risk was uninsurable, would seem to be but evidence of the opinion of insurance companies, derived from their conduct. The issue was, was the risk increased? All facts tending to show an increase of risk, the witness’ own opinions on the question, with their reasons, were received in evidence, and so long as there was the full admission of such testimony, we find no reasonable ground of complaint in the exclusion of evidence of the customary method of drying, or that the risk was uninsurable after the introduction of the fire-dryer.

The court gave this instruction for the plaintiff:

“The court instructs the jury, that the question of whether there was an increase of risk or hazard by the use or occupancy of the property insured in the policy in suit, is one of fact, for the jury to determine, from all the evidence in the case, and if they believe, from the evidence, that there was no increase of risk or hazard, then the fact of a fire-dryer having been used in connection with the property insured would not be a violation of the conditions of the policy in this regard.”

It is complained that the jury are told by this instruction that if they believe, from the evidence, that the risk of fire was not increased by the fire-dryer as used in connection with the property insured, then there was no breach of the condition of the policy in respect to the increase of the risk. We do not regard the instruction as subject to this criticism made upon it. But if it were, we could not hold it to be erroneous, under the view we have expressed upon the admissibility of evidence as to the care exercised in the use and management of the fire-dryer. Of course, we understand the fire-dryer as embracing its appurtenances, and hold that its mode of use in connection with the works, as constructed, may be taken into view as bearing upon the increase of the risk by the fire-dryer.

An instruction was asked by the defendant, and refused, that if the jury believed, from the evidence, that the plaintiff’s lessees had run over or extra hours, that such fact would avoid the policy. The policy contained a condition that “if the premises, being a mill or manufactory, shall run over or extra hours, * * * this policy shall be void.” All the evidence whatever touching this subject was: “The mill was run every day from seven to six, five days in the week, and from seven till five on Saturdays. We were running all night during January and February, and a portion of December; don’t think we run nights any in April; think we quit in February. ” The policy fixed no hours for regularly running the mill. No written application was made by the assured, and no questions asked or answered as to how many hours the mill was running each day, when the policy was issued, nor was there any statement in the policy that regular hours would be any particular hours. The policy contained nothing whatever upon the subject, beyond the bare condition above. Over or extra hours might have reference to the number of hours the mill was running at the time of the issuance of the policy, but that would be merely conjectural. In the absence of the policy containing any standard of determination of what were, or not, over or extra hours, we must consider this provision as without meaning, and that there was no error in refusing the instruction.

The judgment of the Appellate Court must-be affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    George G. Wilcox v. Huntington W. Jackson et al.

      Filed at Springfield October 1, 1883.

    1. Public lands—location of half-breed scrip—certificate of, passes title. A certificate of the commissioner of the general land office, made under the act of Congress of July 17, 1854, showing the location of halfbreed, Dakotah or Sioux scrip on certain of the public lands, and that the location thereof was made by the party authorized to do so, is competent evidence in an action to show title in the location, and it is not essential that a copy of the scrip should be attached to and form a part of such certificate.
    2. Where it becomes necessary to prove title from the United States under a location of half-breed scrip, a copy of the scrip under which it was made is not material, any more than a copy of the warrant is to an ordinary certificate of entry. Both are used by the holder as a payment for the land entered or located. t

    3. Same—whether half-breed scrip is located on land not subject to location, is a matter of defence. Where half-breed scrip has been located on public lands of the United States, if the location is on land not subject to private entry or location, as being reserved, it is a matter that must be shown by the party denying its validity.
    4. Judicial notice—whether land located is located in a lake. While the court takes judicial notice of many things, such as the division of the State into counties, and of the latter into townships, according to the government surveys, it can not take such notice of the fact whether land located under scrip is in a lake which is a navigable body of water, and hence not subject to location.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    This was an action of ejectment, brought by George G. Wilcox, to recover a certain tract of land in Cook county, which it is claimed Julia Gamell (formerly Martin) obtained from the government under an act of Congress approved July 17, 1854, entitled “An act to authorize the President of the United States to cause to be surveyed the tract of land in the territory of Minnesota belonging to the half-breeds or mixed bloods of the Dakotah or Sioux nation of Indians, and for other purposes.” (10 U. S. Stat. at Large, 304.) The plaintiff, to maintain the issues in said cause on his part, offered in evidence the following certificate, purporting to be made by the commissioner of the general land office, and purporting to relate to the location of the land in question:
    “General Land Office, May 21, 1878. “Beg. Deceiver’s No.- 1 Certificate or Scrip No. 232, Letter B, > for 160 acres. )
    “I, Julia Gamell, (formerly Martin,) of Dakotah county, Minn., half-breed or mixed blood of the Dakotah or Sioux nation of Indians, to whom was issued certificates or scrip under and by virtue of the provisions of an act of Congress approved July 17, 1854, entitled ‘An act to authorize the President of the United States to cause to be surveyed the tract of land in the territory of Minnesota belonging to the half-breeds or mixed bloods of the Dakotah or Sioux nation of Indians, and for other purposes,’ do hereby apply to locate, and do-locate, said certificate or scrip No. 232, letter ‘E,’ for 160 acres, on the following described lands: Lot 1, section 13, and N. E. J N. E. J S. W. J N. E. J, and lots 1 and 2 (N. I. B.) of section 14, in township 37 north, of .range 14 east, 3d P. M., Ill., in the District of Lands, subject to ........at........containing 183^ acres, in satisfaction of the attached certificate or scrip.
    “Given under my hand, this 21st day of May, 1878.
    Julia Gamell (formerly Martin.)
    By Sextus N. Wilcox, her attorney in fact. ”
    “General Land Office,
    “Washington, D. C., July 8th, 1878.

    “I hereby certify that the within scrip has, this 8th day of July, 1878, been located on lot 1, section 13, and N. E. J of N. E. J, and S. W. J of N. E. \, and lots 1 and 2 (N. I. B. L.) of section No. 14, in township No. 37 north, of range No. 14 east, 3d P. M., Ill., containing 183T75-y acres, agreeably to the act of 17th July, 1854, and by the party duly authorized to make the location.
    J. A. Williamson,

      Commissioner, Register ancl Receiver, ex-officio, under act of 3d of March, 1877.”

    “Department of the Interior, “General Land Office, September 18, 1878.

      “I, J. A. Williamson, commissioner of the general land office, do hereby certify that the annexed copies of Sioux half-breed scrip locations are true and literal exemplifications from the records of this office.
    “The said copies represent nine certificates to locate land under act of Congress of July 17,1854. Bight of the certificates have been entertained for land in Kalamick lake, township 37 north, range 14 east, 3d P. M., Illinois, to-wit, Nos. 232, E, 160 acres, etc., etc. * * *
    “In testimony whereof, I have hereunto subscribed my hand, and caused the seal of this office to be affixed, at the city of Washington, on the day and year above written."
    J. A. Williamson,
    [Seal.] Commissioner of General Land Office. ”

    To the introduction of which above named certificate and entry in evidence, the defendants, by counsel, objected, on the ground that the record was incomplete, in not containing a copy of the scrip referred to, and was otherwise incompetent and immaterial, and which objection was sustained by the court. To the ruling of the court excluding the evidence plaintiff excepted.
    The plaintiff, to further maintain the issues on his part, offered in evidence a power of attorney, executed by Julia Gamell, (formerly Martin,) and Francois Gamell, her husband, authorizing Sextus N. Wilcox, their attorney in fact, to sell the land in question, and other lands belonging to them,— to the introduction of which the defendants, by their counsel, objected, on the ground that it was immaterial, and which objection was sustained by the court,—to which ruling of the court the plaintiff, by his counsel, then and there excepted.
    The plaintiff, further to maintain the issues on his part, offered in evidence a certain deed, executed by Julia Gamell, (formerly Martin,) and Francois Gamell, her husband, by Sextus N. Wilcox, their attorney in fact, purporting to convey the lands in question, and other lands, to George G. Wilcox, the plaintiff, and signed, sealed and delivered on the 10th day of June, 1878. To the introduction of the deed in evidence counsel for defendants objected, on the ground that the evidence was immaterial. The objection was sustained, and the plaintiff excepted.
    Mr. H. O. McDaid, for the appellant.
    Messrs. Lyman & Jackson, and Messrs. Cohrs & Dearborn, for the appellees.
   Mr. Justice Craig

delivered the opinion of the Court:

The only question properly presented by this record is, whether the court erred in excluding the exemplification of the records of the general land office, signed by the commissioner, under his official seal. This document was the foundation of the plaintiff’s title, and if it was competent evidence, the decision will have to be reversed.

But one specific objection was made to the evidence by the defendant at the time it was offered, and that was, that no copy of the scrip was attached to and formed a part of the offered evidence. We do not think that the evidence was defective for the reason it did not contain a copy of the scrip. The object of the testimony was to show that Julia Gamell (formerly Martin) had located the land in question under the act of Congress of July 17,1854, and we do not perceive how a copy of the scrip could throw any light on that subject had it been a part of the record. The act provides that the scrip may be located upon any of the lands within the reservation not occupied by actual settlers of the half-breeds or mixed bloods, etc., or upon any other unoccupied lands subject to preemption or private sale, or upon any other unsurveyed lands not reserved by the government, upon which they have respectively made improvements. The act also provides that no transfer or conveyance of any certificate or scrip shall be valid.

The record offered in evidence for the purpose of showing a location of the land, contains, first, the application of Julia Gramell (formerly Martin) to locate scrip No. 232, letter “E,” for 160 acres of land, on the land in question. This application was made on the 21st day of May, 1878. The record contains, second, the certificate of the commissioner of the land office, who was also ex-officio register and receiver, showing that the scrip was located on the 8th day of July, 1878, on the land in controversy, under the act of July 17, 1854. In his certificate to this exemplification of the record he certifies that eight of the certificates have been entertained for land in Kalamick Lake, township 37 north, range 14 east, third principal meridian, Illinois, to-wit: Nos. 232, letter “E,” 160 acres. Had a copy of the scrip been made a part of this exemplification of the record, we fail to see how it could throw any light on the transaction. Suppose a quarter section of land is entered by a person holding a land warrant, the record of the entry made by the register and receiver is the proper evidence that such person has purchased the land of the government, and not a copy of the land warrant with which the land was entered. The same principle applies here. The record of location made by the commissioner, who was ex-officio register and receiver, under the scrip, is the evidence of that fact, and a copy of the scrip attached to the record would, in our judgment, have no more bearing on the question of location than a copy of a land warrant would where an entry of land has been made under a land warrant. The scrip is used by the person to whom it is issued, in the one case, as a payment for the land upon which it is located. In the other case the land warrant is used as payment, and when it becomes necessary to prove title from the government, we do not think a copy of either would be material. In Seely v. Wells, 53 Ill. 120, it was held that “the exemplification of the books and records of the general land office, certified under the seal of the office, is competent evidence in our courts. ” Indeed, there can be no controversy upon that question.

It is, however, said that the certificate of the commissioner shows that the land was not located, but entertained for location. It is true that the commissioner, in his certificate, says eight of the certificates have been entertained for land, but in the record he expressly certifies that the scrip was located. It is as follows: “I hereby certify that the within scrip has this 8th day of July, 1878, been located on,”—then follows the description of the land. This language is so plain there can be no doubt in regard to the meaning of the record. We think the record upon its face showed the location of the land in controversy, and that the court erred in excluding it as evidence.

But it is said if the record was sufficient on its face to be admitted in evidence, it was incompetent for the purpose of establishing title, as it was void on its face. This position is predicated on the supposed fact that the land in question is located in Calumet lake, a navigable body of water, and hence not subject to entry. Whether this land was subject to preemption or private entry, or whether it was or was not subject to location under the scrip, is a matter that does not arise on this record. There are many things that the court may take judicial notice of. For example, of the division of the State into counties, of the townships in the county, as numbered, according to the government survey, and many things of a like character; but whether a lake existed where this land is situated is a matter which we can not know, unless it is established by the record. If this land was not subject to location, under the act of 1854, for the reason that it was a part of Calumet lake, or if the land had passed from the government, those and all kindred questions were matters of defence on the trial.

We merely decide, on this record, that the court erred in excluding the exemplification of the record signed by the commissioner and offered in evidence by the plaintiff, and for that error the judgment will be reversed and the cause remanded.

Judgment reversed.


author: Mr. Justice Walker

text:
    John M. Daub et al. v. Elizabeth Englebach.

      Filed at Springfield March 26, 1884.

    1. Evidence—former answer in chancery, which has been withdrawn— admissions therein. An original answer filed by defendants in a bill to foreclose a mortgage, admitting that the mortgage was made on the land for which it was foreclosed, is legitimate evidence to be considered by the court, whether it was sworn to or not, and it matters not that it was withdrawn from the files when a second answer was filed. It is like a letter or other statement in writing admitting a fact.
    2. Purchaser subject to incumbrance—whether liable to pay the mortgage debt. A person who purchases land, and agrees to pay off an incumbrance on the same as a part of the purchase price, is liable to the holder of the lien for the sum due him.
    3. Same—effect of an alteration in the mortgage, as to liability of the purchaser. Where one purchases land subject to a mortgage given by his grantor, which he is to pay, he will be liable to pay the mortgage debt, even though the mortgage may be rendered void by an alteration, as, another tract of land being included therein.

      Writ of Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.
    This was a bill by Herman Englebach, against John M. Daub and wife, Joshua Sprague, and Thomas Mosely, to foreclose a mortgage given by one Conrad Daub to Herman Englebach. John M. Daub, and Caroline, his wife, filed a joint answer admitting the execution of the mortgage to the complainant, but denying it was the mortgage described in the bill, claiming that the mortgage executed had been altered. On a hearing a decree was rendered finding the amount due, and that as to John M. Daub and wife the mortgage was a first lien on the south-west quarter of the north-west quarter of section 9, township 16, range 11; also, the north-east quarter of the north-east quarter of section 17, same township and range; also, the west half of the south-west quarter of section 9, in same township and range; but that as to Mosely and Sprague the mortgage was a lien on the west half of the south-west quarter of section 9, subject to their trust deed made by Daub and wife September 28, 1878, and ordering a sale in the usual form. This decree was reversed by the Appellate Court, and the cause remanded. (Daub v. Englebach, 9 Bradw. 99.) After this the original bill was amended, and the defendants, John M. Daub and wife, answered the same, to which a replication was filed. On the second hearing a decree was rendered finding the sum due on the mortgage, and ordering sale of the two first named tracts of land in default of payment of such sum and costs. The other material facts appear in the opinion.
    Mr. W. P. Callon, for the plaintiffs in error:
    The alteration of the mortgage in a material part of its execution and delivery, if not shown- to have been an act of spoliation by a stranger, or to have been done with the assent of the mortgagors, rendered it void, and not admissible in evidence. 2 Starkie on Evidence, 271; 2 Stephens’ Nisi Prius, 1162; Montag v. Linn, 23 Ill. 554; Greenleaf on Evidence, sec. 564; People v. Organ, 27 Ill. 27; Warring v. Smyth et al. 2 Barb. Ch. 119; Booth v. Powers, 56 N. Y. 22; Pyle v. Oustatt, 92 Ill. 209; Bigelow on Frauds, 204.
    Messrs. Brown, Kirby & Russell, for the defendant in error:
    Although a paper introduced in evidence bears marks of having been altered, yet fraud is not to be presumed in the absence of evidence to show it. Booth v. Stanley, 34 Maine, 115; Wicker v. Pope, 12 Rich. (S. C.) 387; Tyren v. Rives, 57 Ala. 173; Parker v. Moore, 29 Mo. 218.
    Where an instrument offered in evidence has the appearance of having been altered, the law raises no presumption as to when or by whom the change was made. This is a question of fact. Milliken v. Marlin, 66 Ill. 15; Reed v. Kemp, 16 id. 445; Gillett et al. v. Sweat, 1 Gilm. 489; Walters v. Short, 5 id. 256.
    A mortgage is not rendered invalid by the fraudulent addition by the grantee of the name of the grantor’s wife. Kendall v. Kendall, 12 Allen, 92; Jackson v. Jacoby, 9 Cow. 125; Nichols v. Johnson, 10 Conn. 192; Gillette. Sweat, 1 Gilm. 489. See, also, Crawford v. Dexter, 5 Sawyer, 201; Cox v. Palmer, 1 McCreary, 431.
    The original answer of John M. Daub and Caroline Daub, filed in this case, admits the mortgage on the land described in the decree.
   Mr. Justice Walker

delivered the opinion of the Court:

This was a bill in chancery, filed by Herman Englebach, against plaintiffs in error, to foreclose a mortgage. It is alleged that on the 11th of August, 1873, one Conrad Daub, being indebted to complainant in the sum of $3435.92, by-note due in three years from date, to secure its payment executed and delivered a mortgage on lands therein described, and it was duly acknowledged and recorded. It is also alleged that the mortgagor and wife, on the 12th of January, 1876, sold and conveyed the lands described-in the mortgage to John M. Daub; that the note was unpaid. The bill further alleges that the record of the mortgage does not properly describe a portion of the land, and sets out the misdescription of one tract, and alleges that Sprague and Mosely claim some interest in this eighty-acre tract by virtue of a trust deed made to them by J. M. Daub and wife, subject, however, to the lien of the mortgage of complainant. An answer was filed by John M. Daub and wife, admitting that a mortgage was made by his father to complainant, but not the mortgage described in the bill, but the one as recorded, and that it, as made, did not contain an eighty-acre tract described in the mortgage set out in the bill; that after it was made and recorded it had been altered, by changing the description from the north-west to the south-west quarter of section 9, etc. Complainant having died, his administratrix was substituted as party complainant. On a hearing, the court decreed a foreclosure of the mortgage, except as to the eighty-acre tract, the description of which was claimed to have been altered. Defendants thereupon removed the record on error to the Appellate Court for the Third District, where, on a hearing, the decree of the circuit court was affirmed, and they bring the record to this court on error, and urge a reversal of the decree of the Appellate Court.

It is urged that the circuit court erred in giving any force to the mortgage; that it was shown that the mortgage was altered, after its execution, in a material part, and as complainant failed to satisfactorily explain and prove the alteration was properly made, the court should have held that the instrument was absolutely void, and it was error to render any decree enforcing it; that as the mortgagee had always retained possession of the instrument after it was recorded, and it being proved that it was altered, the presumption is that he made the alteration, which rendered it void. On the other hand, it is claimed that as Daub and wife, in their original answer, admitted that the mortgage was made on the land for which it was foreclosed, they can not now urge that it is invalid. Plaintiffs in error claim that it was error to admit that unsworn answer in evidence on the last trial, after it had been withdrawn from the files by leave of the court. We are clearly of opinion that it is wholly immaterial whether the answer was or not sworn to by plaintiffs in error. It, like a letter or other statement in writing admitting a fact, is evidence of the admission. Nor does it matter that it was withdrawn from the files. That did not, nor could it, affect the force or truth of the admission. The answer was legitimate evidence in the case, and properly considered by the court. It is, however, urged that this answer charges that Englebach, or some one for him, made the alteration. Concede this to be true, still there was no claim that the mortgage was void, except as to the eighty-acre tract, the description of which is claimed to have been altered.

But the defence is set up and urged by a person who has purchased the land subject to this very mortgage. If any change was made, it was probably before he purchased, and when he did so, as a part of the purchase money he in effect assumed the payment of the mortgage, and if required to pay the amount of the mortgage debt, he will only be required to pay what he agreed to when he purchased. It will not wrong him to the extent of a single penny. It will not be inequitable or unjust. Even if the mortgage was rendered void, he, in equity, is still liable to pay the debt. He agreed to do so, and even if the mortgage was rendered void, that did not cancel the debt, nor did it release him from his legal liability to pay it. This court has repeatedly held that a person purchasing lands, and agreeing to pay off incumbrances on the land as a part of the consideration for the purchase, becomes liable to pay the holder of the lien.

It is urged that the calculation of the amount due under the mortgage is erroneous. We have not been able to detect any material inaccuracy in the amount.

The decree of the Appellate Court is affirmed.

Decree affirmed.