author: Mr. Justice Sheldon

text:
    John S. Balsley v. The St. Louis, Alton and Terre Haute Railroad Company.

      Filed at Springfield October 6, 1886.

    1. Bailboads—in case of a leasing—remaining liability of the lessor company for negligence in operating the road. A railway company can not absolve itself from the performance of duties imposed upon it by its charter or any general law of the State, or relieve itself from liability for the wrongful acts or omissions of duty of persons operating its road, by transferring its corporate powers to other parties, or by leasing its road to them, except by special statutory authority. To allow it to do so would be contrary to public policy.
    2. So a railway company which has leased its road to another company, and the exclusive use of its track, etc., for ninety-nine years, which leasing is confirmed by the legislature of this State, will be liable for the destruction of property by fire, caused by a neglect on the part of the lessee company to keep its track and right of way clear from all dead grass, dry weeds, etc., notwithstanding the legislature may have conferred upon such lessee company all the powers of the lessor company, and others. There being no clause of exemption in such act of the legislature, the liability of the lessor would remain.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Montgomery county; the Hon. W. B. Welch, Judge, presiding.
    Mr. G-eobge M. Stevens, for the appellant:
    A railway company can not escape liability for the nonperformance of any duty or obligation imposed upon it by its charter or the general law of the State, by the voluntary surrender of its road into the hands of lessees. Railroad Co. v. Brown, 17 Wall. 450; Railroad Co. v. Mayes, 49 Ga. 355; Nelson v. Railroad Co. 26 Vt. 717; Railroad Co. v. Dunbar, 20 Ill. 623; Pierce on Am. Railroad Law, 244; Pierce on Railroads, 283; Railroad Co. v. Barron, 5 Wall. 104; Singleton v. Railroad Co. 70 Ga. 464.

      Mr. John T. Dye, for the appellee:
    While a railway company can not absolve itself from the performance of the obligations to the public, growing out of the ownership of “the franchise and exclusive right to operate a railroad, ” without the consent of the legislature, it is perfectly clear that it can transfer its franchise and exclusive right to operate its road with the assent of the legislature.
    The liability for negligence in the exercise of the right to operate the road, rests upon the corporation holding such right, or to the one actually guilty of the negligent acts complained of. In this case, the franchise and exclusive right to operate the road had been transferred to the Indianapolis and St. Louis Bailroad Company, and such transfer had been confirmed by the legislature. No question arises in this case as to the power of the defendant to relieve itself from the burden it owed to the public. The act of the legislature recognizes the transfer, and clothes the lessee with all the franchises which the lessor had possessed before the passage of the act. After this act, the defendant was no longer the exclusive owner of the franchise and right to operate the road, and no longer rested under the obligations growing out of such exclusive ownership. Indeed, the defendant, after such act was passed, had no right to operate the road at all. The exclusive right to operate the road belonged to another company, and all the burdens growing out of the ownership of that exclusive right, rested upon the company holding such exclusive right by the authority of the legislature.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action brought by John S. Balsley, against the St. Louis, Alton and Terre Haute Bailroad Company, to recover damages for the loss, in 1881, of a quantity of hay, by fire communicated from a freight engine on defendant’s railroad, to and through dry grass and weeds on its right of way.

Section 38, chapter 114, of the Bailroad and Warehouse act, approved March 1, 1874, (Bev. Stat. 1874, p. 807,) is as follows: “It shall he the duty of all railroad corporations to keep their right of way clear from all dead grass, dry weeds, or other dangerous combustible material, and for neglect shall be liable to the penalties named,”—double the amount of damages suffered therefrom. The action was for the breach of this duty. The-cause was tried by the court without a jury, and judgment rendered in favor of the plaintiff for $600 and costs, which was reversed by the Appellate Court for the Third District, and the plaintiff appealed to this court.

In September, 1867, defendant made a lease of its road, for ninety-nine years, to the Indianapolis and St. Louis Bail-road Company, a corporation organized under the laws of Indiana, the lease giving to the latter company for that time, upon the terms and conditions therein set forth, the exclusive right to use upon said road any and all locomotives, passenger and freight cars, and all other rolling stock and equipments then belonging to it, and the lessee agreed to indemnify the lessor against all claims for loss and destruction, by whatever cause, of any property whatsoever, while under its control. By an act of the legislature of this State, of March 31, 1869, it was provided as follows:

“Sec. 1. That the lease of the St. Louis, Alton and Terre Haute Bailroad Company, and the property and road thereof, to the Indianapolis and St. Louis Bailroad Company, under which the railroad extending from Terre Haute, in the State of Indiana, to East St. Louis, in the State of Illinois, is now operated, be and stand confirmed according to the terms of said lease: Provided, however, that nothing in this act shall be construed to release the said lessors from any debt, cause of action or contract now existing against them.
“Sec. 2. The said lessees, their associates, successors and assigns, shall be a railroad corporation in this State, under the said style of the Indianapolis and St. Louis Bailroad Company, and shall possess the same or as large powers as are possessed by said lessor corporation, and such other powers as are usual to other corporations.”

The facts are undisputed, and the only question made is, whether the aforesaid lease and act of the legislature constitute a defence.

It is conceded that by the law of this State, railroad corporations are liable for injuries by the wrongful acts of any lessee or other person, done in the exercise, by its permission, of any of its franchises. But it is insisted that this liability for the acts of others is limited to wrongs done by them while in the performance of acts which they would have had no right to perform except under the charter of the company sought to be made liable, where they are to be regarded, with reference to the public, as the servants and agents of such company; that the act of the legislature here created a new corporation, and conferred upon it franchises which thereby became its own, and independent of the lease,—so that the negligence complained of occurred in the performance of an act performed in the lessee company’s own right, and not under the charter, nor as the servant or agent of defendant, wherefore there is no ground for its liability; and the case of West v. St. Louis, Vandalia and Terre Haute Railroad Co. 63 Ill. 545, is supposed to sustain this view.- That case does point out a distinction as to the liability of a railroad corporation for acts of its lessees or contractors, where the acts are done in the exercise of a franchise granted to the corporation, or are not done in the exercise of such a franchise; but it does not, we think, go to the length of being a warrant for holding the non-liability of the defendant in this case.

The reason for holding a railroad company responsible for the performance of all the duties and obligations imposed upon it by its charter or the general law of the State, while it is being operated by a lessee, does not, we conceive, rest upon the narrow ground, alone, of the latter being in the exercise of a franchise which belongs to the former, and, in so acting, is to be held as the servant or agent of the lessor corporation. In consideration of the grant of its charter, the corporation undertakes for the performance of duties and obligations toward the public, and there is a matter of public policy concerned, that it should not be relieved from the performance of its obligations without the consent of the legislature.

In Railroad Co. v. Brown, 17 Wall. 450, it is said: It is the accepted doctrine in this country, that a railroad corporation can not escape the performance of any duty or obligation imposed by its charter or the general law of the State, by a voluntary surrender of its road into the hands of lessees. In Thomas v. Railroad Co. 101 U. S. 83, the language of the court is: “Where a corporation, like a railroad company, has granted to it, by charter, a franchise intrusted, in large measure, to be exercised for the public good, the due performance of those functions being the consideration of the public grant, any contract which disables the corporation from performing those functions,—which undertakes, without the consent of the State, to transfer to others the rights and powers conferred by the charter, and to relieve the grantees of the burden which it imposes,—is a violation of the contract with the State, and is void, as against public policy.” “The corporation can not absolve itself from the performance of its obligations without the consent of the legislature.” York and Maryland Line Railroad Co. v. Winans, 17 How. 39. Pierce on American Railroad Law, 244, lays down the rule: “The company can not divest itself of responsibility for the torts of persons operating its road, by transferring its corporate powers to other parties, or by leasing its road to them, in the absence of special statutory authority and exemption. It can not, by its own act, absolve itself from its obligations without the consent of the legislature. The lessees may, however, also be responsible for the injury.” In Ohio and Mississippi Railroad Co. v. Dunbar, 20 Ill. 623, this court say: “This plea presents the question whether an incorporation of this kind (railroad) has the legal capacity to lease its corporate property and franchises so as to be relieved from liability to the public for injuries sustained, and damages resulting from breach of contract entered into by the lessee. * * * When these bodies accépt their charters, they are held to enter into a contract with the State to discharge all the duties imposed, and to exercise the rights and privileges conferred on them in the manner prescribed; and they must be held to a performance of this contract in precisely the same manner as is required of individuals.” Singleton v. Southwestern Railroad Co. 70 Ga. 464, was a case where there had been a lease of a railroad to another corporation, with the consent of the legislature thereto, and an action brought against the lessor to recover for an injury sustained on the lessee’s train. The court say: “But it is said that the Southwestern Bailroad Company had the consent of the legislature to lease its road, and having entered into contract with the Central Bailroad and Banking Company under that consent, it is absolved from its obligations to the public under its original charter. Authorities are cited to sustain this doctrine. Indeed, some of those hereinbefore referred to are relied upon. The view which we take of the law and the cases cited, is, that the original obligation can only be discharged by a legislative enactment consenting to and authorizing the lease, with an exemption granted to the lessor company.” And see 1 Bed-field on Law of Bailways, 690.

It thus appears, from authorities cited, that in order to the release of a railroad corporation from the obligations imposed upon it by its charter and the law, it requires exemption therefrom by the legislature. This view we are disposed to adopt, although there may be authorities to the contrary. We find nothing of such exemption in this act of March 18, 1869. There is certainly no express exemption. The first section confirms the lease according to its terms. But the lease contains no exemption. The main purpose of the second section is to create the lessee corporation a domestic corporation, and in doing this, it is declared that the corporation created shall possess the same powers as the lessor corporation. - We do not see that this impliedly exempts defendant from any obligation under its charter or the law. It' is compatible with the act that such obligation should remain. There is nothing substitutional, of one corporation for the other. Nothing is taken from defendant, but the full consideration of its1 charter remains to it. Under its franchise it has built its road, and it will enjoy the benefit thereof, during the continuance of the lease, in the rental which it will receive. On the termination of the lease by effluxion of time, or forfeiture, the road will revert to defendant.

The reason why freedom from responsibility is claimed for the defendant is, that the lessee, in operating the road, was in the exercise of its own franchise granted to it by the State, and not in the exercise of defendant’s franchise, by its permission, and so was not defendant’s servant or agent. We do not accept this as the only ground of liability, as- is thus intimated. Above this, are the charter obligations for the performance of its duties toward the public, which defendant assumed. The interest of the public requires the continuance of these obligations, and we are of opinion they should be held to remain upon the defendant.

The judgment of the Appellate Court will be reversed, and the cause remanded to that court, with direction to affirm the judgment of the circuit court.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Craig

license: Public Domain

text:
    William W. Foster v. Emma L. Magill.

      Filed at Springfield October 6, 1886.

    1. Sake—whether complete, so as to pass title—amount undetermined. A creditor purchased from his debtor certain personal property, subject to a mortgage thereon, and assumed the mortgage debt, and agreed, upon the sale of the property, to give the debtor credit for the entire proceeds of the sale, less the mortgage debt, and possession was taken: Held, the title, if so intended, would thereby pass,, although the definite amount for which credit was to be given had not been determined.
    2. Evidence—on question of bona fides of purchase. In trover, by one claiming as purchaser of personal property, against the sheriff, for taking the same under execution against the plaintiff’s vendor, the validity of the sale was questioned as in fraud of creditors. It appeared that the original owner, who was also the defendant in the execution, sold the property to his daughter, to whom he was largely indebted, subject to a chattel mortgage thereon, which she agreed to pay off, and it was agreed that she should sell the property, and give her father credit for the entire proceeds, less the amount of the incumbrance thereon: Held, that it was competent for the defendant to show any act done by the holder of the chattel mortgage toward taking possession of the property, but that the record was the best evidence to show the fact of his having brought a suit to recover the same.
    3. Practice—limiting argument of counsel to the jury. The limiting of the argument of counsel to the jury, is a matter resting in the sound legal discretion of the trial court, and unless that discretion has been abused, a court of review will not interfere. Before the action of the court below can be called in question, it must be shown that sufficient time was not allowed to properly argue the case to the jury.
    4. Assignment op error—as to matters occurring in another case. Orders made in one ease are not, as a general rule, reviewable in another. So on the trial of an appeal in an action of replevin, the refusal of the court in a suit in chancery, to giant an injunction restraining the fjroseeution of the suit at law, can not be assigned, for error in that case. The propriety of such ruling can only be questioned in this court when the record in the chancery suit is brought before it for review.
    Writ of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Macon county; the Hon. C. B. Smith, Judge, presiding.

      Mr. G. B. Graham, Mr. B. A. Lemon, and Mr. I. A. Buckingham, for the plaintiff in error:
    A junior incumbrancer of property has the right to pay the prior lien for the protection of his own, and be subrogated to all the legal and equitable rights of the prior incumbrancer, and it was error to overrule the motion to enjoin the prosecution of this suit. Armstrong v. McAlpine, 18 Ohio St. 184; Muir v. Berkshire, 52 Ind. 149; Jones on Chattel Mortgages, secs. 658, 659; Sheldon on Subrogation, secs. 12,15, 21, 77.
    The delivery of property by a debtor to a creditor, as security for a debt, or with the agreement that it may be sold and the proceeds applied to the payment of the debt, or various debts, is a pledge, and not a sale. Belden v. Perkins, 78 Ill. 449; Baldwin v. Bradley, 69 id. 32; Stearns v. Marsh, 4 Denio, 227.
    This is the legal effect of the transaction, although the conveyance is by bill of sale absolute in terms. Walker v. Staples, 5 Allen, 34; Eastman v. Avery, 23 Me. 248; Marshall v. Bryant, 12 Mass. 321; Whittaker v. Sumner, 20 Pick. 399 ; Kimball v. Hildreth, 8 Allen, 167.
    The pledger has such an interest in the goods as may he sold, and the purchaser succeeds to all the rights of the pledger. Whittaker v. Sumner, 20 Pick. 399 ; Erwin v. Arthur, 61 Mo. 386; Arnold v. Stock, 81 Ill. 407.
    The execution was a lien upon the pledgee’s interest in the mules, and plaintiff in error, as to the property, occupied the position of pledger. In such case, the measure of damages is the value of the pledgee’s special property, and not the full value of the property. Baldwin v. Bradley, 69 Ill. 32; Benjamin v. Stremble, 13 id. 466; Russell v. Butterfield, 21 Wend. 300; Becker v. Dunham, 27 Minn. 32; Parish v. Wheeler, 8 Smith, (N. Y.) 494.
    It was error to refuse to permit the witness Warner to answer the questions propounded to him, for the plaintiff, and Warner, the chattel mortgagee, both claimed title and the right of possession from the same source. The evidence would have shown that the mortgagee, having the prior right, had elected, under his mortgage, and with the consent of defendant in error, previous to the commencement of her suit and before the alleged conversion, to take possession under the mortgage; and under that state of the case, the plaintiff would have neither the right of property nor possession. Goodrich v. Willard, 2 Gray, 203.
    Messrs. Moore & Warner, for the defendant in error:
    While the bank might pay the debt due John Warner, in the interest of its junior lien, it had no right to demand or have the note and chattel mortgage held by him. Flachs v. Kelly, 30 Ill. 462; Handley v. Munsell, 109 id. 362; Butler v. Taylor, 5 Gray, 455; Ellsworth v. Lockwood, 42 N. Y. 89; Lawson v. Drake, 105 Mass. 564; Lamb v. Montague, 112 id. 352; Jones on Mortgages, sec. 792.
    If defendant in error held the mules merely as a pledge, then plaintiff in error could not levy the execution on them and take them out of her possession without first tendering her the full amount they were pledged to secure. Bradley v. Parks, 83 Ill. 169; Express Co. v. Meints, 72 id. 293; Belden v. Perkins, 78 id. 449; Henry v. Eddy, 34 id. 508; Baldwin v. Bradley, 69 id. 32.
    Before default in payment or the exercise of possession, the mortgagor may dispose of the property subject to the lien of the mortgage. Rhines v. Phelps, 3 Gilm. 455; Larmon v. Carpenter, 70 Ill. 549; Simmons v. Jenkins, 76 id. 479; Merritt v. Niles, 25 id. 282.
    The transfer of the mules to defendant in error, with the agreement that she should sell them and apply the net proceeds as a credit on the amount due her, was neither in the nature of a mortgage or pledge, but was an actual sale, and she became vested, immediately on their delivery to her, with absolute property in them. Wells v. Miller, 37 Ill. 276; Ives
      v. Hartley, 51 id. 520; Lonergan v. Stewart, 55 id. 44; Piner v. Cover, id. 391; Graff v. Fitch, 58 id. 373; McEwen v. Morey, 60 id. 32; Strauss v. Minzesheimer, 78 id. 492; Richardson v. Olmstead, 74 id. 213.
    Defendant in error might lawfully receive the mules in satisfaction or part satisfaction of her debt, though the debtor was insolvent at the time. Gray v. St. John, 35 Ill. 222; Butters v. Haughwout, 42 id. 18; Wells v. Miller, 37 id. 276 ; Hessing v. McCloskey, id. 341; Waterman v. Donaldson, 43 id. 29.
    While the mortgagee is absolutely entitled to the possession of the mortgaged property immediately upon the maturity of the debt, if it remains unpaid, he is not entitled to its possession before the maturity of the debt, merely upon his election, under an insecurity clause in the mortgage, but his election can only be exercised in good faith, and upon reasonable grounds, and these must be shown. Roy v. Goings, 96 Ill. 361; Bailey v. Godfrey, 54 id. 507; Lewis v. D' Arcy, 71 id. 648; Furlong v. Cox, 77 id. 293; Davenport v. Ledgers, 80 id. 574.
    Notwithstanding our statute provides that if a mortgagor of personal property sells or disposes of the same, during the existence of the lien, without the written consent of the mortgagee, he shall be deemed guilty of a misdemeanor, and, on conviction, be liable to a penalty, a sale made without such written consent, or without any consent whatever, is not void. Gage v. Whittier, 17 N. H. 312; Stafford v. Whitcomb, 8 Allen, 518; Pratt v. Maynard, 116 Mass. 388 ; Patrick v. Meserve, 18 N. H. 300; Brandt v. Daniels, 45 Ill. 453; Brooks v. Record, 47 id. 30.
    A mortgagor may make a sale of mortgaged property with the oral consent of the mortgagee, so as to vest in the purchaser an unincumbered title. Jones on Chattel Mortgages, sec. 456.

      Authority in the mortgagor to sell the mortgaged property may be inferred. Such authority depends upon the intent of the parties, and the intent is a question for the jury. Jenks v. Goff, 1 R. I. 511; Jones on Chattel Mortgages, sec. 457.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action of replevin, brought by Emma L. Magill, against William W. Foster, sheriff of Macon county, to recover forty-four mules, which she claimed to have purchased of James DeLand, who originally owned the property. The mules were not found by the officer, but the writ of replevin was returned served on the defendant. Upon the return of the writ, the plaintiff filed a declaration in trover, with the view of recovering the value of the property. The defendant pleaded the general issue, and on a trial before a jury, the plaintiff recovered a judgment for the value of the property, which was affirmed in the Appellate Court. Various alleged erroneous rulings of the circuit court are relied upon to reverse the judgment of the Appellate Court.

Before the commencement of the trial, a bill in equity was presented to the presiding judge for an injunction to restrain the further prosecution of this action, in which the defendant, William W. Foster, and the DeWitt County National Bank, were complainants, and Emma L. Magill, and others, were defendants. The application for an injunction was refused, and the decision on the application for an injunction is the first error relied upon to reverse the judgment. We shall not stop, here, to determine whether the decision on the application for an injunction was correct or incorrect, for the reason, that question does not properly arise in this case. It is true that the effect of the injunction, had it been ordered, would have been to postpone the trial of this cause; yet the order denying the injunction was not made in this case, but on the bill in chancery, and the proper time to consider the decision of the court on the bill, will be when that case reaches this court for final determination. Orders made in one case, are not, as a general rule, reviewable in another.

Objection is made to other rulings of the court during the progress of the trial, and in order to pass properly upon some of the questions raised, a brief reference to the leading facts in the case, as disclosed by the evidence, seems to be required.

It appears that a judgment had been rendered against James DeLand for a certain sum of money, which he was unable to pay unless he could obtain a loan of money. He owned an undivided one-half of eighty-eight mules, which he transferred to his son-in-law, Wheeler, and Wheeler procured a loan of $2700 from John Warner, which he secured by the joint note of DeLand and Wheeler, and a chattel mortgage on the mules. It was understood between DeLand and Wheeler, that the latter should take possession of the mules, retain them until sold, pay the Warner loan, and return the bajance to DeLand. After this arrangement, the mules were divided between DeLand and the other owner, and the forty-four which fell to De Land, went into the possession of Wheeler. It also appears, that DeLand was indebted to his daughter, Emma L. Magill, in the sum of about $16,000, and, for the purpose of securing this indebtedness, he gave her a mortgage on certain real estate, and also, on November 30, 1883, sold her the forty-four mules, subject to the mortgage to Warner, which she assumed. This sale was made with the consent of Wheeler, and after the sale she took possession of the mules. After this sale, the DeWitt County National Bank obtained a judgment against DeLand, upon which an execution was issued, and levied by Foster, sheriff of Macon county, on the mules, as the property of DeLand.

On the one hand, it was contended, on the trial in the circuit court, that the mules belonged to DeLand, and were subject to the execution in the hands of the sheriff, w'hile on the other hand, it was claimed that Emma L. Magill was a purchaser in good faith, for value, and -that the title to the mules passed to her under the bill of sale. Whether the arrangement between DeLand and appellee was an honest transaction, made in good faith, or whether, it was fraudulent as to creditors, was a question purely for the jury, and the verdict of the jury in favor of appellee, which aatls affirmed in the Appellate Court, is final and conclusive upon that question, and appellant’s argument on that branch of the case need not be discussed here.

It is insisted in the argument, that under the contract between appellee and De Land she was not the absolute owner of the property, but held as a mere pledgee, and that the measure of damages, in the event of a recovery, Avas not the full value of the property AA'hen converted, but only- the value of her special interest in the goods. We do not think this position can be sustained, under the evidence. De Land sold appellee the property subject to the mortgage held by Warner, which she assumed. An absolute bill of sale Avas given, under which appellee took possession of the property. She agreed, upon a sale of the mules, to credit De Land with the entire proceeds, less the amount of the Warner mortgage. Nothing was left for the vendor to do to complete^ the sale, but it seems to have been the intention -of both parties that the title to the property should then pass. The fact that the definite amount Avhich De Land should ultimately receive was not then fully determined, did not change the character of the transaction. Piner v. Cover, 55 Ill. 391; Graff v. Fitch, 58 id. 378; Shelton v. Franklin, 68 id. 333; Straus v. Minzesheimer, 78 id. 499. In the case last cited, it was expressly held, in a contract of sale the title will pass to the purchaser, if such is the intention of the parties, although measuring or weighing is to be had at a subsequent time, in order to ascertain the amount to be paid. The first instruction given for •the plaintiff announced this principle, and we think it is sustained by the authorities.

A large number of instructions were given for both the plaintiff and the defendant, and while we do not undertake to say that they all contain correct propositions of law, or that they were all appropriate or necessary to enable the jury to arrive at a proper verdict, yet after a careful consideration of the instructions given for the plaintiff, we do not regard any of them calculated to mislead the jury. Seventeen instructions were given for the defendant, and while some were modified by the court, as a Avhole they were more favorable to him than the evidence would warrant, and, so far as instructions are concerned, he has no just ground of complaint.

It is also claimed that the court erred in sustaining the objection to certain evidence offered to shoAV what Warner had done, under his mortgage, in regard to taking possession of the property. If Warner did any act in the direction of taking possession of the property, we see no objection to proof of that character, and the court directly ruled that such evidence was admissible. The last question propounded to'the witness, which the record shows aauis objected to, and the objection sustained, would seem to indicate a contrary ruling; but at the same time, if appellant desired to show a suit by Warner to recover the possession of the property, the papers in the case and the court record were the best evidence, and had such testimony been offered, we hav'e no doubt, under the former ruling of the court on this branch of the ease, it would have been admitted.

After the evidence was all in, the court limited the argument before the jury to forty-five minutes on each side, and this ruling is complained of. This was a matter resting in the sound legal discretion of the court, and unless the discretion was abused to the injury of appellant, which does not appear from the record, we can not interfere. If it appeared that more time was actually required to properly argue the case before the jury, a different question would be presented; but such is not the case.

Other questions have been discussed in the argument, but they relate mainly to questions of fact which do not arise here.

After a careful examination of the record, we perceive no error which would justify a reversal of the judgment of the Appellate Court. It will therefore be affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    In the matter of Charles P. Swigert, Auditor of Public Accounts.

      Filed at Springfield March 27, 1886.

    1. .. Exemption ebom taxation—strict construction applied—power of taxation not to be bartered away. The right of taxation being inherent, and essential to the very existence of government, can not be bartered away by the State, and even a partial disposition of’ the right'is allowed by the courts' with great reluctance, hesitation and caution.
    2. All laws exempting property from taxation will be subjected to a strict construction by the courts when called upon to enforce them, and hence nothing will be held to come within the exemption which does not clearly appear to be so, and all reasonable intendments will be indulged in favor of the State.
    3. As all property is presumably subject to taxation, a claim of exemption as to a piece or class of property must be shown and established by clear and satisfactory proof. ■ *

      4. Same—exemption of the Illinois Central Railroad Company—its extent and limit—whether it includes elevators to be used in the handling of grain. Section 22 of the charter of the Illinois Central Railroad Company, after providing for a limited State tax upon its stock, property and assets, declared that “the said corporation is hereby exempted1 from all taxation of every kind, except as herein provided for:” Held, that this broad language should not be construed alone, but considered with reference to and in connection with the objects' and purposes of the whole act. And as the company was authorized to acquire and use all such real and other property as might be necessary for the construction of its railway and stations, and such other accommodations as might be necessary to accomplish the objects of its incorporation, it was held, that the property intended to be exempted was such as that described, being such as was necessary for the construction and operation of its railway.

      5. ' If an elevator of such company is used exclusively by it in receiving grain for shipment, or for storing it after shipment, without any additional charge therefor, except on neglect of the owner to take it away within a reasonable time after its arrival, it would be clearly exempt under section 22 of the charter of the company.
    6. In this case it appeared the company erected on its right of way in Cairo, and near the Ohio river, a grain elevator, and leased the same to private parties, who received tolls and compensation for all grain stored therein. It was shown that such elevator was quite convenient and beneficial to the company in its business, but not more so than if built and owned by private persons: Held, that under the company’s charter such elevator was not exempt from taxation, it not being devoted exclusively to the business of the company as a common carrier, and not being 'essential to the operation of its road.
    7. Evidence—opinions of witnesses—as to the necessity of an elevator in the operating of a railroad,. On the question whether an elevator is necessary to the successful operation of a railway, the opinions of witnesses that it is, is not conclusive or entitled to a controlling influence; but the court will, from the facts proved, determine the true relations of the elevator to the road •and its operation, rather than from the opinions of witnesses.
    8. Law and fact—as to exemption from taxation—whether a question of law or fact. What constitutes an exemption from taxation, is a question .of law; but whether a particular piece of property is within the exception or not, depending upon the existence or non-existence of certain facts, presents a question of fact. But when the relations of the property, and the uses to which it is applied, are ascertained, it becomes a question of law whether it is exempt or not.
    • 9. Construction of statutes—exeluding matters not enumerated. It is a well settled doctrine, that in construing statutes, particularly those requiring a strict construction, a general description, following a specific enumeration of objects or things, will be held to include only such things or objects as are of the same kind as those specifically enumerated.
    • This is' an original proceeding,- commenced in this court by Charles P. Swigert, Auditor of Public Accounts, to have the decision and order of the county board of Alexander county, holding certain property of the Illinois Central Railroad Company not exempt from taxation under its charter, confirmed by this court.
    Mr- George Hunt, Attorney General, for the Auditor.

      Messrs. Green & Gilbert, for the Illinois Central Railroad Company.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The question for-determination in this case is, whether a certain grain elevator belonging to the Illinois Central Railroad Company is exempt from taxation for other than State purposes. The elevator in question is built on the banks of the Ohio river, on a lot of ground belonging to the company, within the corporate limits of the city of Cairo, and is known as the “Cairo elevator.’’ It is within about fifty feet of the main track of the company’s road leading into the city, and is connected therewith by side-tracks. It is so constructed as to receive and discharge grain both by rail and river, though much the largest portion of its business is done by rail. It was completed by-the company in the fall of 1881, and in about a year afterwards was let by the company to the Halliday Brothers, who have had exclusive control of it ever since. The rental or compensation which the company receives for the use of it, is regulated by the amount of business done,—that is, the company is paid by the lessees a specified sum for each bushel of grain received into it. Just what this sum is, does not appear from the evidence. The Halliday Brothers charge a cent and a .half per bushel for the storage of grain, and permitting it to remain in the elevator for a period of ten days or less, and an additional half-cent per bushel for every additional ten days it remains therein. The building has a capacity of 750,000 bushels, and the grain is stored therein according to grade, and not according to ownership. It cost some $200,000 or $300,000.

Henry S. Halliday, one of the lessees, and Horace Tucker, general freight agent of the company, were both examined as witnesses on behalf of the appellant. These witnesses concur in the opinion that the Illinois Central Railroad Company could not do the amount and character of grain business now done by it, without an elevator, and they therefore conclude, and so state in their testimony, that such an elevator is necessary to a successful and complete operation of the company’s road in the transaction of its grain business. If the conclusion to be reached depended alone upon the opinions of witnesses, we should not hesitate to reverse the judgment of the county board for holding, as it did, the property was subject to local taxation. But, clearly, these opinions are not conclusive, nor can they have anything like a controlling influence in the decision of the question. What constitutes an exemption from taxation is a question of law, but whether a particular piece of property is within the exemption or not, depends upon the existence or non-existence of certain facts capable of proof, which, of course, is matter for the determination of a jury, or trying tribunal performing the functions of a jury, as was the case here. When the relations of the property to the road, and the uses to which it is applied, are ascertained, it then becomes a question of law whether it is exempt or not. In reviewing this case we must pass upon the facts as well as the law, and from the facts proved must determine the true relations of the property in question to the road and its operation, rather than from the opinions of witnesses.

The power to raise money by taxation is universally admitted to be inherent in every State or sovereignty, since, without it, the necessary means of defraying the expenses of government could not be provided, except in the case of mere despotisms. As this right of taxation, then, is inherent, and essential to the very existence of government itself, the principle is universally recognized by courts and political writers, that the State can not W'holly barter it away or otherwise dispose of it. And even a partial disposition of it has been admitted by the courts with great hesitation and reluctance. (Cooley’s Const. Lim. 281.) It is obvious that all law's exempting property from taxation are not only restrictions or limitations on the taxing power, but they necessarily result in an unequal distribution of the burdens of government. The effect is not only to relieve the property exempted, from the payment of its due proportion of taxes, hut that which it ought to pay, and would pay, under an equal and fair apportionment of them, must also be collected from the property not exempted. These considerations have very properly induced courts to adopt what is known as a strict construction, in giving effect to such laws,—hence nothing will he held to come within the exemption which does not clearly appear to be so, and all reasonable intendments will be indulged in favor of the State. Presumably, all property is subject to taxation. When, therefore, it is claimed that a particular piece or class of property is exempt, the party interposing the claim-must come prepared to establish it by clear and satisfactory proof. ■ Thus it is said in the case of The People v. Graceland Cemetery Co. 86 Ill. 336: “The true spirit of our laws requires that all property should bear its just proportion of the burden of taxation, and where an exception is made in favor of a corporation, justice demands that it should show clearly a compliance with the terms and spirit of the act exempting it from taxation, before it can be permitted to escape a duty incumbent equally upon every citizen.” The general principle here announced is also recognized in the following cases decided by this court: First M. E. Church v. Chicago, 26 Ill. 482; Pace v. County Comrs. of Jefferson County, 20 id. 644; The People v. Western Seaman’s Friend Society, 87 id. 246; Huck v. Chicago and Alton Railroad Co. 86 id. 352.

In the present case, it is claimed that the elevator in question is exempt from taxation under the 22d section of the company’s charter, which will be found in the private laws of 1851, page 72. That section, after exempting from taxation the lands granted to the company by the State, until they are sold, and also the “stock, property and effects of the company” for six years from the date of the act, directs that thereafter “the stock, property and assets” belonging to the company shall be assessed and taxed, to a limited extent, for State purposes. It then declares that “the said corporation is hereby exempted from all taxation of every kind, except as herein provided for.” It must be conceded, the language of this section is very broad, and if considered without reference to the objects and purposes of the act, it is clearly broad enough to include the property in question. Indeed, if the provision is to be construed independently of this consideration, and is to be enforced according to its literal terms, it would include any kind of property whatever; and yet no one, we presume, would take so extreme a view as that. It is very certain the learned counsel for the company do not.

It does not appear from the evidence, nor is it claimed, that the land upon which the elevator is built is a part of the original grant by the State to the company, and hence the exemption can not be placed upon that ground. The company, however, is authorized, by the first section of its charter, “to purchase, hold and use all such real estate and other property as may be necessary for the construction of its railway and stations, and other accommodations as may be necessary to accomplish the objects of its incorporation;” and the contention óf appellant, as we understand, is, that the property in question falls within the general description in the concluding part of the section,—namely, “other accommodations, ” etc.,—and that it is therefore exempt from taxation. This conclusion is based upon the assumption that the exemption is coextensive with the right to acquire or hold property of any kind. This position we do not regard as sound. But conceding it is, for the purpose of the argument, it does not necessarily follow that the construction relied on is the correct one. We can not believe it was intended, by the general description mentioned, to include objects of a different kind or class from those specifically mentioned in the preceding part of the section. It is a well settled doctrine, that in construing statutes, particularly those requiring a strict construction, as is the case here, a general description, like the one in question, following a specific enumeration of objects or things, will be held to include only such things or objects as are of the same kind as those specifically enumerated. Applying this principle to the section cited, as we must, so far as the question of exemption is concerned, we see nothing in it which strengthens the claim of the company. By it, the company is authorized “to purchase, hold and use all 'such real estate and other property as may be necessary for the construction of its railway and stations, and other accommodations,” etc. Under the rule of construction in question, whatever is included in the expression, “other accommodations,” must be of the same class or kind as “railway and stations.” Without at all attempting to state the various articles or subjects of property that would clearly belong to the class of things specifically enumerated, we would say that it doubtless includes the road, with all necessary switches and turn-outs, together with all structures thereon; also, rolling stock, with all its machinery and appendages, warehouses and other structures, at the termini or along the line of the road, belonging to the company, and used by it exclusively for the reception of passengers, the storage of freight, and also for the purpose of keeping the road and rolling stock in repair, or of improving their general condition. This, of course, would include all necessary depot grounds and buildings, machine and work shops of all kinds, machinery, tools, and implements of every description used in keeping the road and rolling stock in repair and in a good and safe condition. All these things, it will be perceived, have an immediate connection with the improvement and operation of the road. Whatever would be necessary to increase its capacity, such as laying down an additional track or. increasing the amount of rolling stock, would fall within the same category. But it is evident this elevator does not belong to any of the classes of things enumerated. It has no direct connection with the road or its. operation, yet when shipments of grain are made, either to or from it, over the company’s road, it is very clear the company can handle the grain thus shipped, with more ease and greater facility, and hence can, by means of it, do a greater amount of business. But this is purely incidental, and falls far short of establishing the proposition that a vast elevator like this, costing $200,000 or $300,000, is a necessary appendage of a railroad, or that the legislature,- in granting the company’s charter, intended to exempt such a structure' from taxation. It is clear the- advantages accruing to the company, as shown by the evidence, do not at all result from its ownership of the property. Had the elevator been built and operated in the same manner it now is, by some one other than the company,—for -instance, the Halliday Brothers,—• the company, so far as facilitating its business as a common carrier is concerned, would derive the same benefit from it that it now does. As a mere carrier, the company has no right to put a bushel of grain in it, except when directed to do so by the shipper or consignee. This necessarily results from the fact that all grain, as is shown by the testimony, is stored in it according to grade, and not according to ownership. As to a railway warehouse, properly so called, the rule and usage is altogether different. On .the arrival of a consignment of goods, the company has the right to at once store them in its own warehouse. The company is bound to carry grain in bulk, and deliver the same from cars or other convenient place of storage, without extra charge, now, just the same as it was before the elevator was built, if so required ; and the company has no right to mix one man’s grain with others, unless permitted to do so by the owners.

It is clear, therefore, outside of the incidental benefits resulting to the company from a law of business, rather than from any municipal regulation, the elevator has no necessary connection with the construction, maintaining or operation of the company’s road,—and such being the case, it clearly does not come within the exemption. If the elevator was used exclusively by the company in receiving grain for shipment, or for storing it after shipment, without any additional charge therefor, except where the owner neglected to take it away within a reasonable time after its arrival, the property would then be clearly exempt from 'taxation. But such is not the case. Buildings used for the storage of grain for compensation, are indifferently called warehouses, granaries, and elevators. Vast amounts of capital are invested in them, and, like railroads and other quasi public property, are under legislative control. Their construction and operation constitute a distinct business in the State, of vast magnitude. They are a great convenience to the community in which they are situated, and particularly to the owners of the railways with which they are almost universally connected. Capitalists invest money in them for the same reason they do in other things—because they think it will pay. They are supported by contributions from dealers in grain, in the shape of tolls, which are always taken into account in buying and selling, hence the consumer in the end pays these expenses or contributions. So in this case, the building of-the elevator was a mere investment by the company, and it is now regularly collecting tolls from those who use it, through the Halliday Brothers. These tolls, thus collected, are simply the returns of the company’s investment. It is not reasonable to suppose the legislature intended that property representing so large an amount of capital should be exempt from local taxation, when the people .at large are thus taxed, for every benefit derived from it.

But this is not a new question in this court. We regard the ease of Illinois Central Railroad Co. v. Irvin, 72 Ill. 452, as an authority directly in point against the claim of the company in this case. There it was claimed, that a transfer boat belonging to appellant, was, under the provisions of its charter now under consideration, exempt from local taxation. The boat in question was used by the company in carrying passengers and freight between Cairo and Columbus, Kentucky, thus forming a connecting link between the Illinois Central and the Mobile and Ohio railroads. This court, in rejecting the claim of appellant in that case, and in giving a construction to appellant’s charter, used the following language : “The taxes from the payment of which the legislature intended to relieve appellant, could have been only the taxes which, as a railroad corporation, it would be otherwise liable to pay upon its property acquired in the prosecution of its business in constructing and operating those lines of road.” The elevator clearly does not fall within the exemption, according to the rule here laid down.

It is therefore considered that the decision of the county board of Alexander county be affirmed.

Order affirmed.


author: Mr. Justice Scholfield

text:
    Susan Barnard et al. v. Charles E. Barnard.

      Filed at Springfield October 6, 1886.

      1. Adoption op children—of the petition—its requisites. A petition by a party to enable him to adopt a child under the act of 1867, in order to give the court jurisdiction to act, need not recite any jurisdictional facts except those the statute specifies shall be recited.,
    2. The law does not require the petition to state the name of the father of the child, and that he consents, whether he is dead, or, if he be alive, that he has abandoned the child. In such case, it will be sufficient to state the mother’s name, and that she consents, and the failure to allege in the petition the death of the father, or his abandonment, will not go to the jurisdiction of the court. When the father is not named, it will be presumed he was dead or had abandoned his child.

      3. Same—jurisdiction of county court—presumption. Where an order of the county court, made in 1870, for the adoption of a child, is shown, it will be presumed that the court had jurisdiction, unless it appears from the record itself that it could not have had jurisdiction in any contingency, or unless the statute authorizing the court to act, requires the record affirmatively to show, precedent to its decree, some fact which it fails to show.
    ■ 4. Same—questioning decree collaterally. An order or decree of the county court, made under the act of 1867, declaring a child to be the adopted child and heir of another, if the court had jurisdiction to act at all, however erroneous it may be, must stand until reversed in some direct proceeding.
    5. Witness—competency of party as against one suing as heir. On bill by a minor adopted heir for the partition of the lands of which his adopting father died seized, and for the assignment of dower, the widow of the deceased ancestor is not a competent witness to prove advances made by her to her husband, to discharge incumbrances on the land, and have such advances made a lien on the premises in her favor.
    6. Infant—whether his rights waived by failing to object. An objection to the competency of a part)' to testify in his own behalf, is not waived by an infant party by his failing to object at the proper time.
    7. Administration of estates—claim for money loaned to remove incumbrance—how to be adjusted—whether as a lien upon the land—lapse of time as a bar. If a man’s wife in his lifetime loans him money with which to remove incumbrances from his lands, and he dies without having repaid her, she should file and prove her claim against his estate within a reasonable time, and failing to do so, she will be deemed as having w'aived it, and will not be allowed to have it decreed a lien on the lands as against the heirs.
    Appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.
    Messrs. Tipton & Beaver, for the appellants:
    The right to inherit property from adoptive parents, exists only by virtue of statutory enactments. Tyler v. Reynolds, 53 Iowa, 148; Wallace v. Rappleye, 103 Ill. 258.
    In order to effect the adoption of a child under the act of 1867, the petition must show, first, that the court applied to is of the same county with the petitioner; second, the name, age and sex of the’ child; third, and if the name of the child is to be changed, it must state the newname, and give the name of the child’s father, or, if he be dead or has abandoned his family, then the name of the mother, and if there be neither parent, then its guardian, if any, is to be named ; and fourth, the consent of the father.
    The petition could be presented only to the court of the petitioner’s county, and the petition failing to show the residence of the petitioner, the court had no jurisdiction. Bowen v. Bond, 80 Ill. 356.
    It must be affirmatively shown by the petition that the father is dead or has abandoned his family. Luppie v. Winans, 27 N. J. Eq. 249.
    The right of inheritance through adoption can be acquired only by a strict compliance with the statute. Tyler v. Reynolds, 53 Iowa, 148; Weaver v. Weaver, 56 id. 585.
    Mr. John E. Pollock, and Mr. A. G-. Karr, for the appellee:
    The presumption is, that the evidence before the county court showed a case authorizing its action. As there is no law requiring the judge to preserve the proof in the record, it will be presumed proof of the death or abandonment of the father was received, and acted upon. Schnell v. Chicago, 38 Ill. 390; Stow v. Kimball, 28 id, 107; Fitzgibbon v. Lake, 29 id. 177; Henline v. People, 81 id. 271; Moffit v. Moffit, 69 id. 646; Hoash v. People, 66 id. 181.
    The allowance by the decree, in the present case, of $2364 to Susan Barnard, on account of loans, and interest thereon, claimed by her to have been made to her husband, was error. The law is settled, in this State at least, that a court of equity will not ordinarily assume jurisdiction until the claimant shall have exhibited his claim, and had it allowed in the county court, and then, if any special reasons that may be deemed sufficient can be assigned why that court can not afford the requisite relief, equity will assist him, but not otherwise. Harris v. Douglas, 64 Ill. 469; Freeland v. Dazy, 25 id. 296; Armstrong v. Cooper, 11 id. 561.
    A creditor is considered to have waived his lien upon property descended, if he does not pursue his remedy within a reasonable time; and where the delay of the creditor is unexplained, the period of seven years from the death of the intestate is properly°adopted, by analogy to the lien of judgments, and the limitation for entry upon and recovery of lands as a bar to such liens. McCoy v. Morrow, 18 Ill. 519; Reed v. Colby, 89 id. 106.
    The claim for $2364 was allowed to Susan Barnard upon the testimony of herself, alone. She was an incompetent witness, under the statute, and the court erred in receiving her testimony, and in rendering a decree upon her testimony in her favor. Rev. Stat. sec. 2, chap. 51, p. 600; Stewart v. Kirk, 69 Ill. 509; Connelly v. Dunn, 73 id. 218; Mahoney v. Mahoney, 65 id. 407.
    Neither the guardian of Charles E. Barnard, nor his attorneys, could, even if so disposed, bind him by permitting the evidence of an incompetent witness to be received to his prejudice. Waugh v. Robins, 33 Ill. 182; Rhodes v. Rhodes, 43 id. 249; Quigley v. Roberts, 44 id. 505; Barnes v. Hagleton, 50 id. 431; Railroad Co, v. Kennedy, 70 id. 364.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This is a bill in equity, by Charles E. Barnard, claiming to be an heir-at-law, by adoption, of Walter Barnard, deceased, against Susan Barnard, the widow, and Lydia Robertson and Walter Barnard, Jr., the only children of said Walter Barnard, and Alexander Robertson, the husband.of said Lydia, for assignment of dower and partition. The circuit court decreed that the complainant is an heir-at-law, by adoption, of Walter Barnard, deceased, and, as such, entitled to have partition of his estate, subject, however, to a prior lien thereon in favor of Susan Barnard, for certain advances by her to her husband, the said Walter, in his lifetime. The case comes here by the appeal of the defendants to the bill, who assign for error the finding that the complainant is an heir-at-law, by adoption, of the said Walter Barnard, deceased; and the complainant assigns as a cross-error, that the court erred in finding that the widow, Susan, was entitled to a prior lien upon the premises for the amount of the advances by her to her husband.

The statute in force when the proceedings were had in the county court of McLean county, in reference to the adoption of the complainant by said Walter Barnard, reads as follows : “That any person desirous of adopting a child, so as to render it capable of- inheriting his or her estate, may present a petition to the circuit or county court of his or her residence, setting forth the name, age and sex of such child, and if such person desires the name changed, stating the new name; also, the name of the father, or if he be dead, .or has abandoned his family, the mother, and if she be dead, the guardian, if any, and the consent of such father or mother to the act of adoption. And if the child has no father or mother, then the consent of no person shall be necessary to said adoption. It shall be the duty of the. court, upon being satisfied of the truth of the facts stated in the petition, and of the fact that such father, mother or guardian has notice of such application, and being further satisfied that such adoption will be to the interest of the child; to make an order declaring said child to be the adopted child of such person, and capable of inheriting his or her estate, and also what shall be the name of such child; and thenceforward the relation between such person and adopted child shall be, as to their legal rights and liabilities, the same as if the relation of parent and child existed between them, except that the adopted father or mother shall never inherit from the child but to all other persons the adopted child shall stand related as if no such act of adoption had been taken.” Laws 1867, p. 133.

The petition filed in the county court reads thus:

“To A. J. Merriman, County Judge of McLean County:

“The undersigned.represents to your honorable court, that he is desirous of adopting, as his own, a minor male child by the name of Charles B. Barr, aged four years August 20, 1870, and hereby requests your honorable court to make an order declaring said minor child his adopted child, and capable of inheriting his estate, and that his name be changed to Charles B. Barnard,—the mother, Lucinda A. Bead, of said minor child, consenting and requesting that the above petition be granted. Walter Barnard.
“Bloomington, August 20, 1870. ”
“I, Lucinda A. Bead, the mother of the above named child, hereby consent and request that the petition of the above •named Walter Barnard be granted. Lucinda A. Bead.
“Bloomington, August 20, 1870.”
Upon the back of which petition is the following indorsement: “Biled August 20, 1870.—J. W. Straight, Clerk.”
The' order of court thereupon reads:
“In the matter of the adoption of Charles E. Barr, a minor:
“And now, on this day, comes Walter Barnard, and presents his petition to the court, to the effect that the said court will make an order declaring the said Charles E. Barr, (a minor child, aged four years August the 20th, 1870,) to be the adopted child of the said Walter Barnard, and capable of inheriting his estate. And also, at the same time, appears Lucinda A. Bead, the mother of said child, and signifies her willingness to such adoption by signing a written consent to that effect. And the said petitioner also prays an order of the court declaring the name of said minor Child to be changed from that of Charles B. Barr to that of Charles B. Barnard. It is therefore ordered by the court, that the said Charles B. Barr, a minor, be and is hereby made and declared to be the adopted child of the said Walter Barnard, and as such adopted son is capable of inheriting the estate of the said Walter Barnard, as in such cases by law made and provided. And it is further ordered by the court, that the name of the said Charles B. Barr, a minor, be changed to Charles B. Barnard.”

It is contended that this order is a nullity, because, first, it is not shown in the petition that the county of McLean was the county of the residence of the petitioner; and second, the consent of the father of the child is not shown, by the petition, to have been obtained to the adoption, nor is it therein shown that he was dead, nor is his name given.

It is not important, here, to inquire,—this record coming before this court collaterally,—whether the county court erred, simply, in decreeing as it did. The question is, did it have jurisdiction to make any decree in the matter. If it had jurisdiction to decree in the case, the decree, until reversed, however erroneous, merely, must stand. It will be observed the statute clearly gives the court power to decree as to the subject matter, and the only question, therefore, is, whether the parties required by the statute to be before the court, in order that such a decree be rendered, were in fact before the court. The presumption, in the first instance, is, that the court had jurisdiction, unless it is apparent from the act itself that the court could not have had jurisdiction in any contingency, or unless the statute empowering the court to act requires the record to affirmatively show, precedent to its decree, some fact which it fails to show.

There being no pretence of anything, here, showing, affirmatively, that Walter Barnard did not, at the time of presenting the petition, reside in McLean county, or that the complainant had a father alive- who had not abandoned him at the time, it only remains to examine whether the petition affirmatively recites all the jurisdictional facts which the statute specifies shall be recited in it, for we have held no more need be récited. Stow v. Kimball, 28 Ill. 107.

We have seen, the statute requires that the name of the father shall be stated, and that he consents to the adoption ; but this is only in the event that he is alive, and has not abandoned the child, for, if he be dead, or, if he be alive and has abandoned the child, it is only necessary to state the name of the mother, and that she consents to the adoption. The fact of the father’s death or abandonment is not required to be affirmatively stated. It may be that good pleading requires that such a statement should be made, and that its omission would be fatal on a direct proceeding,—as to which we express no opinion,—yet the statute only requires, as a jurisdictional fact, that the parent be named who has the actual custody and guardianship of the child, and that it be shown that that person consents to the adoption. It is not required that it shall be stated in the petition, or otherwise affirmatively shown, that the petitioner resides in the county. In this proceeding, it will be presumed that the court heard proof of the facts which required it to decree as it did. Stow v. Kimball, supra; Fitzgibbon v. Lake, 29 Ill. 177; Schnell v. Chicago, 38 id. 390; Housh v. People, 66 id. 181; Moffitt v. Moffitt, 69 id. 646; Henline v. People, 81 id. 271; Bostwick v. Skinner, 80 id. 152.

We are of opinion, however, that the decree below should be reversed on the cross-error assigned. The decree finds “that the defendant, Susan Barnard, on the......day of June, 1871, furnished to her husband, Walter Barnard, §1000 to pay off incumbrances on the said real estate, and that on January 25, 1864, she furnished to him $200 to redeem said premises from sale upon the judgment of A. Gridley & Go., which said sums the said Susan Barnard is entitled to have refunded to her, with interest from the respective dates when said sums were .furnished, at the rate of six per cent per annum.” And the court thereupon decrees, “that the said Susan Barnard, in addition to her estate in said property as herein defined, is entitled to have refunded to hei; the amount of the said $1000 furnished by her to her said husband in June, 1871, and the sum of $200 furnished to him January 25, 1864, with interest on said respective sums at six per cent per annum,—which said claim, with the interest, amounts now, in the aggregate, to the sum of §2364, which amount the court doth order, adjudge and decree to be paid to the said Susan -Barnard, by the said Charles E. Barnard, Lydia M. Robertson, and Walter Barnard, Jr., equally, and that the said amount be and the same is hereby made a charge upon the shares of said parties in the said premises,-as the same may be hereafter allotted and set off to them in pursuance of this decree. ”

This is supported by the testimony of Susan Barnard, the claimant, and widow of the deceased, alone. She was clearly •an incompetent witness for this purpose. Stewart v. Kirk, 69 Ill. 509; Mahoney v. Mahoney, 65 id. 407; Connelly v. Dunn, 73 id. 218.

The complainant being a minor, the question of the incompetency of the testimony has not been waived. Waugh v. Robbins, 33 Ill. 182; Rhoads v. Rhoads, 43 id. 249; Quigley v. Roberts, 44 id. 505; Barnes v. Hazleton, 50 id. 431; Chicago, Rock Island and Pacific Railroad Co. v. Kennedy, 70 id. 364.

' Nor is any satisfactory reason shown why this claim was not probated against the estate. Not having pursued her remedy in the county court within a reasonable time, she is to be deemed as having waived it. Harris v. Douglas, 64 Ill. 469; Freeland, Exr. v. Dazey, 25 id. 296; Armstrong v. Cooper, 11 id. 561; Reed v. Colby, 89 id. 106; McCoy v. Morrow, 18 id. 519.

That part of the decree giving Susan Barnard a lien on the land in controversy to the amount of $2364, as above recited, is reversed, and the balance of the decree is affirmed. The costs will be taxed against the appellants.

Decree reversed in part and in part affirmed.

Mr. Justice Sheldon dissents, for the reason that the petition for adoption does not state the jurisdictional fact, required to be stated in the petition, of the consent of the father, or liis death, or abandonment of his family.