author: Mr. Justice Shops Mr. Chief Justice Craig :

text:
    Charles W. Rigdon v. Elbert W. Shirk.

      Filed at Ottawa January 25, 1889.

    1. Cloud upon title—in what it may consist. A cloud is the semblance of a title, either legal or equitable, or a claim of an interest in land appearing in some legal form, but which in fact is unfounded, or which it would be inequitable to enforce.' If the claim sought to be removed is valid, and may be enforced, either at law or in equity, it is not a cloud.
    2. Contract—giving option to purchase land—validity of contract. A written contract by the owner of land, giving the person therein named an option or right, at his election, to pinchase the same at a certain price, and within a time therein specified, if fairly made upon sufficient consideration, is valid and binding. If not otherwise provided, such a contract may be assigned, and is of value to the holder.
    3. Same—contract for purchase of land—options held in the interest of several—relation between th,e latter. A, the owner of certain options for the purchase of a number of lots of land, transferred the same to B, to be held and used by him on joint account. B gave back a writing, certifying that A was interested in the options assigned by him, and concluding : “B is to hold said options for the joint and equal benefit of A and B. In case B is able to trade for the property, he agrees to give A one-half of the net profits after he has received in full the purchase price, with eight per cent interest on that amount for the time he has held it. The property is not to be sold for less than $175,000 until after May 1,1887, unless by consent of both A and B Held, that when B acquired the lots,' under the options, he held the title in trust, to reimburse himself for the purchase money and interest thereon, and the balance for himself and A in equal shares, and that this vested an equitable interest in A to the lots.
    4. Same—merger of contract rights—effect of a subsequent contract in relation to same subject matter, but which is abandoned. In the same case it appeared that A and B entered into a contract with 0 in respect of the property, which was based upon the contingency that a hotel company should be organized, with a capital stock of not less than $400,000, and this contract provided that the hotel company should lease the ground from B at an annual rental of $12,000, and taxes and assessments thereon, the lease to run ninety-nine years. Of the rent, three-fourths was to be paid to B and one-fourth to A, so long as B retained the title. The contract gave C an option to purchase the premises, including the proposed lease thereof, at any time before September 1,1887, for $205,000, and provided that if C failed to make such purchase, B might sell the same, and pay himself and divide the balance. The hotel company never, in-fact, organized, except on paper, and C, the principal promoter, proved insolvent, and no lease was ever made of the property: Held, that this tripartite contract having proved abortive from the failure of the enterprise upon which it rested, and being abandoned by all parties, did not have the effect to deprive A of his interest in the lots under the prior contract, and vest the same in B. The latter contract never having taken effect, there was no merger of the prior contract between A and B.
    Appeal from the Superior Court of Cook county; the Hon. Egbert Jamieson, Judge, presiding.
    Messrs. Paddock, Alois & Wright, and Messrs. Knickerbocker & Holdom, for the appellant.
    Mr. Frederick Ullmann, for the appellee.
   Mr. Justice Shops

delivered the opinion of the Court:

This is a bill filed by appellee, to remove what is assumed to be a cloud upon his title to the land in controversy. The alleged cloud grows out of the recording of a certain agreement between Shirk and Rigdon and one McNeill, bearing date January 21,1886.

The principal inquiry is, whether the claim of appellant is, in fact, a cloud upon appellee’s legal title. A cloud is said to be the semblance of a title, either legal or equitable, or a claim of an interest in lands, appearing in some legal form, but which is, in fact, unfounded, or which it would be inequitable to enforce. If the claim sought to be removed is valid, and may be enforced either at law or in equity, it can not be said to be a cloud. It therefore becomes necessary to inquire into the nature and character of appellant’s interest and claim in respect to the land, and whether he has a substantial interest in the same, of which he has been deprived by the decree.

Appellant had acquired from the former owners of the land options to purchase the same at a fixed price, within a limited period of time, which options he assigned to appellee, whereby the latter was enabled to acquire the title to the several tracts of land at an aggregate price not exceeding $105,000. The tract of land now owned by Shirk was acquired from a number of persons, each owning a portion in severalty. The purpose seems to have been to acquire title to a compact body of land of the size and dimensions suitable for the erection of a hotel. The options had been procured from the several owners by Rigdon, as it seems, before negotiations- had opened between himself and Shirk. At the time of the transfer of the options, Shirk gave appellant a writing certifying that appellant was interested in the options so assigned, and that he (Shirk) was to hold such options for the joint benefit of both parties. This writing also stipulated that in case Shirk bought the property under the options, he would give Rigdon one-half of the net profit derived therefrom, after deducting the full purchase price paid, with eight per cent interest on the same for the time he might hold the property, and that it should not be sold at less than $175,000 before May 1,1887, unless by consent of both parties. The options assigned gave the right to the holder to purchase the several tracts named in said options, at a fixed price, within the time fixed by the makers of the same. A contract giving such an option, when fairly made upon sufficient consideration, is valid. When not otherwise provided, such contract may be assigned, and is of value to the holder, if it may be enforced, giving him the advantage of any increase in the value of the property. The question of the legality of such contract is not involved in this litigation, for the reason that the makers of the options conveyed the property to Shirk in accordance with their terms. Appellee, Shirk, having availed himself of the options, and acquired the title to the property under them, ought not, at least in a court of equity, to be excused from the performance of the contract under and by virtue of which he obtained their assignment. That contract was, that he would hold the options for the joint and equal benefit of himself and appellant, after first deducting the sum expended in the purchase, with interest thereon from the time he should hold the property. Appellee thereby secured to himself the money advanced by him, with interest and one-half the profits, while the compensation to Rigdon was agreed to be one-half of the profits over and above the purchase price and interest.

It is undoubtedly true that the project of the formation of a hotel company which should erect a hotel thereon, taking a lease of the land, was contemplated by both parties, and was no doubt an inducement to the -purchase under the options, as well as to their procurement and assignment. Both parties expected, when the options were transferred, that the property, if purchased thereunder, would be leased at a price that would yield a profit over and above the interest reserved upon the purchase money. Provision was, however, made for a disposition of the property in the event of a failure to secure the anticipated leasing thereof. It was not to be sold before the first of May, 1887, for less than $175,000, unless both Rig-don and Shirk consented to such sale, and the profits were, as we have seen, in the event of a sale, whenever made, to be equally divided between Rigdon and Shirk. It was also contemplated by both parties, that in case of the erection of the proposed hotel and the taking of a lease by the hotel company, a sale of the reversion and lease might be made. It was in view of this that the tripartite contract dated January 21, 1886, was entered into between appellee, appellant and Malcolm McNeill. After the purchase by Shirk under the options, a hotel company was incorporated and organized, the capital stock of which was subscribed, but never any of it paid, the project having been abandoned in consequence of the insolvency of the principal promoter.

Before considering the effect of ‘the tripartite agreement, it will be proper to notice, that while the negotiations were pending between Shirk and McNeill, and the hotel company, represented by McNeill, a memorandum was made hearing the same date of the agreement, but in fact executed some days prior, showing the understanding of Shirk'and Rigdon of the relations each bore in respect of this property. By that instrument, Shirk agrees with Rigdon that if McNeill takes the benefit of an option given by him to McNeill to purchase the property, describing it, for $205,000, on or before September 1, 1886, he would pay Rigdon $50,000 of this amount. The memorandum or agreement then proceeds: “I am to purchase the property at a price not to exceed $105,000. If McNeill does not purchase the property as above, then Rigdon and Shirk are to sell the property on or before October 1, 1887, at the best price they can obtain for the same, and the amount received over and above $105,000, will be divided equally between Shirk and Rigdon, Rigdon to receive one-fourth of the ground rent until the property is sold.—E. W. Shirk.

It is conceded that this instrument was made in view of the negotiations with McNeill and others in respect to the erection of a hotel upon the premises, and taking a lease thereof, which it was expected shortly to consummate, and was a private memorandum, temporary in its character. But it is also shown that it was made upon the demand of Rigdon for some kind of writing showing his interest in the property, and which was to be recognized by Shirk. This memorandum, even if intended to be but temporary, until the tripartite contract could be entered into, very clearly shows the understanding of both Shirk and Rigdon in respect of Rigdon’s interest in this property. If the tripartite contract had not been made, it is evident that Shirk would have held the property bought by him under these options, first, as a -security for the repayment to himself of $105,000 and the interest thereon; and secondly, after that lien was discharged, the balance in trust for himself and Rigdon, in equal shares. In other words, Shirk and Rig-don would have been, in a sense, partners in the proceeds of the property over and above its cost price, and interest thereon.

As we have seen, by the first agreement entered into between these parties, the property was not to be sold, before a stated period, for less than $175,000. It is evident that a sale was expected to he made to McNeill for $205,000, hut if that failed, then the property was to be sold by “Rigdon and Shirk on or before October 1, 1887,” at the best price they could get, and Rigdon was to “receive one-fourth of the ground rent until the property was sold.” If the property was worth more than $105,000, the cost price, and the interest on that sum at eight per cent until the sale should be made, it is apparent that both parties understood that appellant had an interest in the same to the extent of one-half of such excess.

It is claimed that the tripartite agreement entered into between McNeill, Rigdon and Shirk, dated January 21, 1886, but in fact executed January 30, 1886, supersedes all former agreements between appellee and appellant, and that all prior contracts between them were merged therein, and that such agreement must alone be looked to as fixing the rights of the parties. It is perhaps enough to say that the last agreement referred to was based upon a contingency which never happened. The second clause of that agreement contemplates and provides for the incorporation of the hotel company, with a capital stock of not less than $400,000. The third clause provides that the hotel company thus organized should lease the premises as vacant and unoccupied ground from Shirk, at an annual rental of $12,000, and taxes and assessments levied or assessed thereon, said rental to be payable quarterly in advance, commencing on September 1, 1886, and for a period of ninety-nine years. Of this rent, three-fourths was to be paid to Shirk and one-fourth to Rigdon, so long as Shirk might retain the title to the premises. By the fourth clause, Shirk and Rigdon gave McNeill an option to .purchase the premises, including the lease thereof to the hotel company, at any time before September 1, 1887, for the sum of $205,-000, $50,000 of which was to be paid to Rigdon and the balance to Shirk. McNeill was also authorized to sell the premises, and lease to any other person or persons at a price that would yield Shirk and Rigdon the sum of $205,000. By the fifth clause it was provided that in case McNeill should fail to purchase or make sale of the premises on or before September 1, 1887, then Shirk should be at liberty to sell the sainé, and the proceeds, over and above the cost price paid by him, to be divided as was provided in the fourth clause.

The hotel company organized on paper only. No subscriptions to the capital stock were ever paid, and no lease of the property was executed as provided for and contemplated in the tripartite agreement. The reason for this, no doubt, was that McNeill, the principal subscriber to the capital stock and promoter of the project, was insolvent. The incorporation of the company was abandoned by all parties. Thus it is seen that the tripartite contract proved abortive from the failure of the enterprise upon which it was predicated. There was nothing left upon which it could operate. It may be said that the fifth clause of such agreement remained operative, which provided for the sale by Shirk upon McNeill’s failure to purchase or sell the premises and lease. As we have seen, no lease was executed; the right given to McNeill to purchase was of the reversion; with the lease provided therein to be executed by the hotel company. But if this view is not correct, and the fifth clause of such agreement remains, Shirk was to sell, and the proceeds were to be divided by first paying himself his purchase money, and the residue was to be divided as provided for in the fourth clause of said agreement.

Neither appellant nor appellee seems to have been in any way responsible for the failure to carry into effect the tripartite agreement. Both seem to have done all they could to prevent the happening of the contingency which rendered the tripartite agreement nugatory. It is not seen upon what principle, if it he found that Rigdon'had a valuable interest in the proceeds of this property before the execution of the tripartite agreement, he lost it by the execution of said agreement, or upon which Shirk acquired the interest of Rigdon, or it became extinguished by the entering into of an agreement for lease and sale of the property, which, by the failure of a third party to keep and perform his agreement, was not carried into effect.

By the contract between these parties, Shirk at all times reserved to himself a first lien for the money advanced in the purchase of the property, with interest at eight per cent thereon for the time he might hold the same, while Rigdon’s interest related solely to a share of the profits made upon the investment. How has that interest been divested? It is to be remembered that Shirk comes into a court of equity and asks its aid, and, upon the very plainest principles,'he should be required to do equity. It is not seen that Rigdon has done any act by which he has lost his interest, nor. why, in justice and good conscience, Shirk should not sell the property for the best price attainable, repay himself his money, with interest, and divide the overplus as he agreed to do, and upon the faith of which agreement he acquired the valuable right that Rig-don held in the options under which the purchase by Shirk was consummated. We think that while the claim of Rigdon is for money, or a share of the profits to be made upon a sale of the land, it appearing that the land was acquired by Shirk to be held by him in trust for the benefit of himself and Rigdon in. respect of these profits, it is such an interest, in equity, as should not be removed .from the legal title of Shirk. Equity demands that Shirk should carry out his contract; the failure to lease to the hotel company or to sell to McNeill by no means discharges the trust upon which he became invested with the legal title.

No question is involved in respect of the decree so far as it affects the defendant McNeill.

It follows that we are of opinion that the decree as to Big-don was erroneously entered, and must be reversed. The cause is -remanded to the court below, for further proceedings not inconsistent with the views here expressed.

Decree reversed.

Mr. Chief Justice Craig :

I do not concur with a majority of the court in the decision of this ease. I think the prior agreements were merged in the tripartite agreement, and as Bigdon has no right or title in and to the premises under that agreement, I think complainant had the right to have that agreement set aside as a cloud on his title.


source: Caselaw Access Project

author: Per Curiam :

license: Public Domain

text:
    The Pennsylvania Railroad Company v. William J. Connell.

      Filed at Ottawa January 25, 1889.

    1. Measure oe damages—ejecting passeriger from railway car. A passenger who has rightfully bought a through coupon ticket over several lines of railroad, which is refused on. one of the connecting roads, and is expelled on refusal to pay fare, will be entitled to recover of the company from whose car he was expelled, the cost of a. ticket from the place he was ejected to the place of destination. He is also entitled to recover such damages as he may have sustained on account of the delay occasioned by the expulsion, and all additional expenses necessarily incurred thereby, as well as reasonable damages for the indignity to which he was subjected in being expelled from the train; and if the conductor or brakeman, in a reckless and wanton manner, used more force than was reasonably necessary for the purpose of ejecting him, and in consequence of such excessive force the passenger was injured, it will be proper to give him such damages thqrefor as will fully compensate him for injuries resulting directly from the use of such excessive force.

      2. Evidence—opinion of witness—as to meaning of telegram. What was meant by the language of a telegram Is not a question to be determined by the opinions of witnesses, and a question calling for such opinion is properly suppressed.
    3. Same—relevancy and materiality, On the trial in an action to recover for personal injury to the plaintiff, a physician who had treated plaintiff was called to testify on the question of the extent of the injury. During his examination he was asked “if he was the same gentleman who treated the bomb-struck policemenHeld, that the answer to the question would not have added any force to the witness’ testimony, nor was it at all material.
    4. Instruction—to be based on evidence. On the trial of an action by a passenger against a railway company, to recover damages resulting from his expulsion from the cars, if there is no proof tending to show that the expulsion was willful or wanton, it will be error to give an instruction to the jury laying down the measure of recovery if they find that the conduct of the conductor or brakeman was wanton or willful, otherwise if there is evidence tending to show willfulness, though it may be slight.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Kibe Hawes, Judge, presiding.
    Mr. Geobge Willabd, for the appellant:
    "When a ticket agent wrongfully, but acting in good faith, sells a certain kind of ticket, which, under the rules of the company, can not be received by the conductor; may the passenger, having it reasonably within his power to pay a cash fare, but, acting in good faith, refuse the conductor’s bona-fide request for such payment, and recover damages on account of delay occasioned by his expulsion from the train, no unnecessary force being used ? The court below ruled that damages might be recovered. That ruling is contrary to the decisions in the following cases: Railroad Co. v. Finnigan, 21 Ill. 646; Williams v. Coal Co. 60 id. 149; Dobbins v. Duquid, 65 id. 464; Railroad Co. v. Griffin, 68 id. 499; Railroad Co. v. Eddy, 72 id. 138; Railroad Co. v. Hall, 9 A. & E. 349; Sutherland v. Wyer, 67 Me. 64; Miller v. Mariners’ Church, 7 Greenlf. 51; Hamilton v. McPherson, 28 N. Y. 72; Dillon v. Anderson, 43 id. 231; Townsend v. Railroad Co. 56 id. 295; Chamberlain v. Morgan, 68 Pa. St. 168; Rexter v. Starin, 73 N. Y. 601; Loker v. Damon, 17 Pick. 284; French v. Vining, 102 Mass. 132; Bradshaw v. Railroad Co. 135 id. 407; Mather v. Butler, 28 Iowa, 253; Simpson v. Keokuk, 34 id. 568; Alexander v. Railroad Co. 37 id. 264; Beymer v. McBride, id. 114; Little v. McGuire, 43 id. 447; Keys v. W. Vt. S. Co. 34 Vt. 81; Hitchcock v. Hunt, 28 Conn. 343; Waters v. Brown, 44 Mo. 302; Wing Chang v. Mayor, 47 Cal. 531; Gilbert v. Kennedy, 22 Mich. 117; Wards v. Elkins, 34 id. 217; Frederick v. Railroad Co. 37 id. 342; Railroad Co. v. Pierce, 47 id. 277; Gordon v. Brewster, 7 Wis. 355; Yorton v. Railroad Co. 54 id. 234; Railroad Co. v. Ragsdale, 46 Miss. 458.
    It was error to give an instruction which had no proper foundation in the evidence. Railroad Co. v. Patterson, 63 Ill. 304; Sewing Machine Co. v. Layman, 88 id. 39; Railroad Co. v. Harwood, 90 id. 425; Insurance Co. v. McKee, 94 id. 494; Stern v. People, 102 id. 540.
    Mr. Sidney Smith, Mr. J. W. Hynes, and Mr. John I. Eedick, for the appellee.
   Per Curiam :

This was an action brought by William J.

Connell, against the Pennsylvania Eailroad Company, to recover damages for an alleged assault and expulsion from one of defendant’s trains at Taconey, Pennsylvania, on the 16th day of December, 1880. On the first trial of the cause the plaintiff recovered a verdict and judgment for $15,000. The judgment, on the appeal of the defendant, was reversed in this court October 31, 1884, and the cause was remanded for another trial. (See Pennsylvania Railroad Co. v. Connell, 112 Ill. 295.) After the cause was remanded, another trial was had, resulting in a judgment in favor of the plaintiff for $7000, which, on appeal, was affirmed in the Appellate Court. To reverse the judgment of the Appellate Court, the railroad company took this appeal.

In the opinion heretofore filed will be found a substantial statement of the facts. No further statement is deemed necessary to a proper understanding of the case. We will therefore proceed to consider the questions of law relied upon to reverse the judgment.

In the plaintiff’s seventh instruction, the jury were, in substance, directed, that if they found the issues for the plaintiff, in fixing the amount of damages it would be proper to allow the plaintiff the cost of a ticket from Taconey to New York, and such damages as he sustained on account of the delay occasioned by being required to leave the train; and if the conductor or brakeman, in a reckless or wanton manner, used more force than was reasonable and necessary for the purpose of ejecting him, and in consequence of such excessive use of force plaintiff was injured, it would be proper to allow such damages as would fairly compensate him for injuries which resulted directly from such excessive force ;■ that if .the acts of .the conductor in refusing plaintiff’s ticket, demanding fare and ejecting him from the car, were willful, wrongful and malicious, and the plaintiff suffered indignity and injury thereby, damages may be allowed for such acts. This charge to the jury, it is claimed, was erroneous. .We do not concur in that view. We think the instruction was fully warranted by what was said in the opinion when the case was here before. In speaking upon this branch of the case, it was said: “We entertain no doubt that appellee was entitled to recover the amount of the cost of a ticket from the place at which he was ejected from the cars, to New York. He was also entitled to recover such damages as he sustained on account of the delay occasioned by the expulsion, arid all additional expenses necessarily occasioned thereby, as well as reasonable damages for the indignity in being expelled from the train; but we perceive no ground upon which he can recover for personal injuries received, unless the expulsion was malicious or wanton.” The charge to the jury was doubtless prepared in view of what the court had previously said, and in all its essential features it conforms to the opinion when the case was first before us.

It is also urged as an objection to the seventh instruction, that it submits to the jury, as a ground for the assessment of damages, whether the acts of the conductor were willful or wanton, when there was no evidence upon which that question could properly be submitted. If there was no evidence whatever tending to prove willful or wanton conduct on the part of those in charge of the train, an instruction submitting that question to the jury might be regarded as erroneous, as the instructions to a jury should be predicated upon the evidence. In the Appellate Court, where the evidence in all cases is reviewed and passed upon, in remarking upon the evidence, it is said: “It was an appropriate question for the jury, under all the evidence, whether the force used by the servants of appellant in ejecting appellee, was unjustifiably violent and excessive, and whether such injuries as he sustained during the expulsion were wantonly and maliciously inflicted. The evidence tended to show that appellee received injuries from which serious results followed, and while there is some conflict as to what was said and done by the conductor prior to and during the expulsion, we can not say that the conclusion reached by the jury is without support in the evidence.” We have examined the evidence as it now appears in the record, and while it may be slight, we are not prepared to hold that the Appellate Court has placed an ineoriect construction upon it.

It is also claimed that plaintiff’s third instruction allowed the jury to assess plaintiff’s damages without reference to the evidence. This is a misapprehension of the language of the, instruction. We have examined it closely, and find nothing in it which would, by any reasonable construction, authorize the jury to make any finding which was not founded upon the evidence.

Two questions are raised in reference to the ruling of the court, during the trial, on the evidence. One of defendant’s witnesses was asked how the Baltimore and Ohio company would “protect,” as provided in its telegram of December 2 to the Wabash. The court held that the answer to the question would simply be calling for the judgment of the witness as to the meaning of a statement made by a third party to appellant’s agent, and that it was incompetent. We think the ruling of the court correct. What was meant by the language of the telegram was not a question to be determined by the opinions of witnesses.

One other question propounded to a witness was objected to, and the objection sustained. While Dr. Lee was being examined, he was asked “if he was the same gentleman who treated the bomb-struck policemen.” We do not think the answer to. the question would have added any force to the evidence of the witness, nor was it at all material.

On the motion for a new trial, defendant asked leave to file certain affidavits, which was denied by the court. One of the affidavits purported to show what was said by counsel for plaintiff to the jury in his closing address. As no objection whatever was made to the remarks of counsel, we are unable to see what benefit defendant could derive by showing what was said. As to the other affidavits, the court made a statement in the bill of exceptions, which covered substantially all they contained. We do not think the court erred in refusing leave to file the affidavits or in denying a new trial.

The instructions given by the court on behalf of the defendant fully and clearly laid down the law as declared by this court when the case was first before us.

The evidence introduced on the trial can not be reviewed here, and' as the record discloses no substantial error of law, the judgment of the Appellate Court will be affirmed.

Judgment affirmed.


text:
    Harriet Elder et al. v. Charles S. Bales et al.

      Filed at Springfield January 24, 1889.

    1. Descents—in the case of illegitimates—the statute construed. The statute declaring that “an illegitimate child shall be heir of his mother and maternal ancestor, and of any person from whom its mother might have inherited, if living,” places the illegitimate, in respect of the estate of a person from whom the mother might have inherited, if living, upon the same footing as if he were legitimate; and in case of his death before the descent is cast upon him, his children or heirs-at-law will take the estate to the same extent he would have taken, if living.
    2. An illegitimate son was born of a woman, after which she married and had born seven other children in lawful wedlock. The illegitimate son died before his mother, and after the death of his mother’s husband. The mother then died, and after her decease her legitimate son died seized of real estate, leaving no issue, but one sister and the descendants of four other sisters: Held, that the children of the illegitimate son took one-sixth part of the estate of the deceased legitimate son, as his heirs-at-law.
    3. The effect of the act of 1872, relating to descents in the case of illegitimates, is to remove the common law disability of a bastard child to inherit through its mother, or one from whom she might inherit, if living. In this respect the illegitimate is placed upon the same footing as legitimate persons, and his heirs will take, by descent, the same estate he would have inherited, if living.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge; presiding.
    Messrs. Connolly & Mather, for the appellants.
    Messrs. Patton & Hamilton, for the appellees.
   Per Curiam :

This case was before us as Bales et al. v. Elder et al. 118 Ill. 436, and a construction was then given the second section of the Statute of Descents, which established the right of appellees here to participate as heirs of Hiram Walker, deceased, in the distribution of his estate. The only question presented on this appeal, and which counsel contend was not determined and settled by the former opinion, is, what share or portion do appellees, descendants and heirs-at-law of Hampton D. Bales, the illegitimate son of the mother of said Hiram Walker, deceased, take in his estate.

The father and mother of Hiram Walker died prior to his decease, and he having died intestate, leaving no widow or issue, or descendants of issue, it is settled by the former decision that appellees take as heirs of Hiram Walker, deceased. It would seem from the language employed that there could be no controversy as to the holding upon that subject. We then said: “The language of the act, ‘an illegitimate child shall be heir of his mother and maternal ancestor, and of any person from whom its mother might have inherited if living,’ fixes the status of the illegitimate. It makes him an heir, and, as such, he is vested with all the rights, powers and privileges of a legitimate person, who may be an heir standing in the same degree of relationship.” The construction thus placed on the statute gave it the effect of removing the common law disability of inheritance through the mother, and in respect of the right of inheritance in the instances within the statute, from all persons from whom the mother might inherit, if living, the illegitimate was placed upon the same footing as legitimate persons. We then said, if Hampton D. Bales had been living at the death of said Walker he would have been one of the heirs, “but as he was dead, the statute goes further, and provides that the. lawful issue of an illegitimate person shall take, by descent, any estate which the parent would take if living,”—and held that appellees here would inherit that portion which their father, Hampton D. Bales, would have taken if living at the death of said Walker. Hampton D. Bales, if then living, would not have taken as heir of the mother of himself and said Walker, but as heir of the latter, and would be entitled to the share or portion cast upon those standing in the same degree of relationship. There is no question that said Bales was the natural brother, of the half-blood, of the said Hiram Walker. By the common law, the illegitimate, not having inheritable blood, could not take, but the statute, as construed in this case supra and in the subsequent case of Jenkins v. Drane et al. 121 Ill. 217, confers upon illegitimates and their lawful issue, inheritable blood, as respects the mother and any maternal ancestor, or other person from whom the mother might inherit if living, thus placing the illegitimate, in respect of the estates of such persons, upon the same footing as if they were legitimate. If Hampton D. Bales had been the legitimate son of Sarah Walker by a former or other husband, „he would have been a brother of the said Hiram of the half-blood. The distinction between the whole and half-blood being abolished, he would take of his half-brother’s estate an equal share with the sisters of the whole blood. The effect of the statute under consideration is to produce exactly that result in respect of his right of inheritance. In all respects the Said Bales, if living at Walker’s death, would, through the inheritable blood transmitted from the mother, become the heir of said Walker, in all respects, as if he were a brother of the whole blood.

If the construction we have given this statute is to obtain, and we perceive no reason for departing therefrom, it necessarily results that Hampton D. Bales, if living at Walker’s death, would have taken one-sixth of the latter’s estate, and he having died previous to said Walker, the right was, by virtue of the statute, transmitted to appellees, his lawful issue.

The decree of the circuit court made partition of the lands of which said Walker died seized, in accordance with the views here expressed, and will accordingly be affirmed.

Decree affirmed.


author: Mr. Justice Scholfield

text:
    Frank M. Eddy v. The People ex rel. Joseph F. Nolen, Collector.

      Filed at Mt. Vernon January 26, 1889.

    1. Municipal subscbiption and bonds—original conditions not to be changed. A subscription by a city to the capital stock of a railway company prior to the time the constitution of 1870 took effect, is subject to the conditions upon which the same was voted by the people of such city.
    2. In 1869 the legal voters of a city voted in favor of a subscription of $25,000 to the capital stock of a railway company, on condition that the same should be paid in city bonds at par, to be delivered to the company when the railroad should be completed to another road and a train of cars had run thereon, and also upon the condition that said railroad should be completed within the county on or before October 1, 1870, otherwise the subscription to be void. On September 21,1870, the city council made an order changing the time for the completion of the railroad within the county, and extending it to January 1, 1871,—and this was done without any vote of the people. The road was not completed by October 1,1870, and the bonds were issued in February, 1872: Held, that the bonds were issued in violation of the condition upon which they were voted, and were therefore void, no matter in whose hands they may have come, and that a tax levied to pay interest thereon could not be collected by law.
    3. After the present constitution took effect, a city or municipal corporation had no power to make any new contract in respect to a corporate subscription in aid of a railway company, orto waive any condition upon which such subscription was voted before that constitution was adopted, or extend the time for the performance of a material condition.
    A Same—burden of proof as to ils validity. Where bonds of a city are issued since the present constitution took effect, in payment of a subscription in aid of a railway company, under a vote of the people had before that time, the burden rests upon those affirming the validity of the bonds to show that they were lawfully issued, pursuant to a vote of the people.
    Appeal from the County Court of Gallatin county; the Hon. E. D. Youngblood, Judge, presiding.

      Mr. Carl Roedel, for the appellant:
    Obligations of municipal corporations for subscriptions to railway companies, made prior to July 2, 1870, can not be enlarged or materially changed, either by the people or the corporate authorities. Middleport v. Insurance Co. 82 Ill. 562.
    The conditions upon which the bonds were voted not having been complied with, the bonds are void, even in the hands of innocent purchasers. Schœffer v. Bonham, 95 Ill. 368; Richeson v. People, 115 id. 450.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This appeal is from a judgment of the county court of Gallatin county, against a city lot, for delinquent taxes, for the payment of the interest claimed to be due upon bonds issued by the city of Shawneetown in aid of a subscription to the capital stock of the St. Louis and Southeastern Railway Company.

The question whether the city of Shawneetown should subscribe for $25,000 of the capital stock of the St. Louis and Southeastern Railway Company upon these conditions, namely : “First, subscription to be for $25,000 of the stock of said company, payable in bonds at par, and bearing eight per cent interest, payable semi-annually; second, said bonds to be delivered to said company when said railway should he completed to the Illinois Central railroad, and a train of ears have run thereon; third, said railroad to he completed in Gallatin county on or before the 1st of October, 1870, or the subscription to be void,”—was submitted to the decision of the legal voters of the city of Shawneetown at an election held for that purpose on the 26th of July, 1869, and was decided in the affirmative by a majority of the votes cast at that election. The subscription was thereafter made, subject to the conditions. On the 21st of September, 1870, the city council of the city of Shawneetown adopted an order changing the time for the completion of the railway in Gallatin county, and extending it until the 1st of January, 1871.

The bonds were issued in February, 1872, and thus, having been issued since the present constitution took effect, (which was July 2, 1870,) the burden is upon those affirming their validity, to show that they were lawfully issued, pursuant to a vote of the people had before that time. Town of Prairie v. Lloyd, 97 Ill. 179.

When the election authorizing the issue of these bonds was held, it was competent for the city to prescribe the conditions upon which its subscription should be made, and bonds issued in aid of such subscription are not valid and binding until the condition shall be complied with. (See sec. 18, chap. 113, 2 Starr & Curtis, p. 1886.) And this invalidity will aeeompany them into whosesoever hands they shall pass. (Town of Eagle v. Kohn et al. 84 Ill. 292.) The time when the railroad should be completed in Gallatin county was a material part of the contract of subscription. The people of the city of Shawneetown never gave their consent, at an election held for that purpose, to extend the time for the completion of the railroad in Gallatin county beyond the 1st of October, 1870; and after the 2d of July, 1870, power was denied the city to make any new contract (and this includes changes and modifications of existing contracts) in regard to subscriptions to railroad companies. Richeson v. People ex rel. 115 Ill. 450; Schaeffer et al. v. Bonham et al. 95 id. 368.

Since, therefore, it does not here appear that the railroad was completed in Gallatin county before the 1st of October, 1870, but the clear inference is that it was completed. after that time, there was no authority of law to issue the bonds, and having been issued without authority of law, the taxpayers owe no duty to pay them, or any interest thereupon.

The judgment of the county court is reversed.

Judgment reversed.


author: Mr. Justice Shops

text:
    Hiram Combs et al. v. Mary V. Goff.

      Filed at Ottawa January 25, 1889.

    1. Tax titee—based upon a judgment including costs not yet earned. If a judgment against land for taxes, etc., has included therein, as costs, any fees not then due and earned, but to accrue subsequently to the entry of the judgment, this will be a fatal error, and no title will pass by the tax deed made on such judgment.
    2. The costs referred to in the statutory form of the judgment order, are only those which have accrued and become fixed charges on the land taxed, prior to the entry of judgment. The only elements which can enter into the judgment, properly, are the taxes, interest, penalties and costs then due and unpaid. After-accruing fees, by virtue of the statute, become charges on the particular lot or tract of land. Those accruing prior to the sale, may be collected, along with the judgment, by sale of the land, while those accruing after the sale, viz., for cancellation of the certificate of sale, and for issuing certificate of redemption, accrue only when those services are performed.
    3. . Same—of the affidavit—its requisites—in showing proper service of notice. A' tax purchaser’s affidavit of the service of notice of his purchase, etc., stated that he served, or caused to be served, a notice of his purchase at such tax sale, etc., as in other affidavits thereto attached is more fully set forth, on every person in the actual possession or occupancy of such lands or lots. The affidavit therein referred to is, that affiant visited the lots on April 25,1884, for the purpose of serving notice “on the occupant, but there was no person in the actual possession or occupancy of said lands or lots on said day, except as hereinafter stated. Deponent is acquainted with said lands or lots, and said'lands or lots were fenced, and in possession of some person or persons unknown to this affiant; and no person was in actual possession or occupancy of said lands or lots, or any part thereof, except as hereinbefore stated, for more than three months,” etc.: Held, that as the affidavit failed to show the land was vacant and unoccupied, it was fatally defective in failing to show a service of notice on the occupants or persons in actual possession.
    4. The purchaser at tax sale, before he is entitled to a deed, and in order to invest the county clerk with authority to execute the same, must, by his affidavit or affidavits, show a strict compliance with section 216 of the Revenue act:

      Appeal from the Superior Court of Cook county; the Hon. Gwynn Garnett, Judge, presiding.
    Messrs. Wilson & Monroe, for the appellants.
    Mr. H. S. McCartney, for the appellee.
   Mr. Justice Shops

delivered the opinion of the Court:

This was a bill filed in the Superior Court of Cook county, by appellee, as owner in fee of two certain lots, to set aside as void, and clouds upon her title, two certain tax deeds, under which -appellants claim title, and offering to pay the amount due thereunder, etc. .Decree was rendered setting aside all of said deeds as clouds upon her title, upon payment of a specific sum found to be due for purchase money, interest, costs and taxes, and the record is brought to this court by the holders of the tax titles, defendants.

The first of the tax deeds, in order of time, issued to Hiram Combs, February 28, 1882, and was based on a tax sale of October 15, 1879, under a judgment for the taxes of 1878, and prior years, for the sum of $62.08, being $31.04 for each lot. The validity of this deed was challenged upon a number of grounds, but it will only be necessary for us to consider one of them, namely,' that the judgment rendered against these lots, and each of them, was for too great a sum.

It seems to be assumed by counsel for both parties that the aggregate of the taxes, printer’s fees and penalties entering into the judgment, was $30.41,—the remaining sixty-three cents of the judgment against each lot being made up of the county clerk’s and collector’s fees. Counsel for appellants contend, that the fees of the two officers named, included in the judgment, were not more than the law allowed, and therefore, although erroneously charged fqr one service when another service was rendered, as the aggregate was not more than could have legally been charged, the judgment was not void,—and cite in sujiport of that position, Chambers v. People, 113 Ill. 509.

Counsel set out in a detailed statement the items which might lawfully he charged, showing that fees of the collector and county clerk, to the amount of seventy cents, as they contend, might he properly included in the judgment against each lot, and which statement is as follows:

Collector’s fees (according to sec. 21, Fees and Salaries,
Eev. Stat. 1874) making delinquent list for judgment. $ .03
Making delinquent list for printer........03
Selling each lot............. .03
County clerk’s fees (sec. 56 same act) making delinquent
list for judgment........- - - - .03
Entering judgment........... .01
Delinquent list on precept...........02
Attending tax sale, etc........... .15
Cancelling tax .certificate...........15
Certificate of redemption - - -...... .25

If appellant’s counsel are correct, and the items included in the above statement could be properly included in the judgment, the case would fall within the rule announced in the Chambers ease. It is, however, contended by appellee, it was not competent for the court to include in its judgment the fees allowed the county -clerk, for cancelling tax certificate, fifteen cents, and for issuing a certificate of ’redemption, twenty-five cents; and that if these items were excluded, the judgment against each lot is found to be excessive to the amount of thirty-three cents. It is apparent that the fees for cancelling tax certificates and issuing certificates of redemption were included in the judgment rendered against each of these lots. The statute prescribing the fees of county clerks in counties of the third class, when this sale was made, (sec. 4, act of March 2, 1874, see. 56, Fees and Salaries,) provides that in all matters of taxes and assessments there “shall be charged as costs against the delinquent property, and be collected, with the taxes thereon: For making list of delinquent lands and lots for judgment, for each tract or lot, three cents; for entering judgment, for each tract or lot, one cent; for making list of delinquent lands or lots on precept for sale, for each tract or lot, two cents; for services in attending the tax sales, and issuing certificate of sale and sealing the same, for each tract or lot sold, fifteen cents; for cancelling certificate of sale, for each tract or lot, fifteen cents; for each certificate of redemption, twenty-five cents.”

It is manifest that the foregoing section, so far as it affects tax sales, must be considered as in pari materia with section 191 of the Revenue act, as amended by the act of May 3, 1873. (Hurd’s Stat. 902). In this latter section there is contained the provisions respecting the judgment to be rendered for taxes and special assessments, on the collector’s application for judgment against delinquent lands. After disposing of the objections, if any, the direction is, that “the court shall .give judgment for such taxes and special assessments and penalties as shall appear to be due, and such judgment shall be considered as a several judgment against each tract or lot, or part of a tract or lot, for each kind of tax or special assessment included therein; and the court shall direct the clerk to make out and enter an order for the sale of such real property against which judgment is given.” And the form of the judgment to be thus entered, as given in the statute, is: “Therefore it is considered by the court, that judgment be and is hereby entered against .the aforesaid tract or tracts, or lots of land, * * * in favor of the People of the State of Illinois, for the sum annexed to each, being the amount of taxes, (and special assessments, if any), interest, penalties and costs due severally thereon.”

Considering these two sections together, by no fair construction is the court authorized to render judgment against the lands for anyother or greater sum than the'aggregate of the taxes, special assessment, interest, penalties and costs due thereon; and it is just as necessary that the costs for which judgment is to be thus rendered shall have accrued and'become payable, as that the taxes themselves shall 'have become due, or the interest and penalties shall have accrued. It is-manifest, therefore, that the costs referred to in the form of the judgment order, are, from necessity, only those costs which have accrued, and become fixed charges on the land taxed, prior to the entry of judgment. True, other costs may thereafter accrue, which may also'become charges upon the land, as incident to the entry and enforcement of the judgment, and the payment of which may be enforced by sale of the land; but to hold that the fees of officers for services that can not be rendered until after the judgment has been entered, and which may not be required of the officers, can be anticipated and incorporated in the sum of the judgment, would be to impute to the legislature an intention they have not expressed, and which does not arise, by necessary implication, from the language employed. The right of a public officer to the’fees prescribed by the law, depends upon the performance of the duty or rendering of the service specified, so that if the clerk should not be called up.on to cancel a certificate of purchase or to issue a certificate of redemption, and the services for which the particular fees are given by the statute therefor, in fact, be not performed, such fees do not accrue to the clerk, and can not be made a charge upon the particular tract or lot of land. It is a misconception of the legislative intent to assume, as is done by counsel for appellants, that the fees mentioned in the section referred to, and which, it is there said, “shall be charged as costs against the delinquent property, and shall be collected with the taxes thereon,” may be included in the sum of the judgment entered against the delinquent lands. The only elements which can enter into the judgment, properly, are the taxes, interest, penalties and costs then due and accrued. After-accruing fees, by virtue of the statute, become charges upon the particular tract or lot of land,—those accruing prior to the sale may be collected, along with the judgment, by sale of the land, while those accruing ■after the sale, viz., for cancellation of the certificate of sale and for issuing certificate of redemption, accrue only when those services are performed, and are made a proper charge incident to the cancellation or redemption.

The judgment, for the reasons stated, being invalid, the tax deed resting thereon was necessarily void, and Was properly set aside as a cloud on appellee’s title.

The second tax deed here involved, issued to John Carne, Jr., December 23, 1884, and was.based on a tax sale of September 23, 1882. Although the lots were assessed in the name of H. M. Jewell, they appear to have been owned by Hattie F. Sewell and Harriet M. Sewell, who conveyed the same to appellee by warranty deeds,—the first by a deed dated March 3, 1884, recorded March 5, 1884, and the second by a like deed, of the same date, recorded April 19, 1884. 'The application td the county clerk for said tax deed was based on the affidavit of Carne, the purchaser, and of his •agent, Cross. In these affidavits it was incumbent upon the purchaser, before he would be entitled to a deed, and to invest the county clerk with authority to execute the same, to show strict compliance with the conditions set forth in the 216th section of the Revenue act.

By his own affidavit Carne showed, or attempted to show, the publication of a notice in conformity with the act. It will not be necessary for us to determine the sufficiency of such notice, or consider the objections made thereto. Under the statute, “every person in the actual possession or occupancy” of lands or lots sold for taxes, must be served with notice of the sale and when redemption will expire, as provided in the section of the act before referred to, by the purchaser or his assignee, before he will be entitled to a deed. Although Carne, in his affidavit filed with the county clerk, says that he served, or caused to be served, a notice of his purchase at said tax sale, etc., as in other affidavits thereto attached is more fully set forth, on every person in the actual possession or occupancy of such land or lots, the affidavits therein referred to wholly fail to show such service of notice. The affidavit relied upon to show such service, is that of Cross, who swears that he visited the lots on April 25, 1884, for the purpose of serving notice “on the occupant, but there wras no person in the actual possession or occupancy of said land or lots on said day, except as hereinafter stated. Deponent is acquainted with said lands or lots, and said lands of lots were fenced, and in possession of some person or persons unknown to this affiant; and no person was in actual possession or occupancy of said lands or lots, or any part thereof, except as hereinbefore stated, for more than three months before the expiration of the time of redemption.” '

The statement that there was no person in the actual possession or occupancy of the lot is qualified by the statement, “except as hereinafter stated.” The statement following, that “said lands or lots were fenced, and in possession of some-person or persons unknown to” the affiant, is positive and unqualified. It is said in Taylor v. Wright, 121 Ill. 455, that the words, “possession and occupancy,” as used in the 216th section of the Revenue act, are convertible terms. This affidavit does not affirmatively show that the lots were vacant and unoccupied. Every word may be true, as therein stated, and yet, the premises may have been in the actual occupancy of the owner or some other person. Instead of showing the lots Were vacant and unoccupied, the affidavit shows the reverse. They were unoccupied “except as stated,”—that is, they were in possession of some one unknown to affiant. There was no service shown upon the occupant, and no sufficient affidavit showing that the lands were unoccupied, and it follows that the tax deed under consideration was for this reason improperly issued, and void.

The decree of the Superior Court must be affirmed.

Decree affirmed.


author: Mr. Justice Baker

text:
    The Village of Jefferson v. Georgia Chapman.

      Filed at Ottawa January 25, 1889.

    1. Respondeat superior — application of the rule—and exceptions thereto. The general rule is, that the principle of .respondeat superior does not extend to cases of independent contracts, where the party for whom the work is to be done is not the immediate superior of those guilty of the wrongful act, and has no choice in the selection of the workmen, and no control over the manner of doing the work under the contract.
    2. One of the exceptions to this rule is, where the contract directly requires the performance of a work which, however skillfully done, will be intrinsically dangerous. The principle upon which this exception depends for support is, that one who authorizes a work which is necessarily dangerous, and the natural consequence of which is an injury to the person or property of another, is justly to be regarded as the author of the resulting injury.
    3. Another exception to the general rule relieving an employer from liability for an injury occasioned by an independent contractor is, where the party causing the work to be done is under a primary obligation, imposed by law, to keep the subject matter of the work in a safe condition. The principle upon which this exception is predicated is, that when a duty is so imposed, the responsibility for its faithful performance can not be avoided, and that the party under such obligation can not be relieved therefrom by a contract made with another for the performance of such duty.
    4. Same—injury from defective streets or sidewalks—negligence of contractor—priraoary liability of the municipality. -A city or village organized under the general Incorporation law,'relating to cities and villages, is under the legal duty of keeping its streets and sidewalks in a reasonably safe condition for travel.
    5. The duty of maintaining the streets and crossings in a safe condition for travel, as respects the public, rests primarily upon the corporation, and its obligation to discharge this duty'can not be evaded, suspended, or cast upon others, by any act of its own.
    6. Where a dangerous excavation is made and negligently left open, without proper lights, guards or covering, in a traveled street or sidewalk, by a contractor, under the corporation, for building a sewer or other improvement, the corporation will be liable to a person injured thereby, although it may have had no immediate control over the workmen, and had even stipulated in the contract that proper precautions should tie taken by the contractor for the protection of the public, and making him liable for accidents occasioned by his neglect.
    7. A village employed a person to plow up and grade a street, and to plow through and widen and deepen the ditches along the sides of the street; and in doing the work, the cross-walks or aprons that spanned the ditches were removed by the contractor, and replaced by him after the ditches were enlarged, but without fastening the boards. One of the boards replaced was decayed, so that a person crossing the apron fell through the same, and sustained a serious personal injury: Held, that the village was liable for the injury, whether it had notice of the defect in the crossing or not.
    8. A city or village can not divest itself of its duty to control and supervise the improvements and repairs of the streets and sidewalks it directs to be made, by simply making a contract therefor, and thereby exonerate itself from liability for an injury occasioned by the negligent manner in which the work is done by the contractor.
    9. Where work is done on the streets of a city or village, the reasonable presumption of fact is, that it was done by authority of such city or village.
    10. In this case', certain village authorities employed a person to grade a street and widen and deepen the ditches thereon. In the performance of the work, the old apron or cross-walk over the ditch was taken up, and after the ditch was enlarged, the old boards which formed a part of the cross-walk were replaced without being nailed or fastened, the middle plank being broken and decayed at one end. A day or two after, a person, in attempting to pass over the crossing after dark, stepped upon the middle board, when it tipped up edgewise, and his foot and leg went down into the ditch, giving him a fall, and inflicting a severe injury. In an action against the village, to recover for the injury, the defendant offered to prove that the work was done by the contractor without any supervision of the village authorities, and that the apron or cross-walk was placed in its position by the contractor without any supervision or without any influence, or without consent of the village authorities, which the court refused to admit: Held, that there was no error in refusing the proposed evidence, as it was immaterial.
    11. Notice—to city—as to condition of street crossing. If a municipal corporation causes work to be done on its streets, which is, in its nature, dangerous to the public, it is bound to take notice of the character of the work and of the condition in which it is left,—-whether safe or dangerous.
    12. Negligence—ordinary care—question of fact. In an action for a personal injury resulting from a defective sidewalk, the plaintiff is not required to show any more than ordinary care on his part. "What is ordinary care is a question of fact for the jury, as what is ordinary care in one case may not "be under other and different circumstances.
    13. Evidence—res gestae. In an action against a village for a personal injury charged to have resulted from a defective sidewalk or street crossing, evidence that there were no street lamps at the crossing is properly admissible as a part of the res gestee, and as having a material bearing upon the question of due care of the defendant.
    14. Exceptions—when necessary. Where the record fails to show that any exceptions were taken by a party to the giving of instructions asked by his adversary, no error can be assigned for the giving of the same.
    15. Instruction—should he confined to the proper pleading. In an action against a village to recover for a personal injury from a defective crossing over a ditch, the first count charged negligence in failing to repair the crossing, while the other counts charged active misfeasance by negligent restoration of the crossing, and negligent construction of the same. Instructions were asked by the defense, to the effect that the village was not liable for the defect in the crossing unless it had actual or constructive notice of the defect: Held, that the instructions, not being confined to the first count, were properly refused.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. E. S. Williamson, Judge, presiding.
    Mr. James W. Brown, and Mr. Merritt Starr, for the appellant :
    The court erred in refusing to instruct the jury that the village could not be liable without actual knowledge, or notice, actual or constructive, and in' giving an instruction excluding the essential features of constructive notice. Chicago v. McCarthy, 75 Ill. 602.
    The doctrine of independent contractors, and of the non-liability of their contractees, applies to municipalities. Story on Agency, sec. 454; Dillon on Mun. Corp. secs. 1027-1030 ; Hale v. Johnson, 80 Ill. 185; Robbins v. Chicago, 4 Wall. 657; 2 Black, 418; Water Co. v. Ware, 16 Wall. 566; Scammon v. Chicago, 25 Ill. 424.

      The rule is the same in New York. Blake v. Ferris, 5 N. Y. 48; Pack v. Mayor, 8 id. 222; Kelly v. Mayor, 11 id. 432; Storrs v. Utica, 17 id. 104; McCafferty v. Railway Co. 61 id. 178; Sweet v. Gloversville, 12 Hun, 302; Dressell v. Kingston, 32 id. 533; Gourdier v. Cormack, 2 E. D. Smith, 254.
    The court refused to instruct the jury that the village was not bound to light its streets, and that if the accident was due to the absence of lights, then the village was not liable. Free-port v. Isbell, 83 Ill. 440.
    Messrs. Monk & Elliott, for the appellee:
    A municipal corporation is liable, without notice, for a defect caused by its own negligent act. Alexander v. Sterling, 71 Ill. 369; Chicago v. Brophy, 79 id. 280; Chicago v. Johnson, 53 N. Y. 91; Springfield v. Le Claire, 49 Ill. 476; Burso v. Buffalo, 90 N. Y. 679; Russell v. Inhabitants of Columbia, 74 Mo. 480; Mayor v. O’Donnell, 53 Md. 110; Circleville v. Neubing, 41 Ohio St. 465.
    The burden was upon the defendant to prove absence of authority of the contractors to remove the walk. Barnes v. Town of Newton, 46 Iowa, 567; Chicago v. Johnson, 53 Ill. 91; Chicago v. Brophy, 79 id. 277.
    No evidence was offered by defendant, or excluded by the court, tending to disprove authority of contractors to remove the w'alk. Stull v. Wilcox, 2 Ohio St. 569; Hollister v. Rasnor, 9 id. 1; Grandalpho v. State, 11 id. 114; Kelly v. Highfeld, 15 Ore. 277; State v. Staly, 14 Minn. 105; Railroad Co. v. Goddar, 25 Ind. 185; Mitchell v. Chambers, 55 id. 289; Baker v. Little, 84 id. 212; Grader v. Williams, 55 id. 461; Whitehead v. McEvoy, 85 id. 85; Warner V. Water Co. 143 Mass. 155; Seiter v. Weldon, 17 Neb. 582; Shillito v. Sampson, 61 Iowa, 40; Klaumer v. Malvern, 6 id. 72.
    The offer to prove absence of control over the work by the village admitted facts already in evidence, which rendered the proposed testimony immaterial. Comstock v. Gage, 91 Ill. 328;
      Follansby v. Johnson, 28 Minn. 311; Douglas v. Patterson, 4 N. Y. 347; Hobard v. Plymouth Co. 100 Mass. 159; Crafts v. Johnson, 109 id. 519; Payner v. Leitenmeyer, 45 N. Y. 47.
    A village is responsible for the negligent acts of its contractors employed in removing, excavating and grading its streets, whether the work be regarded as intrinsically dangerous or not. Brown v. Mayor, 9 Heisk. 1; Mayor v. O’Donnell, 53 Md. 110; Sinclair v. Mayor, 59 id. 592; Jacksonville v. Drew, 19 Fla. 106; Kinks v. Milwaukee, 46 Wis. 465; Russell v. Inhabitants of Columbia, 74 Mo. 480; Mayor v. Connolly, 91 Ga. 258; Scammon v. Chicago, 25 Ill. 424; City of Springfield v. Le Claire, 49 id. 476; Chicago v. Johnson, 53 id. 91; Chicago v. Brophy, 79 id. 277.
    The duty of superintending the work devolved upon the village engineer and street commissioner, under the general ordinances of the village. Chicago v. Dermody, 61 Ill. 431.
   Mr. Justice Baker

delivered the opinion of the Court:

Georgia Chapman, the appellee, sued the appellant, the village of Jefferson, in the Superior Court of Cook county, in an action on the case, for personal injuries sustained in consequence of a fall upon a cross-walk or apron across a ditch at ■the intersection of St. Charles avenue and Center street in said village, and recovered a judgment for $6000 damages. On appeal to the Appellate Court for the First District, the judgment was affirmed, and the village now, by further appeal, brings the record to this court.

The facts of the case, briefly stated, are, that late in the fall of 1885, the village employed one Goven to grade a portion of St. Charles avenue, and dig out and deepen the ditches thereon, said improvement including the street intersection where appellee was injured. In the performance of this work the old apron or cross-walk over the ditch in question was taken up and the ditch deepened and widened, and, a few days before the accident, the old boards which had formed a part of the cross-walk there, replaced, without being nailed or fastened, and the middle plank of the walk being broken and decayed at its east end. Shortly after dark on the evening of December 2, 1885, appellee was passing over said apron or crossing, and when she stepped on the edge of said middle plank, it tipped up edgewise, and her right foot and leg went down into the ditch, and she was thrown down violently, backwards, and received severe and permanent injuries, involving the spinal and uterine regions of her body.

It is urged that the trial court erred in rejecting certain testimony offered by appellant. The offers of testimony in question were as follows:

“We want to show that this work was done by contractors without any supervision of the village authorities; that this apron was placed in its position, and in the condition in which it was at the time of this accident, by the contractors, without any supervision, or without any influence, or without consent of the village authorities.”
“Now, we offer to prove by this witness, as one of the trustees of the town of Jefferson, and Henry Wolffe, as another trustee, that they w'ere authorized by the board of trustees of the village of Jefferson to make a contract for the grading of St. Charles avenue and Center street at the point where the accident is alleged to have occurred; that in accordance with this authority they made a contract with one Coven for the grading of such streets; that said Coven, acting under said contract, proceeded with the work of grading said streets, and that he, in the prosecution of that work, removed the apron over the ditch where the accident was alleged to have occurred; that the village retained, by the contract, no control or supervision over the work; that said contractor proceeded with said work until the close of the 2d day of December, 1884, and on the evening of said day, prior to the accident, replaced the apron in the condition in which it remained at the time of said accident.”

We concur in the views expressed in the opinion of the Appellate Court filed in the case, that in each of these offers of testimony there was one essential element wanting, in that there was no intimation of a purpose or desire to prove that the work contracted for was not of itself dangerous, or would not necessarily render the street defective or unsafe or dangerous for travel, or that the removal of the apron, which formed a part of the cross-walk over the ditch, was not a necessary incident to the doing of the work contracted for. The general rule is, that the principle of respondeat superior does not extend to cases of independent contracts, where the party for whom the work is to be done is not the immediate superior of those guilty of the wrongful act, and has no choice in the selection of workmen, and no control over the manner of doing the work under the contract. 2 Dillon on Mun. Corp. (3d ed.) sec. 1028.

But there are'exceptions to this general rule. One of these exceptions is, where the contract directly requires the performance of a work, which, however skillfully done, will be intrinsically dangerous. The principle upon which this exception depends for support is, that one who authorizes a work which is necessarily dangerous, and the natural consequence of which is an injury to the person or property of another, is justly to be regarded as the author of the resulting injury. 2 Dillon on Mun. Corp. (3d ed.) sec. 1029; City of Joliet v. Harwood, 86, Ill. 110. Another exception to the general rule, relieving an employer from liability for an injury occasioned by an independent contractor, is, where the party causing the work to be done is under a primary obligation, imposed by law, to keep the subject matter of the work in a safe condition. The principle upon which this exception is predicated is, that where a duty is so imposed, the responsibility for its faithful performance can not be avoided, and that the party under such obligation can not be relieved therefrom by a contract made with another for the performance of such duty.

In City of Springfield v. Le Claire, 49 Ill. 476, this court said: “That the city may not be liable, within the meaning of the rule respondeat superior, for the acts of its contractors or their workmen, while engaged in effecting a lawful object, is not the question here. The question is, was there a duty resting upon the city, growing out of the franchise conferred upon it, to keep its public streets in a safe condition for the passage of travelers and others having occasion to use them. That there was, is established by the charter bestowing the franchises. * * * It is a necessary corollary, from these premises, that a party receiving damage from neglect of this duty is entitled to his action. As the city is the principal in the duty imposed, it must occupy the same position when damages are claimed for a neglect of that duty. Neither the one nor the other'can be shuffled off the city by their act. * * * The construction of the sewer by contract did not release the city from the obligation, while in process of construction, to have it so carried on as not to endanger the lives or limbs of travelers upon the street.”

Dillon, in section 1027 of his work on Municipal- Corporations, speaking of this duty of maintaining the streets in a safe condition for public travel, says: “It rests primarily, as respects the public, upon the corporation, and the obligation to discharge this duty can not be evaded, suspended, or cast upon others, by any act of its own. Therefore, according to the better view, where a dangerous excavation is made and negligently left open, (without proper lights, guards or covering;) in a traveled street or sidewalk, by a contractor, under the corporation, for building a sewer or other improvement, the corporation is liable to a person injured thereby, although it may. have had no immediate control over the workmen, and had even stipulated in the contract that proper precautions should be taken by the contractor for the protection of the public, and making him liable for accidents occasioned by his neglect.” See, also, Storrs v. City of Utica, 17 N. Y. 104; City of Detroit v. Corey, 9 Mich. 165; Mayor v. Brown, 9 Heisk. 1; Jacksonville v. Drew, 19 Fla. 106; Mayor v. O’Donnell, 53 Md. 110; and the late ease of City of Birmingham v. McCrary, decided by the Supreme Court of Alabama, and published in the Albany Law Journal, volume 38, No. 11, page 208, in which the authorities are collated and commented upon.

In the case at bar, the village of Jefferson is organized under the general law for the incorporation of cities and villages, (Rev. Stat. chap. 24,) and it is manifest the legal duty is imposed upon it of keeping its streets and sidewalks in a reasonably safe condition for travel. The work done by Goven was to plow.up and grade the streets, and plow through and widen and deepen the ditches, and in doing such work, the crosswalks or aprons that spanned the ditches were removed. When work is done on the streets of a city or village, the reasonable presumption of fact is; that it was done by authority of such city or village. (Chicago v. Johnson, 53 Ill. 91; Chicago v. Brophy, 79 id. 277.) Here, the village made no offer to prove that the contract with Goven did not authorize or contemplate the removal of such cross-walks or aprons, or that such removal was not necessary and proper in the performance of the contract. In fact, the offer of evidence made, admitted that Goven, “acting under the contract, and in the prosecution of the work contracted for, removed the apron over the ditch where the accident occurred.” The offers were merely to show that the village retained, by the contract, no control or supervision over the work, and that the apron was placed in the position and in the condition in which it was at the time of the accident, without any supervision by or consent of the village authorities. The village could not divest itself of its duty to control and supervise the improvements and repairs it directed to be made, by simply making a contract therefor. If the contractor had authority to remove the apron, then the village could reasonably have foreseen the defect created by the contractor. It was bound to know such removal would leave an open ditch, and that an open ditch of the depth and lyidth of that shown by the evidence, across a sidewalk, necessarily rendered the sidewalk unsafe for night travel, and in such case it was under obligation to the public to see either that guards were provided, or that the apron was replaced in such condition as to make it reasonably sáfe for pedestrians.

We think the action of the court in refusing the proffered testimony worked no injury to appellant, as it was immaterial, and that there was no manifest error in such action.

Complaint is also made of the refusal of the court to give the fourth, fifth and sixth instructions tendered by appellant. These instructions all embody the principle that the village could not be held negligent on account of the defect in the sidewalk and apron, without it had either actual notice, or constructive notice from lapse of time, of such defect. If a municipal corporation causes work to be done which is, in its nature, dangerous to the public, it is bound to take notice of the character of the work and of the condition in which it is left, whether safe or dangerous. (City of Springfield v. Le Claire, 49 Ill. 476; City of Chicago v. Johnson, 53 id. 91; City of Chicago v. Brophy, 79 id. 277.) Therefore, under the second and third counts of the declaration, which charge active misfeasance by the village, by negligent restoration and by negligent construction, respectively, of the cross-walk, it was unnecessary to prove notice. The said several instructions were not limited to the first count of the declaration, under which notice was a necessary element of the right of action, but applied to all three of the counts alike. The instructions were properly refused, and if given they would likely have misled the' jury. It is true, that in City of Chicago v. McCarthy, 75 Ill. 602, these identical instructions were held to properly present the law; but instructions must always be based on the facts of the particular case on trial, and in that case the sidewalk “was properly and safely constructed and Ikid down” not more than seven days before the accident, while here, the crosswalk was not properly and safely replaced.

It was not error to refuse the seventeenth instruction. The only degree of care that the law imposed upon appellee was ordinary care; but what is ordinary care in one condition of circumstances might not be ordinary care under other and different circumstances, and it is a question of fact for the jury, whether, in the particular case, the plaintiff was in the exercise of ordinary care.

It was not error to refuse the ninth instruction. The negligences in respect to which a cause of action was claimed were in suffering the cross-walk to remain out of repair, in improperly constructing the cross-walk, and in improperly replacing the cross-walk. The evidence that there were no street lamps at the crossing was not objected to, and besides this, it was admissible as a part of the res gestee, and was competent and material evidence upon the question of due care by appellee. The proximate cause of the injury was the defective apron, and this notwithstanding the fact that if there had been a light there, appellee might have avoided the accident. ■ Under the pleadings and the evidence it would have been misleading to have set the jury afloat on a sea of conjecture, by instructing them that if the place was not lighted, and the injury resulted solely from a failure to light the street, then they should find for the defendant.

Instruction 10 did not properly state the doctrine of comparative negligence, and there was no error in refusing it.

It is also claimed that the first instruction given at thé instance of appellee was erroneous. It appears, however, from the record, that no exception was taken, at the trial, to the giving of that or any other of the instructions submitted by appellee. Appellant is therefore precluded from now insisting upon this assignment of error.

The judgment of affirmance in the Appellate Court conclusively settles all the controverted questions of fact in the case, and that court, in their opinion, say that “the merits of the case are clearly with the plaintiff, and the verdict is well supported by the evidence.” We now, in our examination of the record, find no such errors in the rulings of the trial court as require or would justify a reversal.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


text:
    Danforth S. Clark et al. v. Osman J. Wilson et al.

      Filed at Ottawa January 25, 1889.

    1. Fraudulent conveyance—debtor must appear to have had some interest in the property conveyed. Where the son of a debtor acquired the title to a lot from parties other than his father, the latter never having had possession, a creditor of the father, before he can have a quitclaim deed of the father to the son set aside as fraudulent, must show that the father was, at the time of making such deed, the owner of the lot, as otherwise there could be no fraud in his conveyance to his son by mere quitclaim deed.
    2. AcknowiiEDg-mbnts of deeds—absence of signature of an officer. The record of a deed by a son and his wife to his father was offered in evidence to show title in the grantee. It appeared from the record that the deed purported to have been acknowledged before a notary public, and, while the notary’s seal was attached to the certificate of acknowledgment, the name of the notary was not attached to it: Held, that the deed was not properly acknowledged, so as to make the record evidence of its execution.
    3. Conveyances—evidence to prove execution—admissions or declarations of a grantee. Where a son has a complete chain of title without deraigning through his father, and it is sought by the father’s creditors to prove a deed from him to the father, for the purpose of attacking the father’s subsequent deed to him, and a deed by the son to a third person, as fraudulent, the admissions and declarations of the father, made out of the hearing of such third person, and after he had obtained his deed, are not admissible or competent evidence to prove the existence of such a deed. Such admissions are incompetent to show the execution of the deed to the father, whether made after or before the deed from the father to the son.
    4. Same—parol evidence—to show conveyances. Conveyance of land can not be shown by parol evidence, and the execution of a deed can not be proved by the admissions of persons not themselves shown to have been in privity with the title under which the grantee claims, nor can the execution of a deed be proved by showing the state of the accounts between the parties.
    5. Pleading and evidence—in chancery. On bill by creditors to set aside a deed from the debtor to his son, and a deed from the latter to a purchaser, on the ground of their being in fraud of the rights of creditors, neither the answer of the debtor nor the default of his son, as admitting title against the purchaser, can be received as evidence of title in the debtor, when the purchaser fails to admit title in him at any time. Matters not admitted in the answer must be proved, the same as if expressly denied.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of La Salle county; the Hon.'Charles Blanchard, Judge, presiding.
    The facts in this case are sufficiently stated in the following opinion of the Appellate C8urt:
    Lacey, J.: “This was a bill brought by the plaintiffs in error, judgment creditors of defendant in error, Osman J. Wilson, in aid of the assignee, for the benefit of the creditors of said Wilson, the assignee neglecting and refusing to bring the suit. It was sought by the bill to set aside certain deeds, mortgages, notes and acknowledgments of indebtedness, executed and made by the said Wilson to different parties shortly before the execution of the deed of assignment by him, as fraudulent and void, and as in fraud of the assignment. Upon final hearing, the circuit court rendered a decree in said cause, granting complainants certain relief and refusing certain other relief asked for. Among the matters of relief asked for by the plaintiffs in error, was the setting aside, as fraudulent, a certain supposed deed; executed by said Osman J. Wilson, the assignor, and wife, prior to his assignment,' December 18,1884, to Abram Wilson, in consideration of one dollar, as named in the deed, for the west half of lot 19, in Earlville; and also a deed on the same lot, executed by said Abram Wilson and wife, to Henry Boozel, one of the respondents, December 20, 1884, for consideration, named in the deed, of $3000; and also a certain promissory note, executed by the said 0. J. Wilson, to his son, John T. Wilson, for the sum of $1000, executed December 18, 1884, just prior to the assignment. The court below refused the relief asked as to the above named deeds and note, and dismissed the bill as to Abram Wilson and Henry Boozel, no relief being sought as to. them, except as to said deed, but held and decreed, as regards the note of $1000 given to John T. Wilson, that it -be allowed as a claim against the estate of O. J. Wilson, to be paid pro rata, the same as other claims. The above ruling and action of the circuit court are sought to be reversed on this writ of error.
    “It appears from the evidence, that Abram Wilson was the owner of the said half lot in Earlville as far back as April 18, 1883, by deed to him, of that date, for said lot, from the legal heirs of Benjamin Beynolds. It therefore became indispensable for plaintiff in error to show that 0. J. Wilson, at the same time, owned the said lot in question, otherwise, he never having owned the lot and never having any interest in it, there could be no fraud in his conveyance to his son Abram by mere quitclaim deed. It appears, from the evidence, that O. J. Wilson never had possession of the lot, the possession always having been in Abram. In order to show that 0. J. Wilson ever had title in the said premises, the plaintiffs in error offered what purported to be the record of a deed to said lot by Abram Wilson and wife to him, dated October 20,1883. It appeared from an examination of the record, that the deed purported to have been acknowledged before a notary public, and, while the notary’s seal was attached to the acknowledgment, the name of the notary was not signed to it. The reading of this record in evidence was objected to by Boozel, for the reason that the acknowledgment was not signed. We are clearly of the opinion that the deed was not properly acknowledged, so as to make the record evidence of the execution of the deed.
    “We are also of the opinion that there was no other competent evidence of the execution of the deed. Certain witnesses— Kelley, Munson, Bliss, Poole and Taylor—were introduced, to show, by admissions of O. J. Wilson, made out of the presence of Boozel, after he had acquired title to the lot from Abram, to the effect that 0. J. Wilson had been the owner of the land' at one time; also McDonald, to show that prior to the time that 0. J. Wilson executed the deed to Abram, October, 1884, and after the supposed deed from Abram to 0. J., the latter claimed to own the lot. We hold that none of the above evidence was •competent to prove the execution of the supposed deed from Abram to 0. J. Wilson. Abram had had a complete chain of title to the lot without deraigning title through 0. J. Wilson, and after the deed from Abram to Boozel, he also had a complete title to the lot, without reference to the deed from 0. J. Wilson to Abram, unless it can be shown that the. supposed •deed from Abram to 0. J. .Wilson had in fact been executed. The law did not require him to claim title through 0. J. Wilson. He might rely on his chain of title without the latter’s conveyance to Abram Wilson. Defendant in error Boozel’s title was not- dependent on showing that 0. J. Wilson had once title, as supposed by counsel, but it was sought to prove that O. J. Wilson had once the legal title, as a starting point to attack the title of defendant in error Boozel. Such admissions are incompetent to show the execution of the deed, either made after or before the deed from 0. J. Wilson to Abram Wilson. Conveyances can not be proved by parol evidence, and the execution of a deed can not be proved by the admissions of persons not themselves shown to have been in privity with the title under which the grantee claims. Evidence of possession is competent to show title, but in this case 0. J. Wilson never had possession of the lot. Even if admissions of the holder of the title to real estate may be competent evidence to impeach title, when made by a person while the owner is in possession, against his subsequent grantees, under certain circumstances, a question we need not decide, yet this would be an exception to the general rule against hearsay evidence, based on the ground that such admissions are made against the owner’s interests, and are res gesice. But this ownership must in some way be shown by evidence other'than the admissions. It would he just as competent to prove agency by the admissions of the supposed agent, as to allow title to he shown by the declarations of the supposed grantee. We are clearly of the opinion-that the execution of the deed can nbt b.e proved by showing the state of the accounts between O. J. and Abram Wilson. That throws no light on the subject. The plaintiffs in error can not invoke either the answrer to the bill of 0. J. Wilson or the default of Abram Wilson, as admitting title against their co-respondent, Boozel, the latter not admitting, in his answer, title in 0. J. Wilson at any time. The matter must be regarded, conformably to the rules of pleading, as though expressly denied. Plaintiffs in error are put on their proof. The plaintiffs in error having failed to prove the allegations of the bill, and to show the execution of the deed from Abram to 0. J. Wilson, the question of fraud on the part of 0. J., in the execution of his quitclaim deed to Abram, becomes immaterial, there appearing to be a complete title in Boozel. Without such deed it would be improper to set aside Boozel’s title, and subject the lot to sale for the payment of 0. J. Wilson’s debts.
    “There only remains to determine whether the $1000 note-given by 0. J. Wilson to John T. Wilson was given for a bonafide debt. The evidence on this point is quite voluminous, and we have examined it with care, but find nothing in it to convince us that the court below erred in holding .that the note was given for a bona fide consideration. It would serve no purpose to canvass the evidence in detail, and therefore we omit to do so. The allowance of the claim, payable pro rata, is also proper, under the circumstances.
    “We, upon the whole case, are satisfied with the decree of the court below. The decree is therefore affirmed.”
    Messrs. Bull & Strawn, for the appellants :
    Conveyances made in contemplation of an assignment are in fraud of the Assignment act, forbidding perferences. Berry v. Cutts, 42 Me. 445; Holt v. Bancroft, 30 Ala. 193.
    When a debtor, in contemplation of insolvency, makes a general transfer of his property, it must be for the equal benefit of all. Burroughs v. Luhndorf, 8 Iowa, 96; Livermore v. McNair, 34 N. J. Eq. 478; Kellogg v. Richardson, 19 Fed. Rep. 17.
    If the acknowledgment to the deed was imperfect, still the recording of the deed was notice to subsequent purchasers of all it contained. Starr & Curtis’ Annotated Stat. chap. 30, sec. 32; Reed v. Kempt, 16 Ill. 445; Stebbins v. Duncan, 108 U. S. 32.
    A deed may be valid and binding on the parties to it without any acknowledgment; (Semple v. Miles, 2 Scam. 315; McConnell v. Reed, id. 371; Robinson v. Robinson, 116 Ill. 250; Roane v. Baker, 120 id. 308;) and the execution of the deed may be proved by admissions of the grantor, or any other competent evidence. Dundy v. Chambers, 23 Ill. 369.
    Whatever circumstances convince the mind that fraud has been perpetrated, are sufficient to prove it. Gill v. Crosby, 63 Ill. 190; Bryant v. Simoneau, 51 id. 324; Reed v. Noxon, 48 id. 323; Carter v. Gunnels, 67 id. 270.
    Retention of possession, and taking rents and profits after conveyance, is evidence of fraud. Hildreth v. Sands, 2 Johns. Ch. 35; Stone v. Grubham, 2 Bulst. 225; Codwise v. Sands, 4 Johns. 586; Swift v. Lee, 65 Ill. 336; New v. Oldfield, 110 id. 138.

      The possession of the grantor after a conveyance of the property, has been held a circumstance tending to prove fraud in many other cases. Monell v. Scherrick, 54 Ill. 269; Merry v. Bostwick, 13 id. 398; Boies v. Henney, 32 id. 130.
    It has always been the law of this State, that where a creditor files a bill to subject property or funds in the hands of a third person to the payment of his debt, he thereby acquires a lien upon the property or fund, and upon recovery, will be entitled to a preference in the satisfaction of his claim, to the exclusion of other creditors, as a reward for his diligence. Lyon v. Robbins, 46 Ill. 276; Rappleye v. International Bank, 93 id. 396.
    The same rule applies where the bill is filed after the death of the debtor. Such property is not assets in the hands of the administrator for general distribution among all the creditors, until the debt of the diligent creditor is satisfied. Ballentine v. Beall, 3 Scam. 203; Cole v. Marple, 98 Ill. 58.
    Messrs. McDougall & Chapman, for the appellee Boozel:
    The certificate of the acknowledgment of the notary is not in substantial conformity with the statute, and is therefore not evidence. Marston v. Brashaw, 18 Mich. 81; Rev. Stat. chap. 30, sec. 27; Livingstone v. Ketelle, 41 Am. Dec. 166.
    Messrs. Mato & Widmer, for the appellee John T. Wilson.
   Per Curiam :

We have thoroughly examined the record in this ease, and carefully considered the printed arguments filed on behalf of the different parties, and have thereupon determined that the judgment of the Appellate Court shall be affirmed. The foregoing opinion is approved and adopted as a sufficiently accurate expression of our views upon the questions arising upon the record.

Our statute gives the form of an acknowledgment of deeds, which it declares shall be sufficient, and it requires the officer to subscribe his name to the certificate, (Rev. Stat. 1874, chap. 30, sec. 26, entitled “Conveyances,”) and the only safe rule is to require this in all cases of statutory acknowledgments. Marston v. Bradshaw, 18 Mich. 81, and same case in 100 Am. Dec. 152. See, also, Freeman’s note to Livingston v. Kettle, 41 Am. Dec. 173, under the head of “Signing and sealing by officer. ”

Under the facts of this case, even the answer of Abram Wilson, made under oath, pursuant to a prayer of the bill, could not be read in evidence against his co-defendant, Boozel. (Rust et al. v. Mansfield et al. 25 Ill. 336.) To allow his default to have an effect which his answer under oath cbuld not have, would be contrary to all principle. The decree pro confesso against him can affect no one else, because it is not alleged in the bill, that, in any view, he has a present interest in the property that can be affected by the decree. The theory of the bill is, that, in equity, the property is that of O. J. Wilson, while the answer of Boozel claims that it is his. Abram Wilson was a mere conduit through which the title passed.

The fact that the evidence as to the consideration of the $1000 note given by 0. J. Wilson to John T. Wilson was given orally before the trial court, is a material circumstance to be considered in a case like the present. The court can determine much, from the appearance and manner of the witness While testifying, as to his candor; and if John T. Wilson testified the truth, his note is bona fide, and he stands on an equal footing with other creditors.

The judgment is affirmed.

Judgment affirmed.

Mr. Justice Baker, having passed upon this case in the Appellate Court, took no part in its decision here.