author: Mr. Justice Soott

text:
    Edward Howe v. The South Park Commissioners et al.

      Filed at Springfield May 14, 1886.

    1. Chancery—cross-bill—whether necessary, in order that a defendant may have affirmative relief. On bill by part of the heirs of a deceased person to set aside a decree establishing an adverse title, the other heirs, made parties defendant, without a cross-bill, can not, independently of the complainants, have any affirmative relief against the decree, and they can not be heard to complain of the dismissal of the original bill.
    2. Same—cross-bill—when not proper. Where a defendant seeks the same relief as the complainant, and no other, a cross-bill is not proper, and if filed, would be dismissed on motion. So a cross-bill in a suit for partition is not necessary, when the defendant desires no more than the complainant seeks in his behalf.
    3. Arpead—by whom—as to defendants in chancery, in respect to the dismissal of the original bill. A portion of the heirs of a deceased person, claiming land, filed a bill against the holders of an adverse title, to impeach and set aside a decree establishing and confirming their title, making the other heirs not joining in the bill, defendants, with the holders of the adverse title. The heirs defendant answered, admitting the material allegations of the bill, but filed no cross-bill seeking affirmative relief, either against the complainants or their co-defendants. The bill, which, by amendment, also sought a partition, was dismissed, and an appeal was prosecuted by one of the complainants and several of the defendant heirs, and errors assigned. The complainant appealing, voluntarily dismissed his appeal, when the appeal by the defendant heirs was dismissed on motion of the defendants, this court holding there was nothing from which they could appeal.
    4. Assignment op errors—by one not joining in an appeal. A party not joining in an appeal from an order dismissing a bill, can not assign errors upon the record brought up by the appellants, without leave of "court, and then only upon such terms as may be imposed. The dismissal of the appeals of those with whom he joins in assigning errors, has the effect also to dismiss his assignment of errors out of the case.
    5. Same—as to a decree favorable to the party. A party can not assign cross-errors on a decree in his favor dismissing a cross-bill filed against him.

      6. Sheriee’s deed—supported by relation back to date of purchase, after decree confirming the sale. Prior to the bankruptcy of a party, land claimed by him was sold under execution, on a judgment against his grantor, and long after his bankruptcy, on bill against him and others, a decree passed confirming the validity of the sale under the execution, and requiring the sheriff to make the purchaser a deed, which was done: Held, that the making of the deed by the sheriff related back to and confirmed the title in the purchaser as of the date of his purchase, if the decree was valid and binding on the parties in interest.
    7. Limitation—as against assignee in bankruptcy—and, his grantee. Under the Bankrupt law of the United States, the assignee of a bankrupt was required, within two years, to recover whatever interest the latter may have had, when claimed by others adversely; and where the right of the assignee to maintain an action against an adverse claimant is barred before he makes a conveyance, his grantee will be equally barred.
    8. Laches—as a bar to equitable relief—delay in asserting title to real estate. A party seeking to defeat the title of his adversary to real property, must be diligent in discovering that which will avoid the title or render it invalid, and diligent in the application for relief. Unreasonable delay, not explained by equitable circumstances, affords evidence of acquiescence, and will bar relief.
    9. So where a party, and those claiming under him, suffer a quarter of a century to elapse without asserting their claim to real estate, during which period it is held adversely, and transferred many times to purchasers for value, and no reason is given for the delay, the laches will be a bar to equitable relief.
    Appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    Mr. John Woodbridge, for the appellants;
    As to the question of laches, see Perry v. Barton, 111 Ill. 138. Laches is not imputable, because the Cornell and Fellows title was fraudulent. Adams’ Eq. 175, 176 ; Greenman y. Greenman, 107 Ill. 411.
    A court of equity applies the doctrine of laches in denial of relief prayed, when the statutory period of limitation has not expired, only where, from all the circumstances in evidence, to grant the relief will presumptively be inequitable and unjust, because of the delay to the defendant’s prejudice. Stiger v. Bent, 111 Ill. 341. See, also, Hurlbut v. Bradford, 109 Ill. 397; Perry v. Burton, 111 id. 144; Kane County v. Herring-ton, 50 111. 234; Roberts v. Fleming, 53 id. 197; Walkers. Carrington, 74 id. 453; Castner v. Walrod, 83 id. 171.
    As to the Statute of Limitations being no bar, see Irving v. Brownell, 11 Ill. 413; Ambrose v. Riley, 58 id. 508; Tell v. Ceaseford, 26 id. 525; Schenck v. White, 53 id. 359; Smith v. Stevens, 82 id. 556; McCartney v. McMullen, 38 id. 241; Rockwell v. Servant, 63 id. 427; Whitney v. Stevens, 59 id. 53; Hassett v. Johnson, 48 id. 72.
    Mr. Charles H. Lawrence, pro se:
    Upon the bankruptcy of Harris, his estate, eo instanti, vested in his assignee. A general description in the assignee’s deed was good. :(Prettyman v. Walston, 34 Ill. 191.) Nor is it material that the land was not described in the schedule of Harris. Holbrook v. Coney, 25 Ill. 518.
    The recitals in the deed, coupled with the proof of the adjudication of Harris as a bankrupt, and the confirmation of the sale, make the deed good. Holbrook v. Coney, 25 Ill. 518; Joy v. Berdel, id. 537; Holbrook v. Benner, 31 id. 501; Heath v. Hyde, 87 id. 91.
    The limitation in the Bankrupt law does not apply to sales and conveyances, or suits brought by a purchaser from the assignee, (Holbrook v. Benner, 31 Ill. 501, Warren v. Miller, 38 Me. 103,) nor to a party who takes possession after the proceedings in bankruptcy are commenced, (Stevens v. Hansen, 33 N. Y. 302,) nor where there has been a fraud which is not discovered more than two years before suit brought. Clark v. Hackett, 1 Cliff. 269; Bailey v. Weir, 21 Wall. 342.
    Before the sheriff’s deed the certificate of Gardner was merely a lien, and a secret one at that, and did not amount to an interest in the land itself. Rucker v. Dooley, 49 Ill. 380; Curtis v. Millard, 14 Iowa, 128.
    The decree confirming the Gardner title was not binding upon the assignee in bankruptcy, or his grantee, merely because the bankrupt was made a party. Atkinson v. Farmer' s Bank, Crabbe, 529.
    Messrs. Sleeper & Whiton, for the appellees Morton and Clement:
    The Municipal court was an original court of superior jurisdiction, (Beaubienv. Brinkerhoff, 2 Scam. 272,) and hence every presumption will be indulged in favor of its jurisdiction. Peacock v. Bell, 1 Saund. 74; Foot v. Sexias, 17 Wend. 483; Kenney v. Greer, 13 Ill. 432.
    Conceding the objections to the judgment of the Municipal court, and the execution thereon, the effect of the decree in the Cornell and Fellows bill was to divest the title from.Harris, and vest it in Gardner, upon the execution of the sheriff’s deed.
    As to the Statute of Limitations, and laches, as a bar, see Collier v. Beers, 106 Ill. 150; Pratt v. Yeaton, 101 id. 247; Maher v. Farwell, 97 id. 56; Hancock v. Harper, 86 id. 455.
    As to defective description in sheriff’s deed, and reformation, see Solomon v. Brazael, 27 Ga. 200; Freeman on Executions, sec. 281; Hawley v. Simmons, 102 Ill. 115.
    Messrs. Dent, Black & Cratty Bros., for the appellee James Stinson:
    Subsequent bona fide purchasers had a right to rely upon the Cornell and Fellows decree, and were not required to look behind it. Feaster v. Fleming, 56 Ill. 457; Dugan v. Follett, 100 id. 590; Jenkins v. Rosenberg, 105 id. 157; Dunning v. Bathrick, 41 id. 425.
    The original complainants, claiming through Harris, are bound by the decree in favor of Cornell and Fellows. Hodgen v. Guttery, 58 Ill. 431; Kirkland v. Cox, 94 id. 401; Vallette v. Bennett, 69 id. 632.
    The bill was not filed in time. Sloan v. Sloan, 102 Ill. 581; Evans v. Bacon, 99 Mass. 213.

      The assignee’s rights were barred, under the Bankrupt law, when Cornell and Fellows filed their bill. Clark v. Hackett, 1 Cliff. 270; In re Conant, 5 Blatchf. 54; Jenkins v. International Bank, 106 U. S. 571; Cleaveland v. Boerum, 24 N. Y. 613; Allen v. Woodruff, 96 Ill. 13.
    The parties are all guilty of inexcusable laches, in a fatal measure. Lansdale v. Smith, 106 U. S. 391; Bell v. Johnson, 111 Ill. 374; Warder v. Cornell, 105 id. 169.
    Mr. Melville W. Fuller, for the South Park Commissioners :
    The motion to dismiss the appeal of Howe, W. C. Clark, Mary C. Clark, Lora A. McCrary and Mary A. Frazier, should be allowed.
    The defence of laches may be set up and availed of by demurrer. Furlong v. Riley, 103 Ill. 628; Ilett v. Collins, id. 74.; Maxell v. Kennedy, 8 How. 222.
    The bill is not maintainable as a bill of review. Such a bill must be brought within the time for suing out a writ of error. Sloan v. Sloan, 102 Ill. 591; Lyon v. Robins, 46 id. 276; Bell v. Johnson, 111 id. 379; Story’s Eq. Pl. sec. 410.
    Ignorance of one’s rights does not stop the running of the statute. Conner v. Goodman, 104 Ill. 368 ; Campbell v. Long, 20 Iowa, 382; Martin v. Bank, 31 Ala. 115.
    A court of equity will refuse its aid to stale demands when the party has slept upon his rights, or acquiesced for a great length of time. Carpenter v. Carpenter, 70 Ill. 457; McKean v. Vick, 108 id. 376; McDonald v. Stowe, 109 id. 45; Castner v. Walrod, 83 id. 171; Whipple v. Whipple, 109 id. 424; Brown v. Buena Vista County, 95 U. S. 157.
    Messrs. Bisbee, Aheens & Decker, for the appellee Charles W. Stevens.
    Mr. Joseph N. Barker, and Mr. Lynden Evans, for the appellants, in reply.

       The following other appeals upon the same record were considered and disposed of: Charles H. Lawrence v. South Park Commissioners et al., Justus B. Smith v. South Park Commissioners et al., and Mary A. Frazier et al. v. Edward Howe et al.

   Mr. Justice Soott

delivered the opinion of the Court:

The appeals taken by the several parties are all upon the same record, and have been submitted together, to be considered as one case. The original bill was filed February 11, 1871, by a part of the heirs of Benjamin Harris, who died intestate, in Iowa, in 1863, and who, it is alleged, was the owner of the lands in controversy. To that, bill the South Park Commissioners, James Stinson, and others, were made defendants. Some of the defendants to the original bill were defaulted, and others demurred, but before the cause came to a hearing the files were destroyed by fire, October 9, 1871. Subsequently the files were restored, by leave of court. The original bill was framed w'ith a view to impeach a decree obtained by Cornell and Fellows, confirming, in a remote grantee of theirs, what is called the Gardner title to the premises, on account of the fraud of complainants in obtaining it. The other heirs of Benjamin Harris do not seem.to have been made parties to the original bill, nor did the bill, as originally framed, ask for a partition of the estate. But an amendment filed October 9, 1872, among other things, made the other heirs defendants, and asked that the shares of the property to which complainants might be entitled, should be set apart to them. It does not appear that the other heirs were brought into court, at that time, by summons, publication, or otherwise. The South Park Commissioners, James Stinson, Charles H. Lawrence, and perhaps other defendants, filed separate demurrers to the original bill, as amended, which were sustained by the court, and the bill dismissed for want of equity. The decision of the circuit court sustaining the demurrers to the original bill was afterwards reversed in this court, and the case is reported as Harris et al. v. Cornell et al. 80 Ill. 54. The opinion then delivered contains a very full statement of the contents of the original bill, and reference is made to the opinion for a history of the ease, which is so full as to make it unnecessary to further state the facts.

On the remittitur from this court being filed, the defendants, claiming the property adversely to complainants, answered the bill, and all of them, except Lawrence, claimed to hold their respective interests in the premises under a sheriff’s sale, made on an execution issued on a judgment in favor of Jefferson Gardner against Mark Noble, Jr., as the same was afterwards confirmed, on a bill filed by Cornell and Fellows, against Mark Noble, Jr., Benjamin Harris, and others, which title, they allege, came to them, or some of them, by a regular chain of conveyances from Gardner, who was the purchaser of the property at the sheriff’s sale. As the answers are not under oath, they are not important, except in so far as they set up statutes of limitations, and the laches of the parties claiming title adversely to them, as a bar to any relief. Lawrence, one of the defendants, who claims the whole property as a grantee of the assignee in bankruptcy of Benjamin Harris, and perhaps as grantee of a prior assignee under a voluntary assignment made for the benefit of creditors, in or against all the other parties, after filing his answer to the original bill, filed a cross-bill, in which, in substance, he asked to have his .title established and that of his adversaries cancelled. It was not until October, 1883, that the other heirs of Benjamin Harris were brought into court by publication, although they had been named defendants by an amendment to the original bill, made in 1872. About the same time, Edward Howe, one of the parties assigning error on this record, was made defendant to the bill, as a grantee of some of the alleged heirs of Benjamin Harris, deceased. Later on, perhaps in March, 1883, Mary A. Frazier, W. C. Clark, Mary C. Clark and Lora A. McCrary, all of whom assign errors on this record, were substituted as defendants in the place of Joseph James Harris, one of the alleged heirs of Benjamin Harris, as the grantee of his interest in the property. All of the parties lately made defendants answered the original bill of complainants, and also the cross-bill of Lawrence. The amendment made to the. original bill in September, 1883, stated the alleged interest of complainants, and such of defendants as were grantees of the other heirs of Benjamin Harris, deceased, and for the first time asked for a partition of the lands among all of the heirs or their grantees. The last amendment made to the original bill, and also to the cross-bill of Lawrence, alleges some infirmities in the judgment of Gardner against Noble not stated in the original bill, and which for that reason do not appear in the first opinion of this court, where the history of the case is given. It is alleged the Municipal court in wdiieh the judgment was rendered, had no jurisdiction of the person of defendant in that case, on account of the insufficient service of the summons, and therefore the judgment was absolutely void. Other grounds for relief were stated, but it will not be necessary to state them, in the view that is to be taken of the case.

Without making any detailed statement of the titles claimed by the respective parties, it will be seen they all claim the title that was in Mark Noble, Jr., prior to July, 1837. It is conceded the title that was vested in Jeduthan Smith, by patent from the government, passed to Mark Noble, Jr., by a regular chain of conveyances. There was a misdescription of the property to be conveyed, in some of the deeds made, but that is not a matter important to be considered now. On the 6tli of October, 1836, Mark Noble, Jr., and wife, conveyed the land to Benjamin Harris. It is under that deed that complainants and their grantees claim title to the property. But Harris did not record his deed until August 1, 1837. In the meantime, on the 7th day of July, 1837, Jefferson Gardner recovered a judgment, in the Municipal court of Chicago, against Mark Noble, Jr., for $251.56, and costs of suit. One or more executions on that judgment were issued out of that court, directed to the high constable of Chicago, and perhaps something was made on one of them. The first execution was issued within less than one year after the judgment was rendered. That court seems to have had concurrent jurisdiction with the circuit court of Cook county in all matters arising in that county. The act of the legislature that abolished the Municipal court, provided that thereafter all executions to be issued on judgments remaining of record in that court should be issued by the clerk of the circuit court of the county of Cook. Afterwards, on the 5th of February, 1840, an execution was issued by the clerk of the circuit court, on the judgment in Gardner against Noble, directed to the sheriff of Cook county, to be executed. There is no dispute as to the fact, this execution was attested in the name of the clerk of the circuit court, but whether it had attached the seal of the circuit court or the seal of the Municipal court, is a matter of contention. It was on this execution the property was sold, and was bought" by Gardner, the plaintiff in execution. Afterwards, Gardner conveyed, by his deed, his interest in the property, so that his equitable title, which he acquired under the sheriff’s sale to him, passed to Paul Cornell and Elisha C. Fellows. At the time Cornell and Fellows obtained their title to the property, no deed had been made by the sheriff to Gardner. Afterwards, in 1854, Cornell and Fellows filed their bill to have Gardner’s title, obtained at the sheriff’s sale, confirmed, and to require the sheriff to make a deed to Gardner for the land sold to him. Benjamin Harris was made a defendant to that bill, with Mark Noble, Jr., and others. A decree passed in favor of complainants, in substance confirming the validity of Gardner’s purchase, and directing the sheriff to execute to him a deed for the property, which he did, as directed by the decree of the court. It is under the Gardner title that the South Park Commissioners and Stinson deraign their respective titles, which they insist are the paramount titles, and should prevail. Whether the South Park Commissioners have acquired the title to the entire tract of land in controversy, or whether Stinson or others own a part of it, is not made a question in this case, and as to which, of course, no opinion is expressed.

Going back in the history of the case, it is seen that in 1843 Benjamin Harris, on his own petition, was adjudged a bankrupt in the United States District Court for the District of Illinois, and Cyrus F. Miller was appointed assignee, who, after being duly qualified, entered upon the discharge of the duties of the trust. In 1844, the assignee, by general description, conveyed the interests in the assets of the bankrupt that had come to him, to Anson S. Miller. That sale was approved May 15, 1847. On the 5th of April, 1847, Anson S. Miller, by the same indefinite description, conveyed all he had acquired under the assignee’s deed to him, to Benjamin Harris and Daniel King. That title, whatever it was, has since come to Lawrence, complainant in the cross-bill, by deed from Morris Neustadt, dated July 10, 1871. Back of all this, it seems that, in 1839, Benjamin Harris made a voluntary assignment of all his property, for the benefit of his creditors, to Jacob Early. What the assignee under that assignment may have done, if anything, does not appear. In 1871, Jacob Early conveyed whatever interest he had in the land in controversy, to Morris Neustadt, by deed dated May 13, 1871, and on the 19th day of that month Neustadt conveyed the same interest to the complainant in the cross-bill. It is the title derived from one or both of these sources that Lawrence insists is the better title, and the one that should be sustained. The cause was submitted for decision at the June term, 1885, of the circuit court, on the pleadings of the parties and the evidence introduced to sustain their respective titles, and a decree was entered shortly thereafter dismissing both the original bill and the cross-bill, for want of equity.

The only one of the complainants in the original bill that appealed from the decision of the circuit court dismissing their bill, was Justus B. Smith. Since then, at the September term, 1885, on his own motion, his appeal was dismissed by this court. At the same term of court, one of defendants entered a motion to dismiss the appeal taken by defendant Edward Howe, from the decision of the circuit court, to this court, and also to dismiss the appeal taken by the other defendants, Mary A. Frazier, William G. Clark, Mary C. Clark and Lora A. McCrary. That motion was reserved for consideration until the final decision should be rendered, and the cause was then, by consent of parties, transferred from the Northern Grand Division to the Central Grand Division, where the cause was taken for decision. The motion to dismiss the appeals mentioned, has now been considered, and the conclusion reached is, it should be allotved. As before stated, Edward Howe claims title to an undivided interest in the property in controversy, under conveyances from some of the heirs of Benjamin Harris. He neither claims nor insists upon any other title. It appears he was not made a defendant until 1883, and filed no answer until the 24tli day of March, 1885. In his answer then filed, he admits most of the allegations of complainants’ original and amended bills, and insists upon the same infirmities in the judgment of Gardner against Noble, and in the execution issued thereon, and asks for a partition of the estate. At the same time he also answered the cross-bill of Lawrence. The other defendants, Mary A. Frazier, W. C. Clark, Mary C. Clark and Lora A. McCrary, whose appeal is embraced in the motion to dismiss, were substituted as defendants, instead of Joseph James Harris, on March 31,1885, and filed their answer to the original and cross-bills. Neither of these parties filed any cross-bill. It is further to be observed, that the' original bill was framed with no other view than to impeach for fraud the decree obtained by Cornell and Fellows, confirming the Gardner title in him for the benefit of the holders of his title. Afterwards, the bill was amended so as to ask a partition of the estate between the heirs of Harris and their grantees.

It is obvious, the principal object of the original bill, even as amended, was to have the Cornell and Fellows decree set aside and declared to have no effect. So long as that decree stood, it was an effectual bar to any partition of the estate, either between the heirs or their grantees. It was around this central fact the whole controversy hinged. If that decree could be set aside, it would follow, as a matter of course, if application was made in apt time for that purpose, that partition would be made of the estate among the parties owning it. It was not a question whether partition should be made. It was from the beginning, and is now, the principal question, whose title is superior and must prevail. There is not now, and never was, any controversy between the heirs or then-grantees concerning the question of partition, in case they should be successful in removing the adverse title. The contention, from the outset to the present time, has been between the parties claiming the Harris title and those claiming the Gardner title. Both the complainants and defendants claiming the Harris title were assailing, the Gardner title held by defendants. It is seen the complainants have all ceased to make any further contest as to the validity of the Gardner title, that has stood in the way as an insurmountable objection to any partition of the estate, unless it is Chauncey W. Harris, and as to the errors assigned by him, they will be noticed further on. It is sought to continue the contest between the grantees of the Harris heirs and the South Park Commissioners, and other defendants holding the adverse title deraigned through Gardner, by assigning errors on the original bill against them. This can not be done. Neither of these defendants whose appeal is embraced in the motion to dismiss, ever filed any cross-bill for relief in their favor, as against the parties claiming the adverse title. It seems the only parties now insisting upon the Harris title are these defendants assigning error on the original bill against themselves. The only party that appeared to have any further interest in the property was Justus B. Smith, who has since dismissed his own appeal, and who, with the other complainants, now acquiesces in the decision of the circuit court in dismissing the original bill. There is really nothing left for these defendants to. appeal from, since the original bill has been dismissed. There is absolutely no bill pending .against the defendants holding the adverse title, derived from or through Gardner. These defendants appealing have no cross-bill upon which they can obtain any relief whatever against the effect of the Cornell and Fellows decree, and while that stands, all relief as to them is forever barred. So far as they are concerned, there is no bill pending, in their favor upon which any relief could be obtained against the other defendants. If the original bill asked no further or. other relief than to set aside and impeach the decree confirming the title to the property in Gardner, under his purchase at the sheriff’s sale, it would hardly be insisted these defendants could appeal from a decision dismissing the original bill. But it is said, • that as the original bill, as amended, asked for partition, that gendered it unnecessary for these defendants to file any cross-bill. Undoubtedly, the rule is as counsel state it, that on a bill for .partition, where the defendants claim the same relief for themselves as is sought by the original bill, no cross-bill is necessary.. Whatever relief the defendants may be entitled to, against the complainants, -in a bill for partition, may be obtained by ¡them on answer. In such case, a cross-bill -would be improper, for the. rule is, when defendants ask only the same relief as complainants do, a cross-bill asking no other relief would be dismissed on motion. But that is not this case. Here, these defendants appealing neither desired nor asked any relief as against the original complainant, and, of course, as to them no cross-bill was necessary. • What they now seek is affirmative relief against their co-defendants holding an adverse, and independent title. That, they have not asked for by any cross-bill, and without such a bill no relief could, in any event, be granted .to them. The case now stands in this way: The original bill that asked to have the adverse title of defendants set aside has been dismissed out of court, and all of complainants having any interest in the subject of that bill have acquiesced in that decision. These defendants have no cross-bill asking any relief against their co-defendants as to the adverse title held by. them. , There is, therefore, nothing from which these defendants could appeal. Clearly, they can not hold the original bill against themselves, and assign errors on it against their co-defendants. That could only be done by cross-bill. It could be done in no other way. The appeal of these defendants must be dismissed.

Chauncey M. Harris was one of the complainants in the original bill. An amendment to the original bill, made in September, 1883, shows he has since conveyed all his interest in the lands involved, and that interest, whatever it was, has passed to and is now held by defendant, Edward Howe. He 1 did not join with his co-complainant, Justus B. Smith, in taking an appeal from the decision of the circuit cour-t, nor did he ask for or take any separate appeal on his own behalf,' yet he has assigned errors on the record brought to this court by other parties appealing. That, he can not do, without leave of the court,.and if leave should be granted, it would, perhaps, be upon terms that might bo imposed.. The errors assigned by him are called cross-errors. That is not accurate. They are in no sense cross-errors, as that term is used in the statute. They are, in substance, the same as the errors assigned by defendants appealing, and as printed in the abstract they are identical with the other errors assigned by them. . Being upon the same record, and not cross-errors, the errors assigned by him since the appeals of the other parties with whom he seeks to join in assigning errors have been dismissed, those assigned by him must be regarded as also dismissed, with the appeals in which they are assigned. Both fall together. Had he been injuriously affected by the decree of the court dismissing the cross-bill of Lawrence, there is no reason why he could not have assigned cross-errors on the record in his appeal. He was a defendant to the cross-bill, but the decision dismissing it was wholly and entirely in his favor. There could be no complaint, on his part, as to that decision, and he has not assigned, and could not assign, cross-errors on the decree in his favor, dismissing the cross-bill.

The court, on the final hearing of the cause, dismissed the cross-bill of Charles H. Lawrence, and from that decision he asked for and was allowed an appeal, which he afterwards perfected. The questions made on that appeal remain to be considered. It will be done briefly. One source of title which he insists upon, is under a deed from Cyrus F. Miller, assignee in bankruptcy of Benjamin Harris. It will be recollected that Harris was adjudged a bankrupt, on his own petition, in 1843. Whatever title he may have had in the property in controversy at that time, vested in his assignee in-bankruptcy. Prior-to his bankruptcy, the land had been sold on an execution issued on the judgment of Gardner against Noble, as the property of the judgment debtor, and had been bought at the sheriff’s sale by the plaintiff in execution. Later on, in 1856, on a bill filed by Cornell and Fellows, and to which the bankrupt was made a defendant, with others, a decree passed confirming the validity of the sale of the property to Gardner, and requiring the sheriff to make him a deed. The making of the deed by the sheriff, as was done, would relate back to and confirm the title in him as of the date of his purchase, if the decree was'valid and binding on the parties in interest. There was then, at the date Harris was adjudged a bankrupt and the title to his property vested in his assignee, an apparent title, or at least an interest, in the grantees of Gardner, adverse to the title of the bankrupt. Possession was taken under Gardner’s title, whatever it was, and unless it was in some way assailed by the assignee, in apt time, it is obvious it would mature into a paramount title that would prevail against any title that was in the assignee. That was not clone, either by the assignee or his grantee. Section 5057 of the Revised Statutes of the United States, provides: “No suit, either at law or in equity, shall, be maintainable in any cause between an assignee in bankruptcy and a person claiming an adverse interest, touching any property or right of property transferable to or vested in such assignee, unless brought within two years from the time when the cause of action accrued for or against such assignee.” In this case there was certainly an interest in the grantees of Gardner in the land, adverse to the title of the bankrupt; and unless the assignee undertook to recover that interest within two years from the time the right accrued to him,—which was at the date of his appointment, in January, 1843,—his right to do so would be forever barred. Whatever title came to him from the bankrupt, remained in him until 1847, when he conveyed to Anson S. Miller. As the right of the assignee to maintain an action at law or a suit in equity to recover the interest claimed by other parties adversely to the rights of the bankrupt’s estate, was then barred by the statute, no grantee of the assignee could maintain a suit to recover such adverse interest in the property.

But there is another reason for affirming the decision of the circuit court dismissing the cross-bill, that is unanswerable. It is the laches of the parties holding the title the complainant in the cross-bill now seeks to maintain. The alleged assignment of Harris to Jacob Early was made in 1839. The deed from 'Gyrus F. Miller to Anson S. Miller was made as far back as 1847. There is no pretence that any one ever attempted to assert any title to. the lands in controversy, derived from either assignee, until 1871, when the complainant in the cross-bill commenced his action in ejectment to recover the property. Since the alleged title vested in Early, more than thirty-two years had then elapsed, and since the supposed title vested in Miller, under the Bankrupt act, nearly twenty-four years had elapsed, and no one had made any previous effort to recover the property. In the meantime, the property had been bought and sold many times, in the confident belief the purchasers were obtaining a perfect title,—some of them, at least, paying the full value of the property. The doctrine of laches, as understood by the court, has been often declared by its previous decisions. Dempster v. West, 69 Ill. 613; Cox. v. Montgomery, 36 id. 398; Winchell v. Edwards, 57 id. 46; Bush v. Sherman, 80 id. 160. The principle that lies at the foundation of all the cases in this court on this subject is, the party who challenges the title of his adversary to real property, must be diligent in discovering that which will avoid the title or render it invalid, and diligent in his application for relief. Unreasonable delay, not explained by equitable circumstances, has always been declared evidence of acquiescence, and will bar relief. Surely the grantors of complainant in the cross-bill have not been diligent in their application for relief in this ease. More than a quarter of a century was suffered to pass before any one attempted to assert any title acquired either from the assignee in bankruptcy or the assignee under the voluntary assignment made by Harris for the benefit of his creditors. Since then, the land involved has increased in value manifold times, and other rights have attached, founded in good faith and for valuable considerations; and now, at this late day, the complainant in the cross-bill seeks to have the title established in him. This would be inequitable, and especially after the lapse of so great a period, even if it should be conceded the former grantees may have had equitable rights in the premises, had they asserted them in apt time. Not a single fact is proven that stood in the way of an earlier application by them for relief, had they believed they were entitled to any. There is evidence, however, that tends to show the former grantees of the assignees of Harris had abandoned all claim to the property long years ago, and to induce the belief, the present claim is put forth, on the doctrine of chances that a speculation might possibly be realized. It seems difficult to understand how the claim of ownership to this property, now become very valuable, from either source insisted upon, can be put forth in good faith. The proposition that the complainant in the cross-bill can assert any title to the property that his grantors could not, needs no argument in its support. Their laches will constitute as effectual a bar to him, as it would have been to them had this suit been brought in their names or by them. The decree dismissing the cross-bill was clearly warranted both by the law and the evidence, and should not be disturbed.

The appeal taken by Edward Howe, and that taken by Mary A. Frazier, William C. Clark, Mary C. Clark and Lora A. McCrary, will be dismissed, and the decree dismissing the cross-bill will be affirmed.

Appeal dismissed and decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    Lizzie T. Reid et al. v. Thomas C. Morton.

      Filed at Springfield January 22, 1886.

    1. Constitutional law—of an act being void in part, and valid as to the residue—jurisdiction of local inferior courts. An act of the legislature may be unconstitutional and void in part, and good as to the residue. Therefore, an act creating an inferior court in a city, and giving jurisdiction within the city, and also in the township without the city, will be valid in conferring jurisdiction within the city, whatever may be considered as to the validity of that portion of the act purporting to extend the jurisdiction outside the city limits.
    2. Same—as to what “jurisdiction” might be given to “inferior local courts” in cities, under the constitution of 1848—sale of ward’s land by guardian. The word “jurisdiction,” in the constitution of 1848, in relation to city courts, relates to the exercise of such powers, only, as are judicial in their nature, and the power to authorize a guardian to sell his ward’s land is not a power of that nature, but rather ministerial. Therefore the legislature was authorized, under that constitution, to confer on city courts the power to order a guardian’s sale of a ward’s real estate situated without the cities in which the courts were established, when the ward resided therein.
    3. Same—creating “inferior local courts in cities”—City Court of Alton, as coming within that description. In 1859, the City Court of Alton was created by a special act, with a grant of jurisdiction concurrent with the circuit court in all civil and criminal cases, except cases of treason and murder, and the judge thereof was declared to possess the same powers as judges of the circuit courts, except as limited in the act, and it was made a court of record: Held,- that the city court was an “inferior court,” within the meaning of those words in the constitution of 1848. The mere fact of that court being made a court of record, did not affect its character as being an “inferior” court.
    4. Same—validity of act of 1857, giving an uniform organization to inferior local courts in cities. The act of February 10, 1857, entitled “An act to give an uniform organization and jurisdiction to inferior courts of local jurisdiction in cities of this State,” is not void for uncertainty, repugnancy and inconsistency, under the constitution of 1848, for the reason it confers upon any city court created, the same jurisdiction possessed by two other city courts whose jurisdictions are different as to criminal cases and as to the amount involved in civil cases. The difference in the jurisdiction of the two courts may give rise to doubt, and call for construction as to the precise extent of jurisdiction in the cases named, but does not go to the validity of the act itself.
    5. Jurisdiction of Alton City Court—as to application by guardian to sell ward’s land. The City Court of Alton, within the city, was, by the act creating it, invested with concurrent jurisdiction with the circuit court, not only in all civil cases, but also with the same powers possessed by the latter court, including the statutory power to order a sale of a ward’s land by his guardian.
    6. Guardian’s sade op ward's dand—of facts giving a court jurisdiction. Under section 10, chapter 47, of the Revised Statutes of 1845, a guardian’s petition for leave to sell his wards’ land, filed in the Alton City Court, in 1865, showing the requisite facts, and that the wards were residents of that city, and the publication of notice to all interested, of the application, was held sufficient to give the court jurisdiction to order the sale of the wards’ lands, though situated without the city, and in different counties.
    7. Same—of the signing of the petition. A petition of a guardian for leave to sell her wards’ land, filed in 1835, was signed, “Mary M. Olcott, guardian for Lizzie Olcott and Sue Olcott, by Levi Davis, her solicitor,” was held a sufficient signing by the guardian.
    8. Same —certificate of publication—its sufficiency—recital of due notice published. A certificate of the publication of a notice of a guardian’s application for an order of court to sell lands of his ward, signed “Parks & Pinkard, publishers, ” was objected to in a collateral proceeding, for the reasons the Christian names of the publishers were not given. The order of sale recited that there was due notice published, etc.: Held, that there was no force-in the objection. ■ ■
    9. Same—amending order of sale without notice. A decree for the sale of land by a guardian required the sale to be for one-third of the purchase money cash, with a credit of six and nine months for the balance; At a- succeeding term, the guardian reported an inability to sell, and obtained, without any further notice, an amended order for a sale, on one, two and-three years’ credit: Held, that the sale under the amended order was valid, and that no further notice8 was' required, as the case was still under the control of the court.
    10. Same—order of approval of sale entered nunc pro tunc, at the instance of purchaser. A guardian sold his wards’ land in 1866, and reported the same to the court ordering the sale, and there appeared indorsed on the report, its approval by the judge, but no order of approval was entered of record. In 1882, after ejectment by the former wards, the case was re-docketed, and, on motion of the purchaser, an order was entered nunc pro tunc, reciting the facts, and the appearance of the wards, and approving the sale: Held, that the order of approval was properly made, the court having the undoubted power to correct its records in accordance with its written minutes, and that such order related back to the time when the approval was actually made.
    11. A purchaser at a guardian’s sale has the right to appear in court and enter a motion for an order of approval of the sale nunc pro tunc, in accordance with the judge’s minutes, even after the death of the guardian, and have such order made to protect his title. Eor such purpose he is regarded as a quasi party to the proceeding.
    12. Evidence — attaching judicial proceedings collaterally, for mere error. It is a well settled general rule, that where a court has jurisdiction of the subject matter and "of the parties to the litigation, its judgments and decrees will be held valid, when questioned collaterally. In such case, mere errors in the proceeding will not invalidate the judgment or decree.
    Writ of Error to the Circuit Court of Christian county ; the Hon. C. S. Zane, Judge, presiding.
    Mr: Jno. G-. Reid, for the plaintiffs in error:
    No power is to be held as granted to an inferior court by implication. School Inspectors v. People, 20 Ill. 525.
    There are no presumptions in favor of the jurisdiction of an inferior court, but the presumptions are adverse to it.
      Shufeldt v. Buckley, 45 Ill. 223; Haywood v. Collins, 60 id. 328; Kenney v. Green, 13 id. 432; Osgood v. Blackmore, 59 id. 261; Swearengen v. Gulick, 67 id. 209; Wells v. Mason, 4 Scam. 84.
    Courts of an inferior jurisdiction, and of special statutory jurisdiction, must not only act within the scope of their jurisdiction, but it must affirmatively appear on the face of their proceedings, that they so acted, or their proceedings are void. Chicago v. Railroad Co. 20 Ill. 286; Donlin v. Hettinger, 57 id. 348; Haywood v. Collins, 60 id. 328; Albee v. Ward, 8 Mass. 86; Kemp v. Kennedy, 5 Cranch, 172; Johnson v. Von Kettler, 84 Ill. 316; Drake on Attachment, secs. 85-99.
    No court can acquire jurisdiction by a false recital of the facts necessary to give jurisdiction. Dunning v. Corwin, 11 Wend. 648; Borden v. Fitch, 15 Johns. 121; Noyes v. Butler, 6 Barb. 616.
    A mere recital is no evidence of a jurisdictional fact. Bouchard v. Dias, 3 Denio, 238.
    He who claims .under an order of an inferior court, must show, affirmatively, every step essential to jurisdiction,— nothing will be presumed. Fell v. Young, 63 Ill. 106; Von Kettler v. Johnson, 57 id. 109; Hyslop v. Finch, 99 id. 172; Freeman on Void Judicial Sales, sec. 8.
    In statutory proceedings, the statute must, in every respect, be strictly pursued, else the same will be void for want of jurisdiction. Mason v. Wait, 4 Scam. 127; Reynolds v. Wilson, 15 Ill. 394; Young v. Keogh, 11 id. 642; Herdman v. Short, 18 id. 59; Gibson v. Roll, 27 id. 92; Bree v. Bree, 51 id. 267; Curtis v. Bradley, 75 id. 180; Botsford v. O’Conner, 57 id. 72; Haywood v. Collins, 60 id. 329.
    When a court of an inferior and limited jurisdiction, (all courts exercising a statutory power are inferior,—Haywood v. Collins, 60 Ill. 329,) departs from the course prescribed by law in exercising the power it has, the judgment will be not merely erroneous, but absolutely void, and may be so treated in any collateral proceeding. It is not the indiscreet exercise of a power granted, but the doing of an act for which no power is given. Freeman on Executions, sec. 100, note 2; Dynes v. Hoover, 20 How. 80; Jenks v. Howland, 3 Gray, 536 ; Peters v. Peters, 8 Cush. 529 ; Camp v. Wood, 10 Watts, 121; Gray v. Brignardello, 1 Wall. 634; Rorer on Judicial Sales, see. 139; Thatcher v. Powell, 6 Wheat. 119.
    A court may examine collaterally into the jurisdiction of another court to .pass upon questions of title to land, and if the other court has done an act coram non judice, disregard it altogether. Klokke v. Dodge, 103 Ill. 125; Smith v. Hileman, 1 Scam. 323; Miller v. McMannis, 104 Ill. 422; Hales v. Holland, 92 id. 499.
    Mr. H. M. Vandeveer, for the defendant in error:
    Under the statute then in force, the presenting of the written petition, and the publication of the notice, gave the court jurisdiction. (Spring v. Kane, 86 Ill. 580.) The court having jurisdiction to order a sale, errors, however great, will not avoid the sale when collaterally attacked. Harris v. Lester, 80 Ill. 307; Mulford v. Beveridge, 78 id. 455; Botsford v. O’Conner, 56 id. 72.
    The record and the bill of exceptions in this ease are so intermixed with the arguments of counsel for plaintiffs, that it is difficult to find what the record is, and w'ant of health to make and print an additional abstract alone prevented from doing so. But if the court will read the record and the'cases cited below, they will find every real point made has been decided by this court. Botsford v. O’Conner, 57 Ill. 72; Harris v. Lester, 80 id. 307; Spring v. Kane, 86 id. 380; Conover v. Musgrave, 68 id. 58; Mulford v. Beveridge, 78 id. 455; Andrews v. Bernhardt, 87 id. 365.
    By statute, the application for a license to sell must have been made in the county where the wards reside; and, as in this case they resided in the city of Alton, that fact gave the court jurisdiction, and if the fact that they so resided was intended to he disputed, it could have been put in issue at any stage of the proceedings in that case. Spellman v. Dowse, 79 Ill. 66.
   Mr. Justice Sheldon

delivered the opinion of the Court r

This was an action of ejectment, brought by Lizzie T. Reid, formerly Lizzie T. Olcott, and Susan M. Olcott, against Thomas C. Morton, on May é, 1SS0, to recover an eighty-acre tract of land in Christian county. Both parties claim title through Alvin Olcott, deceased, the ancestor of the plaintiffs, and plaintiffs’ title to the land is conceded if it was not divested by certain proceedings in the Alton City Court, of Madison county, Illinois, commenced by Mary M. Olcott, their guardian, and resulting in a sale and guardian’s deed. The plaintiffs denied that this city court ever had jurisdiction of the subject matter involved here, either as a court of chancery, or under the statute then in force.

On March 8, 1865, Mary M. Olcott, as the guardian of the plaintiffs, filed her petition in said Alton City Court, in which it was stated that she was the legal guardian of Lizzie T. Olcott and Sue Olcott, minors, under the age of eighteen years; that said minors were the owners in fee of certain real estate, which it described; that the petitioner had exhausted all the personal estate of said minors, and that they had no means for their education and support, or for the payment of taxes on the real estate therein described, and that all such real estate was vacant and unoccupied, and was entirely unproductive, and was an expense to said minors, and concluding with the usual prayer for an order authorizing the sale of such lands, etc. At the November term, 1865, said court found, by its decree, that due notice of the pendency of the proceeding had been given to all persons concerned, for at least three weeks prior to the last term, by publication; that the petition was duly filed and presented on the first day of the last term of court; that the petitioner had faithfully applied all the personal estate of the said minors which had come to her hands, and that it was necessary.to sell the real estate described in the petition, for the support and education of such minors, and ordered that petitioner sell said lands, etc., and make report of such sale, etc.

At the first trial, the defendant introduced a transcript of the proceedings in the city court, into which was copied a paper purporting to be a report of sale, unsigned, and without any marks showing .that it was ever filed, and no order confirming the sale was shown. The court found for the plaintiffs, when a new trial was taken, under the statute. After the first trial, the defendant procured an order to be entered in the city court nunc pro tunc, purporting to confirm the guardian’s sale. To the introduction of this order of confirmation the plaintiffs objected, for the reasons that the Alton City Court had no jurisdiction of the subject matter of the application by a guardian for the sale of a ward’s land, either under the statutes then in force or by virtue of its chancery powers, and could have no chancery jurisdiction as no part of the lands affected was situate within the limits of the city or in the county of Madison, and because made without notice and subsequent to the commencement of this suit, and because the deed was made before the alleged confirmation.

.The questions presented by the record are, first, whether the Alton City Court ever had a constitutional existence; second, did the act of 1859, establishing the Alton City Court, grant jurisdiction to that court; third, conceding this was a constitutional court, whether it had jurisdiction of the subject matter of guardians’ applications to sell real estate, or acquired jurisdiction of the subject matter in the case; and fourth, whether the sale was invalid for want of an order of confirmation.

Section.1, article 5, of the constitution of 1848, was as follows : “The judicial power of this State shall be and is hereby vested in one Supreme Court, in circuit courts, in county courts, and in justices of the peace: Provided, that inferior local courts of civil and criminal jurisdiction may he established by the General Assembly in the cities of this State; but such courts shall have a uniform organization and jurisdiction in such cities.” Under the proviso of the above section, the General Assembly, in 1853, passed a law (Laws 1853, p. 147,) entitled “An act to establish the recorder’s court of the city of Chicago.” Section 1 of this act provided that the recorder’s court should have concurrent jurisdiction, within said city, with the circuit court, of civil cases, where the amount in controversy should not exceed $100, and in all criminal cases, except treason and murder; and further, that said court, and the judge and clerk thereof, should, respectively, have the like power, authority and jurisdiction, and perform the like duties, as the circuit court and the judge and clerk thereof, in relation to all matters, suits, prosecutions and proceedings within the city of Chicago, so far as the same were not otherwise limited by the act.

By an act entitled “An act to establish the Court of Common Pleas of the city of Cairo,” approved February 6, 1855, (Laws 1855, p. 15'5,) the General Assembly granted to said court civil and criminal jurisdiction in all cases, except in cases of treason, and in cases wherein the demand exceeded the sum Of $50,000, and concurrent jurisdiction within the city, and within township 17 south, and range 1 west, of the third principal meridian, with the circuit court, except in the cases above excepted.

The General Assembly, by an act approved February 10, 1857, (Laws 1857, p. 29,) entitled “An act to give an uniform organization and jurisdiction to inferior courts of local jurisdiction in the cities of this State,” provided that every act establishing an inferior court of civil and criminal jurisdiction in any city of this State, should be so construed as to confer on such court an uniform organization and jurisdiction with the recorder’s court of the city of Chicago and the court of common pleas of the city» of Cairo, anything in any such act to the contrary notwithstanding.

The General Assembly, in 1859, by an act approved February 9, 1859, (Laws 1859, p. 71,) established the Alton City Court, and by the first section of the act granted to the court concurrent jurisdiction, within the city of Alton, with the circuit court of Madison county, in all civil and criminal cases, except cases of treason and murder. The second section provides that the judge of said court shall possess the same powers as are vested in the judges of the circuit court, except as limited in the act. Section 25" of the act declares, that “the act entitled ‘An act to give a uniform organization and jurisdiction to inferior courts of local jurisdiction in the cities of this State,’ approved February 10, 1857, shall be made a part of this act as fully as if the same had been incorporated herein.”

As showing that the Alton City Court never had a legal existence, it is insisted that the act of February 10, 1857, is absolutely void for uncertainty, repugnancy and inconsistency, in that it is impossible to confer upon any court a jurisdiction at once uniform "with the various jurisdictions of the ■recorder’s court of Chicago and the court of common pleas of Cairo, and for the further reason, that the act of February 6, 1855, is void for unconstitutionality, in granting jurisdiction without the city of Cairo and within township 17 south, etc., and the act of 1855 being thus void, makes void the act of 1857, inasmuch as the latter refers to and adopts the former,—and hence it is argued that the entire act of 1859 establishing the Alton City Court is void, because, in its 25fch section, it refers to and adopts those acts.

The matter of uncertainty, repugnancy and incongruity in the act of 1857, in conferring upon all other city courts an uniform jurisdiction with the recorder’s court of Chicago and the common pleas court of Cairo, the two latter courts having differing jurisdictions, might raise some doubt as to the precise extent of jurisdiction in criminal cases, and in civil cases where there was an amount in controversy; but this would be but a question of construction, and would not go to the validity of the act, especially in the particular of this proceeding for a guardian’s sale, where there is no amount in controversy, and of which such recorder’s court had undoubted jurisdiction, from the grant to it of like power and authority as the circuit court had in relation to all proceedings within the city of Chicago, except as limited by the act establishing the court. We do not think, as suggested, that this meant only the general power and authority of the circuit court, and did not embrace its special statutory powers, like this one, of authorizing a guardian to sell his ward’s land. A statute may be void in part, and good as to the residue. And conceding, without expressing any opinion upon the subject, that the act of 1855 was void in its conferring jurisdiction outside of the territorial limits of the city and within township 17, we should hold the act valid in so far as it conferred jurisdiction within the city.

It is further urged, under this head, that it is only inferior local courts which, under the constitution of 1848, might be established in cities, and that this Alton City Court is not an inferior court, inasmuch as it has concurrent jurisdiction, within the city of Alton, with the circuit court of Madison county, in all civil cases. It has not equal jurisdiction with the circuit court of Madison county in criminal cases, and its jurisdiction, in territorial extent, is less than that of the circuit court. Making it a court of record does not, in our opinion, make it, as contended, a superior, and not an inferior, court, within the meaning of the constitution. It is not plain just what was meant by this use of the word “inferior, ” in the constitution, in application to courts. A statute should not be pronounced unconstitutional upon the doubtful meaning of the term “inferior, ” as applied to a court. The Alton City Court was, in dignity and in jurisdiction, an inferior court to the Supreme Court, and to the circuit court, and we can not say that it was not an inferior local court, within the intendment of the constitution.

It is next insisted, that if the Alton City Court was legally created, it did not have jurisdiction of the subject matter of an application by a guardian for license to sell the real estate of his ward. The first section of the act of February 9, 1859, grants to the Alton City Court concurrent jurisdiction, within the city of Alton, with the circuit' court of Madison county, in all civil cases. Much research has been displayed by plaintiffs’ counsel, in the way of investigation and citation of authorities, to show that proceedings for the salb of real estate of minors by guardians are not “cases,” in the sense in which that term is used in that section, and that a 'general reference clause, as here, granting concurrent jurisdiction with the circuit court, confers only the general and ordinary powers and jurisdiction of the tribunal referred to; that special and extraordinary statutory powers, .suchas that of this proceeding by a guardian, are not embraced in such a general reference clause, and can not be conferred except by express mention,— all which would be quite pertinent, were the sole authority for entertaining the proceeding based upon this general grant of jurisdiction in section 1; but section 2 of the act declares, that the judge shall possess the same powers as are vested in the judges of the circuit court; and the act establishing the recorder’s court of Chicago provides that-said court, and the judge thereof, should have-the like power, authority and jurisdiction as the circuit court, and the judge thereof, in relation to ■ all matters, suits, prosecutions' and proceedings within the city of Chicago, so far as the same were not otherwise limited by that act,—the limitation "having no application here. ' The act of 1857, to give an uniform jurisdiction to inferior courts of local jurisdiction, in cities, provides that every act establishing an inferior court of civil and criminal jurisdiction, in any city, should be so construed as to confer on such court an uniform jurisdiction with the recorder’s court of Chicago, and the court of common pleas of Cairo. And the 25th section of the act of 1859, creating the Alton City Court, declares that that act of'1857 shall be made a part of such act of 1859, as fully as if the same had been incorporated therein. In view of all this, we can have no doubt that there was granted to the Alton City Court, not only concurrent jurisdiction, within the city of Alton, with the circuit court, in all civil cases, but that there was granted, besides, to the judge the same powers possessed by the judges of the circuit court, except as limited in the act, which included the power to order sale of a minor’s land by his guardian. Although the grant of such power, specifically and in terms, is made only to the circuit court, there is, it seems to us, no good ground for the claim made, that the power is exclusive in such court, where, as here, there is expressly granted to the city court concurrent' jurisdiction with the circuit court, and also to the judge the same powers as above named.

It is contended, next, that if there was a general grant of jurisdiction over such a guardian’s proceeding, there was a want of jurisdiction in this particular case, because the lands were situated outside the city of Alton, and in the counties of Christian and Montgomery. It is said' this guardian proceeding is one in rein, and that in order for jurisdiction of the subject matter in a particular ease, the res—the real estate—must be situated within the city.. The provision of the general statute, at the time when this application was made by the guardian, was, that the guardian’s application for the sale of his ward’s real estate shall be made in the county ■where the ward resides, although the real estate may lie in a different county. But it is "denied that the General Assembly had the power, under the constitutional proviso above, to vest jurisdiction in municipal courts, where the subject matter of the proceeding, or the thing to be affected, is wholly outside of , the city limits. That provision is, that inferior local courts of civil ancT criminal jurisdiction may be established by the General Assembly in the cities of this State. And in People v. Evans, 18 111. 362, this court held that provision limited the territorial jurisdiction of the courts to be established thereunder; to the cities within which they should be created. The term “jurisdiction, ” as. used in this limitation of that provision, we think is to be held to relate to the exercise of such powers, onty, as are judicial in their nature, and that this power of authorizing a guardian to sell his ward’s real estate is not a power of that description. In Rice v. Parkman, 16 Mass. 326, the court, in speaking of this power, say it is a power analogous to that exercised by the British Parliament, on similar subjects, time out of mind; that “it does not follow, because the power has been delegated by the legislature to courts of law, it is judicial in its character. For aught we see-, the same aúthórity'miglít ha'ye been given to the selectmen of each town, or to the clerks or registers of the counties, it being a mere ministerial act,— certainly requiring discretion, and sometimes knowledge of law, but still partaking in no degree of the characteristics of judicial power,” etc. Aud see Cooley’s Const. Lim. (5th ed.) 118, -where, in speaking of the powers conferred by general laws upon courts in this and like matters, suggestion is made, and seemingly adopted, whether such power of sale is not so conferred- upoh courts, “not because the cases fall necessarily within the province of judicial action, but because the courts can more conveniently consider,- and- properly, safely and inexpensively pass upon such cases, than the legislative body to which the power primarily belongs.” We are of opinion the General Assembly was not deprived of the authority, under the constitution, to. confer on city courts the power to order guardian’s sale of a ward’s real estate situated without the cities in which the courts were established, and that in this case, the wards residing in the city of Alton, the power was rightly given to and exercised by the guardian to sell their real estate situated without the city.

Irregularities and errors in the course of the proceeding are insisted upon as invalidating the guardian’s sale. It is certainly the well settled general rule, that when a court has jurisdiction of the subject matter and of the parties.to the litigation, its judgments and decrees will be held valid when questioned collaterally. And this court has many times applied the rule in the very case of this special, statutory and extraordinary proceeding of a guardian’s sale, which this is so much dwelt upon as being. Young v. Lorain, 11 Ill. 624; Mulford v. Stalzenback, 46 id. 303; Spring v. Kane, 86 id. 580. In Mulford v. Stalzenback, it was said, in reference to such a sale, that it was sufficient for the purchaser to see there was an order of court for the sale of the land, and made by a court having jurisdiction to make the order. The statute -under which the proceeding was had,—section 10, chapter 47, of the Revised Statutes of 1845,—empowered the court to order a sale of the real estate of the^ward on application of the guardian, by petition in writing, stating the facts, requiring publication of notice in a newspaper, three weeks before the sitting of the court. There was, here, such petition and publication of notice,—the petition stating the residence of the wards to be in the city of Alton, and stating such facts as would make a case for the granting of the order of sale. This gave the court jurisdiction.

It is objected-that-, there was no petition of the guardian in writing, because-the petition was not-signed by the guardian personally. It appears to be signed, “Mary M. Olcott, guardian of Lizzie Olcott and Sue Olcott, by Levi Davis, her solicitor. ” We regard this a sufficient signing,—that a petition thus signed, constituted, in the language of the statute, an “application of the guardian by petition in writing.”

Objection is taken, that the'certificate of publication was signed, “Parks & Pinkard, Publishers, ” not giving their Christian names. There is no merit in this. The order of sale recites due notice, by publication of the notice in the newspaper.

At the next term of the court after the making of the order of sale, to-wit, at the April term, 1866, on petition by the guardian, the order of sale was amended as to terms of sale, by permitting the sale on a credit of one, two and three years, the terms in the original order being one-third of the purchase money cash, and 'the residue upon a credit of six and nine months. It is objected that this amended order, under which the lands were sold, ivas void, because made at a- subsequent term, and without notice. The guardian had represented she was unable to sell upon the original terms, except at a sacri.fice, and asked for the credit. We think the amended order of sale was very properly made, and that it was competent for the court to make it as it did, and without notice having been given-. The case- had not before -been- finally disposed of, but yet remained within the power of the court, subject to have further orders made therein.

Other objections as to the validity of the order of sale, as, for the want of sufficient proofs, alleged deviations from the statute, etc., touch what would be no more than errors in the exercise of jurisdiction, and can not be availed of in this collateral proceeding.

■ Objection is taken to the want of approval of the guardian’s sale. Such approval this court has held to be necessary in order -to divest the title of the ward. (Young v. Keogh, 11 Ill. 642; Rawlings v. Bailey, 15 id. 178; Musgrave v. Conover, 85 id. 374.) The sale took place June 25, 1866, and the guardian’s deed was made on the same day. Up to that time, the court records showed no approval of the report of sale. The record shows, that at the February term, 1882, of the Alton City Court, the 'guardian proceeding was re-docketed; that the wards appeared by their counsel, and on motion of Jacob Kline and James W. Hodge, who were purchasers of lands at the guardian’s sale, there was made the following order: “It is ordered, adjudged and decreed by the court, that the report of sale in this suit, made by Mary M. Oleott, guardian, under a former decree of this court, having been approved by this court on the 22d day of November, A. D. 1866, as fully appears by the indorsement on said report, by the judge of this court, at that day, and the approval of said report not having been entered by said judge, on the docket, approved, the said report of said sale is approved nunc fro tunc.” We think such order was properly made, and that it showed a valid approval of the report of sale. It was but spreading upon the record what had actually been done by the court, as appeared by the judge’s minutes, but had failed to be entered of record. The power of a court to correct its records in accordance with its own minutes, is undoubted.

It is said the rights of parties must be determined according to the state of the title at the commencement of the suit,— that a party can not avail himself of an act done after the commencement of the suit, which is essential to perfect his title. The act of approval was the thing essential, and this did not take place at the February term, 1882, when the nunc fro tunc order was made, but the approval ha'd previously been made, and before the commencement of the suit, and such order was but placing upon the record the evidence of the court’s former act of approval.

It appears that the guardian had been dead for a number of years before the making of such order, and it is claimed that on that account the order was void. The motion upon which the order was made, was by the purchasers at the guardian’s sale. They were the persons interested in the matter, in order to the protection of their titles, and we think they were entitled to make the motion and have the order made on their behalf, although the guardian had deceased. In 2 DanielTs Chancery PI. and Pr. (5tli ed.) 1062, note 5, it is said: “Purchasers under decrees in chancery are regarded, to a certain extent, as parties to the suit, so as to be under the control of the court, on the one hand, and its protection, on the other. ” And on page 1592, in speaking of persons by whom, motions in a cause may be made, the author says: “A person who is quasi a party to the record, such as a claimant coming in under a decree, or a purchaser of an estate sold by order of the court, may also apply to the court in this manner. ”

The objection of the want of notice to the wards is manifestly of no force, as -the order recites they appeared by counsel.

The point is made that the lands, merely, were sold and conveyed, and not the interest of the wards in the lands. The statute was followed in this respect. It directs that the court shall order the sale of the real estate of the ward, and declares that the effect shall be to vest in the purchaser all the interest the ward had in the estate so sold.

We are of opinion the guardian’s deed divested the title of the wards, and conveyed the same to the grantee in the deed. The judgment will be affirmed.

Juclgment affirmed.

The record in this case was assigned to Judge Dickey, an d he not having prepared an opinion in-his lifetime, the record was re-assigned at the November term, 1885.

Shope, Mulkey and Magbudee, JJ.: We concur in the conclusion, but not in all that is said in the opinion.


author: Mr. Justice Scott Mr. Justice Craig :

text:
    Caroline W. Benneson et al. v. William T. Savage et al.

      Filed at Springfield January 22, 1886.

      1. Practice in the Supreme Court—omission to assign errors on the record*—al what stage of the cause it may be done. Where a case is brought to this court from the Appellate Court, tljp appellant or plaintiff in error is required to assign errors upon the record from the Appellate Court, and 'such assignment must be upon the record itself, or attached to it. It is not sufficient that the abstract shows an assignment of error as to the ruling of the Appellate Court.
    2. When the attention of this court is called to the omission to assign errors on the record, before the cause is submitted, it may require such assignment to be made instanter, and on failure to do so, dismiss the appeal or writ of error. But after submission, it is too late to make such a rule, and there being no proper assignment, the suit will be dismissed.
    *See Dilch et al. v. Seunott et al. 116 Ill. 288.
    Writ of Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Adams county; the Hon. S. P. Shore, Judge, presiding.
    Mr. W. H. Benneson, for the plaintiffs in error.
    Mr. William W. Berry, for the defendant in error William T. Savage.
   Mr. Justice Scott

delivered the opinion of the Court:

This cause was heard in the circuit court of Adams county, where a decree of foreclosure was rendered in favor of complainants in the original bill, and the cross-bill filed by a part of defendants was dismissed for want of equity. After-wards, the cause was heard in the Appellate Court for the Third District, on errors assigned on the record by the same defendants that had filed the cross-hill in the court below, and upon cross-errors assigned on the same record by the .complainant William T. Savage, when the decree of the circuit court was affirmed in all things. The record has since been brought into this court by the same plaintiffs in error that assigned errors on the record in the Appellate Court, but no errors have been assigned on the record, to the decision of the Appellate Court, as is required by the rule of this court shall be done. There having been no errors assigned on the record of the Appellate Court, there is and can be no joinder in error, and therefore no issue for this court to try. The rule of this court requires the errors to be assigned on the record itself, or attached to it. (Gibbs v. Blackwell, 40 Ill. 51.) In this ease the abstract of the record of the Appellate Court contains also what purports to be an abstract of an assignment of error on the decision of the Appellate Court. In this respect the abstract is incorrect, as "no assignment of error is found anywhere on the record, or attached to it, or elsewhere. Had the attention of this court been called to the omission to assign errors on the record before the cause was submitted, and while the attorneys might be presumed to be in court, it might have required errors to be assigned instanter, and a failure to do so, would have been ground for dismissing the writ. Since the cause has been submitted, it is now too late to lay any rule upon plaintiffs in error to assign error, and the writ must be dismissed.

Writ of error dismissed.

Mr. Justice Craig :

I do not concur in this decision^ The errors were assigned in the abstract, and, in my judgment, that was all that could be required, especially as no objection was interposed to the manner in which errors were assigned, and the cause was argued by both parties, and submitted to us for decision on the merits.

Mr. Justice Sheldon concurs with Mr. Justice Craig.


author: Mr. Justice Scholfield

text:
    The Illinois Central Railroad Company v. The People ex rel. John Hodges, Collector.

      Filed at Springfield March 27, 1886.

    1. Exemption from taxation—Illinois Central Railroad Company-scope of the exemption in its charter—as to freight houses, elevators, etc. This court has held that the property of the Illinois Central Eailroad Company which is exempted from taxation by section 22 of its charter, is such as has been acquired in the prosecution of its business in constructing and operating its road as authorized by its charter.
    2. Freight houses, elevators, etc., constructed and used solely for the purpose of enabling the company to perform its duties as a common carrier, are exempt from taxation under the charter of the company. But property devoted to a use not contemplated by the charter, as, for the business of warehousing for private gain, or merchandizing, is not within the exemption.
    3. So an elevator of the Illinois Central Eailroad Company, built upon its right of way leased to private persons, holding as agents of the company, under an agreement to pay a compensation for its use, is not exempt under section 22 of the charter of the company, it not being used exclusively by the company in the exercise of its franchise.
    4. Same—burden of proof on question of exemption. The party alleging an exemption of property from taxation must show that fact.
    Appeal from the County Court of Alexander county; the Hon. John IT. Eobinson, Judge, presiding.
    Messrs. Green & Gilbert, for the appellant:
    This court has several times held that the property of appellant is not subject to assessment and taxation except in the manner pointed out in its charter, and that its property is exempt “from all taxation of every kind, ” except the seven per cent payable annually to the State. Railroad Co. v. County of McLean, 17 Ill. 291; Neustadt v. Railroad Co. 31 id. 484.
    An elevator in which grain is stored and handled, and from which grain'is shipped, is a grain warehouse, with modern improvements for handling grain. The elevator built by appellant upon its own lot 4, appears by the evidence to have been used for receiving and storing grain until it should be shipped. The question of the exemption from'ordinary taxation of such property as the elevator, built on appellant’s land,. seems to have been definitely settled, so far as the opinion of this court can settle it. Gilkerson v. Brown, 61 Ill. 486.
    The charter of appellant has been held by this court to be a contract between appellant and the State, “which can not be changed or annulle'd without the consent of both contracting parties.” Neustadt v. Railroad Co. supra.

    Section 97, of chapter 129, of the Bevised Statutes of 1874, was enacted subsequent to the enactment of apjiellant’s charter. It will not be contended that the subsequent legislation embodied in said section 97 will be so construed as to impair the obligation of appellant’s contract with the State. But if appellant’s right to own and hold said lot 4 free from taxation, except as provided in its charter, is limited by said section 97, such limitation may operate so as to impair the obligation of the contract.
    There is no likeness between this case and Felsenthal v. Johnson, 104 Ill. 21, and Preston v. Johnson, id. 625. No element of contract, appeared in those cases.
    Mr. William N..Butler, State’s Attorney, and Mr. Johh M. Lahsden, for the appellees:
    The exemption in the appellant’s charter does not extend to all property the company may choose to purchase. It may purchase property for railroad purposes, and say it uses it for such purposes; but it must go further, and show for what purposes it is used. If the elevator is used as elevators are ordinarily used in which grain is stored, in a manner such as to destroy the identity of different lots, then the business of operating the same is no part of a railway company’s business, nor that of a common carrier. Railroad Co. v. Irvin, 72 Ill. 452; Bank v. Tennessee, 104 U. S. 493.

      The exemption, under the charter, extends only to property necessary for the business of the company. Railroad Co. v. Milwaukee, 34 Wis. 271; State v. Railroad Co. 48 Md. 50; DeSoto Bank v. City of Memphis, 6 Baxter, 415.
    An intention to exempt must, in any case, be expressed in clear and unambiguous terms. Taxation is the rule, exemption is the exception. All exemptions are to be strictly construed. They embrace only what is within their terms. Cooley on Taxation, 146; Northwestern University v. People, 50 Ill. 333.
    Exemptions from taxation are never presumed or implied, and it is required of those who claim such a privilege, to show that such was the intention of the legislature, and such intention must appear in terms clear and explicit. Burroughs on Taxation, 132.
    The general inclination of the courts has been to hold that a charter which provides for a certain tax, and “that no other tax or impost shall be levied or assessed” upon the corporation, will exempt from taxation all the property held by it necessary to effect the purpose of the incorporation, but not other property held by it, which, though convenient and tending to increase the profits, is not. necessary to the corporation and its business. Cooley on Taxation, 151.
    Charters and grants limiting the taxing power are strictly construed, and all doubts solved against the same. Tucker v. Ferguson, 22 Wall, 527; Northwestern University v. People, 80 Ill. 333; Railroad Tax, 18 Wall. 206; Bailey v. Maguire, 22 id. 215.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This appeal is from a judgment of the county court of Alexander county, against a lot of ground owned by the Illinois Central Bailroad Company, on which is a large grain elevator, for delinquent taxes. The only question for our consideration is, whether the property is exempt from taxation, under section 22 of the company’s charter.

We held in Illinois Central Railroad Co. v. Irvin, 72 Ill. 452, that the taxes from the payment of which the legislature intended to relieve appellant by this section, were only such as it, as a railroad corporation, would otherwise be liable to pay upon its property acquired in the prosecution of its business in constructing and operating the lines of railway described in its charter. That freight houses, elevators, etc., constructed and used solely for the purpose of enabling the company to perform its duty as a common carrier, are exempt from taxation, we think is beyond question; but the company has no more authority, under its charter, to enter upon the business of warehousing, generally, than it has to enter upon that of merchandizing, and property, therefore, devoted to such a use, not being within the contemplation of its charter, can not be within the exemption.

' The rule is familiar, that the party alleging exemption from taxation must affirmatively show that the property claimed to be exempt is so in fact. The proof here is hardly sufficient. It is true, that a witness of unquestioned integrity testified that “the elevator is used to hold grain that is unloaded from Illinois Central cars, and also grain that is to be carried away on them; ” but he also further testified, the building “is occupied by Halliday Brothers, under a contract; * * * they hold the elevator as agents of-the Illinois Central Bailroad Company, and pay that company a compensation in money, exactly how, or what amount, I do not remember. ” This clearly excludes the idea that the elevator is used exclusively by the company in the exercise of its franchise as a common carrier, and it does not affirmatively sho.w that the elevator is used exclusively for the storage of grain shipped, or to be shipped, on the company’s railroad. The evidence does not show that grain shipped, or to be shipped, on the company’s railroad, must, to enable the company to conveniently discharge its duty to shippers and consignees, pass through this elevator; and it does appear, from the evidence quoted, that it is rented or let to private parties for a stipulated compensation.

We are not convinced there is error in the judgment below.

It will therefore be affirmed.

Judgment affirmed.